The Bob Zadek Show

Last week I reported on a huge victory for state-based liberty in Arizona, where Governor Doug Ducey recently signed into law a bill that makes school choice available to all K-12 students in the Grand Canyon State.

HB 2853 made universal an earlier “Empowerment Scholarship Account” program that grants parents a choice over where Arizona’s tax dollars are spent for their kids’ schooling.

Matt Beienburg, Director of Education Policy at the Goldwater Institute, touts the reform as the gold standard model for the rest of the country, and other states are sure to follow suit once politicians realize how overwhelmingly popular school choice has become with parents.

The popularity of school choice has been steadily rising but reached a tipping point in Arizona during COVID-19, when parents could see firsthand the extent of indoctrination taking place in virtual public school classrooms. In the end, it would seem that teacher’s unions’ insistence on extended remote learning has backfired dramatically, as the parent-led revolution in taking back control over education continues.

Beienburg joins the show this Sunday to discuss the Goldwater Institute’s role in crafting the original ESA legislation that empowered particularly disadvantaged students to opt out of failing public schools. He will also answer some of the many objections to school choice trotted out by the left to insulate the government from competition in the arena of education.

I previously covered many of these myths on my show with Corey DeAngelis, and it’s thrilling to see the ideas from the book translated into concrete policy in Arizona:

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In his Theory of Moral Sentiments, Adam Smith described a so-called “Man of System” who is “so enamoured with the supposed beauty of his own ideal plan of government, that he cannot suffer the smallest deviation from any part of it.” This man imagines that he can “arrange the different members of a great society” as easily as a hand moves pieces on a chessboard – not seeing that “every single piece has a principle of motion of its own, altogether different from that which the legislature might choose to impress upon it.”

Today’s educational central planners bear an uncanny resemblance to Smith’s 250-year-old caricature. Led by national teacher’s unions, public schools cram children and parents into a one-size-fits-all school system. But students are not widgets, says Corey A. DeAngelis – Cato Institute adjunct scholar and Executive Director at the Educational Freedom Institute. DeAngelis is co-author with Cato’s Neal McCluskey of a new book, School Choice Myths – debunking the 12 most common misconceptions about education freedom.Against the claim that a free market in education would turn schools into factories, churning out carbon-copy graduates, DeAngelis notes that it is the current monopoly system that results in uniform, standardized testing. He finds the roots of our broken educational institutions in the compulsory Prussian school system, which “started in 1819 with the clear mission of creating citizens that would be obedient miners, factory workers, and soldiers.”Corey joins me this Sunday to unravel this and other pernicious falsehoods around school choice, and to discuss recent developments related to charter schools, voucher programs, and other challenges to the government school monopoly.We will also touch on the troubling news that Biden’s transition team for the Department of Education includes four members of the nation’s top two teachers’ unions. Finally, we will look at how unions have sought to protect teachers from the minuscule risk of COVID at the expense of student outcomes, and why we must not allow special interests to determine educational policies

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William Ruger and Jason Sorens are the authors of the “Freedom in the 50 States” report, a Cato Institute project which gives an annual assessment of which states are increasing and decreasing in the rankings of a broad index of liberties. The Cato Institute has been publishing this detailed compendium, using hundreds of various weighted variables.

They both joined my show for the first time to discuss how the index weighs different broad categories of freedom – from regulatory, to financial to personal – as well as specific freedoms that vary in importance for different people. Of course, there are many people who would be happy to live in a state that restricts other people’s liberty, while their own cherished freedoms are left untouched. But which states guarantee liberty for all?

In this episode, we discuss:

* Cato’s Annual Freedom in the 50 States report

* New Hampshire - The Free State Project

* How is freedom defined and measured, given moral disagreements over issues like abortion?

* Robert Nozick’s Anarchy, State, and Utopia, and the concept of Distributive Justice. Is wealth really ever “distributed”?

* What makes people devalue freedom?

* The Urban vs. Rural divide. Why are free states more rural?

