Month: May 2011

The Southern Secession Reconsidered

A post by The Vociferous Reader, “Lincoln’s War,” prompts me to revisit the issue of secession. The main obstacle to serious consideration of secession is its association with the secession of the Southern States, which was motivated by the issue of slavery. The resulting Civil War had three principle outcomes:

  • reunification of the United States by force (which did not determine the legality of secession)
  • the end of slavery in the reunified nation
  • the persistent myth of the South as especially bigoted and oppressive, despite the North’s undeniable record of racial tension, discrimination, and de facto segregation.

What tends to be forgotten is the South’s pre-Civil War stance with respect to the central government. Southern resistance to the centralization of political power, and to the central government’s unconstitutional exercises of power, long pre-dated the Southern secession and was founded on a valid interpretation of the Constitution.

The Civil War, as a forcible act of reunification, is defensible only insofar as a main result was the end of slavery in the United States. On constitutional grounds, however, the Southern secession was valid and should not have been contested.

I have elsewhere laid out a general case for secession. Here it is, in part:

[S]ome of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that no person or people is obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the States and the people thereof.

It was only by the grace of nine States that the Constitution took effect, thereby establishing the central government. Those nine States voluntarily created the central government and, at the same time, voluntarily granted certain, limited powers to it. The States understood that the central government would exercise its limited powers for the benefit of the States and their people. Every State subsequently admitted to the union has entered into the same contract with the central government.

But, as outlined above, the central government has breached its trust by exceeding the powers granted to it. In fact, the central government’s abuse of power has been so persistent and egregious that a reasonable remedy on the part of the States — individually or severally — is to declare the Constitution null and void. Each and every State, in other words, has the right to secede from the union and to withdraw from the central government its support and the support of the people.

My argument is buttressed by the pre-Civil War history of the United States, which includes the Whiskey Rebellion of the 1790s, the Kentucky and Virginia Resolutions of 1798 and 1799, the Nullification Crisis of 1828-33, and the Northern States’ Rights movement, which flourished before the Civil War and was sympathetic to the idea of Southern secession. Some of these events find their way into a review by David Gordon of Kevin R.C. Gutzman‘s The Politically Incorrect Guide to the Constitution.

Here are some relevant excerpts of Gordon’s review (page references omitted):

The principal thesis of the book is that the Jeffersonian, states’ rights understanding of America’s founding and the Constitution is correct. When the American colonies assembled in the Continental Congress and adopted the Declaration of Independence in 1776, they did not create a new nation, Abraham Lincoln to the contrary notwithstanding.

…The Declaration said that the colonies were now states, i.e., independent governments. “In the Declaration’s culminating fourth section, Congress declared the colonies to be ‘free and independent states’ and claimed for them the right to do everything that free countries could do.”

Nor did the Articles of Confederation change matters. Each state retained full sovereignty over all matters not “expressly delegated” to the United Sates….

As Gutzman makes clear, some delegates to the Philadelphia Convention certainly wished to change the nature of the American system. Instead of the usual split between nationalists and their opponents, however, Gutzman maintains that there were three parties in the convention: “The first was the monarchist party, the chief exemplar of which was New York’s Alexander Hamilton. The monarchists were intent on wiping the states from the map and substituting one unitary government for the entire continent … The second party consisted of nationalists, people who — without ever avowing admiration for the monarchical form — wanted to push centralization as far as could reasonably be hoped … Finally, there was a cohort in the Convention of members insistent on proposing a reinforcement of the central government while maintaining the primary place of the states in the American polity — a truly federal, rather than national government.”

Gutzman rightly points out that neither of the two nationalist parties got its way. Madison, the “Father of the Constitution”, wanted the federal Congress to have the power to veto state legislation, but this proposal was rejected. So far, our author has given a standard account, but now comes his key interpretive move.

He maintains that crucial to understanding the meaning of the Constitution were the intentions of the delegates to the ratifying conventions. These delegates, after all, were the people whose votes established the Constitution as legally binding. Gutzman concentrates on the Virginia convention, and he places great stress on one point.

The Virginia delegates looked on the new Constitution with great skepticism, fearing that it would become a tool for the federal government to crush the states. To placate opponents such as Patrick Henry, the leaders of the pro-ratification forces, who included Governor Edmund Randolph, the proposer of the nationalist Virginia Plan at Philadelphia, had to make a concession. They had to agree that the powers of the new Congress were limited to those “expressly delegated” in the Constitution. The delegates repudiated in advance any move by the new authorities to expand their powers beyond this. Further, they wrote into their ratification statement the right to withdraw from the new government, if it exceeded its proper powers.

Gutzman contends that because this understanding was part of Virginia’s instrument of ratification, no stronger central government can claim Virginia’s authorization. And since it would be senseless to think that the Constitution gives the federal government more power over some states than others, the Virginia restrictions apply to all the states.

This is the Jeffersonian view of the Constitution. Gutzman’s great contribution is to show that the Virginia and Kentucky Resolutions of 1798 and 1799, the key statements of the Jeffersonian position, restated the understanding of the Virginia ratifying convention. Contrary to the Federalist opponents of the Resolutions, Jefferson and Madison did not act as innovators in 1798; and their position cannot be dismissed as merely one of several competing interpretations. It was firmly based on the legally valid Virginia ratification instrument.

Gutzman summarizes his main contention in this way:

“Most history and legal textbooks say that Jefferson and Madison invented the idea of state sovereignty. But … they only argued for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders(the nationalist and monarchist wings) wanted to change that understanding.”

However sound the Jeffersonian understanding of the Constitution, it of course has not prevailed in subsequent American history. Gutzman assigns federal judges a large share of the responsibility for the transformation of the original understanding; and one judge in particular arouses his critical scorn. The judge in question is the foremost of all federalist judges, Chief Justice John Marshall….

For Gutzman, Marshall’s chief sin is … his repudiation of the Jeffersonian understanding of the limits of federal power. In McCulloch v Maryland, Marshall “wrote that while the Articles of Confederation had specified that Congress had only the powers it was ‘expressly delegated,’ the Constitution included no such language, so no such principle applied to it. This was an extraordinary argument, given that Marshall himself and other Federalists … had assured their ratification colleagues that this very principle of limited federal power … was implicit in the unamended Constitution even before the Tenth Amendment was adopted.” [It was, moreover, clear from the construction of Article I, Section 8, and the discussion of that portion of the Constitution in the The Federalist Papers (e.g., No. 45): ED.]

Given his Jeffersonian views, it comes as no surprise that Gutzman thinks the Southern states acted fully within their rights when they seceded from the Union in 1861. “The Federalists always insisted during the ratification debates — knowing that they had to win support for the Constitution — that the states were individual parties to a federal compact. Spelling out the logic of the compact, three states — Virginia, Maryland, and Rhode Island — explicitly reserved (in the act of ratifying the Constitution) their right to secede from the Union.”

Gutzman has made a very strong case for his Jeffersonian understanding of the Constitution. A critic might challenge him on the grounds that we need not today care about how the Constitution was understood by its eighteenth century ratifiers. But Gutzman could in response say that this is what was legally enacted; those who favor other views of government should not attempt to attain their goals through misreadings and distortion of the constitutional text.

Just so. There is no point in memorializing an agreement unless that agreement is meant to stand for all time, or until the parties to it agree to revise or revoke it. Legislators, executives, and judges are not parties to the Constitution; they are its sworn caretakers. And they have long failed in their duty.

As for Lincoln, he did his duty as he saw it — which was to preserve the Union. It is hard (for me) to fault the man who ended his first inaugural address with this:

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union when again touched, as surely they will be, by the better angels of our nature.

P.S. The foregoing makes a legal case for secession. A different case, which I make here, is that secession is valid because the Constitution did not bind the whole of “the people” when it was ratified, and could not have bound future generations.

*   *   *

Related posts:
The State of the Union: 2010
The Shape of Things to Come
I Want My Country Back
Secession
A New, New Constitution
Secession Redux
A New Cold War or Secession?
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Conversation with Uncle Sam
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Is the Constitution True?
Is the Constitution True? An Addendum
Re-Forming the United States

Luck-Egalitarianism and Moral Luck

Luck-egalitarianism and moral luck are egregious, moral-philosophical concepts. The purposes of this post are (a) to explain their relatedness and egregiousness and (b) to offer a valid moral precept in their stead.

LUCK EGALITARIANISM

This, according to the current entry in Wikipedia,

is a view about distributive justice espoused by a variety of egalitarian and other political philosophers. According to this view, justice demands that variations in how well off people are should be wholly attributable to the responsible choices people make and not to differences in their unchosen circumstances. This expresses the intuition that it is a bad thing for some people to be worse off than others through no fault of their own.

Luck egalitarians therefore distinguish between outcomes that are the result of brute luck (e.g. misfortunes in genetic makeup, or being struck by a bolt of lightning) and those that are the consequence of conscious options (such as career choice or fair gambles). Luck egalitarianism is intended as a fundamental normative idea that might guide our thinking about justice rather than as an immediate policy prescription. The idea has its origin in John Rawls‘s thought that distributive shares should not be influenced by arbitrary factors. Luck egalitarians disagree among themselves about the proper way to measure how well off people are (for instance, whether we should measure material wealth, psychological happiness or some other factor) and the related issue of how to assess the value of their resources.

