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tv   Supreme Court and Foreign Relations  CSPAN  August 15, 2016 12:17pm-1:18pm EDT

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so let's turn fiscal policy here. you sina in fiscal policy we're dealing with things like state taxation, local taxation, government employment, government subsidies and debt and you see here new york brings up the rear in 50th place. not surprising. something worth noting. at the stop were states like new hampshire, tennessee, south dakota, florida, and oklahoma. now let's move to regulatory policy, the other half of economic policy -- economic freedom. so here we have things like land use which are really substantial, things like health insurance in terms of the pre-ppaca, and here again you see new york comes in last. new york is an interesting case we can go into more perhaps in the q&a where it does so poorly even compared to the 49th worst
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and 58th worst states. but at the top we see idaho, indiana, wyoming, kansas, and iowa. now when you add fiscal policies and regulatory policies together we get economic freedom as a whole and there are other studies that measure economic freedom out there but we think we do a decent job at combining regulatory and fiscal as we see it and giving an overarching economic freedom index itself and that could be utilized even if you're not interested in the other aspects we measure here. in terms of economic freedom you see at the bottom we have new york, california, hawaii, new jersey, and maryland. at the top, new hampshire comes in fifth followed by moving the scale to oklahoma, tennessee, idaho and the top state in terms of economic freedom in the country is south dakota. next we'll talk about personal freedom. here you have a whole range of policies that before the freedom index were not measured in any of these indices of freedom. we think that's a big value add
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for looking at this wider understanding of what it means to live in a free society. so here we have some criminal justice policies at the top, incarceration and arrest, marriage freedom, educational freedom, gun right, alcohol freedom and so forth. and, again, at the bottom of this list, new york escapes being 50th, we have kentucky following that, sorry, david. now in terms of the best we have washington, maine, nevada, colorado, and new mexico is the top state in terms of personal freedom. now let's move to overall freedom. again, harkening back to milton freedman, right? it's not easy to divide out the categories of freedom in terms of how we want to live. we have to american your the whole range. so what does it look like? if you may click on this, maryland is 46, new jersey is
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47, hawaii is 48, california is 49 and you may not be surprised what i said before that new york comes in dead last. and it's actually -- it's funny that it comes up so often but not for the residents of new york who suffer greatly from this policy regime which is one of the reasons why, to tease what jason is talking about, why so many new yorkers have been moving since 2000 where we've seen double-digit movement in terms of the percentage of 2,000 population that have left the state. in terms of the top state, south dakota which was ranked highly in terms of economic supreme in fifth place on personal freedom, partly because they don't do as well -- sorry, overall freedom, partly because they don't do as well on personal freedom. then followed by indiana which does pretty well on both, oklahoma, alaska, and then -- drum roll please -- new hampshire, the freest state in the union as of the fourth
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edition of the freedom of the 50 states index. so now we'll turn to jason to talk about some of our analysis of these different relationships that i talked about earlier. so thank you. . thanks, will, so my job today is to talk about the social science we do with these freedom scores. so first taking a look at how freedom has changed over time for some of our top and bottom states, you'll see here back in 2000 tennessee was our number one state but relative to other states it hasn't done so well since then. and now it's fallen a little back at the head of the pace. new hampshire was number two back in 2000, number one in 2006 and eight years later retakes first place for the first time. alaska did very well back in
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2000 and declined a lot by 2006 and then since then has increased tremendously although with alaska i have to caution you, our measures of state taxation are skewed by the fact that they correlate a lot with oil prices so a lot of this improvement is actually -- it's measured improvement but there weren't policy changes it's that the state was collecting fewer corporate taxes because oil was so low. a problem with alaska. o.k. sok our most improved state of all 50 states since 2000 and you can see that in this graph here, it's increased consistently over time across all three dimensions even in areas like criminal justice oklahoma has been a leader in starting to reform policies that previously were extremely punitive. here at the bottom you see new york, our number 50 state, there's a little hint of improvement since between in fiscal policy especially but
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overall it's stayed well behind even the number 49 state california. and you see here that there just hasn't been a tremendous amount of change over time. hawaii has had one of the biggest declines in the last four years. it's one of our worst states in terms of its change in the last four years. part of that is due to the fact that, believe it or not, in 2010 hawaii had the most free market health insurance regime in the country and so the ppaca took all of that away and that's forced iowa down but they've also had a series of tax increases under governor abercrombie. so we see here state average overall freedom has trended down since 2000. some of this is due to the effect of federal policies, in fact, if we remove the effect of the nationalization of health insurance regulation and the