* How high do taxes have to go before citizens start to leave a state?

* How do less free states compensate their residents for the lack of freedom?

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My listeners know that I am an optimist, despite all of the doom-and-gloom type stories we read daily.

This week, there has been more bad news – as usual. Two pieces from the American Institute for Economic Research especially caught my eye: one about the Fed’s recent interest rate hikes, and another about attempts to combat climate change through “de-growth” (read: coercion and green energy handouts). Meanwhile, the National Bureau of Economic Research seems to be defining down the definition of a recession to exclude the past two months of consecutive negative growth.

However, there is always good news to find if you just know where to look.

Reason #1: There is Still Freedom in the 50 States
The biggest reason I find to be optimistic this week comes from a Cato Institute project led by AIER President and Cato research fellow William Ruger as well as Jason Sorens. Ruger and Sorens are the authors of the “Freedom in the 50 States” report, which gives an annual assessment of which states are increasing and decreasing in the rankings of a broad index of liberties.

They both will join my show for the first time to discuss how the index weighs different broad categories of freedom – from regulatory, to financial to personal – as well as specific freedoms that vary in importance for different people. Of course, there are many people who would be happy to live in a state that restricts other people’s liberty, while their own cherished freedoms are left untouched. But which states guarantee liberty for all? Find out this Sunday on the show of ideas what separates the #freestates from the unfree.

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Progressive conservatism sounds like an oxymoron – a bit like an exact estimate, jumbo shrimp, or a dull roar. Frank H. Buckley, however, argues that progressive conservatism is not only a meaningful political label but that it has a rich history in America. A former speechwriter for President Trump, Buckley believes that Trump voters will still determine the future of the Republican Party, even though Trump has disgraced himself.

Voter surveys show a dominant centrism on the right that Buckley believes lends itself to progressivism – properly defined.

The party of Abraham Lincoln, Teddy Roosevelt, Dwight Eisenhower, and Ronald Reagan has always been progressive, he says.

Frank has been a law professor at George Mason University since 1989 and is a keen observer of American politics. Although Canadian by birth, he is as American and patriotic in the genuine sense of the word as anyone.

He has also written in recent memory, American Secession, The Republican Workers Party, The Republic of Virtue, and The Once and Future King – all of which you can find in my show archives at BobZadek.com.

In this episode, we summarize many of the themes from his previous books in a one-hour conversation about the future of American Politics.

We will see whether the two seemingly contradictory philosophies of progressivism and conservatism can, in fact, co-exist, and Frank will argue – using many examples – that this blend of labels is what characterizes the very best of the Republican Party, past, present, and future.

Condensed Transcript/Summary

The term “progressive” has been adopted by the left, but today’s leftist progressives are actually anti-moderns, says Buckley.

“They want to turn politics into a battle of race against race – ethnic group against ethnic group. There’s nothing modern about that. That's premodern. That's Neanderthal, right? The whole point of America was to get away from all of that.”

East vs. West

Resolving the seeming contradiction in terms requires a different view of history, he argues:

“We tend to see American history in terms of things like North versus South, but that has played itself out. I'd invite people – and libertarians, particularly – to think of American history in terms of East versus West.”

Buckley cites Frederick Jackson Turner, whose Frontier Thesis posited that the availability of unsettled land throughout much of American history was the most important factor determining our national development.

While the East Coast retained the Old World flavors of aristocracy and inequality, the wide-open Wild West offered opportunity, meritocracy, democracy, and equality.

“Turner should be a hero to libertarians, as well as to progressives, because he's the guy who invented jurisdictional competition – the idea that states compete for people. The West was the home of Republican virtue, and the East of corruption.”

Today, California is losing citizens because of its corruption and tax-and-spend policies, while much of the East (including Europe) has learned from its mistakes and reformed in many ways to be more like the West.

A Uniquely American Libertarianism

Buckley believes that economic mobility is the key to national revival – a theme that has recurred in several of his recent books, including The Republican Workers Party.

