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The Specter of Internet Taxation

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As the U.S. Postal Service closes 53 processing plants to trim $2 billion from its bloated budget, government officials – who earlier floated ideas to suspend Saturday service - look for other ideas to balance their budget. While USPS handles 40 percent of all the mail delivered in the world, it lost $15.9 billion last year with revenues of $65 billion. What’s more, its unfunded pension liabilities are nearly $50 billion.

Instead of privatizing the postal service – which would allow it to compete with FedEx and UPS, who seem to be able to make profits even up against a subsidized postal service - a California city councilman is proposing a tax on email as a fix:

Berkeley City Councilman Gordon Wozniak brought up taxing emails during a recent council meeting. He suggested the money collected, which would be part of a wider-reaching Internet tax, could be used in Berkeley’s case to save the local post office.

“There should be something like a bit tax,” he said during the March 5 meeting. “I mean, a bit tax could be a cent per gigabit and they would make, probably, billions of dollars a year.”

Plus, he said, there should be a “very tiny tax on email.”

The idea is basically this: The coming electronic age of communication is making the Post Office obsolete, so let’s tax electronic communication to make up for lost revenues.  But since you can’t email things like prescription medication and carburetors, there will always be a market for physical mail, and the Post Office should adapt to this changing environment.

In itself, taxing email is a goofy proposal by one city councilman in arguably the most leftist city in the United States, with tremendous logistical challenges, and should therefore be ignored. But the idea garnered much media attention, and considering that Marketplace Fairness Act – which Forbes calls an “ineveitable” online sale tax - passed the Senate last week, the idea should give us pause. Former Congressman Ron Paul, writing this week, calls the Act an “Internet Tax Mandate.” Indeed, other nations – most notably France – are proposing similar Internet taxes.

Luckily, a prescient Congress passed a federal ban on such a taxation in the 1998 Internet Tax Freedom Act, which has been expanded thrice. But as this law expires November 1, 2014, special interests will undoubtedly line up on either side in the “nonmarket,” the way they did over UPS’ “Brown Bailout,” aka the 2010 FAA Reauthorization Act, which you can read about at FedEx’s website, brownbailout.com.

Lobbyists will likely join the fight, the way they did with Internet wine sales, which placed a sales tax on wine in the state in which it is ordered. Ever wonder why you can buy wine online, but not beer? That’s because beer has no such lobby.

I digress. As a society, we know what kind of information is sloshing around the Internet: when, where, and how much. The metering of data by private companies is evidence that monitoring volumes of email traffic is now easier than it ever has been.

But of any sector of the economy, it makes the least sense for Congress to try to be involved in Internet technologies, as innovation often outpaces even the reactive nature of Congress. However, because of the market capitalization of all firms across the space, Congress – as always – sees dollar signs with new activity.

Ultimately, taxing an activity is no way to fix it. Why not, instead of taxing email and/or the Internet, do what Professor Stephen Carter recommends, and sell advertising space on postal stamps? This would allow at least some market forces to intervene so the Post Office can begin righting itself without altering the regulatory environment, while leaving. The Internet. ALONE.

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The Constitutional Case for Same Sex Marriage

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As the Supreme Court will hear oral arguments this week on both Hollingsworth v. Perry - the challenge to California’s Proposition 8, which banned gay marriage in the state - and U.S. v. Windsor - the challenge to the 1996 Defense of Marriage Act (DOMA), which recognized marriage at the federal level as between a man and a woman – state and federal laws effecting marriage equality face their first legal confrontation with the Judicial Branch. Herein I make the Constitutional case for marriage equality that respects both individual and religious liberties.

Last week, Senator Rand Paul proposed removing federal recognition of marriage - for everyone – telling Bob Costa at the National Review:

“I’m an old-fashioned traditionalist. I believe in the historic and religious definition of marriage. That being said, I’m not for eliminating contracts between adults. I think there are ways to make the tax code more neutral, so it doesn’t mention marriage. Then we don’t have to redefine what marriage is; we just don’t have marriage in the tax code.”

