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The Professional and Amateur Sports Protection Act (PASPA), which Congress passed in 1992, forbids states from “authorizing” sports betting “by law.” As every middle-schooler learns, however, our Constitution establishes dual sovereignty between the states and the federal government. And as the Supreme Court most recently held in New York v. United States (1992) and Printz v. United States (1997), the Constitution forbids Congress from “commandeering” state officials to serve federal ends, whether by forcing states to enforce federal laws or to pass new state laws (or to refrain from repealing old ones), which is exactly what PASPA does.

In 2011, New Jerseyans voted overwhelmingly—two to one—to legalize sports betting in a 2011 referendum. The next year, the state legislature responded to the will of the people by enacting a law allowing sports wagering at casinos and racetracks. The four major professional sports leagues, plus the National Collegiate Athletic Association (NCAA), sued under PASPA to prevent the state from moving forward and legalizing sports betting. In 2016, the U.S. Court of Appeals for the Third Circuit ruled for the NCAA, reasoning that if the state were to repeal its pre-PASPA sports gambling laws, they would be “authorizing” the activity “by law,” which was forbidden by PASPA. Unwilling to be forced to continue enforcement of a law overwhelmingly rejected by its populace, New Jersey appealed to the Supreme Court.

Cato has now joined the Pacific Legal Foundation and Competitive Enterprise Institute on a brief (written by former Cato intern Jonathan Wood) in support of the Garden State. We argue that PASPA unconstitutionally commandeers state officials and undermines the core concepts of federalism.

If the federal government wants to enforce its chosen policy, it must find a way to do so that doesn’t involve having New Jersey do its dirty work. There are several options: Congress could regulate sports betting itself (at least across state lines) or it could use its spending power to provide incentives to states to adopt more restrictive schemes. Instead, PASPA forces states to enforce and maintain policies which have become outdated and unpopular, against popular and state sovereignty.

PASPA and other overweening federal laws pose a serious problem for accountability because they tie the hands of state officials, forcing them to enforce policies they do not want. The people of the state then blame state officials for bad outcomes, not knowing that their hands are tied by Congress. Moreover, the same issue comes up again and again, in areas ranging from immigration to guns, from health care to marijuana. The federal government should not be forcing one-size-fits-all solutions on a large and diverse country—and indeed the Constitution was designed to prevent such abuse.

The Supreme Court will hear Chris Christie v. NCAA this fall.”

I fully expected Larry White’s recent post challenging the state theory of money, and particularly that theory’s understanding of the origins of metallic coinage, to generate some critical feedback. In particular, I expected it to raise the hackles of “Lord Keynes” (henceforth LK), the otherwise anonymous author of the blog, Social Democracy for the 21st Century, who has discussed the same topic on several occasions (e.g. herehere, and here), and who is inclined to favor the alternative, “cartalist” (or “chartalist”) perspective.

Nor was I disappointed. Indeed, within moments of tweeting a link to Larry’s post I found myself in a twitter debate with LK regarding the origins of Lydia’s electrum coins, which are generally considered the world’s earliest. In response to my tweet, LK tweeted in return that “The consensus of modern ancient historians is that coined money in Anatolia and Greece was invented by the state.”

LK has since published a post specifically countering White’s claims, including the claim that, although sovereigns eventually monopolized ancient coinage,

as far as we know coins were already in use among merchants before that happened. Very early coins from ancient Lydia, in what is now Turkey, were not inscribed with human faces but rather animal figures. The Ancient History Encyclopedia states: “It appears that many early Lydian coins were minted by merchants as tokens to be used in trade transactions. The Lydian state also minted coins.” Regarding Lydian coins inscribed with the names Walwel and Kalil, the British Museum comments: “It is unclear whether these are names of kings or just rich men who produced the earliest coins.” Regarding a nearly contemporary ancient Greek coin bearing the legend “I am the badge of Phanes,” the Museum comments: “We cannot be certain who this Phanes was, but it seems that he was placing his badge on coins as a guarantee of their quality.”

According to LK, White here is “clearly asserting that coined money was invented by the private sector in ancient Lydia and Greece.” That seems to me a problematic interpretation, since White’s qualifier, “As far as we know,” makes his statement tentative: to say that X is true “as far as we know” is not to say that X is definitely true. It is merely to observe that we have no good reason for believing that X is not true. Consequently the fact that the positive evidence for the private beginnings of coinage is, as LK goes on to declare, “feeble at best,” doesn’t itself refute White’s claim, for the the positive evidence for kings having been the first coiners could be even more “feeble.”

But is it?

That Supposed Consensus

The one thing we know for sure is that a fair portion of all known electrum coins — one inventory places the share at about 25 percent — bear markings that point to official origins. As for the rest, although expert opinion is divided concerning their sources, most authorities continue to allow that they may bear private markings. “We do not know,” Koray Konuk observes (in his contribution, on coinage in Asia Minor, to the Oxford Handbook on Greek and Roman Coinage), “whether there was a state  monopoly of issuing coinage or whether some wealthy private individuals  such as bankers or merchants were also allowed to  strike coins of their own.” The British Museum’s ancient coin curators, with whom I once had a lengthy discussion of the subject, are of the same opinion. Another relatively recent source, finally, sums matters up by observing how “the enormous bibliography on the origins of coinage partly serves to highlight the continued absence of definitive answers to the fundamental questions of ‘who, what, when, why, where?’”

Naturally this lack of definitive answers hasn’t prevented authorities from taking sides in the debate. But despite LK’s remarks, their doing so can hardly be said to have resulted in a “consensus of modern ancient historians” favoring the view that coinage was a state invention. Although some authorities (notably Robert Wallace) clearly favor that view, others, no less recent or authoritative, lean the other way. According to David Schaps, the author of the superb monograph,The Invention of Ancient Coinage and the Monetization of Ancient Greece (2004), “the prevailing opinion,” far from holding “that the first coins were official private issues,”

is that the types of the coins (there are some twenty, many more than the two or three kings who reigned from the time coins were invented until the end of the Lydian empire) identify not the king under whom they were struck, but the producer of the coin — perhaps a royal functionary, more likely an independent gold merchant (“The Invention of Coinage in Lydia, in India, and in China,” 2006, emphasis added).