In that book, Buckley applauded Trumpism without fully endorsing the man himself – who he frames as a Hegelian figure, selected by history to lead America into a renewed civic nationalism. He is careful to distinguish this nationalism from populism, and notes that American nationalism is inherently liberal. It welcomes foreigners to our shores, for example. Immigration, it could be said, is as American as pizza – and this is not incompatible with our unique brand of nationalism. American nationalism also embraces economic opportunity and the freedom to live your life as you see fit. The economic data from the last several decades reveals that this ideal is slipping away.

“What I want to do is try to talk about a way of understanding libertarianism, which is authentically American; which isn't derived from a bunch of Austrian economists (bless their hearts) but which is specifically American,” says Buckley.

He cites the introduction of the 17th Amendment – the direct election of Senators – as an example of a “western initiative” that came from progressive libertarianism and the urge toward greater democracy. The Republicans’ 19th-century opposition to corruption and the influence of money in politics is another example of progressive conservatism. Today’s GOP has ceded that issue to the Left, which now controls the conversation about so-called dark money, even as the Democrats are the prime beneficiaries of corrupt lobbying by Big Business. The Republican Party of the 1990s and early 2000s was built on an alliance with business in promoting right-wing economic policies, alongside right-wing social values. Trumpism represented a break from this “fusionism,” but Buckley says that Trump failed to live up to his promises to help the middle class. The turning point, when it all went south, came early – in his inauguration speech:

“I was asked to write an inauguration speech, and before I did that I bought a book of the inauguration speeches of U.S. presidents. If you read that, it would blow you away. Noble speeches by impressive people. I drafted a speech that was Kennedy-esque, in a kind of “let's come together” type of effort.

For the inauguration, I happened to be at the Canadian Embassy and I heard the speech that was written by Steve Bannon and I realized, “This is nuts.” This is anything but what a Dwight Eisenhower would have done. Thereafter, Trump surrounded himself with incompetence in office, and with cronies who catered to his monstrous ego, and to sycophants, and a sleazy group of people – many of whom were distinctly illiberal.”

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Progressive Conservatism’s Values

Perhaps the oxymoron of progressive conservatism is best illuminated and resolved with some concrete examples. Buckley favors some relief for students burdened with loan debt, comparing it to bankruptcy – which enables people to take financial risks without the possibility of complete and total ruin.

“I'd like to argue that there's something very American about bankruptcy laws,” he says.

On the subject of income inequality, Buckley is critical of Republicans like Mitt Romney who divide America into “makers vs. takers,” and thinks that the true division is between the government-privileged and those left out of the crony-capitalist gravy train centered in Washington D.C. We can support greater equality in the historically “Western” sense without abandoning the principles of freedom and free markets.

Finally, Buckley is not opposed to a kind of public option for catastrophic health insurance. He says that the great fear of many Americans is ending up bankrupted by a hospital visit for something our health insurance doesn’t cover. He points out that this is supported by a majority of Americans, although it’s probably the least libertarian of his proposals. Why can’t the market provide these catastrophic plans, the libertarian would ask? From a political perspective, appealing to libertarians is generally not a high priority, given that libertarians make up only 3.5% of voters. Buckley also rejects the open immigration policy I’ve promoted over the years, which I invite all my readers to follow here:

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This Sunday, I’m happy to welcome F.H. Buckley back to the show to discuss his newest book, Progressive Conservatism: How Republicans Will Become America's Natural Governing Party.

Progressive conservatism sounds like an oxymoron – a bit like an exact estimate, jumbo shrimp, or a dull roar. Buckley, however, argues that progressive conservatism is not only a meaningful political label, but that it has a rich history – both in America and around the world. A former speech writer for President Trump, Buckley believes that Trump voters will still determine the future of the Republican Party, even though Trump has disgraced himself.

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You’ve heard of legally blind, and even legally blonde, but what about legally white?

GMU Law Professor and Volokh Conspiracy blogger David Bernstein explores “the borderlands of legal whiteness” in his new book, Classified: The Untold Story of Racial Classification in America.

