Cuban Ladies in White Win Cato Institute’s Milton Friedman Prize

At a May 17 New York City gala dinner, the Cato Institute awarded its $250,000 Milton Friedman Prize for Advancing Liberty to Cuba’s Ladies in White.[1] This award, the political reaction to the award, Cato’s other positions on Cuba and Cato’s background raise interesting issues as discussed below.

The Award

The Institute’s announcement of this prize said the following:

  • “The Ladies in White (Damas de Blanco) have a simple message: The political prisoners of Cuba are our sons, our brothers, and our husbands. They must not be forgotten.”
  • “Every Sunday, the Ladies in White gather, or attempt to gather, for Mass at Saint Rita de Casia Church in Havana, followed by a procession down Fifth Avenue. They wear white to symbolize the peaceful nature of their protest, and each wears a photograph of a loved one who is in prison. For this the authorities have constantly harassed them and organized mob violence against them.”
  • “The movement began on March 18, 2003, when journalist Héctor Maseda Gutiérrez was arrested in his home in Havana and sentenced to 20 years in prison for criticizing the regime of Fidel Castro. His case drew worldwide attention, with Amnesty International calling him a prisoner of conscience and demanding his release. Around 75 others were arrested at the same time, in an incident that has been called the Black Spring. All have since left prison, though not unconditionally, with the majority having had to leave Cuba. Since that time, sporadic arrests of journalists, lawyers, and other intellectuals have continued in Cuba, belying the myth that with normalized relations, Cuba’s human rights record would improve. If anything, it has deteriorated.”
  • “Two weeks after Maseda was arrested, his wife Laura Pollán Toledo brought together a group of wives, mothers, sisters, and daughters of the imprisoned to pray for their loved ones. They have continued to gather each Sunday, and the movement has since spread to other churches throughout Cuba. Although they are not a political party and do not have an overtly political program, they seek freedom of expression for all and the release of prisoners of conscience in Cuba. In recognition of their courage, the Ladies in White were the 2005 recipients of the Sakharov Prize for Freedom of Thought, awarded by the European Parliament. The Cuban government prohibited them from attending the award ceremony in Strasbourg, France.”
  • “In 2015 Berta Soler, one of the leaders of the group, told the U.S. Senate, “Our aspirations are legitimate…. Our demands are quite concrete: freedom for political prisoners, recognition of civil society, the elimination of all criminal dispositions that penalize freedom of expression and association and the right of the Cuban people to choose their future through free, multiparty elections. We believe these demands are just and valid. Even more importantly, for us they represent the most concrete exercise of politics, a step in the direction of democratic coexistence. Cuba will change when the laws that enable and protect the criminal behavior of the forces of repression and corrupt elements that sustain the regime change.”
  • “As the first step, the Ladies in White demand the release of all political prisoners. The outlook for many of the prisoners is grim; prison conditions are deplorable, visits are rare, and even their mail is intercepted by the authorities. And the Ladies themselves have faced increasing police harassment and arrest in recent years, as the Cuban government tries to hide-but not correct-its habit of quashing dissent. Laura Pollán died in 2011 under gravely suspicious circumstances. But the movement she founded continues: The Ladies in White will meet, pray, and bear witness every Sunday until Cuba’s political prisoners are freed.”

The keynote speaker at the gala dinner was Brazilian Judge, Sergio Moro, who become a household name in his country thanks to Operation Car Wash, the massive scandal in which he has sent some of Brazil’s most powerful politicians and business elite to jail for corruption.

U.S. Political Reaction to the Award[2]

Just before Cato’s dinner, U.S. Ambassador Nikki Haley met with representatives of Cuba’s Ladies in White at the U.N. and with a photo tweeted, “Congratulations to the Ladies in White for your Milton Friedman award for advancing liberty. The US stands behind you in your fight against the Cuban government for the rights of its people.” Here is that photo of Ambassador Haley with members of the group.

The prior day four U.S. Senators– Marco Rubio (Rep., FL), Bill Nelson (Dem., FL), Bob Menendez (Dem., NJ) and Ted Cruz (Rep., TX)– introduced a resolution congratulating the Ladies in White on receiving the prestigious award, expressing solidarity with the democratic aspirations of the Cuban people and calling on the Cuban regime to allow members of Las Damas de Blanco to travel freely both domestically and internationally. The press release continued, “the dissident group, which routinely faces brutal beatings and imprisonment from the Cuban regime, peacefully gathers and marches in white clothes every Sunday in Havana carrying a picture of their loved ones in one hand and a white gladiolus in the other.”

