Month: November 2011

The Contemporary Meaning of the Bill of Rights: First Amendment (Updated)

I have twice updated “The Contemporary Meaning of the Bill of Rights: First Amendment.” Today’s second update  addresses certain issues noted in “Mandating Our Religious Freedom,” a recent post at Public Discourse, specifically:

The Founders’ protection of religious freedom in the First Amendment was in keeping with their recognition of the supreme importance of the individual, who was created by God and subject to God’s natural law. The early twentieth-century Progressives largely rejected this view, as they concluded that man must not be limited by “arbitrary” rules such as those imposed by religion. Modern progressives have seized upon this viewpoint, especially in their attitudes toward sex. The State will teach children about sex, and it will do so by disconnecting it from its most important component—the spiritual. It does not matter that such teachings are, by nature, within the rights of parents.

Progressives have carried these attitudes to federal, state, and local governments, and the result has been an unprecedented assault on religious values and religious practice. Governmental authorities embrace the view that access to contraception (and abortion) is a fundamental right vital to sexual freedom. Similarly, homosexual conduct must be completely normalized and accepted. The law must prohibit even private preference for heterosexual norms, and if religion teaches such a preference, religion must yield. These attitudes must be taught to children in the public schools in order to affirm, in the state’s view, the full self-realization of every person—and as shown below, parents who object to the assault on their right to bring up their children according to their religious values have discovered that the courts will not protect their rights in this regard.

Churches and other people of faith have relied on the judicial process to protect their First Amendment freedoms. But litigation takes an enormous toll in time and resources. Even worse, as many disappointed litigants have discovered, courts grant extraordinary leeway to government and government schools in advancing so-called neutral, generally applicable laws. The courts will follow the lead of the people in defining the parameters of religious liberty; if the people abdicate, the courts will not intercede to protect that liberty.

The problem lies in a 1990 Supreme Court case, Employment Division v. Smith, in which the Court held that the First Amendment does not relieve a citizen of the obligation to comply with a neutral law of general applicability, simply because the law “proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Applying Smith, lower courts have rejected almost all challenges to laws and government activities that are based on claims of interference with free exercise of religion. Many of these cases arise in the public-school setting. Courts have found that public-school administrators do not interfere with parents’ First Amendment rights by:

Although older Supreme Court authority acknowledged the fundamental right of parents to control the upbringing and education of their children (Meyer v. Nebraska, Pierce v. Society of Sisters, Wisconsin v. Yoder), the post-Smith courts have severely limited those holdings to their unique facts. Now, courts are more likely to hold that parents relinquish, as a practical matter, their First Amendment right to control their children’s education when they choose public schools over private schools or homeschooling. As one court said, parents “have no constitutional right . . . to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so.”

The first update (on 11/18/11) addresses these aspects of “Mandating Our Religious Freedom”:

The denigration of religious freedom extends to areas of purely private, commercial conduct. Governments increasingly apply nondiscrimination statutes to force private individuals and businesses to participate in conduct that violates their religious beliefs. So far, defenses based on the First Amendment have been unavailing. Some examples:

  • The New Mexico Human Rights Commission found that a small photography business unlawfully discriminated against a same-sex couple by declining, because of the owners’ religious beliefs, to photograph the couple’s commitment ceremony (Willock v. Elane Photography).
  • The California Supreme Court ruled that doctors violated the state nondiscrimination statute by refusing, on religious grounds, to artificially inseminate a woman who was in a lesbian relationship (North Coast Women’s Care Medical Group v. San Diego County Superior Court).
  • A federal court in California found that administrators of an Arizona adoption-facilitation website were subject to California’s statute banning discrimination in public accommodations because they refused to post profiles of same-sex couples as potential parents (Butler v. Adoption Media).
  • A New Jersey agency found probable cause to believe that a church violated a public-accommodations statute by declining to rent its pavilion for a same-sex wedding (a different agency, enforcing nondiscrimination on the basis of sexual orientation, revoked the tax exemption the church had enjoyed under a statute promoting the use of private property as green space) (Ocean Grove Camp Meeting Ass’n of United Methodist Church v. Vespa-Papaleo).
  • A federal appeals court found that an employer’s denial of insurance coverage to an employee’s same-sex partner constituted illegal sex discrimination (In Re Levenson)….

Another arena in which principles of nondiscrimination are elevated over free exercise of religion is the area of public benefits. Across the country, faith-based charities or social-service organizations such as the Salvation Army and the Boy Scouts have been denied government grants or other benefits because of their religiously grounded refusal to yield to the demands of “nondiscrimination” (see, for example, Boy Scouts of America v. Wyman, Catholic Charities of Maine, Inc. v. City of Portland). These demands have included providing insurance benefits to employees’ same-sex partners, admitting homosexuals to the organizations’ leadership ranks, and placing children with same-sex adoptive parents. This latter demand has forced Catholic agencies to cease adoption facilitations in Massachusetts, Illinois, and the District of Columbia rather than violate their religious beliefs about marriage and the family.

Other victims of progressive attitudes toward sexuality and “discrimination” have been public employees who express their religiously based concerns about homosexual conduct. A Los Angeles police officer who was also a Protestant minister was demoted and, he says, denied benefits because of a sermon he delivered that quoted biblical passages about prohibited sexual conduct. An African-American college administrator was fired after she published an op-ed objecting to the equating of race discrimination and sexual-orientation discrimination. And most recently, a New Jersey teacher has come under verbal assault—including from Gov. Chris Christie, who also called for an investigation of her classroom behavior—for posting on her Facebook page her moral objections to a high school’s Lesbian Gay Bisexual Transgender History Month display.

The hostility of courts to such claims of First Amendment violations is unlikely to change, especially in light of the governmental officials’ gravitation toward the European attitude about religion—that it is a divisive influence that must be contained and marginalized. As jurists and legal scholars flirt with the idea of consulting foreign law to evaluate claims under our Constitution, this attitude could take deeper root in American soil.

Progressive to the core, the Obama administration is pursuing even more limitations on religious freedom. One such effort is the proposed mandate of the Department of Health and Human Services (HHS) that health plans cover contraceptives and sterilization, with a religious “exemption” so narrow that (as the U.S. Conference of Catholic Bishops has noted) it would not have covered the ministry of Jesus Christ. Another is the Administration’s argument in a case currently before the Supreme Court that the long-established “ministerial exception” to federal employment-discrimination laws be abandoned. This would mean that rather than allow churches to select and control their own ministers, the federal government could dictate results more in keeping with its secular values. Churches have seen this kind of thing before, and it has not ended well.

I doubt that Thomas Jefferson had this in mind when he proclaimed, wrongly, that the First Amendment built “a wall of separation between Church & State.”

An Explanation Is in Order

In two recent posts (“Libertarianism and Morality” and “Libertarianism and Morality: A Footnote“) I make it a point to locate social morality in the beneficial social convention known as the Golden Rule, which arises from self-interest and empathy. This might come as a surprise to readers who are familiar with my deism (see this and this), my denunciation of strident atheism (see this, for example), and the high value I place on the Judeo-Christian tradition (see this, for example).

As a deist, I am not prepared to say that morality comes directly from God, about whose nature and involvement in the workings of the universe I am agnostic. I am prepared to say the following:

  • It is possible that there is a God who takes a “personal” interest in human beings and their doings.
  • Such a God could have endowed human beings with free will.
  • The Golden Rule, as a manifestation of free will, would therefore be God-given.
  • And the degree to which human beings abide by the Golden Rule could be one “test” (among others) by which God judges the worthiness of His creatures, individually and collectively.

Libertarianism and Morality: A Footnote

There is a key passage in Jan Narveson’s The Libertarian Idea that I did not quote in “Libertarianism and Morality.” In the version of Narveson’s book that is available online, the passage goes like this:

[I]f morality is an artificial construct, a rational convention, [which is a main point of Naveson's book and my post] then those who have refused to make any deals acceptable to others are in the condition of rulelessness — in the Hobbesian “state of nature”. Hobbes himself characterizes this condition in an unfortunate way: that everyone has a “right of nature” to do whatever he or she thinks best, no matter what it is…. [T]hat is a useless, nonsensical employment of the term ‘right’ and should be dropped. Much less misleading to say that in the Hobbesian state of nature, nobody has any rights, period. And therefore nobody has the protections inherent in a moral system, where people accept rules which limit what they may do to others. These are rules which those others have reason to accept only if they likewise extend benefits to them. And whoever has not made the deal is someone with respect to whom no bets are on, no limitations authorized; and therefore people may do whatever they wish with them. Note that the ‘may’ here is normative. The person who signs no agreements is a person such that anyone else, willing to sign an agreement of mutual advantage, does have a moral right to deal with that person as he may. No one may blame him for doing so.

Whether one would deal harshly with a person who stands outside the agreed rules is another matter. For, as I note in “Libertarianism and Morality,” we humans are ruled not only by self-interest but also by empathy.

Be that as it may, the passage quoted above boils down to this:

Most people do have the desire he imputes to them of willingness to cooperate with others as a means to best advance one’s own interests. Those who do not can be overpowered. There are very few of them; and, as they will not agree with the rest of society, on what moral basis can they complain over the way others treat them? (from David Gordon’s review of The Libertarian Idea in Reason Papers, Spring 1989, pp. 169-177)

Whether there are “very few” of “them” is a questionable proposition in this day (or even 22 years ago, when Gordon’s review was published). An inordinately large share of the populace seems to have opted out of or simply rejected the “deal” that is represented in the Golden Rule. A key element of that “deal” is the mutual observance and enforcement of negative rights:

Such rights, as opposed to positive rights, do not involve claims against others; instead, they involve the right to be left alone by others. Negative rights include the right to conduct one’s affairs without being killed, maimed, or forced or tricked into doing something against one’s will; the right to own property, as against the right of others to abscond with property or claim it as their own; the right to work for a wage and not as a slave to an “owner” who claims the product of one’s labor; and the right to move and transact business freely within government’s sphere of sovereignty (which can include overseas movements and transactions, given a government strong enough to protect them).

[Negative] rights are limited to those that can be exercised without requiring something of others (e.g., transfers of income and property). The one necessary exception is the cost of providing a government to ensure the exercise of [negative] rights. (from “The Protection of Negative Rights,” in the section on “Minarchism” in “Parsing Political Philosophy“)

Now, as in 1989, the “deal” for too many Americans is to grab what one can at the expense of others. (The futility of this “new deal” is a tale that I have told in “The Interest-Group Paradox.”)

In any event, Narveson’s attitude toward those who stand outside the rules is parallel to mine. This is from an early post, about “The Origin and Essence of Rights“:

…Fundamentalist libertarianism [Narveson's "intuitionism"] reduces liberty to a matter of faith. If libertarianism cannot stand on more than faith, what makes it any better than, say, socialism or the divine right of kings?

The virtue of libertarianism … is not that it must be taken on faith but that, in practice, it yields superior consequences. Superior consequences for whom, you may ask. And I will answer: for all but those who don’t wish to play by the rules of libertarianism; that is, for all but predators and parasites. (emphasis added)

Later, in “‘Natural Rights’ and Consquentialism,” I put it this way:

What if A and B agree, honorably, not to kill each other, whereas C “leaves his options open”? It then behooves A and B to reach a further agreement, which is that they will defend each other against C…. A and B therefore agree to live in liberty (the liberty of self-restraint and mutual defense), whereas C stands outside that agreement. He has forfeited the liberty of self-restraint and mutual self-defense. How so? A and B, knowing that C has “left his options open,” might honorably kill or imprison C when they have good reason to believe that C is planning to kill them or acquire the means to kill them. [a quotation from  "Anarchistic Balderdash"]

In sum, there can be no system makes everyone happy (unless you believe, foolishly, that everyone is of good will). Try to imagine, for example, a metric by which C’s happiness (if he succeeds in his predatory scheme) would offset A and B’s unhappiness (were C successful).

The problem now is that there are more than a “very few” Cs standing against the As and Bs. And it is the Cs who have seized the power of the state.

The Movies: Not Better than Ever (II)

This updates a post from June 2007 at Liberty Corner and a post from November 2010 at Americana, Etc. If you wonder why I’m writing about movies, wonder not. The subtext is the erosion of standards in the age of burgeoning government, shrinking attention spans, and declining critical faculties.

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According to the lists of movies that I keep at the Internet Movie Database (IMDb), I have thus far seen 2,306 theatrically released feature films in my lifetime. That number does not include such forgettable fare as the grade-B westerns, war movies, and Bowery Boys comedies that I saw on Saturdays, at two-for-a-nickel, during my pre-teen years.

I have given 676 (29 percent) of those 2,306 films a rating of 8, 9, or 10 (out of 10). The proportion of high ratings does not indicate low standards on my part; rather, it indicates the care with which I have tried to choosse films for viewing.

I call the 676 highly rated films my favorites. I won’t list all them here, but I will mention some of them — and their stars — as I assess the ups-and-downs (mostly downs) of the art of film-making.

I must, at the outset, admit two biases that have shaped my selection of favorite movies. First, because I’m a more or less typical American movie-goer (or movie-viewer, since the advent of cable, VCR, and DVD), my list of films and favorites is dominated by American films starring American actors. But that dominance is merely numerical. For artistic merit and great acting, I turn to foreign films as often as possible.