Fellow conspiracist and Prof. Randy Barnett has already included it in the syllabus for his upcoming Georgetown Law seminar, Recent Books on the Constitution.

Bernstein joins to discuss the many contradictions involved in the government’s attempt to put clear labels on complex categories.

Should Hispanics of Spanish descent be considered minorities, or European whites? Why are Asians discriminated against in college admissions – especially given the incredible range of geographies, cultures, and socio-economic statuses contained within that broad designation?

What will the Supreme Court decide in the pending suit against Harvard and the University of North Carolina brought by the “Students for Fair Admissions” group?

Tune in every Sunday morning on AM radio, or streaming online
Having had a sneak preview of the book, I can tell you that it is a must-read for Constitutional Law buffs, and anyone interested in American legal history.

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Whenever it comes to a vote, Americans reject the idea of racial classifications as a violation of our core founding principles. The founders railed against the old peerage system, where people were given special privileges based on the mere accident of their birth. And yet today we have to mark racial check boxes on various forms and applications to determine whether we are eligible for certain government privileges.

One of my first shows, when I started broadcasting over a decade ago, was with Ward Connerly — an African American businessman and former Regent of the University of California who led the ballot initiative to overturn affirmative action in California.

Professor David Bernstein of Law at George Mason University joined the show to bring me up to speed on the full history of policies like affirmative action, and how race is legally defined for the sake of fulfilling diversity criteria for hiring, admissions, small business grants and the like.

Bernstein’s book Classified: The Untold Story of Racial Classification in America, has already been listed among the picks for Randy Barnett’s “Recent Books on the Constitution” seminar at Georgetown.

Thus, this morning, we will not only be discussing the moral and legal dimensions of racial classification.

To start, I ask:

Why is the government in the business of deciding who you are in racial or ethnic terms?

Historically speaking, the government cared generally for nefarious reasons, like school segregation in the Jim Crow South, or bans on interracial marriage. [quotes are from Professor Bernstein]

Not to mention laws that banned Asian immigrants from becoming U.S. citizens.

After the Holocaust, there was a [push to] abolish these arbitrary classifications once and for all. The problem was that the United States government felt that it needed statistical information about people's race and ethnicity in order to enforce various civil rights laws – the first being federal executive orders from Presidents Truman, Eisenhower, and later Kennedy, prohibiting government contractors from discriminating based on race and other qualifications.

Religious classifications proved too difficult and fraught with legal challenges, so they settled for racial classifications – ensuring that a certain number of African American, Latino, and Asian people were represented in the workforce.

In the 1960s, the Great Society policies of LBJ sought social progress for specific underprivileged groups and looked to standardize the definitions of which groups were counted for statistical purposes. The Hispanic category turned out to be particularly troublesome:

Some agencies would say the Hispanic category should include Mexican Americans and Puerto Ricans, but not Cubans. Some included Cubans, and others said all Spanish-speaking households.

At this point in time, classifications were used almost entirely for data purposes:

It wasn't especially controversial at the time, because no one realized what the implications would be… No one realized this was going to become the baseline for affirmative action programs and racial preferences.

How did this trend creep from a few classifications to the system we have now?

Bernstein notes that the earlier designations were based on more black-and-white thinking – literally:

Between the 1950s and the early 70s, the United States was primarily a biracial society. We had a large majority of what we could call white people of European or Middle Eastern origin, and we had black people – anyone who looked discernibly like they had African descent.

Asians were less than 1% of the population and Hispanics were still considered white:

No one really anticipated that we'd have millions of immigrants from Latin America and from Asia.

Bernstein tells the story of how “Hispanic” became equivalent to African American as a racial minority, through the advocacy of the Ford Foundation. The cause got a boost from Nixon, who had his own motivations for creating a “pan-national identity,” that included Cubans and broke up the more radical “Chicano” voting bloc of Mexican and Puerto Rican Americans. From Cubans, it was an easy leap to include Europeans of Spanish origin.