Luck-egalitarians evidently hold a skewed view of luck. For if it is a bad thing for some persons to be worse off than others through no fault of their own, it should be good thing for some persons to be better off than others through no action of their own. In other words, if “bad luck” is bad, “good luck” should be good.

But that is not how a luck-egalitarian sees things. A luck-egalitarianian deplores all “luck” because he seeks to compensate those who have had “bad luck” by extracting “undeserved” gains from those who have had “good luck.” In practice, luck-egalitarians do not bother to investigate the degree to which “luck” leads to variations in life outcome. It is enough for them to note that some persons are well off relative to others (usually in health, wealth, and income), and that disparity — to a luck-egalitarian — is “bad” per se. In the vernacular: “It just shouldn’t be that way.”

Luck-egalitarianism is therefore of a piece with the moral accountancy that is practiced by “liberals” and “progressives.” As I say here, moral accountancy is

the three-fold habit of setting oneself up as an omniscient arbiter of economic and social outcomes, then castigating the motives and accomplishments of the financially successful and socially “well placed,” and finally penalizing financial and social success through taxation and other regulatory mechanisms (e.g., affirmative action, admission quotas, speech codes, “hate crime” legislation”).

The key to luck-egalitarianism is the idea “that it is a bad thing for some people to be worse off than others through no fault of their own,” which leads to the following (usually implicit and subconscious) set of specious assumptions and conclusions:

  • There is a “right” set of life outcomes (e.g., a certain standard of living, a certain degree of health), which luck-egalitarians are qualified to choose and evaluate because of their superior moral character.
  • Therefore, it is wrong if some persons are worse off than others in terms of the “right” set of outcomes. (Here, the luck-egalitarian usually abandons the qualification of faultlessness, for — in the luck-egalitarian’s view — a person who descends into, say, poverty has no one to blame but the “system” that allows him to do so.)
  • Those who are better off (by the selective standards of the luck-egalitarian) owe aid to those who are worse off, even if those who are better off did nothing that made others worse off. The better-off simply do not deserve all that they have because, surely, they must owe much of it to luck.
  • Taking from the better-off to help the worse-off is further justified (in the luck-egalitarian view) by (a mistaken reliance on) the theory of diminishing marginal utility. The implication of that theory (as applied by luck-egalitarians) is that there is a universal welfare function, and that making a worse-off person happier somehow cancels or justifies the disutility of the better-off person who is forced to part with something for the benefit of the worse-off.

Strong luck-egalitarianism would strive for equal happiness for everyone, for all time. The weaker — and more usual — luck-egalitarianism strives only to rectify the most glaring instances in which persons are worse off through no fault of their own. Of course, it is the prerogative of allied bands of luck-egalitarians (e.g., Democrats in Congress) to determine who is worse off, by what criteria they are worse off, who is undeservedly better off, and how much the better-off should be taxed (or otherwise burdened) to compensate the worse-off. The usual — and accurate — term for such doings is “cheap compassion”; “cheap” because it is “compassion” bought with other people’s money.

The  presumptuousness of the luck-egalitarian position can be appreciated by taking it to its logical extreme, which is that there is no such thing as an interpersonal difference based on choice because the ability to choose is ultimately based on luck, in the dominant secular view of existence. A high-IQ person, for example, is able to choose among ways of making a living that will yield more income and wealth than a low-IQ person can garner from the options that are realistically his. Isn’t IQ a matter of luck? Similarly, a person born to wealthy parents has a much higher chance of becoming wealthy, by some standard, than does the person born to poor parents, by the same standard. Isn’t being born to a certain set of parents a matter of luck? There are many other luck-dependent differences that strongly influence a person’s income and wealth: country and region of one’s birth, one’s congenital makeup (other than intelligence), and so on, almost endlessly. It follows that luck-egalitarianism, properly applied, would hold that no one deserves to have more than anyone else, and that everyone should therefore have the same things.

And yet, most of the luck-egalitarians whom I know personally, or by following politics, will not insist on trying to make every person in the world identical with respect to life outcomes. To put it baldly, the prevalence of weak luck-egalitarianism reflects a limit on how much a luck-egalitarian is prepared to sacrifice of his own health and wealth for the sake of improving the lot of others less fortunate than he. I have not noticed, for example, that affluent luck-egalitarians share their homes with the homeless, but they would do that (and more) if they really thought about the true extent of luck in shaping life outcomes — and acted according to their purported principles. Why do they not? Because luck-egalitarianism — at bottom — is usually a prettied-up way of assuaging one’s guilt about having more wealth and health than most other persons. Affluent luck-egalitarians are willing to pay a price for assuaging that guilt, but not too high a price. Thus they usually call on “the rich” (i.e., those richer than they) to bear most of the burden. There are, of course, some among the super-rich who do the same thing, but having become super-rich, they can afford to make such gestures and they do not care about and/or fail to understand the disincentivizing effects of their spurious generosity. (Luck-egalitarianism on the part of the diseased and impoverished and among “idealistic” youth  is a kind of special pleading that should be disregarded.)

At this point, I should offer an alternative way of viewing differences in life outcomes. But first, I want to drive home the point that luck-egalitarianism is nothing but an arrogant pretension to omniscience, usually disguised as compassion.

I begin with this (not far-fetched) hypothetical:

A tornado rips through a trailer park in a particular region of a particular State. At the time, 100 persons were in the trailer park. Every trailer is either demolished or damaged beyond repair. One result of the destruction and damage is that 10 persons are killed and 40 persons are seriously injured.

The following questions and observations are in order:

1. Do the uninjured denizens of the trailer park, who (in one respect, at least) had better luck than the injured and dead, owe something to the injured and the estates of the dead? Why should any of the uninjured owe anything to anyone; the uninjured also suffered losses that cannot be fully compensated by insurance (if they were insured)? I doubt that a luck-egalitarian would insist on taking from the uninjured to give to the injured and the survivors of the dead; the uninjured also suffered bad luck, just not as bad as it might have been. This suggests that someone’s (relative) good luck does not automatically oblige him to compensate someone else’s (relative) bad luck.

2. If the uninjured denizens owe nothing, perhaps others owe something to the injured and estates of the dead. But why? Persons not living in the trailer park had no more to do with the tornado than the lucky, uninjured residents of the trailer park. The lucky ones — both inside and outside the trailer park — had nothing to do with the injuries and deaths suffered by some residents of the trailer park. In other words, to repeat myself, someone’s (relative) good luck does not automatically oblige him to compensate someone else’s relative bad luck.

3. Further, persons living outside the trailer park — in the same region or State, elsewhere in the United States, or elsewhere in the world — have their own kinds of bad luck to contend with. It just happens to be bad luck that is not well known, if at all, to others. We know about the bad luck that befell the denizens of the trailer park, but the notoriety of their bad luck does not mean that they are the only persons in the world who have suffered or will suffer bad luck. By what calculus, then, is one supposed to weigh all the bad luck and good luck enjoyed by everyone in the world, through the eons, and arrive at a “just” and workable scheme of balancing things so that everyone is (in some immeasurable way) made equally happy?

4. Persons uninjured by the tornado — wherever they reside — did not cause the tornado and, therefore, did not cause the deaths and injuries in the trailer park. Deaths and injuries, though not the fault of the dead and injured, were not the fault of anyone else, either. But luck-egalitarians who wield power (e.g., members of Congress) insist on burdening the blameless for the bad luck (and bad choices) of others. That these burdens are imposed on the excuse that the city, State, or nation must “pull together” as a “family” to help those in need does not lessen them. “Pulling together” and “family” betoken voluntarism, not compulsion by the state; such words and phrases are entirely inapposite when they are used in an effort to justify compulsion.

5. It is not the business of politicians to assign blame where there is no blame to be assigned. Yet that is what politicians do, in effect, when they penalize certain classes of persons (e.g., “the rich”) for being blameless. Where there is blame to be assigned — when a person’s is deprived of health, income, or wealth by actions of another person or persons — remedies are available in civil and criminal law. Fault-finding should be left to the courts of the land, and if the courts do not do justice, they should be reformed by open political processes.

On the last point, I must note that failures of justice are not one-sided affairs in which “the rich and famous” invariably get away with things, while persons who are poor, ill-educated, or members of minority groups bear an undue burden of punishment. Decades of blaming “society” for the willing acts of criminals have made justice something less than the swift and certain process that it should be if harm is to be rectified and deterred. It is no coincidence that the usual suspects — “liberals” and “progressives” who are quick to penalize blameless persons for the bad luck of others are also loathe to punish the blameworthy if they are perceived as having suffered the bad luck of being poor or of the “wrong color.” That their victims had bad luck — the bad luck of being victims — is of no account to luck-egalitarians, who possess the uncanny ability to measure and calibrate the universal social-welfare function.

In sum, luck-egalitarianism is arrogant presumptuousness harnessed to a perverse social agenda.

MORAL LUCK

Moral luck is another empty philosophical contrivance for placing blame on the blameless. In this case, the blameless are persons whose actions might have caused harm to others but did not. Thus their moral luck.