A second bias is my general aversion to silent features and early talkies. Most of the directors and actors of the silent era relied on “stagy” acting to compensate for the lack of sound — a style that persisted into the early 1930s. There are exceptions, of course. Consider Charlie Chaplin, whose genius as a director and comic actor made a virtue of silence; my list of favorites from the 1920s and early 1930s includes three of Chaplin’s silent features (The Gold Rush, 1925), The Circus (1928, and (City Lights, 1931). Perhaps a greater comic actor (and certainly a more physical one) than Chaplin was Buster Keaton, with six films on my list of favorites of the same era: Our Hospitality (1923), The Navigator (1924), Sherlock Jr. (1924), The General (1926), The Cameraman (1928), and Steamboat Bill Jr. (1928). Harold Lloyd, in my view, ranks with Keaton for sheer laugh-out-loud physical humor. My seven Lloyd favorites from his pre-talkie oeuvre are Grandma’s Boy (1922), Dr. Jack (1922), Safety Last! (1923), Girl Shy (1923), Hot Water (1924), For Heaven’s Sake (1926), and Speedy (1928). My list of favorites includes only nine other films from the years 1920-1931, among them F.W. Murnau’s Nosferatu the Vampire (1922) and Fritz Lang’s Metropolis (1927) — the themes of which (supernatural and futuristic, respectively) enabled them to transcend the limitations of silence — and such early talkies as Whoopee! (1930), and Dracula (1931).

On the whole, I can recall having seen only 49 feature films that were released in 1920-1931. Of the 49, I have rated 48, and 25 of them (52 percent) rank among my favorites. But given the relatively small number of films from 1920-1931 in my personal catalog, I will say no more here about that era. I will focus, instead, on movies released from 1932 to the present — which I consider the “modern” era of film-making.

My inventory of modern films comprises 2,257 titles, 1,953 of which I have rated, and 651 of those (33 percent) at 8, 9, or 10 on the IMDb scale. But those numbers mask vast differences in the quality of modern films, which were produced in three markedly different eras:

  • Golden Age (1932-1942) — 227 films seen, 197 rated, 113 favorites (57 percent)
  • Abysmal Years (1943-1965) — 354 films seen, 272 rated, 110 favorites (40 percent)
  • Vile Epoch (1966-present) — 1,676 films seen, 1,484 rated, 428 favorites (29 percent)

What made the Golden Age golden, and why did films go from golden to abysmal to vile? Read on.

To understand what made the Golden Age golden, let’s consider what makes a great movie: a novel or engaging plot, dialogue that is fresh (and witty, if the film calls for it), and strong performances (acting, singing, and/or dancing), a “mood” that draw the viewer in, excellent production values (locations, cinematography, sets, costumes, etc.), and historical or topical interest. (A great animated feature may be somewhat weaker on plot and dialogue if the animations and sound track are first rate.) The Golden Age was golden largely because the advent of sound fostered creativity — plots could be advanced through dialogue, actors could deliver real dialogue, and singers and orchestras could deliver the real thing. It took a few years to fully realize the potential of sound, but movies hit their stride just as the country was seeking respite from the cares of a lingering and deepening Depression.

Studios vied with each other to entice movie-goers with new plots (or plots that seemed new when embellished with sound), fresh and often wickedly witty dialogue, and — perhaps most important of all — captivating performers. The generation of super-stars that came of age in the 1930s consisted mainly of handsome men and beautiful women, blessed with distinctive personalities, and equipped by their experience on the stage to deliver their lines vibrantly and with impeccable diction.

What were the great movies of the Golden Age, and who starred in them? Here’s a sample of the titles: 1932 — Grand Hotel; 1933 — Dinner at Eight, Flying Down to Rio, Morning Glory; 1934 — It Happened One Night, The Thin Man, Twentieth Century; 1935 — Mutiny on the Bounty, A Night at the Opera, David Copperfield; 1936 — Libeled Lady, Mr. Deeds Goes to Town, Show Boat; 1937 — The Awful Truth, Captains Courageous, Lost Horizon; 1938 — The Adventures of Robin Hood, Bringing up Baby, Pygmalion; 1939 — Destry Rides Again, Gunga Din, The Hunchback of Notre Dame, The Wizard of Oz, The Women; 1940 — The Grapes of Wrath, His Girl Friday, The Philadelphia Story; 1941 — Ball of Fire, The Maltese Falcon, Suspicion; 1942 — Casablanca, The Man Who Came to Dinner, Woman of the Year.

And who starred in the greatest movies of the Golden Age? Here’s a goodly sample of the era’s superstars, a few of whom came on the scene toward the end: Jean Arthur, Fred Astaire, John Barrymore, Lionel Barrymore, Ingrid Bergman, Humphrey Bogart, James Cagney, Claudette Colbert, Ronald Colman, Gary Cooper, Joan Crawford, Bette Davis, Irene Dunne, Nelson Eddy, Errol Flynn, Joan Fontaine, Henry Fonda, Clark Gable, Cary Grant, Jean Harlow, Olivia de Havilland, Katharine Hepburn, William Holden, Leslie Howard, Allan Jones, Charles Laughton, Carole Lombard, Myrna Loy, Jeanette MacDonald, Joel McCrea, Merle Oberon, Laurence Olivier, William Powell, Ginger Rogers, Rosalind Russell, Norma Shearer, Barbara Stanwyck, James Stewart, and Spencer Tracy. There were other major stars, and many popular supporting players, but it seems that a rather small constellation of superstars commanded a disproportionate share of the leading roles in the best movies of the Golden Age.

Why did movies go into decline after 1942′s releases? World War II certainly provided an impetus for the end of the Golden Age. The war diverted resources from the production of major theatrical films; grade-A features gave way to low-budget fare. And some of the superstars of the Golden Age went off to war. (Two who remained civilians — Leslie Howard and Carole Lombard — were killed during the war.) With the resumption of full production in 1946, the surviving superstars who hadn’t retired were fading fast, though their presence still propelled many films of the Abysmal Years.

Stars come and go, however, as they have done since Shakespeare’s day. The decline into the Abysmal Years and Vile Epoch have deeper causes than the dimming of old stars:

  • The Golden Age had deployed all of the themes that could be used without explicit sex, graphic violence, and crude profanity — none of which become an option for American movie-makers until the mid-1960s.
  • Prejudice got significantly more play after World War II, but it’s a theme that can’t be used very often without becoming trite.
  • Other attempts at realism (including film noir) resulted mainly in a lot of turgid trash laden with unrealistic dialogue and shrill emoting — keynotes of the Abysmal Years.
  • Hollywood productions often sank to the level of TV, apparently in a misguided effort to compete with that medium. The use of garish technicolor — a hallmark of the 1950s — highlighted the unnatural neatness and cleanliness of settings that should have been rustic if not squalid.
  • The transition from abysmal to vile coincided with the cultural “liberation” of the mid-1960s, which saw the advent of the “f” word in mainstream films. Yes, the Vile Epoch brought more more realistic plots and better acting (thanks mainly to the Brits). But none of that compensates for the anti-social rot that set in around 1966: drug-taking, drinking and smoking are glamorous; profanity proliferates to the point of annoyance; sex is all about lust and little about love; violence is gratuitous and beyond the point of nausea; corporations and white, male Americans with money are evil; the U.S. government (when Republican-controlled) is in thrall to that evil; etc., etc. etc.

To be sure, there have been outbreaks of greatness since the Golden Age. During the Abysmal Years, for example, aging superstars appeared in such greats as Life With Father (Dunne and Powell, 1947), Key Largo (Bogart and Lionel Barrymore, 1948), Edward, My Son (Tracy, 1949), The African Queen (Bogart and Hepburn, 1951), High Noon (Cooper, 1952), Mr. Roberts (Cagney, Fonda, Powell, 1955), The Old Man and the Sea (Tracy, 1958), Anatomy of a Murder (Stewart, 1959), North by Northwest (Grant, 1959), Inherit the Wind (Tracy, 1960), Long Day’s Journey into Night (Hepburn, 1962), Advise and Consent (Fonda and Laughton, 1962), The Best Man (Fonda, 1964), and Othello (Olivier, 1965). A new generation of stars appeared in such greats as The Lavender Hill Mob (Alec Guinness, 1951), Singin’ in the Rain (Gene Kelly, 1952), The Bridge on the River Kwai (Guiness, 1957), The Hustler (Paul Newman, 1961), Lawrence of Arabia (Peter O’Toole, 1962), and Dr. Zhivago (Julie Christie, 1965).

Similarly, the Vile Epoch — in spite of its seaminess — has yielded many excellent films and new stars. Some of the best films (and their stars) are A Man for All Seasons (Paul Scofield, 1966), Midnight Cowboy (Dustin Hoffman, 1969), MASH (Alan Alda, 1970), The Godfather (Robert DeNiro, 1972), Papillon (Hoffman, Steve McQueen, 1973), One Flew over the Cuckoo’s Nest (Jack Nicholson, 1975), Star Wars and its sequels (Harrison Ford, 1977, 1980, 1983), The Great Santini (Robert Duvall, 1979), The Postman Always Rings Twice (Nicholson, Jessica Lange, 1981), The Year of Living Dangerously (Sigourney Weaver, Mel Gibson, 1982), Tender Mercies (Duvall, 1983), A Room with a View (Helena Bonham Carter, Daniel Day Lewis 1985), Mona Lisa (Bob Hoskins, 1986), Fatal Attraction (Glenn Close, 1987), 84 Charing Cross Road (Anne Bancroft, Anthony Hopkins, Judi Dench, 1987), Dangerous Liaisons (John Malkovich, Michelle Pfeiffer, 1988), Henry V (Kenneth Branagh, 1989), Reversal of Fortune (Close and Jeremy Irons, 1990), Dead Again (Branagh, Emma Thompson, 1991), The Crying Game (1992), Much Ado about Nothing (Branagh, Thompson, Keanu Reeves, Denzel Washington, 1993), Trois Couleurs: Bleu (Juliette Binoche, 1993), Richard III (Ian McKellen, Annette Bening, 1995), Beautiful Girls (Natalie Portman, 1996), Comedian Harmonists (1997), Tango (1998), Girl Interrupted (Winona Ryder, 1999), Iris (Dench, 2000), High Fidelity (John Cusack, 2000), Chicago (Renee Zellweger, Catherine Zeta-Jones, Richard Gere, 2002), Master and Commander: The Far Side of the World (Russell Crowe, 2003), Finding Neverland (Johnny Depp, Kate Winslet, 2004), Capote (Philip Seymour Hoffman, 2005), The Chronicles of Narnia: The Lion, the Witch, and the Wardrobe (2005), The Painted Veil (Edward Norton, Naomi Watts, 2006), Breach (Chris Cooper, 2007), The Curious Case of Benjamin Button (Brad Pitt, 2008), and The King’s Speech (Colin Firth, 2010).

But every excellent film produced during the Abysmal Years and Vile Epoch has been surrounded by outpourings of dreck, schlock, and bile. The generally tepid effusions of the Abysmal Years were succeeded by the excesses of the Vile Epoch: films that feature noise, violence, sex, and drugs for the sake of noise, violence, sex, and drugs; movies whose only “virtue” is their appeal to such undiscerning groups as teeny-boppers, wannabe hoodlums, resentful minorities, and reflexive leftists; movies filled with “bathroom” and other varieties of “humor” so low as to make the Keystone Cops seem paragons of sophisticated wit.

In sum, movies have become progressively worse since the end of the Golden Age — and I have the numbers to prove it.

First, I should establish the point that I am “pickier” than the average person who rates films at IMDb. The following graph makes that point, because the films that I have chosen to watch are given higher ratings than all films:

Note: These averages are for films designated by IMDb as “English-language”: about 51,500 in all, of which I have seen almost 2,100.

Here’s another way to look at it. IMDb users have given an average rating of 6.9 (standard deviation = 0.9) to films that I have rated 1 through 5; IMDB users have given an average rating of 7.2 (standard deviation = 0.7) to films that I have rated 6 through 10. Despite differences that are quite noticeable to me, there is no statistical difference between IMDb users’ ratings of terrible-to-bad films (rated 1-5) and good-to-superior films (rated 6-10).*

The next graph illustrates two points:

  • IMDb users, on the whole, have overrated the films of the early 1940s to mid-1980s and mid-1990s to the present. (The ratings for films released since the mid-1990s — when IMDb came on the scene — undoubtedly reflect the dominance of younger viewers who “grew up” with IMDb, who prefer novelty to quality, and who have little familiarity with earlier films. I have seen more than 800 films that were released in 1996-2011, but almost 1,500 films from 1920-1995.)
  • My ratings, based on long experience and exacting standards, indicate that movies not only are not better than ever, they are generally getting worse as the years roll on.


* This is my interpretation of IMDb’s 10-point scale:

1 = So bad that I quit watching after a few minutes.

2 = I watched the whole thing, but wish that I hadn’t.

3 = Barely bearable; perhaps one small, redeeming feature (e.g., a cast member).

4 = Just a  shade better than a 3 — a “gut feel” grade.

5 = A so-so effort; on a par with typical made-for-TV fare.

6 = Good, but not worth recommending to anyone else; perhaps because of a weak cast, too-predictable plot, cop-out ending, etc.

7 = Enjoyable and without serious flaws, but once was enough.

8 = Superior on at least three of the following dimensions: mood, plot, dialogue, music (if applicable), dancing (if applicable), quality of performances, production values, and historical or topical interest; worth seeing twice but not a slam-dunk great film.

9 = Superior on several of the above dimensions and close to perfection; worth seeing at least twice.

10 = An exemplar of its type; can be enjoyed many times.