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ppaca, state average overall freedom would look more like this. it's increased since 2006. especially on fiscal policy. states have cut spending, kept taxes fairly steady since the great recession. one of the new features of this edition is what we call a freedom from cronyism index. from this we looked at really restrictions on business entry, pricing and subsidies to business. those are the elements of our cronyism index. so it includes, for instance, our entire occupational licensing index, it includes restrictions on starting a new moving company, hospital certificate of need requirements for construction, price gouging laws, minimum markup laws. subsidies to business, those are the main elements of this index. and you'll see here that
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wisconsin, idaho, kansas, colorado and minnesota are the least croniest, new york, maryland, california, massachusetts and illinois are the most. you'll note that with a lot of these economic freedom indices it seems that the deep blue states tend toward the bottom and the ones at the top tend to be redder states but another thing we found with crone anyism specifically is that it relates to corruption and the number of lobbyists per legislator so here's a scatter plot showing the relationship between on the x axis the log lobbyist to legislator ratio for the state and on the y axis freedom from cronyism. it's a strong negative relationship. there are values about min minus .46. it's statistically significant. so states with more lobbyists per legislator tend to have more cronyist regulations. which way the causality goes is not clear. it could be more lobbyists cause
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legislators to enact policies that benefit these sheltered industries or it could just be that more cronyist policies i elicit more lobbyists. we've found a similar relationship between the index of cronyism and state corruption perceptions buts from a survey of statehouse journalists. again a correlation of about .5 showing that more crony states are more corrupt. if you look at public ideology and economic freedom, here i've got democratic and green lean in 1996, so sort of like the pvi of the state. in 1996 against economic freedom in 2000. we want the partisanship to be measured before the policy with the idea that maybe partisanship is feeding into policy causally and we see a negative relationship.
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although a curvolinear one. moderate states are no less economically free but the very democratic states tend to have lower economic freedom and we find a similar relationship when we look at economic freedom 14 years later, partisanship in 2012 seems they have to same relationship with economic freedom today. we look at how freedom affects certain outcomes so do america s s value freedom. one way to test if they vote with their feet. so statistically we regress, the net migration rate for each state in different period of times on the starting level of fiscal regulatory and personal freedom and we control for all sorts of things, climate, amenities, measured a number of
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different ways, cost of living, capital per worker, no matter how we try to control for other things that might attract people to a state we find freedom is statistically associated with net migration. people move from less free to freer states and that holds across these three dimensions although it's especially strong for fiscal policy and personal freedom. here's a -- here are a couple of scatter plots showing the relationship between overall freedom here on the left in 2000 and the net migration rate over the subsequent six years and what we find is that, again, freer states have more net domestic migration. people are moving to freer states. in new york the least free state as the worst out migration. it has 11.2% of the 2000 population of new york has on
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net moved to other states. and we find a similar relationship even stronger, actually, a little bit, after the great recession states that have more freedom, again, have had greater net domestic migration in the seven subsequent years to 2006. then we look at economic growth. do we find that fiscal and regulatory policy are associated with subsequent economic growth. a little adam smith quote here "little sells required to carry a state from the highest degree of opulence from the lower barberism but peace, easy taxes and a tolerable administration of justice, all the rest being brought about by the natural course of things." so does that actually hold true? easy taxes, peace and a tolerable administration of justice? well, we do find that economic freedom is positively associated with personal income growth and we adjust personal income growth
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for change in state cost of living so this is our real income growth which is important because some states that have the high per capita incomes are not as wealthy as you think because the cost of living is extremely high there. and we separate into post and p pre-great recession samples and we find there's a statistically positive relationship between economic freedom and economic growth over the next six or seven years. this result is particularly strong for regulatory policy. this sort of make sense, theoretically. you would expect that with my inauguration households might be attracted to low taxes and more personal freedoms. the evidence seems to be consistent with that. when it comes to businesses what they care about is probably labor law, the civil liability system, land use law. what we call regulatory policy. and that is what seems to affect
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the productivity of business, that seems to be what affects economic growth. we also do alternative indices and what's interesting is row robust a lot of the rankings are even if you add different abortion regimes in or take out right to work from our index so we include a no right to work index, right to work laws are a part of our main index but there are some people who would argue against them. then we have abortion laws, we have a pro-life index, a moderate pro-choice and a strong pro-choice index and all different possible combinations. if you exclude right to work, new hampshire's by far number one. if you have pro-life with right to work, oklahoma is number one. and all of these new york is number 50 no matter what we do. if you're moderate pro-choice or strong pro-choice depending on which of those you choose new
