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1. Introduction
Seven years ago, President Bill Clinton informed the nation in his State
of the Union address that the '' era of big government'' was over. It
now appears that his pronouncement may have been premature. Turning
Clinton's statement on its head, Sen. Charles Schumer (D-N. Y.) wrote in
December 2001, '' The era of a shrinking federal government has come
to a close. '' Schumer was hardly alone. Well before the wreckage of the
World Trade Center had stopped smoldering, such pundits as Francis
Fukuyama and George Will were eagerly heralding the '' fall'' of libertari-anism
and the '' death'' of small-government conservatism. September 11
had proven— had it not?— the necessity of a muscular central government
with sweeping powers. The wave of corporate scandals beginning with
Enron's collapse had proven it again by demonstrating the need for robust
regulation to comfort increasingly skittish investors.
In light of this new conventional wisdom, it might seem anachronistic,
even quaint, to echo President Reagan's famous claim that '' government
is not the solution to our problem; government is the problem. '' Who, in
these chaotic times, could seriously suggest that we need, not larger and
more flexible government, but fewer federal programs, less spending,
fewer regulations?
Well, the Cato Institute. Not merely because we have been committed
to the principles of limited government, respect for individual rights, and
open markets since our inception, but because the new orthodoxy is grossly
at variance with reality. Our military and intelligence forces must, of
course, focus their full energies on dismantling the al-Qaeda terrorist
network and preventing any future attacks against the homeland. But
neither public sentiment nor the public good demands a wider scope for
government in general. If anything, the great challenges the United States
now faces require, more than ever, that its government respect the bound-aries
set by the Constitution, so that it may focus more vigorously on its
core functions.
As poll watchers well know, there was a paradoxical surge of public
trust in government following the attacks of September 11, 2001, just

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when the failure of government to carry out its most central obligation—
the protection of the homeland— had been made terrifyingly clear. Perhaps
the rise in trust can best be interpreted as a sort of prospective vote of
confidence, a reflection, not of our belief in what government had been
doing, but in our expectation of its capabilities when put to the test.
Optimism has its limits, however, and the most recent data show that
long-term trends toward lower public trust in government, and policy
preferences favoring smaller government, are beginning to reassert them-selves.

Plus C¸a Change: The Public Mood
The 1960s and 1970s saw a continual decline in public support for
more government activism, a trend that bottomed out in 1980. Support
for activism then climbed throughout the 1980s, perhaps because of the
prosperity of the era and the perceived success of the Reagan administra-tion.
Since 1990, however, the overall trend has been away from support
for government activism; in recent years, the policy mood measure has
declined steadily and about as steeply as it did during the 1970s. The
Washington establishment seems not to realize that, as the 108th Congress
convenes, the political mood of Americans is every bit as skeptical as it
was in 1981 at the start of the Reagan revolution.
Conventional wisdom notwithstanding, data compiled by University of
North Carolina political scientist James Stimson reveal no perceptible shift
in this trend as a result of the 2001 terror attacks. Stimson's latest data,
from 2002, indicate a continued move away from support for expansive
government. The evidence also indicates a renewed decline in public trust
in the federal government. For many years survey researchers have asked
citizens how much they trusted the federal government to do the right
thing. The proportion that answered '' just about always'' or '' most of the
time'' provides a rough measure of public trust in the federal government.
Trust has declined most of the time since its historic high point in the 1960s.
About a month after September 11, Princeton Survey Research Associ-ates
posed the trust question to a sample of Americans. They found 57
percent of those polled trusted the federal government to do the right thing
'' just about always'' or '' most of the time''— strikingly higher than the
recent trend. But this trust soon faded: the same question posed in May
2002 showed that only 40 percent of respondents trusted the federal
government. This fits well with a public mood skeptical of expanded

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federal power. After all, a public that trusts government less and less will
hardly demand that it do more and more.
The willingness of a frightened polity to sacrifice civil liberties for the
sake of increased security has also ebbed. Early in 2002, a Gallup/ CNN/
USA Today poll found that 47 percent of those polled thought the govern-ment
should take all necessary steps to prevent terrorism even if the
respondent's civil liberties suffered; 49 percent opposed such steps if the
price included their basic civil liberties. By June 2002, 56 percent opposed
preventing terrorism at the cost of civil liberties, and 40 percent supported
'' all necessary steps'' against terrorism. Americans seem to be moving
back toward their pre– September 11 views on civil liberties.
On a wide variety of issues, citizens are increasingly willing to seek
innovative private-sector solutions to problems government has failed to
ameliorate. An annual Phi Delta Kappa/ Gallup poll on school choice found
a dramatic leap in support for vouchers: a majority of those polled would
now support a proposal to '' allow parents to send their school-age children
to any public, private, or church-related school they choose, '' with govern-ment
paying part or all of the tuition. Perhaps most surprising, a Cato
Institute/ Zogby International poll conducted during the stock market slump
in the summer of 2002, mere weeks after news of the WorldCom scandal
broke, found that more than 68 percent of likely voters favored '' changing
the Social Security system to give younger workers the choice to invest
a portion of their Social Security taxes through individual accounts. ''
Clearly, the prophets of a new '' era of big government'' are less skilled
at gauging voter opinion than they are at projecting their own policy
preferences onto the electorate.

The Beltway Cocoon
What explains this massive disparity between what the public wants
and what pundits and elected officials seem to think the public wants? In
part, it may simply be that the panicked call to '' do something'' and the
resurgence of faith in government following the attacks on New York
and Washington, D. C., understandably made a more palpable impression
on most observers than the cooling off that followed. The more troublesome
explanation, though, is that there exists in Congress a systemic bias toward
seeing the expansion of government as a solution to almost every problem.
That bias is not a fluke but a direct consequence of the current structure
of American electoral politics.

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Whereas the Founders of the American republic envisioned a govern-ment
of citizen legislators for whom public service would be a solemn
but temporary charge, we now see a regime composed almost exclusively
of professional politicians. It was not always this way: average congres-sional
tenure has risen steeply over the past century. Chief among the
culprits responsible for this change is the huge and growing advantage
enjoyed by House incumbents, who in recent years have seen reelection
rates rise above 98 percent. In addition to all the traditional privileges
afforded incumbents— a staff devoted to constituent service, the power
of franking, access to Congress's television studio, to say nothing of the
ability to name hospitals and highways after oneself— sitting legislators
are now protected by increasingly stringent campaign finance laws, which
limit the ability of challengers to overcome those advantages through
vigorous political speech. Even redistricting, which historically led to
dozens of more competitive congressional races, has deteriorated into a
bipartisan, computer-driven process of incumbent protection.
Incumbent advantage leads to a vicious cycle, wherein the most compe-tent
potential challengers are deterred from entering contests, except those
for open seats, further tightening the incumbent's hold on power. As
incumbent protection drives up average tenure, the amount of time one
must be willing to commit to politics in order to build support or secure
an influential committee chair also increases. Decades of this process have
transformed politics into a game worth playing only for those determined
to make a career of it.
This may not be entirely bad: some such people may just be unusually
committed to public service. But whatever their motives, those who find
the prospect of spending their lives in government attractive are also likely
to have an inflated view of the role and importance of the state in American
life. An old story about the chess genius Bobby Fischer has him interrupting
a conversation about politics between some fellow players with the
demand, '' What's that got to do with chess? '' Entrenched political classes
are afflicted with a parallel sort of myopia. For them, discussion of any
public benefit bubbling up from civil society or the private sector provokes
the response, '' What has that got to do with a new federal program? ''
To promote real political leadership, it will probably be necessary to
change the institutional constraints that give rise to that kind of tunnel
vision. In the meantime, however, legislators who sincerely desire to serve
the public trust must force themselves to notice this pervasive bias and
to overcome it.

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Terror and Scandal
The two developments most frequently cited as evidence for the neces-sity
of enlarging government power are the War on Terror and the spate of
corporate accounting scandals that began with Enron's collapse. Legislators
have been eager to propose new laws intended to combat both terror and
corporate malfeasance, but there has been far less examination of how
existing laws contributed to both problems. While new laws may in some
instances be both necessary and proper, we should put first things first.
Before we contemplate what else we can do to make things better, we
ought to ask what we may already be doing to make things worse.
Crooked CEOs are wholly responsible for defrauding investors, but as
William Niskanen observes in Chapter 22, legal incentives increased both
the likelihood of the bankruptcies that fraud was intended to cover and
the lack of managerial accountability that made the fraud itself possible.
Biases in the tax code encourage corporations to take on excessive debt
and to compensate CEOs in the form of stock options. Since option holders
can win big on a dramatic rise in the price of their companies' stock, but
lose nothing if it drops further below the exercise price, options encourage
them to take larger risks than they otherwise might. Moreover, corporate
governance rules— an inscrutable tangle of federal securities laws, state
regulations, and policies particular to each company— have left managers
increasingly insulated from the shareholder scrutiny and control that might
check unsound business practices. In the long term, fixing these structural
imbalances will do more to prevent future scandals than will parading a
few handcuffed CEOs before the evening news cameras.
Of course, when malfeasance does occur, there is surely a place for
government in punishing deception. However, instead of asking why the
Securities and Exchange Commission failed to use its already ample
powers to catch that deception earlier on, Congress, eager to demonstrate
its '' toughness, '' tipped the balance too far in the other direction by
effectively criminalizing corporate risk taking and created a redundant
Accounting Oversight Board of dubious constitutionality.
The government's response to terror has in many ways been equally
unreflective. There has been no serious examination of how government
failed on September 11. We have not yet had an independent investigation
of intelligence and other failures. But we know that poor communication
between intelligence agencies led to the neglect of numerous warning
signs that an attack was imminent. We know that the Immigration and
Naturalization Service was not keeping track of people who entered on
temporary visas. We know that for more than a year, both before and

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after September 11, the FBI kept 10 agents employed conducting a full-time
wiretap of a New Orleans brothel. We know that at the moment the
planes crashed into the World Trade Center, the president of the United
States was in an elementary school classroom in Florida— a striking exam-ple
of the federal government's loss of focus on its essential functions in
an endless and diffuse morass of programs.
It would be natural to conclude that federal law enforcement has used
its existing powers ineffectively— perhaps because it has been forced to
squander its energies on prying in the bedrooms of adults, breaking down
the doors of sick people who smoke marijuana, and carrying out police
functions that both intelligent policy and constitutional fidelity demand
be left to the states. Instead, Congress's response has been to fiddle a bit
with the Federal Emergency Management Agency and the INS and create
new layers of bureaucracy— apparently on the theory that nothing speeds
along the smooth flow of information like more red tape— while leaving
the major structural problems unaddressed. Instead of finding ways to
make better use of existing police and intelligence powers, it has recklessly
added to those powers. It is almost as though endless discussions of the
'' tradeoffs between liberty and security'' have led us to infer that constrict-ing
liberty automatically increases security. Yet as Robert Levy and Timo-thy
Lynch argue in their analyses of current threats to civil liberties in
Chapters 12 and 13, proposals to introduce a national ID or to try '' enemy
combatants, '' as determined via executive fiat, by military tribunal would
do little to make Americans safer. They would, in fact, have only one
absolutely certain effect: the evisceration of citizens' rights to privacy and
due process.
No less troubling is our newly bellicose approach to foreign affairs.
The kind of hysterical overreaction to hypothetical worst-case scenarios
that was once the exclusive province of the most radical fringe of the
environmental movement has apparently found a home at the heart of the
current administration. At a time when we have more than enough proven
threats with which to cope, advocates of '' preemption'' would have us
swing erratically from perceived enemy to perceived enemy. This disas-trous
prescription would blur our collective focus, undermining our efforts
to break the back of the terrorist networks that are our most pressing
concern, and, indeed, swelling their ranks. Osama bin Laden would surely
like nothing better than an American attempt to establish an imperial
caliphate in the heart of the Muslim world; the administration's reasons
for sharing his eagerness are opaque.

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Introduction
Conclusion
Fidelity to our founding principles of respect for civil liberties and
limited government is easy when times are easy, as they were through
much of the tech boom of the 1990s. The true test of our faith in those
principles comes now, when we are beset by diabolical assaults from
without and economic turmoil within, when public anxiety may temporarily
make it seem expedient to put those principles aside.
We know that the Constitution is functioning properly when it frustrates
us. Bland and innocuous speech has little need of constitutional protec-tions;
the First Amendment exists to safeguard the contentious, provoca-tive,
and even offensive speech that stirs censorious impulses. By the same
token, the importance of paying scrupulous deference to the Constitution's
limits on federal power, of respecting its careful system of checks and
balances, is greatest precisely when the temptation to flout them is strong-est.
The enemies of freedomhave made their horrifying statement already.
By demonstrating a commitment to the core ideals of a constitutional
republic, the defenders of freedom now have an opportunity to make
theirs. This Handbook provides the policy vocabulary from which that
statement can be constructed. In these pages, our scholars survey the
major issues confronting the 108th Congress and provide concrete recom-mendations
with the goal of preserving both the security to which Ameri-cans
are entitled and the freedom that serves as a beacon to the world
and a reproach to our enemies.

Suggested Readings
Bastiat, Frederic. The Law. 1850. Irvington, N. Y.: Foundation for Economic Educa-tion, 1998.

Boaz, David. Libertarianism: A Primer. New York: Free Press, 1997. Brooks, David L., ed. From Magna Carta to the Constitution: Documents in the Struggle
for Liberty. San Francisco: Fox & Wilkes, 1993.
Constitution of the United States of America. Crane, Edward H. Defending Civil Society. Cato's Letter no. 8. Washington: Cato

Institute, 1994. Epstein, Richard. Simple Rules for a Complex World. Cambridge, Mass.: Harvard Univer-sity
Press, 1995. Friedman, Milton. Capitalism and Freedom. Chicago: University of Chicago Press, 1962.
Friedman, Milton, and Rose D. Friedman. The Tyranny of the Status Quo. San Diego: Harcourt Brace, 1984.
Higgs, Robert. Crisis and Leviathan: Critical Episodes in the Growth of American Government. Oxford: Oxford University Press, 1987.
Murray, Charles. In Pursuit: Of Happiness and Good Government. New York: Simon & Schuster, 1988.

—Prepared by Edward H. Crane and David Boaz
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2. Limited Government and the Rule of Law
Congress should
live up to its constitutional obligations and cease the practice
of delegating legislative powers to administrative agencies; legislation should be passed by Congress, not by unelected

administration officials; before voting on any proposed act, ask whether that exercise
of power is authorized by the Constitution, which enumerates the powers of Congress;
exercise its constitutional authority to approve only those
appointees to federal judgeships who will take seriously the constitutional limitations on the powers of both states and the

federal government; and pass and send to the states for their approval a constitutional
amendment limiting senators to two terms in office and repre-sentatives to three terms, in order to return the legislature to
citizen legislators.

Limited government is one of the greatest accomplishments of humanity.
It is imperfectly enjoyed by only a portion of the human race, and, where
it is enjoyed, its tenure is ever precarious. The experience of the 20th
century is surely witness to the insecurity of constitutional government
and to the need for courage in achieving it and vigilance in maintaining it.
Advocates of limited government are not anti-government per se, as
some people would charge. Rather, they are hostile to concentrations of
coercive power and to the arbitrary use of power against right. With a deep
appreciation for the lessons of history and the dangers of unconstrained
government, they are for constitutionally limited government, with the

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delegated authority and means to protect our rights, but not so powerful
as to destroy or negate them.
The American system was established to provide limited government.
The independent existence of the United States was based on certain truths:

that all Men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty, and the
Pursuit of Happiness— That to secure these Rights, Governments are insti-tuted
among Men, deriving their just Powers from the Consent of the
Governed, that whenever any Form of Government becomes destructive
of these Ends, it is the Right of the People to alter or to abolish it, and to
institute new Government, laying its Foundation on such Principles, and
organizing its Powers in such Form, as to them shall seem most likely to
effect their Safety and Happiness.

On this foundation the American Founders established a system of govern-ment
based on delegated, enumerated, and thus limited powers.
The American Founders did not pluck these truths out of thin air, nor
did they simply invent the principles of American government. They drew
from their knowledge of thousands of years of human history, during
which many peoples struggled for liberty and limited government. There
were both defeats and victories along the way. The results were distilled
in the founding documents of the American experiment in limited govern-ment:
the Declaration of Independence, the Articles of Confederation, the
state constitutions, and the Constitution of the United States.
The American Founders were careful students of history. It was Thomas
Jefferson, in his influential A Summary View of the Rights of British
America, prepared in 1774, who noted that '' history has informed us that
bodies of men as well as individuals are susceptible of the spirit of
tyranny. '' Another Founder, Patrick Henry, devoted great attention to the
study of history. He summed up the importance of history thus: '' I have
but one lamp by which my feet are guided, and that is the lamp of
experience. I know of no way of judging the future but by the past. ''
History— the lamp of experience— is indispensable to understanding and
defending the liberty of the individual under constitutionally limited, repre-sentative
government.
Through the study of history the Americans learned about the division
of power among judicial, legislative, and executive branches; about federal-ism;
about checks and balances among divided powers; about redress and
representation; and about the right of resistance, made effective by the
legal right to bear arms, an ancient right of free persons. Liberty and

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limited government were not invented in 1776; they were reaffirmed and
strengthened. The American Revolution set the stage for the benefits of
liberty and limited government to be extended to all. As John Figgis,
professor of modern history at Cambridge University, noted at the begin-ning
of the 20th century:

The sonorous phrases of the Declaration of Independence . . . are not an
original discovery, they are the heirs of all the ages, the depository of the
emotions and the thoughts of seventy generations of culture.

The roots of the history of limited government stretch far back, to the
establishment of the principle of the higher law by the ancient Hebrews
and by the Greek philosophers. The story of the Golden Calf in the Book
of Exodus and the investigations of nature by Aristotle both established—
in very different ways— the principle of the higher law. Law is not merely
an expression of will or power; it is based on transcendent principles. The
legislator is as bound by law as is the subject or citizen; no one is above
the law.
Many strands have been entwined to form the fabric of liberty:

The struggle between church and state, which was put into high gear
in the Latin West by Pope Gregory VII in the 11th century under
the motto, '' freedom of the church. '' That movement, which created
an institutional distinction between the church and the secular authori-ties,
was the first major '' privatization'' of a previously state-owned
industry (the church) and provided the foundation for such important
institutions as the rule of law and legal accountability, federalism,
and the independent and self-governing associations that make up
civil society.
The growth of civil society in the self-governing chartered towns of
Europe, in which the guiding principle was '' city air makes one
free. '' The independent cities of Europe were the seedbeds of modern
civil society— of the market economy, of personal liberty, and of the
security of person and property.
The fixing of limits on the powers of monarchs and executives through
written constitutions. The Magna Carta of 1215 is the most memorable
of those documents to inheritors of the Anglo-Saxon political tradition.
It included the requirement that taxes could not be imposed without
the consent of the '' general council of the realm, '' which provided
the origin of the English parliament, as well as other very specific
limitations on the king's power, including the stipulations that no

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one be imprisoned or outlawed or exiled or his estate seized '' except
by the lawful judgment of his peers or the law of the land'' and that
'' merchants shall have safe conduct in and out of England. '' That
was the precursor of the Petition of Right of 1628, the Bill of Rights of
1689, the American Declaration of Independence, and the American
Constitution and Bill of Rights.

Those various movements reinforced each other in a multitude of ways.
The assertion of the freedom of the church and even of its supremacy
over the secular powers was bound up with the idea of the higher law,
by which all are judged— emperor, pope, and peasant alike. As legal
scholar Henry Bracton, a judge during the reign of Henry III, noted of
the royal authority, '' The law makes him king. Let the king therefore give
to the law what the law gives to him, dominion and power; for there is
no king where will, and not law, bears rule. '' Were the king to consider
himself above the law, it was the job of the king's council— the precursor
of parliament— to rein him in: '' if the king were without a bridle, that is,
the law, they ought to put a bridle upon him. '' Not only was the nascent
parliament above the king; the law was above the parliament, as Sir
Edward Coke noted in the 17th century:

when an act of Parliament is against common right and reason, or repugnant,
or impossible to be performed, the common law will controul it, and adjudge
such Act to be void.

The supremacy of the law over the exercise of power is a hallmark of
the Western legal tradition. The rule of law is not satisfied by merely
formal or ceremonial exercises, such as the publication of edicts in barely
understandable form, whether in the archaic '' Law French'' of the king's
courts or the pages of the Federal Register; the laws must be understandable
and actually capable of being followed.
There was also widespread recognition of the principle of reciprocity
between the holders of power and the general populace. Rights were
spelled out in contractual form in constitutions and charters. Those rights
were not gifts from the powerful, which could be taken away on a whim,
but something on which one could take a stand. Tied up in the notion of
a chartered right was the ancillary right to defend that right, even to the
point of resistance with force of arms. The higher law, reciprocity and
mutuality of obligations, written charters of rights, the right to be consulted
on policy and to grant or refuse one's consent, and the right of resistance

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in defense of those rights are the foundations of constitutionally limited
government. They were won over many centuries at great sacrifice.
Just how precious that heritage is can be gleaned from comparing it
with the history of Russia, where, until very recently, there was no reciproc-ity
between rulers and ruled and no independent power able to challenge
the rulers. The principality of Muscovy and its successors were despotic
to a high degree, with no charters of liberty, no power higher than the
tsar (or his successor, the Communist Party), no limits on power— in
effect, no law. As Harvard University historian Richard Pipes noted in
his book Russia under the Old Regime, '' There is no evidence in medieval
Russia of mutual obligations binding prince and his servitor, and, therefore,
also nothing resembling legal and moral 'rights' of subjects, and little
need for law and courts. '' The immense difficulties in establishing the
rule of law, a system of well-defined and legally secure property, and a
market economy are testimony to the great and vital importance of building
on a tradition of stable, constitutionally limited government. They also
remind us how important it is for us to maintain our heritage of limited
government and the rule of law.
The struggle for limited government was a struggle of liberty against
power. The demands for religious liberty and the protection of property
were fused in the heroic resistance of the Netherlands to the Empire of
Spain in their great revolt. The Dutch inspired the English to rise up against
the Stuart kings, who sought to fasten upon the English the absolutism that
had made such headway on the Continent. The American Revolution was
one link in a long chain of revolutions for liberty. The historian John
Lothrop Motley opened his magisterial history The Rise of the Dutch
Republic by connecting the Dutch Republic with the United States of
America:

The rise of the Dutch Republic must ever be regarded as one of the leading
events of modern times.... The maintenance of the right by the little
provinces of Holland and Zealand in the sixteenth, by Holland and England
united in the seventeenth, and by the United States of America in the
eighteenth centuries, forms but a single chapter in the great volume of
human fate; for the so-called revolutions of Holland, England, and America,
are all links of one chain.

Motley continued:
For America the spectacle is one of still deeper import. The Dutch Republic
originated in the opposition of the rational elements of human nature to

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sacerdotal dogmatism and persecution— in the courageous resistance of
historical and chartered liberty to foreign despotism.

The Dutch, like the British and the Americans after them, became a
shining example of what was possible when people were free: prosperity
was possible without the guiding hand of the king and his bureaucrats;
social harmony was possible without enforced religious conformity; law
and government were possible without an unlimited and absolute
sovereign.
The story of the attempts to institute absolutism in the Netherlands and
in England was well known by the American Founders, who were, after
all, British colonists. One cannot understand the American attempt to
institute limited, representative government without understanding the his-tory
of England. What they were struggling against was the principle that
the powers of the state are '' plenary, '' that they fill up the whole space
of power. King James I of England (then King James VI of Scotland)
had written in 1598 that '' the King is above the law, as both the author
and giver of strength thereto. '' In 1610 James made A Speech to the Lords
and Commons of the Parliament at White-Hall in which he railed against
the notions of popular consent and the rule of law and stated that '' as to
dispute what God may do is blasphemy . . . so it is sedition in subjects
to dispute what a king may do in the height of his power. ''
In other words, there are no limits to power. Distinct echoes of that
view are still heard today. For example, the solicitor general of the United
States, Drew Days, arguing in the case of United States v. Lopez before
the Supreme Court, was unable to identify a single act of Congress,
other than those expressly prohibited by the Constitution, that would be
impermissible under the Clinton administration's expansive view of the
Commerce Clause. Solicitor Days contended that the powers of Congress
are plenary, that is, unlimited, unless, perhaps, specifically prohibited.
That all-too-common view turns the notion of limited government on its
head. Limited government means that government is limited both to the
exercise of its delegated powers and in the means it can employ, which
must be both '' necessary and proper. '' The English Revolution of 1640,
the Glorious Revolution of 1688, and the American Revolution of 1776
were fought precisely to combat unlimited government. What Americans
need is not unlimited government, as Days proposed, but limited govern-ment
under law, exercising delegated and enumerated powers. That is
how the equal liberties of citizens are protected. As the philosopher John
Locke, himself an active participant in the struggles for limited government

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in Britain and the primary inspiration of the American revolutionaries,
argued in his Second Treatise on Government:

The end of Law is not to abolish or restrain, but to preserve and enlarge
Freedom: For in all the states of created beings capable of Laws, where
there is no Law, there is no Freedom. For Liberty is to be free from restraint
and violence from others, which cannot be, where there is no Law: But
Freedom is not, as we are told, A Liberty for every Man to do what he
lists: (For who could be free, when every other Man's Humour might
domineer over him?) But a Liberty to dispose, and order, as he lists, his
Person, Actions, Possessions, and his whole Property, within the Allowance
of those Laws under which he is; and therein not to be subject to the
arbitrary Will of another, but freely follow his own.

The American experiment in limited government generated a degree
of liberty and prosperity that was virtually unimaginable only a few
centuries before. That experiment revealed flaws, of course, none of which
was more striking and repugnant than the toleration of slavery, or '' man-stealing,
'' as it was called by its libertarian opponents, for it deprived an
individual of his property in his own person. That particular evil was
eliminated by the Thirteenth Amendment to the Constitution, showing the
self-correcting nature and basic resilience of the American constitutional
system, which could survive such a cataclysm as the Civil War.
Other flaws, however, have been revealed or have surfaced since.
Among them are the following:

An erosion of the basic principles of federalism, as the federal govern-ment
has consistently encroached on the authority of the states. Fed-eral
criminalization of acts that are already criminalized by the states,
for example, usurps state authority (as well as circumventing— opin-ions
of the Supreme Court notwithstanding— the prohibition of dou-ble
jeopardy in the Fifth Amendment to Constitution: '' nor shall any
person be subject for the same offense to be twice put in jeopardy
of life or limb''). An even more striking contemporary example of
the overreach of federal law is the continued exercise of federal
controls over marijuana use in the nine states that have broken with
federal law and allow medical use of that drug. The Tenth Amendment
is quite explicit on this point: '' The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people. ''
Violation of the separation of powers between the various branches
of government. In Article I, section 8, for example, the Constitution

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explicitly reserves the power to declare war to the Congress, a power
that the Congress has allowed to be usurped by the executive branch
and which it should retake to itself.
Failure of the legislative branch to fulfill its responsibilities when it
delegates its legislative powers to administrative agencies of the
executive branch, such as the Food and Drug Administration and the
Federal Trade Commission. In addition to violating the Constitution,
that has led to the erosion of the rule of law, as such administrative
agencies have burdened the population with an unimaginably complex
welter of edicts; the Federal Register ran 64,431 pages in 2001,
reflecting a degree of minute regulation that is unreasonable and
burdensome and that virtually guarantees that any citizen involved
in a commercial transaction, for example, will run afoul of some part
of it, no matter how well intentioned or scrupulous he or she may
be. Such a situation is an invitation to the arbitrary exercise of power,
rather than the application of law. That illegal delegation of powers is
an abdication of the representative function described in the Federalist
Papers and elsewhere by the Founders. Members of Congress are
thereby converted from representatives of their constituents into
'' fixers, '' who offer to intercede on behalf of constituents with the
agencies that are illegally exercising the authority of the legislative
branch. Thus, members of Congress can avoid responsibility for
onerous laws but can take credit for gaining special treatment for
their constituents. That system may be thoroughly congenial to the
interests of the existing officeholders of both the executive and the
legislative branches, but it is directly contrary to the doctrine of
the separation of powers and to the very concept of representative
government.
Inattention to the important role of the federal judiciary as a check
on arbitrary and unauthorized exercises of power. Especially since
the Court-packing '' constitutional revolution of 1937, '' there has
been too little attention by the federal judiciary— and by the Congress
in ratifying judicial nominees— to fulfilling the role of the courts in
enforcing constitutional restraints on both the federal and the state
governments, as set out in Article III, section 2, of the Constitution.
Sections of the Constitution that have suffered from relative neglect
include Article I, section 1 ('' All legislative Powers herein granted
shall be vested in a Congress of the United States''); Article I, section
8 (enumerating and thus limiting the powers of Congress); Article I,

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Limited Government and the Rule of Law
section 10 ('' No state shall . . . pass any . . . Law impairing the
Obligation of Contracts''); the Fifth Amendment ('' No person shall
be . . . deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use without just
compensation''); the Ninth Amendment ('' The enumeration in the
Constitution of certain rights shall not be construed to deny or dispar-age
others retained by the people''); the Tenth Amendment ('' The
powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively,
or to the people''); and the Fourteenth Amendment ('' No state shall
make or enforce any law which shall abridge the privileges or immuni-ties
of citizens of the United States''). Although the First and Four-teenth
Amendments have indeed been the source of significant judicial
activity, the Court has not consistently applied the prohibitions of
the First Amendment to either commercial speech or political speech
(the latter in the context of campaign finance), nor has the Court
rectified the novel (and specious) distinction between personal liber-ties
and economic liberties drawn by Justice Harlan F. Stone in United
States v. Carolene Products Co. (1938).
The failure to pass a constitutional amendment limiting members of
the Senate to two terms and members of the House of Representatives
to three terms. Just as the president is limited in the number of
terms he or she can serve, so should be the other elected branch of
government, to guarantee the rotation in office that the Founders
believed essential to popular government.

Those flaws can, however, be corrected. What is needed is the courage
to place the health of the constitutional order and the future of the American
system above short-term political gain. The original American Founders
were willing '' to mutually pledge to each other our Lives, our Fortunes,
and our sacred Honor. '' Nothing even remotely approaching that would
be necessary for today's members of Congress to renew and restore the
American system of constitutionally limited government.
In defending the separation of powers established by the Constitution,
James Madison clearly tied the arrangement to the goal of limiting govern-ment
power:

It may be a reflection on human nature that such devices should be necessary
to control the abuses of government. But what is government itself but the
greatest of all reflections on human nature? If men were angels, no govern-17 18
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ment would be necessary. If angels were to govern men, neither external
nor internal controls would be necessary. In framing a government which
is to be administered by men over men, the great difficulty lies in this:
you must first enable the government to control the governed; and in the
next instance oblige it to control itself. A dependence on the people is, no
doubt, the primary control on the government; but experience has taught
mankind the necessity of auxiliary precautions.

What is needed for the survival of limited government is a renewal of
both of the forces described by Madison as controls on government:
dependence on the people, in the form of an informed citizenry jealous
of its rights and ever vigilant against unconstitutional or otherwise unwar-ranted
exercises of power, and officeholders who take seriously their oaths
of office and accept the responsibilities they entail.

Suggested Readings
Berman, Harold. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass.: Harvard University Press, 1983.

Boaz, David. Libertarianism: A Primer. New York: Free Press, 1997. Boaz, David, ed. The Libertarian Reader: Classic and Contemporary Readings from
Lao-tzu to Milton Friedman. New York: Free Press, 1997.
Bramsted, E. K., and K. J. Melhuish, eds. Western Liberalism: A History in Documents from Locke to Croce. New York: Longman, 1978.

Brooks, David L., ed. From Magna Carta to the Constitution: Documents in the Struggle for Liberty. San Francisco: Fox & Wilkes, 1993.
Ely, James W. Jr. The Guardian of Every Other Right: A Constitutional History of Property Rights. New York: Oxford University Press, 1998.
Epstein, Richard A. Simple Rules for a Complex World. Cambridge, Mass.: Harvard University Press, 1997.
. Takings: Private Property and the Right of Eminent Domain. Cambridge, Mass.: Harvard University Press, 1985.
Hamilton, Alexander, James Madison, and John Jay, The Federalist Papers. New York: Mentor, 1961.
Hayek, F. A. The Constitution of Liberty. Chicago: University of Chicago Press, 1960. Higgs, Robert. Crisis and Leviathan: Critical Episodes in the Growth of American
Government. New York: Oxford University Press, 1987.
Jefferson, Thomas. '' A Summary View of the Rights of British North America. '' In The Portable Jefferson. New York: Penguin Books, 1977.

Locke, John. Two Treatises of Government. 1690. Cambridge: Cambridge University Press, 1988.
Spencer, Herbert. Political Writings. Cambridge: Cambridge University Press, 1994. Storing, Herbert, ed. The Anti-Federalist. Chicago: University of Chicago Press, 1985.

—Prepared by Tom G. Palmer

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3. Congress, the Courts, and the Constitution
Congress should
encourage constitutional debate in the nation by engaging in
constitutional debate in Congress, as was urged by the House Constitutional Caucus during the 104th Congress;

enact nothing without first consulting the Constitution for proper
authority and then debating that question on the floors of the House and the Senate;

move toward restoring constitutional government by carefully
returning power wrongly taken over the years from the states and the people; and

reject the nomination of judicial candidates who do not appreci-ate
that the Constitution is a document of delegated, enumer-ated, and thus limited powers.

Introduction
In a chapter devoted to advising members of Congress about their
responsibilities under the Constitution, one hardly knows where to begin—
so far has Congress taken us, over the 20th century, from constitutional
government. James Madison, the principal author of the Constitution,
assured us in Federalist no. 45 that the powers of the federal government
under that document were '' few and defined. '' No one believes that
describes Washington's powers today. That raises fundamental questions
about the constitutional legitimacy of modern American government.
For a while at century's end, after the realigning election of 1994, it
looked like Congress was at last going to rethink its seemingly inexorable
push toward ever-larger government. In fact, the 104th Congress saw the

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creation in the House of a 100-strong Constitutional Caucus dedicated to
promoting the restoration of limited constitutional government. And shortly
thereafter, President Clinton announced that the era of big government
was over. But the spirit of that Congress has waned over time. By the
107th Congress, respect for constitutional limits on congressional power
was all but gone.
The principles of the matter have not gone away, however; nor of
course has the Constitution itself. It is still the law of the land, however
little Congress heeds it. And the moral, political, and economic implications
of limited constitutional government have not changed either. That kind
of government is the foundation for liberty, prosperity, and the vision of
equality that most people cherish. Indeed, that insight has been gaining
ground around the world as the Leviathans of the 20th century have aged
or crumbled. Yet all too many members of Congress seem still to believe
that the good life is brought about primarily by government programs,
not by individuals acting in their private capacities. And they believe
equally that the Constitution authorizes them to enact such programs.
In growing numbers, however, Americans know better. Below the level
that polling usually reaches, they have come to see that government rarely
solves the problems it purports to solve; in fact, it usually makes those
problems worse. More deeply, they have come to understand that a life
dependent on government is too often not only impoverishing but impover-ished.
It is no accident, therefore, that the electoral trends of the past
quarter of a century have been in the direction of less government, even
if Washington has been slow to appreciate that message.
In moving from a world in which government is expected to solve our
problems to a world in which individuals, families, and communities
assume that responsibility— indeed, take up that challenge— the basic
questions are how much and how fast to reduce government. Those are
not questions about how to make government run better— government
will always be plagued by waste, fraud, and abuse— but about the funda-mental
role of government in this nation.

How Much to Reduce Government
The first of those questions— how much to reduce government— would
seem on first impression to be a matter of policy; yet in America, if we
take the Constitution seriously, it is not for the most part a policy question,
a question about what we may or may not want to do. For the Founding
Fathers thought long and hard about the proper role of government in our

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Congress, the Courts, and the Constitution
lives, and they set forth their thoughts in a document that explicitly
enumerates the powers of the federal government.
Thus, setting aside for the moment all practical concerns, the Constitu-tion
tells us as a matter of first principle how much to reduce government
by telling us, first, what powers the federal government in fact has and,
second, how governments at all levels must exercise their powers— by
respecting the rights of the people.
That means that if a federal power or federal program is not authorized
by the Constitution, it is illegitimate. Given the present size of government,
that is a stark conclusion, to be sure. But it flows quite naturally from the
Tenth Amendment, the final statement in the Bill of Rights, which says,
'' The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or
to the people. '' In a nutshell, the Constitution establishes a government
of delegated, enumerated, and thus limited powers. As the Federalist
Papers make clear, the Constitution was written not simply to empower
the federal government but to limit it as well.
Since the Progressive Era, however, the politics of government as
problem solver has dominated our public discourse. And since the collapse
of the Supreme Court during the New Deal, following President Roose-velt's
notorious Court-packing scheme, the Court has abetted that view
by standing the Constitution on its head, turning it into a document of
effectively unenumerated and hence unlimited powers. (For a fuller discus-sion
of the Constitution and the history of its interpretation, see Chapter
3 of theCato Handbook for Congress: 104th Congress.)
Indeed, limits on government today come largely from political and
budgetary rather than from constitutional considerations. Thus, it has not
been because of any perceived lack of constitutional authority that govern-ment
in recent years has failed to undertake a program, when that has
happened, but because of practical limits on the power of government to
tax and borrow— and even those limits have failed in times of economic
prosperity. That is not the mark of a limited, constitutional republic. It is
the mark of a parliamentary system, limited only by periodic elections.
The Founding Fathers could have established such a system, of course.
They did not. But we have allowed those marks of a parliamentary system
to supplant the system they gave us. To restore truly limited government,
therefore, we have to do more than define the issues as political or
budgetary. We have to go to the heart of the matter and raise the underlying
constitutional questions. In a word, we have to ask the most fundamental

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question of all: does the government have the authority, the constitutional
authority, to do what it is doing?

How Fast to Reduce Government
As a practical matter, however, before Congress or the courts can relimit
government as it was meant to be limited by the Constitution, they need
to take seriously the problems posed by the present state of public debate
on the subject. It surely counts for something that a substantial number
of Americans— to say nothing of the organs of public opinion— have little
apprehension of or appreciation for the constitutional limits on activist
government. Thus, in addressing the question of how fast to reduce govern-ment,
we have to recognize that the Supreme Court, after more than 65
years of arguing otherwise, is hardly in a position, by itself, to relimit
government in the far-reaching way a properly applied Constitution
requires. But neither does Congress at this point have sufficient moral
authority, even if it wanted to, to end tomorrow the vast array of programs
it has enacted over the years with insufficient constitutional authority.
For either Congress or the Court to be able to do fully what should be
done, therefore, a proper foundation must first be laid. In essence, the
climate of opinion must be such that a sufficiently large portion of the
American public stands behind the changes that are undertaken. When
enough people come forward to ask— indeed, to demand— that govern-ment
limit itself to the powers it is given in the Constitution, thereby
freeing individuals, families, and communities to solve their own problems,
we will know we are on the right track.
Fortunately, a change in the climate of opinion on such basic questions
has been under way for some time now. The debate today is very different
than it was only a decade ago, much less a quarter of a century ago. But
there is a good deal more to be done before Congress and the courts are
able to move in the right direction in any far-reaching way, much less
say that they have restored constitutional government in America. To
continue the process, then, Congress should take the lead in the follow-ing
ways.