Senator Paul elaborated his position yesterday on Fox News Sunday, saying he has “always said that the states have the right to decide.” Senator Rob Portman – one of DOMA’s original co-sponsors - went a step further than Senator Paul last week in support of Same Sex Marriage, at the revelation that his son is gay, stating:

“I have come to believe that if two people are prepared to make a lifetime commitment to love and care for each other in good times and in bad, the government shouldn’t deny them the opportunity to get married.”

There is a difference here: essentially Paul’s proposal regards all marriages as civil unions, and Portman’s proposal is to recognize same sex unions as marriage… Which brings us to the belabored argument over two differing definitions of marriage.

Portman’s proposal honors marriages as equal, whereas in Paul’s proposal, marriage is a sacred institution, and a union is a secular one. This is aligned with the position I used to hold: that is, civil unions everywhere and marriages in states that allowed them. Basically, I supported the same status quo our President recently evolved to support. While I always understood that granting benefits to one group while denying them to another was both morally wrong and unconstitutional, it took a while to fully understand how that applied to marriage.

Evolving Back to the Constitution

The states are wonderful laboratories for policy, and matters not covered in Article 1, Section 8 of the U.S. Constitution are left to the states, in accordance with the 10th Amendment – indeed, most matters can be handled at even lower levels, as de Tocqueville described in Democracy in America.

But Article 1, Section 8 enumerates what powers Congress has, not what rights we the people retain, and the 10th Amendment grants delegation of powers – not rights – to the states. The 9th Amendment protects certain rights of the people, stating:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

States have powers of law, not rights; individuals have rights. Having different rights under the law for different groups of people becomes a “separate but equal” status, with “marriage for straights and unions for gays” basically constituting a Jim Crow law. If the Supreme Court finds that “equal protection of the laws” as described in the 14th Amendment extends to consenting adults wishing to enter into marriage at religious institutions that permit it, both DOMA and state laws defining marriage might be overturned, as Same Sex Marriage will be considered a civil right. It should be noted here that the Supreme Court has referred to marriage as a ‘right’ 14 times since 1880.

By outlawing Same Sex Marriage, the states are essentially forbidding religious institutions to marry whom they wish. Furthermore, any claims the states make to outlaw marriage on religious terms violates the first ten words of the 1st Amendment: “Congress shall make no law respecting an establishment of religion.” As Congress - restrained by Article 1, Section 8 and the 1st and 14th Amendments - has no power to say who can marry whom, it’s hard to justify – considering the 9th and 10th Amendments - how the states can, either. Bear in mind, states also once claimed the right to say who could attend certain schools based on race.

Considering all this, a second class status for marriage is untenable, and such divisions of freedom should not be maintained, even if marriage equality under law is offensive to some.

Boundaries Protecting Liberty

I would like to see government completely out of marriage, leaving these matters totally up to religious institutions; but until it is, two tiers of rights should not exist under law. I don’t believe, as Rand Paul suggests, that government can totally work itself out of marriage; for more on this, see this outstanding piece by Doug Mataconis. Society must deal with the reality it has, not the ideal society it envisions; most of civil society would welcome and honor new contracts between consenting adults - with the proper boundaries – to protect both individual and religious liberties.

Same Sex Marriage occupies a gray area where civil rights and civil liberties collide, with civil liberties defined by what government cannot do to you, and civil rights defined by what government should do to protect those civil liberties. We should not be afraid of government protecting the civil liberties of certain groups liable to discrimination. But I neither recommend a Constitutional Amendment that provides any definition of marriage, as I believe that would be a usurpation of federal power.

At the far end on the civil rights side of the spectrum is pure egalitarianism, something we should avoid.  The most fervent proponents of same sex marriage want gays to be able to get married anywhere straights can, thereby coercing churches to marry everyone who wishes to be married; this is also untenable. While this debate is an old one, these protections were codified in Title II of the Civil Rights Act; if churches are considered private clubs under the law, they are exempt from anti-discrimination laws, and will continue to have discretion over whom they marry.

At the end of the day, either religious institutions have marriage discretion, or they don’t. Protecting the religious liberties of churches applies both to churches who want to marry same sex couples, and those that don’t.