Moral luck is illustrated by this example:

Suppose there are two truck drivers, Driver A, and Driver B. They are exactly alike in every single way, drive the same exact car, have the same driving schedule, have the same exact reaction time, and so forth. Let’s say that Driver A is driving down a road, following all legal driving requirements, when suddenly, a child runs out in the middle of the road to retrieve a lost ball. Driver A slams the brakes, swerves, in short, does everything to try to avoid hitting the child — alas, the inertia of the truck is too great, and the distance between the truck and the child is too short. Unfortunately, the child is killed as the result of the collision. Driver B, in the meantime, is following the exact same route, doing all the exact same things, and everything is quite exactly the same –– except for one important distinction. In his scenario, there is no child that appears on the road as if out of nowhere. He gets to his destination safely, and there no accident occurs.

If a bystander were asked to morally evaluate Drivers A and B, there is very good reason to expect him to say that Driver A is due more moral blame than Driver B. After all, his course of action resulted in the death of a child, whereas the course of action taken by Driver B was quite uneventful. However, there are absolutely no differences in the controllable actions performed by Drivers A and B. The only disparity is that in the case of Driver A, an external uncontrollable event occurred, whereas it did not in the case of Driver B. The external uncontrollable event, of course, is the child appearing on the road. In other words, there is no difference at all in what the two of them could have done –– however, one seems clearly more to blame than the other. How does this occur?

This is the problem of moral luck. If we agree that moral responsibility should only be relevant when the agent voluntarily performed or failed to perform some action, we should blame Drivers A and B equally, or praise them equally, as may be the case. At the same time, this seems to be at least intuitively problematic, as — whatever the external circumstances are –– one situation resulted in an unfortunate death, and the other did not. (From an article formerly at Wikipedia, now available here.)

My reaction: The example only shows that moral luck is an empty construct. Putting aside the fact that Driver A was blameless (given the “facts” of the example), Driver B’s experience is irrelevant. First, no two drivers and driving situations are identical. Second, even granting, for the sake of argument, that Drivers A and B are identical, Driver B does not face the same circumstances as Driver A. The example avoids the true moral issues, which are these:

  • Did Driver A in fact drive prudently? That is not the same thing as “following all legal driving requirements.” Driver A might have passed a breathalyzer test, but perhaps just barely. Or Driver A might have been talking on his cell phone in a jurisdiction that does not forbid doing so while driving. Or Driver A might not have been paying full attention to his surroundings (an undetectable lapse) because he was thinking about where to make his next turn.
  • More fundamentally, the example fails to mention the actions of the child and the child’s parents. Was the child of an age to have known better than to dart into the street without looking? Why was the child allowed to play with a ball near the street? Why did a parent (or someone) failed to watch the child closely enough to prevent it from darting into the street? Why had the child’s parents not fenced the front yard and seen to it that the child could not unlatch the gate?

If Driver A drove prudently — above and beyond “legal requirements” — no blame can attach to Driver A. The blame, if any, must attach to the child or the child’s parents, an option that the example omits.

The article continues:

Moral luck entails two extreme outcomes, both of which seem intuitively unacceptable.

If, [on the] one hand, we accept moral luck as a real phenomenon and accept it as a valid restriction on personal responsibility (and, consequently, the assign[ment] of moral blame or praise), it is difficult to identify a situation where moral luck does not affect an event or an individual. Many, if not all, of the moral judgments that we engage in daily seem to become problematic, since any single action can be defended as having been affected by moral luck. Constitutive moral luck [pertaining to the personal character of the moral agent] especially highlights this problem –– after all, it is perfectly valid to argue that every single thing that we do relates in some way to our personal character disposition, and is not one hundred percent voluntary. Thus, if we do stick by our requirement of moral responsibility as needing complete volition, we cannot validly morally assess any action performed by an individual. As Nagel himself points out, if moral luck is accepted as a valid premise, the area of individual moral responsibility seems to ““shrink . . . to an extensionless point.”

On the other hand, if we deny the influence of moral luck and refuse to accept that it has anything to do with moral evaluation (as Kant most certainly would, for example), we are left with a single unappealing option: we are responsible for everything that we do, whether voluntarily or not, and for all the consequences, no matter how unforeseen or unlikely, that our actions entail. By this logic, the unlucky Driver A from our earlier example can take no solace in the fact that there was nothing he could have done to prevent the death of the child as the result of the accident –– he deserves the full amount of moral blame that can be assigned for such an outcome.

That is, moral luck either (1) negates personal responsibility or (2) places all responsibility on the individual actor to whom things happen. I reject the first premise because we have free will or must act as if we have it. (See this post.) I reject the second premise because, as I argue above, it fails to account for the freely chosen actions of others.

The concept of moral luck strikes me as baseless philosophical casuistry — an occupation for misused minds. Like luck-egalitarianism, the concept of moral luck attempts to place blame where there is no need to place blame.

THE REASONABLE ALTERNATIVE TO LUCK-EGALITARIANISM AND MORAL LUCK

In the words of an unknown wise man: Stuff happens; get over it.

*   *   *

Related posts:
Religion and Personal Responsibility
Free Will: A Proof by Example?
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
The Interest-Group Paradox
Parsing Political Philosophy
Is Statism Inevitable?
Inventing “Liberalism”
Freedom of Will and Political Action
Fooled by Non-Randomness
Law and Liberty
Rights, Liberty, the Golden Rule, and the Legitimate State
Randomness is Over-Rated
Beware the Rare Event
Line-Drawing and Liberty
What Is Truth?
The Divine Right of the Majority
Our Enemy, the State
The Golden Rule and the State
A Not-So-Fine Whine
Social Justice
The Meaning of Liberty
Taxing the Rich
More about Taxing the Rich
Peter Presumes to Preach
More Social Justice
Positive Liberty vs. Liberty
On Self-Ownership and Desert

In Defense of Marriage

This post joins some old and new observations about same-sex “marriage.” I not only repudiate the travesty of homosexual “marriage” but also those so-called libertarians who would (unwittingly) harm the cause of liberty by their insistence on a “right” to same-sex “marriage.” In the end, I remind the reader that there is more to liberty than the mindless parroting of phrases like “fairness,” “justice,” and “equal protection of the laws.”

SAME-SEX “MARRIAGE” AS A LITMUS TEST

It is my firm impression that most self-described libertarians — and “liberals,” it should go without saying — view same-sex “marriage” as a right. “Libertarian” bloggers X and Y are typical of the breed.[1]

Blogger X, a professed homosexual, states flatly that “I’m being discriminated against, and I want it to stop.”

Blogger Y, a known heterosexual, takes a complementary tack. For example, he calls Ron Paul’s support of the Defense of Marriage Act[2] (DOMA) “state-sponsored bigotry.” Actually, Paul was criticizing the Obama administration for failing to support DOMA because the act

used Congress’ constitutional authority to define what other states have to recognize under the Full Faith and Credit Clause, to ensure that no state would be forced to recognize a same sex marriage license issued in another state.

Paul adds:

I will stand … against Unconstitutional federal power grabs, and will fight to protect each state’s right not to be forced to recognize a same sex marriage against the will of its people.

Y seems to view Paul’s defense of States’ rights as wrong — in this instance, at least — because the definition of marriage as the union of one man and one woman denies marriage to homosexual couples. Further, that denial seems — in Y‘s view — to arise from bigotry. Perhaps it does, in Paul’s case, but I am here to defend marriage, not a crotchety Texan (see this, this, and this, for example).

SAME-SEX “MARRIAGE” IS A PSEUDO-LIBERTARIAN CAUSE

Blogger Y‘s position is a manifestation of the kind of rationalistic, political correctness that is common among left (psuedo)-libertarians. Will Wilkinson, for example, suggests that

most PC episodes mocked and derided by the right are not state impositions. They are generally episodes of the voluntary social enforcement of relatively newly established moral/cultural norms.

Wilkinson grossly simplifies the complex dynamics of PCness. His so-called “newly established … norms” are, in fact, norms that have been embraced by insular élites (e.g., academics and think-tank denizens like Wilksinson) and then foisted upon “the masses” by the élites in charge of government and government-controlled institutions (e.g., tax-funded universities). Thus it is no surprise that proposals to allow same-sex “marriage” fare poorly when they are submitted to voters.

Pseudo-libertarianism of the kind evidenced by Wilkinson is no better than any other kind of rationalism. It simply posits a sterile, abstract standard of conduct — one that has nothing to do with the workaday world of humanity — and finds wanting everyone but those who pay lip-service to that standard of conduct.

That is not libertarianism. It is sophomoric dream-spinning.

Where is libertarianism to be found? In conservatism, of all places, because it is a reality-based political philosophy.

But what does conservatism have to do with libertarianism? I have in various posts essayed an answer to that question (here, here, here, and here, for example), but now I turn the floor over to John Kekes, who toward the end of “What Is Conservatism?” says this:

The traditionalism of conservatives excludes both the view that political arrangements that foster individual autonomy should take precedence over those that foster social authority and the reverse view that favours arrangements that promote social authority at the expense of individual autonomy. Traditionalists acknowledge the importance of both autonomy and authority, but they regard them as inseparable, interdependent, and equally necessary. The legitimate claims of both may be satisfied by the participation of individuals in the various traditions of their society. Good political arrangements protect these traditions and the freedom to participate in them by limiting the government’s authority to interfere with either.

Therein lies true libertarianism — true because it is attainable. Left-libertarians believe, foolishly, that liberty is to be found in the rejection of social norms. Liberty would be the first victim of the brave new disorder that they wish for.