Libertarianism and Morality

I have come late to Jan Narveson‘s The Libertarian Idea, which is the subject of a series of posts at; thus far:

The Libertarian Idea: Setting the Scene (11/04/11)
The Libertarian Idea: Part One, part one (11/14/11)
Morality and Its Discontents (11/21/11)
Is Contractarianism Serious (Or Just Clever)? 11/21/11

So much libertarian theorizing, it seems to me, amounts to the search for an intellectual hook on which to hang an instinctive yearning to be left alone. The intellectualization of the yearning proceeds in stages. The first stage is an appeal to morality. But this cannot be the kind of morality that arises from social constructs (e.g. the Golden Rule); it must be a “higher morality.” This leads libertarian theorists — or most of them, in my reading — toward “natural rights” and “natural law.” But, as atheists (which most libertarian theorists seem to be), they cannot attribute “natural rights” or “natural law” to God, so they conjure super-human sources that lie somewhere between God and social convention. Narveson call this conjuring “intuitionism.”

One such source, which is no less supernatural than God, is Platonic in character: “natural rights” just are (and known, by some mysterious process, to the proponents of this view). The chief alternative to Platonism is evolution: “natural rights” as evolutionary adaptation (though how one knows which rights are “natural” remains a puzzle). I have said much about these intellectual misfires in several posts; for example:

“Natural Rights” and Consequentialism
More about Consequentialism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Evolution, Human Nature, and “Natural Rights”
More Thoughts about Evolutionary Teleology

Narveson, by contrast with other libertarian philosophers, is refreshingly clear-minded about the roots of libertarianism. The following is taken from a version of The Libertarian Idea that is available online (here).

Libertarians in general support their views by appeals to intuitions, especially intuitions about our “natural rights”. This is a method that has very wide currency in contemporary philosophy; it is by no means confined to libertarians. Libertarians who base their convictions on intuition are thus in good company. This, as we shall see, is ironic, for the other members of that company have widely varying views about these matters. The burning issue thus becomes, whose intuitions are the right ones? But adoption of the intuitional method virtually precludes rational decision of that burning issue; it simply continues to burn. (from “The Options,” in Chapter 9)

*   *   *

By “Metaphysical” intuitionism I mean the view that there exist some sort of “ethical entities” which are denoted by such words as ‘good’ or ‘right’ or ‘just’ (as the case may be); and that ethical knowledge is acquired by the mind’s “apprehending” or, as we may say, “spotting” one or more of those at the appropriate points. On this view, when we say that an act is Right, we mean that it has one of these properties — namely “That one!”…

The shortcomings of this “metaphysical” type of intuitionism are legion, and it is not surprising that as an option it is virtually extinct among current philosophers. (I say ‘virtually’, because no theory I can think of is totally extinct among current philosophers….) (from “Metaphysical Intuitionism” in Chapter 10)

*   *   *

Especially in this scientifically-oriented era, the appeal to what seem mysterious entities and faculties is likely to elicit impatience, and perhaps a certain amount of irritation. To those of us who don’t seem to have one of the special faculties required for detecting these strange items, this explanation isn’t going to be much help… (from “Mysteriousness” in Chapter 10)

*   *   *

In the past few decades, long after Metaphysical intuitionism was relegated to the philosophical dust-bins, a presumably quite different use of “intuitions” in moral philosophy was elevated to the status of theoretical respectability — not a new one, to be sure, since philosophers have been doing it, to a greater or lesser extent, since Plato. In this version, we supposedly make no assumptions about the fundamental meanings of moral terms or the sort of things they may refer to. Rather, we employ intuitions as a sort of data, and construct a theory to “explain” them. The fact is that people have tendencies to affirm of certain things that they are right, others that they are wrong, and so on; and the moral philosopher’s job is to find the principles which will account for these tendencies. Of course, this is moral philosophy, and so the output of our theorizing will be moral statements and not just statements about morality….

Now, consider what philosophers wish to do with their appeals to intuitions. They are discussing some controversial topic, ordinarily — nobody writes articles advocating the view that murder is wrong! But in a controversial area, we are going to have some people sincerely maintaining that something or other is right, and others that that very same thing is wrong. Abortion, for example, or capital punishment of repeat-murderers. Of what use is it to point out to people holding some view on these matters that a great many people think otherwise than they — or the same as they? Suppose some small minority thinks that a certain popular practice is quite wrong. Are they going to be impressed to hear that many people don’t think so?

It is here that this new sort of appeals to intuition gets into some of the very same problems that its less-respectable Metaphysical version has. When people have contrary intuitions, appeals to intuition are not likely to do much — except maybe irritate the people we’re trying to persuade.

In fact, appeals to intuition can hardly constitute reasons for the very attitudes that those intuitions express. The best they might do is provide a rather weak sort of evidence. We might say, “well, surely 90% of the people are unlikely to be wrong, are they?” Perhaps that is true. But the trouble is, it is also true that 90% of the people plainly can be wrong, about all sorts of things: why not about this, then? Especially when the effect of their opinion is to cram something down the craws of the remaining 10%. (from “Methodological Intuitionism” in Chapter 10)

*   *   *

My objection to appeal to intuitions in moral theory is, in brief, that when (not merely ‘if’!) intuitions conflict, we are bereft of conceptual tools for reaching reasoned agreement. Indeed, one must say that under those conditions, “reasoned” agreement is impossible. Surely it would be better, at any rate, if we could have a theory that was persuasive without presupposing anything like moral intuitions.  (from “The Need for Clarity about Morality” in Chapter 11)

*   *   *

We have a habit of talking as though moral principles were simply “truths”, like those of science: as though they were just “out there”, to be discovered, found out. But it’s not quite like that. Either you act in certain ways or you don’t. No mere external truth could make you do that. There are, certainly, “external truths” to which we must conform, willy-nilly: the Law of Gravity, for example. But the “must” here is so literal that “conform” is out of place. The gunman makes me conform, by threatening to shoot me if I do not. In some sense I can refuse to go along; if so, and he shoots me, I shall then literally have no choice but to die, if he’s a competent shot. We “conform” to the Law of Gravity in the same sense that we die if shot; it simply isn’t a matter of choice at all.

Moral principles and rules are just that: principles and rules for behavior, to which we can voluntarily conform or no….(from “Personal vs. Social Morality” in Chapter 11)

*   *   *

One apparent aim of the Libertarian is to provide a schedule of rights that is “hard”, so that in any given case we will always be able to identify the area of permissible action, precisely bounded by the relevant set of rights. Moreover, these are to be wholly “nonteleological” in one sense of that rather obscure term. That is, they are not to be founded upon considerations of the general good or general interest…. (from “The Compleat Deontologist” in Chapter 11)

*   *   *

[W]e tend to identify morality with what is taught us in our childhoods, say, or with what the people around us will react to in certain ways. Any given society will have a number of rules which are enforced in the various ways mentioned above. The fact that they are thus enforced provides, and of course is intended to provide, some motivation for doing what the enforcers are trying to get us to do. But is that the end of the story? Are we to say, simply, that what is right is what people will praise and reward you for doing, or blame and punish you for not doing? It is not, and we are not. For we are capable of reflecting on these demands, and of questioning them….

…The de facto rules of morality may be accounted conventional — by definition, indeed. And this in particular means that they are, at least to a degree, changeable. They are certainly changeable in some way, since they do change. Whether they are changeable by intention, like the law, which is made and unmade by certain intentional acts of certain people, the legislators, is quite another matter. And one would certainly have to be naïve to think that writing a tract or two is enough to do the job! It wouldn’t even if everyone would read the tract; which, in a society of millions, they certainly won’t.

There is thus a question of what to do, as it were, with any “philosophical” or “critical” morality we might come up with…. But there is also an answer: one can act on it oneself. One can start criticizing people in the light of these possibly novel principles you have found to be more reasonable than the ones actually reinforced in your current society….

One of the historic projects of philosophy is to try to find some or other rational foundations for morality, or at any rate for some morality, some set of overriding general guides to behavior which, even if it is not entirely reflected in current practice, has the solidest reasons for being so…. I shall shortly describe, again very briefly, what seems to be the best answer currently available. Like all answers judged to be so by philosophers, the judgment is guided by a certain sense that no other view could be right. This is philosophical hübris at work, no doubt: history has a way of suggesting that we have overlooked something when we make such claims. That’s a risk one simply has to take. (from “Conventional vs. Critical Morality” in Chapter 11)

*   *   *

That theory, I think, is Contractarianism. The general idea of this theory is that the principles of morality are (or should be) those principles for directing everyone’s conduct which are reasonable for everyone to accept. They are the rules which everyone has good reason for wanting everyone to act on, and thus to internalize in himself or herself, and thus to reinforce in the case of everyone.

In so saying, I am presenting a slanted view, so to say. As with every important philosophical theory, this one has many different versions with their own specific shades and twists, and the shades and twists are not trivial. Contractarianism can be made to seem arbitrary and silly: consider, for instance, the suggestion that long, long ago, our remote ancestors made this deal, see, and from that day to this everyone has had to go along with it! Plainly such a theory is not going to give us the rational motivation we need.

On the other hand, any ordinary contract, made in the full light of day between consenting adults, supplies motivation in just the required sense. The “required sense”, as will shortly be seen, is not so simple. But few will dispute that any theory that could attain the same degree of rational “bite” as actual contracts would be doing very well indeed.

The problem is that morality is obviously not the result of a literal contract; and indeed, it cannot be, among other things for the very good reason pointed out by David Hume, namely that “the observance of promises is itself one of the most considerable parts of justice; and we are not surely bound to keep our word because we have given our word to keep it.” To account for the obligation to keep promises on the basis of a general promise to do so seems, shall we say, unpromising Clearly the sense in which morality is founded upon or due to or represents an “agreement” is going to have to be less straightforward than that. (from the introductory section of Chapter 12)

*   *   *

What the philosopher would really like is a universal “contract” in the sense of an agreement which literally everyone would find it reasonable to accept. It is not clear that this can be done. Perhaps people are too different, or have interests that are fundamentally, irresolvably antagonistic. If so, it’s put paid for our project. It is so because our interests are indeed what we have to appeal to as the basis of the “social contract”.

But it should not be thought that this possibility puts paid to the theory in question. There are at least two reasons why not. In the first place, the truth about morality could be that it cannot be quite as universal as all that. The insistence that it must be may be just a philosopher’s prejudice, comparable to the Aristotelian idea that of course the earth must be the centre of the physical Universe.
But secondly, and more hearteningly, the possible nonuniversality we are worrying about may be nothing to worry about….

Let us suppose that morality is a kind of club — the “morality club”. Anyone can join — no problem. Those who join have certain responsibilities and certain rights, and we, the people who run this club, offer a package that we think no remotely reasonable person could really refuse; but nevertheless, some might. All we are saying is that our package is such that it must appeal to the widest set of people any set of principles could appeal to. Anyone who doesn’t buy our package wouldn’t buy any package compatible with living among his fellows on terms that they could possibly accept. (from “Universality?” in Chapter 12)

*   *   *

All this has been quite abstract. Let us now see how it works in more nearly real-world terms. One of the contractarians’ favorite real-world types is the philosopher Thomas Hobbes5 In the Hobbesian picture, at least as understood by me, the place to begin is a wild and unruly sort of place known as the “state of nature”. In this state — a highly artificial one, in truth, but we’ll worry about that a little later — there is no morality at all. Nobody acknowledges any restrictions whatever on his or her behavior vis-a-vis others, nobody blames or praises anyone else’s conduct, and it is quite literally everyone for him-or-herself. And what happens there? All sorts of horrible things, in brief. Since there are no rules at all, there are of course no rules against violence, which is freely employed whenever the person employing it thinks it will get him what he wants….

What is important to the argument here is that the cause of this condition is the absence of rules, rules having precisely the character we have attributed to Morality: namely, rules that can override the individual inclinations of any person to the contrary, and rules that are the same for all….

It is important to appreciate just what Hobbes’ argument does and what it does not presuppose about people. It does not, to begin with, presuppose that people are nasty or evil by nature….

Nor does it actually require that their interests are selfish or even strongly self-directed, though Hobbes evidently believed that they would normally be. But what matters is that they have conflicting ends, however the conflict may be engendered….

We now need to bring out a further feature about the sort of conflicts Hobbes is concerned about. From the point of view of each party to the conflict, the “warlike” solution may seem preferable to the “peaceful” one…. [T]here is a problem with mutual arrangements of all sorts, since in such cases, each party gives up something in return for something he wants more; yet given the opportunity, he’d presumably prefer to have both the gains from the deal and also not to have to pay the costs he has undertaken by his promise to pay.
This situation is known as Prisoner’s Dilemma….