***

Finally, on a personal note: Supporting government acquiescence in marriage is not equivalent to supporting Same Sex Marriage. I believe religious beliefs are not persuasive if evangelized by force of law, thrust upon the general population, whether in support or opposition of other beliefs… And neither did Jesus. I do not, and would not, attend a church that conducts Same Sex Marriages. But I will respect Same Sex Marriages as equal, in earthly terms, to my own.

This was prayerfully written, and I pray it is thoughtfully received.  For a comprehensive collection of the arguments being made both for and against Same Sex Marriage, see the Scorecard on Same Sex Marriage by Walter Olson at the Cato Institute.

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Rand Paul on Drones: “Just The Beginning”

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Last week, in his historic filibuster, Senator Rand Paul provoked Attorney General Eric Holder to relinquish the right to assassinate American citizens on American soil – a claim previously made in a Department of Justice White Paper. In so doing, we have established the first real boundary for the use of drones in American foreign policy. Senator Paul has since stated the drone debate “isn’t over” and that this victory is “just the beginning.” Senator Paul is pioneering a winning strategy to incrementally advance freedom within a broader liberty movement.

The memo from the Attorney General, which stated the President could not “use a weaponized drone to kill an American not engaged in combat on American soil,” was too restrictive on who could not be targeted, and does not go far enough to guarantee due process for all Americans. Indeed, the memo notably omitted the word “actively” from Mr. Paul’s requested protection. Senator Paul himself stated it “parsed too many words and phrases, to instill confidence in its willingness or ability to protect our liberty.”

Speaking of his filibuster, Paul goes on:

“I wanted everybody to know that our Constitution is precious and that no American should be killed by a drone without first being charged with a crime. As Americans, we have fought long and hard for the Bill of Rights. The idea that no person shall be held without due process, and that no person shall be held for a capital offense without being indicted, is a founding American principle and a basic right.”

Do the natural rights of Life and Liberty, endowed by our Creator, only extend to Americans on American soil? And, frankly, do natural rights only apply to Americans? More specifically, does the U.S. government claim the right to assassinate noncombatants such as Red Cross workers, civilians, and children, via drone?

What about Americans on foreign soil? Consider the case of Abdulrahman al-Awlaki, the 16-year old son of the American born cleric Anwar al-Awlaki, killed on October 14, 2011, two weeks after his father. While the father was indeed involved in nefarious activities, Abdulrahman was dining outside with friends when he was assassinated, and has never been accused of wrong-doing. An Administration official stated Abdulrahman was “in the wrong place at the wrong time,” and that “the U.S. government did not know that Mr. Awlaki’s son was there” before the airstrike was ordered, implying complicity with assassinating children that are not U.S. citizens.

What about Red Cross workers? Hussein Saleh, a 35-year-old Yemeni Red Cross worker, was killed via drone strike in June 2012. Humanitarian workers have historically been protected by international humanitarian law; the strike killing Mr. Saleh violates the Geneva Conventions (particularly the Fourth General Convention of 1949) as well as the Law of Armed Conflict, which specifically “prohibits attacks on noncombatants.”

What about underaged noncombatants? report by the New America Foundation found the number of foreign noncombatants killed by drones in Pakistan alone was 261-305 from 2004 to 2013, an independent report put that number at 3,000+ civilians killed; Senator Lindsey Graham, the drone program’s fiercest proponent, recently claimed the number was 4,700. Of these victims, 176 were children; only one in 50 killed by drone was a confirmed terrorist.

What about funeral and wedding attendees? A 2012 study by Stanford and New York Universities entitled “Living Under Drones” revealed a deadly pattern colloquially known as “double tap,” in which CIA drone pilots rapidly conduct a second strike on a previous target, targeting both rescuers and funeral goers. Again, strikes such as these violate the Geneva Conventions.More questions need to be asked: If a U.S. Marine killed those listed above, would he be reprimanded? Could Americans legally be targeted while traveling abroad? Senator Rand Paul rallied Americans to oppose drone strikes 1) on Americans 2) engaged in combat 3) on American soil. As Senator Paul linked to an article on Anwar Al-Awlaki in his Washington Post op-ed, I am betting he will challenge #3, Americans targeted on foreign soil, first.
 