Encourage Constitutional Debate in the Nation by Engaging in Constitutional Debate in Congress, As Was Urged by the
House Constitutional Caucus during the 104th Congress
Under the leadership of House freshmen like J. D. Hayworth and John
Shadegg of Arizona, Sam Brownback of Kansas, and Bob Barr of Georgia,

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Congress, the Courts, and the Constitution
together with a few senior congressmen like Richard Pombo of California,
an informal Constitutional Caucus was established in the '' radical'' 104th
Congress. Its purpose was to encourage constitutional debate in Congress
and the nation and, in time, to restore constitutional government. Unfortu-nately,
the caucus has been moribund since then. It needs to be revived—
along with the spirit of the 104th Congress— and its work needs to be
expanded.
The caucus was created in response to the belief that the nation had
strayed very far from its constitutional roots and that Congress, absent
leadership from elsewhere in government, should begin addressing the
problem. By itself, of course, neither the caucus nor the entire Congress
can solve the problem. To be sure, in a reversal of all human experience,
Congress in a day could agree to limit itself to its enumerated powers and
then roll back the countless programs it has enacted by exceeding that
authority. But it would take authoritative opinions from the Supreme Court,
reversing a substantial body of largely post– New Deal decisions, to embed
those restraints in '' constitutional law''— even if they have been embedded
in the Constitution from the outset, the Court's modern readings of the
document notwithstanding.

The Goals of the Constitutional Caucus
The ultimate goal of the caucus and Congress, then, should be to
encourage the Court to reach such decisions. But history teaches, as noted
above, that the Court does not operate entirely in a vacuum, that to some
degree public opinion is the precursor and seedbed of its decisions. Thus,
the more immediate goal of the caucus should be to influence the debate
in the nation by influencing the debate in Congress. To do that, it is not
necessary or even desirable, in the present climate, that every member of
Congress be a member of the caucus— however worthy that end might
ultimately be— but it is necessary that those who join the caucus be
committed to its basic ends. And it is necessary that members establish
a clear agenda for reaching those ends.
To reduce the problem to its essence, every day members of Congress
are besieged by requests to enact countless measures to solve endless
problems. Indeed, listening to much of the recent campaign debate, one
might conclude that no problem is too personal or too trivial to warrant
the attention of the federal government. Yet most of the '' problems''
Congress spends most of its time addressing— from health care to day
care to retirement security to economic competition— are simply the per-23 24
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sonal and economic problems of life that individuals, families, and firms,
not governments, should be addressing. What is more, as a basic point
of constitutional doctrine, under a constitution like ours, interpreted as
ours was meant to be interpreted, there is little authority for government
at any level to address such problems.
Properly understood and used, then, the Constitution can be a valuable
ally in the efforts of the caucus and Congress to reduce the size and scope
of government. For in the minds and hearts of most Americans, it remains
a revered document, however little it may be understood by a substantial
number of them.

The Constitutional Vision
If the Constitution is to be thus used, however, the principal misunder-standing
that surrounds it must be recognized and addressed. In particular,
the modern idea that the Constitution, without further amendment, is an
infinitely elastic document that allows government to grow to meet public
demands of whatever kind must be challenged. More Americans than
presently do must come to appreciate that the Founding Fathers, who
were keenly aware of the expansive tendencies of government, wrote the
Constitution precisely to check that kind of thinking and that possibility.
To be sure, the Founders meant for government to be our servant, not
our master, but they meant it to serve us in a very limited way— by
securing our rights, as the Declaration of Independence says, and by doing
those few other things that government does best, as spelled out in the
Constitution.
In all else, we were meant to be free— to plan and live our own lives,
to solve our own problems, which is what freedom is all about. Some
may characterize that vision as tantamount to saying, '' You're on your
own, '' but that kind of response simply misses the point. In America
individuals, families, and organizations have never been '' on their own''
in the most important sense. They have always been members of communi-ties,
of civil society, where they could live their lives and solve their
problems by following a few simple rules about individual initiative and
responsibility, respect for property and promise, and charity toward the
few who need help from others. Massive government planning and pro-grams
have upset that natural order of things— less so in America than
elsewhere, but very deeply all the same.
Those are the issues that need to be discussed, both in human and in
constitutional terms. We need, as a people, to rethink our relationship to

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Congress, the Courts, and the Constitution
government. We need to ask not what government can do for us but what
we can do for ourselves and, where necessary, for others— not through
government but apart from government, as private citizens and organiza-tions.
That is what the Constitution was written to enable. It empowers
government in a very limited way. It empowers people— by leaving them
free— in every other way.
To proclaim and eventually secure that vision of a free people, the
Constitutional Caucus should reconstitute itself and rededicate itself to
that end at the beginning of the 108th Congress and the beginning of
every Congress thereafter. Standing apart from Congress, the caucus should
nonetheless be both of and above Congress— as the constitutional con-science
of Congress. Every member of Congress, before taking office,
swears to support the Constitution— hardly a constraining oath, given the
modern Court's open-ended reading of the document. Members of the
caucus should dedicate themselves to the deeper meaning of that oath.
They should support the Constitution the Framers gave us, as amended
by subsequent generations, not as '' amended'' by the Court's expansive
interpretations.

Encouraging Debate
Acting together, the members of the caucus could have a major impact
on the course of public debate in this nation— not least, by virtue of their
numbers. What is more, there is political safety in those numbers. As
Benjamin Franklin might have said, no single member of Congress is
likely to be able to undertake the task of restoring constitutional government
on his own, for in the present climate he would surely be hanged, politically,
for doing so. But if the caucus hangs together, the task will be made more
bearable and enjoyable— and a propitious outcome made more likely.
On the agenda of the caucus, then, should be those specific undertakings
that will best stir debate and thereby move the climate of opinion. Drawn
together by shared understandings, and unrestrained by the need for serious
compromise, the members of the caucus are free to chart a principled
course and employ principled means, which they should do.
They might begin, for example, by surveying opportunities for constitu-tional
debate in Congress, then making plans to seize those opportunities.
Clearly, when new bills are introduced, or old ones are up for reauthoriza-tion,
an opportunity is presented to debate constitutional questions. But
even before that, when plans are discussed in party sessions, members
should raise constitutional issues. Again, the caucus might study the costs

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and benefits of eliminating clearly unconstitutional programs, the better
to determine which can be eliminated most easily and quickly.
Above all, the caucus should look for strategic opportunities to employ
constitutional arguments. Too often, members of Congress fail to appreci-ate
that if they take a principled stand against a seemingly popular pro-gram—
and state their case well— they can seize the moral high ground
and prevail ultimately over those who are seen in the end to be more
politically craven.
All of that will stir constitutional debate— which is just the point. For
too long in Congress that debate has been dead, replaced by the often
dreary budget debate. This nation was not established by men with green
eyeshades. It was established by men who understood the basic character
of government and the basic right to be free. That debate needs to be
revived. It needs to be heard not simply in the courts— where it is twisted
through modern '' constitutional law''— but in Congress as well.

Enact Nothing without First Consulting the Constitution for Proper Authority and Then Debating That Question on the
Floors of the House and the Senate
It would hardly seem necessary to ask Congress, before it enacts any
measure, to cite its constitutional authority for doing so. After all, is that
not simply part of what it means, as a member of Congress, to swear to
support the Constitution? And if Congress's powers are limited by virtue
of being enumerated, presumably there are many things Congress has no
authority to do, however worthy those things might otherwise be. Yet so
far have we strayed from constitutional thinking that such a requirement
is today treated perfunctorily— when it is not ignored altogether.
The most common perfunctory citations— captured ordinarily in consti-tutional
boilerplate— are to the General Welfare and Commerce Clauses
of the Constitution. It is no small irony that both those clauses were written
as shields against overweening government; yet today they are swords of
federal power.

The General Welfare Clause
The General Welfare Clause of Article I, section 8, of the Constitution
was meant to serve as a brake on the power of Congress to tax and spend
in furtherance of its enumerated powers or ends: the spending that attended
the exercise of an enumerated power had to be for the general welfare,
not for the welfare of particular parties or sections of the nation.

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Congress, the Courts, and the Constitution
That view, held by Madison, Jefferson, and most others, stands in
marked contrast to the view of Hamilton— that the Constitution established
an independent power to tax and spend for the general welfare. But as
South Carolina's William Drayton observed on the floor of the House in
1828, Hamilton's view would make a mockery of the doctrine of enumer-ated
powers, the centerpiece of the Constitution, rendering the enumeration
of Congress's other powers superfluous: whenever Congress wanted to
do something it was barred from doing by the absence of a power to do
it, it could simply declare the act to be serving the '' general welfare'' and
get out from under the limits imposed by enumeration.
That, unfortunately, is what happens today. In 1936 the Court came
down, almost in passing, on Hamilton's side, declaring that there is an
independent power to tax and spend for the general welfare. Then in 1937,
in upholding the constitutionality of the new Social Security program, the
Court completed the job when it stated the Hamiltonian view not as dicta
but as doctrine, then reminded Congress of the constraints imposed by
the word '' general, '' but added that the Court would not police that
restraint; rather, Congress would be left to police itself, the very Congress
that was distributing money from the Treasury with ever greater particular-ity.
Since that time the relatively modest redistributive schemes that
preceded the New Deal have grown exponentially until today they are
everywhere.

The Commerce Clause
The Commerce Clause of the Constitution, which grants Congress the
power to regulate '' commerce among the states, '' was also written primar-ily
as a shield— against overweening state power. Under the Articles of
Confederation, states had erected tariffs and other protectionist measures
that impeded the free flow of commerce among the states. Indeed, the
need to break the logjam that resulted was one of the principal reasons
for the call for a convention in Philadelphia in 1787. To address the
problem, the Framers gave Congress the power to regulate— or '' make
regular''— commerce among the states. It was thus meant to be a power
primarily to facilitate free trade.
That functional account of the commerce power is consistent with
the original understanding of the power, the 18th-century meaning of
'' regulate, '' and the structural limits entailed by the doctrine of enumerated
powers. Yet today the functional account is all but unknown. Following
decisions by the Court in 1937 and 1942, Congress has been able to regulate

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anything that even '' affects'' interstate commerce, which in principle is
everything. Far from regulating to ensure the free flow of commerce
among the states, much of that regulation, for all manner of social and
economic purposes, actually frustrates the free flow of commerce.
As the explosive growth of the modern redistributive state has taken
place almost entirely under the General Welfare Clause, so, too, the growth
of the modern regulatory state has occurred almost entirely under the
Commerce Clause. That raises a fundamental question, of course: if the
Framers had meant for Congress to be able to do virtually anything it
wanted under those two simple clauses alone, why did they bother to
enumerate Congress's other powers, or bother to defend the doctrine of
enumerated powers throughout the Federalist Papers? Had they meant
that, those efforts would have been pointless.

Lopez and Its Aftermath
Today, as noted above, congressional citations to the General Welfare
and Commerce Clauses usually take the form of perfunctory boilerplate.
When it wants to regulate some activity, Congress makes a bow to the
doctrine of enumerated powers by claiming that it has made findings that
the activity at issue '' affects'' interstate commerce— say, by preventing
interstate travel. Given those findings, Congress then claims it has authority
to regulate the activity under its power to regulate commerce among
the states.
Thus, when the 104th Congress was pressed in the summer of 1996 to
do something about what looked at the time like a wave of church arsons
in the South, it sought to broaden the already doubtful authority of the
federal government to prosecute such acts by determining that church
arsons '' hinder interstate commerce'' and '' impede individuals in moving
interstate. '' Never mind that the prosecution of arson has traditionally
been a state responsibility, there being no general federal police power in
the Constitution. Never mind that church arsons have virtually nothing to
do with interstate commerce, much less with the free flow of goods and
services among the states. The Commerce Clause rationale, set forth in
boilerplate language, was thought by Congress to be sufficient to enable
it to move forward and enact the Church Arson Prevention Act of 1996—
unanimously, no less.
Yet only a year earlier, in the celebrated Lopez case, the Supreme Court
had declared, for the first time in nearly 60 years, that Congress's power

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Congress, the Courts, and the Constitution
under the Commerce Clause has limits. To be sure, the Court raised the
bar against federal regulation only slightly: Congress would have to show
that the activity it wanted to regulate '' substantially'' affected interstate
commerce, leading Justice Thomas to note in his concurrence that the
Court was still a good distance from a proper reading of the clause.
Nevertheless, the decision was widely heralded as a shot across the bow
of Congress. And many in Congress saw it as confirming at last their
own view that the body in which they served was simply out of control,
constitutionally. Indeed, when it passed the act at issue in Lopez, the Gun-Free
School Zones Act of 1990, Congress had not even bothered to cite
any authority under the Constitution. In what must surely be a stroke of
consummate hubris— and disregard for the Constitution— Congress sim-ply
assumed that authority.
But to make matters worse, despite the Lopez ruling— which the
Court reinforced in May 2000 when it found parts of the Violence
Against Women Act unconstitutional on similar grounds— Congress
in September 1996 passed the Gun-Free School Zones Act again.
This time, of course, the boilerplate was included— even as Sen.
Fred Thompson of Tennessee was reminding his colleagues from the
floor of the Senate that the Supreme Court had recently told them
that they '' cannot just have some theoretical basis, some attenuated
basis'' under the Commerce Clause for such an act. The prosecution
of gun possession near schools— like the prosecution of church
arsons, crimes against women, and much else— is very popular, as
state prosecutors well know. But governments can address problems
only if they have authority to do so, not from good intentions alone.
Indeed, the road to constitutional destruction is paved with good
intentions.
Congressional debate on these matters is thus imperative: it is not
enough for Congress simply to say the magic words—'' General Welfare
Clause'' or '' Commerce Clause''— to be home free, constitutionally.
Not every debate will yield satisfying results, as the examples above
illustrate. But if the Constitution is to be kept alive, there must at least
be debate. Over time, good ideas tend to prevail over bad ideas, but
only if they are given voice. The constitutional debate must again be
heard in the Congress of the United States as it was over much of our
nation's history, and it must be heard before bills are enacted. The
American people can hardly be expected to take the Constitution and
its limits on government seriously if their elected representatives do not.

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Move toward Restoring Constitutional Government by Carefully Returning Power Wrongly Taken over the Years
from the States and the People
If Congress should enact no new legislation without grounding its
authority to do so securely in the Constitution, so too should it begin
repealing legislation not so grounded, legislation that arose by assuming
power that rightly rests with the states or the people. To appreciate how
daunting a task that will be, simply reflect again on Madison's observation
that the powers of the federal government under the Constitution are '' few
and defined. ''
But the magnitude of the task is only one dimension of its difficulty.
Let us be candid: there are many in Congress who will oppose any efforts
to restore constitutional government for any number of reasons, ranging
from the practical to the theoretical. Some see their job as one primarily
of representing the interests of their constituents, especially the short-term
interests reflected in the phrase '' bringing home the bacon. '' Others simply
like big government, whether because of an '' enlightened'' Progressive
Era view of the world or because of a narrower, more cynical interest in
the perquisites of enhanced power. Still others believe sincerely in a
'' living constitution, '' one extreme form of which— the '' democratic''
form— imposes no limit whatsoever on government save for periodic
elections. Finally, there are those who understand the unconstitutional and
hence illegitimate character of much of what government does today but
believe it is too late in the day to do anything about it. All of those people
and others will find reasons to resist the discrete measures that are necessary
to begin restoring constitutional government. Yet, where necessary, their
views will have to be accommodated as the process unfolds.

Maintaining Support for Limited Government
Given the magnitude of the problem, then, and the practical implications
of repealing federal programs, a fair measure of caution is in order. As
the nations of Eastern Europe and the former Soviet Union have learned,
it is relatively easy to get into socialism— just seize all property and labor
and place it under state control— but much harder to get out of it. It is
not simply a matter of returning what was taken, for much has changed
as a result of the taking. People have died and new people have come
along. Public law has replaced private law. And new expectations and
dependencies have arisen and become settled over time. The transition to
freedom that many of those nations are experiencing is what we and many

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Congress, the Courts, and the Constitution
other nations around the world today are facing, to a lesser extent, as we
too try to reduce the size and scope of our governments.
As programs are reduced or eliminated, then, care must be taken to do
as little harm as possible— for two reasons at least. First, there is some
sense in which the federal government today, vastly overextended though
it is, stands in a contractual relationship with the American people. That
is a very difficult idea to pin down, however, for once the genuine con-tract—
the Constitution— has broken down, the '' legislative contracts''
that arise to take its place invariably reduce, when parsed, to programs
under which some people have become dependent upon others, although
neither side had a great deal to say directly about the matter at the outset.
Whatever its merits, that contractual view is held by a good part of the
public, especially in the case of so-called middle-class entitlements.
That leads to the second reason why care must be taken in restoring
power to the states and the people, namely, that the task must be undertaken,
as noted earlier, with the support of a substantial portion of the people—
ideally, at the urging of those people. Given the difficulty of convincing
people— including legislators— to act against their relatively short-term
interests, it will take sound congressional judgment about where and when
to move. More important, it will take keen leadership, leadership that is
able to frame the issues in a way that will communicate both the rightness
and the soundness of the decisions that are required.
In exercising that leadership, there is no substitute for keeping '' on
message'' and for keeping the message simple, direct, and clear. The aim,
again, is both freedom and the good society. We need to appreciate how
the vast government programs we have created over the years have actually
reduced the freedom and well-being of all of us— and have undermined
the Constitution besides. Not that the ends served by those programs are
unworthy— few government programs are undertaken for worthless ends.
But individuals, families, private firms, and communities could bring about
most of those ends, voluntarily and at far less cost, if only they were free
to do so— especially if they were free to keep the wherewithal that is
necessary to do so. If individual freedom and individual responsibility are
values we cherish— indeed, are the foundations of the good society— we
must come to appreciate how our massive government programs have
undermined those values and, with that, the good society itself.

Redistributive Programs
Examples of the kinds of programs that should be returned to the states
and the people are detailed elsewhere in this Handbook, but a few are in

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order here. Without question, the most important example of devolution
to come from the '' radical'' 104th Congress was in the area of welfare.
However flawed the final legislation may have been from both a constitu-tional
and a policy perspective, it was still a step in the right direction.
Ultimately, as will be noted below in a more general way, welfare should
not be even a state program. Rather, it should be a matter of private
responsibility, as it was for years in this nation. But the process of getting
the federal government out of the business of charity, for which there is
no authority in the Constitution, has at least begun.
Eventually, that process should be repeated in every other '' entitlement''
area, from individual to institutional to corporate, from Social Security
and Medicare to the National Endowment for the Arts to the Department
of Agriculture's Market Access Program and on and on. Each of those
programs was started for a good reason, to be sure, yet each involves
taking from some to give to others— means that are both wrong and
unconstitutional, to say nothing of monumentally inefficient. Taken
together, they put us all on welfare in one way or another, and we are all
the poorer for it.
Some of those programs will be harder to reduce, phase out, or eliminate
than others, of course. Entitlement programs with large numbers of benefi-ciaries,
for example, will require transition phases to ensure that harm is
minimized and public support is maintained. Other programs, however,
could be eliminated with relatively little harm. Does anyone seriously
doubt that there would be art in America without the National Endowment
for the Arts? Indeed, without the heavy hand of government grant making,
the arts would likely flourish as they did long before the advent of the
NEA— and no one would be made to pay, through his taxes, for art
he abhorred.
It is the transfer programs in the '' symbolic'' area, in fact, that may
be the most important to eliminate first, for they have multiplier effects
reaching well beyond their raw numbers, and those effects are hardly
neutral on the question of reducing the size and scope of government.
The National Endowment for the Arts, the National Endowment for the
Humanities, the Corporation for Public Broadcasting, the Legal Services
Corporation, and the Department of Education have all proceeded without
constitutional authority— but with serious implications for free speech and
for the cause of limiting government. Not a few critics have pointed to the
heavy hand of government in those symbolic areas. Of equal importance,
however, is the problem of compelled speech: as Jefferson wrote, '' To

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Congress, the Courts, and the Constitution
compel a man to furnish contributions of money for the propagation of
opinions which he disbelieves is sinful and tyrannical. '' But on a more
practical note, if Congress is serious about addressing the climate of
opinion in the nation, it will end such programs not simply because they
are without constitutional authority but because they have demonstrated
a relentless tendency over the years in only one direction— toward even
more government. Indeed, one should hardly expect those institutions
to be underwriting programs that advocate less government when they
themselves exist through government.

Regulatory Redistribution
If the redistributive programs that constitute the modern welfare state
are candidates for elimination, so too are many of the regulatory programs
that have arisen under the Commerce Clause. Here, however, care must
be taken not simply from a practical perspective but from a constitutional
perspective as well, for some of those programs may be constitutionally
justified. When read functionally, recall, the Commerce Clause was meant
to enable Congress to ensure that commerce among the states is regular,
and especially to counter state actions that might upset that regularity.
Think of the Commerce Clause as an early North American Free Trade
Agreement, without the heavy hand of '' managed trade'' that often accom-panies
the modern counterpart.
Thus conceived, the Commerce Clause clearly empowers Congress,
through regulation, to override state measures that may frustrate the free
flow of commerce among the states. But it also enables Congress to take
such affirmative measures as may be necessary and proper for facilitating
free trade, such as clarifying rights of trade in uncertain contexts or
regulating the interstate transport of dangerous goods. What the clause
does not authorize, however, is regulation for reasons other than to ensure
the free flow of commerce— the kind of '' managed trade'' that is little
but a thinly disguised transfer program designed to benefit one party at
the expense of another.
Unfortunately, most modern federal regulation falls into that final cate-gory,
whether it concerns employment or health care or insurance or
whatever. In fact, given budgetary constraints on the ability of government
to tax and spend— to take money from some, run it through the Treasury,
then give it to others— the preferred form of transfer today is through
regulation. That puts it '' off budget. '' Thus, when an employer, an insurer,
a lender, or a landlord is required by regulation to do something he would

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otherwise have a right not to do, or not do something he would otherwise
have a right to do, he serves the party benefited by that regulation every
bit as much as if he were taxed to do so, but no tax increase is ever
registered on any public record.
The temptation for Congress to resort to such '' cost-free'' regulatory
redistribution is of course substantial, and the effects are both far-reaching
and perverse. Natural markets are upset as incentives are changed; econo-mies
of scale are skewed as large businesses, better able to absorb the
regulatory burdens, are advantaged over small ones; defensive measures,
inefficient from the larger perspective, are encouraged; and general uncer-tainty,
anathema to efficient markets, is the order of the day. Far from
facilitating free trade, redistributive regulation frustrates it. Far from being
justified by the Commerce Clause, it undermines the very purpose of
the clause.

Federal Crimes
In addition to misusing the commerce power for the purpose of regula-tory
redistribution, Congress has misused that power to create federal
crimes. Thus, a great deal of '' regulation'' has arisen in recent years under
the commerce power that is nothing but a disguised exercise of a police
power that Congress otherwise lacks. As noted earlier, the Gun-Free School
Zones Act, the Church Arson Prevention Act, and the Violence Against
Women Act are examples of legislation passed nominally under the power
of Congress to regulate commerce among the states; but the actions subject
to federal prosecution under those statutes— gun possession, church arson,
and gender-motivated violence, respectively— are ordinarily regulated
under state police power, the power of states, in essence, to '' police'' or
secure our rights. The ruse of regulating them under Congress's commerce
power is made necessary because there is no federal police power enumer-ated
in the Constitution— except as an implication of federal sovereignty
over federal territory or an incidence of some enumerated power.
That ruse should be candidly recognized. Indeed, it is a mark of the
decline of respect for the Constitution that when we sought to fight a war
on liquor earlier in the century we felt it necessary to do so by first
amending the Constitution— there being no power otherwise for such a
federal undertaking. Today, however, when we engage in a war on drugs—
with as much success as we enjoyed in the earlier war— we do so without
as much as a nod to the Constitution.
The Constitution lists three federal crimes: treason, piracy, and counter-feiting.
Yet today there are more than 3,000 federal crimes and perhaps

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300,000 regulations that carry criminal sanctions. Over the years, no faction
in Congress has been immune, especially in an election year, from the
propensity to criminalize all manner of activities, utterly oblivious to the
lack of any constitutional authority for doing so. We should hardly imagine
that the Founders fought a war to free us from a distant tyranny only to
establish a tyranny in Washington, in some ways even more distant from
the citizens it was meant to serve.

Policing the States
If the federal government has often intruded upon the police power of
the states, so too has it often failed in its responsibility under the Fourteenth
Amendment to police the states. Here is an area where federal regulation
has been, if anything, too restrained— yet also unprincipled, oftentimes,
when undertaken.
The Civil War Amendments to the Constitution changed fundamentally
the relationship between the federal government and the states, giving
citizens an additional level of protection, not against federal but against
state oppression— the oppression of slavery, obviously, but much else
besides. Thus, the Fourteenth Amendment prohibits states from abridging
the privileges or immunities of citizens of the United States; from depriving
any person of life, liberty, or property without due process of law; and
from denying any person the equal protection of the laws. By implication,
section 1 of the amendment gives the courts the power to secure those
guarantees. Section 5 gives Congress the '' power to enforce, by appropriate
legislation, the provisions of this article. ''
As the debate that surrounded the adoption of those amendments makes
clear, the Privileges or Immunities Clause was meant to be the principal
source of substantive rights in the Fourteenth Amendment, and those
rights were meant to include the rights of property, contract, and personal
security— in short, our '' natural liberties, '' as Blackstone had earlier under-stood
that phrase. Unfortunately, in 1873, in the notorious Slaughterhouse
Cases, a bitterly divided Supreme Court essentially eviscerated the Privi-leges
or Immunities Clause. There followed, for nearly a century, the era
of Jim Crow in the South and, for a period stretching to the present,
a Fourteenth Amendment jurisprudence that is as contentious as it is
confused.
Modern liberals have urged that the amendment be used as it was meant
to be used— against state oppression; but they have also urged that it be
used to recognize all manner of '' rights'' that are no part of the theory

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of rights that stands behind the amendment as understood at the time of
ratification. Modern conservatives, partly in reaction, have urged that the
amendment be used far more narrowly than it was meant to be used—
for fear that it might be misused, as it has been.
The role of the judiciary under section 1 of the Fourteenth Amendment
will be discussed below. As for Congress, its authority under section 5—
'' to enforce, by appropriate legislation, the provisions of this article''—
is clear, provided Congress is clear about those provisions. And on that,
we may look, again, to the debates that surrounded not only the adoption
of the Fourteenth Amendment but the enactment of the Civil Rights Act
of 1866, which Congress reenacted in 1868, just after the amendment
was ratified.
Those debates give us a fairly clear idea of what it was that the American
people thought they were ratifying. In particular, all citizens, the Civil
Rights Act declared, '' have the right to make and enforce contracts, to
sue, be parties and give evidence; to inherit, purchase, lease, sell, hold,
and convey real personal property, and to full and equal benefit of all
laws and proceedings for the security of persons and property. '' Such
were the privileges and immunities the Fourteenth Amendment was meant
to secure.
Clearly, those basic common law rights, drawn from the reason-based
classical theory of rights, are the stuff of ordinary state law. Just as clearly,
however, states have been known to violate them, either directly or by
failure to secure them against private violations. When that happens, appeal
can be made to the courts, under section 1, or to Congress, under section 5.
The Fourteenth Amendment gives no power, of course, to secure the
modern '' entitlements'' that are no part of the common law tradition of
life, liberty, and property: the power it grants, that is, is limited by the
rights it is meant to secure. But it does give a power to reach even intrastate
matters when states are violating the provisions of the amendment. The
claim of '' states' rights, '' in short, is no defense for state violations of
individual rights.
Thus, if the facts had warranted it, something like the Church Arson
Prevention Act of 1996, depending on its particulars, might have been
authorized not on Commerce Clause grounds but on Fourteenth Amend-ment
grounds. If, for example, the facts had shown that arsons of white
churches were being prosecuted by state officials whereas arsons of black
churches were not, then we would have had a classic case of the denial
of the equal protection of the laws. With those findings, Congress would

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Congress, the Courts, and the Constitution
have had ample authority under section 5 of the Fourteenth Amendment
'' to enforce, by appropriate legislation, the provisions of this article. ''
Unfortunately, in the final version of the act, Congress removed citations
to the Fourteenth Amendment, choosing instead to rest its authority entirely
on the Commerce Clause. Not only is that a misuse of the Commerce
Clause, inviting further misuse; but, assuming the facts had warranted it,
it is a failure to use the Fourteenth Amendment as it was meant to be
used, inviting further failures. To be sure, the Fourteenth Amendment has
itself been misused, both by Congress and by the courts. But that is no
reason to ignore it. Rather, it is a reason to correct the misuses.
In its efforts to return power to the states and the people, then, Congress
must be careful not to misunderstand its role in our federal system. Over
the 20th century, Congress assumed vast powers that were never its to
assume, powers that belong properly to the states and the people. Those
need to be returned. But at the same time, Congress and the courts do
have authority under the Fourteenth Amendment to ensure that citizens
are free from state oppression. However much that authority may have
been underused or overused, it is there to be used; and if it is properly
used, objections by states about federal interference in their '' internal
affairs'' are without merit.

Reject the Nomination of Judicial Candidates Who Do Not Appreciate That the Constitution Is a Document of Delegated,
Enumerated, and Thus Limited Powers
As noted earlier, Congress can relimit government on its own initiative
simply by restricting its future actions to those that are authorized by the
Constitution and repealing those past actions that were taken without such
authority; but for those limits to become '' constitutional law, '' they would
have to be recognized as such by the Supreme Court, which essentially
abandoned that view of limited government during the New Deal. Thus,
for the Court to play its part in the job of relimiting government constitu-tionally,
it must recognize the mistakes it has made over the years, espe-cially
following Roosevelt's Court-packing threat in 1937, and rediscover
the Constitution— a process it began in Lopez, however tentatively, when
it returned explicitly to '' first principles. ''
But Congress is not powerless to influence the Court in that direction:
as vacancies arise on the Court and on lower courts, it has a substantial
say about who sits there through its power to advise and consent. To
exercise that power well, however, Congress must have a better grasp of

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the basic issues than it has shown in recent years during Senate confirmation
hearings for nominees for the Court. In particular, the Senate's obsession
with questions about '' judicial activism'' and '' judicial restraint, '' terms
that in themselves are largely vacuous, only distracts it from the real
issue— the nominee's philosophy of the Constitution. To appreciate those
points more fully, however, a bit of background is in order.

From Powers to Rights
The most important matter to grasp is the fundamental change that took
place in our constitutional jurisprudence during the New Deal and the
implications of that change for the modern debate. The debate today is
focused almost entirely on rights, not powers. Indeed, until the 107th
Congress and its focus on ideology, the principal concern during Senate
confirmation hearings had been with a nominee's views about what rights
are '' in'' the Constitution. That is an important question, to be sure, but
it must be addressed within a much larger constitutional framework, a
framework too often missing from recent hearings.
Clearly, the American debate began with rights— with the protests that
led eventually to the Declaration of Independence. And in that seminal
document, Jefferson made rights the centerpiece of the American vision:
rights to life, liberty, and the pursuit of happiness, derived from a premise
of moral equality, itself grounded in a higher law discoverable by reason—
all to be secured by a government of powers made legitimate through
consent.
But when they set out to draft a constitution, the Framers focused on
powers, not rights, for two main reasons. First, their initial task was to
create and empower a government, which the Constitution did once it
was ratified. But their second task, of equal importance, was to limit that
government. Here, there were two main options. The Framers could have
listed a set of rights that the new government would be forbidden to violate.
Or they could have limited the government's powers by enumerating
them, then pitting one against the other through a system of checks
and balances— the idea being that where there is no power there is, by
implication, a right, belonging to the states or the people. They chose the
second option, for they could hardly have enumerated all of our rights,
but they could enumerate the new government's powers, which were
meant from the outset to be, again, '' few and defined. '' Thus, the doctrine
of enumerated powers became our principal defense against overweening
government.

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Only later, during the course of ratification, did it become necessary
to add a Bill of Rights— as a secondary defense. But in so doing, the
Framers were still faced with a pair of objections that had been posed
from the start. First, it was impossible to enumerate all of our rights,
which in principle are infinite in number. Second, given that problem, the
enumeration of only certain rights would be construed, by ordinary methods
of legal construction, as denying the existence of others. To overcome
those objections, therefore, the Framers wrote the Ninth Amendment: '' The
enumeration in the Constitution of certain rights shall not be construed to
deny or disparage others retained by the people. ''

Constitutional Visions
Thus, with the Ninth Amendment making it clear that we have both
enumerated and unenumerated rights, the Tenth Amendment making it
clear that the federal government has only enumerated powers, and the
Fourteenth Amendment later making it clear that our rights are good
against the states as well, what emerges is an altogether libertarian picture.
Individuals, families, firms, and the infinite variety of institutions that
constitute civil society are free to pursue happiness however they wish,
in accord with whatever values they wish, provided only that in the process
they respect the equal rights of others to do the same; and governments
are instituted to secure that liberty and do the few other things their
constitutions make clear they are empowered to do.
That picture is a far cry from the modern liberal's vision, rooted in the
Progressive Era, which would have government empowered to manage
all manner of economic affairs. But it is a far cry as well from the modern
conservative's vision, which would have government empowered to man-age
all manner of social affairs. Neither vision reflects the true constitu-tional
scheme. Both camps want to use the Constitution to promote their
own substantive agendas. Repeatedly, liberals invoke democratic power
for ends that are nowhere in the Constitution; at other times they invoke
'' rights'' that are no part of the plan, requiring government programs that
are nowhere authorized. For their agenda, conservatives rely largely on
expansive readings of democratic power that were never envisioned,
thereby running roughshod over rights that were meant to be protected.

From Liberty to Democracy
The great change in constitutional vision took place during the New
Deal, when the idea that galvanized the Progressive Era— that the basic

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purpose of government is to solve social and economic problems— was
finally instituted in law through the Court's radical reinterpretation of the
Constitution. As noted earlier, following the 1937 Court-packing threat,
the Court eviscerated our first line of defense, the doctrine of enumerated
powers, when it converted the General Welfare and Commerce Clauses
from shields against power into swords of power. Then in 1938 a cowed
Court undermined the second line of defense, our enumerated and unenu-merated
rights, when it declared that henceforth it would defer to the
political branches and the states when their actions implicated '' nonfunda-mental''
rights like property and contract— the rights associated with
'' ordinary commercial affairs. '' Legislation implicating such rights, the
Court said, would be given '' minimal scrutiny'' by the Court, which is
tantamount to no scrutiny at all. By contrast, when legislation implicated
'' fundamental'' rights like voting, speech, and, later, certain '' personal''
liberties, the Court would apply '' strict scrutiny'' to that legislation, proba-bly
finding it unconstitutional.
With that, the Constitution was converted, without benefit of amend-ment,
from a libertarian to a largely democratic document. The floodgates
were now open to majoritarian tyranny, which very quickly became special-interest
tyranny, as public-choice economic theory amply demonstrates
should be expected. Once those floodgates were opened, the programs
that poured through led inevitably to claims from many quarters that rights
were being violated. Thus, the Court in time would have to try to determine
whether those rights were '' in'' the Constitution— a question the Constitu-tion
had spoken to indirectly, for the most part, through the now-discredited
doctrine of enumerated powers; and if it found the rights in question, the
Court would then have to try to make sense of its distinction between
'' fundamental'' and '' nonfundamental'' rights.

Judicial '' Activism'' and '' Restraint''
It is no accident, therefore, that until very recently the modern debate
has been focused on rights, not powers. With the doctrine of enumerated
powers effectively dead, with government's power essentially plenary, the
only issues left for the Court to decide, for the most part, are whether
there might be any rights that would limit that power and whether those
rights are or are not '' fundamental. ''
Both liberals and conservatives today have largely bought into this
jurisprudence. As noted above, both camps believe the Constitution gives
a wide berth to democratic decisionmaking. Neither side any longer asks

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the first question, the fundamental question: do we have authority, constitu-tional
authority, to pursue this end? Instead, they simply assume that
authority, take a policy vote on some end before them, then battle in court
over whether there are any rights that might restrict their power.
Modern liberals, fond of government programs, call upon the Court to
be '' restrained'' in finding rights that might limit their redistributive and
regulatory schemes, especially '' nonfundamental'' rights like property and
contract. At the same time, even as they ignore those rights, liberals ask
the Court to be '' active'' in finding other '' rights'' that were never meant
to be among even our unenumerated rights.
But modern conservatives are often little better. Reacting to the abuses
of liberal '' activism, '' many conservatives call for judicial '' restraint''
across the board. Thus, if liberal programs have run roughshod over the
rights of individuals to use their property or freely contract, the remedy,
conservatives say, is not for the Court to invoke the doctrine of enumerated
powers— that battle was lost during the New Deal— nor even to invoke
the rights of property and contract that are plainly in the Constitution—
that might encourage judicial activism— but to turn to the democratic
process to overturn those programs. Oblivious to the fact that restraint in
finding rights is tantamount to activism in finding powers, and ignoring
the fact that it was the democratic process that gave us the problem in
the first place, too many conservatives offer us a counsel of despair
amounting to a denial of constitutional protection.
No one doubts that in recent decades the Court has discovered '' rights''
in the Constitution that are no part of either the enumerated or unenumer-ated
rights that were meant to be protected by that document. But it is
no answer to that problem to ask the Court to defer wholesale to the
political branches, thereby encouraging it, by implication, to sanction
unenumerated powers that are no part of the document either. Indeed, if
the Tenth Amendment means anything, it means that there are no such
powers. Again, if the Framers had wanted to establish a simple democracy,
they could have. Instead, they established a limited, constitutional republic,
a republic with islands of democratic power in a sea of liberty, not a sea
of democratic power surrounding islands of liberty.
Thus, it is not the proper role of the Court to find rights that are no
part of the enumerated or unenumerated rights meant to be protected by
the Constitution, thereby frustrating authorized democratic decisions. But
neither is it the proper role of the Court to refrain from asking whether
those decisions are in fact authorized and, if authorized, whether their

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implementation is in violation of the rights guaranteed by the Constitution,
enumerated and unenumerated alike.
The role of the judge in our constitutional republic is thus profoundly
important and oftentimes profoundly complex. '' Activism'' is no proper
posture for a judge, but neither is '' restraint. '' Judges must apply the
Constitution to cases or controversies before them, neither making it up
nor ignoring it. They must appreciate especially that the Constitution is
a document of delegated, enumerated, and thus limited powers. That will
get the judge started on the question of what rights are protected by the
document; for where there is no power there is, again, a right, belonging
either to the states or to the people: indeed, we should hardly imagine
that, before the addition of the Bill of Rights, the Constitution failed to
protect most rights simply because most were not '' in'' it. But reviving
the doctrine of enumerated powers is only part of the task before the
Court; it must also revive the classical theory of rights if the restoration
of constitutional government is to be completed correctly.
Those are the two sides— powers and rights— that need to be examined
in the course of Senate confirmation hearings for nominees for the courts
of the United States. More important than knowing a nominee's '' judicial
philosophy'' is knowing his philosophy of the Constitution. For the Consti-tution,
in the end, is what defines us as a nation.
If a nominee does not have a deep and thorough appreciation for the
basic principles of the Constitution— for the doctrine of enumerated powers
and for the classical theory of rights that stands behind the Constitution—
then his candidacy should be rejected. In recent years, Senate confirmation
hearings have become extraordinary opportunities for constitutional debate
throughout the nation. Those debates need to move from the ethereal
realm of '' constitutional law'' to the real realm of the Constitution. They
are extraordinary opportunities not simply for constitutional debate but
for constitutional renewal.
Alarmingly, however, in the 107th Congress we saw the debate move
not from '' constitutional law'' to the Constitution but in the very opposite
direction— to raw politics. The demand that judicial nominees pass an
'' ideological litmus test''— that they reflect and apply the '' mainstream
values'' of the American people, whatever those may be— is tantamount
to expecting and asking judges not to apply the law, which is what judging
is all about, but to make the law according to those values, whatever the
actual law may require. The duty of judges under the Constitution is to
decide cases according to the law, not according to whatever values or

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Congress, the Courts, and the Constitution
ideology may be in fashion. For that, the only ideology that matters is
the ideology of the Constitution.