John Kroll, another highly-regarded, contemporary expert on ancient coins, also maintains that the “profusion of type symbols” found on early electrum coins suggests

that in addition to the coins that were minted by Lydian monarchs and Greek city states, much early electrum may have been struck by local dynasts, large landholders, and other petty rulers in Lydia and neighboring regions — anyone, in short, with wealth in electrum and a need to spend it.

A recent paper by Peter Van Alfen, the American Numismatic Society’s curator of Greek coins, directly challenges one of the main arguments offered in support of the “state invention” hypothesis, namely the claim that only state authorities could command the “trust” needed to make coins circulate. Although he recognizes that kings were probably not the only source of early electrum coins, John Kroll also supplies a typical instance of this view, in his contribution to the Oxford Handbook on Greek and Roman Coins:

The key factor, which made coinage possible and distinguished it from all earlier forms of money, was the involvement of the state. Unlike anonymously supplied bullion, coins were supplied by the state and were guaranteed by its authority. As small, preweighed and hence prevalued ingots of precious metal that were stamped with the certifying badge of the issuing government, they were instantly acceptable in payment on trust.

Had he reflected on such names as Browne & Brind, Johnson Matthey, and Englehard, Kroll might not have been so quick to claim that bullion must either be supplied by the state or “anonymously.” His perspective is, nonetheless, all too common. To his credit, Van Alfen will have none it. “The generation of trust and guarantees,” he observes,

does not always require state intervention or backing. Indeed, in some cases, state intervention is decidedly to be avoided. While states can serve to mitigate transactional chaos through their various formal institutions, like market regulators and courts, there are numerous non-state institutional responses to the same the problems, including reputation and trust networks, that can be just as effective, particularly when the geographical scope and population size in question is comparatively small.

Moreover, he adds,

there is no necessary relationship between states and monetary instruments, like coinage; there often is a functional relationship between the two, but the state is not a necessary component for generating trust, even for fiduciary instruments….In cases where we have contextual evidence, problems of trust were overcome primarily through private guarantee mechanisms.

As an alternative to the view that coinage began as a state innovation, Van Alfen proposes and defends the hypothesis that originally “the so-called right of coinage was not limited to the state alone, but was rather a (property) right held universally.”

Within the larger context of archaic state formation and the more specific dynamic of Asia Minor monarchies, we should not then expect to find a single established set of relationships between the individual polities and coinage ab initio, but rather a process working out what that set of relationships might become. Coinage, with its potential to enhance social, political and economic might, was no doubt one of many sites where the extension and centralization of power was being negotiated between monarchs and their competitors, and monarchs and the ruled.

In Lydia, Van Alfen speculates, “as state capacity increased, so too did political stability along with general elite consent to Mermnad rule.” Eventually — by Croesus’ time —  the Mermnad’s political influence was such that they had “achieved monopolization over coin production, not so much by decree, but by default.”

If Van Alfen’s account is indeed correct, the notion that coinage was a “state” invention makes little sense, for at the birth of coinage the distinction between “the state” on one hand and relatively important individuals (“elites”) on the other was itself murky. All that can be said is that the consolidation of power in certain rulers tended to coincide with the monopolization of coinage — a claim no one has ever contested.

Counter-Counterarguments

So much for the “consensus” that supposedly contradicts White’s stand. Now let’s consider the particular “counterarguments” LK offers against it.  The first concerns the sources of electrum itself.  According to LK, “Lydian king’s either controlled the mines in their kingdom directly and/or levied taxes on mining or extraction of metals.” Therefore, he says, “it is most probable the kings also minted the first electrum coinage.” But the conclusion is a plain non-sequitur: no less than mining and jewelry-making (concerning which more anon), mining and coining are each distinct, specialized activities, which have historically been undertaken by separate outfits; and this has been no less true when mines themselves have been nationalized than when they have been privately owned and operated.

Moreover the premise that kings alone had access to sources of electrum and other precious metals is itself contentious. In his previously-cited paper Van Alfen observes that “While state control of mining by the end of the archaic period seems to have been fairly widespread…there are as well indications that archaic elites individually could gain access to mines far away from the oversight of their home state, and might have had unfettered access to mines within their home territory as well.”

LK’s second counterargument, that the presence of coins not bearing the images or names of kings is no proof that those coins weren’t minted by kings, because “people knew perfectly well that [these coins] had been minted by the state,” begs the question. Since marking coins took some effort, why, in that case, should kings have bothered to mark any of their coins?

LK’s third counterargument, that the names not belonging to any known king’s on some of Lydia’s coins may either be those of mints or those of persons who minted coins on behalf of some Lydian king or kings, is almost equally question-begging. Why identify a coin with a mint, or a coiner, when it was the king’s status that supposedly lent value to the coin? And, if kings did indeed allow private agents to coin for them, does that not itself suggest that those agents, rather than the kings who employed their skills, may have “invented” the first coins?

According to LK, electrum coins were unlikely to have been manufactured by or on behalf of merchants, because most of them were made in denominations too large to be used in ordinary commercial transactions: a Lydian trite, or one-third of a stater, he notes, is supposed to have been capable of buying 10 sheep.

In fact, a trite may actually have been worth considerably less: if some experts have said that one could buy 10 sheep, others say it could only buy one sheep, or three jars of wine.  More importantly, as reported in a very recent paper by Ute Wartenberg, the AMS’s Executive Director, the denominations of even the earliest known electrum coins are now understood to have ranged “from a stater to a 1/192 stater.”[1] It might, in other words, have taken about 21 of the smallest coins, each containing just .06 grams of electrum, to buy a single jar of wine.[2] Furthermore, as François Velde points out in his paper “On the Origin of Specie,” extant electrum coins of various denominations display a weight loss pattern suggesting that the coins did in fact “circulate like modern coinages.”

Precious Tokens?

The last of LK’s counterarguments starts from the premise that, instead of being “full-bodied” coins, Lydia’s electrum globules were actually fiduciary or “token” coins, commanding considerably more than their metallic value in payments, including payments to the state, and goes on to insist that they could not possibly have commanded such value had they not been official products.