“A lot of the absurd court decisions have revolved around Hispanic identity,” Bernstein says, adding that “there's all sorts of craziness in the bureaucracy – conflicting decisions as to who counts as Hispanic.”

Although the aims of civil rights laws was to prevent discrimination, we ended up with the same kind of discrimination taking place that occured in the 1920s during the era of Chinese Exclusion.

Why are people fighting to be included in certain groups?

Bernstein notes that his book is not about affirmative action, but of course one can’t write about racial classification without referring to the special consideration given to minorities on certain job and college admissions applications.

We’ve seen the rise in reverse affirmative action, where Asian Americans are discriminated against in competitive college admissions. This has led those in the Pacific Islander or Hawaiian (Asian) category to wish to be classified as Native American. In the end, they got their own category.

Hasidic Jews also sought their own designation, as did Armenians and Arabs – who did not want to be categorized as “white.”

Muslim Americans, at least claim Are we still leaders claim that they feel more racially distinct from the general population? Have they suffered discrimination? They've been trying to get a special Middle Eastern North African classification. They almost got it under the Obama administration, the Trump administration vetoed it.

How did classification become politicized?

For the most part, polling data suggests that people in America don’t strongly identify with broad labels such as “Asian,” yet there do seem to be groups that use them to enhance their own political power.

With special benefits come special interests seeking those benefits. As soon as we introduced certain grants to small businesses owned by certain ethnicities, it opened the door for political jockeying to get the minority status.

And yet who enforces this distinction?

Bernstein answers that it’s basically the honor system:

I did not see a single example anywhere in the United States of any student ever being penalized for putting down a classification other than what someone else thought they were.

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Where do we go from here?

Our target should be the widespread separation of race and state.

This policy prescription mirrors the current rules with respect to religion – government doesn’t keep lists of how many Mormons or Jews or Catholics there are.

When it comes to private discrimination – whether in higher education or medical research – Bernstein says that these instutitions need to determine what their classifications are attempting to accomplish. Medical research may require genetic diversity for its findings to make sure we’re not missing something.

If we're looking for diversity in higher education, there's no reason that a school should prefer the 1001st Mexican-American student over the first Hmong student because one group is “Hispanic” and one group is “Asian.” The first Hmong student will obviously add more diversity to the class than the 1001st Mexican American student.

On the bright side, Bernstein sees our society broadly trending towards assimilation and amalgamation. However, each time the government provides a special favor to a particular racial group, it slows down this process.

He sees a particular danger in prioritizing certain medical treatments, such as vaccination or blood plasma transfusions, on the basis of race. When push comes to shove, he says, we should check whatever box we need to in order to overcome this kind of medical discrimination:

The only good news about the medical classification is that it's so damaging and so destructive that it may actually lead the whole house of cards to come tumbling down. I'd be very hesitant about engaging in any kind of ethnic identity fraud, or exaggeration, but if I'm going to the hospital, and you tell me that if I check the Hispanic box then I'm moving up in line, then I am checking the Hispanic box, and I advise anybody else in the same circumstance to do the same thing.

Buy the book: Classified: The Untold Story of Racial Classification in America

Follow David on Twitter

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Joe Biden’s gaffes are usually unplanned slips of the tongue – not pre-meditated social media posts that presumably received approval from staffers prior to publication.

However, his recent Tweet demanding that gas stations lower their prices to alleviate the “pain at the pump” is far more embarrassing than his accidental public speaking fumbles.
Even Jeff Bezos had to correct the President for his ignorance of basic economics, which combined blatant scapegoating with a denial of the universal laws of supply and demand. However, in a nation where the vast majority of citizens have likely never taken an undergraduate economics course, can Biden be blamed for engaging in such classic political opportunism?

Perhaps we can channel former President Barack Obama in considering this a “teachable moment.” Or as Rahm Emmanuel once said, we should never let a good crisis go to waste.