If there is a truly libertarian case for same-sex “marriage,” it can be made only by invoking the possibility of voluntary social acceptance of same-sex couples who bond in a manner analogous to the bonding of heterosexual couples. But analogy is not identity, just as reliance on the edicts of the state is not a proper libertarian approach to social change.

OPPOSITION TO SAME-SEX MARRIAGE IS NOT INHERENTLY BIGOTED

Many (if not most) persons who oppose same-sex “marriage” are animated not by an animus toward homosexuals but by respect for the time-honored status of marriage — in the Western tradition — as a monogamous, heterosexual union. Is it bigotry to defend a traditional institution from redefinition at the hands of the state? I think not. The state’s proper role is to protect citizens and their voluntary institutions, not to undermine or usurp those institutions. Therefore, if the state is going to involve itself in voluntary institutions, it ought to do so only for the purpose of ensuring that those institutions are not reshaped involuntarily.

The only bigotry that I see is the bigotry of individuals like X and Y, who denigrate those who would preserve the traditional character of marriage. I remind X, Y, and others who cry “discrimination” and “bigotry” that marriage — in its Judeo-Christian roots — is a social institution that was established for the purpose of solemnizing and legitimating the union of man and woman — not for the purpose of causing harm to anyone.

As for the opponents of same-sex “marriage,” I do not believe that a general charge of bigotry on their part can stand scrutiny. I have no doubt that some defenders of traditional marriage defend it solely or mainly because they despise homosexuals, their “differentness,” and their sexual practices. But such exceptions do not change the fact that marriage is not an institution founded on bigotry.

TRADITIONAL MARRIAGE IS A LIBERTARIAN INSTITUTION

Moreover, there is a compelling, libertarian reason to preserve the time-honored status of marriage as the union of man and woman. It is an institution whose preservation is vital to civil society, upon which liberty depends:

[I]t is impossible and — more importantly — undesirable for government to police everyone’s behavior. Liberty depends, therefore, on the institutions of society — family, church, club, and the like — through which individuals learn to treat one another with respect, through which individuals often come to the aid of one another, and through which instances of disrespect can be noted, publicized, and even punished (e.g., by criticism and ostracism).

That is civil society. And it is civil society which — in the minarchistic view — government ought to protect instead of usurping and destroying as it establishes its own agencies (e.g., public schools, welfare), gives them primary and even sole jurisdiction in many matters, and funds them with tax money that could have gone to private institutions. Moreover, some minarchists aver that government ought to tolerate a broad range of accepted behaviors across the various institutions of civil society, as long as government also protects the negative rights of association and exit: the right to associate with persons of one’s choosing, and the right to live and work where one prefers.

Marriage — despite its imperfections and the state’s involvement (e.g., licensing, separation proceedings, divorce decrees) — remains a bulwark of civil society, or of the remnants of civil society that have survived usurpation and negation by the state. Therefore, the proponents of state-imposed same-sex “marriage” bear the burden of proving that the expansion of marriage to include homosexual partnerships will redound to the benefit of civil society. Saying that opposition to same-sex marriage amounts to bigotry is no kind of proof.

This leads me to ask  whether (1) state-imposed homosexual “marriage” would be deleterious to civil society in the long run, and (2) if marriage loses its traditional definition, any institution of civil society is immune from the depradations of the state.

On the question of the long-run effects of state-imposed homosexual “marriage,” I turn to Jennifer Roback Morse:

Marriage is a naturally occurring, pre-political institution that emerges spontaneously from society. Western society is drifting toward a redefinition of marriage as a bundle of legally defined benefits bestowed by the state. As a libertarian, I find this trend regrettable. The organic view of marriage is more consistent with the libertarian vision of a society of free and responsible individuals, governed by a constitutionally limited state…..

My central argument is that a society will be able to govern itself with a smaller, less intrusive government if that society supports organic marriage rather than the legalistic understanding of marriage….

The new idea about marriage claims that no structure should be privileged over any other. The supposedly libertarian subtext of this idea is that people should be as free as possible to make their personal choices. But the very nonlibertarian consequence of this new idea is that it creates a culture that obliterates the informal methods of enforcement. Parents can’’t raise their eyebrows and expect children to conform to the socially accepted norms of behavior, because there are no socially accepted norms of behavior. Raised eyebrows and dirty looks no longer operate as sanctions on behavior slightly or even grossly outside the norm. The modern culture of sexual and parental tolerance ruthlessly enforces a code of silence, banishing anything remotely critical of personal choice. A parent, or even a peer, who tries to tell a young person that he or she is about to do something incredibly stupid runs into the brick wall of the non-judgmental social norm….

No libertarian would claim that the presumption of economic laissez-faire means that the government can ignore people who violate the norms of property rights, contracts, and fair exchange. Apart from the occasional anarcho-capitalist, all libertarians agree that enforcing these rules is one of the most basic functions of government. With these standards for economic behavior in place, individuals can create wealth and pursue their own interests with little or no additional assistance from the state. Likewise, formal and informal standards and sanctions create the context in which couples can create marriage with minimal assistance from the state….

Some libertarians seem to believe that marriage is a special case of free association of individuals. I say the details of this particular form of free association are so distinctive as to make marriage a unique social institution that deserves to be defended on its own terms and not as a special case of something else.

One side in this dispute is mistaken. There is enormous room for debate, but there ultimately is no room for compromise…. We will be happier if we try to discover the truth and accommodate ourselves to it, rather than try to recreate the world according to our wishes….

Being free does not demand that everyone act impulsively rather than deliberately. Libertarian freedom is the modest demand to be left alone by the coercive apparatus of the government. Economic liberty, and libertarian freedom more broadly, is certainly consistent with living with a great many informal social and cultural constraints….

We now live in an intellectual, social, and legal environment in which the laissez-faire idea has been mechanically applied to sexual conduct and married life. But Rousseau-style state-of-nature couplings are inconsistent with a libertarian society of minimal government. In real, actually occurring societies, noncommittal sexual activity results in mothers and children who require massive expenditures and interventions by a powerful government….

When … Friedrich Hayek championed the concept of spontaneous order, he helped people see that explicitly planned orders do not exhaust the types of social orders that emerge from purposeful human behavior. The opposite of a centrally planned economy is not completely unplanned chaos, but rather a spontaneous order that emerges from thousands of private plans interacting with each according to a set of reasonably transparent legal rules and social norms.

Likewise, the opposite of government controlling every detail of every single family’’s life is not a world in which everyone acts according to emotional impulses. The opposite is an order made up of thousands of people controlling themselves for the greater good of the little society of their family and the wider society at large….

Libertarians recognize that a free market needs a culture of law-abidingness, promise-keeping, and respect for contracts. Similarly, a free society needs a culture that supports and sustains marriage as the normative institution for the begetting, bearing, and rearing of children. A culture full of people who violate their contracts at every possible opportunity cannot be held together by legal institutions, as the experience of post-communist Russia plainly shows. Likewise, a society full of people who treat sex as a purely recreational activity, a child as a consumer good and marriage as a glorified roommate relationship will not be able to resist the pressures for a vast social assistance state. The state will irresistibly be drawn into parental quarrels and into providing a variety of services for the well-being of the children….

The libertarian preference for nongovernmental provision of care for dependents is based upon the realization that people take better care of those they know and love than of complete strangers. It is no secret that people take better care of their own stuff than of other people’s. Economists conclude that private property will produce better results than collectivization schemes. But a libertarian preference for stable married-couple families is built upon more than a simple analogy with private property. The ordinary rhythm of the family creates a cycle of dependence and independence that any sensible social order ought to harness rather than resist.

We are all born as helpless infants, in need of constant care. But we are not born alone. If we are lucky enough to be born into a family that includes an adult married couple, they sustain us through our years of dependence. They do not get paid for the work they do: They do it because they love us. Their love for us keeps them motivated to carry on even when we are undeserving, ungrateful, snot-nosed brats. Their love for each other keeps them working together as a team with whatever division of labor works for them.

As we become old enough to be independent, we become attracted to other people. Our bodies practically scream at us to reproduce and do for our children what our parents did for us. In the meantime, our parents are growing older. When we are at the peak of our strength, stamina, and earning power, we make provision to help those who helped us in our youth.

But for this minimal government approach to work, there has to be a family in the first place. The family must sustain itself over the course of the life cycle of its members. If too many members spin off into complete isolation, if too many members are unwilling to cooperate with others, the family will not be able to support itself. A woman trying to raise children without their father is unlikely to contribute much to the care of her parents. In fact, unmarried parents are more likely to need help from their parents than to provide it….

Marriage is the socially preferred institution for sexual activity and childrearing in every known human society. The modern claim that there need not be and should not be any social or legal preference among sexual or childrearing contexts is, by definition, the abolition of marriage as an institution. This will be a disaster for the cause of limited government. Disputes that could be settled by custom will have to be settled in court. Support that could be provided by a stable family must be provided by taxpayers. Standards of good conduct that could be enforced informally must be enforced by law….

The advocates of the deconstruction of marriage into a series of temporary couplings with unspecified numbers and genders of people have used the language of choice and individual rights to advance their cause. This rhetoric has a powerful hold over the American mind. It is doubtful that the deconstruction of the family could have proceeded as far as it has without the use of this language of personal freedom.