In accepting this premise, LK appears to completely ignore (he certainly does not address) White’s observation that it

fails to explain…why governments chose bits of gold or silver as the material for these tokens, rather than something cheaper, say bits of iron or copper or paper impressed with sovereign emblems. In the market-evolutionary account, preciousness is advantageous in a medium of exchange by lowering the costs of transporting any given value. In a Cartalist pay-token account, preciousness is disadvantageous — it raises the costs of the fiscal operation — and therefore baffling. Issuing tokens made of something cheaper would accomplish the same end at lower cost to the sovereign.

Recent research casts further doubt on the claim that electrum coins must have been tokens. That claim rests on the once widely-held belief that electrum coins, though representing uniform weights, did not represent a consistent alloy of gold and silver. Instead, the blend, and hence then commodity value of coins of any given weight, was understood to vary considerably. It would therefore have been quite inconvenient for the coins circulate by weight, that is, at their true metallic worth, rather than by tale, that is, at nominal values independent of that worth.

This once-common view has recently been challenged.  As Wartenberg reports in her aforementioned paper,

Current investigations by a number of scientists and scholars shed critical new light on the question of how the earliest coins were minted, how their production was organized, and how alloys were produced. By using a variety of new analytical methods and techniques, some of these processes are beginning to be better understood.

Among other things, the new methods and techniques to which Wartenberg refers reveals that Lydia’s electrum coins were made, not from naturally-occurring and variable alloy, but from “an alloy deliberately created for coinage.” Using a technique called “Synchrotron X-ray photoelectron spectroscopy,” Wartenberg discovered that Lydia’s electrum coins were in fact “more consistent in their metal composition than previously thought”:

What these different results all show is a fully organized system, in which a specific composition of electrum for a coin series was created. All this was clearly done deliberately, and the desired gold:silver ratio was achieved by combining pure gold and silver, which was previously refined. The discovery that it was not naturally found electrum, which was used, illustrates a highly sophisticated process, but not only of metallurgical technology in the 7th and 6th century BC, but also an understanding of monetary systems.

Although these findings alone don’t suffice to establish that Lydia’s electrum coins, instead of being mere (if costly) tokens, were valued at their metallic worth, or at that worth plus a premium reflecting coinage costs, and perhaps some seigniorage, they certainly make this view appear more plausible than before. Taking the trouble to regulate the blend of gold and silver contained in what were in fact mere tokens would have been yet another pointless expense, on top of that involved in making tokens from any blend of precious metal instead of from less costly materials.

A Misplaced Burden

I’d like to conclude with some remarks concerning, not LK’s particular arguments, but the presumption, implicit in most versions of the “state invention” hypothesis, that sovereigns are at least as capable as other persons, and perhaps more capable, of coming up with monetary innovations. Such a belief flies in the face of all experience. The story of money’s evolution — or that part of it concerning which we have certain knowledge — is, essentially, one of recurring private inventions followed, in many instances, by public appropriation of those inventions. It was not kings or governments but private-sector innovators who came up with manual screw presses, as alternatives to hammers, for striking coins, and with their later steam-driven and electrical counterparts. It was private goldsmiths, and not public bankers, who, in the west, issued the first banknotes. Private innovators also gave us the first lines of credit, the first clearinghouses, the first electronic payments (consisting of telegraphic wire transfers), the first credit and debit cards, the first ATMs, and, most recently, the first blockchain-based means of payment. Governments, in contrast, pioneered little, if anything. Instead, they observed what private markets did, and then stuck their mitts in, sometimes regulating, sometimes prohibiting, and sometimes nationalizing, private-sector innovations.

Consider again, in light of these observations, those tiny electrum coins. According to Wartenberg their existence “begs the question how such blank metal flans were produced to such precision.” In answer, Wartenberg notes that

The technique of granulation was well-known for Lydian and Achaemenid jewelry, and it is likely that a similar method was used for these coins, which were also struck with obverse and reverse dies. … The dies used for many of these objects have simple emblems, which are stylistically close to archaic gems.

Wartenberg’s remarks suggest a link between early coins and jewelry that appears to be just another instance of the even more ancient connection between ornament and money, as described in detail in chapter two of William Carlile’s Evolution of Modern MoneyBut to recognize that linkage is to raise what ought to be an obvious question: if anyone was likely to be the true “inventor” of the first electrum coins, why not a Lydian manufacturer of jewelry, who would have possessed the skill and instruments, as well as access to the metal, required for the purpose?

Allowing, as John Kroll (and most other authorities) do, that “electrum in the form of nuggets, weighed ingots, and bags of electrum ‘dust’ must have been put to use in all sorts of payments for goods and services” well before coins were first made from it, and that “because it was a mixed metal whose gold-silver proportions varied in nature and could be artificially manipulated by adding refined silver to dilute the gold content, it was poorly suited as a dependable means of exchange,” would it not have been perfectly natural for some jeweler to have employed familiar techniques, including the augmentation of natural electrum with silver, not in order to deceive, but to make coins of standardized alloy to supply to merchants for use in exchange?[3] Why suppose instead that some Lydian king came up with the idea?

In short, to treat coinage as an exception to the general rule that private parties are the source of technical monetary innovations, on the grounds that we lack affirmative evidence to the contrary, is, in my humble opinion, to place the burden of proof in this controversy precisely where it doesn’t belong.

_____________________

[1]It had previously been supposed that the smallest coins were those of 1/96 stater.

[2]For further criticism of the argument that early coins were unsuited for commercial use see this article by Alain Bresson.

[3]Making coins conform, at least roughly, to a particular standard was a simple matter of employing a touchstone — a device in common use in ancient Greece long before the birth of coinage, and so closely associated with the Lydians that it is also known even today as a “Lydian” stone.