Subsequent Incidents Involving the Ladies in White[3]

On Sunday, May 20, the Ladies in White who were on the street were arrested and soon thereafter released except for Marieta Martinez. And the next Tuesday, May 22, their leader, Berta Soler, was arrested outside the group’s Havana headquarters.  Another member, Cecilia Guerra, was also arrested outside the headquarters and immediately released. In addition, two others, Maria Carolina Labrada and Deysi Artiless,  were arrested at their homes.

Cato Institute’s Other Positions on Cuba[4]

Cato Institute’s Handbook for Policymakers, 8th Edition (2017), surprisingly for this reader, recommended repeal of two key statutes authorizing the embargo– the Helms-Burton Law of 1996 and the Torricelli Act of 1992–and ending “all remaining sanctions that prevent U.S. companies from trading and investing in Cuba.” This, it said, would leave the Cold War in the past, and eliminate unintended consequences of a flawed policy. In short, it said, “U.S. policy toward Cuba should focus on national security interests, not on transforming Cuban society or micromanaging the affairs of a transitional government.”

These positions were reiterated in a June 2017 article by a Cato senior fellow, just after President Trump in his Miami speech announced cutbacks in policies for U.S. travel to the island. The article asserted, “The presidential campaign is over. President Trump should do what is best for both the American and Cuban people, and end economic restrictions on the island. Freedom eventually will come to Cuba. Flooding the island with foreign people and money would make that day arrive sooner.”

Cato Institute Background[5]

The Cato Institute describes itself as “a public policy research organization — a think tank — dedicated to the principles of individual liberty, limited government, free markets and peace. Its scholars and analysts conduct independent, nonpartisan research on a wide range of policy issues. It accepts no government funding. Instead, it receives approximately 80 percent of its funding through tax-deductible contributions from individuals, foundations, corporations, and the sale of books and publications.”

Founded in 1974 in Wichita, Kansas as the Charles Koch Foundation by Charles Koch, who is one of the wealthiest persons in the world and who with his brother David runs Koch Industries that supports many so-called conservative causes. In 1976 the Foundation moved to Washington, D.C. and adopted its current name in recognition of Cato’s Letters, a series of essays published in 18th- century England that presented a vision of society free from excessive government power. Cato says “those essays inspired the architects of the American Revolution. And the simple, timeless principles of that revolution — individual liberty, limited government, and free markets — turn out to be even more powerful in today’s world of global markets and unprecedented access to information than Jefferson or Madison could have imagined. Social and economic freedom is not just the best policy for a free people, it is the indispensable framework for the future.”

The current 19 members of Cato’s Board are the following:

John A. Allison, Former President & CEO, Cato Institute; Retired Chairman & CEO, BB&T (the 10th-largest U.S. financial services holding company);

Carl Barney, Chairman, Center for Excellence in Higher Education, a Scientologist and very wealthy operator of for-profit colleges;

Baron Bond, Executive Vice President, The Foundation Group LLC, a real estate management, investment, and development company whose biography appears on the website for the Atlas Society named after Ayn Rand’s “Atlas Shrugged;”

Rebecca Dunn, Trustee, DUNN Foundation, which says it “believes that liberty and opportunity should be enjoyed by the people of this Nation, envisions a world where the use of force by coercive public or private institutions no longer threatens our freedoms and celebrates entrepreneurial innovations that further these purposes;”

Robert Gelfond, wealthy CEO and Founder, Macro Quantitative Strategies (MQS);

Peter N. Goettler, President & CEO, Cato Institute, former officer of Barclays Capital and on board of Atlas Network and advocate of libertarian organizations in several foreign countries;

David C. Humphreys, President & CEO, TAMKO Building Products, Inc. and a “massive” Republican donor;

James M. Kilts, wealthy Partner, Centerview Capital Holdings, an investment banking firm, and former CEO, The Gillette Company;

James M. Lapeyre, Jr., President, Laitram, LLC, a diversified global manufacturer and officer of The Atlas Society;

Ken Levy, Levy Family Fund and businessman;

Robert A. Levy, Chairman, Cato Institute, founder of a major provider of investment information and software and successful attorney in Supreme Court ban on Washington, D.C. gun ban;

Preston Marshall, President/CEO, Rusk Capital Management and friend of the Koch brothers;