I’m delighted to welcome Professor Emeritus ****Steven E. Rhoads to the show to discuss the new and substantially revised 35th anniversary edition of his best-selling book, *[The Economist’s View of the World: And the Quest for Well-Being](https://amazon.com/Economists-View-World-Quest-Well-Being/dp/1108845940).*

Rhoads wrote the book as an assistant professor at the University of Virginia (home of the Public Choice economics), and was surprised when the original edition skyrocketed to the tops of best-seller lists and made economic principles accessible to millions who would have otherwise believed the fallacies embedded in Biden’s tweet.

David Henderson – editor of the Concise Encyclopedia of Economics – calls it “A Wide-Ranging Book for Non-Economists and Economists" alike, and the WSJ named it one of the best books of 2021.

Steven E. Rhoads and I attempted to distill an entire semester’s worth of economic thinking into a full hour. Don’t miss it.

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In this episode, we look at the nature of judge-made law in two otherwise vastly different arenas: Abortion and Qualified Immunity. In the former, the Supreme Court recently reversed a ruling that had led to a 60-year period of the Supreme Court-created legal abortion regime. In the latter, the Court has repeatedly refused to take responsibility for protecting constitutional rights when they are violated by government officials.

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Summary Transcript

This year, there have been many fascinating and important Supreme Court decisions – primarily the Dobbs decision, which overruled two major abortion cases – Casey v. Planned Parenthood and Roe v. Wade – ending the 60-year period of the Supreme Court-created abortion regime.

What does it mean for the political health of our country, and how do we counteract the erroneous analysis offered by pundits who claim the Dobbs decision heralds the “End of Democracy.”

Clark Neily – Senior Vice President for Legal Studies at the Cato Institute – wrote the best analysis I have read of the law governing abortion – specifically the constitutional considerations. The article was titled, The Hard Problem of Abortion Rights. Neily joined me to explain what the Dobbs decision actually did, and what the effect will be on abortion law in the country:

Dobbs held quite simply that there is no constitutional right to an elective abortion, overruling a 60-year precedent starting with Roe v. Wade which has protected and held that there is a constitutional right to have an elective abortion. Five justices held that it is simply not a feasible way to read the Constitution. It’s not in there.Interestingly, Chief Justice John Roberts wrote a concurrence where he said, ‘I would not go that far. I would simply say that the Mississippi law before us – which prohibits elective abortion after 16 weeks of pregnancy – passes Constitutional muster.’

Defining Unenumerated Rights

It would seem to me that Roe simply created a right to an abortion out of nowhere. Of course, it’s not mentioned anywhere in the text of the Constitution. Neily, however, notes that we do have many un-named or “unenumerated” rights that are not specifically articulated in the text the way that rights like freedom of speech is explicitly mentioned in the 1st Amendment. He offers a few examples of these unenumerated rights:

The right to travel around the United States has never been seriously questioned, although it is nowhere in the text of the Constitution. The right to guide the upbringing of your own child – to make decisions about where that child goes to school, and whether they go to church, etc. – is nowhere mentioned in the text of the Constitution, but it has been enforced for over 100 years by the Supreme Court. Did the court invent those rights, or did it instead recognize those rights because they are plausibly among the unalienable natural rights that we all possess, whether they are articulated in the text of the Constitution or not?Some people think the ability to terminate a pregnancy is among the unalienable natural rights that all human beings possess, and other people think that it is not.

Neily thinks that reasonable libertarians can see it either way, and that there are powerful objections to both views.

It’s hard to dispute, however, that returning the issues to the states represents a usurpation of the will of the people or an end to democracy. In fact, it was the profound opposite – a step forward in recognizing that this issue is the province of the small-d democratic process, and not the judiciary.

Does this mean that the states are free to enact whatever they wish insofar as abortion is concerned – without concern for the Constitution? The short answer, Neily says, is yes. However, he is not certain that states would be able to pass a law that made no exception to save the life of the mother.

Would that pass constitutional muster or not? Answer? We don't know.

On the other side of the ledger, would states be able to allow abortion all the way up until 8 months and 29 days?