Hobbes’ own view is in line with modern theorists: the rational individual will rat in such situations. And Hobbes’ “solution”, as we know, is the Policeman, otherwise known as the “Sovereign”. Gauthier’s solution is to take what many theorists regard as the heroic course of identifying rationality with the disposition to take the cooperative option. The one recommended here may perhaps be classified as intermediate between the two…. (from “Hobbes” in Chapter 12)

*   *   *

The Hobbesian solution may seem all well and good, perhaps. But there are two crucial shortcomings. The first is: how do we get a suitable Enforcer appointed? In our hypothetical state of nature, nobody already has the kind of power needed; that power must be “handed over” by those concerned. But you don’t just “hand over” power: instead, you make an agreement which gives someone the power. Terrific — but that agreement would have to be, genuinely, an agreement – the very sort of thing which can’t be done in the state of nature on Hobbes’ own reasoning. The second is that enforcers are costly. For one thing, they cost money, or the equivalent (in his State of Nature there was, of course, no money), viz., whatever sacrifices A and B have to make in order to make it worth C’s while to be Guardian. (Once C somehow got the power in question, of course, there is the further point that C will surely be inclined to use it to feather his own nest — a small incidental concern, in one sense, but in another, of course, one that has been a or even the main problem with Government, historically as well as theoretically.) (from “The Sovereign” in Chapter 12)

*   *   *

Here enters David Gauthier with his intriguing new solution.7 Gauthier insists that the rational agent, when acquainting himself with the facts of life in the form of Prisoner’s Dilemma (and related problems), will see that he must modify, or perhaps reinterpret, his theory of rationality. The rational man will not Defect in the Prisoner’s Dilemma game. Instead, he will adopt a disposition to cooperate, though not an unconditional disposition to take the cooperative option: he takes that option, provided those with whom he interacts are similarly inclined. This he calls “constrained maximization”, as opposed to the disposition to take the money and run, which he calls “straight” maximization….

Constrained maximizers will do better than defectors, for they will do as well as defectors when interacting with defectors, since their rule is to cooperate only with fellow constrained maximizers, and they will do better than defectors when interacting with constrained maximizers, since the defector’s policy is to defect when interacting with anybody. Gauthier’s argument is that it is therefore rational to adopt the constrained maximization disposition….

Now in the classic, one-shot Prisoner’s Dilemma, it is not true that our move is a response to the other person’s move. We and the other player are moving simultaneously, for instance, or at any rate moving in such a way that neither can know what the other player’s move is until after we have made our own. Real-life models of Prisoner’s Dilemma may be characterized in just that way. To create any real-life Prisoner’s Dilemma, we must take steps, if necessary intentionally rigging the situation so as to ensure that this condition holds. This ensures that our move will not be literally a “response” to the other player’s move. If it is a “response” at all in this literal sense of the term, then what could it be a response to?

It is when we contemplate this question that the force of Gauthier’s position asserts itself. For it seems that the only thing there is to respond to here is the disposition of the other player…. Each can know something about the other, and what they know will be largely information about character, derived of course more or less inductively from observation of past performance in particular cases. (from “Gauthier’s View” in Chapter 12)

*   *   *

Now let’s go back to the State of Nature and ask what to do. There are as yet no rules, and without them, life is miserable for everyone….

What we will do, in fact, is whatever we can to set Morality in motion: a social institution of reinforcing behavior. And which behavior? Plainly, cooperative behavior: that is, behavior which it is advantageous from the point of view of each one of us to have everyone, including ourselves, engaging in. This is the rational thing to do in social situations for a simple reason: it doesn’t cost very much by comparison with having a Sovereign (and anyway, we don’t have one yet — remember? And we can’t until we have enough morality to enable the Agreement to establish the sovereign to be viable), and the advantages of general performance much outweigh the disadvantages imposed by the necessity of having to comply oneself.

Generally speaking, then, the foundation of morality is the interests of those party to it, given the facts of social life. Morality is a set of requirements which will make us all better off if they are met by everyone — and which, accordingly, are liable to the problem of defection by some who will try to take the money and run. For examples, the murderer and the thief, who have been cheerfully collecting the benefits of social cooperation all along, and yet at the judicious moment will take advantage of the good dispositions of those they interact with by depriving them of their lives or property without a by-your-leave. (from “Morality, the Real World, and Prisoner’s Dilemma” in Chapter 12)

*   *   *

Why accept the contractarian view of morals? Because there is no other view that can serve the requirements: namely, of providing reasons to everyone for accepting it, no matter what their personal values or philosophy of life may be, and thus motivating this informal, yet society-wide “institution”. Without resort to any obfuscating intuitions, e.g., of “self-evident rights” and the like, the contractarian view offers an intelligible account both of why it is rational to want a morality and of what, broadly speaking, the essentials of that morality will consist in: namely, those general rules which are universally advantageous to rational agents. We each need morality, first because we are vulnerable to the depredations of others, and second because we can all benefit from cooperation with others. So we need protection, in the form of the ability to rely on our fellows not to engage in activities harmful to us; and we need to be able to rely on those with whom we deal. We each need this regardless of what else we need or want or value. (the introductory paragraph of Chapter 13)

*   *   *

Many philosophers, such as Aquinas and John Locke, have held that there is a “Natural Law”. This idea was not clarified by these philosophers, although that they had fairly explicit ideas about its content. Aquinas, for example, held that natural law (like all law) had to be for the “common good”. And Locke in particular held that the natural law forbids all men to refrain from injuring others in their “life, health, liberty, and possessions”. Their lack of articulation of the concept of natural law, however, has left them short of adherents among contemporary philosophers trained in the analytic tradition. Insofar as they simply appeal to natural law without further explication or defense, they are liable to all of the charges I have laid above to the door of intuitionism in all its forms.

But perhaps further reflection on the Prisoner’s Dilemma and other decision-theoretic problems can assist understanding here. To say that a law is “natural”, to begin with, obviously cannot mean that it is like the law of gravity, governing us independently of our wills. Were the content of Locke’s natural law operative on us in that manner, there would be no need of ethics as we know it. However, this doesn’t preclude a different way in which a “law” could be “natural”. It could, namely, be natural in being acknowledged, recognized, or employed implicitly as a canon of interpersonal criticism of behavior, without articulation, in the normal dealings of people with each other.

Even as so characterized, it is not clear that there is a “natural law”. But we can inject one further element. Locke and Aquinas both insisted that the natural law was “rational”, “apprehended by reason”, or words to that effect. What we can forthrightly say is that there are reasons, reasons that are natural rather than being in their turn artificial constructs, favoring informal reinforcement of certain rules for interpersonal situations. Prisoner’s Dilemma, concentrated on above, gives a beautiful example. Wherever the structure of preferences of the different parties is clear to both parties (and it is not always), we have a basis for a rule of precisely that kind: a natural basis for a moral rule, in fact. The claim that natural morality calls upon us to refrain from the things Locke lists, and more generally that it bids us cooperate in what would otherwise be prisoner’s dilemmas, may be accepted if understood along the lines just explicated. We should expect any groups of persons who were clear about the options which would otherwise render the situation a prisoner’s dilemma situation, and who were capable of communicating effectively with each other, to recognize as an interpersonally authoritative rule that people refrain from the “Defect” strategy, and to recognize this by verbal and other sorts of reinforcement. So understood, we may accept the idea of Natural Law nearly enough. What its relation to political structures may be is, of course, another question, and the main question dealt with in this book.

But it is apropos to note here that the moral factor is potentially substantial. James Buchanan observes that “.. it is essential to incorporate some treatment of the role that ethical precepts play in maintaining social stability. First … if there is no conflict … there is no need for law, as such. By the same token, however, there is no need for ethics … When conflict does emerge, however, .. the value of order suggests either some social contract, some system of formal law, or some generally accepted set of ethical-moral precepts. It is important to recognize that these are alternative means of securing order. To the extent that ethical precepts are widely shared, and influence individual behavior, there is less need for the more formal restrictiveness of legally imposed standards.” (from “The Natural Law” in Chapter 13)

Narveson echoes much what I have said in the posts linked above. So, I find myself in close agreement with Narveson because I find him in close agreement with me. The kind of “contract” that Narveson describes is found in the Golden Rule. This is from “Evolution, Human Nature, and ‘Natural Rights’“:

The Golden Rule represents a social compromise that reconciles the various natural imperatives of human behavior (envy, combativeness, meddlesomeness, etc.). To the extent that negative rights prevail, it is as part and parcel of the “bargain” that is embedded in the Golden Rule; that is, they are honored not because of their innateness in humans but because of their beneficial consequences.

But is that all there is to it? Not at all. This is from “The Golden Rule and the State“:

I call the Golden Rule a natural law because it’s neither a logical construct … nor a state-imposed one. Its long history and widespread observance (if only vestigial) suggest that it embodies an understanding that arises from the similar experiences of human beings across time and place. The resulting behavioral convention, the ethic of reciprocity, arises from observations about the effects of one’s behavior on that of others and mutual agreement (tacit or otherwise) to reciprocate preferred behavior, in the service of self-interest and empathy. That is to say, the convention is a consequence of the observed and anticipated benefits of adhering to it.

The empathic source of the Golden Rule, which is just as important as the self-interested source, is (for me) the key point of Julian Sanchez’s critique of Narveson in “Morality and Its Discontents“:

In effect, [Narveson] wants to reduce morality to prudence, showing that people would have strictly self-interested reasons to constrain their own behavior even if they are not “reasonable” or concerned with the welfare and dignity of others except insofar as those others are able to aid or hinder their self interested pursuits….

…[A]ttempts to reduce morality to prudence generally assume that there’s something metaphysically unproblematic about the idea, not just that people do care about their long-term self-interest (as opposed to just their immediate short-term desires), but that they have reason to, whereas the claim that they have similar reasons to care about or respect the interests of others is some kind of “queer” claim standing in need of special explanation…. Theoretical, moral, and practical reasoning all ultimately depend on foundational axioms that can’t be established without circularity. In logic, it’s the familiar list of axioms and inference rules; in ethics, it’s the basic idea that other people are real, and that their happiness and suffering fundamentally matters in some way, just as much as your own. That all these forms of reasoning “hit bottom” at some point is, admittedly, intellectually unsatisfying. But it’s also a fact we’re stuck with, and trying to dismiss those foundational domain-specific axioms as mere intuition seems less like a road to progress than an attempt to change the subject.

Sanchez’s point — a good one — is that it matters not where empathy comes from. It may be a genetic quirk, or it may be a socialized habit of thought, or it may be both. But it is a fact of life, just as much as self-interest. And it takes both of them — in my view — to account for the morality of the Golden Rule.

That morality, however, leads to a different kind of libertarianism than the one to which most self-styled libertarians seem to subscribe. Returning to “The Golden Rule and the State“:

The Golden Rule can be expanded into two, complementary sub-rules:

  • Do no harm to others, lest they do harm to you.
  • Be kind and charitable to others, and they will be kind and charitable to you.

The first sub-rule — the negative one — is compatible with the idea of negative rights, but it doesn’t demand them. The second sub-rule — the positive one — doesn’t yield positive rights because it’s a counsel to kindness and charity, not a command….

An ardent individualist — particularly an anarcho-capitalist — might insist that social comity can be based on the negative sub-rule, which is represented by the first five items in the “core” list. I doubt it. There’s but a short psychological distance from mean-spiritedness — failing to be kind and charitable — to sociopathy, a preference for harmful acts. Ardent individualists will disagree with me because they view kindness and charity as their business, and no one else’s. They’re right about that, as far as I’m concerned, but I’m talking about proclivities, not rights. But kindness and charity are indispensable to the development of mutual trust among people who live in close proximity, without the protective cover of an external agency (e.g., the state). Without mutual trust, mutual restraint becomes problematic and co-existence becomes a matter of “getting the other guy before he gets you” — a convention that I hereby dub the Radioactive Rule.

Nevertheless, the positive sub-rule, which is represented by the final two items in the “core” list, can be optional for the occasional maverick. An extreme individualist (or introvert or grouch) could be a member in good standing of a society that lives by the Golden Rule. He would be a punctilious practitioner of the negative rule, and would not care that his unwillingness to offer kindness and charity resulted in coldness toward him. Coldness is all he would receive (and want) because, as a punctilious practitioner of the negative rule; his actions wouldn’t necessarily invite harm.

But too many extreme individualists would threaten the delicate balance of self-interested and voluntarily beneficial behavior that’s implied in the Golden Rule. Even if lives and livelihoods did not depend on acts of kindness and charity — and they probably would — mistrust would set it in. And from there, it would be a short distance to the Radioactive Rule.

This, of course, will not do for most libertarians, who want to manufacture a rigid list of negative rights from one of their mysterious sources. It even smacks of moral relativism. But I have answered both objections in “The Golden Rule and the State“:

I call the Golden Rule a natural law because it’s neither a logical construct … nor a state-imposed one. Its long history and widespread observance (if only vestigial) suggest that it embodies an understanding that arises from the similar experiences of human beings across time and place. The resulting behavioral convention, the ethic of reciprocity, arises from observations about the effects of one’s behavior on that of others and mutual agreement (tacit or otherwise) to reciprocate preferred behavior, in the service of self-interest and empathy. That is to say, the convention is a consequence of the observed and anticipated benefits of adhering to it….

Is the Golden Rule susceptible of varying interpretations across groups, and is it therefore a vehicle for moral relativism? I say “yes,” with qualifications. It’s true that groups vary in their conceptions of permissible behavior….

[But] [t]here is … a “core” Golden Rule that comes down to this:

  • Murder is wrong, except in self-defense. (Capital punishment is just that: punishment. It’s also a deterrent to murder. It isn’t “murder,” muddle-headed defenders of baby-murder to the contrary notwithstanding.)
  • Various kinds of unauthorized “taking” are wrong, including theft (outright and through deception). (This explains popular resistance to government “taking,” especially when it’s done on behalf of private parties. The view that it’s all right to borrow money from a bank and not repay it arises from the mistaken beliefs that (a) it’s not tantamount to theft and (b) it harms no one because banks can “afford it.”)
  • Libel and slander are wrong because they are “takings” by word instead of deed.
  • It is wrong to turn spouse against spouse, child against parent, or friend against friend. (And yet, such things are commonly portrayed in books, films, and plays as if they are normal occurrences, often desirable ones. And it seems to me that reality increasingly mimics “art.”)
  • It is right to be pleasant and kind to others, even under provocation, because “a mild answer breaks wrath: but a harsh word stirs up fury” (Proverbs 15:1).
  • Charity is a virtue, but it should begin at home, where the need is most certain and the good deed is most likely to have its intended effect.