Conclusion
America is a democracy in the most fundamental sense of that idea:
authority, or legitimate power, rests ultimately with the people. But the
people have no more right to tyrannize each other through democratic
government than government itself has to tyrannize the people. When
they constituted us as a nation by ratifying the Constitution and the
amendments that have followed, our ancestors gave up only certain of
their powers, enumerating them in a written constitution. We have allowed
those powers to expand beyond all moral and legal bounds— at the price
of our liberty and our well-being. The time has come to return those
powers to their proper bounds, to reclaim our liberty, and to enjoy the
fruits that follow.

Suggested Readings
Bailyn, Bernard. The Ideological Origins of the American Revolution. Cambridge, Mass.: Belknap, 1967.

Barnett, Randy E. The Structure of Liberty: Justice and the Rule of Law. New York: Oxford University Press, 1998.
Barnett, Randy E., ed. The Rights Retained by the People: The History and Meaning of the Ninth Amendment. Fairfax, Va.: George Mason University Press, 1989.
Corwin, Edward S. The '' Higher Law'' Background of American Constitutional Law. Ithaca, N. Y.: Cornell University Press, 1955.
Dorn, James A., and Henry G. Manne, eds. Economic Liberties and the Judiciary. Fairfax, Va.: George Mason University Press, 1987.
Epstein, Richard A. Principles for a Free Society: Reconciling Individual Liberty with the Common Good. Reading, Mass.: Perseus Books, 1998.
. '' The Proper Scope of the Commerce Power. '' Virginia Law Review 73 (1987). . Simple Rules for a Complex World. Cambridge, Mass.: Harvard University
Press, 1995. . Takings: Private Property and the Power of Eminent Domain. Cambridge,
Mass.: Harvard University Press, 1985. Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. New York:
Mentor, 1961. Lawson, Gary. '' The Rise and Rise of the Administrative State. '' Harvard Law Review
107 (1994). Lawson, Gary, and Patricia B. Granger. '' The 'Proper' Scope of Federal Power: A
Jurisdictional Interpretation of the Sweeping Clause. '' Duke Law Journal 43 (1993). Locke, John. '' Second Treatise of Government. '' In Two Treatises of Government. Edited
by Peter Laslett. New York: Mentor, 1965. Miller, Geoffrey P. '' The True Story of Carolene Products. '' Supreme Court Review
(1987).

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CATO HANDBOOK FOR CONGRESS
Pilon, Roger. '' Freedom, Responsibility, and the Constitution: On Recovering Our Found-ing Principles. '' Notre Dame Law Review 68 (1993).
. '' How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees. '' Cato Institute Policy Analysis no. 446, August 8, 2002.
. '' The Purpose and Limits of Government. '' Cato's Letter, no. 13 (1999). . '' Restoring Constitutional Government. '' Cato's Letter, no. 9 (1995).
Reinstein, Robert J. '' Completing the Constitution: The Declaration of Independence, Bill of Rights and Fourteenth Amendment. '' Temple Law Review 66 (1993).
Shankman, Kimberly C., and Roger Pilon. '' Reviving the Privileges or Immunities Clause to Redress the Balance among States, Individuals, and the Federal Government. ''
Cato Institute Policy Analysis no. 326, November 23, 1998. Siegan, Bernard H. Economic Liberties and the Constitution. Chicago: University of
Chicago Press, 1980. Sorenson, Leonard R. Madison on the '' General Welfare'' of America. Lanham, Md.:
Rowman & Littlefield, 1995. Warren, Charles. Congress as Santa Claus: Or National Donations and the General
Welfare Clause of the Constitution. 1932. Reprint, New York: Arno Press, 1978.
Yoo, John Choon. '' Our Declaratory Ninth Amendment. '' Emory Law Journal 42 (1993).

—Prepared by Roger Pilon

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4. Clearing the Decks for War
The U. S. government should
promptly eliminate the foreign aid budget devoted to develop-mental
aid, withdraw all U. S. military personnel from Bosnia and Kosovo

within one year, withdraw all U. S. troops stationed in Western Europe by 2005,
withdraw all U. S. troops stationed in South Korea by 2005,
withdraw all U. S. troops stationed in Japan by 2007,
transfer some of the funding and personnel involved in the
above withdrawals to units and tasks relevant to the war on terrorism, and

demobilize all surplus forces.

President Bush has emphasized that the war against terrorism will be
lengthy and difficult, despite the gratifying initial successes in Afghanistan.
He is right. Even if the war is confined (as it should be) to campaigns
against those organizations responsible for the September 11, 2001, attacks
or any future attacks instead of becoming an amorphous crusade against
evil in the world, the conflict will not be over quickly. That's why it is
imperative that the United States promptly clear the decks for war. America
must jettison obsolete or unnecessary commitments and expenditures.
When a family suffers an unexpected hardship or tragedy, it does not
continue with business as usual, leaving its priorities and spending patterns
unaltered. Likewise, a nation must alter its priorities when facing difficult-ies.
For America, the war against the terrorists who committed the Septem-ber
11 outrages will be the top priority for the foreseeable future. Yet,
instead of reducing or eliminating less essential commitments, Washington
seems inclined to pile the new commitments on top of the old.

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Barely a year into the war on terrorism, the failure to trim other commit-ments
is already creating strains on the military. Gen. Tommy Franks,
the commander of U. S. forces in Afghanistan, and other military leaders
have complained that the deployment is creating overburdened and
stressed-out personnel. That is a most troubling development. The United
States has fewer than 10,000 troops in Afghanistan and only a few thousand
more deployed in Pakistan and some of the Central Asian republics near
Afghanistan. As military deployments go, the campaign against al-Qaeda
and the Taliban to this point has not been an especially large one. Yet
even this modest effort is creating significant strains. One has to wonder
how severe the strain will become if a substantially larger deployment in
the war on terrorism is ever required.
There are numerous commitments that should be candidates for elimina-tion,
including a plethora of wasteful and unnecessary domestic spending
programs. The United States should also make significant cuts in the realm
of international affairs, starting with the elimination of the $10.9 billion
of developmental aid in the foreign aid budget. Numerous scholars have
documented the dismal record of developmental aid over the past half
century (see Chapter 66). U. S. developmental aid programs have subsidized
counterproductive economic policies in recipient countries and helped
entrench corrupt political elites. Such aid was a foolish expenditure the
United States could ill afford even before September 11. In a post– Sep-tember
11 environment, it should be one of the first programs on the
chopping block.
But developmental aid is not the only arena in which the U. S. govern-ment
needs to reorder its priorities in international affairs. There are also
a number of obsolete or unnecessary security commitments that should
be terminated. Four such candidates for elimination stand out.

Terminate the Nation-Building Missions in the Balkans
The nation-building missions in Bosnia and Kosovo were foolish and
unnecessary from the outset. Despite the exertions of America and its
NATO allies, Bosnia is no closer to being a viable country today than it
was when the Dayton Peace Agreement was signed more than seven
years ago. The NATO intervention in Kosovo is even worse. It merely
strengthened the hand of Albanian nationalists who want to create a Greater
Albania and who have recently stirred up trouble across the border in
Macedonia.

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Clearing the Decks for War
The missions in Bosnia and Kosovo cost the United States nearly $6
billion a year. More than 3, 000 U. S. troops are tied down in Bosnia in
glorified police work. More than 6, 000 troops are stationed in Kosovo
performing similar tedious tasks. U. S. leaders should immediately inform
the European members of NATO that we will be withdrawing all of our
forces over the next year.
The European allies would then have to decide whether to continue the
Balkan peacekeeping missions without U. S. participation or withdraw their
own forces as well. U. S. leaders should not especially care which option
the Europeans select. The Balkans have never been an arena in which
vital American interests were at stake. The region is more important to
the nations of the European Union, and they should decide whether a
peacekeeping venture is worth the expense and bother. It is absurd to
argue that the prosperous nations of the European Union cannot police
the Balkans if they wish to do so. American money, as well as the U. S.
military personnel tied down in useless peacekeeping tasks, could be used
far more effectively to prosecute the war against terrorism.

Withdraw the 100, 000 U. S. Troops Stationed in Western Europe

The U. S. troop presence in Western Europe is an utterly obsolete
commitment inherited from the Cold War. As noted in Chapter 51, the
original concept of NATO did not include the permanent stationing of
U. S. troops in Europe. Since the Cold War has been over for more than
a decade, the time is long overdue for the withdrawal of all such personnel
still deployed on the Continent.
Even the most creative defenders of the deployment would have diffi-culty
explaining just why the troops are still there. The U. S. forces are
apparently on duty to prevent an invasion of Western Europe by a Warsaw
Pact that no longer exists led by a Soviet Union that no longer exists.
How tank divisions stationed in Germany benefit the security of the United
States in the 21st century is truly a mystery.
The Europeans clearly can provide for their own security without relying
on U. S. troops. There is no serious security threat in Europe, nor is one
likely to emerge in the foreseeable future. The security problems that do
exist are small-scale, with the disorders in the Balkans being the primary
examples. The nations of the European Union should certainly be able to
manage their own defense and deal with such minor security contingencies.
Collectively, the European Union has a population larger than that of the

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United States as well as a larger gross domestic product. That is true even
without taking into account the new nations that will be added to the EU
within the next two years.
True, the European nations (especially the major states in the EU) might
have to raise their military budgets slightly to offset the withdrawal of
U. S. forces, but that action would hardly result in an onerous burden.
Besides, it is appropriate that the Europeans pay the full cost of their own
defense. Giving the prosperous European allies a de facto defense subsidy
made no sense even before September 11. It is a luxury the United States
simply cannot afford in a post– September 11 setting.
The U. S. military units stationed in Europe should be withdrawn by
the beginning of 2005 and demobilized. Some of the personnel should
then be reassigned to lighter, more mobile units that would be relevant
in the fight against terrorism. The military commitment to NATO costs
the United States nearly $40 billion a year. Even a partial demobilization
would save American taxpayers several billion dollars.

Withdraw the 37,000 U. S. Troops Stationed in South Korea
The U. S. troop presence in South Korea is another obsolete, Cold War–
era obligation. U. S. troops stayed in that country after the end of the
Korean War in 1953. At that time, a plausible argument could be made
for the commitment. U. S. leaders worried that a new war on the peninsula
would be merely one phase of an overall communist offensive to dominate
all of East Asia— a development that would have threatened important
American interests. Moreover, South Korea was a poor, war-torn country
incapable of defending itself. Not only did it face a hostile, well-armed
communist North Korea, but it faced a North Korea backed by both
Moscow and Beijing.
That is clearly no longer the case. Today, South Korea faces only one
adversary: a desperately poor and increasingly isolated North Korea. The
last thing either Moscow or Beijing desires is another war on the Korean
peninsula. Indeed, in recent years both Russia and China have distanced
their policies from those of their ostensible North Korean ally and forged
close political and economic ties with South Korea. Moreover, South
Korea now has enormous advantages in the contest with North Korea.
The South has twice the population and an economy nearly 40 times
larger than that of its adversary. A nation with those characteristics should
certainly be able to defend itself.

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Clearing the Decks for War
Unfortunately, U. S. officials seem to have adopted an American version
of the Brezhnev Doctrine when it comes to the military tie to South Korea.
That doctrine, articulated by Soviet leader Leonid Brezhnev, asserted that
once a nation became a member of the communist camp it must always
remain in the communist camp. The U. S. version seems to be '' Once a
security dependent of the United States, always a security dependent of
the United States. ''
Instead of taking responsibility for its own security, South Korea chooses
to underinvest in defense and remain dependent on the United States for
major portions of its military needs. Despite being next door to one of
the more bizarre and unpredictable regimes in the world, Seoul actually
spends a lower percentage of its gross domestic product on defense than
does the United States. Moreover, one of South Korea's first responses
to the East Asian financial crisis in the late 1990s was to cut its already
anemic defense budget.
U. S. leaders should inform their South Korean counterparts that the
days of free riding on the U. S. security guarantee are over. America has
its own war to wage, and it can no longer afford to subsidize prosperous
security clients. The security commitment to South Korea costs the United
States approximately $15 billion a year. Even if some of the forces with-drawn
were subsequently redeployed to wage the war on terrorism, Ameri-can
taxpayers would realize substantial savings.

Withdraw the Nearly 50,000 Troops Stationed in Japan
The U. S. military presence in Japan is yet another obsolete commitment.
In the decades following World War II, U. S. officials wanted to keep
Japanese rearmament to a minimum. Indeed, Article 9 of Japan's constitu-tion,
placed in the document in response to intense pressure from the
United States, renounced war and seemed to preclude the existence of
any armed forces. Because Washington soon wanted some Japanese assis-tance
in the struggle against the Soviet Union, however, U. S. leaders
endorsed a more flexible interpretation of Article 9, and Japan developed
modest ground, air, and naval '' self-defense forces. ''
Nevertheless, the United States has never fully trusted Japan and has
shown no support for Japan's playing a vigorous security role— much
less an independent security role— in East Asia. Even the much-touted
changes in the defense guidelines for the U. S.-Japanese alliance, adopted
in 1997, authorize Japan merely to provide nonlethal logistical support
for U. S. military operations in East Asia unless Japan itself is attacked.

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U. S. officials seem content to keep Japan as a barely trusted junior security
helper. The tradeoff for that limitation is that Tokyo expects the United
States to keep military forces in Japan and take primary responsibility for
Japan's security.
That policy needs to change. Some of the U. S. forces stationed in Japan
sit as uselessly as the troops stationed in Western Europe. The more than
18,000 Marines stationed on Okinawa fall into that category. The air and
naval units deployed in Japan arguably contribute to the overall stability
of East Asia, but they also provide a de facto defense subsidy to Japan.
It is time for Japan to step forward and assume its rightful role as the
principal stabilizing power in East Asia. Japan has the world's second
largest economy, and its military forces— although relatively small— are
modern and capable. A modest increase in defense spending would enable
Japan to offset the withdrawal of U. S. forces in a few years. Although
the security environment in East Asia is not as benign as the environment
in Europe, there is no need for a large U. S. military presence. It should
be humiliating for Japan, with all its capabilities, to still be dependent on
the United States for its security.
The Marines on Okinawa should be withdrawn over the next two years,
and the air and naval units should depart gradually thereafter. Some of
the latter units probably would be redeployed to assist in the war on
terrorism, but even so, much of the nearly $20 billion a year cost of the
U. S. military commitment to Japan could be saved.
It is uncertain whether the United States would need to redirect all of
the money saved from terminating the foreign aid budget and ending
obsolete or unnecessary overseas military commitments to the war on
terrorism. Clearly, some additional resources ought to be devoted to beefing
up our special forces units and intelligence gathering and evaluation capa-bilities.
They have both been shortchanged for years, and yet they are the
front-line forces in the fight against terrorism.
But there may well be some money left over. That is not a bad thing.
At the very least, such savings might head off the looming prospect of a
return to large federal budget deficits. The savings might even be enough
to give the beleaguered American taxpayer a modest break. But however
the money is used, it would be better than the current wasteful situation.

Recommended Readings
Bandow, Doug. '' Korean Detente: A Threat to Washington's Anachronistic Military Presence? '' Cato Institute Foreign Policy Briefing no. 59, August 17, 2000.

. '' Okinawa: Liberating America's East Asian Military Colony. '' Cato Institute Policy Analysis no. 344, May 18, 1999.

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Clearing the Decks for War
. Tripwire: Korea and U. S. Foreign Policy in a Changed World. Washington: Cato Institute, 1996.
Carpenter, Ted Galen. '' Fixing U. S. Foreign Policy. '' Reason, October 2002. . NATO's Empty Victory: A Postmortem on the Balkan War. Washington: Cato
Institute, 2000. Carpenter, Ted Galen, ed. NATO Enters the 21st Century. London: Frank Cass, 2001.
Dempsey, Gary, ed. Exiting the Balkan Thicket. Washington: Cato Institute, 2002. Eland, Ivan. Putting '' Defense'' Back into U. S. Defense Policy. Westport, Conn.:
Praeger, 2001. Harrison, Selig S. Korean Endgame: A Strategy for Reunification and U. S. Disengage-ment.
Princeton, N. J.: Princeton University Press, 2002. Layne, Christopher. '' Death Knell for NATO? The Bush Administration Confronts the
European Security and Defense Policy. '' Cato Institute Policy Analysis no. 394, April 4, 2001.
Olsen, Edward A. '' A Northeast Asian Peace Dividend. '' Strategic Review (Summer 1998).
. U. S. National Defense for the Twenty-First Century: The Grand Exit Strategy. London: Frank Cass, 2002.

—Prepared by Ted Galen Carpenter

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5. Waging an Effective War
Congress should
stress to the administration that the joint resolution approved
by the Senate and House of Representatives authorized the president '' to use all necessary and appropriate force against

those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks
that occurred on September 11, 2001, '' not to wage an amor-phous war on '' evil'';
urge the administration to focus the war on terrorism only on the
al-Qaeda terrorist network and not expand it to other terrorist groups or countries that have not attacked the United States;

urge the administration to reduce military operations in Afghan-istan
and expand military operations into the Peshawar border region in Pakistan to root out al-Qaeda and Taliban forces; and

recognize that much of the war against terrorism will not involve
military action but will emphasize diplomatic, intelligence, and law enforcement cooperation with other countries.

The war on terrorism is unlike any other war the United States has
waged. The enemy is not a traditional nation-state with armed forces.
Instead, it is a dispersed terrorist network operating in more than 60
countries around the world. As demonstrated on September 11, terrorists
are unlikely to attack using conventional military means— and they are
willing to sacrifice themselves in suicide operations. Also unlike traditional
wars, the war on terrorism does not have a geographical front where battle
lines are clearly drawn. The terrorists will choose where they will attack
(either in the United States or U. S. targets abroad), but the United States
may not know where to direct retaliatory action. This war is likely to
be long (if the English experience with the Irish Republican Army and

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CATO HANDBOOK FOR CONGRESS
the Israeli experience with Palestinian terrorist groups are any indication).
The mere absence of terrorist violence against the United States or U. S.
targets overseas will not be a reliable standard for determining if the war
is being won. There could be long lulls between terrorist attacks. And
there is not likely to be a clearly and easily defined victory— the terrorists
will probably not surrender. Realistically, the United States may not be
able to win the war in the traditional sense of '' winning'' and '' losing. ''
Recognizing and accepting that the strategic outcome may be ambiguous
can help effective engagement with the enemy.

Focus on al-Qaeda
To begin, the United States must clearly define the terrorist enemy, and
in this instance the enemy is the al-Qaeda terrorist network, which is the
group responsible for the September 11 attacks against the World Trade
Center towers and the Pentagon. Indeed, the joint resolution of Congress
after the attacks authorized the president '' to use all necessary and appro-priate
force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorists attacks that occurred
on September 11, 2001. '' Therefore, the focus of the war and our efforts
must be on al-Qaeda, not a more expansive and nebulous war against
terrorism in general. That means avoiding distractions (which use up scarce
resources and could potentially lead to getting bogged down) that are
tenuous and tangential to al-Qaeda, such as the Abu Sayef in the Philippines
and Muslim Chechen rebels in the Republic of Georgia. Both of those
are internal problems best left to their respective governments. Similarly,
the United States needs to avoid making false linkages between the war
on terrorism and the war on drugs by including the Colombian FARC as
a target. And the United States must avoid needlessly stirring the hornets'
nest by trying to connect al-Qaeda to other terrorist groups, such as Hamas
and Hezbollah, which do not focus their attacks against the United States,
without clear proof that such groups are collaborating against the United
States. It also means understanding that— unless hard evidence proves
otherwise— except for the Taliban regime in Afghanistan, al-Qaeda is not
linked to, does not receive support from, and has not been given safe
haven by other countries. In other words, the war on terrorism should not
be expanded to include military operations against any of the countries
of the '' axis of evil. ''
It is also important to understand that military operations— such as
Operation Enduring Freedom in Afghanistan— are likely to be the excep-54 55
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Waging an Effective War
tion rather than the rule in the war on terrorism. Intelligence and law
enforcement operations will probably be more important to the successful
prosecution of the war. Thus, even calling this a '' war'' on terrorism is
somewhat misleading, given traditional thinking about wars and how they
are waged.

Afghanistan
Operation Anaconda and subsequent military operations in the wake
of Operation Enduring Freedom have demonstrated that only tattered
remnants of the Taliban and al-Qaeda remain in Afghanistan. Furthermore,
the U. S. bombing of a wedding party in the Uruzgan province in July
2002 demonstrates that the continued use of airpower for military opera-tions
inside Afghanistan may be counterproductive. Therefore, if there is
a requirement for '' mop-up'' operations against al-Qaeda and the Taliban
inside Afghanistan, the United States should rely more on ground forces—
in particular special operations forces.
That said, given the post-Taliban political maneuvering by various
regional and local actors in Afghanistan, the United States needs to be
extremely careful and wary about intelligence received from Afghan
sources about al-Qaeda and Taliban in hiding. There is evidence to suggest
that ulterior motives may have been behind intelligence information that
prompted several U. S. military actions against the wrong targets or the
killing of innocent civilians in Afghanistan. The U. S. military can ill afford
too many of those episodes. The biggest mistake the United States can
make in Afghanistan is to have the Afghan people view the U. S. military
presence as an invading and occupying military force rather than the force
that liberated them from oppressive Taliban rule. History shows that while
the various factions inside Afghanistan often fight among themselves, they
tend to unite against any invading power.
The other '' traps'' that U. S. military forces need to avoid in Afghanistan
are peacekeeping and nation building. Both are nonessential to the success-ful
prosecution of the war on terrorism. The United States needs to recog-nize
that domestic opposition to the Karzai government does not automati-cally
mean the opponents are al-Qaeda or Taliban supporters who are a
threat to the United States. Furthermore, the U. S. military should not be
used (or be perceived) to prop up the Karzai government. That government
must be able to sustain itself on its own merits. That the Karzai government
might fall does not necessarily mean the return of Taliban rule and a safe
haven for al-Qaeda. Rather, the country would likely revert to its traditional

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form of governance— a highly decentralized system with a nominal
national government and most power held by tribal leaders and so-called
regional warlords. That may not be either efficient or democratic by
Western standards, but U. S. interests in the war on terrorism demand only
that whatever government is in power in Afghanistan not provide safe
haven and support for al-Qaeda terrorists. That the United States is serious
and willing to take all necessary action to realize this objective is certainly
the single most important lesson learned by the Afghans from Operation
Enduring Freedom.

Pakistan
Ultimately, Afghanistan becomes less important as a place to conduct
military operations in the war on terrorism and more important as a place
from which to launch military operations. And those operations should
be directed across the border into neighboring Pakistan, which is where
al-Qaeda and the Taliban are known to have fled.
Such operations will not be easy. The lessons learned in Afghanistan
suggest that the United States should expect to have to rely more heavily
on ground forces to find, engage, and destroy al-Qaeda and Taliban forces.
In other words, military victories in Pakistan will not be won with airpower
and precision-guided munitions, which means that U. S. forces are likely to
experience casualties. Given that al-Qaeda and the Taliban have apparently
found shelter in the western Pakistan border area, U. S. military forces
cannot reasonably expect support from the population in the region. Indeed,
in some instances, the inhabitants may put up fierce resistance. And because
of the political situation in Pakistan, the United States cannot count on
significant support from Pakistan's army and other military forces. Presi-dent
Pervez Musharraf of Pakistan is conducting a high-wire balancing
act that will make it difficult enough for him to condone U. S. military
action inside his country, let alone actively participate in such action. But
if Pakistan is to claim to be an ally of the United States in the war on
terrorism, the United States must prevail and persuade Musharraf to allow
the U. S. military to expand operations in Pakistan to finish the job it
started in Afghanistan.

Weak States
It is apparent that weak states are potential breeding grounds and hiding
places for terrorists. Therefore, the Middle East and Africa are areas that

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Waging an Effective War
require careful attention. Certainly, the United States must be prepared to
use military force when and where necessary. But first and foremost, the
United States should work to convince the governments of countries that
are likely to be hiding places and bases of reconstitution for al-Qaeda—
for example, Sudan, Somalia, and Yemen— to take action themselves.
Only if such countries refuse or are unable to take action against a signifi-cant
al-Qaeda presence should the United States consider conducting
military operations (in all likelihood with special forces) to hunt down
and capture or kill al-Qaeda members.

Saudi Arabia
The United States also needs to put political and diplomatic pressure
on friendly Arab countries to cooperate and assist with hunting down al-Qaeda
inside their borders. Most notably, 15 of the 19 hijackers involved
in the September 11 attacks against the World Trade Center towers and
the Pentagon were Saudi nationals. Yet— as was the case after the 1996
bomb attack on the Khobar Towers in Dharan that killed 19 Americans—
the Saudi government has been less than cooperative and remains reluctant
to take any meaningful action against potential terrorists. Given the U. S.
military presence in Saudi Arabia (at the request of the House of Saud
and itself a contributing factor to making the United States a target for
terrorism), such behavior is unacceptable. Just as President Musharraf
must ultimately be convinced to give the U. S. military freedom of action
in western Pakistan if he is to continue to claim to be an ally in the war
on terrorism, the Saudis must also cooperate. If they don't, the United
States should sever its ties with the House of Saud.

Indonesia
Another area of the world that bears watching is Indonesia, which has
the world's largest Muslim population and is just emerging from years
of political, social, and economic turmoil. Various claims have been made
about an al-Qaeda presence, including terrorist training camps, in Indone-sia.
Therefore, the United States needs to determine carefully whether
there is a direct al-Qaeda presence in Indonesia or the situation involves
an indigenous insurgency with tenuous and tangential links to al-Qaeda
(in the Philippines, for example). The mere presence of radical Muslims
does not necessarily signify a direct threat from al-Qaeda. And if a stable,
democratic government in Indonesia is crucial to preventing future terror-57 58
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ism, the United States needs to be careful about placing undue strains on
Indonesia's fledging democracy. The presence of U. S. troops in the coun-try,
for example, could fuel the anger of Muslim extremists. As is the
case with Sudan, Somalia, and Yemen, the United States needs to coax
and cajole the Indonesian government to take necessary actions and precau-tions.
But use of U. S. military force should be resorted to only if there
is direct evidence of a significant al-Qaeda presence and all other options
for dealing with the threat have been exhausted.

Allies and Friendly Countries
The rest of the war on terrorism will be waged against al-Qaeda cells
operating in countries that are either allies of or friendly to the United
States. The task will be to ferret out and capture al-Qaeda members. The
war will not be military in nature. Rather, it will be the hard (and sometimes
mundane) work of intelligence and law enforcement agencies. That will
require unprecedented cooperation between such U. S. agencies and those
in foreign countries. (Cooperation should be limited to intelligence and
law enforcement; the U. S. military should not become involved in fighting
other nations' wars for them.) The United States needs to improve relations
with foreign intelligence agencies in order to be able to share information
about suspected al-Qaeda operatives. Foreign law enforcement and internal
security agencies will have primary responsibility for apprehending sus-pected
al-Qaeda terrorists. And the hurdles of extradition will have to be
overcome so that foreign governments hand over the terrorists who are
caught. Again, the United States will need to exert political and diplomatic
skill to elicit such cooperation. The threat of military force (let alone its
actual use) is not a viable option.
In the final analysis, the United States will not be able to go it alone
in the war on terrorism. The United States will need to convince other
countries to take actions that are in U. S. interests. Diplomacy and statecraft
may ultimately be the most important tools for achieving success against
al-Qaeda.

Suggested Readings
Bandow, Doug. '' Befriending Saudi Princes: A High Price for a Dubious Alliance. '' Cato Institute Policy Analysis no. 428, March 20, 2002.

Bergen, Peter L. Holy War, Inc. New York: Free Press, 2001. Carr, Caleb. The Lessons of Terror. New York: Random House, 2002.
Doran, Michael Scott. '' Somebody Else's Civil War. '' Foreign Affairs 81, no. 1 (January– February 2002).

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Waging an Effective War
Eland, Ivan. '' Robust Response to 9/ 11 Is Needed but Poking the Hornets' Nest Is Ill-Advised. '' Cato Institute Foreign Policy Briefing no. 69, December 18, 2001.
Hadar, Leon T. '' Pakistan in America's War against Terrorism: Strategic Ally or Unreliable Client? '' Cato Institute Policy Analysis no. 436, May 8, 2002.
Hoffman, Bruce. Inside Terrorism. New York: Columbia University Press, 1998. Pen~ a, Charles V. '' The Anti-Terrorism Coalition: Don't Pay an Excessive Price. ''
Cato Institute Foreign Policy Briefing no. 68, December 11, 2001. Vlahos, Michael. '' Terror's Mask: Insurgency within Islam. '' Johns Hopkins Univer-sity,
Applied Physics Laboratory, May 2002.
—Prepared by Charles V. Pen~ a

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6. Homeland Security
Congress should
monitor closely the implementation of the new Department of
Homeland Security and instruct the president to trim and stream-line the disparate bureaucracies incorporated into it so that

the department can be effective in fighting agile terrorist groups; prune and then consolidate the agencies of the intelligence
community to reduce the coordination problems that led to the events of September 11, 2001;
abolish the Office of Homeland Security and the Homeland
Security Council and the position of the homeland security adviser (nowthat a Department of Homeland Security has been

established) and use the existing National Security Council and national security adviser to coordinate homeland security issues
among agencies; and ensure that the new department does not undertake measures
that improve homeland security only at the margins, while undermining America's unique and cherished civil liberties.

In the largest open society in the world, improving homeland security
is a daunting task. Among other vulnerable targets, the United States has
thousands of miles of borders; thousands of bridges, sports stadiums, and
shopping malls; and hundreds of skyscrapers and nuclear power plants.
Defending against terrorist attacks perpetrated with weapons of mass
destruction or disruption may be even more challenging. According to
the 1997 Defense Science Board report, DoD Responses to Transnational
Threats, '' There are a number of challenges that have been regarded as
'too hard' to solve: the nuclear terrorism challenge, defense against biologi-cal
and chemical warfare threat, and defense against the information
warfare threat. '' Yet the September 11, 2001, attacks on the Pentagon and

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World Trade Center put intense pressures on Congress and the Bush
administration to show that security against future attacks is being
enhanced. The key question is whether rearranging boxes on the govern-ment's
organizational chart and adding new bureaucracy will make the
average American safer from terrorist attacks. Unless the agencies being
incorporated into the new Department of Homeland Security are trimmed
and streamlined in order to fight agile terrorists, the answer is no.

Adding New Bureaucracy May Reduce Security Rather Than Enhance It

Originally, the Bush administration opposed the Democratic proposal to
create a new department charged with homeland security. Then revelations
about the existence of intelligence information that might have helped
uncover the September 11 attacks before they occurred and about the lack
of coordination in and among government agencies— within the Federal
Bureau of Investigation and between the FBI and the Central Intelligence
Agency— which led to failure to piece the information together and act
on it, caused the administration to reverse its opposition to the creation
of a new security bureaucracy.
As usual, Washington's response to a crisis is a reorganization of
government, and this one is the largest since 1947. Bits and pieces of
disparate departments and agencies will be pasted together to form the
new department. For example, among other federal entities, the Federal
Emergency Management Agency, the Customs Service and Secret Service
(from the Treasury Department), the Coast Guard and Transportation
Security Administration (from the Transportation Department), the Animal
and Plant Health Inspection Service (from the Agriculture Department),
and the Border Patrol and Immigration and Naturalization Service (from
the Justice Department) will be included in the new department.
The threat from al-Qaeda and other terrorist groups is one of agile,
nonbureaucratic adversaries who have the great advantage of being on
the offense— knowing where, when, and how they will attack. Terrorists
take advantage of the sluggishness of and the poor coordination among
military, intelligence, law enforcement, and domestic response bureaucra-cies
to attack gaps in the defenses. Yet the Bush administration rushed—
before the congressional intelligence panels had completed their work to
determine the exact nature of the government lapses prior to September
11— to propose a solution that did not seem to deal with preliminary
indications of what the major problem seems to have been: a lack of

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Homeland Security
coordination between and within the intelligence agencies that make up
the vast U. S. intelligence bureaucracy. Instead, the president has proposed
reorganizing other government agencies into a new super bureaucracy,
leaving out the CIA and FBI. Furthermore, although seeming to consolidate
federal efforts at homeland defense, the new department may actually
reduce U. S. security by adding bureaucracy rather than reducing it. More
bureaucracy means more coordination problems of the kind that seem to
have been prevalent in the intelligence community prior to September 11.
The intelligence community and other agencies involved in security
have traditionally battled nation-states. Fortunately, those states have gov-ernments
with bureaucracies that are often more sluggish than our own
government's agencies. In contrast, terrorist groups have always been
nimble opponents that were difficult to stop, but they were not a strategic
threat to the U. S. homeland. As dramatically illustrated by the attacks
of September 11, terrorists willing to engage in mass slaughter (with
conventional weapons or weapons of mass destruction) and commit suicide
now pose a strategic threat to the U. S. territory and population.
No security threat to the United States matches this one. To fight this
nontraditional threat, the U. S. government must think outside the box and
try to be as nimble as the opponent (a difficult task). The Bush administra-tion
is correct that the current U. S. government structure— with more than
100 federal entities involved in homeland security— is not optimal for
defending the nation against the new strategic threat. Although consolidat-ing
federal efforts is not a bad idea in itself, creating a new department
does not ensure that the bureaucracy will be more streamlined, experience
fewer coordination problems, or be more effective in the fight against
terrorism.
In fact, the reorganization will add yet another layer of bureaucracy to
the fight against terrorism. In his message to Congress urging the passage
of his proposal to create the new department, the president made a favorable
reference to the National Security Act of 1947, which merged the Depart-ments
of War and the Navy to create the Department of Defense and
created an Office of the Secretary of Defense to oversee the military
services. But today, 55 years after the act's passage, that office is a bloated
bureaucracy that exercises comparatively weak oversight of military ser-vices
whose failure to coordinate and cooperate even during wartime is
legendary. Even Secretary of Defense Donald Rumsfeld has compared
the efficiency and responsiveness of the DoD bureaucracy to Soviet cen-tral
planning.

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The proposed new department is similar to DoD because it will bring
together agencies with very different missions and methods of operation
and create a large new departmental bureaucracy to try to rein them all in.
As was the case when DoD was created, consolidation of the government's
efforts is laudable, but it may be unhelpful or even counterproductive
to establish another layer of bureaucracy without cutting out layers of
management from the agencies being merged or removing some agencies
entirely from the homeland security arena and giving their functions to
other agencies. Interagency coordination problems may become intra-agency
coordination problems.
Consolidation of agencies would have been fine had cutting come before
pasting rather than vice versa. In other words, agencies should have been
trimmed and reformed (and some totally eliminated) before they were
consolidated. Instead, the agencies will be consolidated, with cuts or
savings to come later. That promise is not likely to be fulfilled. Once the
new, large, consolidated department is created— it will be one of the
largest departments in the government— the new department head will be
a powerful advocate for more money and people rather than the opposite.
Although the Bush administration did promise some efficiencies from
consolidation, the administration did not project overall net savings from
the reorganization. At best, policymakers in the administration promised
that a consolidated department would not increase costs. But it is telling that
the president's plan had no cost estimates accompanying it. Historically,
mergers of government agencies have increased costs rather than decreased
them. Although some longer-term savings from consolidation of payroll
and computer systems may occur, creating the new secretary's bureaucracy
to ride herd on all of the agencies will likely increase net costs. The
president's proposal for the department calls for adding one deputy secre-tary,
five under secretaries, and up to 16 assistant secretaries. According
to the Congressional Budget Office, the new department could cost as
much as $4.5 billion more (from 2003 to 2007) than operating the disparate
agencies separately.
So the president's plan is likely to cost more rather than less. Following
the money is important; if costs are not going down, the plan is unlikely
to streamline the government's efforts at counterterrorism and homeland
defense. With too many federal entities already involved in homeland
security, more government is not better than less. With so many agencies
involved, if a catastrophic attack with weapons of mass destruction occur-red,
administrative chaos would be the probable outcome. After creation

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Homeland Security
of the new department, there will be fewer organizational entities but
probably more government. A stealthy and nimble enemy is at the gates,
and there is not much time to put the government on a diet. Instead, the
government may be headed to the pastry shop. More bureaucracy means
more coordination problems and more opportunities for terrorists.

Bush's Plan Does Not Solve the Problem with Intelligence and May Make It Worse

The president's plan for a new department does not solve what seems
to be the primary problem— the lack of coordination within and between
U. S. intelligence agencies, specifically the FBI and the CIA. Those agen-cies
are conspicuously missing from the new department.
Yet, for enhanced homeland security, intelligence is the key ingredient.
The U. S. government has infinitely more resources for use against al-Qaeda
and other terrorist groups than they do against it. If the U. S.
government can discover plots or the location of targets and terrorists in
time to take action, the overwhelming U. S. superiority in military and law
enforcement resources can be brought to bear to foil the plot. Mitigating
the effects of the attack after it happens is important, but, in many cases,
the government may be able to only marginally help reduce casualties.
Without good intelligence, that may be the government's only role. The
United States already has an unparalleled ability to collect vast amounts
of raw intelligence data— the pieces of the jigsaw puzzle— but the already
too numerous agencies in the U. S. intelligence community have had trouble
fusing it into a complete picture.
Regrettably, in intelligence, as in the overall homeland security realm,
the reorganization will make the government even less likely to put the
jigsaw puzzle together and even more ungainly and sluggish in combating
terrorists. A new intelligence analysis center will be created in the new
Department of Homeland Security to analyze threats to the U. S. homeland.
However, the FBI, the CIA, and other intelligence agencies already analyze
such threats. Thus, the new agency will be analyzing the analyses of other
agencies. If the new analysis center is supposed to be fusing the analyses
of those agencies, it would seem to be usurping the role of the intelligence
community staff under the director of central intelligence. Furthermore,
if the FBI and the CIA fail to fully cooperate or coordinate with each
other because of turf jealousies, excessive secrecy, or burdensome bureau-cratic
rules for interagency coordination, the problem is likely to get worse
as another competing bureaucracy is added.

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The Government Already Had the Machinery to Coordinate Homeland Security
The National Security Council includes the heads of the major depart-ments
and agencies that are responsible for the nation's security. The
president's powerful national security adviser officially only coordinates
policy among the agencies but in reality is a potent independent voice in
the policymaking process. It would seem logical that catastrophic terrorism
against the U. S. homeland would affect national security and thus fit
under the purview of the NSC and the national security adviser. But
apparently not.
Before proposing the new Department of Homeland Security, the presi-dent
created a White House Office of Homeland Security, a homeland
security adviser, and a Homeland Security Council. Even with the creation
of the new department, all of this bureaucracy remains. The president
maintains that protecting America from terrorism will remain a multide-partmental
issue and will continue to require those entities to oversee
interagency coordination. But the roles of the homeland security adviser
and the Homeland Security Council appear to be redundant with those of
the national security adviser and the NSC. For 55 years, the NSC existed
to provide for the national security, but as soon as the nation was attacked
at home, a new security bureaucracy was thought to be needed. By creating
a new cabinet department, U. S. policymakers appear to subscribe to the
strange notion that the NSC should provide for security only overseas.
Piling new bureaucracy on new bureaucracy is not the way to fight
nimble terrorists. Sen. Richard Shelby (R-Ala.), vice chairman of the
Senate Select Committee on Intelligence, noted that the FBI and the CIA
are not very agile, and the General Accounting Office has recommended
reducing the layers, levels, and units within the FBI. That recommendation
should apply to all agencies that remain in the homeland security arena.
Many of the more than 100 federal entities involved in homeland security
need to be removed from performing the mission. To reduce the chances
of lapses in intelligence coordination and chaos in domestic crisis response,
there should be fewer government entities in need of coordination.
Although reducing the number of people and the amount of bureaucracy
seems to go against the tide in the present crisis atmosphere, preliminary
indications are that the main problem is coordination among governmental
entities, not a lack of raw information or insufficient resources. In short,
Congress should not be afraid to streamline or even eliminate agencies
involved in homeland security— both within and outside the new
department.