[Cross-posted from Alt-M.org]

In these days when liberalism is again under attack from some of its old enemies in new guises, one way to counter authoritarian threats is to educate ourselves on the fundamental ideas of liberalism. The Encyclopedia of Libertarianism, now available online, offers a wealth of information on the ideas, people, and history of liberalism and libertarianism. Historian David M. Hart, director of the Online Library of Liberty, says that the Encyclopedia “provides an excellent survey of the key movements, individuals, and events in the evolution of the classical liberal movement.” And on his own website he outlines a course of study in classical liberalism that includes a curated list of articles in the Encyclopedia for someone who wants to learn about the ideas, movements, and people of liberalism.

Begin, he says, with the survey article by Steve Davies, “General Introduction” (pp. xxv-xxxvii in the print version). Then read any of the following articles. Or, for a logical and chronological course of study, read these articles in this order:

Key Ideas in the Classical Liberal Tradition

Basic Principles:

Grounds for Belief:

Processes for Creating a Free Society:

Political and Legal Freedoms:

Economic Freedoms:

Social Freedoms:

  • Equality under the Law - “Equality” (of rights)
  • Toleration of different Ideas and Behaviour (see Freedom of Speech & Religion above)
  • Acts between Consenting Adults - “Presumption of Liberty”
Key Movements and People in the Classical Liberal Tradition

 

I might add that Chapter 2 of The Libertarian Mind, “The Roots of Libertarianism,” is a very short guide to many of these movements and people. And The Libertarian Reader collects and curates many of the key texts of liberalism and libertarianism.

Disasters seem just about the worst possible time to discuss economic concepts. Ask Forbes columnist Tim Worstall, whose column on “price gouging” in the aftermath of Hurricane Harvey has purportedly been removed from their site.

At times of human suffering, a host of people apparently consider it crude to discuss the best response, if that response incorporates the functioning of a market economy. Yet for those of us who worry about outcomes rather than platitudes, it is incumbent to denounce bad ideas, and seek to propose better ones. Natural disasters such as Hurricane Harvey reap enough destruction, emotional and physical, without compounding it with policies that make things worse.

CNBC reported yesterday that Texas Attorney General Ken Paxton has said 500 complaints about so-called “price gouging” have been made following the storm:

That includes reports of up to $99 for a case of water, hotels that are tripling or quadrupling their prices and fuel going for $4 to $10 a gallon.

Such price increases in emergency situations can lead to significant fines under current Texas law. The traditional justification is that raising prices in emergencies reflects greedy profiteering. Indeed, in reaction to natural disasters and terrorist attacks worldwide it is common for companies to be denounced for heartlessness (here’s something I wrote about criticism of Uber after the Manhattan bomb attack).

The real question we should be concerned with though is surely not moralizing, but whether “price gouging” laws improve outcomes and responses or worsen the situation?

Natural disasters such as hurricanes often lead to shortages of certain products, many of which might be considered essential. Fresh water might be the obvious example. If water supplies get cut off, the demand for bottled water will surge, and if there is uncertainty about how long until those supplies will be back online, some consumers may seek to stockpile. The knockout of transportation routes will likely restrict new supply too. At the moment the storm hits supply will therefore be relatively inelastic, meaning that increases in demand feed through almost exclusively into rising prices.

Opponents of price gouging seem to believe that these price increases reflect sellers using their market power to unfairly profit from the disaster. In most cases, however, prices are merely messengers letting us know the relative scarcity of the good.

Laws which, in effect, fix prices below market-clearing levels are therefore akin to hijacking the messenger and forcing him to tell a comforting lie. A maintained low price of water in effect tells users “everything is fine, buy as much as you like.”

This can have perverse consequences. It encourages the over-purchase of water by certain consumers and therefore can lead to water ending up away from those who value it most. Similarly, holding the price down discourages other suppliers from seeking to supply their goods to market. This can be particularly important when, as likely with Houston, those transporting new supplies of water may have to make difficult and expensive journeys, including having to rent or utilize boats to get to certain locations. A rise in the market price would have changed the economic calculation, making it profitable to make such journeys in some cases.

The result of price gouging laws is therefore an exacerbation of the cause of the surge in the first place – a greater gap between the supply and customer demand arising because new suppliers are not incentivized to meet wants and need. Though well-intended, price gouging laws hurt more than they help.

Two economic objections tend to be held up against this operation of market forces.

The first relates to the allocation of the goods. If prices rise too much, then people worry that those on lower incomes will simply not be able to afford them. This is an argument made in an LA Times op-ed by Michael Hiltzik, who explains that in times of crisis, it is understandable that people consider a first-come-first-served approach to be fairer and more reflective of need than a “most-money-best-served advantage.”

For sure there are those desperately in need, and civil society, charities and, in some cases, government, may have a role to play to ensure they are catered for. And civil society does respond – see how sports teams and celebrities have already founded support funds.

But in such extreme cases it is equally likely that those with few resources would not have the means or ability to access the water in the first place (think the vehicles or boats needed, for example). It is not entirely clear why the ability to queue or travel long distances is a more efficient form of rationing than the use of the price mechanism in reflecting real need.

More importantly though, the artificially low price might encourage hoarding (and the development of a black market anyway), whilst discouraging other suppliers from entering the market and ordinary truckers from attempting to make their usual deliveries.

A more sophisticated critique of those who oppose anti-price gouging laws comes from the economist Jeff Ely. He argues that when natural disasters have happened, supply by-and-large cannot respond, so policymakers should simply seek to maximize the “consumer surplus” and not worry about the “producer surplus.” If the disaster has no effect on production decisions, then the benefits to consumers from keeping prices low can exceed the benefits associated with allocating the goods to those who value them most.

But the key assumption here is that supply is fixed. In fact, the mere existence of price gouging laws affects supplier expectations about how they should respond when they know a crisis will hit, making them less likely to prepare some of what Tyler Cowen calls “option ready supply.” (As an example: if an Uber driver knew surge pricing was banned, they would not be as likely to head out to an area where they knew a concert was just about to finish). Walmart, for example, already operates an emergency operations center, which plans and coordinates responses to these disasters, as evidenced in New Orleans after Katrina - clearly supply is not fixed.

A high price is also likely again to change the decision of many small potential suppliers, who might otherwise have just hoarded the product. If I had 10 packages of water stored in a warehouse, a higher price may make more likely to venture to obtain and supply them.