But what I am talking about is true libertarianism, not the kind of “leave me alone” libertarianism that one usually encounters on the internet. As I say in “here,” true libertarianism

is really a kind of conservatism, which is why I call it Burkean libertarianism…. [T]he kind of “libertarianism” much in evidence on the internet … rests on the Nirvana fallacy and posits dangerously false ideals.

A “true” libertarian respects socially evolved norms because those norms evidence and sustain the mutual trust, respect, forbearance, and voluntary aid that — taken together — foster willing, peaceful coexistence and beneficially cooperative behavior. And what is liberty but willing peaceful coexistence and beneficially cooperative behavior?

Such are the fruits of morality — on the mortal plane, at least.

Subsidizing the Enemies of Liberty

If there is a professional class that is almost solidly aligned against liberty it is the teachers and administrators who control the ideas that are pumped into the minds of students from kindergarten through graduate school. How are they aligned against liberty? Most of them are leftists, which means that they are statists who are dedicated to the suppression of liberty in favor of current left-wing orthodoxies. These almost always include the coddling of criminals, unrequited love for America’s enemies, redistribution of income and jobs toward less-productive (and non-productive) persons, restrictions on speech, and the destruction of civil society’s bulwarks: religion, marriage, and family.

In any event, spending on education in the United States amounted to $1.1 trillion in 2010,* about 8 percent of GDP.  Most of that $1.1 trillion — $900 billion, in fact — was spent on public elementary and secondary schools and public colleges and universities.* In other words, your tax dollars support the leftists who teach your children and grandchildren to bow at the altar of the state, to placate the enemies of liberty at home and abroad, and to tear down the traditions that have bound people in mutual trust and respect.

So gulled are Americans by the education lobby that voters routinely approve bond issues and elect legislators who promise to spend more on brick-and-mortar, high-tech monuments to educators’ egos. As a result, per-student spending** by public-school systems (K-12) — in constant dollars — was 2.5 times higher in 2010 than in 1970; in public colleges and universities, it was 1.6 times higher. Has education improved that much in 40 years? To ask the question is to answer it.

Key beneficiaries of the rise in per-student spending are education majors. In addition to commanding salaries above what they could earn if the private sector, given their less-than scintillating mental acuity (e.g., table 4 here), they have a lot of time off, good health insurance plans, and generous retirement packages. For all of that, they are sheltered from accountability by union contracts and the education groupies who serve on boards of education — for the prestige, for the connections, and often as a stepping stone to higher office.

But the education majors who populate teaching and administrative jobs in K-12 schools have not been the only beneficiaries of the “demand” for greater per-student spending. Given the ability of most educators and administrators to move between public and private institutions — especially at the university level — the rising “demand” for public education has fueled a kind of educational arms race that has pushed a large segment of the professoriate into the upper reaches of the nation’s income distribution.

And what do tax-paying Americans get for their money? A strong left-wing bias, which is inculcated at universities and spreads throughout public schools (and a lot of private schools). This has been going on, in earnest, since the end of World War II. And, yet, the populace is roughly divided between hard-headed conservatives and squishy-minded “liberals.” The persistence of the divide speaks well for the dominance of nature over nurture. But it does not change the fact that American taxpayers have been subsidizing the enemies of liberty who dominate the so-called education system in this country.
* Estimates from Census Bureau, Statistical Abstract 2012, Table 220. School Expenditures, by Type of Control and Level of Instruction in Constant (2009 to 2010) Dollars.

** Derived from spending estimates given in Table 220 and estimates of number of students given in Table 219. School Enrollment, With Projections.

*   *   *

Related reading: Matthew Vadum, “You Subsidize Leftist Anarchy,” American Thinker, February 19, 2014

Related posts:
Affirmative Action: Two Views from the Academy
What Is the Point of Academic Freedom?
How to Deal with Left-Wing Academic Blather
It’s Not Anti-Intellectualism, Stupid
The Case Against Campus Speech Codes
Lefty Profs
Apropos Academic Freedom and Western Values
Diagnosing the Left
Why So Few Free-Market Economists?
Affirmative Action: Two Views from the Academy, Revisited
Academic Bias
The Higher Education Bubble
Undermining the Free Society
Intellectuals and Capitalism
The Left
“Intellectuals and Society”: A Review
Affirmative Action for Conservatives and Libertarians?
The Public-School Swindle
Is College for Everyone?
Where’s the (Intellectual) Beef?
Politics, Sophistry, and the Academy

Where Were You?

If you are in your mid-fifties or older, you must remember where you were and what you were doing when you learned that JFK had been shot in Dallas.

I have long since repented of my admiration for JFK (e.g., here). But my repentance is irrelevant to this story. The events in Dallas on November 22, 1963, burned into my brain a memory that will remain with me for the rest of my life.

I was in Arlington, Virginia, where I was employed by a defense think-tank. I was seated in the company van that made regular trips to the Pentagon (a few miles away), where members of the think-tank’s staff met often with their clients. The van was being held to await a senior manager. As he entered the van (it must have been shortly after 1:30 p.m. EST) he broke the news that Kennedy had been shot in Dallas. When I arrived at the Pentagon, the TV sets in the Pentagon’s public concourse were tuned to coverage of the shooting. JFK’s death (officially at 2:00 p.m. EST) was announced while I watched the TV coverage.

That bare-bones recitation may seem cold but emotions fade with time, and I have come to see that the emotions that stirred in me 48 years ago were foolish ones. The greatest tragedy of JFK’s passing was LBJ’s succession to the presidency. LBJ’s cynical use of JFK’s memory helped him to unleash policies that have divided America and threaten to bankrupt it.

The Great Recession Is Barely Over … Maybe

UPDATED 12/22/11

The third estimate of real GDP for the third quarter of 2011 (3Q2011) is $15 billion lower than last month’s advance estimate. The annualized rate of $13,331.6 billion (in chained 2005 dollars) is only $5.6 billion above the estimate for the fourth quarter of 2007 (4Q2007), the last pre-recession quarter.

Based on the third estimate, real GDP grew at an annual rate of 0.011 percent — 11/1000 of one percent — between 4Q2007 and 3Q2011. In other words, real GDP in 3Q2011 is the same as it was in 4Q2007. Whether or not the Great Recession has ended is still up in the air and will not be known (possibly) until the release of GDP estimates for 4Q2011.

Related posts:
The Great Recession is Not Over
The Keynesian Fallacy and Regime Uncertainty
Regime Uncertainty and the Great Recession

True Collectivism

State action cannot be collective action because it compels individuals to do things that they would not do collectively, that is, in voluntary cooperation with each other. Matt Ridley says:

Human achievement is entirely a networking phenomenon. It is by putting brains together through the division of labor — through trade and specialisation — that human society stumbled upon a way to raise the living standards, carrying capacity, technological virtuosity and knowledge base of the species.

Ridley gives too little credit to individual action. But even individuals who do great things could not do them without food, shelter, medicine, and the many other things that sustain life. The “great man” may pay for those other things from his own earnings, but he relies on others to produce them. If he were to produce them for himself, his great accomplishments would suffer.

It may be romantic fancy to say that “no man is an island,” but when it comes to secular accomplishment, it is a true saying.

Some Thoughts and Questions about Preemptive War

A reader named Bill K. offered some thoughts and questions about my post, “Preemptive War.” Bill’s offerings are reproduced below (in italics), followed by my responses (in bold).

On the one hand, it bothers me that one could read the UN charter, as you summarize, “to proceed to war only in the case of self defense, and then only until the UN had decided what to do about the situation.” With this in view, though your argument seems strong in demonstrating precedent in our government holding the US Constitution superior to the UN Charter, as a nation, we could find ourselves standing alone against world opinion should we act on what we know and are unwilling to divulge to others.

I am unperturbed by the prospect of “standing alone against world opinion.” I quote from my post, “Liberalism and Sovereignty“:

Americans — as a mostly undifferentiated mass — are disdained and hated by many foreigners (and by many an American “liberal”). The disdain and hatred arise from a variety of imperatives, ranging from pseudo-intellectual snobbery to nationalistic rivalry to anti-Western fanaticism. When those imperative lead to aggression (threatened or actual), that aggression is aimed at all of us: liberal, “liberal,” conservative, libertarian, bellicose, pacifistic, rational, and irrational.

Having grasped that reality, the Framers “did ordain and establish” the Constitution “in Order to . . . provide for the common defence” (among other things). That is to say, the Framers recognized the importance of establishing the United States as a sovereign state for limited and specified purposes, while preserving the sovereignty of its constituent States and their inhabitants for all other purposes.

If Americans do not mutually defend themselves through the sovereign state which was established for that purpose, who will? That is the question which liberals (both true and false) often fail to ask. Instead, they tend to propound internationalism for its own sake. It is a mindless internationalism, one that often disdains America’s sovereignty, and the defense thereof.

Mindless internationalism equates sovereignty with  jingoism, protectionism, militarism, and other deplorable “isms.” It ignores or denies the hard reality that Americans and their legitimate overseas interests are threatened by nationalistic rivalries and anti-Western fanaticism.

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 mindless internationalism is to risk the complete loss of the benefits promised by the Constitution.

Bill K. does not strike me as a “mindless” internationalist, but his worry about “world opinion” plays into the hands of that breed.

*   *   *

On the other hand, it also bothers me that your first summary point, “…to protect Americans’ liberty interests, broadly understood, by preventing a foreign state or entity from acquiring the means by which to attack… or… from deploying…” is a judgment call requiring reasonably accurate knowledge of both capabilities and intentions.As fallen men with imperfect knowledge and judgment, there is the possibility that we might make a mistake in proceeding with preemptive attack.

Mistakes cut both ways. Inaction could be a mistake. In the end, one has to rely on those charged with responsibility for national defense to execute that responsibility prudently. Although the parallel between preemptive war and capital punishment is inexact, I take the same attitude toward both, namely, that it is never a good idea to rule out in advance an option that might prove to be the best one, in certain circumstances.

*   *   *

It would seem to me that should the US preemptively attack Iran, we will face both reactions above – other nations disagreeing with our right to act preemptively, showing disgust in perhaps tangible ways, such as cancellation of treaty & trade agreements, as well as those within our own country who will demand to ‘see the evidence’ and ‘judge for ourselves’, resulting in internal strife, particularly if the preemption started a war requiring sustained effort.

I agree that the possibility of reactions by foreigners that could adversely affect Americans’ interests should be considered and weighed in taking a decision to wage preemptive war. But if the case for preemption is strong, the possibility of internal dissent should not make a difference. War will almost always yield dissent, and it will be vocal. So will a child’s dissent from just punishment be vocal.

*   *   *

[L]ooking at your necessary conditions in bullet points, the ones I have some disagreement with are points #1 & #5:

#1: “Undertaking to harm American’s interests through unilateral actions (e.g., shutting off a major supply of oil)” – Would you agree with me that this would be a necessary condition only if such a shut-off were likely to bring the US military to its knees, fuel-wise? That a substantial rise in the price of fuel would not be sufficient? I’d like to think that the US in such circumstances could well turn to other suppliers as well as develop its own reserves to counteract such a strategy without resorting to preemptive war.

To begin at the end, turning to other suppliers will not reverse a substantial rise in the price of oil, unless those suppliers are able to increase their rate of output dramatically. Further, existing transportation and pipeline systems must be able to accommodate the related geographic shifts in supply, without much delay.

If by “develop … reserves” Bill means that the federal government should buy and hold oil against the possibility of a cutoff, there is already the Strategic Petroleum Reserve. The development and maintenance of that reserve is costly, both in terms of outlays on facilities and their operation but also in terms of the effects of government purchases on the price of oil. It may be prudent to maintain the SPR so that U.S. military operations are not hampered by a sudden reduction in the output of foreign oil. But, for the reasons discussed, the SPR is no boon to the domestic consumers of oil.

If by “develop … reserves” Bill means that the federal government should encourage exploration and production in the United States and its littoral waters, good luck with that. On the one hand we have global-warming alarmists, environmental extremists, the not-in-my-back-yard mentality, the lobbies for the subsidization of “alternative fuels” and “renewable energy,” and their allies in the Democrat Party. On the other hand we have average Americans whose interests will continue to be sacrificed on the altar of sanctimony unless and until the Republican Party of Calvin Coolidge returns to power for a long time.

Returning to the beginning, I cannot agree that “a substantial rise in the price of fuel would not be sufficient” grounds for preemption. The circumstances leading to the substantial rise would indicate whether or not rise is aimed at coercing the U.S. government or severely damaging the American economy. If it seems clear that those responsible for the price rise have one or both aims in mind, then they will have effectively committed an act of war against the U.S. and its citizens. War is war, and it ought to be thought of as such, regardless of the means by which it is conducted. A military strike against the perpetrators might not be the best course of action; as I say in “Preemptive War,” preemption should be a last resort. But to eschew the use of force as a response to economic warfare is to invite it.