But this rhetoric is deceptive. It is simply not possible to have a minimum government in a society with no social or legal norms about family structure, sexual behavior, and childrearing. The state will have to provide support for people with loose or nonexistent ties to their families. The state will have to sanction truly destructive behavior, as always. But destructive behavior will be more common because the culture of impartiality destroys the informal system of enforcing social norms.

It is high time libertarians object when their rhetoric is hijacked by the advocates of big government. Fairness and freedom do not demand sexual and parental license. Minimum-government libertarianism needs a robust set of social institutions. If marriage isn’t a necessary social institution, then nothing is. And if there are no necessary social institutions, then the individual truly will be left to face the state alone. A free society needs marriage. (“Marriage and the limits of contract: A libertarian case,” Policy Review, No. 130)

It is clear that a free society needs traditional, heterosexual marriage, which — as Morse explains — is a primary civilizing force. As if in answer to that truth, the proponents of same-sex “marriage” aver that its recognition by the state will not undermine the societal benefits of traditional marriage. They aver, rather, that it will extend those benefits to encompass those homosexuals who choose “marriage,” and their biological or adopted children.

SAME-SEX “MARRIAGE” IS A BLOW TO LIBERTY

Is there really a “win-win” argument for same-sex “marriage”? The answer, in a word,  is “no.”  The recognition of homosexual “marriage” by the state — though innocuous to many, and an article of faith among most libertarians and liberals — is another step down the slippery slope of societal disintegration. The disintegration began in earnest in the 1930s, when Americans began to place their trust in chimerical, one-size-fits-all “solutions” offered by power-hungry, economically illiterate politicians and their “intellectual” enablers and apologists. In this instance, the state will recognize homosexual “marriage,” then bestow equal  benefits on homosexual “partners,”  and then require private entities (businesses, churches, etc.) to grant equal benefits to homosexual “partnerships.” Individuals and businesses who demur will be brought to heel through the use of affirmative action and hate-crime legislation to penalize those who dare to speak against homosexual “marriage,” the privileges that flow from it, and the economic damage wrought by those privileges.

It should be evident to anyone who has watched American politics that even-handedness is not a matter of observing constitutional limits on government’s reach, regardless of who asks for an exception; it is, rather, a matter of expanding the privileges bestowed by government so that no one is excluded. It follows that the recognition and punitive enforcement of same-sex “marriage” would be followed by the recognition and bestowal of benefits on other arrangements, including transient “partnerships” of convenience. And that surely will weaken heterosexual marriage, which is the axis around which the family revolves. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will pick up the pieces.” And so it will go.

Almost six years ago, I constructed following parable (here), which builds on a post by Maggie Gallagher (part of a series at The Volokh Conspiracy on the subject of same-sex marriage):

Imagine a society that depends on the camel (the family, in this analogy) for transportation across a dangerous desert and into an oasis of civility. A camel that is operated by a man and a woman — joined contractually to do their best to steer the camel from danger — is most likely to arrive at its destination safely because the man and woman have complementary skills, and because they (and their offspring, to break the analogy for a moment) are bonded in an irreplicable biological symbiosis. A camel that is operated by either a man or a woman alone is next most likely to arrive at its destination safely because a sole operator, knowing that he or she lacks certain skills, is at least likely to try to compensate for that lack. A camel that is operated by two persons of the same sex is least likely to arrive at its destination safely because: (1) the operators’ bonding can never be as complete as that of a man-woman team and (2) the operators deliberately choose to omit half the skills required for the job.

Those differences might have only a marginal effect on the overall success of camel-driving operations if the state were not involved in licensing and supporting camel drivers. But the state is involved in licensing and supporting camel drivers, and it has done poorly by the camel in the process. The state began many years ago to encourage solo camel driving by enabling man-woman teams to break their contracts at will instead of trying to work out their differences. (The lesson: When the state sends signals about private arrangements, private arrangements tend to align themselves with the signals being sent by the state.) The state later began to encourage yet more solo camel driving by subsidizing women for driving solo (for raising children out of wedlock, that is) and fostering the dereliction of camel-driving duty in the name of “equality” (as if camel driving were a lesser occupation than, say, camel trading). Now the state is beginning to encourage the formation of man-man and woman-woman camel-driving teams. Given the state’s record in such matters, the predictable outcomes of that development are these:

  • An increasing proportion of camels will be driven by same-sex teams, thus decreasing the likelihood that camels will arrive safely at the oasis of civility.
  • A decreasing proportion of men and women will feel the need to form opposite-sex camel-driving teams, as they see that the state (having usurped society’s role in legitimating and supporting camel driving teams) values such teams less and less, thus even further decreasing the likelihood that camels will arrive safely at the oasis of civility.

Given the signals being sent by the state, the rate of formation of traditional, heterosexual marriages will continue to decline. (According to the Census Bureau, the percentage of adult males who are married dropped steadily from 71.1 percent in the 1960 census to 58.6 percent in the 2000 census; for females, the percentage dropped from 67.4 to 54.6. (The latest available figures, for 2009, show no significant change since 2000.) About half of each drop is explained by a rise in the percentage of adults who never marry, the other half by a rise in the percentage of divorced adults. Those statistics are what one should expect when the state signals — as it began to do increasingly after 1960 — that traditional marriage is no special thing by making it easier for couples to divorce, by subsidizing single mothers, and by encouraging women to work outside the home.

The well-known effects of such policies include higher rates of crime and lower levels of educational and economic achievement. (See this and this, for example.) Same-sex marriage would multiply these effects for the sake of mollifying a small minority of the populace.

“EQUAL PROTECTION OF THE LAWS” DOES NOT DICTATE SAME-SEX “MARRIAGE”

When all else fails, special-pleaders claim that to deprive a particular class of persons of a particular right is to deprive them of the “equal protection of the laws,” as guaranteed by the Fourteenth Amendment. The current, perverted interpretation of Equal Protection — as applied by the proponents of same-sex “marriage” — leads to this:  Despite the fact that marriage is good for society and should not be undermined, Equal Protection (in the perverse view) requires that marriage be undermined by redefining it. The law, in other words, cannot discriminate among individuals if there are objections by (or on the part of) those who are discriminated against. The reasonableness of the discrimination is of no account. Thus, in the not-so-far-fetched-extreme, criminals may not be discriminated against by putting them into prisons, but must enjoy the same amenities as law-abiding citizens.

Consider the infamous Proposition 8 case, Perry v. Schwarzenegger, which was decided last year by U.S. District Judge Vaughn Walker (who has since retired and admitted his special interest in the case, as a homosexual in a “committed” relationship). Judge Walker addresses equal protection thusly:

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”…

Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

The circularity of Judge Walker’s reasoning with respect to equal protection begins much earlier in his decision, where he writes that

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

But the right to marry, historically, has been the right to choose a spouse of the opposite sex, not merely to choose a spouse. Judge Walker even acknowledges that fact, inadvertently, when he puts aside “relative gender composition,” as if it were a mere trifle and not central to a social tradition that dates back millennia and should not be swept aside casually by a judge because he finds it “irrational,” on the basis of spurious social science. Walker then says that “gender is not relevant,” thus circularly assuming that which is to be proved. As if in support of that assertion he asserts, laughably, that “gender restrictions … were never part of the historical core of the institution of marriage.”

In sum, Judge Walker approaches the constitutional matter of equal protection by assuming that gays have the right to marry. Given that assumption, it is easy to assert that Proposition 8 amounts to a denial of equal protection for gays who seek to marry.

THE STATE SHOULD PROTECT MARRIAGE, NOT DESTROY IT

Although it is true that heterosexual unions have their problems, those problems have been made worse by the intercession of the state. And if the state legitimates same-sex “marriage” civil society will suffer a devastating injury.

Near-sighted, special-pleading proponents of same-sex “marriage,” even if faced with its anti-libertarian ramifications, will say that it is only “fair” to legalize it, and discriminatory or bigoted to deny it. These are the proper response to such playground taunts:

  • Marriage was neither created nor sustained for negative reasons. The preservation of a time-honored, beneficial, voluntary, social institution is no more discriminatory or bigoted than the preservation of, say, an honorary society that is open only to persons who excel in particular ways.
  • The legalization of homosexual “marriage” is unfair to the vast majority of Americans whose well-being depends on the proper functioning of traditional marriage, which is a bulwark of civil society.

Therefore, given that the state is deeply and irretrievably involved in marriage, I reject the unrealistic libertarian nostrum that the state ought not to have anything to do with marriage. The reality of the state’s continuing involvement with marriage leads me to embrace the consequentialist position that the state ought to preserve it by refusing to change its time-honored character as the union of one man and one woman.

The alternative is to advance further down the slippery slope toward societal disintegration and into the morass of ills which accompany that disintegration. (We have seen enough societal disintegration and costly consequences since the advent of the welfare state to know that the two go hand in hand.)

Faced with a choice between libertarian shibboleth and libertarian substance, I have chosen substance. I now say: Ban homosexual marriage and avoid another step down the slippery slope toward incivility and bigger government.