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hampshire and alaska might trade off number one and number two so again, yeah, you could quibble with some so our weights on the variables that, in fact, if you like you can download our spreadsheets and create your own personalized index. part of this is about generating a conversation about freedom but you'll probably find that while the states move around a little bit, it will be very, very difficult l to get new york to higher than number 25 or something like that or new hampshire lower than number 25. and so with that we'd like to offer a little bit of time for q q&a and i believe peter has some questions for us as well. thank you very much. [ applause ] >> thank you, gentlemen, excellent. we will have copies of this book available on your way out but it is a data lover's delight, it really. is it's full of charts and
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graphs and color and wonderful way to look at the material and another way to engage with the material is at the web site which if you are not aware is at so there's lots of way to customize it and play with the data. let's move to the questions. anyone have a question off the bat? and if you do not quite yet i have one. so other than voter itology, what might cause a state to be more free or less free? is there anything under what just the voters are saying? >> well, we do look at state political institutions to see if they can make a difference and they make a small difference, not as much as public ideology but we find -- we look at a number of different legal regimes and institutions to see what might influence freedom. we look at legislative professionalism, our legislators
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paid a lot. do they have big staffs. that's not related to freedom. we look at length of the constitution. some states have long ones, some have short ones. that's not related to freedom. but some of the things that do seem to be related to freedom we do find that the legislator-to-lobbyist ratio matters. you have less freedom when there are more lobbyists, again, which direction the causality runs is unclear. we also find that state age matters. so older states tend to have less freedom, particularly in the economic sphere. there is an economist named mansur olson who had a hypothesis about this, in "the rise and decline of nations" and he thought older states would have more interest groups and that's why they would be less free. we find that it just seems to be related to unionization. so older states, urbanized and industrialized earlier, had strong labor movements and even
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today have just higher unionization rates even adjusting for whether you have a right-to-work law or and more labor regulation and things like that. so there's not a tremendous amount that states can do to their institutions to ensure more freedom but possibly increasing the size of your legislature would reduce the size of that lobbyist-to-legislator ratio and maybe that would increase freed freedom. >> so i have a question about the state of new york. one of the theories about movement of people has to do with the difference between fixed and mobile capital so the idea is if you have a lot of fixed capital then you have problems because it ee's hard f people to leave. if you have mobile capital, zip, you go to switzerland and you've really got to be careful about
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that. what strikes me is that manhattan is filled with mobile capital and it's highly mobile, the most mobile capital in the world probably, right? so nonetheless we observe not only is new york the worst state but it's falling away from the rest of the country and that doesn't seem to fit with the idea that mobile capital -- do they make loopholes for mobile capital or does it not matter? am i wrong about my assumption? >> i would say manhattan has a tremendous amount of fixed capital. the mobile capital you're thinking of, finance, right? well, those shares are owned by people living elsewhere mostly and those companies operate elsewhere. they're just trading them in new york so wall street, though, i think is pretty fixed, it's going to be hard to move the stock exchanges outside new york city. and so there is this pool of wealth there that is going to stake around, i think california
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enjoys the same sort of situation where they have two-thirds of the pacific coast facing area, advantages for international trade, best climate on earth and yet people are still moving -- more people move away from california than to it. >> i think this gets at some of the different interesting regional comparisons that you can make. so for example you go to the heart of the midwest, right? so you go to places like illinois and indiana and you compare what's going on there in terms of out migration and in migration. and indiana's population since 2000 has on net basically stayed about the same, slightly negative. less than 1%. but illinois, despite having lots of advantages over indiana in terms of having a great city like chicago, some of the best universities, that has suffered quite greatly in terms of out migration compared to indiana. so almost 8% of illinois citizens in 2000 have fled the
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state compared to where indiana is with less advantages. you see the same thing between massachusetts and new hampshire. so massachusetts has lost about 5% of its 2000 population while new hampshire has gained 2.2%. now some of that is because you have tax refugees moving to a better tax climate, in other words from less freedom to more freedom from massachusetts to new hampshire but also other parts of the region. and then you also see this on the west coast so it's robust across different parts of the country so you see places like arizona and nevada, sure, those are places are lots of retirees are coming because of the better climate and so forth, cost of living. but we control for those things and we're still seeing the relationship between freedom and migration. but in terms of percentages, california has lost 4.9% of its 2000 population despite being basically paradise in terms of climate and amenities.