Nancy M. Pfotenhauer, President and CEO, MediaSpeak Strategies, staffer on 2008 McCain/Palin campaign and former director of the Washington, D.C. office of Koch Industries;

Lewis E. Randall, Former Director, E*Trade Financial, a financial services company;

Howard S. Rich, real estate investor and Chairman, U.S.Term Limits and other libertarian-oriented political initiatives;

Donald G. Smith, President, Donald Smith & Co., Inc., an investment advisory firm;

Nestor R. Weigand, Jr., Chairman and CEO, JP Weigand & Sons, Inc., a full-service real estate firm;

Jeffrey S. Yass, Managing Director, Susquehanna International Group, LLP, a global trading and technology firm;

Fred Young, Former Owner, Young Radiator Company, and major supporter of conservative groups and candidates.

The members of the International Selection Committee for the 2018 Prize were Leszek Balcerowicz, Former Deputy Prime Minister and Finance Minister, Poland; Janice Rogers Brown, Former Judge, U.S. Court of Appeals for the District of Columbia Circuit; Vicente Fox. Former President, Mexico; Sloane Frost, Chairwoman, Board of Directors, Students for Liberty; Peter N. Goettler, President and CEO, Cato Institute; Herman Mashaba. Executive Mayor, Johannesburg, South Africa; Harvey Silverglate, Co-founder, Foundation for Individual Rights in Education; Donald G. Smith, President, Donald Smith & Company Inc.; and Linda Whetstone, Chair, Atlas Network.

 Conclusion

The preceding account of the history of the Ladies in White tells an impressive story of alleged Cuban suppression of dissent, free speech and assembly and freedom of religion. The Cuban government, however, disagrees and is believed to assert that these women are not religious activists and dissenters, but trouble-makers for hire by the CIA or U.S. Agency for International Development or private groups in the U.S.

Which account is true? We need to hear more from the Cubans and U.S. journalists or private investigators who have investigated the activities of the Ladies in White.

The creation of the Cato Institute (f/k/a Charles Koch Foundation) by Charles Koch and the changing of its name perhaps to conceal or minimize its Koch origins raise questions about its objectivity and fairness.

Cato’s 19-member Board has 17 white, very successful and wealthy men and two white women who apparently are married to very successful and wealthy white men. This too raises questions about the board’s objectivity and fairness.

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[1] Cato Institute, The Milton Friedman Prize for Advancing Liberty: Las Damas de Blanco, Winner of the 2018 Milton Friedman Prize; Whitefield, Cuba’s Ladies in White win $250,000 prize for advancing liberty, Miami Herald (May 17, 2018).

[2] U.S. Miss. to UN, Tweet: Congratulations to the Ladies in White (May 17, 2018); Press Release, Rubio, Menendez, Nelson, Cruz Introduce Resolution Honoring ladies in White for Milton Friedman Prize for Advancing Liberty (May 16, 2018).

[3] The regime stops Berta Soler and deploys operations in the homes of other Ladies in White, Diario de Cuba (May 22, 2018).

[4] Cato Institute, CATO Handbook for Policymakers—Relations with Cuba,  8th Edition (2017); Bandow, Trump Panders on Cuba, Preferring Cold War over Progress, Cato Inst. (June 23, 2017).

[5]  Cato Institute, About Cato; Cato Institute, Wikipedia.

George Will’s Embrace of Natural Law

Recently concepts of natural law have re-emerged as relevant to interpretations of the U.S. Constitution. George Will, the prominent political and legal commentator, has done so in at least three Washington Post columns and in a speech at the John C. Danforth Center for Religion and Politics. This post will discuss his views on this subject. A subsequent post will explore those of Judge Neil Gorsuch, the current nominee for Associate Justice of the U.S. Supreme Court, whose confirmation hearing starts tomorrow.

Background

Two important instruments of U.S. history are the U.S. Declaration of Independence and the Ninth Amendment to the Constitution. The Declaration states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights; that among these, are life, liberty, and the pursuit of happiness.” The Ninth Amendment, which is part of our Bill of Rights, states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[1]

Although I am a retired attorney, I have not attempted to make my own analysis of how the U.S. Supreme Court has interpreted the Ninth Amendment. Instead I rely on my recollection that the Declaration and this Amendment have not been major authorities in the U.S. Supreme Court’s decisions and Wikipedia’s conclusion that the Court has not used them to further limit government power.