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Homeland Security
Homeland Security and Civil Liberties
Congress should carefully scrutinize any new security measures to make
sure they really enhance security and do not merely erode the civil liberties
that make America unique. Osama bin Laden is a sophisticated operative
who has stated that one of his major goals is to change the U. S. system.
If America's civil liberties are eroded needlessly, bin Laden may achieve
an even bigger victory than he did with the horrific attacks of September 11.
In a crisis, the government has an incentive to take measures designed
to show progress in dealing with it. In the wake of the September 11
attacks, many of the measures proposed or implemented by the Justice
Department to restrict civil liberties seemed to be '' for show, '' with
little hope of effectively fighting terrorism— for example, the Terrorism
Information and Prevention System program that would have inundated
law enforcement agencies with dead-end leads from postal and utility
workers spying on private residences and businesses. Congress needs to
make sure the new department avoids such fiascos. In short, Congress
needs to make sure that any new security measures are needed and effective
and do not unduly restrict civil liberties.

Suggested Readings
Congressional Budget Office. '' Congressional Budget Office Cost Estimate: H. R. 2005— Homeland Security Act of 2002. '' July 23, 2002.

Eland, Ivan. '' Homeland Security: Calibrating Calamity. '' Washington Times, July 25, 2002.
. Testimony before the Subcommittee on Technology, Terrorism, and Govern-ment Information of the Senate Judiciary Committee. June 25, 2002.
Lynch, Timothy. '' Breaking the Vicious Cycle: Preserving Our Liberties While Fighting Terrorism. '' Cato Institute Policy Analysis no. 443, June 26, 2002.
Office of the Secretary of Defense. Final Report. Vol.1 ofThe Defense Science Board 1997 Summer Study Task Force on DoD Responses to Transnational Threats. Octo-ber
1997. Taylor, Eric R. '' Are We Prepared for Terrorism Using Weapons of Mass Destruction?
Government's Half Measures. '' Cato Institute Policy Analysis no. 387, November 27, 2000.
. '' The New Homeland Security Apparatus: Impeding the Fight against Agile Terrorists. '' Cato Institute Foreign Policy Briefing no. 70, June 26, 2002.

—Prepared by Ivan Eland

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7. Reducing the '' Lightning Rod'' Problem
Congress should support a decisive, but narrowly focused, war on terrorism to eradicate the terrorists who perpetrated the Sep-tember
11, 2001, attacks. In the long term, Congress should refuse to provide funds for U. S. military presence and military
and political interventions overseas that are not required to defend vital U. S. interests and could result in catastrophic retaliatory
attacks by terrorists on U. S. targets, including the American home-land. Most urgently, Congress should

direct that U. S. military forces be withdrawn fromSaudi Arabia;
adopt a more even-handed approach to the Israeli-Palestinian
conflict by removing U. S. military and economic support for Israel and ending active mediation of the Israeli-Palestinian

conflict; end the comprehensive economic sanctions against Iraq; and
end support for despotic Arab governments, such as those in
Egypt and Saudi Arabia.

Current U. S. policies are unnecessary for U. S. security and incite radical
Islamist terrorists to attack U. S targets.

The U. S. Government Has Endangered Citizens
Compared with other nations, the United States is disproportionately
attacked by terrorists— in terms of both number of attacks and casualties.
In 2001, according to the U. S. State Department's Patterns of Global
Terrorism 2001, anti-U. S. attacks accounted for 63 percent of terrorist
incidents worldwide. During the same year, attacks in North America
alone (the vast majority of the casualties were American citizens) accounted

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for 71 percent of the world's casualties caused by terrorist attacks. Why
do terrorists single out the United States?
Some observers argue that the United States is a lightning rod for
terrorists because it is a large, rich, capitalist nation; because it is a
constitutional republic whose citizens enjoy many freedoms; or because
American culture is pervasive and perceived as decadent by some groups.
Although those factors no doubt have some effect, a deeper analysis should
raise suspicions about them as significant causes for anti-U. S. terrorism.
Many other countries are large, rich, capitalist nations with republican
forms of government (for example, Germany and Japan), but they do not
experience the magnitude of terrorism that afflicts the United States. True,
American culture is pervasive, but American economic and political values
(that is, civil society) are the envy of the world. Absent the element of
U. S. government– driven military power, those values do not usually have
coercive or ill effects on other countries and are not generally resented.
Many analysts focus on perceived Islamic hatred of decadent American
culture. Yet more than one Zogby poll of numerous Islamic and Arab
countries has shown that majorities in those countries liked American
freedom, democracy, technology, and culture— including movies and tele-vision.
Conversely, overwhelming majorities disliked U. S. government
policies toward the Middle East. More important, if the goal is to uncover
the motivations of the radical Islamists who attack the United States (and
it should be, because that task is vital to both fighting and avoiding
terrorism but has been neglected because of its sensitivity), the best place
to start is with what Islamists say and write. For example, Peter Bergen,
the CNN correspondent who interviewed Osama bin Laden and wrote
Holy War, Inc., notes that bin Laden has never railed against the decadence
of American or Western culture. His hatred of America is generated by
U. S. foreign policy— his biggest bone of contention is the unnecessary
U. S. military presence in Saudi Arabia, which he believes desecrates
Islam's holiest sites located there.
Although some pundits have claimed that America is targeted by terror-ists
for '' who it is'' rather than '' what it does, '' even high-level U. S.
government sources admit a link between interventionist U. S. foreign
policy (that is, being the world's policeman) and retaliatory terrorist attacks
on U. S. targets.
That link was recognized in the upper levels of the U. S. government
long before the September 11 terrorist attacks. According to a study
completed in 1997 by the Defense Science Board, a panel of experts that
advises the secretary of defense:

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Reducing the '' Lightning Rod'' Problem
As part of its global power position, the United States is called upon
frequently to respond to international causes and deploy forces around the
world. America's position in the world invites attacks simply because
of its presence. Historical data show a strong correlation between U. S.
involvement in international situations and an increase in terrorist attacks
against the United States [emphasis added].

In an August 8, 1998, radio address justifying cruise missile attacks on
Afghanistan and Sudan in response to bin Laden's earlier bombings of
two U. S. embassies, President Bill Clinton admitted as much but put a
positive spin on it with political hyperbole: '' Americans are targets of
terrorism in part because we have unique leadership responsibilities in the
world, because we act to advance peace and democracy, and because we
stand united against terrorism. ''
Most striking of all is the post– September 11 '' National Strategy for
Homeland Security'' issued by the Bush White House's Office of Home-land
Security in July 2002:

For more than six decades, America has sought to protect its own sovereignty
and independence through a strategy of global presence and engagement.
In so doing, America has helped many other countries and peoples advance
along the path of democracy, open markets, individual liberty, and peace
with their neighbors. Yet there are those who oppose America's role in
the world, and who are willing to use violence against us and our friends.
Our great power leaves these enemies with few conventional options for
doing us harm. One such option is to take advantage of our freedom and
openness by secretly inserting terrorists into our country to attack our
homeland. Homeland security seeks to deny this avenue of attack to our
enemies and thus to provide a secure foundation for America's ongoing
global engagement.

What is astonishing is that after 60 years the aberration in American
history of acting as the world's policeman has become an end in itself.
It is even a higher goal than that which should be any government's
primary function— to make its territory and citizens safe and secure.
Profligate intervention in the affairs of other nations (the United States is
the only country in the world that regularly intervenes in every region of
the world) is not a national security policy— in fact, it is quite the opposite.
The Office of Homeland Security periodically issues '' duck and cover''
warnings to U. S. citizens at home, and the State Department does so
to U. S. tourists, expatriates, and business people abroad. But the U. S.
government's own actions are responsible for the disproportionate bull's-eye
that is being drawn around Americans.

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Extended Defense Perimeter Actually Increases the Vulnerability of the Homeland

During the Cold War the military paradigm of defending forward to
keep the adversary far away from the homeland made some sense. The
United States faced a foe with conventional military forces and reaped
advantages from ensuring that its opponent did not make inroads in certain
key strategic areas of the world. Although both superpowers possessed
nuclear weapons, the disadvantages of U. S. intervention overseas were
limited by the '' managed competition'' between the two behemoths that
avoided direct interventions in the other's regions of core concern. Now,
however, the disadvantages vastly outweigh any advantages gained from
profligate U. S. interventions in remote parts of the world that are no longer
strategic (if they ever were). The United States no longer has to check
the advances of another superpower and now faces an unconventional foe
in a war that has no front line. All of the layers of the extended U. S.
defense perimeter did not prevent al-Qaeda from carrying out a catastrophic
attack on the U. S. homeland and actually reduced U. S. security by generat-ing
much of the hatred that led to the attack. In short, the nontraditional
interventionist foreign policy on a grand scale— initiated during the Cold
War but abhorrent to U. S. policymakers for the prior 170 years— is now
out of date and profoundly dangerous.

What the United States Should Do about Terrorism
The U. S. government has several options for dealing with terrorism. The
possibilities include improving intelligence, enhancing homeland security
measures, increasing military and covert action against terrorists, and
reducing military and covert action. Even U. S. intelligence professionals
reach the disquieting conclusion that there will be more terrorist attacks
and that U. S. intelligence will not be able to detect some of them before
they happen. That conclusion is especially unnerving now that terrorists
are clearly willing to inflict mass casualties and are willing to give their
lives in the attack. It should be noted that the conventional means used
in the September 11 attacks are not the worst possibility; attacks with
chemical, biological, or nuclear weapons could be far more deadly.
The United States certainly should take measures to enhance homeland
security, but the public should not be lulled by all the official activity into
thinking that the U. S. government can do more than catch some of the

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Reducing the '' Lightning Rod'' Problem
attackers before they attack or reduce casualties at the margins after an
attack. The United States is one of the largest and most open societies in
the world— both in population and in area. The nation has thousands of
miles of borders, countless skyscrapers and sports stadiums, vulnerable
infrastructure, and a political system that prevents law enforcement's
behaving too aggressively in the fight against terrorism. Moreover, accord-ing
to the Defense Science Board, the problems of nuclear terrorism,
defense against the threat of biological and chemical weapons, and defense
against information warfare have historically been regarded as '' too hard''
to solve. Yet the U. S. government is now inculcating the American public
with a false sense that government can solve those problems.
Finally, the question of military and covert action needs to be addressed.
In the short term, the United States has no choice but to try to eradicate
bin Laden and the al-Qaeda terrorist network by using intelligence, law
enforcement, and, if necessary, military assets. In most nations (for exam-ple,
Yemen and Pakistan), the United States should first rely on supporting
local governments in their efforts to eradicate terrorists within their borders
and, if that proves insufficient or ineffective, then take direct military
action. But the United States should not get dangerously distracted in this
war against the enemy at the gates by military or covert actions against
terrorist groups that do not normally focus their attacks on the United
States (for example, Hezbollah or Hamas) or against rogue states that
cannot be linked to the September 11 attacks. Many foreign terrorist
organizations on the State Department's terrorism list do not focus their
attacks on the United States. Attacking them militarily or using covert
action (which the Bush administration has authorized) is simply stirring
the hornets' nest unnecessarily. The United States can continue to engage
in lower-profile regional cooperation in intelligence and law enforcement
with other nations to combat such groups.
Although narrowly focused military action will be needed in the short
term to expunge the threat from al-Qaeda, a policy of military restraint
should be adopted in the long term. Because improvements in intelligence
capabilities (particularly intelligence from human sources) and homeland
security measures will provide positive results only at the margins in the
detection, prevention, and mitigation of terrorist attacks, it is vital that the
United States lower its target profile vis-a `-vis terrorists. That goal can be
achieved by reducing the U. S. military presence abroad and intervening
militarily or politically only on the rare occasions when vital U. S. interests
are threatened.

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Specific Recommendations to Lessen U. S. Vulnerability to Terrorist Attacks

Remove the U. S. Military Presence from Saudi Arabia
The withdrawal of U. S. forces from the land of Islam's most holy sites
would remove an irritant that inflames Islamic terrorists to strike U. S.
targets but would not adversely affect other U. S. security interests. Even
if it were necessary to use the U. S. military to defend Persian Gulf oil—
and economists from across the political spectrum attest that it is not—
the United States did so successfully during the Gulf War in 1991 without
having a prior peacetime military presence in Saudi Arabia. Furthermore,
a substantial portion of U. S. military assets has already been moved to
surrounding countries because of restrictions on their use imposed by the
Saudi regime. Anonymously, even senior U. S. military officials have
expressed to the Washington Post a desire to withdraw U. S. forces from
Saudi territory.
Furthermore, it is ethically questionable to use U. S. forces to defend a
despotic regime with an abysmal human rights record that indirectly
supported al-Qaeda terrorists and directly supported the radical religious
schools in Pakistan that spawned those terrorists and the repressive Taliban
regime in Afghanistan that harbored them. The Saudi government also
makes the lives of American service personnel miserable by putting heavy
restrictions on their personal lives and their mingling with Saudi citizens.
Some observers would argue that withdrawing from Saudi Arabia would
hand bin Laden a victory by fulfilling his desire for a U. S. withdrawal.
That argument can be nullified as long as the United States neutralizes
most of the al-Qaeda network as U. S. forces pull back from Saudi Arabia.
In addition, according to the Washington Post, because of fears that the
American presence was destabilizing their regime by stirring up Islamic
militants, the Saudis have been on the verge of asking U. S. forces to
leave. The United States should take advantage of those sentiments as a
cover and quietly pull out its forces if asked to do so.

Develop a More Even-Handed Approach to the Israeli-Palestinian Conflict by Cutting Off Military and Economic Aid to Israel

Unbalanced U. S. involvement in the Israeli-Palestinian conflict inflames
the Islamic world and is a principal motive behind terrorist attacks by
Islamists on U. S. targets worldwide. The desire to assist a nation inclined
toward democracy is understandable, but doing so is no longer advisable

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given the possibility of retaliatory mass terrorist attacks, including the use
of nuclear, chemical, and biological weapons, on the U. S. homeland.
In attempting to mediate the negotiation of a settlement to an intractable
conflict, the United States is perceived by Arabs to be pushing the Palestin-ians
to end violence more than they are prodding Israel to do so. But both
sides in the struggle have used excessive violence against civilians. Those
excesses have made it even less likely that either side would be willing
to end the conflict. The United States should discontinue futile efforts to
pressure the parties to reach a settlement that neither wants and therefore
has little chance of succeeding. Both sides must indicate a strong willing-ness
to reach a settlement before the United States resumes mediation.
When the United States does so, its role should be strictly limited and
neutral. A much more modest and disinterested U. S. mediation role would
lower the U. S. target profile to Islamic terrorism.

End Comprehensive Economic Sanctions against Iraq
The most grinding and complete sanctions in world history should come
to an end. When economic sanctions are imposed, the target regime—
usually a despotic government that tightly controls its nation's political
and economic systems— usually transfers the pain of sanctions to the
poorest members of society and earns enormous profits from smuggling.
In addition, the sanctions create a strong '' rally-around-the-flag'' effect
for the regime against the nations that imposed the strictures. The embargo
also takes the blame for economic problems that are caused by the regime's
poor policies. In those ways, economic sanctions have the perverse effect of
actually strengthening the despotic government's hold on power. Although
counterintuitive, the best way to weaken a despotic regime is to get Western
products, services, and investment, and the ideas that go with them, into
the target nation. But that strategy will work only over the long term.
In the case of Iraq, the bone-crushing U. S.-led embargo has devastated
the Iraqi poor but made Saddam Hussein's regime stronger. The sanctions'
ill effects on Iraqi society have provoked radical Islamic elements all over
the world. The United States should break with conventional wisdom and
lead the world in scrapping the sanctions. By doing so, the United States
would lower the probability of retaliatory catastrophic terrorist attacks on
U. S. targets.

Stop Supporting Despotic Regimes in the Middle East
The Cold War is over, and supporting '' friendly'' authoritarian regimes,
such as Saudi Arabia and Egypt, is no longer necessary (if it ever was).

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As noted before, other strategic reasons for supporting them— for example,
the great oil reserves in Saudi Arabia— are questionable. Saudi Arabia
and the other authoritarian Persian Gulf oil producers— which obtain the
vast bulk of their export earnings and foreign currency from the sale of
oil— are more desperate to sell the oil than the United States is to buy it.
The corruption of those regimes generates the hatred of radical Islamists,
as does U. S. support for those governments. As would implementing the
other three recommendations, ending support for such authoritarian nations
would lower the U. S. profile as a target for Islamic radicals.

Suggested Readings
Carpenter, Ted Galen. America Entangled: The Persian Gulf Crisis and Its Consequences. Washington: Cato Institute, 1991.

Carr, Caleb. Lessons of Terror: A History of Warfare against Civilians: Why It Has Always Failed and Why It Will Fail Again. New York: Random House, 2002.
Eland, Ivan. '' Does U. S. Intervention Overseas Breed Terrorism? The Historical Record. '' Cato Institute Foreign Policy Briefing no. 50, December 17, 1998.
. '' Protecting the Homeland: The Best Defense Is to Give No Offense. '' Cato Institute Policy Analysis no. 306, May 5, 1998.
. '' Robust Response to 9/ 11 Is Needed but Poking the Hornets' Nest Is Ill-Advised. '' Cato Institute Foreign Policy Briefing no. 69, December 18, 2001.
Hoffman, Bruce. Inside Terrorism. New York: Columbia University Press, 1998. Hoge, James F. Jr., and Gideon Rose, eds. How Did This Happen?: Terrorism and the
New Year. New York: Public Affairs, 2001.
Smith, James M., and William C. Thomas, eds. The Terrorism Threat and U. S. Govern-ment Response: Operational and Organizational Factors. U. S. Air Force Institute

for National Security Studies, March 2001. U. S. Department of State. Patterns of Global Terrorism 2001. Washington: U. S. Depart-ment
of State, May 2002.
—Prepared by Ivan Eland

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8. The Delegation of Legislative Powers
Congress should
require all '' lawmaking'' regulations to be affirmatively
approved by Congress and signed into law by the president, as the Constitution requires for all laws; and

establish a mechanism to force the legislative consideration of
existing regulations during the reauthorization process.

Separation of Powers: The Bulwark of Liberty
When the legislative and executive powers are united in the same person,
or in the same body of magistrates, there can be no liberty.
—Montesquieu, The Spirit of the Laws

Article I, section 1, of the U. S. Constitution stipulates, '' All legislative
powers herein granted shall be vested in the Congress of the United States,
which shall consist of a Senate and House of Representatives. '' Article
II, section 3, stipulates that the president '' shall take care that the laws
be faithfully executed. '' Thus, as we all learned in high school civics, the
Constitution clearly provides for the separation of powers between the
various branches of government.
The alternative design— concentration of power within a single govern-mental
body— was thought to be inimical to a free society. John Adams
wrote in 1776 that '' a single assembly, possessed of all the powers of
government, would make arbitrary laws for their own interest, and adjudge
all controversies in their own favor. '' James Madison in Federalist no.
47 justified the Constitution's separation of powers by noting that it was
a necessary prerequisite for '' a government of laws and not of men. ''
Further, he wrote, '' The accumulation of all powers, legislative, executive,
and judiciary, in the same hands, whether of one, a few, or many, and

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whether hereditary, self-appointed, or elective, may justly be pronounced
the very definition of tyranny. ''
For the first 150 years of the American Republic, the Supreme Court
largely upheld the original constitutional design, requiring that Congress
rather than administrators make the law. The suggestion that Congress
could broadly delegate its lawmaking powers to others— particularly the
executive branch— was generally rejected by the courts. And for good
reasons. First, the Constitution was understood to be a document of enumer-ated
and thus limited powers, and nowhere was Congress either explicitly
or even implicitly given the power to delegate. Second, the fear of power
concentrated in any one branch still animated both the Supreme Court
and the legislature. Third, Americans believed that those who make the
law should be directly accountable at the ballot box.
The upshot was that the separation of powers effectively restrained
federal power, just as the Founders had intended. As Alexis de Tocqueville
observed, '' The nation participates in the making of its laws by the choice
of its legislators, and in the execution of them by the choice of agents of
the executive government. '' He also observed that '' it may also be said
to govern itself, so feeble and so restricted is the share left to the administra-tors,
so little do the authorities forget their popular origins and the power
from which they emanate. ''

The New Deal: '' Delegation Running Riot''
The sense of political crisis that permeated the 1930s effectively buried
the nondelegation doctrine. In his first inaugural address, Franklin Roose-velt
compared the impact of the ongoing economic depression to a foreign
invasion and argued that Congress should grant him sweeping powers to
fight it.
Shortly after taking office, Congress in 1933 granted Roosevelt virtually
unlimited power to regulate commerce through passage of the Agricultural
Adjustment Act (which authorized the president to increase agricultural
prices via administrative production controls) and the National Industrial
Recovery Act (known as the NIRA), which authorized the president to
issue industrial codes to regulate all aspects of the industries they covered.
The Supreme Court, however, temporarily arrested the tide in 1935 in
its unanimous opinion in A. L. A. Schechter Poultry Corp. v. United States.
The Court overturned the industrial code provisions of the NIRA, and, in
a separate opinion, Justice Benjamin Cardozo termed the NIRA— and
thus the New Deal—'' delegation running riot. '' That same year, the Court

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struck down additional NIRA delegations of power in Panama Refining
Co. v. Ryan.
Largely because of the Schechter and Panama Refining decisions, Presi-dent
Roosevelt decried the Court's interference with his political agenda
and proposed legislation enlarging the size of the Court so that he could
appoint additional justices— the so-called Court-packing plan. He lost that
battle but won the war. Although the Court never explicitly reversed its
1935 decisions and continues to articulate essentially the same verbal
formulas defining the scope of permissible delegation— indeed, Schechter
and Panama Refining theoretically are good law today— it would be
nearly 40 years before the Court again struck down business regulation
on delegation grounds.
As long as Congress articulates some intelligible standard (no matter
how vague or arbitrary) to govern executive lawmaking, courts today are
prepared to allow delegation, in the words of Justice Cardozo, to run riot.
John Locke's admonition that the legislature '' cannot transfer the power
of making laws to any other hands, for it being but a delegated power
from the people, they who have it cannot pass it over to others, '' is a
forgotten vestige of an era when individual liberty mattered more than
administrative convenience. As Federal District Judge Roger Vinson wrote
in United States v. Mills in 1989, '' A delegation doctrine which essentially
allows Congress to abdicate its power to define the elements of a criminal
offense, in favor of an un-elected administrative agency such as the [Army]
Corps of Engineers, does violence to this time-honored principle....
Deferent and minimal judicial review of Congress' transfer of its criminal
lawmaking function to other bodies, in other branches, calls into question
the vitality of the tripartite system established by our Constitution. It also
calls into question the nexus that must exist between the law so applied
and simple logic and common sense. Yet that seems to be the state of
the law. ''

Delegation: The Corrosive Agent of Democracy
The concern over congressional delegation of power is not simply
theoretical and abstract, for delegation does violence, not only to the ideal
construct of a free society, but also to the day-to-day practice of democracy
itself. Ironically, delegation does not help to secure '' good government'';
it helps to destroy it.

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Delegation Breeds Political Irresponsibility
Congress delegates power for much the same reason that Congress ran
budget deficits for decades. With deficit spending, members of Congress
can claim credit for the benefits of their expenditures yet escape blame
for the costs. The public must pay ultimately, of course, but through taxes
levied at some future time by some other officials. Likewise, delegation
allows legislators to claim credit for the benefits that a regulatory statute
airily promises yet escape the blame for the burdens it will impose, because
they do not issue the laws needed to achieve those high-sounding benefits.
The public inevitably must suffer regulatory costs to realize regulatory
benefits, but the laws will come from an agency that legislators can then
criticize for imposing excessive burdens on their constituents.
Just as deficit spending allows legislators to appear to deliver money
to some people without taking it from others, delegation allows them to
appear to deliver regulatory benefits without imposing regulatory costs.
It provides, in the words of former Environmental Protection Agency
deputy administrator John Quarles, '' a handy set of mirrors— so useful
in Washington— by which politicians can appear to kiss both sides of
the apple. ''

Delegation Is a Political Steroid for Organized Special Interests
As University of Miami law professor John Hart Ely has noted, '' One
reason we have broadly based representative assemblies is to await some-thing
approaching a consensus before government intervenes. '' The Con-stitution
was intentionally designed to curb the '' facility and excess of
law-making'' (in the words of James Madison) by requiring that statutes
go through a bicameral legislature and the president.
Differences in the size and nature of the constituencies of representatives,
senators, and the president— and the different lengths of their terms in
office— increase the probability that the actions of each will reflect a
different balance of interests. That diversity of viewpoint, plus the greater
difficulty of prevailing in three forums rather than one, makes it far more
difficult for special-interest groups or bare majorities to impose their will on
the totality of the American people. Hence, the original design effectively
required a supermajority to make law as a means of discouraging the
selfish exercise of power by well-organized but narrow interests.
Delegation shifts the power to make law from a Congress of all interests
to subgovernments typically representative of only a small subset of all

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interests. The obstacles intentionally placed in the path of lawmaking
disappear, and the power of organized interests is magnified.
That is largely because diffuse interests typically find it even more
difficult to press their case before an agency than before a legislature.
They often have no direct representation in the administrative process,
and effective representation typically requires special legal counsel, expert
witnesses, and the capacity to reward or to punish top officials through
political organization, press coverage, and close working relationships
with members of the appropriate congressional subcommittee. As a result,
the general public rarely qualifies as a '' stakeholder'' in agency proceed-ings
and is largely locked out of the decisionmaking process. Madison's
desired check on the '' facility and excess of law-making'' is thus smashed.

Delegation Breeds the Leviathan State
Perhaps the ultimate check on the growth of government rests in the
fact that there is only so much time in a day. No matter how many laws
Congress would like to pass, there are only so many hours in a session
to do so. Delegation, however, dramatically expands the realm of the
possible by effectively '' deputizing'' tens of thousands of bureaucrats,
often with broad and imprecise missions to '' go forth and legislate. '' Thus,
as Jacob Weisberg has noted in the New Republic, '' As a labor-saving
device, delegation did for legislators what the washing machine did for
the 1950s housewife. Government could now penetrate every nook and
cranny of American life in a way that was simply impossible before. ''

The Threadbare Case for Delegation
Although delegation has become so deeply embedded in the political
landscape that few public officials even recognize the phenomenon or the
issues raised by the practice, political observers are becoming increasingly
aware of the failure of delegation to deliver its promised bounty of good
government.

The Myth of Technical Expertise
It was once maintained that delegation produces more sensible laws
by transferring lawmaking from elected officials, who are beholden to
concentrated interests, to experts, who can base their decisions solely on
a cool appraisal of the public interest. Yet most agency heads are not
scientists, engineers, economists, or other kinds of technical experts; they
are political operatives. Since the Environmental Protection Agency's

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inception in 1970, for example, the overwhelming majority of its adminis-trators
and assistant administrators have been lawyers. As MIT professor
Michael Golay wrote in Science, '' Environmental protection policy dis-agreements
are not about what to conclude from the available scientific
knowledge; they represent a struggle for political power among groups
having vastly differing interests and visions for society. In this struggle,
science is used as a means of legitimizing the various positions . . . science
is a pawn, cynically abused as may suit the interests of a particular
protagonist despite great ignorance concerning the problems being
addressed. '' Perhaps that's why the EPA's own Science Advisory Board
was forced to concede in a 1992 report that the agency's science '' is
perceived by many people both inside and outside the agency to be adjusted
to fit policy. ''
We should not necessarily bemoan the lack of agency expertise, for it
is not entirely clear that government by experts is superior to government
by elected officials. There is no reason to believe that experts possess
superior moral knowledge or a better sense of what constitutes the public
good. Indeed, specialization often impairs the capacity for moral judgment
and often breeds professional zealotry. Likewise, specialized expertise
provides too narrow a base for the balanced judgments that intelligent
policy requires.
Although both agency administrators and legislators often lack the
expertise to evaluate technical arguments by themselves, they can get help
from agency and committee staff, government institutes (like the Centers
for Disease Control or the General Accounting Office), and private sources
such as medical associations, think tanks, and university scientists. After
all, that is what the hearings process is supposed to be about.
And only someone naive about modern government would seriously
claim today that the winds of politics blow any less fiercely in administra-tive
meeting rooms than they do in the halls of Congress. As Nobel
laureate economist James Buchanan and others have observed, public
officials have many incentives to pursue both private and political ends
that often have little to do with their ostensible missions.

Is Congress Too Busy?
New Dealers once argued that '' time spent on details [by Congress]
must be at the sacrifice of time spent on matters of the broad public
policy. '' But Congress today spends little time on '' matters of broad public
policy, '' largely because delegation forces Congress to spend a large chunk

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of its time constructing the legislative architecture— sometimes over a
thousand pages of it— detailing exactly how various agencies are to decide
important matters of policy. Once that architecture is in place, members
of Congress find that a large part of their job entails navigating through
those bureaucratic mazes for special interests jockeying to influence the
final nature of the law. Writing such instructions and performing agency
oversight to ensure that they are carried out would be unnecessary if
Congress made the rules in the first place.
Moreover, delegation often works to prolong disputes and keep stan-dards
of conduct murky because pressures from legislators and the compli-cated
procedures imposed upon agencies turn lawmaking into an excruciat-ingly
slow process. Agencies typically report that they have issued only
a small fraction of the laws that their long-standing statutory mandates
require. Competing interests devote large sums of money and many of
their best minds to this seemingly interminable process. For example, it
took the EPA 16 years to ban lead in gasoline despite the fact that the
1970 Clean Air Act explicitly gave them the authority to do so. Simply
making the rules the first time around in the legislative process would
take less time than the multiyear regulatory sausage machine requires to
issue standards.

Complex Rules for a Complex World
Perhaps the most widely accepted justification for some degree of
delegation is the complex and technical nature of the world we live in
today. As the Supreme Court opined in 1989, '' Our jurisprudence has
been driven by a practical understanding that in our increasingly complex
society, replete with ever changing and more technical problems, Congress
simply cannot do its job absent an ability to delegate power under broad
general directives. ''
Yet the vast majority of decisions delegated to the executive branch
are not particularly technical in nature. They are instead hotly political,
for the reasons mentioned above. If Congress must regulate, it could (and
probably should) jettison micromanagerial command-and-control regula-tions
that make up the bulk of the Federal Register and instead adopt
regulations that are less prescriptive and more performance based or market
oriented. Most regulatory analysts on both the left and the right agree that
this would also have the happy consequences of decreasing regulatory
costs, increasing regulatory efficiency, and decreasing the burden on regu-lators.
In addition, a Congress not skewed toward regulation by delegation

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would rediscover practical reasons for allowing many matters to be left
to state and local regulators.

Conclusion
Forcing Congress to vote on each and every administrative regulation
that establishes a rule of private conduct would prove the most revolution-ary
change in government since the Civil War— not because the idea is
particularly radical, but because we are today a nation governed, not by
elected officials, but by unelected bureaucrats. The central political issues
of the 108th Congress— the complex and heavy-handed array of regula-tions
that entangle virtually all manner of private conduct, the perceived
inability of elections to affect the direction of government, the disturbing
political power of special interests, the lack of popular respect for the
law, the sometimes tyrannical and self-aggrandizing exercise of power by
government, and populist resentment of an increasingly unaccountable
political elite— are but symptoms of a disease largely caused by delegation.
'' No regulation without representation! '' would be a fitting battle cry
for the 108th Congress if it is truly interested in fundamental reform of
government. It is a standard that both the left and the right could comfort-ably
rally around, given that many prominent constitutional scholars, policy
analysts, and journalists— from Nadine Strossen, president of the American
Civil Liberties Union, to former judge Robert Bork— have expressed
support for the end of delegation.
Some observers complain that voting on all regulations would over-whelm
Congress. Certainly, federal agencies do issue thousands of regula-tions
every year. However, the flow of new rules is no argument against
congressional responsibility. Congress could bundle relatively minor regu-lations
together and vote on the whole package. Both houses could then
give major regulations— those that impose costs of more than $100 million
annually— close scrutiny.
Of course, forcing Congress to take full and direct responsibility for
the law would not prove a panacea. The legislature, after all, has shown
itself to be fully capable of violating individual rights, subsidizing special
interests, writing complex and virtually indecipherable law, and generally
making a hash of things. But delegation has helped to make such phenom-ena,
not the exception, but the rule of modern government. No more
crucial— and potentially popular— reform awaits the attention of the
108th Congress.

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Suggested Readings
Anthony, Robert. '' Unlegislative Compulson: How Federal Agency Guidelines Threaten Your Liberty. '' Cato Policy Analysis no. 312, August 11, 1998.

Breyer, Stephen. '' The Legislative Veto after Chadha. '' Thomas F. Ryan lecture. George-town Law Journal 72 (1984).
DeLong, James. Out of Bounds— Out of Control: Regulatory Enforcement at the EPA. Washington: Cato Institute, 2002.
Lawson, Gary. '' Delegation and the Constitution. '' Regulation 22, no. 2 (1999). Lowi, Theodore. The End of Liberalism: The Second Republic of the United States. 2d
ed. New York: W. W. Norton, 1979. Schoenbrod, David. Power without Responsibility: How Congress Abuses the People
through Delegation. New Haven, Conn.: Yale University Press, 1993.
Smith, Nick. '' Restoration of Congressional Authority and Responsibility over the Regu-latory Process. '' Harvard Journal on Legislation 33 (1996).

—Prepared by David Schoenbrod and Jerry Taylor

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9. Term Limits and the Need for a Citizen Legislature
Each member of Congress should
pledge to be a citizen legislator by limiting his or her time in
office to no more than three additional terms in the House of Representatives and no more than two additional terms in the

Senate and keep that pledge.

Americans are dissatisfied with Washington. For more than a generation,
polls have found a steady decline in the proportion of citizens who believe
Washington can be trusted to do what is right. Most people believe that
politics has nothing to do with their lives or that it is run for the benefit
of a few. Not surprisingly, a poll by Princeton Survey Research Associates
revealed that only 12 percent of the electorate have a great deal of confi-dence
in Congress as an institution.
Americans can reclaim their democracy. They can have a government
that is accountable to their will, a government for and by the people. They
can have a citizen legislature in Washington and in every statehouse in
America. Citizen legislators will make laws that make sense to ordinary
people and revive our national faith in representative government.
How can we have citizen legislatures? The power of office has virtually
put incumbents beyond the reach of the people. Restoring democracy
requires term limits for incumbents. All members of Congress should
pledge to limit their stay on Capitol Hill.

The People Support Term Limits
Members of Congress should listen to the good sense of the American
people on this issue. For years, national polls have found that three of
four voters support term limits. In a June 2000 poll by Diversified Research,

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Inc., 69 percent of Californians said that they still approved of the original
(1990) term limits initiative. In March 2002, a ballot initiative designed
to weaken California's term limits law was soundly defeated at the polls.
According to Paul Jacob, executive director of U. S. Term Limits, '' If the
people of this country got a chance tomorrow to vote on term limits for
members of Congress, you would see them rush to the nearest polling
place. ''
Indeed, the people have spoken loudly and clearly on term limits in
virtually all of the states that provide an opportunity to do so. Twenty-two
states representing nearly half of Congress had term limited their
delegations by 1994. The great majority of those states had opted to limit
their representatives to three terms, and all of those states had limited
their senators to two terms. Only 2 of the 22 states chose six terms for
the House.
In November 2000, Nebraska became the 19th state to limit the terms
of state legislators. By 2001, term limits had affected more than 700
legislative seats. The first 19 states passed term limits by an average of
67 percent of the vote (Table 9.1). Moreover, every effort by incumbents
to roll back term limits has been defeated by voters.
Despite the overwhelming support of the American people for term
limits, the incumbent establishment has made it extremely difficult for
the will of the people to be translated into law. When the Supreme Court
declared that states could not limit the terms of their representatives
in Washington, advocates of term limits petitioned the new Republican
Congress— which had put term limits in its Contract with America—
to pass a constitutional amendment to impose nationwide term limits.
Incumbent members of Congress had an obvious conflict of interest on
the issue, and they did not pass an amendment.

Take the Pledge
Americans believe term limits will make Congress a citizen legislature.
But a Congress controlled by career politicians will never pass a term
limits amendment. So the term limits movement, one of the most successful
grassroots political efforts in U. S. history, has set out to change Congress
from a bastion of careerism into a citizen legislature the best way it can—
district by district.
George Washington set the standard. Perhaps the most popular and
powerful American in history, Washington nevertheless stepped down
after two terms as president. He handed back to the people the immense

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Term Limits and the Need for a Citizen Legislature
Table 9.1 State Legislative Term Limits
Making a Difference One State at a Time
Limited: Terms Year Law Percentage
State Year (total years allowed) Takes Effect Voting Yes

Arizona 1992 House: 4 terms (8 years) House: 2000
Senate: 4 terms (8 years) Senate: 2000 74%

Arkansas 1992 House: 3 terms (6 years) House: 1998
Senate: 2 terms (8 years) Senate: 2000 60%

California 1990 Assembly: 3 terms (6 years) House: 1996
Senate: 2 terms (8 years) Senate: 1998 52%

Colorado 1990 House: 4 terms (8 years) House: 1998
Senate: 2 terms (8 years) Senate: 1998 71%

Florida 1992 House: 4 terms (8 years) House: 2000
Senate: 2 terms (8 years) Senate: 2000 77%

Louisiana** 1995 House: 3 terms (12 years) House: 2007
Senate: 3 terms (12 years) Senate: 2007 76%

Maine* 1993 House: 4 terms (8 years) House: 1996
Senate: 4 terms (8 years) Senate: 1996 68%

Michigan 1992 House: 3 terms (6 years) House: 1998
Senate: 2 terms (8 years) Senate: 2002 59%

Missouri 1992 House: 4 terms (8 years) House: 2002
Senate: 2 terms (8 years) Senate: 2002 75%

Montana 1992 House: 4 terms (8 years) House: 2000
Senate: 2 terms (8 years) Senate: 2000 67%

Nebraska 2000 Unicameral: 2 terms
(8 years) 2008 56%

Nevada 1994 Assembly: 6 terms (12 years) House: 2006
Senate: 3 terms (12 years) Senate: 2006 70%

Ohio 1992 House: 4 terms (8 years) House: 2000
Senate: 2 terms (8 years) Senate: 2000 66%

Oklahoma 1990 12-year combined total
for both houses 2002 67%

South Dakota 1992 House: 4 terms (8 years) House: 2000
Senate: 2 terms (8 years) Senate: 2000 64%

(continued)

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Table 9.1 (continued)

Limited: Terms Year Law Percentage
State Year (total years allowed) Takes Effect Voting Yes

Utah** 1994 House: 6 terms (12 years) House: 2006
Senate: 3 terms (12 years) Senate: 2006 n/ a

Wyoming*** 1992 House: 6 terms (12 years) House: 2004
Senate: 3 terms (12 years) Senate: 2004 77%

Average Percentage of Vote 67%
SOURCE: U. S. Term Limits, www. termlimits. org/ Current Info/ State TL/ Index. html.
Note: Italics indicate states limited by statute. All others are limited by state constitutional amendment.
*Maine's law is retroactive.
** Louisiana's and Utah's laws were passed by the state legislatures.
*** Wyoming's law was originally passed by initiative in 1994. The legislature amended the law to allow
members of the House to serve 12 years. A referendum to return to the original 6-year House limits garnered
54% of the vote but failed to get 50% plus 1 of all voters to veto the legislature.

power and trust they had given to him— dramatically making the case
that no one should monopolize a seat of power.
The tradition of a two-term limit for the president lasted uninterrupted
for almost a century and a half. When Franklin D. Roosevelt broke the
tradition, Congress moved to codify the term limit by proposing the
Twenty-Second Amendment to the Constitution, which the states ratified
in just 12 short months. The presidential term limit remains tremen-dously
popular.
We can establish such a tradition in Congress. Since 1994, several
dozen new faces have entered the halls of Congress serious about changing
the culture of Washington and after pledging to limit themselves to three
terms in the House or two terms in the Senate. Those pledges have
resonated with the voters who understand that a lawmaker's career interests
do not always coincide with the interests of the people back home. A poll
by Fabrizio-McLaughlin and Associates asked, '' Would you be more
likely to vote for a candidate who pledges to serve no more than three
terms in the House, or a candidate who refuses to self limit? '' Seventy-two
percent of respondents said they would be more likely to vote for
the self-limiter.
Self-limiters serve their constituents well. Rep. Matt Salmon of Arizona,
in reaffirming the pledge he made in 1994 to serve only three terms in
the House, said:

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Term Limits and the Need for a Citizen Legislature
The independence that comes from limiting my terms has enabled me to
vote against the bloated budget deal of 1997, and to challenge my own
party's leadership when I feel it would be best for the people of Arizona.
Instead of looking ahead to my own career in the House, I am able to put
my Arizona constituents first.