Related posts:
I Missed This One
A Century of Progress?
The Marriage Contract
Feminist Balderdash
Libertarianism, Marriage, and the True Meaning of Family Values
Consider the Children
Marriage and Children
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
Parenting, Religion, Culture, and Liberty
“Family Values,” Liberty, and the State
On Liberty
Civil Society and Homosexual “Marriage”
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
Pseudo-Libertarian Sophistry vs. True Libertarianism
Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Bounded Liberty: A Thought Experiment
More Pseudo-Libertarianism
The Meaning of Liberty
Positive Liberty vs. Liberty

__________
1. I enclose “libertarians” in quotation marks because many (most?) self-described libertarians espouse policies that are, in fact, anti-libertarian. The legalization of same-sex “marriage” is one such policy, as I explain in this post; abortion is another salient one; others include a weak national defense, borders that are open to prospective supporters and beneficiaries of the welfare state, reflexive softness toward criminals, and a willingness to sacrifice the property rights of others to prove their own bona fides in matters of race. For more, see these posts:
On Liberty
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism

Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Bounded Liberty: A Thought Experiment
More Pseudo-Libertarianism
More about Conservative Governance
The Meaning of Liberty
Positive Liberty vs. Liberty
On Self-Ownership and Desert

2. DOMA, as explained here, seems to have two legal effects:

DOMA Section 2 … relieves states of a constitutional obligation to enforce judicial custody, alimony or other orders made in other states that involve recognition of same-sex marriages…. It is unclear … whether states already had the power to refuse recognition in these cases before the enactment of DOMA, and whether the U.S. Constitution allows Congress to modify such state authority.

DOMA’s Section 3 prevents the federal government from recognizing the validity of same-sex marriages….

Later:

Section 2 of DOMA explicitly addresses the constitutional requirement expressed in the Full Faith and Credit Clause in Article IV Section 1 of the United States Constitution, quoting its language directly. That clause establishes that the states have certain reciprocal obligations to one another, specifically to recognize each other’s “public Acts, Records, and judicial Proceedings.” That same section of the Constitution gives Congress the authority to legislate on the question of those obligations. Section 2 of DOMA excludes same-sex marriages from the state “acts” that any other state needs to recognize.

[Regarding] Section 3 of DOMA…. On February 23, 2011, Attorney General Eric Holder and President Obama announced their conclusion that “a more heightened standard of scrutiny” is necessary for sexuality-based classifications and consequently… DOMA Section 3 is unconstitutional.

In other words, a constitutional act — which legitimately allows the citizens of the various States to define marriage for themselves — is cast aside precisely because the citizens of some States might reject same-sex “marriage.” Obama and Holder, in other words, have taken it upon themselves to grant same-sex “marriage” the same status as traditional marriage. Their “reasoning,” I suspect, flows from the circular application of the “equal protection” clause of the Fourteenth Amendment that I discuss here.

Existence and Creation

Logic and facts are puny things when it comes to the question of existence. Human beings do not (and probably cannot) comprehend the essence of matter-energy — the stuff of which the universe and everything in it is made. The following observations are therefore on a conjectural plane with all such musings.

TERMS

Universe = everything that exists anywhere, including other realms (multiverses), unconnected with “our” universe; parallel realities (many worlds); and other discrete assemblages of matter-energy in space-time.

God = hypothetical uncaused cause of the universe — a being or force whose power, knowledge, and degree of involvement in the shape of the universe and its events are matters of faith.

FIVE POSSIBILITIES

1. The universe simply exists without cause, has always existed, and will always exist unless it contains the seeds of its own destruction.

2. The universe simply exists without cause, but came into existence at a specific (if indeterminate) time, and may persist or not (see 1).

3. The universe is coterminous with God (a kind of monism), has always existed, and will always exist, though its essence and form may change.

4. God and the universe are eternal, but God exists apart from the universe and may change the essence and form of the universe.

5. God is eternal and exists apart from the universe; He brought the universe into existence at a finite time, and — in addition to changing its essence and form — may extinguish it at any time.

DISCUSSION OF THE POSSIBILITIES

The idea of an uncaused universe runs counter to human experience, which finds a cause for everything. This is true even for quantum fluctuations, which involve the movement of energy from state to state but do not change the total amount of energy in the universe. Possibilities 1 and 2 are therefore counterintuitive.

Possibility 3 is consistent with some strains of theism and animism, and it is hard to separate from possibility 4. If the universe is coterminous with God, then (presumably) God shapes His own essence and form, but that leaves open the related possibility of a God who can diminish Himself and eliminate His ability to further manipulate the universe. This seems unlikely.

Possibility 4 posits an eternal force or being which stands outside matter-energy-space-time and shapes it (initially and/or continuously, to some degree). The unappealing aspect of possibility 4 is the eternal coexistence of God and universe, which allows the universe to arise without cause.

This leads to possibility 5, which is the most appealing one. It enables causal relationships in the fabric of matter-energy-space-time, while explaining the creation of those things, in the first place, by an uncaused cause. That uncaused cause precedes the universe, which is the proper relationship if God is not “just” the universe or coexistent with it (possibilities 3 and 4). And if God stands apart as Creator, then God (almost certainly) possesses the power to extinguish His creation. Possibility 5, of course, is consistent with the Big Bang, though there may be more than one of them in the past and future of the universe.

For the while, I leave (as an exercise for myself and the reader) the question of God’s role in the initiation and evolution of the universe and its contents.

Related reading:
Existence of God (Wikipedia article, with links to external sources)
Universes, by John Leslie
The Bible (Douay-Rheims):

Book of Genesis
[1] In the beginning God created heaven, and earth. [2] And the earth was void and empty, and darkness was upon the face of the deep; and the spirit of God moved over the waters. [3] And God said: Be light made. And light was made. [4] And God saw the light that it was good; and he divided the light from the darkness. [5] And he called the light Day, and the darkness Night; and there was evening and morning one day.

[6] And God said: Let there be a firmament made amidst the waters: and let it divide the waters from the waters. [7] And God made a firmament, and divided the waters that were under the firmament, from those that were above the firmament, and it was so. [8] And God called the firmament, Heaven; and the evening and morning were the second day. [9] God also said: Let the waters that are under the heaven, be gathered together into one place: and let the dry land appear. And it was so done. [10] And God called the dry land, Earth; and the gathering together of the waters, he called Seas. And God saw that it was good….

Gospel According to Saint John
[1] In the beginning was the Word, and the Word was with God, and the Word was God. [2] The same was in the beginning with God. [3] All things were made by him: and without him was made nothing that was made. [4] In him was life, and the life was the light of men. [5] And the light shineth in darkness, and the darkness did not comprehend it….

Related posts:
Atheism, Religion, and Science
The Limits of Science
Three Perspectives on Life: A Parable
Beware of Irrational Atheism
The Creation Model
The Thing about Science
Evolution and Religion
Words of Caution for Scientific Dogmatists
Science, Evolution, Religion, and Liberty
The Legality of Teaching Intelligent Design
Science, Logic, and God
Capitalism, Liberty, and Christianity
Is “Nothing” Possible?
Debunking “Scientific Objectivity”
Science’s Anti-Scientific Bent
Science, Axioms, and Economics
The Big Bang and Atheism
The Universe . . . Four Possibilities
Einstein, Science, and God
Atheism, Religion, and Science Redux
Pascal’s Wager, Morality, and the State
Evolution as God?
The Greatest Mystery
What Is Truth?
The Improbability of Us
A Digression about Probability and Existence
More about Probability and Existence

Lawyerly Obtuseness

In the matter of Obamacare’s “individual mandate,” Orin Kerr and a three-judge panel of the Fourth Circuit cannot grasp the activity/inactivity distinction. There should be no mystery about it:

The Constitution’s Commerce Clause gives Congress the power to regulate interstate commerce — activities that actually involve the transmission of products and services across State lines. The Commerce Clause does not give Congress the power to force participation in interstate commerce.

Congress therefore lacks the power to regulate the absence of interstate commerce, including decisions by individuals and businesses not to involve themselves in certain aspects of interstate commmerce.

The Necessary and Proper Clause merely allows Congress to make laws that enable it to execute its enumerated powers. The clause is not a mandate for Congress to go beyond those powers. Therefore, the clause cannot properly be invoked as an authority for the individual mandate.

End of discussion. Next case.

P.S. Randy Barnett offers a different view of the proceedings, while David Kopel corroborates my view of the Necessary and Proper Clause.

Related posts:
Rationing and Health Care
The Perils of Nannyism: The Case of Obamacare
More about the Perils of Obamacare
Health-Care Reform: The Short of It
Toward a Risk-Free Economy
Undermining the Free Society
The Constitution: Original Meaning, Corruption, and Restoration
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?

The Killing of bin Laden and His Ilk

The following is from a post by Fernando Teson, a philosopher-lawyer:

[T]he extrajudicial killing of a named person by a government for a public purpose, can be morally justified outside the battlefield onlyif the following four conditions are met:

1) it is necessary to avert deaths of innocents;

2) the government has a just cause (this condition is different from the first one);

3) the target is culpable, a true villain; and

4) capturing the villain is not possible.

I think that the three first conditions were met in the case of bin Laden, but I’m unsure about the fourth. We don’t know what happened here but even someone as wretched as bin Laden has to be given the chance to surrender. I’m inclined to think that this last requirement does not stem from any fundamental right that bin Laden has, but rather from what our democracy should be.

Why is killing permissible only if capture is not possible? Bin Laden and others of his ilk were and are villains, beyond doubt. They should be captured instead of being killed outright only if these conditions are met:

  • Capture does not lead to a trial in a civilian court, with its opportunities for grandstanding and a betrayal of justice — acquittal or a sentence less than death because a terrorist is treated as if he were owed the rights of an American, whose rights he would strip if he could.
  • Capture is for the sole purpose of attempting to extract information that might be useful in tracking down other terrorists and/or thwarting terror plots.