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it's hard to beat southern california. it's also hard to beat all the cool things happening in northern california yet people are having to leave that state whereas places like arizona, hot as heck, some people like it, i don't but you have basically 16% -- has increased by 16% in terms of its in migration. nevada almost 20%. so it's pretty amazing what's going on in terms of this migration that i talked about as being american as apple pie. people are leaving. we want to caveat this buy saying that of course most people are moving for other reasons but on the margins freedom matters in a statistically different fashion. >> [ inaudible question ] any significant differences from the top states and the bottom states? >> yeah, i think you might because there's a real movement at the state level, just like
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you've seen what here in a transpartisan sense on capitol hill for criminal justice reform and given that some of these criminal justice variables are so important in terms of their weighting and personal freedom then i think we could see changes because you will have a lot of variety in terms of state response. some states will jump on this criminal justice bandwagon and other states will not, they will try to state quote/unquote tough on crime. other states i think will adopt -- be smarter on crime. and i think that's particularly the case for some conservative states that are going to follow what's happening in oklahoma and even texas which even though it does quite poorly in terms of personal freedom has been a locus of reform, particularly as groups like right on crime have tried to promote this idea. so you're seeing some conservatives latch on while others are saying no, no, hold off. so you've seen an interesting intraconservative debate on criminal justice that will trickle down in terms of the
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freedom index. >> it's worth pointing out that those criminal justice reforms take a while to affect the variables we measure like incarceration rate. you can start incarcerating fewer people now but there's still many thousands still in those prisons so there will be a lag there. >> so the state that have done this in the past what we've seen -- because this isn't starting this year, this has been going on for some time. so texas should improve, for example, given it was at the forefront of some of these reforms. >> who have been since you started this project the biggest movers in terms of improvement? is there anyone who started out middle and -- who moved the highest and who moved the lowest? >> oklahoma by far was the best improve over this period. they were in the middle high in 2,000 and now among the top five. >> so i'll take the down side. >> how do you account for that? what went into that?
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"more freedom is better" or is it a competitive thing? >> i think often what you find is that states that move ideologically are sometimes out of equilibrium so to speak. so oklahoma was a state that had been full of new deal democrats, suffered through the great depression and had cultural afin tease with the segregation south then it became a much more free market state just in terms of public opinion and it took a while for policy to respond to that but politicians caught on and started implementing the kind of reforms voters wanted. you might see similar things happening with a state like west virginia which was strongly democratic until just a few years ago and is now strongly republican and all of a sudden it's passing worker's comp reform and right to work and all these things so maybe west virginia, which is one of our
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worst states is going to impr e improve. >> now for the dark side. so illinois is the state that has worsened the most, if you will, in terms of the rankings since 2000. not just in terms of the rankings, unfortunately, in terms of freedom. so illinois has suffered due to, as you might guess, it's pretty bad fiscal policy situation. it's a state that hasn't got a handle on spending or taxes also a highly regulated state compared to its neighbors so that's hurt -- has affect the fiscal side of the house. when you're having your tax base flee to neighboring states it makes problems like pension issues worse because off smaller base to start with. >> illinois used to be one of the worst states on personal freed
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freedom. it's increased on personal freedom but mostly because the federal courts have forced them to. they struck down gun laws. they were laggard on same-sex marriage. you would expect a state that far left would have moved on that rapidly but they didn't. so they've improved on personal freedom but maybe not through their own virtue, so to speak. >> thanks. since we're in washington, what factors do you see that the -- that washington can have the best positive effect and the worst negative effect, things they should try to avoid doing and one thing that congressmen should be trying to do to help at the state level or should they just stay out of the way. >> i think we should rely on the wisdom of the founders and maintain federalism. so if the federal government increasingly centralized policy responses to issues that are happening around the country that's going to be a bad thing i
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think for freedom in general. it doesn't allow for those laboratories of democracy to try out and innovate on policies in response to new challenges. especially because if we had a wonderful union, there's a lot of similarities across the different 50 states. there are important differences in terms of what's going on, especially economically, that we should allow for the states to i think experiment with at the local level. so it's mostly about staying out of the way but not in an irresponsible fashion. it's taking advantage of the wisdom of the founders. they understood that local and state responses are going to be often times better for the well-being of the citizens in these different places and having a regime of freedom, if you will, is the best way for these problems to be dealt with. >> you know, you look at how the u.s. has performed on the economic freedom of the world and the index of economic freedom and it's been falling quite a lot over the last 15