Wikipedia also cites this statement by Justice Scalia in Troxel v. Granville, 530 U.S. 57 (2000): “The Declaration of Independence is not a legal prescription conferring powers upon the courts, and [the Ninth Amendment’s] . . . refusal to ‘deny or disparage’ other rights is far removed from affirming any of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”

George Will’s Discussion of Natural Law

In a Washington Post column{2} Will argued that the Ninth Amendment’s protection of other rights “retained by the people” encompasses “natural law” rights, which are affirmed by these words of the Declaration of Independence:

  • “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness—that to secure these rights, Governments are instituted among Men, deriving their just powered front he consent of the governed.”

Therefore, Will argues, “the Founders’ philosophy is infused into . . . [the Constitution] by construing . . . [the Constitution] as a charter of government that is, in Lincoln’s formulation, dedicated to [the above proposition in that Declaration].” As a result, says Will, “The drama of American democracy derives from the tension between the natural rights of the individual and the constructed right of the majority to make such laws as the majority desires. Natural rights are affirmed by the Declaration and a properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.”

“With the Declaration, Americans . . . began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature.”

Will in this article does not go on to identify specific natural rights that are so encompassed by the Declaration. Presumably Will would not limit the protections of these words of the Declaration to those who were covered at the time of its proclamation in 1766: white men of property. In any event, his suggestion provides another “originalist” approach to interpreting the Constitution, an approach that is more open-ended than that promulgated by Justice Scalia.

George Will’s Speech at John C. Danforth Center for Religion and Politics

Additional light on George Will’s thoughts about natural law is shed by an adaption of his December 2012 speech at the John C. Danforth Center on Religion and Politics, University of Washington at St. Louis.[3]

He asserts that although he himself is non-religious, he believes that “religion has been, and can still be, supremely important and helpful to the flourishing of our democracy” and that “the idea of natural rights [does not] require a religious foundation, or even that the founders uniformly thought it did. It is, however, indubitably the case that natural rights are especially firmly grounded when they are grounded in religious doctrine.” Moreover, Will believes that the founders, who were not particularly religious themselves, “understood that Christianity, particularly in its post-Reformation ferments, fostered attitudes and aptitudes associated with, and useful to, popular government. Protestantism’s emphasis on the individual’s direct, unmediated relationship with God and the primacy of individual conscience and choice subverted conventions of hierarchical societies in which deference was expected from the many toward the few.”

According to Will, the founders “understood that natural rights could not be asserted, celebrated, and defended unless nature, including human nature, was regarded as a normative rather than a merely contingent fact. This was a view buttressed by the teaching of Biblical religion that nature is not chaos but rather is the replacement of chaos by an order reflecting the mind and will of the Creator. This is the Creator who endows us with natural rights that are inevitable, inalienable, and universal — and hence the foundation of democratic equality. And these rights are the foundation of limited government — government defined by the limited goal of securing those rights so that individuals may flourish in their free and responsible exercise of those rights.”

The U.S. Declaration of Independence asserts that “important political truths are not merely knowable, they are self-evident, meaning they can be known by any mind not clouded by ignorance or superstition. [As it states, “it is self-evidently true that ‘all men are created equal.’ Equal not only in their access to the important political truths, but also in being endowed by their Creator with certain unalienable rights, including life, liberty, and the pursuit of happiness.” [The Declaration goes on to state], ‘[T]o secure these rights, governments are instituted among men.’ Government’s primary purpose is to secure pre-existing rights. Government does not create rights; it does not dispense them.”

“Biblical religion is concerned with asserting and defending the dignity of the individual. Biblical religion teaches that individual dignity is linked to individual responsibility and moral agency. Therefore, Biblical religion should be wary of the consequences of government untethered from the limited (and limiting) purpose of securing natural rights.”

Will’s Obituary for Antonin Scalia

In the obituary Will praised the late Associate Justice Antonin Scalia for his championing the principles of judicial modesty: “textualism and originalism: A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them.” Moreover, said Will, Scalia “was a Roman candle of sparkling jurisprudential theories leavened by acerbic witticisms.”[4]

In Will’s opinion, “Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution.” Moreover, “as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that ‘governments are instituted among men.’”[5]

Will, however, does not attempt to reconcile his praise for Scalia with the Justice’s rejection of the Declaration as important for constitutional analysis.

