The Chinese tech giant Huawei has just filed a major lawsuit in a US federal court. The complaint asserts that portions of this year’s U.S. military appropriations act which specifically prohibit the American public sector and its subcontractors from using Huawei hardware, are unconstitutional. The lawsuit has already attracted international attention because for the first time, the US authorities will be forced to present hard evidence against Huawei that has hitherto not been produced by the White House, Congress or an increasingly Sinophobic mainstream US media.
Irrespective of how the court ultimately rules, Huawei will now get an opportunity to present its own evidence to back up its claims. Fist of all, Huawei is adamant that its equipment is high quality telecom technology rather than “intelligence gathering technology” and more importantly, Huawei’s lawyers will argue that the US government cannot unilaterally ban foreign technology from the American marketplace by fiat.
It is this last point which is the most interesting from a legal, policy making and philosophical point of view. The traditional economic libertarian argument, which incidentally is supported by the letter of the US Constitution, is that the US government cannot arbitrarily ban foreign or domestic products from being sold due to political reasons, personal grudges or other disingenuous attempts to manipulate the free market using the power of the state. Protections from such arbitrary regulation of commerce were originally designed to prevent a class of domestic oligarchs from monopolising the marketplace based on their friendship with or support of major politicians. In today’s globally connected commercial environment, the same legal protections apply to foreign companies wishing to freely and ethically compete in the American marketplace.
The legal concept at hand when it comes to singling out Huawei in order to ban its hardware from the United States, is known as a bill of attainder. The last time the concept of bill of attainder made front page headlines was in the 1974 US Supreme Court Case [former President Richard] Nixon v. General Services Administration. Now, Huawei may make similar legal history depending on how far the case travels through the US judicial system.
While it may be well over a year before the world is any closer to the penultimate verdict in the Huawei lawsuit, in terms of policy and political philosophy, Huawei has already won in the court of common sense. The US Constitution guarantees one’s basic freedom to engage in commerce without facing arbitrary governmental restrictions and burdensome regulations. These basic principles which are fundamental to the US Constitution, tend to be classed as economic libertarianism.
Libertarianism can be defined as a political philosophy that stresses the necessity of little to no governmental interference in the lives of individuals and the businesses they operate. As such, there is a particular emphasis on free markets, free trade and freedom of choice for entrepreneurs, business owners and consumers, within the libertarian political philosophy. Although the US Constitution specifically enshrines these values into law, the current class of American politicians in both major parties seems to have become so detached from theses values, that they often argue for less economic liberty, less freedom of choice and for more creativity stifling regulation.
In this sense, while former Congressman Dr Ron Paul and his son Senator Rand Paul continue to fly the flag of libertarian principles, for the rest of America’s political and media class, big government regulation is very much the rule rather than the exception. This is the case both in respect of Donald Trump’s opposition to free trade and it is likewise true of the anti-liberty policies of Democrats who argue for monstrously bloated (to the point of being ridiculous) initiatives such as the so-called “green new deal”.
As China continues to reform and open up, it is somewhat paradoxical that a country simplistically labelled as “un-free” by much of the US media, is actually helping to teach Americans about their own Constitution and the very free markets that many Americans now seem unwilling to defend. In this sense, whilst China is pursuing policies to make its own market ever more free from burdensome regulations, in the US – the opposite is happening – virtually on a daily basis.
In this sense, the Huawei lawsuit ought to open up the hearts and minds of average Americans who have allowed themselves to be bamboozled by fear. After all, fear is the crooked politician’s most readily available currency that is used to buy the loyalty of voters who have been tricked into making what Benjamin Franklin understood to be the false choice between liberty and security. The fact of the matter is that the US Constitution makes it so that Americans generally do not have to make a choice within the framework of the false dichotomy that Franklin eloquently exposed. As such, Huawei is defending the liberty of ordinary Americans, more so than most American politicians.
Finally, one might ask what Huawei’s motivation is for doing so? The motivation is simple. Like every other company in the world, Huawei wants to make money and to do so, customers need access to its products. It truly is the American way – a way that many in America have seemingly forgotten.