Self-limiters also resist Washington's culture of spending. They are
able to vote for spending limits because of the freedom of conscience
afforded by their term limit pledge. The self-limiters' collective experience
suggests that self-limitation helps to discipline a politician's legislative
behavior. Self-limiters exercise greater independence than their non-term-limited
peers and appear less fearful of incurring the wrath of either party
power brokers or special interest groups. During the past several years,
many self-limiters stood out as the most fiscally conservative members
of Congress.
Not surprisingly, self-limiters have spearheaded opposition to pork-barrel
spending and committee budget increases. They have demanded
honest accounting and pioneered the political push for real reform of
flawed government programs such as Social Security and Medicare— so
often used by professional politicians as political footballs.

Term Limits on Committee Chairs
Most laws begin life in congressional committees led by powerful chairs
who act as gatekeepers for floor votes on legislation. For decades, the
average tenure of a committee chair was about 20 years. The seniority
system allowed entrenched politicians from the least competitive districts
to wield power over other members, not on the basis of merit, but because
of their longevity. In the past, the only way to lose a chair was by death,
resignation, retirement, or electoral defeat.
The seniority system increased the level of pork-barrel spending and
blocked much needed change. For example, in a Cato Institute Policy
Analysis, '' Term Limits and the Republican Congress, '' Aaron Steelman
examined 31 key tax and spending proposals in the 104th and 105th
Congresses. He found that junior Republicans in Congress were '' more
than twice as likely to vote for spending or tax cuts as were senior
Republicans. '' Steelman pointed out that '' veteran Republican legislators
have proven they are comfortable with big government. It is unlikely that
fundamental change in Washington will occur while they continue to
control legislative debate and action. ''

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For those reasons, in 1995 the Speaker of the House decided to limit
the terms of House committee chairs to three terms, totaling six years.
Those limits are an important dent in a corrupt system. Term limits on
those powerful positions make the House more responsible and open the
way for newer members to influence policy. In 1996, the Republican caucus
imposed six-year limits on GOP committee chairs. As a consequence, some
changes have occurred on the traditional Senate leadership career path.
But the pace of change should be quickened, not slowed. The 108th
Congress should retain term limits on committee chairs in the House and
extend them to Senate committee chairs.

Why We Need a Citizen Legislature
Why are term limits so popular? Americans believe that career legislators
and professional politicians have created a gaping chasm between them-selves
and their government. For democracy to work, it must be representa-tive—
a government of, by, and for the people. Democracy in America
requires a citizen legislature.
To be a citizen legislator, a member of Congress should not be far
removed fromthe private sector. The members of the House of Representa-tives,
in particular, should be close to the people they represent. As
Rhode Island's Roger Sherman wrote at the time of our nation's founding:
'' Representatives ought to return home and mix with the people. By
remaining at the seat of government, they would acquire the habits of the
place, which might differ from those of their constituents. '' In the era of
year-round legislative sessions, the only way to achieve that objective is
through term limits.
What should be the limit on terms? Some observers have proposed as
many as six terms (or 12 years) for the House. Three terms for the House
is better for several reasons. America is best served by a Congress whose
members are there out of a sense of civic duty but who would rather live
their lives in the private sector, holding productive jobs in civil society,
far removed from government and politics. Such individuals might be
willing to spend two, four, or even six years in Washington, but not if
the legislative agenda is being set by others who have gained their authority
through seniority. Twelve-year '' limits, '' which amount to a mini-career,
do little to remove this major obstacle to a more diverse and representative
group of Americans seeking office.
We have solid evidence that short, three-term limits enhance the demo-cratic
process: Proposition 140 in California, which was passed by the

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Term Limits and the Need for a Citizen Legislature
voters there in 1990 and limited the state assembly to three two-year
terms. The 1992 assembly elections witnessed a sharp increase in the
number of citizens seeking office, with a remarkable 27 freshmen elected
to the 80-member lower house of the California legislature. In an article
on that freshman class, the Los Angeles Times said:

Among the things making the group unusual is that most of them are true
outsiders. For the first time in years, the freshman class does not include
an abundance of former legislative aides who moved up the ladder to
become members.... Among the 27 are a former U. S. Air Force fighter
pilot, a former sheriff-coroner, a paralegal, a retired teacher, a video store
owner, a businesswoman-homemaker, a children's advocate, an interior
designer, a retired sheriff's lieutenant, and a number of businessmen, law-yers,
and former city council members.

A scholarly study of the California legislature by Mark Petracca of the
University of California at Irvine found that the strict term limits Califor-nians
passed in 1990 had had the following consequences:

Turnover in both legislative chambers had increased markedly.
The number of incumbents seeking reelection had dropped sharply.
The percentage of elections in which incumbents won reelection had
dropped significantly.
The number of women in both houses had increased.
The number of uncontested races had declined.
The number of candidates seeking office in both chambers had
increased.
The winning margin of incumbents had declined.

While perhaps not attractive to people seeking to be career politicians, all
those developments please the great majority of Americans who favor a
return to citizen legislatures.
Similarly, a three-term limit for the U. S. House of Representatives will
return control of the House— not just through voting, but also through
participation— to the people. We must make the possibility of serving in
Congress a more attractive option for millions more Americans.
A second reason for shorter term limits is that the longer one is in
Congress, the more one is exposed to and influenced by the '' culture of
ruling'' that permeates life inside the Beltway. Groups like the National
Taxpayers Union have shown that the longer people serve in Congress,
the bigger spenders, taxers, and regulators they become. That is just as
true of conservatives as it is of liberals. It is also understandable. Members

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of Congress are surrounded at work and socially by people who spend
other people's money and regulate their lives. It is the unusual individual—
although such people do exist— who is not subtly but surely affected by
that culture.
Three terms rather than six would better serve as an antidote to the
growing '' professionalization'' of the legislative process. As Mark Petracca
has written:

Whereas representative government aspires to maintain a proximity of
sympathy and interests between representative and represented, profession-alism
creates authority, autonomy, and hierarchy, distancing the expert
from the client. Though this distance may be necessary and functional for
lawyers, nurses, physicians, accountants, and social scientists, the qualities
and characteristics associated with being a '' professional'' legislator run
counter to the supposed goals of a representative democracy. Professional-ism
encourages an independence of ambition, judgment, and behavior that
is squarely at odds with the inherently dependent nature of representative
government.

Finally, shorter limits for the House would enhance the competitiveness
of elections and, as previously noted, increase the number and diversity
of Americans choosing to run for Congress. The most competitive races
(and the ones that bring out the largest number of primary candidates)
are for open seats.
At least a third of all House seats would be open each election under
three-term limits, and it is probable that as many as half would not feature
an incumbent seeking reelection. We also know from past experience that
women and minorities have greater electoral success in races for open seats.
The members of a true citizen legislature literally view their time in
office as a leave of absence from their real careers. Their larger ambitions
lie in the private sector and not in expanding the ambit of government.
Citizen legislators are true public servants, not the new masters of the
political class.

State Legislative Term Limits Are Working
Term limits are taking effect all over the country in state legislatures—
and they are working. Term limits were intended to end careerism among
legislators. Scholarly research on the effects of term limits suggests that
they have substantially attained that goal. Congress should take note:

Term limits remain popular with state electorates long after their
introduction.

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Term Limits and the Need for a Citizen Legislature
Term limits stimulate electoral competition in state legislative
elections.
Term limits enable nontraditional candidates to run for seats in state
legislatures. Female, Hispanic, and Asian candidates find it easier to
enter term-limited legislatures than non-term-limited bodies.
Term limits weaken seniority systems in state legislatures.
Term limits have not strengthened interest groups, state bureaucracies,
or legislative staffs as predicted by critics of term limits.
Term limits foster public policies that serve to halt, or at least reduce,
the growth in the size and scope of government. Term-limited politi-cians
demonstrate greater respect than their non-term-limited col-leagues
for taxpayers' money.

Clearly, term limits are working. Congress can't hold out forever.

Conclusion
The term limits movement is not motivated by disdain for the institution
of Congress. It is motivated by a sincere desire on the part of the American
people to regain control of the most representative part of the federal
government. Resistance to this movement on the part of elected federal
legislators only underscores the image of an Imperial Congress.
Those who sign the Term Limits Declaration are on the record as citizen
legislators. Increasingly, that pledge will make the difference in winning
competitive seats in Congress. The seniority system, rotten at its core,
cannot survive a Congress where more and more members are under term
limits. Nor can wrong-headed policies and wasteful spending projects
survive a Congress with so many citizen legislators.
Term limits remain an issue to be reckoned with. Public support is
even stronger and deeper for candidates making personal term limits
commitments than for a term limits amendment. Voters seek to replace
career politicians with dedicated citizen legislators as the best solution to
what ails us in Washington. Political leaders who understand the problems
created by a permanent ruling elite in Washington— or who simply want
to abide by the overwhelming will of their constituents— will pledge to
serve no more than three additional terms in the House or two in the Senate.

Suggested Readings
Crane, Edward H., and Roger Pilon, eds. The Politics and Law of Term Limits. Washing-ton: Cato Institute, 1994.

Bandow, Doug. '' The Political Revolution That Wasn't: Why Term Limits Are Needed Now More Than Ever. '' Cato Institute Policy Analysis no. 259, September 5, 1996.

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Basham, Patrick, '' Assessing the Term Limits Experiment: California and Beyond, '' Cato Institute Policy Analysis no. 413, August 31, 2001.
Carey, John M., Richard G. Niemi, and Lynda W. Powell. Term Limits in the State Legislatures. Ann Arbor: University of Michigan Press, 2000.
Elhauge, Einer. '' What Term Limits Do That Ordinary Voting Cannot. '' Cato Institute Policy Analysis no. 328, December 16, 1998.
O'Keefe, Eric. Who Rules America? The People vs. the Political Class. Spring Green, Wis.: Citizen Government Foundation, 1999.
O'Keefe, Eric, and Aaron Steelman. '' The End of Representation: How Congress Stifles Electoral Competition. '' Cato Institute Policy Analysis no. 279, August 20, 1997.
Owings, Stephanie, and Rainald Borck. '' Legislative Professionalism and Government Spending: Do Citizen Legislators Really Spend Less? '' Public Finance Review 23
(2000). Steelman, Aaron. '' Term Limits and the Republican Congress. '' Cato Institute Briefing
Paper no. 41, October 27, 1998.
—Prepared by Edward H. Crane and Patrick Basham

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10. Campaign Finance, Corruption, and the Oath of Office
Congress should
repeal the Bipartisan Campaign Reform Act of 2002,
reject proposals to mandate electoral advertising paid for by
the owners of the television networks, reform the Federal Election Commission to bring it under the

rule of law, and deregulate the current campaign finance system.

The 107th Congress passed the most sweeping new restrictions on
campaign finance in a generation, the Bipartisan Campaign Reform Act
of 2002, marking them to take effect at the conclusion of the 2002 elections.
During much of the 108th Congress, the new law, challenged the day it was
signed, will be working its way through the judicial system. Meanwhile,
proponents of even more restrictions will be urging Congress to mandate
'' free'' political advertising for candidates and to replace the current
Federal Election Commission with a new agency modeled on the Federal
Bureau of Investigation.
The new law and the proposed changes in current law reflect the
mistaken assumptions of the so-called reformers. We begin by exposing
those flawed assumptions about corruption and American politics.

Freedom and Corruption
We begin, as we must, with the Constitution, which prohibits the govern-ment
from abridging freedom of speech. In the seminal case of Buckley
v. Valeo (1976), the Supreme Court recognized that restrictions on political
spending are restrictions on political speech:

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A restriction on the amount of money a person or group can spend on
political communication during a campaign necessarily reduces the quantity
of expression by restricting the number of issues discussed, the depth of
their exploration, and the size of the audience reached. This is because
virtually every means of communicating ideas in today's mass society
requires the expenditure of money.

Note that the Court did not say, '' Money equals speech. '' It said that
money is necessarily tied to speech in a society in which candidates
communicate to the voters through the mass media. Restricting political
spending thus restricts political speech just as surely as throttling the
speaker on the proverbial street corner soapbox limits speech. Both spend-ing
ceilings and strangulation shut off the medium of political expression
and thus the protected speech itself.
Unfortunately, contributions to campaigns do not enjoy the same consti-tutional
protections. In 1974, Congress imposed limits on campaign contri-butions
for the purpose of preventing '' corruption or the appearance of
corruption. '' Until recently those ceilings have governed American elec-tions
without being adjusted for inflation. BCRA raised the limits on
'' hard money'' contributions, but their real value remains well below the
ceilings enacted in 1974.
The lower protection provided for contributions makes little sense.
Political candidates spend money to obtain the means (often television
time) to get their messages across to voters; such spending, as noted
earlier, is properly protected speech. But contributors give to candidates
for the same reason— to enable candidates to obtain the means to advance
their views to the electorate. Thus, limiting contributions inevitably
'' reduces the quantity of expression by restricting the number of issues
discussed, the depth of their exploration, and the size of the audience
reached'' by the candidate.
What about corruption? Campaign finance reformers claim to be driven
by the desire to end corruption or its appearance. But what is the nature
of the corruption that concerns reformers? And just how much corruption
is there to be rooted out?
Clean government requires that public office not be sold— not for
money, not for personal gain, not even for elective office. Thus, money
is not the real issue, even if cases of corruption often involve money. The
issue, rather, is trust. Public office is a trust, solemnized by the oath of
office, through which officeholders swear to support the Constitution. That
oath obligates public officials to serve the general good, the good of all,

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Campaign Finance, Corruption, and the Oath of Office
as spelled out in the Constitution, a document intended to serve all the
people. When an officeholder sells his vote to a special interest for any
narrower reason, he appears, at least, to be breaching the trust he assumed
when he swore to support the Constitution. His oath entails an obligation
to avoid even the appearance of doing so.
As a practical matter, however, corruption requires us to distinguish
between appearance and reality. A member of Congress who votes for a
bill in exchange for some payoff is said to be corrupt. But if that same
member votes the same way because he believes he is serving the general
good, he is not thought to be corrupt. The same act may or may not be
corrupt depending on the reasons behind it. Yet reasons or motives, being
subjective, are notoriously difficult for others to determine, especially
when they are mixed. What are we to say when a member accepts a
campaign contribution from a special interest, votes as the interest wishes,
but does so because he genuinely believes he is voting for the general
good? After all, a particular good and the general good may coincide.
Until the federal law of 1974, we recognized the difficulties of discerning
corruption and chose to enact only limited rules addressing fairly clear
cases of favors granted for cash, what the Supreme Court has called quid
pro quo corruption. Judged by that standard, our legal system has found
rather less corruption in politics than the reformers would have us believe
exists. Social scientists also report scant evidence of corruption of the
legislature. One proponent of public financing concludes, '' Various studies
have failed to produce the sort of evidence of a strong correlation between
campaign donations and a representative's public actions needed to back
up suspicions of general quid pro quo understandings. '' Thus, the basic
premise of the campaign finance reform movement— that money corrupts
and more money corrupts even more— comes up short on the evidence.

Congressional Conflicts of Interest
The intense interest in the campaign finance regulation shown by mem-bers
of Congress— substantially greater than the interest shown by most
Americans— should hardly surprise. For no other issue today affects mem-bers
more directly— not taxes, not spending, not war or peace. Indeed,
campaign finance law bears directly on the ability of members to remain
in office. All the talk of good government aside, for many it is a matter
of job security. Thus, the high correlation between past campaign finance
legislation and reelection rates is no accident, for the temptation to write
the law to favor incumbents is palpable and inescapable.

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There, in stark relief, is the conflict of interest that every member of Congress faces when considering proposals to reform our campaign finance
law. Campaign finance regulation brings every member face to face with the problem of self-dealing— not only the self-dealing the regulations are
supposed to prevent but, more immediately, the self-dealing that is inherent in writing regulations not simply for oneself but for those who would
challenge one's power to write such regulations in the first place. Figure 10.1 graphically suggests the electoral consequences of having
the winners write the rules for financing congressional campaigns. Only one congressional election since 1974 has seen an incumbent
reelection rate lower than 90 percent. Even the '' revolution'' of 1994, which changed control of the House of Representatives, saw 90 percent
of incumbents reelected. The last three elections have seen reelection rates of over 98 percent.
Campaign finance restrictions may not fully explain the lack of competi-tion in American politics. But those restrictions encumber entry into the
political market and thus discourage credible challenges to incumbents. A challenger needs large sums to mount a campaign for public office,
especially at the federal level. He needs big money to overcome the manifest advantages of incumbency— name recognition, the power of

Figure 10.1 Reelection Rates of Congressional Incumbents, 1976– 2000

0%
10%

20%
30%
40%
50%
60%
70%
80%
90%

100%

1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000
Reelection
Rate

SOURCES: Norman J. Ornstein, Thomas E. Mann, and Michael J. Malbin, Vital Statistics on Congress: 1999– 2000
(Washington: AEI Press, 2000), p. 57; and Cato calculations.

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office, the franking privilege, a knowledgeable staff, campaign experience,
and, perhaps most important, easy access to the media. Yet current law
limits the supply of campaign dollars: in any given election cycle, an
individual can give no more than $1, 000 to a candidate, and a political
party or a political action committee (PAC) can give no more than $5,000.
BCRA did raise the limit for individuals to $2,000. But again that remains
far less in real dollars than was allowed by the original 1974 law.
In a free and open political system, challengers would be able to do
what they used to be able to do— find a few '' deep pockets'' to get
themselves started, then build support from there, unrestrained by any
restrictions save for the traditional prohibitions on vote selling and vote
buying. That is how liberal Eugene McCarthy challenged an incumbent
president in 1968. It is how conservative James Buckley challenged an
incumbent senator and a major party challenger in 1970. Today, neither
would be able to do that— thanks to the '' reforms'' of 1974. Both would
incur massive compliance costs, including the risk of future litigation and
prosecution. Both would be discouraged, in all likelihood, from mounting
a challenge. That is not healthy for democracy.
BCRA makes things worse. By banning '' soft money''— unregulated
contributions given to the political parties— Congress has complicated
the lives of challengers. Parties have traditionally directed soft money
contributions to races in which challengers might have a chance. A Cato
Institute study found, not surprisingly, that state restrictions on giving to
parties (regulations similar to BCRA's soft money ban) reduce the overall
competitiveness of elections. At the same time, BCRA does not affect
donations by PACs, most of which go to incumbents. BCRA does loosen
federal contribution limits for incumbents running against self-funding
individuals. Apparently, contributions over $2,000 corrupt politics— unless
an incumbent faces a self-funding millionaire. That strains credulity. In
the end, BCRA seems little more than an incumbent protection law, a
monument to the dangers of self-dealing.
But conflict of interest does not end with the ban on soft money. For
several years now, interest groups have underwritten aggressive issue ads
criticizing members of Congress during their reelection campaigns. To be
sure, some of those ads have been unfair or inaccurate, but the Constitution
protects the right to be both. With the passage of BCRA, however, Congress
decided to regulate such issue advertising by redefining it as '' express
advocacy'' and hence as subject to federal election law, including contribu-tion
limits. In effect, Congress has decided to complicate the lives of its

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critics. Making issue ads subject to election law means the next election
will have fewer issue ads, less debate of public matters, and less criticism
of elected officials. Many experts think the Supreme Court will strike
down those restrictions on political speech. Congress might save the Court
the trouble by reconsidering its regulations.

Taxpayer Financing of Campaigns
Many people have argued that our system could preclude corruption
or its appearance by prohibiting all private contributions, whether desig-nated
as campaign contributions or not, and moving to a system of taxpayer-financed
campaigns. As a practical matter, how would a system of public
campaign financing work? Would incumbents and challengers receive
equal amounts of money? Given the extraordinary advantages of incum-bency
noted above, that would hardly level the playing field or respect
the democratic process. Then what is the right ratio? When Congress last
seriously debated taxpayer financing in 1997, the funding levels proposed
were not adequate. Law professor Bradley Smith, now a federal election
commissioner, assessed the 1997 proposal:

Every challenger spending less than the proposed limit in Senate campaigns
had lost in each of the 1994 and 1996 elections, whereas every incumbent
spending less than the limit had won. Similarly, only 3 percent of challengers
spending less than the proposed limit for House races had won in 1996,
whereas 40 percent of challengers spending more than that limit had won.

Taxpayer financing of congressional campaigns would only exacerbate
the conflict of interest faced by every member in writing campaign finance
regulations.
Proponents of campaign finance reform will likely propose that the
108th Congress enact mandatory political advertising paid for by the
owners of the television networks. Over the years, such proposals have
taken several forms; the latest would make the networks '' donate'' air
time, which would then be given to the political parties in the form of
vouchers. Thus, the shareholders of the companies that own the networks
effectively would be taxed to pay for this advertising. Proponents justify
such taxes as a fair price for the use of public property, the airwaves. In
fact, economist Thomas Hazlett has shown that government's claim to
'' ownership'' of the airwaves amounts to nothing more than imposing
political control over the media of radio and television. Even if we grant
for purposes of argument that the airwaves belong to the public, we might

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ask why the broadcasters have to pay for political advertising. After all,
trucking companies pay taxes for the upkeep of roads, but they are not
required to haul freight for members of Congress.

The Federal Election Commission
Not content to have passed BCRA, reformers now argue that the Federal
Election Commission has failed to enforce the old law, that the FEC will
undermine BCRA, and that Congress should replace the FEC with a
stronger agency— one with a law enforcement mission, a kind of Federal
Bureau of Investigation for elections and political campaigns.
The juxtaposition of the FBI and political campaigns should give imme-diate
pause. Do we want a federal law enforcement agency investigating
the campaigns of members of Congress and those who challenge them
for office? That is an invitation for political or partisan abuse. The late,
unlamented Independent Counsel statute comes immediately to mind. Do
members of Congress really want every detail of their last campaigns
subject to investigation by an agency controlled either by their political
enemies or the reformers themselves?
This does not mean the FEC should continue to exist. Congress should
get rid of the FEC as part of a broader deregulation of political speech
and electoral campaigns. Absent that, Congress should move to reform
the FEC to make its procedures comport with the rule of law.
Defendants before the FEC have few due process safeguards. When a
complaint comes before the commission, its general counsel makes the
case against the alleged lawbreaker, who has no right to appear before
the commission. The general counsel provides the commission with a
report that summarizes and criticizes the legal arguments of the accused
and is present to answer questions from the commissioners. Those reports
are not given to the accused even though they may contain new arguments
or information.
The FEC also sends out discovery subpoenas on the recommendation
of its general counsel. To contest a subpoena, a citizen must appeal to
the FEC itself, which turns the matter over to its Office of General Counsel.
Need we mention that the commission rarely grants motions to quash its
own subpoenas? Beyond that, the commission often will not provide the
accused with documents that might aid the defendant. How could all of
this accord with the rule of law?
The FEC has hardly been a pussycat in enforcing federal restrictions
on campaign finance. Like most burgeoning bureaucratic empires, it has

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continually tried to extend its regulatory authority. Consider issue advo-cacy.
In Buckley v. Valeo the Supreme Court said that the government
could regulate only those ads that expressly advocated the election or
defeat of a candidate. The First Amendment protects all other advocacy
about political issues.
The FEC has tried through most of its history to expand the meaning
of '' express advocacy'' beyond explicit words advocating the election or
defeat of a candidate. Time and again courts have rejected those grabs
for more power. Thus, in 1997 a federal court struck down an FEC
regulation redefining express advocacy, concluding that the commission's
argument that '' no words of advocacy are necessary to expressly advocate
the election of a candidate'' could not have been offered in good faith.
Far from weak, the FEC's stance on express advocacy has defied judicial
authority and tended toward lawlessness.
The FEC has attacked political speech in other ways as well. Thus, the
government can constitutionally regulate '' political committees. '' Some
people on the FEC argue that spending on issue advocacy, a protected
freedom, makes a group a political committee and thus subjects it to
regulation. In the Orwellian world of the FEC, a constitutional freedom
justifies government coercion. Federal law also regulates electoral activities
if they are coordinated with a candidate. The FEC has always pushed a
broad concept of coordination, the better to bring more political activity
under its control.
Not surprisingly those aggressive FEC attacks have chilled political
activities at the grassroots. After all, individuals and small groups hardly
have the resources to take on a bevy of specialized, zealous lawyers
supported by taxpayers. The FEC represents yet another expansive federal
bureaucracy that should be reined in by Congress in the near term and
eliminated over the long term.

The Real Problem
The laws we now have on the books have made our politics less
competitive by favoring incumbents over challengers, thereby striking at
the very heart of democratic government. The whole point of democracy,
after all, is to enable the people, through the ballot box, to select and
thereby control those who govern. To the extent that campaign finance
law undermines that power, it undermines democracy. Moreover, as we
will now see, to the extent that incumbency is correlated with ever-larger

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government, as studies repeatedly show, our present law exacerbates the
very problem it was meant to reduce— corruption.
We come, then, to the heart of the matter. The focus on campaign
finance reform is a distraction from the real issue, the ultimate source of
the potential for corruption— ubiquitous government. Government today
is a magnet for corruption of every form because it exercises vast powers
over virtually every aspect of life. Given that reality, is it any wonder that
special interests— indeed that every interest but the general— should be
trying either to take advantage of that or to protect themselves from it?
The Founders understood the problem of what they called '' factions. ''
They understood that interests would be tempted to capture government
for their own ends. To reduce that temptation, they wrote a constitution
that granted government only limited powers. They understood that the
best way to reduce corruption is to reduce the opportunities for corruption.
Far from forcing everyone to contribute to campaigns, the Founders
left individuals free to decide the matter for themselves— and free also
to decide how much to contribute. The Founders were mindful of the
potential for real corruption, which they left to traditional legal means to
ferret out. They had a pair of better ideas about how to handle the various
forms of corruption. The first was to rely on competition, to construct a
system that enabled interest to be pitted against interest. There is no
shortage, after all, of special interests. But if you fetter them all, through
some grand regulatory scheme, you stifle the natural forces that are neces-sary
for the health of the system. No individual, no committee of Congress,
no blue-ribbon committee of elders, can fine-tune the system of political
competition. It has to be free to seek its own equilibrium.
The second idea was equally simple, yet equally profound: limit power
in the first place, the better to limit the opportunities for corruption. After
all, if a member of Congress has only limited power to sell, there will be
limited opportunities to buy. That will not eliminate all corruption, of
course, but it will greatly reduce it.
Once we recognize the essential character of corruption— that it is a
breach of the trust that is grounded in the oath of office and, ultimately,
in the Constitution— it becomes clear that the problem is much broader
than is ordinarily thought, even if most such corruption should not be the
subject of regulation and prosecution. In fact, people who try to reduce
the issue to one of money— big money buying access— miss the larger
picture entirely. Money may induce a member to vote for an interest
narrower than the general good— the evidence notwithstanding— but when

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we ratified the Constitution we gave members the opportunity to do so
only to a very limited degree. In fact, it was because we understood, as
Lord Acton would later put it, that power tends to corrupt and absolute
power corrupts absolutely, that we so limited our officials. And we realized
that they would be tempted to breach their oaths of office not only for
money but for power as well— indeed, for the office itself. Thus, it was
not '' special interests'' alone that the Founders feared but the people too:
The Founders wanted to protect against the capture of government by that
ever-changing special interest known as '' the majority. '' For that reason
too— no, especially— they limited government's powers.
The problem with post– New Deal government, with its all but unlimited
power to redistribute and regulate at will, is that it virtually ensures that
members of Congress will act not for the general good, the good of all,
but for some narrower interest. Indeed, the modern state is premised on
'' corruption, '' for when it takes from some to give to others, it does not
serve the general good— and cannot, by definition. Thus, candidates find
themselves selling their office right from the start. When they promise
'' free'' goods and services from government, in exchange for votes, they
are selling their office, plain and simple: '' Vote for me and I'll vote to
give you these goods. '' That is where corruption begins. It begins with
the corruption— or death (the root of '' corruption''}— of the oath of office.
For not remotely does our Constitution authorize the kind of redistributive
state we have in this nation today (see Chapter 3 of this Handbook for a
detailed discussion).
To root out the kind of generalized corruption that is endemic to modern
government, then, one should begin not with more campaign finance
regulations but with the Constitution and the oath of office. The Constitu-tion
establishes a government of delegated, enumerated, and thus limited
powers. It sets forth powers that are, as Madison put it in Federalist no.
45, '' few and defined. '' Thus, it addresses the problem of self-dealing by
limiting the opportunities for self-dealing. If Congress has only limited
power to control citizens' lives— if citizens are otherwise free to plan and
live their own lives— there is little power for members of Congress to
sell, whether for cash, for perquisites, or for votes.
Before they take the solemn oath of office, therefore, members of
Congress should reflect on whether they are swearing to support the
Constitution as written and understood by those who wrote and ratified
it or the Constitution the New Deal Court discovered in 1937. The contrast
between the two could not be greater. One was written for limited govern-106 107
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Campaign Finance, Corruption, and the Oath of Office
ment; the other was crafted for potentially unlimited government. As that
potential has materialized, the opportunities for corruption of every kind
have become ever more manifest, as members know only too well. Indeed,
to appreciate the point, we need only notice the corruption that is endemic to
totalitarian systems— the ultimate redistributive states— despite draconian
sanctions against it. It goes with ubiquitous government.

Conclusion
In most cases, therefore, the answer to the corruption that is thought
to attend our system of private campaign financing is not more campaign
finance regulations but fewer such regulations. The limits on campaign
contributions, in particular, should be removed, for they are the source of
many of our present problems. More generally, however, the opportunities
for corruption that were so expanded when we abandoned constitutionally
limited government need to be radically reduced. Members of Congress can
do that by taking the Constitution and their oaths of office more seriously.

Suggested Readings
Basham, Patrick. '' It's the Spending, Stupid! Understanding Campaign Finance in the Big Government Era. '' Cato Institute Briefing Paper no. 64, July 18, 2001.

BeVier, Lillian R. '' Campaign Finance 'Reform' Proposals: A First Amendment Analy-sis. '' Cato Institute Policy Analysis no. 282, September 4, 1997.
Hazlett, Thomas W. '' The Rationality of U. S. Regulation of the Broadcast Spectrum. '' Journal of Law and Economics 33 (April 1990): 133– 75.
LaRaja, Ray, and Thad Kousser. '' The Effect of Campaign Finance Laws on Electoral Competition: Evidence from the States. '' Cato Institute Policy Analysis no. 426,
February 14, 2002. Pilon, Roger. '' Freedom, Responsibility, and the Constitution: On Recovering Our Found-ing
Principles. '' Notre Dame Law Review 68 (1993). Smith, Bradley A. '' Campaign Finance Regulation: Faulty Assumptions and Undemo-cratic
Consequences. '' Cato Institute Policy Analysis no. 238, September 13, 1995. . Unfree Speech: The Folly of Campaign Finance Reform. Princeton, N. J.:
Princeton University Press, 2001. Smith, Bradley A., and Stephen M. Hoersting. '' A Toothless Anaconda: Innovation,
Impotence and Overenforcement at the Federal Election Commission. '' Election Law Journal 1 (2002): 145– 71.

—Prepared by Roger Pilon and John Samples

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11. Reclaiming the War Power
Congress should
insist that U. S. armed forces not be deployed to areas where
hostilities are likely or imminent unless and until both houses of Congress have approved such action,

defund any such deployment that lacks the prior approval of
Congress, insist that hostilities not be initiated by the executive branch

unless and until Congress has authorized such action, and oppose any effort to reshape national security doctrine in a
manner that denies congressional supremacy over the war power.

The horror of September 11, 2001, changed many things: it ended a
certain American innocence and sense of invincibility; it taught Americans
that those who hate us could strike at us on our own soil; and it provided
ample justification for defending ourselves by waging war on al-Qaeda
and its nation-state allies. It did not, however, amend the Constitution.
Indeed, President Bush has repeatedly made it clear that the fight against
terrorists is a fight to maintain our free institutions and the way of life
they sustain. Six days after the destruction of the World Trade Center and
the attack on the Pentagon, President Bush issued a proclamation in honor
of our Constitution. In it, he declared that '' today, in the face of the
terrorist attacks of September 11, 2001, we must call upon, more than
ever, the Constitutional principles that make our country great. ''
No constitutional principle is more important than the principle that the
war power belongs to Congress. In affairs of state, no more momentous
decision can be made than the decision to go to war. For that reason, in
a democratic republic it is essential that that decision be made by the most
broadly representative body: the legislature. As James Madison put it: '' In

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no part of the constitution is more wisdom to be found, than in the clause
which confides the question of war or peace to the legislature, and not to
the executive department. ''

The Constitutional Framework
Under the Constitution as Madison and the other Framers designed it,
the president lacks the authority to initiate military action. In the Framers'
view, absent prior authorization by Congress, the president's war powers
were purely reactive; if the territory of the United States or U. S. forces
were attacked, the president could respond. But he could not undertake
aggressive actions without prior congressional authorization.
On August 17, 1787, the Constitutional Convention considered the
recommendation of the Committee of Detail that the legislature should
have sole power '' to make war. '' Only one delegate, South Carolina's
Pierce Butler, spoke in favor of granting that authority to the executive.
As Madison's notes from the convention tell us, Butler's proposal was
not warmly received. '' Mr. [Elbridge] Gerry [of Massachusetts said he]
never expected to hear in a republic a motion to empower the Executive
alone to declare war. '' For his part, George Mason of Virginia '' was agst.
giving the power of war to the Executive, because not to be trusted with
it. . . . He was for clogging rather than facilitating war. ''
However, the delegates did take seriously the objection, raised by
Charles Pinckney of South Carolina, that the House of Representatives
was too large and unwieldy, and met too infrequently, to supervise all the
details attendant to the conduct of a war. For that reason, '' Mr. M[ adison]
and Mr. Gerry moved to insert 'declare, ' striking out 'make' war; leaving
to the Executive the power to repel sudden attacks. '' Roger Sherman of
Connecticut '' thought [the proposal] stood very well. The Executive shd.
be able to repel and not to commence war. '' The motion passed.
The document that emerged from the convention vests with Congress
the bulk of the powers associated with military action, among them the
powers '' to declare War, [and] grant Letters of Marque and Reprisal. ''
Other important war-making powers include the power '' to raise and
support Armies, but no Appropriation of Money to that Use shall be for
a longer Term than two years, '' and '' to provide for calling forth the
Militia to execute the Laws of the Union, suppress Insurrections and repel
invasions. ''
Significantly, several of the enumerated powers allocated to Congress
involve the decision to initiate military action. Viewed in this light, Con-110 111
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Reclaiming the War Power
gress's power to issue letters of marque and reprisal and its power to call
out the militia inform our understanding of Congress's authority to declare
war. A letter of marque and reprisal is a legal device (long fallen into
disuse) empowering private citizens to take offensive action against citizens
of foreign countries, usually privateers attacking ships. Since military
attacks carried out by American citizens might well be considered acts
of war by foreign powers, and accordingly embroil the United States in
hostilities, the Constitution vests the important decision to grant this power
in the most deliberative body: the legislature. Similarly, Article I, section
8, gives Congress power over the militia, allowing Congress to decide when
domestic unrest has reached the point where military action is required.
In contrast, the authority granted to the executive as commander in
chief of U. S. Armed Forces is entirely supervisory and reactive. The
president commands the Army and Navy, should Congress choose to
create them, and leads them into battle, should Congress choose to declare
war. He commands the militia to suppress rebellions, should the militia
be '' called into the actual Service of the United States. '' In this, as Hamilton
noted in Federalist no. 69, the president acts as no more than the '' first
General'' of the United States. And generals, it should go without saying,
are not empowered to decide with whom we go to war. The Constitution
leaves that decision to Congress. As Constitutional Convention delegate
James Wilson explained to the Pennsylvania ratifying convention: '' This
system will not hurry us into war; it is calculated to guard against it. It
will not be in the power of a single man, or a single body of men, to
involve us in such distress; for the important power in declaring war is
vested in the legislature at large. ''

War with Iraq
Given that constitutional framework, the yearlong debate about war
with Iraq left a lot to be desired. Bush administration officials proceeded
as if no authorization were necessary. Then, in August 2002, the White
House Counsel's Office brazenly insisted that the administration already
had congressional authorization for Gulf War II, in the form of the 1991
joint resolution that authorized the first Persian Gulf War. How could a
resolution passed in 1991 to give a previous president authority to expel
Saddam Hussein from Kuwait authorize another president to take Baghdad
11 years later? A good question, the answer to which was not at all apparent
in the 1991 resolution. Such tendentious stretching of legal authority might
have been appropriate for a trial lawyer zealously pressing his client's

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interest. But for a president sworn to uphold the Constitution, and seeking
legal justification to lead troops into battle, something more than clever
'' lawyering'' was required: new and independent authorization for a
new war.
To its credit, the administration eventually sought, and secured, congres-sional
authorization for use of force against Iraq. It did so despite the fact
that some prominent members of Congress did not want to be burdened
with the vast responsibility the Constitution places on their shoulders.
Senate Minority Leader Trent Lott (R-Miss.), for instance, treated the
Democrats' push for congressional authorization as a partisan annoyance
rather than a solemn constitutional duty, calling it '' a blatant political
move that's not helpful. ''
In some ways, this is nothing new. Throughout the 20th century, congres-sional
control of the war power eroded, not simply as a result of executive
branch aggrandizement, but also because of congressional complicity. The
imperial presidency continues to grow, largely because many legislators
want to duck their responsibility to decide the question of war and peace;
delegate that responsibility to the president; and reserve their right to
criticize him, should military action go badly.
Indeed, even in authorizing the president to use force, Congress
attempted to shirk its responsibility to decide on war. After voting for the
resolution, which gave the president all the authority he needs to attack
Iraq should he choose to do so, prominent members of Congress insisted
they hadn't really voted to use force. That was for the president to decide.
As Senate Majority Leader Tom Daschle (D-S. D.) put it: '' Regardless of
how one may have voted on the resolution last night, I think there is an
overwhelming consensus . . . that while [war] may be necessary, we're
not there yet. ''
It is not for the president to decide whether we are '' there yet. '' The
Constitution leaves that question to Congress. Thus far in the war on
terror, though, Congress has dodged that responsibility, delegating it to
the president. The use-of-force resolution Congress passed immediately
after September 11, 2001, contains an even broader delegation of authority
to the president, authorizing him to make war on '' those nations, organiza-tions,
or persons he determines planned, authorized, committed, or aided
the terrorist attacks that occurred on Sept. 11, 2001, or harbored such
organizations or persons'' [emphasis added]. By its plain terms, the resolu-tion
leaves it to the president to decide when the evidence that a target
nation has cooperated with al-Qaeda justifies war. President Bush has

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Reclaiming the War Power
exercised that authority in good faith so far, declining to argue that the
flimsy evidence of a Saddam– al-Qaeda connection permits him to attack
Iraq under the September 14, 2001, resolution. But if Congress wants a
say on whether we should go to war with Iran, Syria, Lebanon, or any
number of other nations the president may target in the future, it will have
a difficult case to make.
Such broad delegations of legislative authority are constitutionally sus-pect
in the domestic arena; surely they are no less so when it comes to
questions of war and peace. As Madison put it:

Those who are to conduct a war cannot in the nature of things, be proper
or safe judges, whether a war ought to be commenced, continued, or
concluded. They are barred from the latter functions by a great principle
in free government, analogous to that which separates the sword from the
purse, or the power of executing from the power of enacting laws [emphasis
in original].