*   *   *

#5: “Otherwise engaging in a persistent course of provocative opposition…” Your examples of this behavior, Cuba, NK, USSR, with the exception of Saddam, are all examples that we have lived with and handled by other means (embargo, competitive military spending, foreign base agreements). Saddam was different because he embarked on conquest of an ally. Do you believe that should we decide to preemptively strike Iran, we should do so upon their assembly of a nuclear warhead, and attack NK at the same time? If we were to hold off on NK, given that they have demonstrated a test detonation, why so?

Context is important. What I say in “Preemptive War” is that

preemption is appropriate when several conditions are met. First, it must be clear that the target of preemption is an enemy of the United States. A foreign state or entity can be an enemy without having any immediate or specific plans to attack Americans or their interests. Thus a foreign state or entity can become an enemy by….

  • otherwise engaging in a persistent course of provocative opposition toward the United States, which opposition might consist of pronounced ideological enmity (as in the cases of Cuba and North Korea, for example), supporting efforts by third parties to harm the United States (as was the case with Saddam, doubters to the contrary), or engaging in efforts to harm the United States through economic or diplomatic machinations (as did the USSR during the Cold War).

Such conditions are necessary but not sufficient for preemption.

North Korea, despite its anti-Americanism and provocative behavior, is much less of a threat than Iran is to American interests. If a strike against Iran would stop or significantly delay its development of nuclear weapons, and if all other conditions for preemption were met, I would favor a preemptive strike on relevant Iranian facilities. As a reminder, here are the other (sufficient) conditions that I list in “Preemptive War”:

  • the failure of diplomatic efforts, which may include the United Nations but need not depend on the UN’s course of action (see the later discussion of treaty obligations)
  • the failure of economic sanctions and military threats
  • the likelihood that preemption would not cause a breakdown of diplomatic, military, or economic relations with foreign states, where such relations are important to the well-being of Americans
  • the prospect of a successful preemption, where the costs (in life, limb, and money) are judged to be less than the costs of failing to act
  • an open debate resulting in an authorization by Congress, where events do not require swift and even clandestine actions, which should be taken in accordance with the War Powers Resolution of 1973.

The Contemporary Meaning of the Bill of Rights: Second Amendment

This is the second post in a series about the meaning of the Bill of Rights. The first post (about the First Amendment) gives more background.

The meaning of the Bill of Rights has evolved and shifted with time, not always for the better. What  follows is my version of a workable Second Amendment. The constitutional text is in italics. My version is in bold. It is preceded by a long explanatory note.

The explanatory note and revised amendment are lengthy for two reasons: the original Second Amendment was unduly vague; there are many aspects of the right to bear arms that must be addressed clearly if the essential liberty right is to be upheld.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.


The paramount purpose served by the right to bear arms is the “security of a free State,” which is to say, the security of the people. If the people are denied the right to bear arms, they are denied the right to ensure their own security when the state fails in its duty to ensure that security, or when the state oppresses the people.

With respect to oppression, the American Revolution succeeded against an oppressive regime, despite the support of less than half of the populace. The revolution probably would have failed but for two facts: gun ownership was commonplace in that time, and British troops did not enjoy a marked advantage in the quality of their weapons.

Unlike the state of affairs at the time of the American Revolution, the weaponry and other resources that are now in the hands of the police and armed forces of the United States are vastly superior to any that might be acquired by liberty-loving Americans. Police and armed forces, despite the good that they often do for the people, are — in the end –  like the British soldiers who fought the revolutionaries: servants of the state, beholden to it for their compensation, and fearful of its power and reach. It follows that the police and armed forces of the United States are more likely to serve the state — even when it is oppressive — than to serve liberty. This unspoken menace, coupled with tyranny by a “democratic” majority, has enabled the enforcement of the oppressions that began in earnest with the New Deal.

It follows that the arming of private citizens against the forces of oppression is futile. It is probably dangerous as well, because of the threat posed to public safety by large collections of weapons, many of which would inevitably fall into the hands of criminals and terrorists. The most likely outcome of any attempt to topple America’s entrenched, oppressive regime by force is utter defeat and the killing of many innocents.

But, despite its power, the state cannot defend citizens from criminals everywhere and at all times. A disarmed or ill-armed citizenry is an enticement to criminal activity.. Accordingly, citizens ought to enjoy the right to arm themselves for the purpose of self-defense.The purpose of this narrower but enforceable right is to enable the people to enjoy whatever liberty has been left to them, circumscribed or full.


1. Every person has an absolute right to defend his property, himself, or others around him when he reasonably judges that any or all of them are in imminent danger of being stolen or harmed. Retreat and surrender are options, but are not required.

2. Active means of defense may include physical exertions, maneuvers, or blows, without limitation; objects at hand, without limitation; commercially available defensive devices (mechanical, electrical, or chemical) that are designed to disable temporarily; and firearms. For this purpose, a firearm may be a handgun, shotgun, or rifle, without limitation as to its caliber or bore, the number of rounds that can be loaded into it, or its rate of fire. The particular means of defense are at the defender’s discretion. Harm to another person or persons shall be presumed necessary or unavoidable, unless there is probable cause to suspect otherwise.

3. The sale, transportation, and possession of defensive devices and firearms shall be regulated only as provided in this clause:

a. No one under the age of eighteen may purchase a defensive device or firearm. No one who has been hospitalized or confined because of mental illness nor anyone who has been convicted of a felony may purchase or possess a firearm or defensive device.

b. The Congress of the United States may by law regulate the possession of defensive devices and firearms on the property of the government of the United States, including its installations and facilities on foreign soil. The Congress may also by law regulate the possession of defensive devices and firearms on and within modes of interstate transportation that are used by the general public, including terminal facilities directly involved in interstate transportation. No such regulation shall have the effect of hindering the lawful sale or transportation of defensive devices or firearms.

c. The Congress and the States may by law provide for keeping records of the transportation of defensive devices firerarms on modes of interstate and intrastate transportation, but such record-keeping shall not unreasonably interfere with the movement of defensive devices or firearms.

d. The States may by law regulate the possession of defensive devices and firearms on State property (including the property of political subdivisions), and on or within 100 yards of the grounds and buildings of public or private hospitals and public or private educational institutions, but without interfering with instruction in the use, maintenance, and safe-keeping of defensive devices and firearms. The States may also by law regulate the possession of defensive devices and firearms on and within modes of intrastate transportation that are used by the general public, including terminal facilities directly involved in intrastate transportation. No such regulation shall have the effect of hindering the lawful sale or transportation of defensive devices or firearms.

e. Permits shall not be required for the purchase of defensive devices or firearms of the kind contemplated in this amendment. But vendors shall ascertain promptly the eligibility of purchasers in accordance with Clause 3.a.

f. Except as provided in Clauses 3.b and 3.d, no law or regulation of the United States, any State, or any political subdivision of a State shall have the effect of preventing the lawful possessor of a firearm from keeping it on private property, carrying it in a privately owned vehicle, or carrying a handgun on his person. Nor, except as provided in Clauses 3.b and 3.d, shall any law or regulation of the United States, any State, or any political subdivision of a State have the effect of preventing the lawful possessor of a firearm from keeping the firearm loaded and ready to fire when it is on his private private property, in a privately owned vehicle, or on the possessor’s person.

“An Economist’s Special Pleading: Affirmative Action for the Ugly,” A Footnote

My post of August 30, 2011, “An Economist’s Special Pleading: Affirmative Action for the Ugly,” opens with this:

It’s hard to tell whether economist Dan Hamermesh is pulling our collective leg, or if he’s serious. In either event, here’s a portion of his proposal to instigate affirmative action for the uglies among us (“Ugly? You May Have a Case,” The New York Times, August 27, 2011).

Hamermesh has garnered some publicity for his cause through an appearance on Jon Stewart’s The Daily Show (clip available here).  Hamermesh joins with good humor in the lampooning of his thesis — and his less-than-matinee-idol looks — but he might have done so for the publicity. Whatever the case, enjoy the video clip, read my post of August 30, read Hamermesh’s NYT article, and decide for yourself.

The Contemporary Meaning of the Bill of Rights: First Amendment

UPDATED 11/18/11 and 11/30/11

Although there was, in the early days of the Republic, some misunderstanding about the applicability of the Bill of Rights — whether it bound only the central government or the States as well — that misunderstanding was resolved, finally, by Chief Justice John Marshall, in Barron v. Mayor & City Council of Baltimore (1833). Marshall held that the Bill of Rights applied only to the central government. Marshall’s holding should have been undone by the “privileges and immunities” clause of the Fourteenth Amendment (1868), which was meant to enforce the first eight amendments of the Bill of Rights against the States. (The final two amendments of the Bill of Rights directly address the States and do not require “incorporation.”) That the Supreme Court has nevertheless seen fit to incorporate the Bill of Rights piecemeal and incompletely is a case of judicial error or misfeasance, as you wish.

In any event, the meaning of the Bill of Rights has evolved and shifted with time, not always for the better. What  follows, in this and subsequent posts, is my take on the original meaning of the Bill of Rights, stated in modern language and addressed to contemporary issues. The constitutional text is in italics. My version is in bold. [11/18/11: An addition to the first paragraph of my version is in bold italics.] [11/30/11: A second addition to the first paragraph of my version is in underlined bold italics.]

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

No government of or in the United States may establish an official religion or, by any act, favor a particular religion, sect, or cult. The expression of religious views by a member, officer, employee, or agent of a governmental body, acting as such, is not an establishment of religion. Nor is the verbal or tangible observance of a religious holiday by such persons an establishment of religion, as long as no one is compelled to join the observance. Except to enforce the preceding provisions, no governmental body of or in the United States may interfere with the peaceful observance of religion or with the peaceful expression of religious views, in verbal or tangible form. Nor may any governmental body of or in the United States compel any person or private entity to perform an act that is contrary to the person’s religious beliefs or the beliefs espoused by the private entity, either directly or by threatening or causing the loss or diminution of a person’s employment or a private entity’s patronage, revenues, profits, or existence. Further, no governmental body may compel a minor to attend or participate in a lesson or activity that conflicts with the religious beliefs of the minor and/or his parent(s) or guardian(s); nor shall a minor or his parent(s) or guardian(s) be penalized in any way for a refusal to participate in any such lesson or activity.

“Speech” is the transmission of ideas. The curtailment of “speech” is an affront to liberty and can hinder the people’s betterment. Subversive “speech” that foments or abets treason, insurrection, rebellion, or crime should be dealt with under one of those headings.

Profanity and obscenity are not “speech,” and therefore do not merit protection; ideas can be conveyed without the use of profanity and obscenity. The people, through their State and local governments, may legislate against profanity and obscenity, and the interstate transmission of profanity and obscenity shall be regulated by the laws of the jurisdictions whose citizens are recipients of a transmission, by any medium. The role of the central government in such matters shall be restricted to the judicial determination of the reasonableness of any restriction on the transmission of profanity and obscenity.

“Speech” may not be barred, regulated, or penalized merely because it might be or is deemed objectionable by other persons or category of persons. This provision applies not only to governments of and in the United States but also to institutions of learning that operate under the aegis of such governments.

The emissions of the press, in whatever medium, are merely an aspect of “speech.” The press enjoys no special rights  of “speech” over and above those enjoyed by the people at large.

Prior restraint of “speech,” regardless of its source, is potentially dangerous to liberty and should not be undertaken lightly. But — given due process of law — such restraint may be exercised by a government of or in the United States for the purpose of preventing a particular act of treason, insurrection, or rebellion, or a crime that would take place absent the restraint.

No government of or in the United States may bar, disrupt, or dissolve any peaceful assembly on private property, as long as the owner of the property assents to the assembly. If the owner does not assent, the government with jurisdiction shall enforce the owner’s property rights. An assembly on public property is deemed not peaceful if causes or contributes to a breakdown of public order,  or if it prevents the use of that property for its intended purposes. In any event, no government shall allow an assembly on public property to continue for more than 24 hours if it requires the government to incur expenses over and above a normal amount, unless financial responsible parties assure the reimbursement of such expenses. A government shall bar, disrupt, or dissolve any assembly within its jurisdiction if it is not peaceful or if there is a reasonable expectation that reimbursement, if required, will not be made.

*   *   *

The final paragraph might seem unduly restrictive, but in this age of instant communication and intellectual “flash mobs,” public demonstrations are not much more than ego-trips that impose costs and inconveniences on hard-working taxpayers.

To be continued…

Related posts: IV. The Constitution: Original Meaning, Subversion, and Restoration, at “Favorite Posts

Scientism, Evolution, and the Meaning of Life

Scientism is “the uncritical application of scientific or quasi-scientific methods to inappropriate fields of study or investigation.” When scientists proclaim truths outside the realm of their expertise, they are guilty of practicing scientism. Two notable scientistic scientists, of whom I have written several times (e.g., here and here), are Richard Dawkins and Peter Singer. It is unsurprising that Dawkins and Singer are practitioners of scientism. Both are strident atheists, and a strident atheists, as I have said,  “merely practice a ‘religion’ of their own. They have neither logic nor science nor evidence on their side — and eons of belief against them.”

Dawkins, Singer, and many other scientistic atheists share an especially “religious” view of evolution. In brief, they seem to believe that evolution rules out God. Evolution rules out nothing. Evolution may be true in outline but it does not bear close inspection. On that point, I turn to the late David Stove, a noted Australian philosopher and atheist. This is from his essay, “So You Think You Are a Darwinian?“:

Of course most educated people now are Darwinians, in the sense that they believe our species to have originated, not in a creative act of the Divine Will, but by evolution from other animals. But believing that proposition is not enough to make someone a Darwinian. It had been believed, as may be learnt from any history of biology, by very many people long before Darwinism, or Darwin, was born.