What “our democracy should be” is ruthless in the pursuit of its enemies. They will never respect us, but they should fear us.

What about U.S. citizens who have joined forces with foreign terrorists? Teson objects to “the declared intention of the Obama administration to kill U.S. citizen Anwar al-Awlaki.” The link in the preceding quotation leads to a post by Glenn Greewald, who cannot be said to sympathetic to the defense of Americans from their enemies (see this and this). Greenwald does make a good point:

[T]he reality is that the [Obama] administration has retained and, in some cases, built upon the core Bush/Cheney approach to civil liberties and Terrorism.  As Al Gore asked in his superb 2006 speech protesting Bush’s “War on the Constitution”:

Can it be true that any president really has such powers under our Constitution?

If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?

If the president has the inherent authority to eavesdrop on American citizens without a warrant, imprison American citizens on his own declaration, kidnap and torture, then what can’t he do?

There are good reasons to curb governmental acts that are not authorized by or contemplated in the Constitution. Slippery slopes do exist, as is all too evident in the state of the union. But where were Greenwald, Gore, and all other Constitution-invoking “liberals” — past and present — when it came to such blatantly unconstitutional acts as the passage of Social Security, Obamacare, and the multitude of other extra-constitutional homages to tyranny? Their hypocrisy precedes them.

Having said that, it seems to me that the constitutional niceties could be observed as follows: Try al-Awlaki (and others like him) for treason; secure a death sentence; and enforce the sentence with a “hit.”

Transnationalism and National Defense

Ed Whelan of Bench Memos explains:

“Transnationalism” challenges the traditional American understanding that … “international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.” Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government.

Transnationalism is a manifestation of an attitude that seems to prevail among leftists and extreme libertarians. Such types advocate a kind of international legal order in which acts of aggression against Americans cannot be answered or avenged except through the observance of legal niceties. As if there are international tribunals that would dispense even-handed judgments where the U.S. is concerned. As if our enemies could be counted on to observe international laws against aggression.

This benighted attitude is found in this post by Don Boudreaux, an otherwise sensible libertarian:

One of the great tenets of liberalism — the true sort of liberalism, not the dirigiste ignorance that today, in English-speaking countries, flatters itself unjustifiably with that term — is that no human being is less worthy just because he or she is outside of a particular group.  Any randomly chosen stranger from Cairo or Cancun has as much claim on my sympathies and my respect and my regard as does any randomly chosen person from Charlottesville or Chicago.

The problem with such sentiments — correct as they may be — is the implication that we have nothing more to fear from people of foreign lands than we have to fear from our own friends and neighbors. Yet, as Boudreaux himself acknowledges,

[t]he liberal is fully aware that such sentiments [about "us" being different from "them"] are rooted in humans’ evolved psychology, and so are not easily cast off.  But the liberal does his or her best to rise above those atavistic sentiments,

Yes, the liberal does strive to rise above such sentiments, but not everyone else makes the same effort, as Boudreaux admits. Therein lies the problem.

Transnationalists equate sovereignty with  jingoism, protectionism, militarism, and other deplorable “isms.” Transnationalists ignore or deny the hard reality that Americans and their legitimate overseas interests are threatened by nationalistic rivals and anti-Western fanatics.

In the real world of powerful rivals and determined, resourceful fanatics, the benefits afforded Americans by our (somewhat eroded) constitutional contract — most notably the enjoyment of civil liberties, the blessings of  free markets and free trade, and the protections of a common defense — are inseparable from and dependent upon the sovereign power of the United States.  To cede that sovereignty for the sake of transnationalism is to risk the complete loss of the benefits promised by the Constitution.

It is for those reasons that I reject and despise leftists and extreme libertarians who have used the recent, justified, and laudable execution of Osama bin Laden as an occasion for spewing their venom. Noam Chomsky exemplifies the left’s moral relativism:

We might ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic.

Jeffrey Tucker exemplifies loony anarcho-capitalism:

I have some vague sense that many people are opposed to capital punishment, and for good reason, and especially when there is no trial and conviction, and yet we are expected uncritically to celebrate the death of Bin Laden at the hands of the U.S. state.

What Chomsky, Tucker, and their ilk have in common is their status as cosseted intellectuals who benefit from the existence of the very state that they profess to abhor. I have little doubt of the fate that would befall them should they venture into the wrong part of the world without a retinue of SEALs to protect them from what passes for “justice” among the savages.

Related posts:
Libertarians and the Common Defense
Libertarianism and Pre-emptive War: Part I
An Aside about Libertarianism and the War
Right On! For Libertarian Hawks Only
Conservative Criticism of the War on Terror
Why Sovereignty?
Understanding Libertarian Hawks
More about Libertarian Hawks and Doves
Defense, Anarcho-Capitalist Style
The Illogic of Knee-Jerk Civil Liberties Advocates
War Can Be the Answer
Getting It All Wrong about the Risk of Terrorism
Conservative Revisionism, Conservative Backlash, or Conservative Righteousness?
Why We Fight
Getting It Almost Right about Iraq
Philosophical Obtuseness
But Wouldn’t Warlords Take Over?
Sorting Out the Libertarian Hawks and Doves
Now, Let’s Talk About Something Else
Shall We All Hang Separately?
Foxhole Rats
Foxhole Rats, Redux
Know Thine Enemy
September 11: A Remembrance
September 11: A Postscript for “Peace Lovers”
The Faces of Appeasement
Libertarianism and Preemptive War: Part II
Torture and Morality
Give Me Liberty or Give Me Non-Aggression?
We Have Met the Enemy . . .
My View of Warlordism, Seconded
Whose Liberties Are We Fighting For?
The Constitution and Warrantless “Eavesdropping”
NSA “Eavesdropping”: The Last Word (from Me)
Privacy, Security, and Electronic Surveillance
Privacy: Variations on the Theme of Liberty
Words for the Unwise
More Foxhole Rats
The Fatal Naïveté of Anarcho-Libertarianism
Final (?) Words about Preemption and the Constitution
Anarcho-Libertarian “Stretching”
Recommended Reading about NSA’s Surveillance Program
Riots, Culture, and the Final Showdown
A Rant about Torture
More Final (?) Words about Preemption and the Constitution
QandO Saved Me the Trouble
What If We Lose?
A Footnote about “Eavesdropping”
Thomas Woods and War
More than Enough Amateur Critics
Moussaoui and “White Guilt”
Jihad in Canada
In Defense of Ann Coulter
In Which I Reply to the Executive Editor of The New York Times
Post-Americans and Their Progeny
“Peace for Our Time”
Anti-Bush or Pro-Treason?
“Proportionate Response” in Perspective
Parsing Peace
Taking on Torture
Conspiracy Theorists’ Cousins
Not Enough Boots
Defense as the Ultimate Social Service
I Have an Idea
September 11: Five Years On
How to View Defense Spending
Reaching the Limit?
The Best Defense . . .
A Skewed Perspective on Terrorism
Terrorists’ “Rights” and the Military Commissions Act of 2006
More Stupidity from Cato
The Military Commissions Act of 2006
A Critique of Extreme Libertarianism
And Your Point Is?
Anarchistic Balderdash
Not Enough Boots: The Why of It
Blood for Oil

Katie Couric: Post-American
It *Is* the Oil
Here We Go Again
Christmas in Iran: Foreign Affairs According to Planet Rockwell
Torture, Revisited
Waterboarding, Torture, and Defense
9/11 Plotters and the Death Penalty
Cato’s Usual Casuistry on Matters of War and Peace
The Media, the Left, and War
Torture
September 11: A Remembrance
The “Predator War” and Self-Defense
The National Psyche and Foreign Wars
Inside-Outside
A Moralist’s Moral Blindness
The Folly of Pacifism
Why We Should (and Should Not) Fight

More about Probability and Existence

In “A Digression about Probability and Existence” I address

the view that there is life as we know it — an outcome with a low, prior probability given the (theoretical) multitude of possible configurations of the universe — only because there are vastly many actual or possible universes with vastly many configurations.

I observe that

[i]n this view, life as we know it is an improbable phenomenon that we are able to witness only because we happen to exist in one of the multitude of possible or actual universes.

I should have pointed out that it is impossible to know whether life as we know it is a low-probability event. Such a conclusion rests on an unsupportable assumption: the existence of a universe which is “fine tuned” to enable life is a low-probability event. And yet, that assumption is the basis for assertions that the existence of our universe — with its life-supporting combination of matter, energy, and physical laws — “proves” that there must be other universes because ours is so unlikely. Such “logic” is an edifice of rank circularity constructed on a foundation of pure supposition.

Such “logic,” moreover, misapplies the concept “probability.” No object or event has a probability (knowable chance of happening) unless it meets the following conditions:

1. The object or event is a member of a collective of observable phenomena, where every member of the collective has common features.

2. The collective is a mass phenomenon or an unlimited sequence of observations, where (a) the relative frequencies of particular attributes withing the collective tend to fixed limits and (b) these fixed limits remain the same for reasonably large subsets of the collective. (Adapted from “Summary of the Definition,” on pp. 28-9 in Chapter 1, “The Definition of Probability,” of Richard von Mises’s Probability, Statistics and Truth, 1957 Dover edition.)