Preemptive Wars
The administration's new security doctrine, which emphasizes preemp-tive
military strikes, may have equally troubling consequences for congres-sional
control over the war power. Under the new doctrine, rogue nations
in the process of developing nuclear, chemical, or biological weapons will
be vulnerable at any time to sudden attack by the United States. In a
graduation speech given at West Point on June 1, 2002, President Bush
discussed the new strategy: '' The war on terror will not be won on the
defensive, '' he said, '' we must take the battle to the enemy . . . [and]
be ready for preemptive action when necessary. '' The administration
formalized the policy in the National Security Strategy of the United
States of America, released in September. That document does not discuss
whether preemptive wars will be conducted pursuant to congressional
authorization or launched unilaterally as surprise attacks by the president.
In the case of Iraq, which may be the administration's first preemptive
war, the president has not used the doctrine as an excuse to bypass the
constitutional requirement of congressional authorization. But the develop-ment
of the doctrine must be carefully monitored by this Congress and
future ones, lest it become a pretext for unilateral presidential war making.
Granted, the Constitution does not categorically rule out unilateral mili-tary
action by the president. No one would argue that, when missiles are
in the air or enemy troops are landing on our shores, the president is
obliged to call Congress into session before he can respond. As Madison's

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notes from the Constitutional Convention make clear, the constitutional
consensus about war powers was that, though Congress had the power to
'' commence war, '' the president would have '' the power to repel sudden
attacks. '' Within that power, there's some latitude for preemptive strikes.
If a rogue state plans a nerve gas attack on the New York subway system,
the president need not and should not wait until enemy agents are ashore
to order military action.
But if the preemptive strike doctrine morphs into a freestanding justifica-tion
for presidential wars, that will have grave consequences for the
constitutional balance of power. The doctrine applies whether or not any
specific attack on the United States is planned and whether or not U. S.
intelligence can establish with any certainty that the target has weapons
of mass destruction (WMD). It could be used by this administration or
future ones to avoid the inconvenient task of securing authority from
Congress. That would change the president's constitutional power to repel
sudden attacks into a dangerous and unconstitutional power to launch
sudden attacks.
Moreover, such a power would be ripe for abuse. Firm evidence of
WMD capability is very hard to come by— indeed, in the case of Iraq,
Secretary of Defense Donald Rumsfeld doubts that even an intensive, on-the-
ground inspection regime, such as the United Nations operated in Iraq
until December 1998, could determine with any degree of certainty what
Saddam's WMD capabilities are. Justifications for preemptive wars will
necessarily be speculative and susceptible to manipulation. The potential
for politically driven attacks would be enormous.
Public opinion polls indicate that Americans view President Bush as a
person of integrity and reward him with a high level of public trust. But
Bush will not be the last president to wield the broad new powers his
administration is forging in the domestic and foreign affairs arenas. As
Rumsfeld has noted, the war on terror will take years, and if and when
victory is achieved, we may not know with any certainty that we've won.
Our entire constitutional system repudiates the notion that electing good
men is a sufficient check on abuse of power. As President Bush himself
noted in his September 17 proclamation: '' In creating our Nation's Consti-tutional
framework, the Convention's delegates recognized the dangers
inherent in concentrating too much power in one person, branch, or institu-tion.
'' It's imperative that the 108th Congress resist the tendency to concen-trate
power and the further growth of the imperial presidency.

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Suggested Readings
Fisher, Louis. Congressional Abdication on War and Spending. College Station: Texas A& M University Press, 2000.

. Presidential War Power. Lawrence: University Press of Kansas, 1995. Healy, Gene. '' Arrogance of Power Reborn: The Imperial Presidency and Foreign Policy
in the Clinton Years. '' Cato Institute Policy Analysis no. 389, December 13, 2000. Levy, Leonard W. Original Intent and the Framers' Constitution. New York: Macmil-lan,
1988. Schlesinger, Arthur. The Imperial Presidency. Boston: Houghton-Mifflin, 1973.
Wormuth, Francis D., and Edwin B. Firmage. To Chain the Dog of War. Dallas: Southern Methodist University Press, 1986.

—Prepared by Gene Healy

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12. USA PATRIOT Act and Domestic Detention Policy
Congress should
tighten the PATRIOT Act's requirements for advance judicial
approval and judicial review; impose a shorter-term sunset clause on all provisions of the

PATRIOT Act; exclude ordinary criminal activities from coverage of the
PATRIOT Act; establish rules that govern detention of citizens and noncitizens
suspected of terrorist links; and ensure that domestic detainees have access to counsel and
judicial review.

USA PATRIOT Act
Government is legitimately charged with defending life, liberty, and
property against both domestic and foreign predators. First among those
obligations is to protect life. With America under attack, and lives at risk,
civil liberties cannot remain inviolable. But that does not mean civil
liberties can be arbitrarily flouted without establishing, first, that national
security interests are compelling and, second, that those interests can be
vindicated only by encroaching on individual rights. Some parts of the
PATRIOT Act do not pass that test.
Proponents of the new bill surely understood that many of its provisions
were incompatible with civil liberties. Yet rather than modify the offending
provisions, the president and Congress decided to promote the bill as an
expression of patriotism. Hence the acronym— USA PATRIOT— and its
bloated title, Uniting and Strengthening America by Providing Appropriate

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Tools Required to Intercept and Obstruct Terrorism. The sales pitch
worked. Fearful of being labeled disloyal after the atrocities of September
11, 2001, the House endorsed the bill 357 to 66, followed by a 98-to-1
romp through the Senate, with only Russ Feingold (D-Wis.) in opposition.
From its initial draft to its final adoption, the PATRIOT Act zipped
through in six weeks— less time than Congress typically spends on routine
bills that raise no constitutional concerns. Congress's so-called deliberative
process was reduced to this: closed-door negotiations, no conference com-mittee,
no committee reports, no final hearing at which opponents could
testify, not even an opportunity for most of the legislators to read the 131
single-spaced pages about to become law. Indeed, for part of the time,
both the House and Senate were closed because of the anthrax scare;
congressional staffers weren't able to retrieve their working papers.
The negligible legislative record will make it difficult for courts to
determine the intent of Congress. And because legislative intent matters
to some judges— for example, Supreme Court Justices Stephen Breyer
and David Souter— the PATRIOT Act might ultimately be invalidated as
unconstitutionally vague. Ironically, Congress's rush job, which facilitated
passage of the bill, could be the cause of the bill's downfall. The same
law that was promoted as an act of patriotism might even provide a
rationale for releasing madmen who committed horrific acts against the
United States.
Yet the more acute objections to the new statute are substantive, not
procedural. They fall into three main categories. First, any law with the
potential to dramatically alter conventional notions of individual freedom
should fastidiously guard against abuse. The doctrine of separation of
powers has been a traditional buffer against such abuse. Requiring advance
judicial authorization of executive actions, followed by judicial review to
ensure that those actions have been properly performed, shields our liberties
from excessive concentrations of power in a single branch of government.
Under the PATRIOT Act, however, the locus of power is unmistakably
the executive branch. In some cases, law enforcement officials have access
to business and personal records without advance judicial notice or subse-quent
judicial review. In other cases— voicemail retrieval is an example—
advance approval is necessary, but the requisite court order can be obtained
with a minimal showing of relevancy. That same low standard governs
traces of Internet surfing and e-mail. Equally objectionable, under sec.
213 of the act, secret '' sneak and peek'' searches of physical property
can be conducted without knowledge of the property owner until a '' reason-118 119
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USA PATRIOT Act and Domestic Detention Policy
able'' time after the search has occurred. No knowledge means no opportu-nity
to contest the validity of the search, including such obvious infractions
as rummaging through office drawers when the warrant authorizes a garage
search, or even searching the wrong address.
Second, the new rules are defended as a necessary instrument of anti-terrorism.
If so, why do many of the provisions apply not only to suspected
terrorist acts but also to everyday national security investigations and even
ordinary criminal matters? In effect, our government has used the events
of September 11 to impose national police powers that skirt time-honored
constraints on the state. The executive branch will not always wield its
new powers in the service of ends that Americans find congenial.
To illustrate, the PATRIOT Act expands the Foreign Intelligence Sur-veillance
Act (FISA)— a Carter-administration program that created a
special federal court to approve electronic surveillance of citizens and
resident aliens alleged to be acting on behalf of a foreign power. Previously,
the FISA court granted surveillance authority if foreign intelligence was
the primary purpose of an investigation. No longer. Under sec. 218 of the
PATRIOT Act, foreign intelligence need only be a '' significant'' purpose
of an investigation. That sounds like a trivial change, but it isn't. Because
the standard for FISA approval is lower than '' probable cause, '' and
because FISA now applies to ordinary criminal matters if they are dressed
up as national security inquiries, the new rules could open the door to
circumvention of the Fourth Amendment's warrant requirements. The
result: rubber-stamp judicial consent to phone and Internet surveillance,
even in regular criminal cases, and FBI access to medical, educational,
business, and other records that conceivably relate to foreign intelli-gence
probes.
Third, laws that compromise civil liberties must be revisited periodically
to ensure that temporary measures, undertaken in response to a national
security emergency, do not endure longer than necessary. Such laws must
contain sunset clauses; that is, the law should expire automatically within
a short time of enactment— thus imposing on government the continuing
obligation to justify its intrusions. In this instance, the Bush administration
rejected any sunset provision whatsoever. Congress demurred and insisted
on including such a provision, but it applied only to new wiretap and
surveillance powers, not to the whole bill. Moreover, the sunset date was
fixed at December 31, 2005— more than four years after passage of the
legislation. Plainly, a shorter time frame— say, two years— would have
been appropriate. If the emergency persisted, Congress and the president
could reenact the law.

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Detention of Noncitizens in the United States
The PATRIOT Act also raises questions about detention of noncitizens
in the United States. Under sec. 412 of the act, the attorney general can
detain, for seven days, noncitizens suspected of terrorism. After seven
days, deportation proceedings must commence or criminal charges must
be filed. Originally, the Justice Department had asked for authority to detain
suspects indefinitely without charge. Congress could not be persuaded to
go along. But the final bill, for all practical purposes, allows expanded
detention simply by charging the detainee with a technical immigration
violation. If a suspect cannot be deported, he can still be detained if the
attorney general certifies every six months that national security is at stake.
Underlining the magnitude and scope of that problem, the Wall Street
Journal reported on November 1, 2001, that seven Democrats had filed
Freedom of Information Act requests for a detailed accounting from Attor-ney
General John Ashcroft on the status of roughly 1,200 detainees, mainly
in New York and New Jersey. The lawmakers mentioned that some
detainees had reportedly '' been denied access to their attorneys, proper
food, or protection from . . . physical assault. '' Some of them were alleg-edly
being held in solitary confinement even though they hadn't been
charged with any criminal offense. According to a representative of the
New York Legal Aid Society, several Arab detainees had been limited
to one phone call per week to a lawyer and, if the line was busy, they
had to wait another week. On November 25, the New York Times cited
a senior law enforcement official who said that just 10 to 15 of 1,200
detainees were suspected al-Qaeda sympathizers. The government had not
found evidence linking a single one of them to the September 11 attacks.
Whether or not those reports proved accurate, it was time for the
government to supply some answers. Here's what the Washington Post
had to say in an October 31, 2001, editorial criticizing the Justice Depart-ment
for resisting legitimate requests for information on the detainees:
'' The questions are pretty basic. How many of the 1,000-plus are still in
custody? Who are they? What are the charges against them? What is the
status of their cases? Where and under what circumstances are they being
held? The department refuses not only to provide the answers but also to
give a serious explanation of why it won't provide them. ''
Eight months later, the Justice Department still had not identified the
remaining detainees. A department spokesman said only that fewer than
400 were still in custody— 74 for immigration violations, 100 who had
been criminally charged, 24 held as material witnesses, and 175 awaiting

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deportation. They had been denied legal counsel, access to their families,
and details of pending charges, if any. In effect, nearly 400 detainees
remained in legal limbo as the first anniversary of September 11 rapidly
approached.
Ultimately, the Supreme Court may have to clarify how the civil liberties/
national security tradeoff will unfold. Two terms ago, in Zadvydas v. Davis,
the Court held that immigrants who have committed crimes cannot
be detained indefinitely; they must be deported within a reasonable period
or released. Moreover, said the Court, temporary and even illegal immi-grants,
not just U. S. citizens, are entitled to due process. Still, the Court
noted that different rules may apply to immigrants who are suspected of
terrorism or considered national security risks.
Thus, the law is murky, and the legislation passed in the aftermath of
September 11 adds new elements of uncertainty. Nonetheless, the control-ling
principle is unambiguous. Any attempt by government to chip away at
constitutionally guaranteed rights must be subjected to the most painstaking
scrutiny to determine whether less invasive means could accomplish the
same ends.

Detention of U. S. Citizens
Yaser Esam Hamdi is also in legal limbo. He was raised in Saudi
Arabia, captured in Afghanistan, sent to Guantanamo, then transferred to
a Norfolk, Virginia, military brig after the Defense Department learned
that he was a U. S. citizen, born in Louisiana. Hamdi is being detained
indefinitely, without seeing an attorney, even though he hasn't been
charged with any crime. Jose´ Padilla, who allegedly plotted to build a
radiological '' dirty bomb, '' is a U. S. citizen too. He was arrested at
Chicago's O'Hare airport after a flight from Pakistan, then transferred
from civilian to military custody in Charleston, South Carolina. Like
Hamdi, Padilla is being detained by the military— indefinitely, without
seeing an attorney, even though he hasn't been charged with any crime.
Meanwhile, Zacarias Moussaoui, purportedly the 20th hijacker, is not a
U. S. citizen. Neither is Richard Reid, the alleged shoe bomber. Both have
attorneys. Both have been charged before federal civilian courts.
What gives? Four men: two citizens and two noncitizens. Is it possible
that constitutional rights— like habeas corpus, which requires the govern-ment
to justify continued detentions, and the Sixth Amendment, which
ensures a speedy and public jury trial with assistance of counsel— can be
denied to citizens yet extended to noncitizens? That's what the Bush
administration would have us believe. Citizen Hamdi's treatment is legiti-121 122
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mate, insists Attorney General John Ashcroft, because Hamdi is an '' enemy
combatant'' and there is '' clear Supreme Court precedent'' to handle those
persons differently, even if they are citizens.
Ashcroft's so-called clear precedent is a 1942 Supreme Court case, Ex
Parte Quirin, which dealt with Nazi saboteurs, at least one of whom was
a U. S. citizen. '' Enemy combatants, '' said the Court, are either lawful—
for example, the regular army of a belligerent country— or unlawful—
for example, terrorists. When lawful combatants are captured, they are
POWs. As POWs, they cannot be tried (except for war crimes); they must
be repatriated after hostilities are over; and they have to provide only their
name, rank, and serial number if interrogated. Clearly, that's not what the
Justice Department had in mind for Hamdi.
Unlawful combatants are different. When unlawful combatants are cap-tured,
they can be tried by a military tribunal. That's what happened to
the Nazi saboteurs in Quirin. But Hamdi has not been charged, much less
tried. Indeed, the president's executive order of November 2001 excludes
U. S. citizens from the purview of military tribunals. If the president were
to modify his order, the Quirin decision might provide legal authority for
the military to try Hamdi. But the decision provides no legal authority
for detaining a citizen without an attorney solely for purposes of aggressive
interrogation.
Moreover, the Constitution does not distinguish between the protections
extended to ordinary citizens on one hand and unlawful-combatant citizens
on the other. Nor does the Constitution distinguish between crimes covered
by the Fifth and Sixth Amendments and terrorist acts. Still, the Quirin
Court justified those distinctions— noting that Congress had formally
declared war and thereby invoked articles of war that expressly authorized
the trial of unlawful combatants by military tribunal. Today, the situation
is different. We've had virtually no input from Congress: no declaration
of war, no authorization of tribunals, and no suspension of habeas corpus.
Yet those functions are explicitly assigned to Congress by Article I of
the Constitution. It is Congress, not the executive branch, which has the
power '' To declare War'' and '' To constitute Tribunals inferior to the
supreme Court. '' Only Congress can suspend the '' Privilege of the Writ
of Habeas Corpus . . . when in Cases of Rebellion or Invasion the public
Safety may require it. '' Congress has not spoken— except by enacting the
PATRIOT Act. And there, we do find authorization for detention of
persons suspected of terrorism— but only noncitizens and only for seven
days, after which they must be released unless criminal charges are filed
or deportation proceedings commenced.

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No charges were filed in Hamdi's case. That's why a federal public
defender sued on his behalf in May 2002, demanding that he be charged
or released. Adistrict court judge in Norfolk ordered the Justice Department
to explain Hamdi's detention and agreed that he had a right to counsel.
Predictably, the Justice Department appealed. In its legal brief to the U. S.
Court of Appeals for the Fourth Circuit, the government insisted, '' There
is no right under the laws and customs of war for an enemy combatant
to meet with counsel concerning his detention. '' Moreover, asserted the
Justice Department, '' The court may not second-guess the military's enemy
combatant determination. Going beyond that determination would . . .
intrude upon the Constitutional prerogative of the Commander in Chief. ''
That astonishing statement amounts to an explicit declaration by the
executive branch that it may unilaterally abrogate habeas corpus, even for
a U. S. citizen. Furthermore, the Justice Department announced that it
would extend its new doctrine to '' enemy combatants . . . captured . . .
on the battlefield in a foreign land; . . . captured overseas and brought to
the United States [or] captured and detained in this country. '' In July
2002 the Fourth Circuit remanded the Hamdi case to the district court to
reconsider '' the implications [including] what effect petitioner's unmoni-tored
access to counsel might have on the government's ongoing gathering
of intelligence. '' The chief judge of the Fourth Circuit, J. Harvie Wilkinson,
ordered the lower court to be deferential when considering the Justice
Department's position. Still, Wilkinson affirmed the need for judicial
review. He warned, '' With no meaningful judicial review, any American
citizen alleged to be an enemy combatant could be detained indefinitely
without charges or counsel. ''
Perhaps that warning will persuade the administration that it may not
set the rules, prosecute infractions, determine guilt or innocence, then
review the results of its own actions— unless of course the administration
has statutory or constitutional authority. Even persons convinced that
President Bush cherishes civil liberties and understands that the Constitu-tion
is not mere scrap paper must be unsettled by the prospect that an
unknown and less honorable successor could exploit some of the dangerous
precedents that the Bush administration is attempting to put in place.

Conclusion
If civil libertarians have a single overriding concern about the PATRIOT
Act and our detention policies, it is this: the Bush administration has
concentrated too much unchecked authority in the hands of the executive

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branch— making a mockery of the doctrine of separation of powers that
has been a cornerstone of our Constitution for two and a quarter centuries.
We cannot, for example, permit the executive branch to declare unilaterally
that a U. S. citizen may be characterized as an enemy combatant, whisked
away, detained indefinitely without charges, denied legal counsel, and
prevented from arguing to a judge that he is wholly innocent.
That does not mean the Justice Department must set people free to
unleash weapons of mass destruction. But it does mean, at a minimum,
that Congress must get involved, exercising its responsibility to enact a
new legal regimen for detainees in time of national emergency. That
regimen must respect our rights under the Constitution, including the right
to judicial review of executive branch decisions. Constitutional rights are
not absolute. But they do establish a strong presumption of liberty, which
can be overridden only if government demonstrates, first, that its restric-tions
are essential and, second, that the goals it seeks to accomplish cannot
be accomplished in a less invasive manner. When the executive, legislative,
and judicial branches agree on the framework, the potential for abuse is
diminished. When only the executive has acted, the foundation of a free
society can too easily erode.

Suggested Readings
Lynch, Timothy. '' Breaking the Vicious Cycle: Preserving Our Liberties While Fighting Terrorism. '' Cato Institute Policy Analysis no. 443, June 26, 2002.

Quirin, Ex Parte. 317 U. S. 1 (1942).
Shapiro, Stephen J., et al. '' Inter Arma Silent Leges: In Times of Armed Conflict, Should the Laws Be Silent? '' Association of the Bar of the City of New York, Committee

on Military Affairs and Justice, December 2001. Sonnett, Neal R., et al. '' Preliminary Report: Task Force on Treatment of Enemy
Combatants. '' American Bar Association, August 8, 2002. Taylor, Stuart. '' Jailed with No Key. '' Legal Times, July 22, 2002.

—Prepared by Robert A. Levy

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13. National ID Cards and Military Tribunals
Congress should
resist the establishment of a national identification card and
resist the establishment of military tribunals for civilians.

In the wake of a calamitous terrorist attack, such as the one that America
experienced on September 11, 2001, it is prudent for Congress to review
our laws, policies, and customs with an eye to changes that would enhance
our safety and security. Each policy proposal, however, should be carefully
examined. Congress should not hastily enact any proposal simply because
it is packaged as an '' anti-terrorism'' measure. Every proposal should be
vetted for its necessity, efficacy, and constitutionality.

National ID Cards
It was only a matter of days after the attack of September 11 before
some members of Congress proposed the implementation of a national
ID card system as a way of thwarting additional terrorist attacks. The
national ID card has been proposed in the past as a way of stopping illegal
immigration. Since September 11 the policy proposal has been repackaged
as a '' security'' measure.
The national ID card proposal would be a very bad deal for America
because it would require some 250 million people to surrender some of
their freedom and some of their privacy for something that is not going
to make the country safe from terrorist attack. An ID card with biometric
identifiers may seem '' foolproof, '' but there are several ways that terrorists
will be able to get around such a system. If terrorists are determined to
attack America, they can bribe the employees who issue the cards or the
employees who check the cards. Terrorists could also recruit people who

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possess valid cards— U. S. citizens or lawful permanent residents— to carry
out attacks.
Proponents of the card point to countries in Europe, such as France,
that already have national ID card systems. But the experience of those
countries is nothing to brag about. The people in those countries have
surrendered their privacy and their liberty, yet they continue to experience
terrorist attacks. National ID cards simply do not deliver the security that
is promised.
Moreover, the establishment of a national ID card systemwill dilute civil
liberties. The Fourth Amendment to the Constitution protects Americans
against unreasonable searches and seizures. The quintessential '' seizure''
under the Fourth Amendment is to be arrested or detained by the police.
The police can seize or arrest a person when they have an arrest warrant
or when they have '' probable cause'' to believe that the suspect has just
committed a crime in their presence. But the police cannot stop people
on the street and demand an ID, at least not under current law. The police
can request an ID; they can request that people answer their questions.
But the key point is that Americans get to decide whether or not they
wish to cooperate. The legal presumption right now is on the side of the
individual citizen. The people do not have to justify themselves to the
police. The police have to justify their interference with individual liberty.
A national ID card system will turn that important legal principle upside
down. After the enactment of the system, pressure will begin to build to
enact laws that will require citizens to produce an ID whenever a govern-ment
official demands it. This is very likely to happen for two reasons.
First, in the countries that already have national ID card systems, the
police have acquired such powers. Second, in this country there already
are cases in which the police have arrested Americans for failure to produce
IDs. Thus far, however, courts have thrown out such arrests, ruling that
such a refusal does not constitute '' disorderly conduct'' or '' resisting an
officer. '' And yet, if Congress passes a law that says people must produce
IDs, the courts may well yield on that point.
It is important to note that many of the proponents of the national ID
card— such as Alan Dershowitz of Harvard Law School and Larry Ellison
from Oracle— present the idea in its most innocuous form. The proponents
say the card will be '' voluntary'' and that people will have to present it
only at airports. They say there will be no legal duty to produce an ID
card. But, over time, the amount of information on the card will surely
expand. The number of places where one will have to present an ID card

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will also expand, and it will eventually become compulsory. And, sooner
or later, a legal duty to produce an ID whenever a government official
demands it will be created.
Secretary of Defense Donald Rumsfeld has already warned us to expect
more terrorist attacks, so it is a safe bet that more anti-terrorism proposals
will emerge in Congress in the wake of such attacks. Perhaps there will
be an attack a year from now, and a limited national ID card will be
proposed and enacted. Maybe five years later, America will be attacked
again; people will die, and law enforcement will go to Congress and say,
'' We have a national ID card, but the problem is that it is voluntary, not
compulsory. '' Thus, by increments, America will get the full-blown
national ID card system that is now in place in other countries. Congress
should avoid this slippery slope by focusing its attention on more meritori-ous
proposals. A national ID card expands the power of government over
law-abiding citizens, but it will not really enhance security.

Military Tribunals
In November 2001, President Bush issued a '' military order'' that said
that suspected terrorists could, on his command, be tried before specially
designated military tribunals instead of civilian courts. That order immedi-ately
came under fire because of its disregard for constitutional norms.
Article III, section 2, of the Constitution provides, '' The Trial of all
Crimes, except in Cases of Impeachment; shall be by Jury. '' The Sixth
Amendment to the Constitution provides, '' In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an impartial
jury. '' To limit the awesome powers of government, the Framers of the
Constitution designed a system in which citizen juries would stand between
the apparatus of the state and the accused. If the government prosecutor
can convince a jury that the accused has committed a crime and belongs
in prison, the accused will lose his liberty and perhaps his life. If the
government cannot convince the jury with its evidence, the prisoner will
go free. In America, an acquittal by a jury is final and unreviewable by
state functionaries.
The federal government did try people before military commissions
during the Civil War. To facilitate that process, President Abraham Lincoln
suspended the writ of habeas corpus— so that the prisoners could not
challenge the legality of their arrest or conviction. The one case that did
reach the Supreme Court, Ex Parte Milligan (1866), deserves careful
attention.

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In Milligan, the attorney general of the United States maintained that
the legal guarantees set forth in the Bill of Rights were '' peace provisions. ''
During wartime, he argued, the federal government can suspend the Bill
of Rights and impose martial law. If the government chooses to exercise
that option, the commanding military officer becomes '' the supreme legis-lator,
supreme judge, and supreme executive. '' Under that legal theory,
many American citizens were arrested, imprisoned, and executed without
the benefit of the legal procedure set forth in the Constitution— trial by jury.
The Supreme Court ultimately rejected the position advanced by the
attorney general. Here is one passage from the Milligan ruling:

The great minds of the country have differed on the correct interpretation
to be given to various provisions of the Federal Constitution; and judicial
decision has been often invoked to settle their true meaning; but until
recently no one ever doubted that the right to trial by jury was fortified in
the organic law against the power of attack. It is now assailed; but if ideas
can be expressed in words and language has any meaning, this right— one
of the most valuable in a free country— is preserved to every one accused
of crime who is not attached to the army, or navy, or militia in actual
service. The sixth amendment affirms that '' in all criminal prosecutions
the accused shall enjoy the right to a speedy and public trial by an impartial
jury, '' language broad enough to embrace all persons and cases.

The Milligan ruling is sound. While the Constitution empowers the
Congress '' To make Rules for the Government and Regulation of the
land and naval Forces'' and '' To provide for organizing, arming, and
disciplining, the Militia, '' the Supreme Court ruled that the jurisdiction
of the military courts could not extend beyond those people who were
actually serving in the army, navy, and militia. That is an eminently
sensible reading of the constitutional text.
President Bush and his lawyers maintain that terrorists are '' unlawful
combatants'' and that unlawful combatants are not entitled to the protec-tions
of the Bill of Rights. The defect in the president's claim is circularity.
A primary function of the trial process is to sort through conflicting
evidence in order to find the truth. Anyone who assumes that a person
who has merely been accused of being an unlawful combatant is, in fact,
an unlawful combatant can understandably maintain that such a person
is not entitled to the protection of our constitutional safeguards. The flaw,
however, is that that argument begs the very question under consideration.
To take a concrete example, suppose that the president accuses a lawful
permanent resident of the United States of aiding and abetting terrorism.

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The person accused responds by denying the charge and by insisting on
a trial by jury so that he can establish his innocence. The president
responds by saying that '' terrorists are unlawful combatants and unlawful
combatants are not entitled to jury trials. '' The president also says that
the prisoner is not entitled to any access to the civilian court system to
allege any violations of his constitutional rights. With the writ of habeas
corpus suspended, the prisoner and his attorney can only file legal appeals
with the president— the very person who ordered the prisoner's arrest in
the first instance!
The Constitution's jury trial clause is not a '' peace provision'' that can
be suspended during wartime. Reasonable people can disagree about how
to prosecute war criminals who are captured overseas in a theater of war,
but the president cannot make himself the policeman, prosecutor, and judge
of people on U. S. soil. In America, the president's power is '' checked'' by
the judiciary and by citizen juries.

Conclusion
It is very important that policymakers not lose sight of what we are
fighting for in the war on terrorism. The goal should be to fight the
terrorists within the framework of a free society. The federal government
should be taking the battle to the terrorists, to their base camps, and killing
the terrorist leadership; it should not be transforming our free society into
a surveillance state.

Suggested Readings
Crews, Clyde Wayne. '' Human Bar Code: Monitoring Biometric Technologies in a Free Society. '' Cato Institute Policy Analysis no. 452, September 17, 2002.

Kopel, David. '' You've Got Identity: Why a National ID Is a Bad Idea. '' National Review Online, February 5, 2002.
Levy, Robert A. '' Don't Shred the Constitution to Fight Terror. '' Wall Street Journal, November 20, 2001.
Lynch, Timothy. '' Breaking the Vicious Cycle: Preserving Our Liberties While Fighting Terrorism. '' Cato Institute Policy Analysis no. 443, June 26, 2002.
. '' Executive Branch Arrests and Trials. '' Testimony before the Senate Judiciary Committee on Military Tribunals. December 4, 2001, www. cato. org/ testimony/
ct tl120401. html. Twight, Charlotte. '' Watching You: Systematic Federal Surveillance of Ordinary Ameri-cans.
'' Cato Institute Briefing Paper no. 69, October 17, 2001.
—Prepared by Timothy Lynch

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14. Regulation of Electronic Speech and Commerce
Congress should
resist the urge to regulate offensive content on the Web,
allow the market to address privacy and marketing concerns,
not undercut individuals' efforts to maintain anonymity on
the Internet, not attempt to regulate adult behavior such as online gambling,

reject attempts to impose new restrictions on encryption and
new surveillance on American citizens, avoid replacing true diversity and democracy on the Internet

with politically motivated '' Internet commons'' or '' public spaces, ''
avoid online protectionism by refusing to allow incumbent busi-nesspeople
to undercut electronic trade on the Internet, and avoid imposing burdensome and unconstitutional tax collection

schemes on the Internet.

It seems that everybody's got a plan to tame the freewheeling Internet
these days. The technology and telecommunications sectors of the Ameri-can
economy are increasingly under assault at the local, state, federal, and
international levels. Republicans and Democrats alike are looking for ways
to regulate everything from privacy to porn, while simultaneously seeking
ways to subsidize access. The Progressive Policy Institute describes a
'' failure of cyber-libertarianism'' that leads, naturally enough, to its '' Stra-tegic
National E-Commerce Policy'' framework. Ralph Nader would
establish a World Consumer Protection Organization to counter the
Internet's libertarian streak, which he finds intolerable. Countless other
special interests are clamoring for increased government activism.

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But policymakers must resist intervention. Whether the government
acts as regulator or facilitator of the high-tech economy and the Internet,
there will be unintended consequences. Industry should find self-regulatory
solutions instead of looking to Washington for answers or assistance.

Protecting Kids Online
The Communications Decency Act, passed to ban pornography on the
Internet, was struck down by the Supreme Court in 1997. But Washington
continues efforts to regulate Internet content. In 2002 the Supreme Court
upheld a portion of the Child Online Protection Act, passed by Congress
in 1998 to shield children from online pornography by requiring that
website operators verify the age of visitors. The Court held that free speech
is not necessarily violated by the imposition of community standards on
a national scale.
Although the Supreme Court does not reject the notion of '' contempo-rary
community standards, '' the lower court got it right when it noted
that the community standard notion lets the most squeamish dictate what
all others can see on the Web. In the name of protecting children, the law
interferes with content that adults should have the right to see under the
First Amendment.
On an Internet that is increasingly capable of direct peer-to-peer com-munication
and broadcast, individual choices and behavior replace
'' community standards. '' And laws like COPA can have unintended conse-quences:
barriers to those who seek porn voluntarily will likely increase
e-mail solicitations for porn (spam), which COPA wouldn't regulate.
The best and least restrictive defense is parental supervision, and helpful
tools, including filtering software and filtered online services, are available
in the private sector. Filtered online services can limit the receipt of
unwanted salacious e-mail, for which COPA is no use. Another tool at
parents' disposal is tracking software that lets them monitor everything a
child does or has done on the Internet.

Online Marketing and Privacy
Websites, as is well known, frequently collect information about visitors
and often sell it. Some legislators want to require online and even main
street firms to reveal what information they collect and share, and to allow
customers to '' opt out. '' Others would require a much more restrictive

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opt-in standard for '' sensitive'' consumer information; under that standard
no information could be used until a consumer granted permission.
But is all the fuss over information-age marketing justified? Free-flowing
information means more and cheaper stuff. Certainly, business use of
personal information to move merchandise may sometimes be irritating,
but federal regulation, which will hurt e-commerce and consumers, isn't
the answer. Small businesses will suffer more than larger companies that
have already assembled databases.
As businesses respond to consumer preferences, more stringent privacy
protections are emerging. The notice and choice sought in privacy legisla-tion
already exist. Most highly trafficked sites already feature privacy
policies. Users can set their Web browsers to reject information gathering.
Software tools that provide for anonymous surfing or warn when informa-tion
is being collected further empower consumers. The marketplace
increasingly forces sites to develop online privacy policies as ever-more-efficient
browser technology alerts users to the level of security provided.
Moreover, Washington itself can be the leading privacy offender. Sep-tember
11, 2001, brought renewed government surveillance, authorized
by the PATRIOT Act, that raises serious constitutional issues and should
be the focus of any serious congressional privacy debate. We don't get
to '' opt out'' of government information collection. Washington does not
have a track record that inspires confidence in it as a protector of personal
information.

Unsolicited E-Mail (spam) Policy
One legitimate purpose of limited government is to stop the use of force
and fraud. That extends to fraudulent e-mail solicitations, the prosecution of
which is the job of the Federal Trade Commission.
Peddling fraudulent merchandise or impersonating somebody else in
the e-mail's header information should be punished, as should breaking
a contract made with an Internet service provider (ISP) that prohibits bulk
mailing. But in the debate over the outpouring of spam, it's important to
avoid unintentionally stifling beneficial e-commerce. Sometimes, commer-cial
e-mail, even if unsolicited, may be welcome if the sender is a business
selling legal and legitimate products in a nonabusive manner.
Increasingly, legitimate companies are embracing permission-based,
'' opt-in'' e-mail standards, which enable people to receive e-mail only
from senders they have chosen. If legislation merely sends the most
egregious offenders offshore, that may simply create legal and regulatory

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hassles for small businesses trying to make a go of legitimate e-commerce
or for mainstream companies that are not spammers. Unwise legislation
could also create headaches for noncommercial e-mailers.
A smarter approach is e-mail filtering, such as setting the owner's screen
to receive only from recognized and approved e-mail addresses. That
standard is particularly appropriate for children's e-mail accounts. Emerg-ing
'' handshake'' or '' challenge and response'' systems capable of totally
blocking spam show promise: since the most offensive spam is sent by
automatic bulk mailing programs that aren't capable of receiving a reply,
spam no longer appears in the inbox. Identifiers or '' seals'' for trusted
commercial e-mail could be another means of helping ISPs block unwanted
e-mail.
As the market works to shift costs of commercial e-mail back to the
sender, we must be on guard against legislative confusion: How might the
definition of '' spam'' expand beyond '' unsolicited'' and '' commercial'' e-mail,
and would such expansion be a good thing? What about unsolicited
political or nonprofit bulk e-mailings, or press releases, resume blasts, and
charitable solicitations? What about newsletters that contain embedded
ads or link back to for-profit websites? Would pop-up ads become suspect
in the aftermath of spam legislation? They're not e-mail, but they are
unsolicited and commercial.
Another piece of proposed legislation would grant ISPs the power to
decide what is spam and to unilaterally block it with '' good faith'' immu-nity
and sue the spammer. It is appropriate for consumers and ISPs to
effect complete blackouts of spammers if they like; computers, wires,
servers, and routers are private property. But it's not necessary to federalize
such contracts.
Finally, legislative bans on false e-mail return addresses, as well as
bans on software capable of hiding such information, have worrisome
implications for free speech and anonymity for individuals— not just mis-behaving
businesses. Individuals can use '' spamware'' to create contempo-rary
versions of the anonymous flyers that have played such an important
role in our history. Individuals must retain the ability to safeguard their
anonymity even in (or perhaps especially in) a mass communications tool
like e-mail. In an era in which so many people are concerned about online
privacy, legislation that impedes a technology that can protect privacy
would be strange indeed.
Given the perfectly understandable desire to stop unsolicited mail, it is all
too easy for Congress to undermine legitimate commerce, communications,

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and free speech. And crippling Internet commerce would be especially
pointless if spam continued pouring in from overseas.