What is needed to make someone an adherent of a certain school of thought is belief in all or most of the propositions which are peculiar to that school, and are believed either by all of its adherents, or at least by the more thoroughgoing ones. In any large school of thought, there is always a minority who adhere more exclusively than most to the characteristic beliefs of the school: they are the ‘purists’ or ‘ultras’ of that school. What is needed and sufficient, then, to make a person a Darwinian, is belief in all or most of the propositions which are peculiar to Darwinians, and believed either by all of them, or at least by ultra-Darwinians.

I give below ten propositions which are all Darwinian beliefs in the sense just specified. Each of them is obviously false: either a direct falsity about our species or, where the proposition is a general one, obviously false in the case of our species, at least. Some of the ten propositions are quotations; all the others are paraphrases. The quotations are all from authors who are so well-known, at least in Darwinian circles, as spokesmen for Darwinism or ultra-Darwinism, that their names alone will be sufficient evidence that the proposition is a Darwinian one. Where the proposition is a paraphrase, I give quotations or other information which will, I think, suffice to establish its Darwinian credentials.

My ten propositions are nearly in reverse historical order. Thus, I start from the present day, and from the inferno-scene – like something by Hieronymus Bosch – which the ‘selfish gene’ theory makes of all life. Then I go back a bit to some of the falsities which, beginning in the 1960s, were contributed to Darwinism by the theory of ‘inclusive fitness’. And finally I get back to some of the falsities, more pedestrian though no less obvious, of the Darwinism of the 19th or early-20th century.

1. The truth is, ‘the total prostitution of all animal life, including Man and all his airs and graces, to the blind purposiveness of these minute virus-like substances’, genes.

This is a thumbnail-sketch, and an accurate one, of the contents of The Selfish Gene (1976) by Richard Dawkins….

2 ‘…it is, after all, to [a mother’s] advantage that her child should be adopted’ by another woman….

This quotation is from Dawkins’ The Selfish Gene, p. 110.

Obviously false though this proposition is, from the point of view of Darwinism it is well-founded

3. All communication is ‘manipulation of signal-receiver by signal-sender.’

This profound communication, though it might easily have come from any used-car salesman reflecting on life, was actually sent by Dawkins, (in The Extended Phenotype, (1982), p. 57), to the readers whom he was at that point engaged in manipulating….

9. The more privileged people are the more prolific: if one class in a society is less exposed than another to the misery due to food-shortage, disease, and war, then the members of the more fortunate class will have (on the average) more children than the members of the other class.

That this proposition is false, or rather, is the exact reverse of the truth, is not just obvious. It is notorious, and even proverbial….

10. If variations which are useful to their possessors in the struggle for life ‘do occur, can we doubt (remembering that many more individuals are born than can possibly survive), that individuals having any advantage, however slight, over others, would have the best chance of surviving and of procreating their kind? On the other hand, we may feel sure that any variation in the least degree injurious would be rigidly destroyed.’

This is from The Origin of Species, pp. 80-81. Exactly the same words occur in all the editions….

Since this passage expresses the essential idea of natural selection, no further evidence is needed to show that proposition 10 is a Darwinian one. But is it true? In particular, may we really feel sure that every attribute in the least degree injurious to its possessors would be rigidly destroyed by natural selection?

On the contrary, the proposition is (saving Darwin’s reverence) ridiculous. Any educated person can easily think of a hundred characteristics, commonly occurring in our species, which are not only ‘in the least degree’ injurious to their possessors, but seriously or even extremely injurious to them, which have not been ‘rigidly destroyed’, and concerning which there is not the smallest evidence that they are in the process of being destroyed. Here are ten such characteristics, without even going past the first letter of the alphabet. Abortion; adoption; fondness for alcohol; altruism; anal intercourse; respect for ancestors; susceptibility to aneurism; the love of animals; the importance attached to art; asceticism, whether sexual, dietary, or whatever.

Each of these characteristics tends, more or less strongly, to shorten our lives, or to lessen the number of children we have, or both. All of them are of extreme antiquity. Some of them are probably older than our species itself. Adoption, for example is practised by some species of chimpanzees: another adult female taking over the care of a baby whose mother has died. Why has not this ancient and gross ‘biological error’ been rigidly destroyed?…

The cream of the jest, concerning proposition 10, is that Darwinians themselves do not really believe it. Ask a Darwinian whether he actually believes that the fondness for alcoholic drinks is being destroyed now, or that abortion is, or adoption – and watch his face. Well, of course he does not believe it! Why would he? There is not a particle of evidence in its favour, and there is a great mountain of evidence against it. Absolutely the only thing it has in its favour is that Darwinism says it must be so. But (as Descartes said in another connection) ‘this reasoning cannot be presented to infidels, who might consider that it proceeded in a circle’.

What becomes, then, of the terrifying giant named Natural Selection, which can never sleep, can never fail to detect an attribute which is, even in the least degree, injurious to its possessors in the struggle for life, and can never fail to punish such an attribute with rigid destruction? Why, just that, like so much else in Darwinism, it is an obvious fairytale, at least as far as our species is concerned.

A science cannot be wrong in so many important ways and yet be taken seriously as a God-substitute.

Frederick Turner has this to say in “Darwin and Design: The Evolution of a Flawed Debate“:

Does the theory of evolution make God unnecessary to the very existence of the world?…

The polemical evolutionists are right about the truth of evolution. But the rightness of their cause has been deeply compromised by their own version of the creationists’ sin. The evolutionists’ sin, as I see it, is even greater, because it is three sins rolled into one….

The third sin is … dishonesty. In many cases it is clear that the beautiful and hard-won theory of evolution, now proved beyond reasonable doubt, is being cynically used by some — who do not much care about it as such — to support an ulterior purpose: a program of atheist indoctrination, and an assault on the moral and spiritual goals of religion. A truth used for unworthy purposes is quite as bad as a lie used for ends believed to be worthy. If religion can be undermined in the hearts and minds of the people, then the only authority left will be the state, and, not coincidentally, the state’s well-paid academic, legal, therapeutic and caring professions. If creationists cannot be trusted to give a fair hearing to evidence and logic because of their prior commitment to religious doctrine, some evolutionary partisans cannot be trusted because they would use a general social acceptance of the truth of evolution as a way to set in place a system of helpless moral license in the population and an intellectual elite to take care of them.

And that is my issue, not only with the likes of Dawkins and Singer but also with any so-called scientist who believes that evolution — or, more broadly, scientific knowledge — somehow justifies atheism.

Science is only about the knowable, and much of life’s meaning lies where science cannot reach. Maverick Philosopher puts it this way in “Why Science Will Never Put Religion Out of Business“:

We suffer from a lack of existential meaning, a meaning that we cannot supply from our own resources since any subjective acts of meaning-positing are themselves (objectively) meaningless….

…[T]he salvation religion promises is not to be understood in some crass physical sense the way the typical superficial and benighted atheist-materialist would take it but as salvation from meaninglessness, anomie, spiritual desolation, Unheimlichkeit, existential insecurity, Angst, ignorance and delusion, false value-prioritizations, moral corruption irremediable by any human effort, failure to live up to ideals, the vanity and transience of our lives, meaningless sufferings and cravings and attachments, the ultimate pointlessness of all efforts at moral and intellectual improvement in the face of death . . . .

…[I]t is self-evident that there are no technological solutions to moral evil, moral ignorance, and the apparent absurdity of life.  Is a longer life a morally better life?  Can mere longevity confer meaning?The notion that present or future science can solve the problems that religion addresses is utterly chimerical.

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
Existence and Creation
Probability, Existence, and Creation
The Atheism of the Gaps
Demystifying Science

The Libertarian-Conservative Fusion Is Alive and Well

The evidentiary trail begins with Daniel B. Klein‘s “I Was Wrong, and So Are You” (Atlantic Magazine, December 2011). The article’s teaser proclaims: “A libertarian economist retracts a swipe at the left—after discovering that our political leanings leave us more biased than we think.” Perhaps.

In any event, here is some of what Klein has to say in the Atlantic piece:

Back in June 2010, I published a Wall Street Journal op-ed arguing that the American left was unenlightened, by and large, as to economic matters. Responding to a set of survey questions that tested people’s real-world understanding of basic economic principles, self-identified progressives and liberals did much worse than conservatives and libertarians, I reported. To sharpen the ax, The Journal titled the piece “Are You Smarter Than a Fifth Grader?”—the implication being that people on the left were not….

The Wall Street Journal piece was based on an article that Zeljka Buturovic and I had published in Econ Journal Watch, a journal that I edit….

But one year later, in May 2011, Buturovic and I published a new scholarly article reporting on a new survey. It turned out that I needed to retract the conclusions I’d trumpeted in The Wall Street Journal. The new results invalidated our original result: under the right circumstances, conservatives and libertarians were as likely as anyone on the left to give wrong answers to economic questions….

Writing up these results was, for me, a gloomy task—I expected critics to gloat and point fingers. In May, we published another paper in Econ Journal Watch, saying in the title that the new results “Vitiate Prior Evidence of the Left Being Worse.” More than 30 percent of my libertarian compatriots (and more than 40 percent of conservatives), for instance, disagreed with the statement “A dollar means more to a poor person than it does to a rich person”—c’mon, people!—versus just 4 percent among progressives. Seventy-eight percent of libertarians believed gun-control laws fail to reduce people’s access to guns. Overall, on the nine new items, the respondents on the left did much better than the conservatives and libertarians. Some of the new questions challenge (or falsely reassure) conservative and not libertarian positions, and vice versa. Consistently, the more a statement challenged a group’s position, the worse the group did.

The articles to which Klein refers are “Economic Enlightenment in Relation to College-going, Ideology, and Other Variables: A Zogby Survey of Americans” and “Economic Enlightenment Revisited: New Results Again Find Little Relationship Between Education and Economic Enlightenment but Vitiate Prior Evidence of the Left Being Worse.” (Those links lead to abstracts and links to the full text of each article, in .pdf format.) Both papers explain how answers were scored and how respondents identified their political leanings. The choices offered were progressive, liberal, moderate, conservative, very conservative, and libertarian.

The questions asked are listed below (in italics), with the “unenlightened” (or “incorrect”) answers in parentheses. My comments (in bold) are followed by the correct answers, from an enlightened libertarian perspective.

1. Restrictions on housing development make housing less affordable. (Unenlightened: Disagree)

Disagreement suggests a refusal to acknowledge reality and/or a preference for arrogantly imposing one’s aesthetic views on others. The enlightened answer is “agree.”

2. Mandatory licensing of professional services increases the prices of those services. (Unenlightened: Disagree)

Disagreement suggests a refusal to acknowledge reality and/or a strong streak of paternalistic arrogance. The enlightened answer is “agree.”

3. Overall, the standard of living is better today than it was 30 years ago. (Unenlightened: Disagree)

Disagreement suggests a refusal to acknowledge reality or indoctrination in the standard leftist view that most people are doing worse than they used to, which (in the left-wing view) justifies redistribution of income. The enlightened answer is “agree.”

4. Rent-control laws lead to housing shortages. (Unenlightened: Disagree)

Disagreement suggests a refusal to acknowledge reality and/or a value judgment that lower rents are preferable to more and better housing. The enlightened answer is “agree.”

5. A company that has the largest market share is a monopoly.  (Unenlightened: Agree)

Agreement suggests a presumption that “largest market share” means dominance of a market, and is grounds for government action. The enlightened answer is “disagree.”

6. Third-world workers working overseas for American companies are being exploited. (Unenlightened: Agree)

Agreement suggests a value judgement that third-world workers would be better off doing whatever it is they did before the arrival of American companies, even though they probably choose to work for American companies because it makes them better off. Agreement is driven by the knee-jerk left-wing disposition to favor “victims.” The unenlightened answer is “agree.”

7. Free trade leads to unemployment. (Unenlightened: Agree)

Free trade can lead to unemployment in certain industries and areas, at least temporarily, but not in the long run (unless welfare programs discourage job-seeking and relocation). And free trade benefits American consumers. Agreement indicates an unwillingness to concede that change is always in the air, and that the effects of international trade are no different in kind than the effects of changes in patterns of domestic trade. Agreement is driven by the knee-jerk left-wing disposition to favor “victims.” The enlightened answer is “disagree.”

8. Minimum wage laws raise unemployment. (Unenlightened: Disagree)

Disagreement suggests a refusal to acknowledge reality and/or a value judgment that higher wages for some offsets the loss of employment by others. (This is a typically arrogant left-wing view of the world, in keeping with left-wing positions on most of the preceding questions.) The unenlightened answer is “disagree.”

9. A dollar means more to a poor person than it does to a rich person. (Unenlightened: Disagree)

This, the first of the “new” questions is truly ambiguous and requires a judgment that no one is entitled to make. Does a dollar “mean more” in relative or absolute terms? And how can anyone know what a dollar “means” to someone else? As it happens, the marginal utility of a dollar need not decline. An additional dollar represents an opportunity to buy something new and different or add to one’s store of wealth. In the latter case, more is preferable to less over a very large range of additional dollars. The enlightened answer is “disagree.”

10. Making abortion illegal would increase the number of black-market abortions. (Unenlightened: Disagree)

This is almost certainly a true statement. Those who disagree with it make two implicit judgments: (1) Abortion is a moral abomination because it ends an innocent life and (2) the net effect of making abortion illegal would be to reduce the number of abortions. Disagreement is therefore rational. Disagreement signals a superior moral stance; the enlightened answer is “disagree.”