Hurricanes and natural disasters are destructive and lead to no good outcomes overall. But that does not mean we should throw out the price mechanism, which has important benefits in crises in terms of allocating scarce resources to those who value them most, and encouraging others to bring their goods to market.

When Attorney General Jeff Sessions announced yesterday the Trump Administration’s repeal an Obama-era rule limiting the distribution of certain military equipment (such as tracked vehicles, camouflage uniforms, high-powered rifles, bayonets, and grenade launchers), he dismissed concerns about police militarization as “superficial.”  The evidence suggests otherwise: militarization makes police more violent.

Earlier this year, a study conducted by researchers from Harvard, Stanford, Cincinnati, and Gardner-Webb concluded that the Pentagon’s 1033 weapons transfer program made participating departments more likely to engage in deadly violence.  After receiving 1033 gear, departments were more likely to kill civilians as well as dogs.  The researchers included the number of dog killings by police (which, according to the Department of Justice, number around 10,000 a year) in order to control for possible variations in human behavior during the period of the study.

The study found:

1033 receipts are associated with both an increase in the number of observed police killings in a given year as well as the change in the number of police killings from year to year, controlling for a battery of possible confounding variables including county wealth, racial makeup, civilian drug use, and violent crime.

[…]

[D]ue to concerns of endogeneity, we re–estimate our regressions using an alternative dependent variable independent of the process by which LEAs request and receive military goods: the number of dogs killed by LEAs. We find 1033 receipts are associated with an increase in the number of civilian dogs killed by police. Combined, our analyses provide support for the argument that 1033 receipts lead to more LEA violence.

The researchers pointed to four areas of militarization that drive the increase in violence:

[W]e argue that increasing LEA access to military equipment will lead to higher levels of aggregate LEA violence. The effect occurs because the equipment leads to a culture of militarization over four dimensions: material; cultural; organizational; and operational. As militarization seeps into their cultures, LEAs rely more on violence to solve problems.

It turns out that having a hammer really does make everything look more like a nail.

But what if that increased violence is justified by increased police readiness to deal with emergency situations? 

When asked to justify the push for militarization, many law enforcement agencies are quick to point to terrorist attacks and mass murders as a justification for the equipment. Indeed we can imagine situations in which the police might legitimately need grenade launchers or .50 caliber rifles (though the thousands of bayonets local cops have taken from the federal government may be tougher to explain).

But such events are exceedingly rare, while history proves that the police deployment of militarized weapons and tactics will not be. Police routinely cite rare hypothetical emergencies to justify tactics and policies that end up becoming far more routine and abusive.

SWAT teams were originally designed to handle hostage situations and active shooters. Today they often function as hyper-violent warrant servers, as the number of SWAT raids has ballooned from hundreds per year to tens of thousands and responding to hostage situations has given way to serving search and drug warrants.

Police defend civil asset forfeiture with appeals to “taking the profit out” of terrorist organizations and drug cartels, but black market drug profits remains strong as thousands of regular Americans have their property taken without charge or trial.

Law enforcement agencies purchase military-grade surveillance devices such as Stingray cell phone trackers with terrorism grant money, and justify the outrageous secrecy that shrouds them on national security grounds, but they’re virtually never used for terrorism investigations, instead being deployed thousands of times for routine law enforcement investigations as an end-around the warrant requirement.

In other words, military weapons and tactics are inevitably used far more often in everyday policework than in the rare situations that supposedly justify them.

Contrary to Attorney General Sessions’ dismissal, the damage done by these government policies is not “superficial.” It’s not superficial when a SWAT team throws a flash grenade in a baby’s crib and disfigures the infant’s face, or when a family’s life is ruined by militarized police looking for tea leaves, or when protesters find themselves staring down the barrels of sniper rifles and accosted by masked, camo-wearing, rifle-toting police units.

Combined with President Trump’s recent pardon of Sheriff Joe Arpaio (who is no stranger to overly violent militarized raids and was convicted for repeatedly violating people’s rights in defiance of a court order), this move sends a strong message that police restraint and accountability are taking a back seat in this administration. 

Last night I was reading AEI president Arthur Brooks’ excellent Wall Street Journal op-ed on the lottery, that seemingly ubiquitous government revenue scheme targeted at the poor, and it brought to mind Horace Mann, the “father of the common schools.” Did Mann pop into my brain because he was also the father of the “Diamond Dollars” scratcher, or “Pick 6 XTRA”? In a way, yes.  

Mann actually hated the unproductive, greed-fueled lottery, which he wrote “cankers the morals of entire classes of the people.” As was the case for seemingly every social ill perceived by Mann, he had a cure for the canker: universal public schooling. Lotteries, he wrote, “await the dawning of that general enlightenment which common schools could so rapidly give, to be banished from the country forever.”

Fast forward to the present day, and what do we have? Roughly 90 percent of school-aged Americans attending public schools—and all children with access to them—while slickly advertised state lotteries pull in $70 billion annually, according to Brooks, with a disproportionate amount coming from low-income Americans who have little chance of breaking even, much less striking it rich.

Contra Mann’s promise, common schooling did not doom the lottery. Far, far from it. Today, perhaps the primary justification for the lottery is that it provides money for the public schools!

Frankly, Mann, who pronounced with assumed authority on everything from proper chewing to the number of “bodies” in the solar system, should have seen that coming. He certainly identified the supposed beneficiaries of lottery proceeds in his day: “the erection of public works,–to build a bridge, a canal, or a church [italics in original].” Mann was especially incensed by the latter, decrying, “When a church is built by a lottery, can there be any doubt which has the best side of the bargain, the Evil Spirit or the Good?”

Today, the “churches” conceived by Mann—the public schools—are themselves enriched by lotteries. Maybe that’s because they could never spread the universal enlightenment that Mann confidently promised. Maybe it is also because, like most of us, those employed by the public schools want as much money as they can reasonably get, and government schemes like the lottery enable them to bring in more.