Will’s Questions for Judge Gorsuch

In another Washington Post column, Will suggested questions to be asked Judge Gorsuch at his confirmation hearings.[6] Here are some of those questions:

  • Is popular sovereignty (majorities rights) or liberty the essence of the American project?
  • Was the purpose of the 14th Amendment’s “privilege and immunities” clause to place certain subjects beyond the reach of majorities?
  • Was the 14th Amendment’s “privilege and immunities” clause’s purpose to ensure that the natural rights of all citizens would be protected from abridgment by their states?
  • Was the Supreme Court wrong in the 1873 Slaughter-House Cases that essentially erased the privileges and immunities clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living)? If so, should it be overruled?
  • Do you agree with Chief Justice John G. Roberts Jr. who has said the doctrine ofstare decisis — previous court decisions are owed respect — is not an “inexorable command”?
  • Do you agree with the Supreme Court’s division of liberties between those deemed to be fundamental and thus subjecting any restrictions on them to strict scrutiny and all others whose restrictions are subjected only to “rational basis” scrutiny?
  • What, in your opinion, is the role of the Ninth Amendment in constitutional law?
  • Are there limits to Congress’ power over interstate commerce other than those enumerated in the Bill of Rights (the first 10 amendments to the Constitution)?
  • Was the Supreme Court correct in the 2005 Kelo v. City of New London case upholding a city’s seizure of private property not to facilitate construction of a public structure or to cure blight, but for the “public use” of transferring it to a wealthier private interest that would pay more taxes?
  • What limits, if any, are imposed upon Congress’ delegation of powers to administrative agencies by Article I of the Constitution’s provision: “All legislative powers herein granted shall be vested in a Congress”?
  • Was the Supreme Court correct in Citizens United that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?
  • Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?
  • Would you feel bound to follow a previous Supreme Court decision that did not evaluate evidence of the original meaning of the Constitution and was, in your view, in conflict with it?

Conclusion

Although I do not generally agree with many of George Will’s political opinions, I think that the linkage of the Ninth Amendment and the Declaration of Independence makes sense and should be explored more fully in future constitutional litigation. However, it is not so easy to make the next step of identifying additional principles of natural law that could impose limits on the federal and state governments.

The Declaration’s statement that human beings are endowed by their Creator with certain inalienable rights is part of that difficulty. First the First Amendment to the Constitution bans the federal government’s establishment of a religion. Second, there are now so many different religions in the world and in the U.S. Although as a Christian I believe that at least all of the major world religions honor peace and hospitality and that they all agree on the Golden Rule: do unto others as you would have them do unto you, I find it difficult see how that leads to principles of natural law that are useful. For example, I find it difficult to see how this linkage leads to the conclusion that the Citizens United case was correctly decided, as Will suggests.

In addition, although I have not studied the underlying sources, I am intrigued by the notion that the privileges and immunities clause of the Fourteenth Amendment was intended to encompass all natural law rights of U.S. citizens and that the Slaughter-House Cases were wrongly decided.

In any event, we all should thank George Will for proposing interesting questions for Judge Gorsuch in his confirmation hearing. I am reasonably confident that most, if not all, of them will be asked and answered.

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[1] United States Declaration of Independence, Wikipedia;  Ninth Amendment to the United States Constitution, Wikipedia. A prior post discussed the First Congress’ adoption of the Bill of Rights after ratification by the requisite number of states.

[2] Will, Maybe Gorsuch will fill in blanks left by Scalia, Wash. Post (Feb. 1, 2017).

[3] Will, Religion and the American Republic, Nat’l Affairs (Summer 2013). John C. Danforth, an ordained Episcopal priest, was Attorney General of Missouri, 1969-1976, and U.S. Senator for that state, 1976-1995.

[4] Will, In Memoriam: Supreme Court Justice Antonin Scalia 1936-2016, Wash. Post (Feb. 14, 2016).

[5]  Timothy Sandefur  is Vice President for Litigation at the Goldwater Institute and Adjunct Scholar with the Cato Institute. He also is the author of The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty (2013),  which is a more extensive exposition of Will’s argument that the Declaration and the Ninth Amendment need to be important markers in constitutional analysis and litigation. Moreover, Sandefur argues that the privileges and immunities clause of the Fourteenth Amendment of 1868 recommitted the U.S. to the primacy of liberty and defined the terms of U.S. citizenship that unfortunately was demolished by the U.S. Supreme Court’s 1873 decision in the Slaughter-House Cases, 83 U.S. 36 (1873).

[6] Will, Questions for Judge Gorsuch, Wash. Post (Mar. 17, 2017).