“Dobbs leaves some really difficult questions to be answered,” Neily says.

Would states even need to define abortion policy at all? Neily suggests that states might, under the 14th Amendment guarantee of equal protection under the law, have to decide when a fetus becomes a person entitled to legal rights.

This is a question where libertarians are not in agreement, which gets us back to Neily and Schweikert’s extremely nuanced article.

The Hard Problem of Abortion Rights

Neily summarizes the basic arguments of the libertarian camps:

Virtually all libertarians agree that there are unenumerated rights that the Constitution protects, and the right to bodily autonomy and self-defense would be two of those that would be arguably relevant to this setting.

The pro-choice libertarian would likely start with the point that libertarians greatly value individual autonomy – no private individual or a government official may interfere with your freedom without some extremely strong justification. The presumption is that you get to do what you want with your body – i.e., taking whatever kind of medicine, ingesting whatever kind of intoxicants, etc.

They would argue that the government just doesn't have a strong enough justification case for interfering in somebody's ability to [take a “morning after” pill, for example,] at the point of conception. [The embryo/fetus] may mature into a sufficiently strong justification at some point during the pregnancy, but not early on.

The anti-abortion libertarian, would say that the other unenumerated rights like the right to travel right and to raise your own children – even the right of access to contraception – are different from abortion because none of them results in the termination of a human life or a potential human life. The government has an obligation to two different morally relevant beings.

Thus, we have a moral question, which is separate from the legal question. Conflating the two leads to the current climate, where people assume that the Supreme Court must definitively settle every moral and political issue – something which is more properly determined by the legislatures. In this case, the court has deferred to the legislatures and tried to wipe its hands clean of the responsibility for settling such a controversial issue.

And Now For Something Completely Different: Qualified Immunity

Some years ago, I invited Neily to discuss another issue with a complex legal history. As he noted on Twitter, the issue of qualified or absolute immunity should not be nearly as controversial as abortion. What is qualified immunity, who gets it, and what are they “immune” from?

“Immunity,” says Neily, “is kind of a free pass.” Like a get-out-of-jail-free card.

It grants certain people protection from prosecution. Qualified immunity applies when police officers or other government officials harm somebody and get sued for it.

For 150 years, citizens have had the ability to sue a rights-violating government official, including a police officer in federal court.

However, the Supreme Court invented a defense of these officials by dismissing cases where the specific way in which someone was injured has never arisen in the particular jurisdiction before.

Even a meritorious suit, therefore, can be dismissed on procedural grounds.

It is a get-out-of-responsibility free card for rights-violating government officials.

The original statute to hold officials accountable was passed in 1871, during the Reconstruction Era, to make sure that agents of the Federal government did not abuse their authority. How did we come to the place where the legislature reversed Congress’s original and appropriately-drafted statute?

The language of the Enforcement Act of 1871 (aka Section 1983 of the US Code) is quite simple and has not changed for 150 years.

The operative language … says that any state actor – anybody employed by a state or local government – shall be liable to the person injured for the deprivation of any right.

In 1967 (Pierson v. Ray), the Court updated their interpretation in a reasonable way. They made it so that government actors could not be prosecuted for enforcing something that later became illegal – like racial segregation – so long as they were acting in good faith.

The “good-faith exception,” however, later gave way to a more sweeping kind of immunity in the 1982 case of Harlow v. Fitzgerald:

In effect, they rewrote the text of Section 1983 so that instead of being able to sue for the deprivation of any right, which is what Congress said, the Supreme Court, inserted two words – a “clearly established” right. That language doesn't appear in the text of the congressionally-written statute, but the Supreme Court put it in there again in its infinite wisdom.

In order to to satisfy this “clearly established” requirement, you have to [not only] show that your rights were violated, but that the particular way in which they were violated has already been the subject of a prior court case in the relevant jurisdiction.

What does this mean in real life?