As the NAFTA renegotiation enters its second round this week-end, President Trump is bringing back talk of a possible NAFTA “termination.” He tweeted this on Sunday: “We are in the NAFTA (worst trade deal ever made) renegotiation process with Mexico & Canada. Both being very difficult, may have to terminate?”  And at a press conference yesterday, he said the following: “I’ve talked about NAFTA, you’ve heard me many times – and I’ve said that we will either terminate it or renegotiate it.”

Recall that a few months ago, the White House seemed to be considering a withdrawal from NAFTA, but later backed off. Is the current termination threat anything new and different from what took place before? Is it just a pretty transparent attempt to gain negotiating leverage? As Trump himself said, “I believe that you will probably have to at least start the termination process before a fair deal could be arrived at because it’s been a one-sided deal.” 

In theory, you can gain leverage in any negotiation by threatening to walk out. It’s not clear how much credibility Trump’s threat has, though. Two law professors have argued recently that the President does not have the legal authority to terminate NAFTA on his own, without a Congressional say (to be clear, there is a lot of uncertainty on this legal point). Aside from the law, such an action by President Trump would create a political battle between the White House and Congress that could upset the rest of Trump’s agenda, so it may be unlikely.

At this stage, I’m not taking these termination threats by Trump very seriously. Most likely, it is a negotiating tactic, and I suspect the Canadian and Mexican governments have been following U.S. political events closely enough to realize this. If Trump eventually does push for terminating NAFTA, either to gain leverage or to try to unwind the deal, we can all start pushing back. But for now, it’s better to focus on getting a positive outcome in the negotiations.

In 1993, a Pennsylvania jury found Willie Tyler not guilty of murder but guilty of conspiracy to intimidate a witness. He was sentenced to “two-to-four years” and paroled in 1994. Two years later, a federal grand jury issued a four-count indictment against Tyler after Justice Department officials deemed he could be subject to a “retrial” on federal charges. He was convicted on all four counts and sentenced to a life term.

Following an appeal, second trial, and conviction, the case was remanded for reconsideration and a third trial was ordered. In the subsequent appeal of this third trial, Tyler challenged his second prosecution as a violation of the Fifth Amendment, which guarantees that no person shall “be twice put in jeopardy of life or limb” for the same offense. But under a strange exception to the Double Jeopardy Clause created by the Supreme Court 60 years ago, the state and federal governments are allowed to both prosecute someone for the same act.

Cato has joined the Constitutional Accountability Center in filing a brief urging the Supreme Court to review Tyler’s case and overturn this misguided “dual sovereignty” exception—as we did last December in Walker v. Texas, which presented the same issue. We make three principal arguments. First, none of the Framers would have contemplated such a large exception to Double Jeopardy protection. Even before the Founding, English jurist and legal theorist William Blackstone wrote that it was considered a “universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.” And in congressional debates before the enactment of the Fifth Amendment, Rep. Roger Sherman observed that “the courts of justice would never think of trying and punishing twice for the same offence.”

Second, the practical magnitude of the dual-sovereignty exception is much greater today than it was 60 years ago. For most of our nation’s history, the federal government left most criminal matters to be handled by the states; there were relatively few offenses punishable by both authorities. But in recent decades, there has been “a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws,” as Justice Clarence Thomas wrote in dissent in Evans v. United States (1992). Now that nearly every state crime has a federal analog, the dual-sovereignty exception risks entirely swallowing the Double Jeopardy rule.

Finally, the Supreme Court created the dual-sovereignty exception a decade before it held that the Double Jeopardy Clause fully applies to the states. Now that we know that it does, there’s no reason why a state prosecution shouldn’t “count” when a defendant objects to having been prosecuted twice.

As Justice Hugo Black once put it, also in dissent, “If double punishment is what is feared, it hurts no less for two ‘Sovereigns’ to inflict it than for one.” Bartkus v. Illinois (1959). The Court, when it considers whether to take up Tyler v. United States this fall, should listen to that common-sense advice and put an end to the misguided dual-sovereignty exception, at least as it works in practice in modern times.

The Trump administration has quietly made immigration more difficult for people seeking to immigrate to the United States. It has increased the length of immigration applications significantly. Since January, it has increased the length of 15 immigration forms, yet at the same time, it claims that most of these forms will take no more time to complete. The table below presents a list of all of the forms that the new administration has increased since January and how long each administration estimated the forms would take to complete.

Collectively, immigration forms have doubled in length, but key forms like the I-485 to adjust to permanent residency were tripled. The I-130 to sponsor a relative increased sixfold. U.S. citizens will need to fill out nine times as many pages to sponsor a spouse as they did last year. It’s a monsoon of bureaucracy. 

Table: Immigration Form Lengths by Presidency

 

Form

President Trump

President Obama

    Form Pages Instruction Pages Minutes to Finish Form Pages Instruction Pages  Minutes to Finish

1

I-130 | Petition for Alien Relative

12

12

120

2

7

90

2

I-130 | Petition for Alien Spouse Supplement

18

12

170

2

7

90

3

I-526 | Immigrant Petition by Alien Entrepreneur

13

13

110

3

4

110

4

I-485 | Application to Register Permanent Residence or Adjust Status

18

42

390

6

8*

390

5

I-290B | Notice of Appeal or Motion

5

9

90

2

8

90

6

I-129F | Petition for Alien Fiancé(e)

13

15

195

6

9

95

7

I-485 Supplement A | Supplement A to Form I-485, Adjustment of Status Under Section 245(i)

4

11

13

2

4

75

8

I-730 | Refugee/Asylee Relative Petition

8

7

40

4

6

40

9

I-765 | Application for Employment Authorization

2

18

205

1

12

205

10

N-600 | Application for Certificate of Citizenship

15

13

95

9

9

95

11

N-600K | Application for Citizenship and Issuance of Certificate Under Section 322

13

16

125

8

9

125

12

I-693 | Report of Medical Examination and Vaccination Record

13

12

150

9

11

150

13

I-918 | Petition for U Nonimmigrant Status

11

17

300

8

9

300

14

I-914 | Application for T Nonimmigrant Status

10

14

135

9

9

135

15

I-363 | Request to Enforce Affidavit of Financial Support and Intent to Petition for Legal Custody for Public Law 97-359 Amerasian

7

4

N/A

1

2

N/A

 

Total

162

215

2,138

72

114

1,990

*Note the form goes onto the ninth page, but USCIS doesn’t include those sections as part of the form instruction length.
Source: U.S. Citizenship and Immigration Services; Old Forms Obtained through Web Archive

 

Several weeks ago the Defense Department revealed it is seriously considering drone strikes against Islamist terrorists in the Philippines, which would make it the eighth country the United States has bombed in the war on terror. Certainly the terrorists—who have operated in various forms there for over a hundred years—are a threat to Filipinos. They are not, however, a threat to the United States. Why, then, would the United States start bombing?