 
It is no surprise the Tea Party has been reinvigorated by the #StandWithRand filibuster, as the message embodies the dictum “Don’t Tread on Me.” But what about not treading on others? That more difficult battle lies ahead.
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Rand Paul’s New Friends

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Last night, Senator Rand Paul (R-KY) made a historic stand filibustering the nomination of John Brennan over the federal government’s claim that it has the right to kill Americans on American soil, redefining “imminence,” “battlefield,” and “war” in general. The nation tuned in to see what I consider to be the most courageous political act in modern American history.

The #StandWithRand hashtag exploded on Twitter, and Rand Paul was ultimately joined by fourteen others in his filibuster: in order, Sens. Mike Lee, Ted Cruz, Jerry Moran, Ron Wyden (a Democrat), Marco Rubio, Pat Toomey, Saxby Chambliss, John Cornyn, John Barasso, Ron Johnson, John Thune, Jeff Flake, Tim Scott, and Mitch McConnell (the Minority Leader).  Every Senator who joined Rand Paul should be congratulated as they gave him both physical and political strength to go longer, and therein make a HUGE stride in advancing the Freedom Movement.

Whether or not these newcomers will continue to stand with Rand Paul is another story. Nine of the fourteen establishmentarians - Sens. Moran, Rubio, Toomey, Chambliss, Cornyn, Barasso, Johnson, Thune, and McConnell – who showed up to support Dr. Paul The Younger supported NDAA 2012, which gives our government the right to indefinitely detain Americans, depriving them of their natural right to Liberty.  (Rand Paul, Mike Lee, and Ron Wyden notably voted against NDAA; Flake, Scott, and Cruz weren’t members during its vote.) The questionable provisions from Section 1021 is as follows, in full:

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) COVERED PERSONS.—A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

We should remember Rand Paul’s newfound friends had a hand in codifying the imperialism they now protest. Congress rejected repealing the Indefinite Detention provisions again in May 2012.  As Congress willingly gave the Executive the power to indefinitely detain Americans captured on American soil without trial, the Executive only had to take one more step to deduce it could kill these Americans as well.

So did they show up out of a change of conscience? Or because #StandWithRand was the #1 trend on Twitter?  I would venture to guess fewer of these Senators would have stood with Rand had he drawn his line in the sand over Americans killed on foreign soil, such as Al-Awlaki’s 16-year old son, and even less would have been there had he addressed the 4,700 or so innocent foreign noncombatants killed arbitrarily by drones.

But this is admittedly an incremental victory.  It will get harder for those Senators who came out to stand with Rand, who may go squishy when challenged by the establishment, with which they are more comfortable. At present time, Rand Paul seems most apt at carrying this message and facilitating change within the establishment.  More steps need to be taken, and more questions need to be asked about American foreign policy, and frankly, who we are as nation. Questions like:

  1. If it’s not okay to deprive Americans of their natural right of Life without Due Process, then why is it okay to deprive Liberty through indefinite detention?
  2. Do the natural rights of Life and Liberty, endowed by our Creator, only extend to Americans? If so, do they extend only to Americans on American soil?

We can incrementally advance freedom without compromise, as I wrote yesterday.  Those of us who have been harping on these issues for some time should welcome these newcomers, foster their education on the issues, and show them why our desired end state is desirable for them.  Convincing them to continue standing with us will be the challenge. It’s on us now to be there ready.

We took a huge step last night. It cannot end today.  The fight continues.

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Incrementally Advancing Freedom

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With relative success in the 2012 Presidential elections – considering Ron Paul in the Republican primary and Gary Johnson as the Libertarian candidate in the general – libertarians maintain our strongest position in modern history.  With opportunity in front of us, hopes abound to create a “broader freedom movement” – a term which rankles top libertarians.

With this opportunity comes risk – specifically, the risk of being co-opted again, a la Tea Party 2010 – therein diluting an otherwise powerful message.  With CPAC 2013 in the near term, the 2014 midterm elections in the – ahem – mid-term, and the 2016 Presidential election in the far-term, we should expect more posturing from establishmentarians, mostly on the Right, for their votes.

It might be tempting to reject all policy ideas that don’t immediately get us to the Promised Land, or to support policy ideas when we disagree with their proposed end states. I don’t think we have to do “either / or.”  I believe we can work incrementally within the existing framework to build bridges and, as the minority, work our ideas upward within a broader movement, strengthening both the broader movement and ourselves.