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years but that's happening at the federal level. at the state level if you exclude policies by the federal government, states have been getting better so part of this really just is congress stepping out of the way. i realize congress people have to look as if they're addressing important social problems and things like that but maybe they could insert easy opt outs for states. if you meet these very simple criteria you can have a waiver from this big bill that we're pushing through. >> i'd add one more thing that's important when anyone ever talks about relying on the wisdom of the founders here. that is the federal government does play a really important role and twlaun the federal government wasn't playing appropriately for many decades which is that the federal government, especially through the court system, should be a robust defender of individual rights when states and localities are violating rights. so this is not an open-ended states should do whatever they want. that is not what we are arguing and that would not be consistent with, i think, our liberal
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regime. >> >> have you looked at international comparisons between count these are more economically free and those that aren't? those with more economic freedom tend to have better social outcomes, whether it's life except tansy or educational attainment or a host of other things. what are the other outputs, i guess a your look at freedom in the 50 states that you could point to as showing that freedom does promote better social outcomes for people? >> that's a great question. we're largely leaving that up to other researchers. one of the reasons is that there is a big cautionary warning that we would issue to attempts to look at let's correlate freedom against life expectancy and things like that, college education or graduation rates.
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the problem is some of the least free states have because of their regulation made their cost of living very high. so their ear losing people but the people they're losing are disproportionately working class and low income households who have worse social outcomes so you look at a state like massachusetts. yeah it's got great social outcomes. most house holds in massachusetts do pretty well. does well on things like patents per capita and things like that. but why is that? it's because no one can afford to live in massachusetts except the college educated sort of professionals and they're going to have good social outcomes. so you have to find some way of adjusting for that and look at the causal impact of living under a state policy regime that will be much more difficult and tricky but i hope researchers look into it.
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>> and again it's back to why are so many people fleeing if things are so good. i just think that's an important reveal preference people have. places like maryland and washington, d.c. and new york and california, there's lots of different amenities so you would imagine these would be highly attractive yet you see people leaving. i think that's a real sign. >> your cronyism index, i think social justice crowd would probably agree totally with that index and so that brings up the question. the president famously said to small businessmen you didn't build that because he has sort of the social justice kind of perspective. have you looked at creating some kind of social justice index and maybe they're getting in the new
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york kind of states they're getting more free services and people are happier and in social justice lexicon they have greater yeah. one thing i would say is not to be too flip is that we think we're measuring justice here, right? we think it is very important. it is a component of justice to be free to choose the way you want to live your life as long as you're not harming others, right, violating their rights. but, again, we do capture some of the things a transpartisan audience would appreciate. that's why this isn't a conservative index, not a liberal index, in some i was wa a libertarian index in terms of what it means to live freely from different types of policy regimes. that encompasses things you see across the spectrum. so we care about the crime adjusted incarceration rate, that's an important variable here. we also care about a number of different personal freedoms that
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you wouldn't necessarily see in any type of conservative index, if you will, but on the other hand, we're also saying that we can't ignore the economic side, right? that's why, again, back to milton friedman, you know, mi milton friedman talked about it as a whole. to live free, you have to have the ability across different areas. if you don't have mick freconom freedom it hard to have freedom of the press. if you don't have personal freedoms, can you flourish as a human being the way we would all like to across the range of things that we care about as humans? to have the kind of well-being that we want. and we think freedom is the kind of necessary but insufficient cause of well-being, but if you don't have it, it is really hard to thrive. maybe at the top you can, which is why we want to look at cronyism, we don't want the creation of a two-tiered society, but the fact is even for those people can you really thrive in all the ways we want to without freedom? >> i think we have a lot of common ground with the