Mises, obviously, was a  “frequentist,” and his view of probability is known as “frequentism.” Despite the criticisms of frequentism (follow the preceding link), it offers the only rigorous view of probability. Nor does it insist (as suggested at the link) that a probability is a precisely knowable or fixed value. But it is a quantifiable value, based on observations of actual objects or events.

Other approaches to probability are vague and subjective. There are, for example, degrees of belief (probabilistic logic), statements of propensity (probabilistic propensity), and “priors” (Bayesian probability). Unlike frequentism, these appeal to speculation, impressions, and preconceptions. Reliance on such notions of probability as evidence of the actual likelihood of an event is the quintessence of circularity.

In summary, there is no sound basis in logic or empirical science for the assertion that the universe we know is a highly improbable one and, therefore must be one of vastly many universes — if it was not the conscious creation of an exogenous force or being (i.e., God). The universe we know simply “is” — and that is all we know or probably can know, as a matter of science.

Related posts:
Atheism, Religion, and Science
The Limits of Science
Three Perspectives on Life: A Parable
Beware of Irrational Atheism
The Creation Model
The Thing about Science
Evolution and Religion
Words of Caution for Scientific Dogmatists
Science, Evolution, Religion, and Liberty
The Legality of Teaching Intelligent Design
Science, Logic, and God
Capitalism, Liberty, and Christianity
Is “Nothing” Possible?
A Dissonant Vision
Debunking “Scientific Objectivity”
Science’s Anti-Scientific Bent
Science, Axioms, and Economics
The Big Bang and Atheism
The Universe . . . Four Possibilities
Einstein, Science, and God
Atheism, Religion, and Science Redux
Pascal’s Wager, Morality, and the State
Evolution as God?
The Greatest Mystery
What Is Truth?
The Improbability of Us
A Digression about Probability and Existence

Voluntary Taxation

Will Wilkinson, writing at The Economist, quotes Ayn Rand and begs to differ with her:

Ayn Rand’s position on government finance is unusual, to say the least. Rand was not an anarchist and believed in the possibility of a legitimate state, but did not believe in taxation. This left her in the odd and almost certainly untenable position of advocating a minimal state financed voluntarily. In her essay “Government Financing in a Free Society”, Rand wrote:

In a fully free society, taxation—or, to be exact, payment for governmental services—would be voluntary. Since the proper services of a government—the police, the armed forces, the law courts—are demonstrably needed by individual citizens and affect their interests directly, the citizens would (and should) be willing to pay for such services, as they pay for insurance.

This is faintly ridiculous. From one side, the libertarian anarchist will agree that people are willing to pay for these services, but that a government monopoly in their provision will lead only to inefficiency and abuse. From the other side, the liberal statist will defend the government provision of the public goods Rand mentions, but will quite rightly argue that Rand seems not to grasp perhaps the main reason government coercion is needed, especially if one believes, as Rand does, that individuals ought to act in their rational self-interest.

It’s true that we each benefit from the availability of genuinely public goods, but we benefit most if we are able to enjoy them without paying for them. A rationally self-interested individual will not voluntarily pay for public goods if she believes others will pay and she can get a free ride. But if we’re all rationally self-interested, and we know we’re all rationally self-interested, we know everyone else will also try to get a free ride, in which case it is doubly irrational to voluntarily pitch in. (from “Ayn Rand on Tax Day,” free registration required)

Wilkinson’s analysis is more than faintly wrong. A rationally self-interested individual will voluntarily pay for something if his expected benefit is worth (to him) the price he pays. The fact that a purchase might yield uncompensated benefits to third parties (i.e., positive externalities) is beside the point. Individuals do many things with their money that benefit others, without expecting to be repaid by those others. Individuals also do things that benefit others, in more than the ordinary way of voluntary exchange — sometimes for money, sometimes not, and sometimes at the risk of life and limb.

In addition to the obvious but signifcant case of philanthropy, there are subtle things like building an elegant house with beautifully landscaped grounds. Clusters of such houses on upscale streets yield satisfaction not only to their owners but also to drivers, joggers, and strollers who pass through the neighborhood — often with the main purpose of enjoying the elegance and beauty that surrounds them.

A similar case in point is the practice observed in many neighborhoods of creating elaborate displays of Christmas lights. Such displays not only please the homeowners who create them (or pay someone to create them) but also the flocks of sightseers who are drawn to such displays. Homeowners (for the most part) do this without compensation from sightseers. (Some homeowners in a less-affluent neighborhood in Austin, which is known for its over-the-top lighting concoctions, have been known to invite voluntary donations to help defray the cost of their displays.)

Finally, on this point, there are not-so-subtle examples of doing good for others as a habit and even a way of life. Many persons devote many hours a week to voluntary work in schools, hospitals, and the like. Then there are firefighters, police officers, and a goodly fraction of the members of the armed forces who perform jobs that put them in harm’s way, and do so not only for the money they earn but often because they feel a duty to make their towns, cities, and nation safer for the inhabitants thereof.

In any event, a rationally self-interested person who values national defense or the justice system would be a good candidate for making voluntary contributions to support those kinds of governmental functions. It would be a simple thing for influential and very wealthy individuals and major corporations to parlay their self-interest into the creation of organizations that raise money from like-minded individuals and corporations. Imagine a version of the American Heart Association called the American Defense Association; imagine a version of the Junior League called the Justice League. If anything, it should be easier to entice “voluntary taxes” in support of essential functions like defense and justice than it is to entice contributions to charitable organizations, which seldom yield more than “feel good” benefits to donors.

Not all fund-raising efforts for charities succeed in obtaining donations from everyone they solicit, but fund-raisers neither expect nor require 100-percent success. Similarly, an American Defense Association or Justice League would not require 100-percent success in its efforts to raise enough money to defray the costs of national defense and domestic justice. It is enough that the prospect of being “taxed voluntarily” to support such causes would appeal to a large number of affluent taxpayers.

Of particular interest to fund-raisers would be those individuals and couples with adjusted gross incomes in the top 50 percent of the AGI distribution. For tax year 2008, the top 50 percent paid 97 percent of federal income taxes collected by the federal government. Before the Great Recession and associated “stimulus” spending, when the federal budget was nearly in balance, spending on national defense and justice (at all levels of government) accounted for about 20 percent of all government spending. It seems to me that the a rationally self-interested person or couple in the top 50 percent would leap at the chance to eliminate all of his or their taxes if the alternative were to donate a smaller amount to the causes of defense and justice. There would be holdouts — especially among affluent leftists, of course — but there would also be the usual donors who give far more than their “fair share.”

Consider, for example, the persons in the top 1 percent of the AGI distribution, who paid 38 percent of the federal income taxes collected for 2008, or the persons in the top 10 percent, who paid 70 percent of the taxes. Members of those groups (as well as others in the top 50 percent) would have a strong incentive to ensure the provision of defense and justice, understanding (as most of them do) the importance of order and stability to their livelihoods.

Further, I expect that many of top income-earners would lead example (as they do for charities) with their contributions. Additionally, I would expect them to be leading contributors to advertising campaigns that explain the economic benefits of maintaining a robust defense and vigilant system of justice while, at the same time, paying a lot less for government services. Chief among the benefits would be stronger economic growth — as money is saved and invested instead of being poured down so many rat-holes and into counterproductive regulatory agencies. In the end, there would be more jobs, higher incomes, less need for charity, and more money with which to dispense charity to truly needy individuals.

In summary, Wilkinson’s analysis seems rooted in a sterile conception of rational self-interest. It seems to assume that bright, hard-working, high-earning individuals cannot perceive the real benefits that would flow from “voluntary taxation” for certain purposes, namely, national defense and domestic justice.

Osama, Obama, and 2012

Obama did what any president should have done. However, because Osama was killed by U.S. forces on Obama’s watch, much of the glory will redound to Obama. But the glory really belongs to the team of Americans who conducted the raid on Osama’s lair, to the intelligence apparatus that led the team there, and to everyone directly involved in command and support of the operation.

The killing of Osama, at this late date, probably will have little or no effect on the operations of al-Qaeda and other terrorist organizations. The killing of Obama is a symbolic act of justice, and that’s about all it is. But that, in itself, is worth a lot to any American who abhors the 9/11 attacks for what they were: murderous attacks on innocent persons by cold-blooded fanatics. Anyone who is celebrating today but who said ten years ago that “we asked for it” is a hypocrite who should be wearing sackcloth instead of celebrating.

It remains to be seen whether the almost-certain surge in Obama’s popularity will last. There is much about the man and his policies that deserves deep unpopularity. Yesterday’s events will recede from view before long, and Americans will return to their struggles with unemployment, inflation, intrusive government, and mounting debt. It is those things that most likely will occupy Americans’ minds when they cast their votes in November 2012.

A case in point: Bush senior enjoyed a surge of popularity following the decisive (but incomplete) victory in the Gulf War of 1990-91, but he was nevertheless unable to win re-election in 1992. The third-party candidacy of Ross Perot had a lot to do with Bush’s unseating. But had the election taken place right after the defeat of Saddam’s forces, Bush probably would have won handily. Unfortunately for Bush — and the country — the election took place 20 months later, by which time Americans’ discontent with their economic lot led too many of them to vote for Perot and Clinton.

As Yogi says, “It ain’t over ’til it’s over.”