Messaging Strategy

When presented with new opportunities, the typical impulse for political movements on the Left and Right is to look for new policy positions to woo more voters.  But libertarians don’t have a policy problem; we have a messaging problem.

Many in the freedom movement, including myself, too frequently answer policy proposals to solve problems with the standard “That’s not supposed to be a government function,” too often discarding any incremental improvements a proposal may make.  This is too often the libertarian approach to social issues such as gay marriage and drug legalization, and civil society issues such as health care and education; it’s either all or nothing.

While aiming for the ideal, we reject incremental and pragmatic solutions – as it’s not the ideal – instead of dealing with the world we have.  In the market, incremental improvements produce best results, through spontaneous human action and without formal planning.  We know that.  Incrementalism can work with public policy as well.

As Eric Olsen at the blog Humble Libertarian puts it:

“I want to be careful not to ignore “better” over “perfect,” with the pragmatic part of me slowly being won over to support bills I don’t really like, over the current state which I dislike even more.”

I believe we need a three-prong messaging strategy to communicate our policy positions:

  1. Praise the good in proposals that would bring incremental change towards our desired state;
  2. Plainly state what else must be done to reach our desired state, and why that state is desirable;
  3. Reject settling before reaching the goal. That is, never compromise in pursuit of the desired end state.

This simple model shows a gap analysis of how we should endeavor and the pitfalls to avoid. This is a balancing act, and there are ways to overcome these risks.

Evoking Winston Churchill, I repeat, never compromise; never; never; never. The above strategy could be misconstrued as compromise, but incrementalism is not compromise; incrementalism is taking gains where you can get them.  We must avoid being co-opted, connaturalized, hijacked, diluted, distorted, maligned, and sold out again by the establishmentarians.  Enough said there.  And as this mixed message is vulnerable to misinterpretation, it must be plainly stated every time, with the end state in mind.

Overcoming Challenges

Although it is the nature of libertarianism to oppose most policy proposals, we must rethink how we do so, as opposing everything leaves libertarians open to the classic criticism as being ‘against’ everything and ‘for’ nothing – or worse, having nefarious intentions.

Libertarians are ‘for’ many things; namely, individual and economic rights.  But we should go beyond that, because it’s not just about the individual, for the individual is not entitled to anything not his. It’s about transactions. It’s about an exchange of earned value in the marketplace. It’s about respecting the rights of others. That requires placing your neighbor above yourself.

It takes a certain measure of maturity to treat others the way you want to be treated. Modern political movements clearly lack this maturity. Alternately, the message we convey must be one of humility, although it’s admittedly difficult to be humble when you are right all the time. I kid.  As G.K. Chesterton said, “Humility means making the subjective objective — realising that to the universe oneself is not I, but only he.”

In the ideal state, the individual is sovereign and has no obligation to fellow man or government. In the real world, he must interact with others for survival, given division of labor and all that. That does not make him subservient; it makes him a member of civil society. These interactions themselves are a form of government.

It is our duty to convince establishmentarians to unravel the government’s grip on many issues and return power to more local levels. Jason Kuznicki of the Cato Institute tells me:

“We need to learn how to let go creatively – in a way that doesn’t perversely maximize power.  All of this requires a good deal of careful judgment, but it’s not impossible. The state has let go of some very large realms of human activity in the past. There is no reason why it can’t learn to let go of more of them.”

More here. Another challenge is convincing others that libertarianism is not a cover for corporations. Kuznicki goes on:

“It’s sometimes said that libertarians’ incrementalism begins at the bottom – cut welfare to the poor first, cut welfare to the rich afterward. (If ever!) That’s a pretty messed up approach, particularly given how handouts to the rich often work indirectly to keep the poor in poverty. Of course, it’s not really what we’re up to.”

More on this here. And for more on pragmatic and incremental libertarianism, see Milton Friedman’s epic Free to Choose series.

For the time being, libertarianism is a minority, mostly on the sidelines of American politics.  Succeeding in our future opportunities may require us to hold the hands of non-libertarians and usher them towards the natural laws of freedom written on their hearts so that we may all to get to the Promised Land – or, at least, incrementally closer.

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