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egalitarians on issues like occupational licensing with the president's counsel of economic advisers issued a great paper a few months ago. and i more or less echo what will said. i think our index is not just for libertarians, you can take this index and say, well, this is how, you know, you could think about freedom, but some things might be more important than freedom. so maybe an egalitarian would say, agree with them on occupational licensing and incarceration rates but not on taxes. but even so, even if you say that, though, i don't think anyone would say taxes are a positive thing in and of themselves. if you took those taxes and dumped them into the sea, that would be good. no one says that, right? they would just think those taxes are worthwhile because there is compensating advantages. you could sort of add to our index, other things like index of how effective government is, the quality of public services, and then maybe have a fuller
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picture of how public policy affects well-being or utility or something like that or equality. but we do think that our index has to be a piece of the puzzle for just about anybody. >> i noticed in your overall freedom index, this is sort of true in your cronyism index i really noticed the top five states are all sparsely populated western states. the bottom five states are pretty much all densely populated populous states. is there something to the idea of wide open spaces allow for freedom and densely packed people don't want that much freedom? >> you know, we have looked at the relationship between the urbanization rate, the percentage of the state population that is urban, and
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different elements of freedom. it is more a personal freedom than anything else. so we find a small relationship that actually more left wing states have more personal freedom than more right wing states. very noisy relationship, we find that. we also find that more rural states have more personal freedom. for economic freedom, there is absolutely no relationship. and i think what is going on there is that, again, some of the older early industrializing states, you know, the late 1800s developed very powerful labor movements, concentrate ed proletariat if you will and those states have been definitely politically to the left and as a result of that, they had those sorts of policies, labor regulation, more of a government fiscal role, and that's the reason why they tend to have less freedom. it is not that the urbanization itself causes problems, it is if
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you industrialized during the era of mass production and, you know, labor radicalism, that's a problem. but if you're oklahoma city, if you're, you know, sioux falls, if you're, you know, if you're houston, or one of these cities that is recently grown, largely based on services, largely, you know, non-unionized, a lot of those cities are pretty free market and nothing inherent about population density that causes people to vote away freedom, except maybe on personal freedom, issues like guns, yeah. >> well, tell us about the origins. at the time of the first edition, what was it like out there for this kind of data? and what prompted this to get started out. seems like everybody's got one. >> unfortunately, we had to do so much with so little in terms
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of our time. if you're talking about over 200 variables that we had to code, some of it rely on ex-tant studies and other things you have to go to the statute. there hadn't been an index that looked at personal freedom side, which represents about a third of our index. that all was new terrain that we had to look into. and then even on the economic side, we measure things a little bit differently than others, we wait the policies differently. we also added this new weighting scheme we had in the third edition, that is much more objective. it required a big lift even given there were some economic indices in the past. >> yeah, there are a lot of indices out there. when we started this, there was economic freedom of north america. that was the big one. which has a small number of variables, but the advantage of their approach is they can get annual data back to 1980 or something. but most of the other indices
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that are out there, they mix together policy indicators with kind of economic competitiveness indicators. patents per capita and government consumption is a share of gdp and those sorts of things which we think need to be conceptually distinct. we want to measure state policies. state policies might affect economic competitiveness, but they're not an element of it. and so that is and remains a distinctive feature of this index. >> that being said, we're pretty happy to have lots of different discussions of freedom because if we do that, we're going to come to a more robust understanding. there is a republic of science of what it means to be free and how to test it or how to measure it. >> let's do one more and then i think we'll close it out. yes. >> do you have any kind of measure for how faith-based organizations affect --
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>> no. but we encourage other people to use the dwrat ata to explore ot issues because we can't answer every question. >> can they get the raw stuff or is it -- >> they can. it is at state policy >> that's the raw data. >> raw, raw data. for the rankings and so forth, at freedom in the 50 >> one thing i'll mention about faith-based organizations is that we do see a relationship, just kind of informally in the data between strength of christian organizations in a state and educational freedom. so i do find that states that have, for instance, a measure in the literature of christian right influence within the state republican party and the stronger that is, the more likely a state is to have school choice and the more liberal
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their home school laws and more relaxed their home school laws. that was an interesting finding there. and kind of makes sense. >> as i said, there are -- there should be copies of this on the table outside as you exit. again, you can play with the data at freedom in the and make your own charts. with that, let's thank our speakers. [ applause ] >> thank you. that was great. appreciate it. >> thank you.