The Internet and Anonymity
Anonymous speech is as old as America. Gentlemen calling themselves
'' Publius'' wrote the Federalist Papers. Thomas Paine's Common Sense
was signed by '' An Englishman. '' Today, e-mail encryption is an important
example of the tradition of speaking freely and anonymously.
But encryption technology in the hands of people bent on destruction
can be deadly. Some observers believe that the terrorists who attacked
America communicated via encrypted messages. Fear of this indisputable
threat led to renewed proposals to give government a '' back door key''
to encryption products. Similarly, calls for a national ID card exemplify
new urges to shine a federal light on individuals. But calls for prohibitions
on encryption products are a nonstarter in the sense that trying to prohibit
bad actors from acquiring hardware or software is futile in today's global,
integrated marketplace.
Government's job is to restrict the liberty of dangerous criminals and
enemies— not that of innocent citizens, or to treat everyone as a suspect.
The USA PATRIOT Act has set up a new law enforcement infrastructure
that can easily increase surveillance of nonterrorists, but that is clearly
beyond the stated intent of combating terrorism. New powers should apply
only to terrorism, not to routine criminal investigations. While surveillance
can and likely will be enhanced to respond to the new realities of instant
electronic communications, the Fourth Amendment's protections against
unreasonable and warrantless searches must not suffer.
Proposals to reregulate encryption are the digital equivalent of seizing
grandma's nail clippers at the airport; terrorists would simply resort to
illegal encryption. Congress decided in the mid-1990s that the benefits of
readily available access to encryption technology are significant. Like
proposals to mandate that everyone carry a national ID card, reregulation
of encryption is a needless undermining of anonymity and privacy.
It's important to remember that the root of the terrorist threat America
faces does not lie entirely in cyberspace, so fighting encryption is a
misplaced priority. Despite the intense Internet privacy debate of recent
years, the real dispute isn't about whether such privacy is achievable; it's
about whether government will allow it where the capability finally exists.
Encryption is essential, not just for keeping intact a pure version of
the principle of free speech, but for such '' mundane'' needs as private

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communication, secure online commerce, and business-to-business
exchanges. Restrictions would damage the security of America's financial
systems, making it easier for the everyday hacker, not to mention the
terrorist, to invade personal information and tinker with the financial
infrastructure. One of the imperatives in combating terrorism is to secure
sensitive and critical systems from attack. Since encryption is essential
for self-protection of companies and individuals, misguided legislation
undermining it hampers sensible, private security measures.
The encryption genie is out of the bottle. Not only can malevolent
programmers create their own strings of ones and zeros capable of
encrypting communications, so can legitimate companies overseas. And
requiring the deposit of an encryption '' key'' at a central governmental
location creates a '' honey pot'' for hackers to attack, reducing our security.
Encryption legislation to deliberately reduce our privacy would have been
unthinkable only recently, given widespread concerns about privacy. As
Rep. Bob Goodlatte (R-Va.) has pointed out, we need more encryption, not
less. New encryption techniques are critical to the protection of intellectual
property, such as digital distribution of books, movies, and music, on
which a rising share of America's wealth creation depends.
Moreover, encryption plays a key role in the struggle for human liberty
itself. It has aided political dissidents shielding themselves from brutal
governments, helping democracy and individual liberty flourish overseas.
Regulating encryption could encumber us far more than the terrorists, who
can still encrypt as well as use other means of communication. Legal
encryption may not be essential for terror, but it is essential for our
advanced economy.

Internet Gambling
Some members of Congress want to stop online gambling by banning
the acceptance of credit cards or other instruments for processing gambling
transactions. It's understandable that politicians would be concerned about
gambling operations being used as tools for terrorist money laundering.
But in this privacy-sensitive era, the question arises: if you were gam-bling
on the Internet, how would the government ever know about it? For
the government to know about such personal, consensual behavior requires
spying. But to impose federal surveillance of consumer financial transac-tions
before consumers have even widely embraced Internet banking and
commerce has serious implications for people's willingness to welcome
online finance.

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Banks and ISPs would be drafted as snoops to sift all financial transac-tions.
Not surprisingly, credit card companies don't want to be held respon-sible
for ensuring that companies for which they process card services
are not involved in gambling operations.
Other rationales for gambling restrictions are to target shady dealers
who run phony, fraudulent operations and to protect people from addiction
to gambling. That is paternalism: Consumers should screen any gambling
operations with which they transact and avoid fly-by-night operators. And
gambling adults are responsible for their own behavior.
What constitutes '' gambling'' is often in the eye of the legislator.
Fantasy sports get a limited exemption in proposed legislation, as do
horseracing and jai alai. And investing in certain technical financial instru-ments
can be a '' gamble'' in the sense that '' the opportunity to win
is predominantly subject to chance''— as proposed legislation defines
gambling. Yet the anti-gambling proposals exempt '' any over-the-counter
derivative instrument, '' though these clearly are not for the squeamish.
Once we travel down the road of regulating behavior on the Internet,
there's basically no limit to government's ability to regulate voluntary
speech and interaction and to substitute its moral vision for that of
individuals.

Protecting an Internet '' Commons''
Some scholars and organizations are clamoring for creation of '' public
spaces'' on the Internet. For example, University of Chicago law professor
Cass Sunstein worries that the individual's habit of personalizing or filter-ing
his Web experiences thwarts the '' unanticipated encounters'' and
'' common experiences'' that should unite us as a democracy. Where the
private sector doesn't come through, he wants the government to '' pick
up the slack, '' requiring sites to disclose their biases and link to opposing
views. And he wants popular sites to act as a '' public sidewalk, '' providing
links '' designed to ensure more exposure to substantive questions. '' Pre-sumably
the government would decide if a site is guilty of '' failure to
attend to public issues. '' According to this view, free speech doesn't mean
saying what you want but providing a platform for other views.
Acting on similar beliefs, former leaders of the Public Broadcasting
System and the Federal Communications Commission set up the Digital
Promise project to '' halt the encroachment of purely market values'' on
the Internet. They propose the establishment of a Digital Opportunity
Investment Trust fund program, or '' DO IT, '' to fund '' the development

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of online courses, training materials, archives, software, civic information,
quality arts and cultural programs, and other digital resources and services
of the highest standards to meet the needs of all citizens and help them
gain access to the best minds and talents in our society. ''
DO IT might best be thought of as a sort of ministry of cyber culture,
the fusion of the National Endowment for the Arts, PBS, and the '' E-Rate''
program (or Gore tax). The $18 billion program would be funded
by revenues from wireless spectrum auctions. Legislation has already been
introduced to make DO IT a reality.
Despite those worries, a torrent of '' shared experiences'' bombards us
despite personalization and filtering. As one critic put it, given Sunstein's
view, '' these sort[ s] of chance encounters should be happening to me less
and less on the Internet. Instead, they seem to be happening more and
more. '' Sources of exposure have ranged from the early bulletin boards
of the 1980s to the peer-to-peer networks of today. And in between
they encompass Web pages, search engines, chat rooms, e-mail, auctions,
Internet phones, instant messaging, and more.
The Internet is already a public space, in the proper sense of the term.
The public shouldn't be compelled to subsidize content deemed appropriate
for cyber citizenship. Nothing in government's legitimate scope qualifies
it as a fountain of superior, purer information or a source of social cohesion.
Governments are well-known for censorship and control, such as the
mandating of library filters and ratings for movies, music, and videogames.
Most fundamentally, the public spaces premise fails because it rests
on the notion that capitalism and freedom are inimical to, rather than
prerequisites for, civil society and the diffusion of ideas. We cherish a
free press, dissent, and debate because governments can threaten those
values. We need markets to maximize output, including that of true and
useful '' public'' information.
In practice, a public spaces regime would simply deteriorate into con-gressional
mandates and funding of '' approved'' sites. But funding is the
role of venture capitalists, who have learned that not every Internet venture
makes sense. Government programs would be failure proof in the sense
that politics rather than competition for eyeballs would matter. Whereas
the unalloyed Internet constitutes a real free press, a potpourri of informa-tion
people seek (or that the unpopular post on their own dime), public
spaces will consist of '' worthy'' things people are forced to pay for or
link to.

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Online Free Speech and the Rising Threat of Global Internet Regulation

As countries across the globe become more aware of the power of the
Internet as a communications medium and channel for global commerce,
they grow more interested in regulating what takes place online.
The most prominent example of such international regulatory mischief
so far has been the efforts by the French courts to force the American-based
Web portal company Yahoo! to remove, or at least block from the
view of French citizens, those portions of its website where Nazi memora-bilia
are for sale. Although a lower district court in California held in
November 2001 that the French ruling could not be extraterritorially
enforced here in America, the Paris Criminal Court held in February
2002 that the case could go forward. Many other countries also have
extraterritorial speech regulations. If such parochial speech controls were
enforceable across the globe, it would obviously force content providers
and network operators to restrict their speech so as to avoid potential
liability or penalties.
But can parochial standards really be applied to the Web? Or is the
Web truly a borderless medium that cannot be regulated in any workable
sense by local authorities? Many important legal issues are at play, espe-cially
when you expand the discussion beyond free speech to include
commercial regulation of the Internet. Some scholars have suggested that
international treaties could be the answer. Others are calling for a '' UN
for the Internet, '' or some sort of global regulatory body to resolve such
questions. Still others suggest that the best answer is to do nothing, since
anarchy, at least so far, has the advantage of broadening the range of free
speech globally.
Although Americans have good reason to ignore the French ruling in
the Yahoo! case, the question remains: how will these disputes be decided
in the future? As Net connectivity across the globe grows, and human
communication and interaction bridge the geographic divides between
countries and continents, governments will attempt to force this new
technology into old regulatory paradigms. Defenders of free speech would
be wise to start thinking about ways to convince them to do otherwise.

State and Local Restraints of Electronic Trade
New York Times reporter John Markoff noted in a December 2000
column, '' In a remarkably short period, the World Wide Web has touched

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or has promised to alter— some would say threaten— virtually every aspect
of modern life. '' Of course, not everyone has enthusiastically embraced
the changes the Internet has brought, especially those who feel threatened
by it.
This is particularly true in the business marketplace where many well-established
industries and older institutions fear that the Net is displacing
their businesses or perhaps entire industry sectors by bringing consumers
and producers closer together.
That older industries fear newer ones is nothing new, of course. Any
new and disruptive technology will attract its fair share of skeptics and
opponents. Steamboat operators feared the railroads; railroaders feared
truckers; truckers feared air shippers; and undoubtedly horse and buggy
drivers feared the first automobiles that crossed their path.
Fear of technological change is to be expected; the problem is that
older industries often have significantly more clout in the political market-place
and can convince policymakers to act on their behalf. State licensing
or franchising laws are often the favored club for entrenched industries
that are looking for a way to beat back their new competitors. Demanding
that producers comply with a crazy-quilt of state and local regulations
will often be enough to foreclose new market entry altogether.
That is simply old-fashioned industrial protectionism. But requiring
national or even global commercial vendors— as is clearly the case with
e-commerce and Internet sellers— to comply with parochial laws and
regulations is antithetical to the interests of consumers and the economy
in general. Consumers clearly benefit from the development of online
commercial websites and value the flexibility such sites give them to do
business directly with producers and distributors. More important, the
development of a vibrant online commercial sector provides important
benefits for the economy as a whole in terms of increased productivity.
The Progressive Policy Institute has estimated that protectionist laws and
regulations could cost consumers more than $15 billion in the aggregate.
Lawmakers must be flexible in crafting public policies so as to not
upset the vibrant, dynamic nature of this marketplace and be willing to
change existing structures, laws, or political norms to accommodate or
foster the expansion of new technologies and industry sectors. The fact
that some Old Economy, Manufacturing Age interests may not like the
emergence of the NewEconomy, Information Age sectors and technologies
does not mean policymakers should seek to accommodate older interests
by stifling the development of the cyber sector. Such a Luddite solution

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will hurt consumers and further set back the development of the online
marketplace. Congress must exercise its powers under the Commerce
Clause of the Constitution to protect interstate electronic commerce when
it is seriously threatened by state and local meddling.

Internet Taxation
A remarkably contentious battle has taken place in recent years over
the Internet Tax Freedom Act of 1998 and the federally imposed morato-rium
on state and local taxation of the Internet. The ITFA moratorium
does not prohibit states or localities from attempting to collect sales or
use taxes on goods purchased over the Internet; it merely prohibits state and
local government from imposing '' multiple or discriminatory'' taxation of
the Internet or special taxes on Internet access.
What pro-tax state and local officials are really at war with is not the
ITFA but 30 years of Supreme Court jurisprudence that has not come
down in their favor. The Court has ruled that states can require only firms
with a physical presence, or '' nexus, '' in their states to collect taxes on
their behalf.
The effort to tax the Internet is a classic case of misplaced blame. In
their zeal to find a way to collect taxes on electronic transactions to
supposedly '' level the (sales tax) playing field, '' most state and local
officials conveniently ignore the fact that the current sales tax system is
perhaps the most unlevel playing field anyone could possibly have
designed. Several politically favored industries and politically sensitive
products receive generous exemptions from sales tax collection obligations
or even from the taxes themselves.
Sales tax collection was fairly effective in the post– World War II period
when a sizable portion of the American economy was still goods based
and subject to the tax.
But as America began a gradual shift to a service-based economy in
subsequent decades, serious strains were placed on the sales tax system
since sales taxes had traditionally not been collected on services. Therefore,
the vast majority of '' service-sector'' industries and professions receive
a blanket exemption from sales tax obligations.
So, as the service sector became a larger portion of the American
economy, the overall sales tax base shrank accordingly. Limited efforts
have been made by some states to expand sales tax coverage to include
services, but those efforts have met with staunch corporate and consumer
opposition. Regardless, the combined effect of the service-sector exemp-141 142
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tions and exemptions for '' special'' goods-producing industries, such as
agriculture and clothing, has been the gradual diminution of the sales tax
base in America.
In fact, in a December 2000 study in the National Tax Journal, econo-mists
Donald Bruce and William F. Fox of the University of Tennessee
Center for Business and Economic Research estimated that the sales tax
base as a percentage of personal income has fallen from roughly 52 percent
in the late 1970s to less than 42 percent today. Worse yet, evidence
suggests that, as the sales tax base has been gradually eroding in recent
decades, average sales tax rates have been going up. In other words, we
now have a rising average tax rate over a shrinking tax base. That is the
textbook definition of an inefficient tax. Optimally, economists want a
low tax rate over a very broad tax base.
Citizens should be cognizant of the deficiencies of the current system
and not allow state and local policymakers to trick them into thinking that
the Internet is to blame for the holes in their sales tax bases. Electronic
commerce sales constituted a surprisingly low 1. 1 percent of aggregate
retail sales in 2001 according to U. S. Department of Commerce data. In
light of this, it's hard to see how the Internet is to blame for the declining
sales tax base.
Before state or local officials beg Congress to save them from the
massive sales tax drain brought on by the Internet, they need to clean up
the mess they've created. And if they really want to find a way to '' level
the playing field'' and tax Internet transactions, an origin-based sales tax
system would allow them to do so in an economically efficient and
constitutionally sensible way. In the meantime, however, Congress would
be wise to permanently extend the existing ITFA moratorium on multiple
and discriminatory taxes, as well as Internet access taxes, and let Supreme
Court precedents continue to govern the interstate marketplace for elec-tronic
commerce transactions.

Suggested Readings
Bell, Tom W. '' Internet Gambling: Popular, Inexorable, and (Eventually) Legal. '' Cato Institute Policy Analysis no. 336, March 8, 1999, www. cato. org/ pubs/ pas/

pa-336es. html.
. '' Internet Privacy and Self-Regulation: Lessons from the Porn Wars. '' Cato Institute Briefing Paper no. 65, August 9, 2001, www. cato. org/ pubs/ briefs/

bp-065es. html.
Corn-Revere, Robert. '' Caught in the Seamless Web: Does the Internet's Global Reach Justify Less Freedom of Speech? '' Cato Institute Briefing Paper no. 71, July 24,

2002, www. cato. org/ pubs/ briefs/ bp-071es. html.

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Regulation of Electronic Speech and Commerce
Crews, Clyde Wayne Jr. '' Why Canning 'Spam' Is a Bad Idea. '' Cato Institute Policy Analysis no. 408, July 26, 2001, www. cato. org/ pubs/ pas/ pa-408es. html.
Lukas, Aaron. '' Tax Bytes: A Primer on the Taxation of Electronic Commerce. '' Cato Institute Trade Policy Analysis no. 9, www. freetrade. org/ pubs/ pas/ tpa-009es. html.
Singleton, Solveig. '' Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector. '' Cato Institute Policy Analysis no. 295, January 22,
1998, www. cato. org/ pubs/ pas/ pa-295. html. . '' Will the Net Turn Car Dealers into Dinosaurs? State Limits on Auto Sales
Online. '' Cato Institute Briefing Paper no. 58, July 25, 2000, www. cato. org/ pubs/ briefs/ bp-058es. html.
Wallace, Jonathan D. '' Nameless in Cyberspace: Anonymity on the Internet. '' Cato Institute Briefing Paper no. 54, December 8, 1999, www. cato. org/ pubs/ briefs/
bp-054es. html.
—Prepared by Clyde Wayne Crews Jr. and Adam Thierer

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15. Property Rights and Regulatory Takings
Congress should
enact legislation that specifies the constitutional rights of prop-erty
owners under the Fifth Amendment's Just Compensation Clause;

follow the traditional common law in defining '' private prop-erty,
'' '' public use, '' and '' just compensation''; treat property taken through regulation the same as property

taken through physical seizure; and provide a single forum in which property owners may seek
injunctive relief and just compensation promptly.

America's Founders understood clearly that private property is the
foundation not only of prosperity but of freedom itself. Thus, through the
common law and the Constitution, they protected property rights— the
rights of people to freely acquire and use property. With the growth of
the modern regulatory state, however, governments at all levels today are
eliminating those rights through so-called regulatory takings— regulatory
restraints that take property rights, reducing the value of the property, but
leave title with the owner. And courts are doing little to protect such
owners because the Supreme Court has yet to develop a principled, much
less comprehensive, theory of property rights. That failure has led to the
birth of the property rights movement in state after state. It is time now
for Congress to step in— to correct its own violations and to give guidance
to the courts as they adjudicate complaints about state violations.
When government condemns property outright, taking title from the
owner, courts require it to compensate the owner for his losses under the
Fifth Amendment's Takings or Just Compensation Clause: '' nor shall
private property be taken for public use without just compensation. '' The

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modern problem is not there— provided the compensation is just— but
with regulatory takings that provide goods for the public at the expense
of owners, who are often left with worthless titles. Courts have been
reluctant to award compensation in such cases because they have failed
to grasp the principles of the matter— due in part to an unwarranted
deference to the regulatory state. As a result, owners sometimes lose their
entire investment in their property, and they can do nothing about it.
Meanwhile, governments are only encouraged to further regulation since
the goods that are thus provided are cost free to the public.
Over the past decade, however, the Supreme Court has chipped away
at the problem and begun to require compensation in some cases— even
if its decisions are largely ad hoc, leaving most owners to bear the losses
themselves. Thus, owners today can get compensation when title is actually
taken, as just noted; when their property is physically invaded by govern-ment
order, either permanently or temporarily; when regulation for other
than health or safety reasons takes all or nearly all of the value of the
property; and when government attaches conditions that are unreasonable
or disproportionate when it grants a permit to use property. Even if that
final category of takings were clear, however, those categories would not
constitute anything like a comprehensive theory of the matter, much less
a comprehensive solution to the problem. For that, Congress (or the Court)
is going to have to turn to first principles, much as the old common law
judges did. The place to begin, then, is not with the public law of the
Constitution but with the private law of property.

Property: The Foundation of All Rights
It is no accident that a nation conceived in liberty and dedicated to
justice for all protects property rights. Property is the foundation of every
right we have, including the right to be free. Every legal claim, after all,
is a claim to something— either a defensive claim to keep what one is
holding or an offensive claim to something someone else is holding.
John Locke, the philosophical father of the American Revolution and
the inspiration for Thomas Jefferson when he drafted the Declaration of
Independence, stated the issue simply: '' Lives, Liberties, and Estates,
which I call by the general Name, Property. '' And James Madison, the
principal author of the Constitution, echoed those thoughts when he wrote
that '' as a man is said to have a right to his property, he may be equally
said to have a property in his rights. ''

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Much moral confusion would be avoided if we understood that all of
our rights— all of the things to which we are '' entitled''— can be reduced
to property. That would enable us to separate genuine rights— things to
which we hold title— from specious '' rights''— things to which other
people hold title, which we may want. It was the genius of the old common
law, grounded in reason, that it grasped that point. And the common law
judges understood a pair of corollaries as well: that property, broadly
conceived, separates one individual from another and that individuals are
independent or free to the extent that they have sole or exclusive dominion
over what they hold. Indeed, Americans go to work every day to acquire
property just so they can be independent.

Legal Protection for Property Rights
It would be to no avail, however, if property, once acquired, could not
be used and enjoyed— if rights of acquisition, enjoyment, and disposal
were not legally protected. Recognizing that, common law judges, charged
over the years with settling disputes between neighbors, have drawn upon
principles of reason and efficiency, and upon custom as well, to craft a
law of property that respects, by and large, the equal rights of all.
In a nutshell, the basic rights they have recognized, after the rights of
acquisition and disposal, are the right of sole dominion— or the right to
exclude others, the right against trespass; the right of quiet enjoyment—
a right everyone can exercise equally, at the same time and in the same
respect; and the right of active use— at least to the point where such use
violates the rights of others to quiet enjoyment. Just where that point is,
of course, is often fact dependent— and is the business of courts to decide.
But the point to notice, in the modern context, is that the presumption of
the common law is on the side of free use. At common law, that is, people
are not required to obtain a permit before they can use their property—
no more than people today are required to obtain a permit before they
can speak freely. Rather, the burden is upon those who object to a given
use to show how it violates their right of quiet enjoyment. That amounts
to having to show that their neighbor's use takes something they own
free and clear. If they fail, the use may continue.
Thus, the common law limits the right of free use only when a use
encroaches on the property rights of others, as in the classic lawof nuisance.
The implications of that limit, however, should not go unnoticed, especially
in the context of such modern concerns as environmental protection.
Indeed, it is so far from the case that property rights are opposed to

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environmental protection— a common belief today— as to be just the
opposite: the right against environmental degradation is a property right.
Under common law, properly applied, people cannot use their property
in ways that damage their neighbors' property— defined, again, as taking
things those neighbors hold free and clear. Properly conceived and applied,
then, property rights are self-limiting: they constitute a judicially crafted
and enforced regulatory scheme in which rights of active use end when
they encroach on the property rights of others.

The Police Power and the Power of Eminent Domain
But if the common law of property defines and protects private rights—
the rights of owners with respect to each other— it also serves as a guide
for the proper scope and limits of public law— defining the rights of
owners and the public with respect to each other. For public law, at least
at the federal level, flows from the Constitution; and the Constitution
flows from the principles articulated in the Declaration— which reflect,
largely, the common law. The justification of public law begins, then,
with our rights, as the Declaration makes clear. Government then follows,
not to give us rights through positive law, but to recognize and secure
the rights we already have. Thus, to be legitimate, government's powers
must be derived from and consistent with those rights.
The two public powers that are at issue in the property rights debate
are the police power— the power of government to secure rights— and
the power of eminent domain— the power to take property for public use
upon payment of just compensation, as set forth, by implication, in the
Fifth Amendment.
The police power— the first great power of government— is derived
from what Locke called the Executive Power, the power each of us has
in the state of nature to secure his rights. Thus, as such, it is legitimate,
since it is nothing more than a power we already have, by right, which
we gave to government, when we constituted ourselves as a nation, to
exercise on our behalf. Its exercise is legitimate, however, only insofar
as it is used to secure rights, and only insofar as its use respects the rights
of others. Thus, while our rights give rise to the police power, they also
limit it. We cannot use the police power for non-police-power purposes.
It is a power to secure rights, through restraints or sanctions, not some
general power to provide public goods.
A complication arises with respect to the federal government, however,
for it is not a government of general powers. Thus, there is no general

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federal police power, despite modern developments to the contrary (which
essentially ignore the principle). Rather, the Constitution establishes a
government of delegated, enumerated, and thus limited powers, leaving
most powers, including the police power, with the states or the people,
as the Tenth Amendment makes clear. (See Chapter 3 of this Handbook
for greater detail on this point.) If we are to abide by constitutional
principle, then, we have to recognize that whatever power the federal
government has to secure rights is limited to federal territory, by implica-tion,
or is incidental to the exercise of one of the federal government's
enumerated powers.
But if the police power is thus limited to securing rights, and the federal
government's police power is far more restricted, then any effort to provide
public goods must be accomplished under some other power— under some
enumerated power, in the case of the federal government. Yet any such
effort will be constrained by the Just Compensation Clause, which requires
that any provision of public goods that entails taking private property—
whether in whole or in part is irrelevant— must be accompanied by just
compensation for the owner of the property. Otherwise the costs of the
benefit to the public would fall entirely on the owner. Not to put too fine
a point on it, that would amount to plain theft. Indeed, it was to prohibit
that kind of thing that the Founders wrote the Just Compensation Clause
in the first place.
Thus, the power of eminent domain— which is not enumerated in
the Constitution but is implicit in the Just Compensation Clause— is an
instrumental power: it is a means through which government, acting under
some other power, pursues other ends— building roads, for example, or
saving wildlife. Moreover, unlike the police power, the eminent domain
power is not inherently legitimate: indeed, in a state of nature, none of
us would have a right to condemn a neighbor's property, however worthy
our purpose, however much we compensated him. Thus, it is not for
nothing that eminent domain was known in the 17th and 18th centuries
as '' the despotic power. '' It exists from practical considerations alone—
to enable public projects to go forward without being held hostage to lone
holdouts in a position to extract monopoly charges. As for its justification,
the best that can be said for eminent domain is this: the power was ratified
by those who were in the original position; and it is '' Pareto superior, ''
as economists say, meaning that at least one party (the public) is made
better off by its use while no one is made worse off— provided the owner
does indeed receive just compensation.

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When Is Compensation Required?
We come then to the basic question: When does government have to
compensate owners for the losses they suffer when regulations reduce the
value of their property? The answers are as follows.
First, when government acts to secure rights— when it stops someone
from polluting on his neighbor or on the public, for example— it is acting
under its police power and no compensation is due the owner, whatever
his financial losses, because the use prohibited or '' taken'' was wrong to
begin with. Since there is no right to pollute, we do not have to pay
polluters not to pollute. Thus, the question is not whether value was taken
by a regulation but whether a right was taken. Proper uses of the police
power take no rights. To the contrary, they protect rights.
Second, when government acts not to secure rights but to provide the
public with some good— wildlife habitat, for example, or a viewshed or
historic preservation— and in doing so prohibits or '' takes'' some otherwise
legitimate use, then it is acting, in part, under the eminent domain power
and it does have to compensate the owner for any financial losses he may
suffer. The principle here is quite simple: the public has to pay for the
goods it wants, just like any private person would have to. Bad enough
that the public can take what it wants by condemnation; at least it should
pay rather than ask the owner to bear the full cost of its appetite. It is
here, of course, that modern regulatory takings abuses are most common
as governments at all levels try to provide the public with all manner of
amenities, especially environmental amenities, '' off budget. '' As noted
above, there is an old-fashioned word for that practice: it is '' theft, '' and
no amount of rationalization about '' good reasons'' will change that. Even
thieves, after all, have '' good reasons'' for what they do.
Finally, when government acts to provide the public with some good
and that act results in financial loss to an owner but takes no right of the
owner, no compensation is due because nothing the owner holds free and
clear is taken. If the government closes a military base, for example, and
neighboring property values decline as a result, no compensation is due
those owners because the government's action took nothing they owned.
They own their property and all the uses that go with it that are consistent
with their neighbors' equal rights. They do not own the value in their
property.

Some Implications of a Principled Approach
Starting from first principles, then, we can derive principled answers
to the regulatory takings question. And we can see, in the process, that

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there is no difference in principle between an '' ordinary'' taking and a
regulatory taking, between taking full title and taking partial title— a
distinction that critics of property rights repeatedly urge, claiming that the
Just Compensation Clause requires compensation only for '' full'' takings.
If we take the text seriously, as we should, the clause speaks simply of
'' private property. '' As the quote above from Madison suggests, '' prop-erty''
denotes not just some '' underlying estate'' but all the estates— all
the uses— that can rightly be made of a holding. In fact, in every area of
property law except takings we recognize that property is a '' bundle of
sticks, '' any one of which can be bought, sold, rented, bequeathed, what
have you. Yet takings law has clung to the idea that only if the entire
bundle is taken does government have to pay compensation.
That view enables government to extinguish nearly all uses through
regulation— and hence to regulate nearly all value out of property— yet
escape the compensation requirement because the all but empty title
remains with the owner. And it would allow a government to take 90
percent of the value in year one, then come back a year later and take
title for a dime on the dollar. Not only is that wrong, it is unconstitutional.
It cannot be what the Just Compensation Clause stands for. The principle,
rather, is that property is indeed a bundle of sticks: take one of those
sticks and you take something that belongs to the owner. The only question
then is how much his loss is worth.
Thus, when the Court a few years ago crafted what is in effect a
100 percent rule, whereby owners are entitled to compensation only if
regulations restrict uses to a point where all value is lost, it went about
the matter backwards. It measured the loss to determine whether there
was a taking. As a matter of first principle, the Court should first have
determined whether there was a taking, then measured the loss. It should
first have asked whether otherwise legitimate uses were prohibited by the
regulation. That addresses the principle of the matter. It then remains
simply to measure the loss in value and hence the compensation that is
due. The place to start, in short, is with the first stick, not the last dollar.
The principled approach requires, of course, that the Court have a basic
understanding of the theory of the matter and a basic grasp of how to
resolve conflicting claims about use in a way that respects the equal rights
of all. That is hardly a daunting task, as the old common law judges
demonstrated. In general, the presumption is on the side of active use, as
noted earlier, until some plaintiff demonstrates that such use takes the

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quiet enjoyment that is his by right— and the defendant's right as well.
At that point the burden shifts to the defendant to justify his use: absent
some defense like the prior consent of the plaintiff, the defendant may
have to cease his use— or, if his activity is worth it, offer to buy an
easement or buy out the plaintiff. Thus, a principled approach respects
equal rights of quiet enjoyment— and hence environmental integrity. But
it also enables active uses to go forward— though not at the expense of
private or public rights. Users can be as active as they wish, provided
they handle the '' externalities'' they create in a way that respects the
rights of others.

What Congress Should Do
The application of such principles is often fact dependent, as noted
earlier, and so is best done by courts. But until the courts develop a more
principled and systematic approach to takings, it will fall to Congress to
draw at least the broad outlines of the matter, both as a guide for the
courts and as a start toward getting its own house in order.
In this last connection, however, the first thing Congress should do is
recognize candidly that the problem of regulatory takings begins with
regulation. Doubtless the Founders did not think to specify that regulatory
takings are takings too, and thus are subject to the Just Compensation
Clause, because they did not imagine the modern regulatory state: they
did not envision our obsession with regulating every conceivable human
activity and our insistence that such activity— residential, business, what
have you— take place only after a grant of official permission. In some
areas of business today we have almost reached the point at which it can
truly be said that everything that is not permitted is prohibited. That is
the opposite, of course, of our founding principle: everything that is not
prohibited is permitted— where '' permitted, '' means '' freely allowed, ''
not allowed '' by permit. ''
Home owners, developers, farmers and ranchers, mining and timber
companies, businesses large and small, profit making and not for profit,
all have horror stories about regulatory hurdles they confront when they
want to do something, particularly with real property. Many of those
regulations are legitimate, of course, especially if they are aimed, preemp-tively,
at securing genuine rights. But many more are aimed at providing
some citizens with benefits at the expense of other citizens. They take
rights from some to benefit others. At the federal level, such transfers are
not likely to find authorization under any enumerated power. But even if

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constitutionally authorized, they need to be undertaken in conformity
with the Just Compensation Clause. Some endangered species, to take a
prominent modern example, may indeed be worth saving, even if the
authority for doing so belongs to states, and even if the impetus comes
from a relatively small group of people. We should not expect a few
property owners to bear all the costs of that undertaking, however. If the
public truly wants the habitat for such species left undisturbed, let it buy
that habitat or, failing that, pay the costs to the relevant owners of their
leaving their property unused.
In general, then, Congress should review the government's many regula-tions
to determine which are and are not authorized by the Constitution.
If not authorized, they should be rescinded, which would end quickly a
large body of regulatory takings now in place. But if authorized under
some enumerated power of Congress, the costs now imposed on owners,
for benefits conferred on the public generally, should be placed '' on
budget. '' Critics of doing that are often heard to say that if we did go on
budget, we couldn't afford all the regulations we want. What they are
really saying, of course, is that taxpayers would be unwilling to pay for
all the regulations the critics want. Indeed, the great fear of those who
oppose taking a principled approach to regulatory takings is that once the
public has to pay for the benefits it now receives '' free, '' it will demand
fewer of them. It should hardly surprise that when people have to pay for
something they demand less of it.
It is sheer pretense, of course, to suppose that such benefits are now
free, that they are not already being paid for. Isolated owners are paying
for them, not the public. As a matter of simple justice, then, Congress
needs to shift the burden to the public that is demanding and enjoying
the benefits. Among the virtues of doing so is this: once we have an
honest, public accounting, we will be in a better position to determine
whether the benefits thus produced are worth the costs. Today, we have
no idea about that because all the costs are hidden. When regulatory
benefits are thus '' free, '' the demand for them, as we see, is all but
unbounded.
But in addition to eliminating, reducing, or correcting its own regulatory
takings— in addition to getting its own house in order— Congress needs
to enact general legislation on the subject of takings that might help to
restore respect for property rights and reorient the nation toward its own
first principles. To that end, Congress should

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Enact Legislation That Specifies the Constitutional Rights of Property Owners under the Fifth Amendment's Just Compensation Clause
As already noted, legislation of the kind here recommended would be
unnecessary if the courts were doing their job correctly and reading the
Just Compensation Clause properly. Because they are not, it falls to
Congress to step in. Still, there is a certain anomaly in asking Congress
to do the job. Under our system, after all, the political branches and the
states represent and pursue the interests of the people within the constraints
established by the Constitution; and it falls to the courts, and the Supreme
Court in particular, to ensure that those constraints are respected. To do
that, the Court interprets and applies the Constitution as it decides cases
brought before it— cases often brought against the political branches or
a state, as here, where an owner seeks either to enjoin a government action
on the ground that it violates his rights or to obtain compensation under
the Just Compensation Clause, or both. Thus, it is somewhat anomalous
to ask or expect Congress to right wrongs that Congress itself may be
perpetrating. After all, is not Congress, in its effort to carry out the public's
will, simply doing its job?
The answer, of course, is yes, Congress is doing its job, and thus this
call for reform— against the '' natural'' inclination of Congress, if you
will— is somewhat anomalous. But that is not the whole answer. For
members of Congress take an oath to uphold the Constitution, which
requires them to exercise independent judgment about the meaning of its
terms. In doing that, they need to recognize that we do not live in anything
like a pure democracy. The Constitution sets powerful and far-reaching
restraints on the powers of all three branches of the federal government
and, since ratification of the Civil War Amendments, on the states as
well. Thus, the simple-minded majoritarian view of our system— whereby
Congress simply enacts whatever some transient majority of the population
wants enacted, leaving it to the Court to determine the constitutionality
of the act— must be resisted as a matter of the oath of office. The oath
is taken on behalf of the people, to be sure, but through and in conformity
with the Constitution. When the Court fails to secure the liberties of the
people, there is nothing in the Constitution to prevent Congress from
exercising the responsibility entailed by the oath of office. In fact, that
oath requires Congress to step into the breach.
There is no guarantee, of course, that Congress will do a better job of
interpreting the Constitution than the Court. In fact, given that Congress
is an '' interested'' party, it could very well do a worse job, which is why

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the Founders placed '' the judicial Power''— entailing, presumably, the
power ultimately to say what the law is— with the Court. But that is no
reason for Congress to ignore its responsibility to make its judgment
known, especially when the Court is clearly wrong, as it is here. Although
nonpolitical in principle, the Court does not operate in a political vacuum—
as it demonstrated in 1937, unfortunately, after Franklin Roosevelt's notori-ous
Court-packing threat. If the Court can be persuaded to undo the
centerpiece of the Constitution, the doctrine of enumerated powers, one
imagines it can be persuaded to restore property rights to their proper
constitutional status.
Thus, in addition to rescinding or correcting legislation that now results
in uncompensated regulatory takings, and enacting no such legislation in
the future, Congress should also enact a more general statute that specifies
the constitutional rights of property owners under the Fifth Amendment's
Just Compensation Clause, drawing upon common law principles to do
so. That means that Congress should

Follow the Traditional Common Law in Defining '' Private Property, '' '' Public Use, '' and '' Just Compensation''

As we saw above, property rights in America are not simply a matter
of the Fifth Amendment— of positive law. Indeed, during the more than
two years between the time the Constitution was ratified and took effect
and the time the Bill of Rights was ratified, property rights were protected
not only against private but against public invasion as well. That protection
stemmed, therefore, not from any explicit constitutional guarantee but
from the common law. Thus, the Just Compensation Clause was meant
simply to make explicit, against the new federal government, the guarantees
that were already recognized under the common law. (Those guarantees
were implicit in the new Constitution, of course, through the doctrine of
enumerated powers; for no uncompensated takings were therein author-ized.)
With the ratification of the Civil War Amendments— and the Four-teenth
Amendment's Privileges or Immunities Clause in particular— the
common law guarantees against the states were constitutionalized as well.
Thus, because the Just Compensation Clause takes its inspiration and
meaning from the common law of property, it is there that we must look
to understand its terms.
Those terms begin with '' private property'': '' nor shall private property
be taken for public use without just compensation. '' As every first-year
law student learns, '' private property'' means far more than a piece of

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real estate. Were that not the case, property law would be an impoverished
subject indeed. Instead, the common law reveals the many significations
of the concept '' property'' and the rich variety of arrangements that
human imagination and enterprise have made of the basic idea of private
ownership. As outlined above, however, those arrangements all come
down to three basic ideas— acquisition, exclusive use, and disposal— the
three basic property rights, from which more specifically described rights
may be derived.
With regard to regulatory takings, however, the crucial thing to notice
is that, absent contractual arrangements to the contrary, the right to acquire
and hold property entails the right to use and dispose of it as well. As
Madison said, people have '' a property'' in their rights. If the right to
property did not entail the right of use, it would be an empty promise.
People acquire property, after all, only because doing so enables them to
use it, which is what gives it its value. Indeed, the fundamental complaint
about uncompensated regulatory takings is that, by thus eliminating the
uses from property, government makes the title itself meaningless, which
is why it is worthless. Who would buy '' property'' that cannot be used?
The very concept of '' property, '' therefore, entails all the legitimate
uses that go with it, giving it value. And the uses that are legitimate are
those that can be exercised consistent with the rights of others, private
and public alike, as defined by the traditional common law. As outlined
above, however, the rights of others that limit the rights of an owner are
often fact dependent. Thus, legislation can state only the principle of the
matter, not its application in particular contexts. Still, the broad outlines
should be made clear in any congressional enactment: the term '' private
property'' includes all the uses that can be made of property consistent
with the common law rights of others, and those uses can be restricted
without compensating the owner only to secure such rights, not to secure
public goods or benefits.
The '' public use'' requirement also needs to be tightened, not least
because it is a source of private-public collusion against private rights.
As noted above, eminent domain was known in the 17th and 18th centuries
as '' the despotic power'' because no private person would have the power
to condemn, even if he had a worthy reason and did pay just compensation.
Yet we know that public agencies often do condemn private property for
such private uses as railroad rights-of-way, auto plant construction, and
casino parking lots. Those are rank abuses of the public use principle:
they amount to grants of private eminent domain— and invitations to