[Unless] the courts have already said, ‘Look, you can't punch a guy on the left side of the face on Tuesday when he's wearing handcuffs behind his back,’ then we're going to hand out free passes. If any of those facts is different in the next case, then it's not clearly established. And it's been a disaster.

Neily relays a particularly egregious recent example in which a man filmed the police conducting a violent arrest.

A really good example was a case that the Supreme Court just recently allowed to stand, the lower court in this case – the 10th Circuit Court of Appeals – which covers the mountain states, including Colorado. A young man was watching the police conduct a particularly violent arrest. They thought that this other person was hiding drugs in his mouth, and so they decided they would try to get the drugs out of his mouth by punching him in the face over and over again.

So he started recording it and when the police noticed that he was recording, they came over, surrounded him and demanded that he turn over the recording device so that they could delete the video. Eventually he relented. They weren't able to delete the video and he ended up turning it over to a TV station, and they publicized it. So he sued. And the theory of the case was, "Look, I have a constitutional right to record police in public."

Interestingly enough, the police who tried to stop him from recording and delete the video had been trained by their own department that, in fact, citizens do have a right to record them in public and they must not interfere.

About half of the federal circuit courts of appeals have weighed in on the issue, and they have also said that we have a right to record police. The Justice Department has sent letters to police departments saying there's a right to record police, but guess what? It happens that the 10th Circuit Court of Appeals that covers this particular jurisdiction has not yet weighed in, and so the police asserted qualified immunity and said, “Yes, we were trained that there's a right to record police and public, and yes, we violated our training when we did what we did. And yes, half of the federal courts of appeals have said there's a constitutional right to record police. And yes, the justice department has said there's a right to record police. But the 10th Circuit where we live hasn't said it yet, and therefore we get a free pass. And guess what the 10th Circuit said? Absolutely right.

“Free passes all around. We have not yet weighed in on this issue, so the issue in this jurisdiction of whether you can report police and public is not clearly established, and these officers are entitled to a free pass with qualified immunity.”

That is really qualified immunity in a nutshell.

To the objection that we should be charitable toward law enforcement, who may not be caught up on all of the latest Supreme Court findings, Neily answers that we should allow citizens to determine what counts as a reasonable or unreasonable use of force in these cases – not judges who may have had a history as prosecutors.

Although police may not stay up late studying judicial decisions regarding what has been “clearly established,” he says its important that government officials remain civilly liable for their conduct. As it stands, we the taxpayers usually foot the bill for settlements in cases of misconduct.

What’s wrong with the agency or police department taking liability? Neily argues that the individuals must also be personally liable, so that they would be required to take out liability insurance – like doctors, lawyers and other professionals. Premiums would go up when officers are found guilty of misconduct, and bad actors would be priced out of a job assuming their employers fully or partially subsidized the insurance. Neily further suggests that police departments could incentivize good behavior by returning money to police officers when their premiums fall due to a clean record.

Most police officers do a good job. But the Derek Chauvins of the world – those frequently charged with misconduct – would become uninsurable.

Thus, Neily has found a private, free-market solution to the evil of the abuse of our Constitutional rights.

The same policy could be applied in the case of “absolute immunity,” which eliminates civil liability for prosecutors altogether – even in cases where they knowingly present false testimony to obtain a conviction. If you are the victim of a false conviction based on this kind of misconduct and are later exonerated, you can’t sue the prosecutor – even after serving years in prison.

The Supreme Court has said, ‘Well, we're not condoning what happened here. But no, you can't sue that prosecutor.’

This doctrine, too, was invented out of whole cloth by the Supreme Court in the 1970s and remains a prime example of judicial activism, in which the court overrides the proper job of the legislature in making a rule.

How would prosecutors fare in a “free market” complete with liability insurance?

The good news here is that prosecutors will tell you that they almost never committed misconduct, so if we take them at face value (I'm not sure we should) then their liability exposure is close to zero. Why? Because they never mess up. And who will tell you that they almost never mess up? Prosecutors. So that should be fine.

Let the market decide – not nine unelected robed officials. How’s that for democratization?

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