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you can follow ah tv on twitter and follow our facebook page or website to find schedule information and learn more about our programs. coming up next, more on the supreme court with a look at the relationship between chief justices and the president. that's followed by a discussion on the 1905 supreme court case lochner versus new york, and its impact on state and federal labor regulations. next on american history tv, yale university professor akhil reed amar discusses the complex relationship between u.s. supreme court chief justices and american presidents. he looks back at the first appointed chief justice, john jay, he argues that historically the justices were geographically balanced, and that there has been a more recent shift in representation based on demographics and political affiliation.
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the new york historical society hosted this hour-long event. we are thrilled to welcome akhil reed amar, sterling professor of law and political science at yale university back to new york historical society. before joining yale law school professor amar clerked on the first circuit for judge steven -- then judge stephen breyer, he is also a recipient of the devane medal, yale's highest award for teaching excellence and is the author of several books including the law of the land, a grand tour of our constitutional republic. and i think akhil was voted the most popular professor at yale at least he is my most popular professor and you are all here, i think, if you all are here because you know him, he is your most popular professor. so before we begin and invite our popular professor up on the stage, please turn off any cell
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phones, electronic devices and join me in welcoming akhil reed amar. thank you. [ applause ] >> well, good evening. welcome. thank you so much for -- for coming. this is the new york historical society, we're going to be talking about the supreme court and we will be talking about the history of the supreme court because this is the new york historical society, but we're also going to be talking about the new york angle on all of this because this is the new york historical society. and, yes, why is this night different from all others? well, here is one thought, it's only really this week that has become, i think, pretty apparent that the upcoming presidential election will be a subway series
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between two -- not just two new yorkers, but basically two people headquartered in manhattan. shades of burr and hamilton. and -- and why am i mentioning a new -- a presidential election given professor that this is a conversation about the supreme court? well, therein lies my first of five points and it's going to be about the interesting relationship between presidents and justices. and not only -- and i will work my way up to the present moment, but not only is this going to be an election between two new yorkers for the presidency, but the supreme court really is the on the ballot and new york plays a big role in that because the
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person who is right now the nominee for the vacant spot is a man who learned his law, learned how to be a judge basically right here in new york city, he is a clerk of henry friendly, i'm going to say more about that, the chief justice because we are going to be talking about the roberts court that's going to be going in one direction if mr. trump wins and in a different direction if secretary clinton wins. the chief justice, john roberts, not only was born in new york, but he, too, learned how to be a judge in this city. he, too, was a clerk of the great henry friendly, chief judge of the second circuit here in this city. the person whose untimely demise created this vacancy is a new yorker, antonin scalia, as are several of the other justices. justice sotomayor, justice kagan, justice ginsberg, justice
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alito isn't from that far away, newark, i know it's on the other side of the bridge. so it's very much a new york story that we're going to be exploring together this evening, but i want to begin with the relationship between presidents and justices and offer you an account of the structure of that relationship and in particular here are two big points. that there's a tidal pattern to the american presidency, ebbing and flowing of a tide, and this tidal pattern creates certain very interesting and special face-offs at certain particular moments in american history between presidents and justices. so here is the structure of the situation of the constitution, our justices are chosen
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politically. justices don't pick their successors quite. it's not a self-perpetuating meritocracy the way the yale law school faculty picks its successors who pick its successors, the way the cardinals pick the pope and then the pope names cardinals and then the cardinals pick the pope and in this self-perpetuating way. no, our constitution provides for a political choice to be made whenever there is to be a replenishment of the judiciary, both the supreme court and the lower federal court. so the process of selection is by design political. the constitution is on the ballot this year, in effect,
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when you vote for the presidency and the senate, that is not a bug, that is a feature of our system. so it's political selection and then judicial independence kicks in and there's life tenure. tenure for good behavior. and that creates an interesting dynamic. the justices in the modern era stay on much longer than do presidents and indeed presidents now are term limited in a way that they weren't at the founding, actually some of the justices rotated off very quickly. i will tell you a little bit about john jay and how he couldn't wait to just get off the court, and the tenure of the justices early on was very short and you had presidents who in theory could have been perpetually reelected, as governors of new york, for example, who were allowed to be reelected and stayed on forever. george clinton, the governor of this state at the time the constitution was adopted i think it was a three-year term and he won seven of them and he left only to become vice president,