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public graft and corruption. Every private use has spillover benefits for
the public, of course. But if that were the standard for defining '' public
use, '' then every time someone wanted to expand his business over his
neighbor's property, he could go to the relevant public agency and ask
that the neighbor's property be condemned since the expansion would
benefit the public through increased jobs, business, taxes, what have you.
He would no longer need to bargain with his neighbor but could simply
ask— or '' pay''— the agency to condemn the property '' for the public
good. ''
Because it is a despotic power, even when just compensation is paid,
eminent domain should be used sparingly and only for a truly public use.
That means for a use that is broadly enjoyed by the public, rather than
by some narrow part of the public; and in the case of the federal government
it means for a constitutionally authorized use. More precisely, it means
for a use that is owned and controlled by the public. Condemnation, after
all, transfers title— either in part, for a regulatory taking, or in whole, for
a full taking. If the condemnation transfers title from one private party to
another, it is simply illegitimate.
Thus, condemnation for building a sports stadium may be authorized
under some state's constitution, but if the stadium is then owned and
managed by and for the benefit of private parties, the '' public use'' standard
has been abused, whatever the spill-over '' public'' benefits may be. Here
again it is the title that settles the matter. Yet even if the public keeps the
title, but the effect of the transfer is to benefit a small portion of the public
rather than the public generally, the condemnation is also likely to be
illegitimate because it is not truly for a '' public'' use. If some small group
wants the benefits provided by the condemnation, private markets provide
ample opportunities for obtaining them— the right way. To avoid abuse
and the potential for corruption, then, Congress needs to define '' public
use'' rigorously, with reference to titles and use.
Finally, Congress should define '' just compensation'' with reference
to its function: it is a remedy for the wrong of taking someone's property.
That the Constitution implicitly authorizes that wrong does not change
the character of the act, of course. As noted above, eminent domain
is '' justified'' for practical reasons— and because '' we'' authorized it
originally, although none of us today, of course, was there to do so. Given
the character of the act, then, the least the public can do is make the
victim whole. That too will be a fact-dependent determination. But Con-gress
should at least make it clear that '' just'' compensation means compen-157 158
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sation for all losses that arise from the taking, plus an added measure to
acknowledge the fact that the losses arise not by mere accident, as with
a tort, but from a deliberate decision by the public to force the owner to
give up his property.
It should be noted, however, that not every regulatory taking will require
compensation for an owner. Minimal losses, for example, may be difficult
to prove and not worth the effort. Moreover, some regulatory restrictions
may actually enhance the value of property or of particular pieces of
property— say, if an entire neighborhood is declared '' historic. '' Finally,
'' just compensation'' should always reflect market value before, and with
no anticipation of, regulatory restrictions. Given the modern penchant for
regulation, that may not always be easy. But in general, given the nature
of condemnation as a forced taking, any doubt should be resolved to the
benefit of the owner forced to give up his property.
If Congress enacts general legislation that specifies the constitutional
rights of property owners by following the common law in defining the
terms of the Just Compensation Clause, it will abolish, in effect, any real
distinction between full and partial takings. Nevertheless, Congress should
be explicit about what it is doing. Any legislation it enacts should

Treat Property Taken through Regulation the Same As Property Taken through Physical Seizure

The importance of enacting a unified and uniform takings law cannot
be overstated. Today, we have one law for '' full takings, '' '' physical
seizures, '' '' condemnations''— call them what you will— and another for
'' partial takings, '' '' regulatory seizures, '' or '' condemnations of uses. ''
Yet there is overlap, too: thus, as noted above, the Court recently said
that if regulations take all uses, compensation is due— perhaps because
eliminating all uses comes to the same thing, in effect, as a '' physical
seizure, '' whereas eliminating most uses seems not to come to the
same thing.
That appearance is deceptive, of course. In fact, the truth is much
simpler— but only if we go about discovering it from first principles. If
we start with an owner and his property, then define '' property, '' as above,
as including all legitimate uses, it follows that any action by government
that takes any property is, by definition, a taking— requiring compensation
for any financial losses the owner may suffer as a result. The issue is
really no more complicated than that. There is no need to distinguish
'' full'' from '' partial'' takings: every condemnation, whether '' full'' or

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'' partial, '' is a taking. Indeed, the use taken is taken '' in full. '' Imagine
that the property were converted to dollars— 100 dollars, say. Would we
say that if the government took all 100 dollars there was a taking, but if
it took only 50 of the 100 dollars there was not a taking? Of course not.
Yet that is what we say under the Court's modern takings doctrine because,
as one justice recently put it, '' takings law is full of these 'all-or-nothing'
situations. ''
That confusion must be ended. Through legislation specifying the rights
of property owners, Congress needs to make it clear that compensation
is required whenever government eliminates common law property rights
and an owner suffers a financial loss as a result— whether the elimination
results from regulation or from outright condemnation.
The promise of the common law and the Constitution will be realized,
however, only through procedures that enable aggrieved parties to press
their complaints. Some of the greatest abuses today are taking place
because owners are frustrated at every turn in their efforts to reach the
merits of their claims. Accordingly, Congress should

Provide a Single Forum in Which Property Owners May Seek Injunctive Relief and Just Compensation Promptly

In its 1998 term the Supreme Court decided a takings case that began
17 years before, in 1981, when owners applied to a local planning commis-sion
for permission to develop their land. After having submitted numerous
proposals, all rejected, yet each satisfying the commission's recommenda-tions
following a previously rejected proposal, the owners finally sued,
at which point they faced the hurdles the courts put before them. Most
owners, of course, cannot afford to go through such a long and expensive
process, at the end of which the odds are still against them. But that
process today confronts property owners across the nation as they seek
to enjoy and then to vindicate their rights. If it were speech or voting or
any number of other rights, the path to vindication would be smooth by
comparison. But property rights today have been relegated to a kind of
second-class status.
The first problem, as noted above, is the modern permitting regime.
We would not stand for speech or religion or most other rights to be
enjoyed only by permit. Yet that is what we do today with property rights,
which places enormous, often arbitrary power in the hands of federal,
state, and local '' planners. '' Driven by political goals and considerations—
notwithstanding their pretense to '' smart growth''— planning commissions

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open the application forum not only to those whose rights might be at
stake but to those with interests in the matter. Thus is the common law
distinction between rights and interests blurred and eventually lost. Thus
is the matter transformed from one of protecting rights to one of deciding
whose '' interests'' should prevail. Thus are property rights effectively
politicized. And that is the end of the matter for most owners because
that is as far as they can afford to take it.
When an owner does take it further, however, he finds the courts are
no more inclined to hear his complaint than was the planning commission.
Federal courts routinely abstain from hearing federal claims brought against
state and local governments, requiring owners to litigate their claims in
state courts before they can even set foot in a federal court on their federal
claims. Moreover, the Supreme Court has held that an owner's claim is
not ripe for adjudication unless (1) he obtains a final, definitive agency
decision regarding the application of the regulation in question, and (2) he
exhausts all available state compensation remedies. Needless to say, plan-ners,
disinclined to approve applications to begin with, treat those standards
as invitations to stall until the '' problem'' goes away. Finally, when an
owner does get into federal court with a claim against the federal govern-ment,
he faces the so-called Tucker Act Shuffle: he cannot get injunctive
relief and compensation from the same court but must instead go to a
federal district court for an injunction and to the Federal Court of Claims
for compensation.
The 105th and 106th Congresses tried to address those procedural
hurdles through several measures, none of which passed both houses.
They must be revived and enacted if the unconscionable way we treat
owners, trying simply to vindicate their constitutional rights, is to be
brought to an end. This is not a matter of '' intruding'' on state and local
governments. Under the Fourteenth Amendment, properly understood and
applied, those governments have no more right to violate the constitutional
rights of citizens than the federal government has to intrude on the legiti-mate
powers of state and local governments. Federalism is not a shield
for local tyranny. It is a brake on tyranny, whatever its source.

Conclusion
The Founders would be appalled to see what we have done to property
rights over the course of the 20th century. One would never know that
their status, in the Bill of Rights, was equal to that of any other right. The
time has come to restore respect for these most basic of rights, the founda-160 161
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tion of all of our rights. Indeed, despotic governments have long understood
that if you control property, you control the media, the churches, the
political process itself. We are not at that point yet. But if regulations that
provide the public with benefits continue to grow, unchecked by the need
to compensate those from whom they take, we will gradually slide to that
point— and in the process will pay an increasingly heavy price for the
uncertainty and inefficiency we create. The most important price, however,
will be to our system of law and justice. Owners are asking simply that
their government obey the law— the common law and the law of the
Constitution. Reduced to its essence, they are saying simply this: Stop
stealing our property; if you must take it, do it the right way— pay for it.
That hardly seems too much to ask.

Suggested Readings
Bethell, Tom. The Noblest Triumph: Property and Prosperity through the Ages. New York: St. Martin's, 1998.

Coyle, Dennis J. Property Rights and the Constitution: Shaping Society through Land Use Regulation. Albany, N. Y.: State University of New York Press, 1993.
DeLong, James V. Property Matters: How Property Rights Are under Assault— And Why You Should Care. New York: Free Press, 1997.
Eagle, Steven J. Regulatory Takings. Charlottesville, Va.: Michie Law Publishers, 1996. Ely, James W. Jr. The Guardian of Every Other Right: A Constitutional History of
Property Rights. 2d ed. New York: Oxford University Press, 1998.
Epstein, Richard A. Takings: Private Property and the Power of Eminent Domain. Cambridge, Mass.: Harvard University Press, 1985.

Farah, Joseph, and Richard Pombo. This Land Is Our Land: How to End the War on Private Property. New York: St. Martin's, 1996.
Locke, John. '' Second Treatise of Government. '' In Two Treatises of Government. Edited by Peter Laslett. New York: Mentor, 1965.
Madison, James. '' Property. '' In National Gazette, March 29, 1792. Reprinted in The Papers of James Madison, vol. 14, 6 April 1791– 16 March 1793. Edited by Robert
A. Rutland et al. Charlottesville: University Press of Virginia, 1983. Pilon, Roger. '' Are Property Rights Opposed to Environmental Protection? '' In The
Moral High Ground: An Anthology of Speeches from the First Annual New York
State Conference on Private Property Rights. Edited by Carol W. LaGrasse. Stony
Creek, N. Y.: Property Rights Foundation of America, 1995. . '' Property Rights, Takings, and a Free Society. '' Harvard Journal of Law and

Public Policy 6 (1983).
Pipes, Richard. Property and Freedom: How through the Centuries Private Ownership Has Promoted Liberty and the Rule of Law. New York: Alfred A. Knopf, 1999.

Siegan, Bernard H. Property and Freedom: The Constitution, the Courts, and Land-Use Regulation. New Brunswick, N. J.: Transaction Press, 1997.
Siegan, Bernard H., editor. Planning without Prices: The Takings Clause As It Relates to Land Use Regulation without Just Compensation. Lexington, Mass.: Lexington
Books, 1977.
—Prepared by Roger Pilon

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16. Tobacco and the Rule of Law
Congress should
deny funding for the Justice Department's racketeering suit
against cigarette makers, enact legislation to abrogate the multistate tobacco settle-ment,

and reject proposed legislation to regulate cigarette manufacturing
and advertising.

Introduction
Ten months after tobacco companies and 46 state attorneys general
settled their differences for a quarter of a trillion dollars, the U. S. Depart-ment
of Justice decided that it wanted a share of the plunder. DOJ's
complaint alleged that cigarette companies had been conspiring since the
1950s to defraud the American public and conceal information about the
effects of smoking. Specifically, the government contended that industry
executives knowingly made false and misleading statements about whether
smoking causes disease and whether nicotine is addictive.
On the one hand, DOJ promoted its novel lawsuit against cigarette
makers. On the other hand, the same watchdog agency stood idly by while
tobacco companies and state attorneys general teamed up to violate the
antitrust laws. The multistate tobacco settlement, a cunning and deceitful
bargain between the industry and the states, allows the tobacco giants to
monopolize cigarette sales and foist the cost onto smokers.
Congress can take affirmative steps to counteract those abuses of execu-tive
power: first, by denying funds for DOJ's ongoing lawsuit and, second,
by enacting legislation that abrogates the multistate tobacco settlement.

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At the same time, Congress should reject any attempt to regulate cigarette
advertising or the content of tobacco products.

Deny Funding for DOJ's Racketeering Suit against Cigarette Makers

In its litigation against the tobacco industry, the federal government
demanded billions of dollars to pay for health care expenditures— mostly
Medicare outlays— related to smoking. DOJ's legal theory was modeled
after the states' lawsuits, which were designed to replenish depleted Medi-caid
coffers. Like the states, the federal government argued that it could
sue tobacco companies without stepping into the shoes of each smoker.
That way, so the theory goes, DOJ would not be subject to the '' assumption-of-
risk'' defense that had been a consistent winner for the industry over
four decades of litigation.
As you would expect, government officials understood the assumption-of-
risk principle perfectly well. Indeed, former veterans affairs secretary
Jesse Brown invoked it when the government itself was threatened with
liability for having provided soldiers with cigarettes over many years. It
would be '' borderline absurdity'' to pay for '' veterans' personal choice
to engage in conduct damaging to their health, '' he said. '' If you choose
to smoke, you are responsible for the consequences. ''
Evidently that principle applied only if the defendant was a government
agency. When private companies were sued, DOJ asserted that it could
recover from the tobacco industry merely because smoking injured some-one
covered by Medicare— even if that person, having voluntarily assumed
the risk of smoking, could not recover on his own. The same tobacco
company selling the same cigarettes to the same smoker, resulting in the
same injury, would be liable only if the smoker was a Medicare recipient
and the government was the plaintiff. Otherwise, the assumption-of-risk
defense would apply. Liability hinged on the injured party's Medicare
status, a happenstance unrelated to any misconduct by the industry.
The federal government also wanted the court to ignore the traditional
tort law requirement that causation be demonstrated on a smoker-by-smoker
basis. Instead, DOJ wanted to adduce only aggregate statistics,
indicating a higher incidence of certain diseases among smokers than
among nonsmokers. For example, statistics showed that smokers are more
likely than nonsmokers to suffer burn injuries. So tobacco companies
would have to pay for many careless persons who fell asleep with a lit
cigarette. Similarly, the industry would have to shell out for persons who

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had heart attacks and other '' smoking-related'' diseases but who never
smoked. Without individualized corroborating evidence, aggregate statis-tics
might suggest liability. Only common sense would dictate otherwise.
To reinforce and supplement its bizarre tort theories, DOJ relied on
three statutes: the Medical Care Recovery Act, the Medicare Secondary
Payer Act, and the civil provisions of the Racketeer Influenced and Corrupt
Organizations Act. Federal judge Gladys Kessler dismissed both the
MCRA and MSPA claims out of hand. She allowed the RICO claim to go
forward, although she expressed some reservations about the government's
ability to prove damages.
Nowadays, RICO is used as a standard bullying tactic by plaintiffs'
attorneys, even though the act was supposed to be invoked against orga-nized
crime. This time, however, DOJ had to deal with an embarrassing
admission, tucked away in the final sentence of the press release that
announced its lawsuit: '' There are no pending Criminal Division investiga-tions
of the tobacco industry. ''
Two dozen prosecutors and FBI agents had conducted a five-year,
multi-million-dollar inquiry during which they dissected allegations and
plowed through documents for evidence that tobacco executives perjured
themselves and manipulated nicotine levels. Whistleblowers and company
scientists testified before grand juries. The outcome: not a single indictment
of a tobacco company or industry executive.
Nonetheless, then– attorney general Janet Reno somehow conjured up
a RICO claim that accused the industry of the very same infractions for
which grand juries could not find probable cause. Here's just one example,
count number three: In November 1959, the industry '' did knowingly cause
a press release to be sent and delivered by the U. S. mails to newspapers and
news outlets. This press release contained statements attacking an article
written by then– U. S. Surgeon General Leroy Burney about the hazards
of smoking. '' There you have it— racketeering, in all its sordid detail.
Clinton administration insiders knew that the charges were trumped up.
Former Clinton aide Rahm Emanuel put it this way: '' If the White House
hadn't asked, [Reno] would never have looked at it again. '' So it's politics,
not law, that's driving this litigation. The American public needs to know
that our tort system is rapidly becoming a tool for extortion. Sometimes
opportunistic politicians seek money; sometimes they pursue policy goals;
often they abuse their power. When Clinton was unable to persuade
Congress to enact another tax on smokers, he simply bypassed the legisla-ture
and asked a federal court to impose damages in lieu of taxes. Evidently,

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anything goes— and the rule of law goes out the window. But Congress
can do better. Call off the government's anti-tobacco crusade. Put an im-mediate
stop to DOJ's power grab by denying funds to continue its lawsuit.

Enact Legislation to Abrogate the Multistate Tobacco Settlement

While DOJ presses its campaign to extort money from hapless tobacco
companies, the Antitrust Division looks the other way as those same
companies, in collaboration with state attorneys general, commit what is
arguably the most egregious antitrust violation of our generation— a collu-sive
tobacco settlement that is bilking 45 million smokers out of a quarter
of a trillion dollars.
The Master Settlement Agreement, signed in November 1998 by the
major tobacco companies and 46 state attorneys general, transforms a
competitive industry into a cartel, then guards against destabilization of
the cartel by erecting barriers to entry that preserve the dominant market
share of the tobacco giants. Far from being victims, the big four tobacco
companies are at the very center of the plot. They managed to carve out
a protected market for themselves— at the expense of smokers and tobacco
companies that did not sign the agreement.
To be sure, the industry would have preferred that the settlement had
not been necessary. But given the perverse legal rules under which the
state Medicaid recovery suits were unfolding, the major tobacco companies
were effectively bludgeoned into negotiating with the states and the trial
lawyers. Finding itself in that perilous position, the industry shrewdly
bargained for something pretty close to a sweetheart deal.
The MSA forces all tobacco companies— even new companies and
companies that were not part of the settlement— to pay '' damages, '' thus
foreclosing meaningful price competition. Essentially, the tobacco giants
have purchased (at virtually no cost to themselves) the ability to exclude
competitors. The deal works like this: Philip Morris, Reynolds, Lorillard,
and Brown & Williamson knew they would have to raise prices substan-tially
to cover their MSA obligations. Accordingly, they were concerned
that smaller domestic manufacturers, importers, and new tobacco compa-nies
that didn't sign the agreement would gain market share by underpricing
cigarettes. To guard against that likelihood, the big four and their state
collaborators added three provisions to the MSA:
First, if the aggregate market share of the four majors were to decline
by more than two percentage points, then their '' damages'' payments

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would decline by three times the excess over the two-percentage-point
threshold. Any reduction would be charged against only those states that
did not adopt a '' Qualifying Statute, '' attached as an exhibit to the MSA.
Naturally, because of the risk of losing enormous sums of money, all of
the states have enacted the statute.
Second, the Qualifying Statute requires all tobacco companies that did
not sign the MSA to post pro rata damages— based on cigarette sales—
in escrow for 25 years to offset any liability that might hereafter be
assessed! That's right— no evidence, no trial, no verdict, no injury, just
damages. That was the stick. Then came the carrot.
Third, if a nonsettling tobacco company agreed to participate in the
MSA, the Qualifying Statute would not apply. In fact, the new participant
would be allowed to increase its market share by 25 percent of its 1997
level. Bear in mind that no nonsettling company in 1997 had more than
1 percent of the market, which, under the MSA, could grow to a whopping
1.25 percent. Essentially, the dominant companies guaranteed themselves
virtually all of the market in perpetuity.
Perhaps as troubling, the settlement has led to massive and continuing
shifts of wealth from millions of smokers to concentrated pockets of the
bar. Predictably, part of that multi-billion-dollar booty has started its
roundtrip back into the political process— to influence state legislators,
judges, attorneys general, governors, city mayors, maybe some federal
officials. With all that money in hand, trial lawyers have seen their politi-cal
influence grow exponentially. Every day that passes more firmly
entrenches the MSA as a fait accompli, and more tightly cements the
insidious relationship between trial attorneys and their allies in the public
sector. The billion-dollar spigot must be turned off before its corrupting
effect on the rule of law is irreversible.
An obvious way to turn off the spigot is to abrogate the MSA. If it is
allowed to stand, the MSA will create and finance a rich and powerful
industry of lawyers who know how to manipulate the system and are not
averse to violating the antitrust laws. Congress should dismantle the MSA
to restore competition. That's a tall order, but the stakes are immense.

Reject Proposed Legislation to Regulate Cigarette Manufacturing and Advertising

Under legislation introduced in June 2002 by Sens. Edward Kennedy
(D-Mass.), Mike DeWine (R-Ohio), and Richard Durbin (D-Ill.), the Food
and Drug Administration would be authorized to regulate cigarette ads and

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ingredients, including nicotine— or to ban nicotine altogether. Lamentably,
Philip Morris— the industry leader with the most to gain from restrictions
on would-be competitors— quickly chimed in to support many of the
proposals. Yet, if tobacco is to be regulated as a drug, Congress will
simply be guaranteeing a pervasive black market in tobacco products.
FDA regulation that makes cigarettes taste like tree bark, coupled with
higher prices, will inevitably foment illegal dealings dominated by criminal
gangs hooking underage smokers on an adulterated product freed of all
the constraints on quality that competitive markets usually afford.
The war on cigarettes, like other crusades, may have been well-inten-tioned
at the beginning; but as zealotry takes hold, the regulations become
foolish and ultimately destructive. Consider the current attempt to control
tobacco advertising. Not only are the public policy implications harmful,
but there are obvious First Amendment violations that should concern
every American who values free expression. Our Constitution protects
Klan speech, flag burning, and gangsta rap, which, by the way, directly
targets teenagers. But if Tiger Woods showed up in an ad for Camel
cigarettes, the anti-tobacco crowd would bring the boot of government
down hard on the neck of R. J. Reynolds.
Industry critics point to the impact of tobacco ads on uninformed and
innocent teenagers. But the debate is not about whether teens smoke; they
do. It's not about whether smoking is bad for them; it is. The real question
is whether tobacco advertising can be linked to increases in aggregate
consumption. There's no evidence for that link. The primary purpose of
cigarette ads, like automobile ads, is to persuade consumers to switch
from one manufacturer to another. Six European countries that banned
all tobacco ads have seen overall sales increase— probably because health
risks are no longer documented in the banned ads.
In 1983, the Supreme Court held that government may not '' reduce
the adult population . . . to reading only what is fit for children. '' Thirteen
years later, the Court affirmed that even vice products like alcoholic
beverages are entitled to commercial speech protection. Most recently,
the Court threw out Massachusetts regulations banning selected cigar and
smokeless tobacco ads. Those ads are not the problem. Kids smoke because
of peer pressure, because their parents smoke, and because they are rebel-ling
against authority.
If advertising were deregulated, newer and smaller tobacco companies
would vigorously seek to carve out a bigger market share by emphasizing
health claims that might bolster brand preference. In 1950, however,

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the Federal Trade Commission foreclosed health claims— such as '' less
smoker's cough''— as well as tar and nicotine comparisons for existing
brands. To get around that prohibition, aggressive companies created new
brands, which they supported with an avalanche of health claims. Filter
cigarettes grew from roughly 1 percent to 10 percent of domestic sales
within four years.
Then in 1954, the FTC tightened its restrictions by requiring scientific
proof of health claims, even for new brands. The industry returned to
promoting taste and pleasure; aggregate sales expanded. By 1957, scientists
had confirmed the benefit of low-tar cigarettes. A new campaign of '' Tar
Derby'' ads quickly emerged, and tar and nicotine levels collapsed 40
percent in two years. To shut down the flow of health claims, the FTC
next demanded that they be accompanied by epidemiological evidence,
of which none existed. The commission then negotiated a '' voluntary''
ban on tar and nicotine comparisons.
Not surprisingly, the steep decline in tar and nicotine ended in 1959.
Seven years later, apparently alerted to the bad news, the FTC reauthorized
tar and nicotine data but continued to proscribe associated health claims.
Finally, in 1970 Congress banned all radio and television ads. Overall
consumption has declined slowly since that time. In today's climate, the
potential gains from health-related ads are undoubtedly greater than ever—
for both aggressive companies and health-conscious consumers. If, how-ever,
government regulation expands, those gains will not be realized.
Instead of '' healthy'' competition for market share, we will be treated to
more imagery and personal endorsements— the very ads that anti-tobacco
partisans decry.
If the imperative is to reduce smoking among children, the remedy lies
with state governments, not the U. S. Congress. The sale of tobacco products
to youngsters is illegal in every state. Those laws need to be vigorously
enforced. Retailers who violate the law must be prosecuted. Proof of age
requirements are appropriate if administered objectively and reasonably.
Vending machine sales should be prohibited in areas such as arcades and
schools where children are the main clientele. And if a minor is caught
smoking or attempting to acquire cigarettes, his parents should be notified.
Parenting is, after all, primarily the responsibility of fathers and mothers,
not the government.
Instead, government has expanded its war on tobacco far beyond any
legitimate concern with children's health. Mired in regulations, laws, taxes,
and litigation, we look to Congress to extricate us from the mess it helped

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create. Yet if Congress authorizes the FDA to regulate cigarette ads and
control the content of tobacco products, it will exacerbate the problem.
Equally important, Congress will have delegated excessive and ill-advised
legislative authority to an unelected administrative agency, and set the
stage for significant intrusions on commercial free speech.

Suggested Readings
Bulow, Jeremy, and Paul Klemperer. '' The Tobacco Deal. '' In Brookings Papers on Economic Activity: Microeconomics 1998. Washington: Brookings Institution, 1998.

Calfee, John E. '' The Ghost of Cigarette Advertising Past. '' Regulation, Novem-ber– December 1986.
Levy, Robert A. '' Tobacco-Free FDA. '' Administrative Law & Regulation News 2, no. 3 (Winter 1998).
. '' Tobacco Medicaid Litigation: Snuffing Out the Rule of Law. '' Cato Institute Policy Analysis no. 275, June 20, 1997.
O'Brien, Thomas C. '' Constitutional and Antitrust Violations of the Multistate Tobacco Settlement. '' Cato Institute Policy Analysis no. 371, May 18, 2000.

—Prepared by Robert A. Levy

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17. The War on Drugs
Congress should
repeal the Controlled Substances Act of 1970,
repeal the federal mandatory minimum sentences and the man-datory
sentencing guidelines, direct the administration not to interfere with the implementation

of state initiatives that allow for the medical use of mari-juana, and
shut down the Drug Enforcement Administration.

Ours is a federal republic. The federal government has only the powers
granted to it in the Constitution. And the United States has a tradition of
individual liberty, vigorous civil society, and limited government. Identifi-cation
of a problem does not mean that the government ought to undertake
to solve it, and the fact that a problem occurs in more than one state does
not mean that it is a proper subject for federal policy.
Perhaps no area more clearly demonstrates the bad consequences of
not following such rules than does drug prohibition. The long federal
experiment in prohibition of marijuana, cocaine, heroin, and other drugs
has given us crime and corruption combined with a manifest failure to
stop the use of drugs or reduce their availability to children.
In the 1920s Congress experimented with the prohibition of alcohol.
On February 20, 1933, a new Congress acknowledged the failure of alcohol
prohibition and sent the Twenty-First Amendment to the states. Congress
recognized that Prohibition had failed to stop drinking and had increased
prison populations and violent crime. By the end of 1933, national Prohibi-tion
was history, though many states continued to outlaw or severely
restrict the sale of liquor.
Today Congress confronts a similarly failed prohibition policy. Futile
efforts to enforce prohibition have been pursued even more vigorously in

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the 1980s and 1990s than they were in the 1920s. Total federal expenditures
for the first 10 years of Prohibition amounted to $88 million— about $733
million in 1993 dollars. Drug enforcement costs about $19 billion a year
now in federal spending alone.
Those billions have had some effect. Total drug arrests are now more
than 1.5 million a year. Since 1989 more people have been incarcerated
for drug offenses than for all violent crimes combined. There are now
about 400,000 drug offenders in jails and prisons, and more than 60 percent
of the federal prison population consists of drug offenders.
Yet, as was the case during Prohibition, all the arrests and incarcerations
haven't stopped the use and abuse of drugs, or the drug trade, or the crime
associated with black-market transactions. Cocaine and heroin supplies
are up; the more our Customs agents interdict, the more smugglers import.
And most tragic, the crime rate has soared. Despite the good news about
crime in the past few years, crime rates remain at unprecedented levels.
As for discouraging young people from using drugs, the massive federal
effort has largely been a dud. Despite the soaring expenditures on anti-drug
efforts, about half the students in the United States in 1995 tried an
illegal drug before they graduated from high school. Every year from
1975 to 1995, at least 82 percent of high school seniors said they found
marijuana '' fairly easy'' or '' very easy'' to obtain. During that same period,
according to federal statistics of dubious reliability, teenage marijuana use
fell dramatically and then rose significantly, suggesting that cultural factors
have more effect than the '' war on drugs. ''
The manifest failure of drug prohibition explains why more and more
people— from Nobel laureate Milton Friedman to conservative columnist
William F. Buckley Jr., former secretary of state George Shultz, Minnesota
governor Jesse Ventura, and New Mexico governor Gary Johnson— have
argued that drug prohibition actually causes more crime and other harms
than it prevents.

Repeal the Controlled Substances Act
The United States is a federal republic, and Congress should deal with
drug prohibition the way it dealt with alcohol prohibition. The Twenty-First
Amendment did not actually legalize the sale of alcohol; it simply
repealed the federal prohibition and returned to the several states the
authority to set alcohol policy. States took the opportunity to design diverse
liquor policies that were in tune with the preferences of their citizens.

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After 1933 three states and hundreds of counties continued to practice
prohibition. Other states chose various forms of alcohol legalization.
The single most important law that Congress must repeal is the Con-trolled
Substances Act of 1970. That law is probably the most far-reaching
federal statute in American history, since it asserts federal jurisdiction
over every drug offense in the United States, no matter how small or local
in scope. Once that law is removed from the statute books, Congress
should move to abolish the Drug Enforcement Administration and repeal
all of the other federal drug laws.
There are a number of reasons why Congress should end the federal
government's war on drugs. First and foremost, the federal drug laws are
constitutionally dubious. As previously noted, the federal government
can exercise only the powers that have been delegated to it. The Tenth
Amendment reserves all other powers to the states or to the people.
However misguided the alcohol prohibitionists turned out to have been,
they deserve credit for honoring our constitutional system by seeking a
constitutional amendment that would explicitly authorize a national policy
on the sale of alcohol. Congress never asked the American people for
additional constitutional powers to declare a war on drug consumers.
That usurpation of power is something that few politicians or their court
intellectuals wish to discuss.
Second, drug prohibition creates high levels of crime. Addicts commit
crimes to pay for a habit that would be easily affordable if it were legal.
Police sources have estimated that as much as half the property crime in
some major cities is committed by drug users. More dramatic, because
drugs are illegal, participants in the drug trade cannot go to court to settle
disputes, whether between buyer and seller or between rival sellers. When
black-market contracts are breached, the result is often some form of
violent sanction, which usually leads to retaliation and then open warfare
in the streets.
Our capital city, Washington, D. C., has become known as the '' murder
capital'' even though it is the most heavily policed city in the United
States. Make no mistake about it, the annual carnage that accounts for
America's still shockingly high murder rates has little to do with the mind-altering
effects of a marijuana cigarette or a crack pipe. It is instead one
of the grim and bitter consequences of an ideological crusade whose
proponents will not yet admit defeat.
Third, since the calamity of September 11, 2001, U. S. intelligence
officials have repeatedly warned us of further terrorist attacks. Given that

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danger, it is a gross misallocation of law enforcement resources to have
federal police agents surveilling marijuana clubs in California when they
could be helping to discover sleeper cells of terrorists on U. S. territory.
The Drug Enforcement Agency has 9,000 agents, intelligence analysts,
and support staff. Their skills would be much better used if those people
were redeployed to full-time counterterrorism investigations.
Fourth, drug prohibition is a classic example of throwing money at a
problem. The federal government spends some $19 billion to enforce the
drug laws every year— all to no avail. For years drug war bureaucrats
have been tailoring their budget requests to the latest news reports. When
drug use goes up, taxpayers are told the government needs more money
so that it can redouble its efforts against a rising drug scourge. When drug
use goes down, taxpayers are told that it would be a big mistake to curtail
spending just when progress is being made. Good news or bad, spending
levels must be maintained or increased.
Fifth, drug prohibition channels more than $40 billion a year into
the criminal underworld occupied by an assortment of criminals, corrupt
politicians, and, yes, terrorists. Alcohol prohibition drove reputable compa-nies
into other industries or out of business altogether, which paved the
way for mobsters to make millions in the black market. If drugs were
legal, organized crime would stand to lose billions of dollars, and drugs
would be sold by legitimate businesses in an open marketplace.
Drug prohibition has created a criminal subculture in our inner cities.
The immense profits to be had from a black-market business make drug
dealing the most lucrative endeavor for many people, especially those
who care least about getting on the wrong side of the law.
Drug dealers become the most visibly successful people in inner-city
communities, the ones with money and clothes and cars. Social order is
turned upside down when the most successful people in a community are
criminals. The drug war makes peace and prosperity virtually impossible
in inner cities.
Students of American history will someday ponder the question of how
today's elected officials could readily admit to the mistaken policy of
alcohol prohibition in the 1920s but recklessly pursue a policy of drug
prohibition. Indeed, the only historical lesson that recent presidents and
Congresses seem to have drawn from Prohibition is that government
should not try to outlaw the sale of booze. One of the broader lessons
that they should have learned is this: prohibition laws should be judged
according to their real-world effects, not their promised benefits. If the

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The War on Drugs
108th Congress will subject the federal drug laws to that standard, it will
recognize that the drug war is not the answer to problems associated with
drug use.

Respect State Initiatives
The failures of drug prohibition are becoming obvious to more and
more Americans. A particularly tragic consequence of the stepped-up war
on drugs is the refusal to allow sick people to use marijuana as medicine.
Prohibitionists insist that marijuana is not good medicine, or at least that
there are legal alternatives to marijuana that are equally good. Those who
believe that individuals should make their own decisions, not have their
decisions made for them by Washington bureaucracies, would simply say
that that's a decision for patients and their doctors to make. But in fact
there is good medical evidence of the therapeutic value of marijuana—
despite the difficulty of doing adequate research on an illegal drug. A
National Institutes of Health panel concluded that smoking marijuana may
help treat a number of conditions, including nausea and pain. It can be
particularly effective in improving the appetite of AIDS and cancer patients.
The drug could also assist people who fail to respond to traditional
remedies.
More than 70 percent of U. S. cancer specialists in one survey said they
would prescribe marijuana if it were legal; nearly half said they had urged
their patients to break the law to acquire the drug. The British Medical
Association reports that nearly 70 percent of its members believe marijuana
should be available for therapeutic use. Even President George Bush's
Office of National Drug Control Policy criticized the Department of Health
and Human Services for closing its special medical marijuana program.
Whatever the actual value of medical marijuana, the relevant fact for
federal policymakers is that in 1996 the voters of California and Arizona
authorized physicians licensed in those states to recommend the use of
medical marijuana to seriously ill and terminally ill patients residing in
the states, without being subject to civil and criminal penalties.
It came as no surprise when the Clinton administration responded to the
California and Arizona initiatives by threatening to bring federal criminal
charges against any doctor who recommended medicinal marijuana or any
patient who used such marijuana. After all, President Clinton and his
lawyers repeatedly maintained that no subject was beyond the purview
of federal officialdom.

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President Bush, on the other hand, has spoken of the importance of the
constitutional principle of federalism. Shortly after his inauguration, Bush
said, '' I'm going to make respect for federalism a priority in this administra-tion.
'' Unfortunately, the president's actions have not matched his words.
Federal police agents and prosecutors continue to raid medical marijuana
clubs in California and Arizona. And both of the president's drug policy
officials, Drug Czar John Walters and DEA Chief Asa Hutchinson, have
been using their offices to meddle in state and local politics. If it is
inappropriate for governors and mayors to entangle themselves in foreign
policy— and it is— it is also inappropriate for federal officials to entangle
themselves in state and local politics. In the 107th Congress, Reps. Barney
Frank (D-Mass.), Dana Rohrabacher (R-Calif.), and Ron Paul (R-Tex.)
jointly proposed the States' Rights to Medical Marijuana Act, which would
have prohibited federal interference with any state that chose to enact a
medical marijuana policy. The 108th Congress should enact a similar bill
without delay.
One of the benefits of a federal republic is that different policies may
be tried in different states. One of the benefits of our Constitution is that
it limits the power of the federal government to impose one policy on the
several states.

Repeal Mandatory Minimums
The common law in England and America has always relied on judges
and juries to decide cases and set punishments. Under our modern system,
of course, many crimes are defined by the legislature, and appropriate
penalties are defined by statute. However, mandatory minimum sentences
and rigid sentencing guidelines shift too much power to legislators and
regulators who are not involved in particular cases. They turn judges into
clerks and prevent judges from weighing all the facts and circumstances
in setting appropriate sentences. In addition, mandatory minimums for
nonviolent first-time drug offenders result in sentences grotesquely dispro-portionate
to the gravity of the offenses.
Rather than extend mandatory minimum sentences to further crimes,
Congress should repeal mandatory minimums and let judges perform their
traditional function of weighing the facts and setting appropriate sentences.

Conclusion
Drug abuse is a problem for those involved in it and for their families
and friends. But it is better dealt with as a moral and medical than as a

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The War on Drugs
criminal problem—'' a problem for the surgeon general, not the attorney
general, '' as former Baltimore mayor Kurt Schmoke puts it.
The United States is a federal republic, and Congress should deal with
drug prohibition the way it dealt with alcohol prohibition. The Twenty-First
Amendment did not actually legalize the sale of alcohol; it simply
repealed the federal prohibition and returned to the several states the
authority to set alcohol policy. States took the opportunity to design diverse
liquor policies that were in tune with the preferences of their citizens.
After 1933 three states and hundreds of counties continued to practice
prohibition. Other states chose various forms of alcohol legalization.
Congress should repeal the Controlled Substances Act of 1970, shut
down the Drug Enforcement Administration, and let the states set their
own policies with regard to currently illegal drugs. They would do well
to treat marijuana, cocaine, and heroin the way most states now treat
alcohol: It should be legal for stores to sell such drugs to adults. Drug
sales to children, like alcohol sales to children, should remain illegal.
Driving under the influence of drugs should be illegal.
With such a policy, Congress would acknowledge that our current drug
policies have failed. It would restore authority to the states, as the Founders
envisioned. It would save taxpayers' money. And it would give the states
the power to experiment with drug policies and perhaps devise more
successful rules.
Repeal of prohibition would take the astronomical profits out of the
drug business and destroy the drug kingpins who terrorize parts of our
cities. It would reduce crime even more dramatically than did the repeal
of alcohol prohibition. Not only would there be less crime; reform would
also free federal agents to concentrate on terrorism and espionage and free
local police agents to concentrate on robbery, burglary, and violent crime.
The war on drugs has lasted longer than Prohibition, longer than the
Vietnam War. But there is no light at the end of this tunnel. Prohibition
has failed, again, and should be repealed, again.

Suggested Readings
Benjamin, Daniel K., and Roger Leroy Miller. Undoing Drugs: Beyond Legalization.
New York: Basic Books, 1991.
Boaz, David. '' A Drug-Free America— Or a Free America? '' U. C. Davis Law Review
24 (1991).
Boaz, David, ed. The Crisis in Drug Prohibition. Washington: Cato Institute, 1991.
Buckley, William F. Jr., et al. '' The War on Drugs Is Lost. '' National Review, February
12, 1996.

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Luna, Erik. '' The Misguided Guidelines: A Critique of Federal Sentencing. '' Cato Institute Policy Analysis, no. 458, November 1, 2002.
Lynch, Timothy, ed. After Prohibition: An Adult Approach to Drug Policies in the 21st Century. Washington, Cato Institute, 2000.
Masters, Bill. Drug War Addiction. St. Louis: Accurate Press, 2002. McNamara, Joseph. '' The Defensive Front Line. '' Regulation (Winter 2001): 19– 21.
Ostrowski, James. '' The Moral and Practical Case for Drug Legalization. '' Hofstra Law Review 18 (1990).
Pilon, Roger. '' The Medical Marihuana Referendum Movement in America: Federalism Implications. '' Testimony before the House Crime Subcommittee, October 1, 1997.