The answer may lie in the misguided theory driving American thinking about terrorism.

During the Cold War, America’s political leaders subscribed to the domino theory. The theory, whose name comes from a 1954 speech by President Eisenhower, held that if one country fell to communism, then its neighbors would fall next, toppling like dominoes. This fear encouraged U.S. officials to worry about the emergence of communism even in places of little strategic importance.

History reveals that the domino theory was a poor guide to international relations, but its power during the Cold War was real. The United States intervened repeatedly in the Third World, toppling governments and fueling civil conflicts, in order to prevent the spread of communism. Most importantly, the domino theory provided the primary justification for the Vietnam War, which cost the United States almost 60,000 lives and also strained the fabric of American society. Tragically, the irrelevance of the loss of the Vietnam War for American security was not enough to vanquish the domino theory. It continued to motivate American intervention in Central America and elsewhere until the collapse of the Soviet Union.

The 9/11 attacks in turn spawned what we might call the pandemic theory. According to this theory, terrorism spreads as the terrorism “contagion” jumps from person to person, oblivious to distance or national borders. Thanks to its viral spread, which can occur via interpersonal contact or online through propaganda and chat rooms, terrorism anywhere in the world is a threat to reach the U.S eventually. As with infectious diseases, even a small outbreak of terrorism in a faraway land can be used to justify extreme responses. The best time to eradicate a disease, after all, is before it gets a foothold and infects a large number of people.

The pandemic theory looks compelling at first glance. But like many popular theories, it is dangerously inaccurate. 

First, terrorists themselves do not suffer from a disease. Instead, they almost always have a specific political goal, and their choice of violence to achieve that goal typically derives from a coherent thought process. Scholars have shown that even seemingly unthinkable acts like suicide bombing follow a strategic logic, with their horrific nature making such acts particularly potent tools for generating fear and attention. The bombers themselves are a mix of the willing and angry and those forced into it, including the young and mentally disabled. But suicide terrorism occurs not because terrorists are sick, but because terrorist organizations believe it is a useful coercive weapon. 

Second, terrorism does not spread like an infectious disease. Ideas animating the group may have appeal (e.g., esprit de corps and income for unemployed males, promises of power for the disenfranchised). However, terrorism’s spread is limited to those who are willing to kill their fellow human beings. Thankfully, there are very few of those people. Indeed, the act is so unnatural that militaries have difficulty training recruits to kill. Evidence shows that even in combat, soldiers will often fail to kill unless they have been repeatedly conditioned to do it. It is no wonder, then, that most terrorist groups eventually decide to enter the political process or wind up marginalized after failing to reach their objectives.

Third, unlike a pandemic, terrorism’s deadly impact is geographically limited. The historical evidence shows that the vast majority of attacks occur in war zones or failed states. Just one country—Iraq—endured nearly a quarter of all terror attacks over the past 16 years, while ten countries account for 73 percent of the total. All ten of the countries experienced a war during that time. Conversely, stable and developed countries rarely experience terror attacks. The United States and nine peers (e.g., Canada and the UK) only experienced two percent of the attacks.

What makes the pandemic theory so attractive, then? The psychological shock and fear induced by 9/11 probably has something to do with it. It is also true that some terrorist groups, like Al Qaeda and ISIS, have managed to spread, at least to some degree.

But a clear-eyed assessment shows that the Islamist “virus” is severely self-limiting. Though Al Qaeda and the Islamic State have shown some capacity to inspire lone wolf attacks against America and other nations, those attacks are relatively few in number. Moreover, there is no sign that their ideology has taken root within the United States (or anywhere else) despite massive levels of terrorism in the Middle East and their purported mastery of digital propaganda.

In short, though terrorism is a terrible scourge and sometimes a threat to the United States, it does not behave like a pandemic. Terrorism elsewhere, whether in the Middle East, Latin America, or the Philippines, is not automatically a threat to America.

Unfortunately, bad theories lead to bad policy. Just as the domino theory led to tragic and unnecessary wars to contain communism, pandemic theory has led the United States to wage a costly and fruitless war on terrorism. As long as pandemic theory dominates official thinking, there is no end to the war in sight.

The Trump administration has quietly made immigration more difficult for people seeking to immigrate to the United States. It has increased the length of immigration applications significantly. Since January, it has increased the length of 15 immigration forms, yet at the same time, it claims that most of these forms will take no more time to complete. The table below presents a list of all of the forms that the new administration has increased since January and how long each administration estimated the forms would take to complete.

Table: Immigration Form Lengths by Presidency

 

Form

President Trump

President Obama

    Form Pages Instruction Pages Minutes to Finish Form Pages Instruction Pages  Minutes to Finish

1

I-130 | Petition for Alien Relative

12

12

120

2

7

90

2

I-130 | Petition for Alien Spouse Supplement

18

12

170

2

7

90

3

I-526 | Immigrant Petition by Alien Entrepreneur

13

13

110

3

4

110

4

I-485 | Application to Register Permanent Residence or Adjust Status

18

42

390

6

8*

390

5

I-290B | Notice of Appeal or Motion

5

9

90

2

8

90

6

I-129F | Petition for Alien Fiancé(e)

13

15

195

6

9

95

7

I-485 Supplement A | Supplement A to Form I-485, Adjustment of Status Under Section 245(i)

4

11

13

2

4

75

8

I-730 | Refugee/Asylee Relative Petition

8

7

40

4

6

40

9

I-765 | Application for Employment Authorization

2

18

205

1

12

205

10

N-600 | Application for Certificate of Citizenship

15

13

95

9

9

95

11

N-600K | Application for Citizenship and Issuance of Certificate Under Section 322

13

16

125

8

9

125

12

I-693 | Report of Medical Examination and Vaccination Record

13

12

150

9

11

150

13

I-918 | Petition for U Nonimmigrant Status

11

17

300

8

9

300

14

I-914 | Application for T Nonimmigrant Status

10

14

135

9

9

135

  Total

155

211

2,138

71

112

1,990

*Note the form goes onto the ninth page, but USCIS doesn’t include those sections as part of the form instruction length.
Source: U.S. Citizenship and Immigration Services; Old Forms Obtained through Web Archive

An article in Politico today reports on a persistent problem with the Pentagon providing inaccurate numbers of U.S. troops deployed in foreign countries, particularly war zones like Afghanistan, Syria, and Iraq.