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which he thought was, quote, a respectable retirement, and he died in office. so the presidency could last for a long time and the judges rotated off in reasons -- for reasons that we will get into. but over the course of history chief justices have tended to stay a good long time, presidents have come and gone. we have basically 44 presidents in american history. you could say 43 because we're counting grover cleveland twice, but okay, and 17 chief justices. so way fewer chief justices than presidents. now, here is the tidal pattern and the face-off. the way america's presidency has tended to operate, if a coalition emerges that manages to capture the presidency once,
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very often it's come up with a formula that enables that party, that vision, to capture the presidency again and again and again until some almost exogenous shock, some big change occurs and the tide shifts. so there are only a few tide turning presidents in american history, and by tide turning here is what i mean, someone who when they are rising to power really the other -- a different point of view prevails, but they manage against the tide to win, to win again, win reelection, hand off the power to their hand-picked wing man, their apostolic successor and in the next period, even though when we were rising to power really it was the other faction, another vision of america that was ascendant for the next period
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it's really their vision that generally wins far more than it loses until something else happens and the tide turns again. now, if that's by definition of tide turning presidency, here they are, they are in effect what a political scientist would say are the rushmore presidents and this is -- i'm giving you -- i wish it were my own theory, it's not quite, migrate political colleague at yale this is his model. so there's george washington who of course when he is growing up a very different regime in place, george iii, but washington mansion obviously to prevail and wins reelection and hands off power in effect to his political ally, john adams. now, that dynasty, the washington federalist dynasty
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doesn't last very long because john adams signs his name to extremely repress sieve laws, the alien sedition acts that generate a massive backlash and thomas jefferson is now the next tide turning president. very early on he is running against the federalist regime, he has got a very different sort of platform and political formula for success. he's getting his votes from other folks and he manages to win against adams, win reelection and hand off power to his wing man, his secretary of state, secretary of states can be wing man or wing women, just remember that. and madison is going to win and win reelection and then his secretary of state monroe is going to win and win reelection and that party will become jefferson's party basically
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jacksonian party that is the dominant political party in america. they don't win every time, but they win way, way, way more than they lose because people remember that sedition act and the alien sedition act and you basically never hear from the federalists again at least on the presidential stage. so we have washington, now we have jefferson, and what happens to that party, they basically commit a kind of political suicide when the next president -- when this unknown fellow named abraham lincoln rises to power and manages to win. instead of says basically the political wind still at our backs, the tide still with us, we can outlast that guy, we are just going to wait him out, we're just going to say no to everything he proposes and he will be a failed, you know, reformist president, this tall skinny constitutional lawyer from illinois. this strategy of just say no, they are not smart enough to do that. they don't pull a mitch mcconnell, instead they walk
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away from a game that they're basically winning. this was not a smart strategy on their part and lincoln and this unilateral succession which is unconstitutional will mean that lincoln achieves a certain greatness in resisting this and he wins and he wins reelection and this was no -- you know, it was a very close thing. and in effect hands off power ultimately to his wing man who was ulysses s. grant, we kind of skip over andrew jackson. and that party is a dominant party because the democrats have committed suicide politically with slavery, succession, segregation and not really trying to basically accept the verdict of the civil war and its amendments. and they prevail all the way until another cataclysmic event, the great depression and their party gets the blame for it, herbert hoover, so the next tide turning president is franklin roosevelt. in this whole period no democrat
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wins a majority. woodrow wilson, grover cleveland they don't win a majority and republicans are winning landslides many of them in this era, but the great depression and now we have franklin roosevelt as the next tide turning president who wins and wins again and wins again and wins again, hands off power to his wing man, harry truman. and that's really the dominant coalition until vietnam and just the chaos of the 1960s, sort of tears apart that coalition, which has become the great society, in the late 1960s, and really ronald reagan eventually is the next really genuinely tide turning president who won, won reelection, won a third term called h.w., his handing off power because now he can't run for a third term. term limited and until now we have been living basical i


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