The Defense Department has long been among the worst federal offenders in terms of lack of transparency in public reporting on everything from where Americans are deployed to how tax dollars are spent. Specifically, though, Pentagon officials have recently resorted to some clever accounting tricks in order to make total troop levels appear lower than they actually are.

At least a few factors are motivating this “concealment of total troops in war-zones,” as Politico puts it. First, the Obama administration set certain caps on the number of troops permitted to be deployed in Afghanistan, Iraq, and Syria. In Afghanistan, for example, President Obama capped troop levels at 8,400. That is significantly lower than the 12,000-13,000 total troops actually present in Afghanistan, and once President Trump deploys another 4,000 or so as he outlined in his speech to the nation last week “the total will be nearly double the current public number,” Politico reports.

The reason for the undercounting is that the Pentagon has not been including troops present in the country for fewer than 120 days—including, for example, “construction engineers who are building a bridge or repairing an airfield, as well as the combat units like Marine artillery batteries that have deployed to Syria.” When military officials decide a short-term boost in troop numbers is necessary to achieve some tactical objective, they do so without counting them in the total numbers so as to avoid violating the caps imposed by the executive branch.

Another reason the Pentagon deliberately undercounts troop levels is because higher numbers of troop deployments can be a political liability for some U.S. clients, like Iraqi Prime Minister Haider al-Abadi, who is up for election next year amid widespread misgivings among Iraqis about the continued presence of U.S. troops there.

I ran into this problem while researching my recent Cato Policy Analysis on overseas basing. Official statements from the military and civilian sectors of government, as well as references to foreign troop numbers in the news media, were consistently lower than some more accurate (or inclusive) internal Defense Department estimates.

According to the Politico report, Secretary of Defense James Mattis is intent on fixing this problem. But his efforts may conflict with the preferences of President Trump, who has repeatedly indicated a desire to keep foreign governments, and the American people, ignorant of things like troop numbers or movements, the initiation of military action, strategy, and so on. Politico:

“We will not talk about numbers of troops or our plans for further military activities,” Trump said in his address [on Afghanistan].

Trump’s suggestion that his administration may stop releasing troop numbers is consistent with rhetoric he used on the campaign, when he lambasted the Obama administration for talking about the impending advance into the ISIS-held city of Mosul and told opponent Hillary Clinton during a debate that she was “telling the enemy everything you want to do.”

Trump’s remarks on Monday put the brakes on the plan to start disclosing more accurate numbers, at least as far as Pentagon spokesmen are concerned.

The number of troops the United States has in foreign countries, especially war zones, is unquestionably something the American people deserve to know. At the very least, it allows Americans, who are increasingly insulated from the costs of U.S. military engagements, to have a clear understanding of our efforts and commitments abroad and to make informed judgments about U.S. foreign policy. Greater transparency, and accuracy, on this issue is something to which the president and the military he commands ought to fully commit. 

Just before the annual rush to get out of town for the August District Work Period, the Senate Intelligence Committee passed its annual Intelligence Authorization bill by a 14-1 vote. The lone dissenter was Democrat Ron Wyden of Oregon, a recent guest at Cato and arguably the most articulate and well-informed member of Congress on Intelligence Community oversight issues. Almost a month after the vote, Wyden explained to The Hill why he elected to oppose the bill, which includes language aimed at Wikileaks and its founder and leader, Julian Assange:

“My concern is that the use of the novel phrase ‘non-state hostile intelligence service’ may have legal, constitutional, and policy implications, particularly should it be applied to journalists inquiring about secrets,” said Wyden.

“The language in the bill suggesting that the U.S. government has some unstated course of action against ‘non-state hostile intelligence services’ is equally troubling.”

 The specific language in the bill reads as follows:

SEC. 623. SENSE OF CONGRESS ON WIKILEAKS.

It is the sense of Congress that WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service often abetted by state actors and should be treated as such a service by the United States.

“Sense of Congress” provisions are legislative puffery—they have no legal force or effect. This is a political messaging and propaganda exercise aimed at the press and the Intelligence Community workforce, not a serious assault on Wikileaks or Assange. To claim otherwise trivializes the real threats that actual investigative journalists and their news organizations face from the U.S. government—such as attempted prosecutions for leaks under the Espionage Act or Congressional efforts to eradicate public encryption technologies journalists and their sources use to communicate securely. 

Genuine hostile intelligence services are not passive recipients of purloined secrets that they subsequently publish for all the world to see. Real spy services employ real human beings to actively seek out the secrets of other state-level actors or non-state entities like terrorist organizations, and they do everything possible to keep their successes—and failures—secret, for what should be obvious reasons. Wikileaks may be many things, but the notion that it is a stateless equivalent to the FSB or Mossad is laughable. 

Instead of obsessing about Assange and his organization, the Senate and House Intelligence Committees would do well to focus on real problems and real bad actors inside the American Intelligence Community—especially those who seem so intent on retaliating against IC employees and contractors trying to expose waste, fraud, abuse, or criminal conduct by IC officials. 

The Cato Institute’s Libertarianism.org web site has released a new, online version of The Encyclopedia of Libertarianism.

The Encyclopedia offers “a general guide to the social and political philosophy that today goes by the name of libertarianism,” including several chapters of interest to health policy scholars:

Pages