11. Legalizing drugs would give more wealth and power to street gangs and organized crime. (Unenlightened: Agree)

I must quote myself:

The legalization of drugs will make them affordable only by those persons who can afford to pay the inevitably inflated prices that will result from government licensing of vendors, restrictions on the number and location of vendors, and restrictions on the amount of drugs an individual may purchase in a given period. (Regulation and paternalism go hand in hand.)….

…[G]overnment restrictions would open the door to a black market, operated by the usual suspects. In the meantime, drug-users would continue to expose themselves to the same inhibition-loosing effects, and many of them would still resort to crime to underwrite their drug intake.

Legalization is a paper panacea. Agreement with the proposition indicates a healthy grasp of reality. The enlightened answer (with respect to the real issue) is “agree.”

12. Drug prohibition fails to reduce people’s access to drugs. (Unenlightened: Agree)

Those who agree with this statement probably make two implicit judgments: (1) Drug use has untoward social consequences (e.g., impoverishment of families and crime) and (2) the net effect of making it illegal would be to reduce the incidence of those consequences. Opposition to drug use is therefore rational. The unenlightened answer (with respect to the real issue) is “disagree.”

13. Gun-control laws fail to reduce people’s access to guns. (Unenlightened: Agree)

This is almost certainly a false statement. But those who agree with it are making the rational judgment that gun-control laws of the strict (confiscatory) kind favored by the left will do little or nothing to disarm criminals, while leaving law-abiding citizens without guns. The enlightened answer (with respect to the real issue) is “agree.”

14. By participating in the marketplace in the United States, immigrants reduce the economic well-being of American citizens. (Unenlightened: Agree)

“Immigrants” these days are mainly illegal ones. Leftists don’t care about that because anything that sticks it to “the man” is good, in their adolescent-rebellion worldview. Nor do they care much about the cost of subsidizing the housing, health-care, and education of illegal immigrants — and those costs probably nullify the gains from lower labor costs that accrue to well-to-do leftists who employ nannies, yard men, and other types of unskilled labor. The enlightened answer is “agree.”

15. When a country goes to war its citizens experience an improvement in economic well-being. (Unenlightened: Agree)

Agreement with this statement reflects  the myth that World War II rescued America from the Great Depression. It did, but not because the war brought with it full employment of labor; the war also brought widespread rationing, so that resources could be diverted to the war effort. The war ended the Great Depression indirectly, in two, related ways. There was a “saving glut,” which generated demand for products and services once the war had ended. And businesses were ready and willing to respond to that demand because the war and FDR’s death brought a (temporary) end to the anti-business, anti-growth policies of the New Deal. The enlightened answer is “disagree” because wars consume resources and usually don’t have the  after-effects of WWII.

16. When two people complete a voluntary transaction, they both necessarily come away better off. (Unenlightened: Agree)

Both parties to a voluntary transaction believe that it will make them better off, and they will be right in most cases. The “correct” answer (“disagree”) hinges on “necessarily” and plays into the leftist view of voluntary transactions between individuals and businesses, where businesses are seen (by leftists) as exploiters. “Agree” is the correct answer with respect to the expectations and motives that drive voluntary exchange; “disagree” is favored by those who wish to discredit voluntary exchange and replace it with paternalistic regulation. The enlightened answer is “agree.”

17. When two people complete a voluntary transaction, it is necessarily the case that everyone else is unaffected by their transaction (Unenlightened: Agree)

Here, again, we find the qualifier “necessarily.” As with question 16, it serves to deflect attention from the normal course of events to the outliers that (in the minds of leftists) justify government action. For if anyone is affected (or even offended) in the slightest by a voluntary transaction, the “externality” thus created is grounds from some kind of government action, in the left-wing view of the world. The importance and negative effects of externalities are vastly overrated. The enlightened answer is “agree.”

My interpretations are deliberately provocative. But my point is that, the 17-question survey can be seen as a libertarian Rorschach test. An enlightened libertarian would see through the questions, as stated, to the deeper issues and give what I call enlightened answers.

I used the enlightened answers to compare the positions of self-described leftists, conservatives, and libertarians with each other and with the positions that an enlightened libertarian would take. The next two paragraphs describe my method.

In tables 1 and 2 of “Economic Enlightenment Revisited,” Buturovic and Klein (B & V) give, for each question, the percentage of respondents offering answers that are “incorrect” (in their view), overall and by ideological category. I used the values given in tables 1 and 2 to obtain weighted percentages of “incorrect” answers for “leftist” participants, that is, persons who self-identified as progressive and liberal. Similarly, I obtained weighted percentages of “incorrect” for “conservative” participants, that is, persons who self-identified as conservative and very conservative. I took the percentages for self-identified libertarians straight from the tables.

I then had to account for the fact that an enlightened libertarian would have answered eight questions (9, 10, 11, 12, 13, 14, 16, and 17) “incorrectly,” according to B & V. For example, 30.5 percent of self-described libertarians answered question 9 “incorrectly.” But B & V’s “incorrect” answer is, in fact, the correct one from the standpoint of an enlightened libertarian; therefore, 100 – 30.5 = 69.5 percent of libertarians answered question 9 incorrectly. I made similar adjustments for all eight of the wrongly graded questions, and did so for leftists and conservatives as well as libertarians.

Without further ado, here is a question-by-question comparison of the three ideological categories with respect to the answers that an enlightened libertarian would give:

This leads to two observations:

1. Persons responding to the survey who self-describe as leftists did better than self-described conservatives and libertarians on only two questions: 12 and 15. To put it another way, libertarians and conservatives generally come closer than leftists to enlightened libertarian positions.

2. More significantly, it is obvious that self-described libertarians and conservatives are closely aligned on 14 of the 17 questions. Further, that would be true even if I were to accept B & V’s version of the “correct” answers.

Klein’s retraction is misguided. Many of the answers that he considers correct are, in fact, consistent with the wrong-headed views of extreme libertarians — a vocal but unrepresentative minority of libertarians.

The survey results evidently reflect the views of sensible libertarians, who understand that true libertarianism is found in traditionalist conservatism. The closeness of their positions to those of conservatives is heartening evidence of a de facto libertarian-conservative fusion.

Preemptive War and Iran

My post, “Preemptive War,” is mainly a general argument for preemption, where American’s vital interests are at stake. But it was prompted by ” the imminent acquisition by Iran of material with which to produce nuclear weapons.”

The authors of “Why Obama Should Take Out Iran’s Nuclear Program” (Foreign Affairs, November 9, 2011) see the wisdom of preemption:

The November 8 International Atomic Energy Agency (IAEA) report casts further doubt on Iran’s continual claims that its nuclear program is intended solely for peaceful use….

…[T]he Obama administration has downplayed the findings of the new IAEA report, suggesting that a change in U.S. policy is unlikely. Yet this view underestimates the challenges that the United States would confront once Iran acquired nuclear weapons.

For example, the Obama administration should not discount the possibility of an Israeli-Iranian nuclear conflict….

Beyond regional nuclear war, Tehran’s acquisition of these weapons could be a catalyst for additional proliferation throughout the Middle East and beyond….

…Iran’s rivals for regional dominance, such as Turkey, Egypt, and Saudi Arabia, might seek their own nuclear devices to counterbalance Tehran. The road to acquiring nuclear weapons is generally a long and difficult one, but these nations might have shortcuts. Riyadh, for example, could exploit its close ties to Islamabad — which has a history of illicit proliferation and a rapidly expanding nuclear arsenal — to become a nuclear power almost overnight….

The closer Iran gets to acquiring nuclear weapons, the fewer options will be available to stop its progress. At the same time, Iran’s incentives to back down will only decrease as it approaches the nuclear threshold. Given these trends, the United States faces the difficult decision of using military force soon to prevent Iran from going nuclear, or living with a nuclear Iran and the regional fallout.

But the Obama administration — more accurately, Barack Obama — seems committed to a perverse foreign policy in the Middle East. This is from “Panetta Assures Iran It Has Little to Worry About” (Commentary, November 11, 2011):

If the leaders of the Iranian regime were worried about Jeffrey Goldberg’s prediction that Barack Obama would confound the world and launch a U.S. military strike designed to save Israel from nuclear destruction, they can now calm down. Secretary of Defense Leon Panetta made it crystal clear at a Pentagon news conference yesterday he has no intention of supporting an American attack on Iran’s nuclear facilities….

…But by publicly throwing cold water on the idea the United States is ready and able to militarily squash Iran’s nuclear ambitions, Panetta has sent a dangerous signal to Tehran that the Pentagon intends to veto any use of force against them. Combined with Russia’s pledge to block any further sanctions on Iran, the statement should leave the Khameini/Ahmadinejad regime feeling entirely secure as they push ahead to the moment when they can announce their first successful nuclear test.

This — combined with Obama’s dubious support of Israel, his unseemly withdrawal from Iraq, and his reluctant and easily reversed decision to “surge” in Afghanistan — confirms Obama’s position as the Jimmy Carter of the 21st century. Where is the next Ronald Reagan when we need him?

The “loss” of the Middle East and its relatively cheap oil would be a disaster for America’s economy. Further, it would leave an opening for an ambitious and increasingly powerful China.

Does Obama care about such things? Evidently not. He is too busy trying to remake the U.S. in the image of Europe: defenseless, bankrupt, and hostage to enviro-nuts.

See also “Some Thoughts and Questions about Preemptive War.”

Analysis for Government Decision-Making: Demi-Science, Hemi-Demi-Science, and Sophistry

Taking a “hard science” like classical mechanics as an epitome of science and, say, mechanical engineering, as a rigorous application of it, one travels a goodly conceptual distance before arriving at operations research (OR). Philip M. Morse and George E. Kimball, pioneers of OR in World War II, put it this way:

[S]uccessful application of operations research usually results in improvements by factors of 3 or 10 or more…. In our first study of any operation we are looking for these large factors of possible improvement…. They can be discovered if the [variables] are given only one significant figure,…any greater accuracy simply adds unessential detail.

One might term this type of thinking “hemibel thinking.” A bel is defined as a unit in a logarithmic scale corresponding to a factor of 10. Consequently a hemibel corresponds to a factor of the square root of 10, or approximately 3. (Philip M. Morse and George E. Kimball, Methods of Operations Research, originally published as Operations Evaluation Group Report 54, 1946, p. 38)

This is science-speak for the following proposition: Where there is much variability in the particular circumstances of combat, there is much uncertainty about the contributions of various factors (human, mechanical, and meteorological) the the outcome of combat. It is therefore difficult to assign precise numerical values to the various factors.

OR, even in wartime, is therefore, and at best, a demi-science. From there, we descend to cost-effectiveness analysis and its constituent branches: techniques for designing and estimating the costs of systems that do not yet exist and the effectiveness of such systems in combat. These methods, taken separately and together, are (to coin a term) hemi-demi-scientific — a fact that the application of “rigorous” mathematical and statistical techniques cannot alter.

There is no need to elaborate on the wild inaccuracy of estimates about the costs and physical performance of government-owned and operated systems, whether they are intended for military or civilian use. The gross errors of estimation have been amply documented in the public press for decades.

What is less well known is the difficulty of predicting the performance of systems — especially combat systems — years before they are commanded, operated, and maintained by human beings, under conditions that are likely to be far different than those envisioned when the systems were first proposed. A paper that I wrote thirty years ago gives my view of the great uncertainty that surrounds estimates of the effectiveness of systems that have yet to be developed, or built, or used in combat:

Aside from a natural urge for certainty, faith in quantitative models of warfare springs from the experience of World War II, when they seemed to lead to more effective tactics and equipment. But the foundation of this success was not the quantitative methods themselves. Rather, it was the fact that the methods were applied in wartime. Morse and Kimball put it well:

Operations research done separately from an administrator in charge of operations becomes an empty exercise. To be valuable it must be toughened by the repeated impact of hard operational facts and pressing day-by-day demands, and its scale of values must be repeatedly tested in the acid of use. Otherwise it may be philosophy, but it is hardly science. [Methods of Operations Research, p. 10]

Contrast this attitude with the attempts of analysts … to evaluate weapons, forces, and strategies with abstract models of combat. However elegant and internally consistent the models, they have remained as untested and untestable as the postulates of theology.

There is, of course, no valid test to apply to a warfare model. In peacetime, there is no enemy; in wartime, the enemy’s actions cannot be controlled. Morse and Kimball, accordingly, urge “hemibel thinking”:

Having obtained the constants of the operations under study… we compare the value of the constants obtained in actual operations with the optimum theoretical value, if this can be computed. If the actual value is within a hemibel (…a factor of 3) of the theoretical value, then it is extremely unlikely that any improvement in the details of the operation will result in significant improvement. [When] there is a wide gap between the actual and theoretical results … a hint as to the possible means of improvement can usually be obtained by a crude sorting of the operational data to see whether changes in personnel, equipment, or tactics produce a significant change in the constants. [Ibid., p. 38]


Much as we would like to fold the many different parameters of a weapon, a force, or a strategy into a single number, we can not. An analyst’s notion of which variables matter and how they interact is no substitute for data. Such data as exist, of course, represent observations of discrete events — usually peacetime events. It remains for the analyst to calibrate the observations, but without a benchmark to go by. Calibration by past battles is a method of reconstruction –of cutting one of several coats to fit a single form — but not a method of validation. Lacking pertinent data, an analyst is likely to resort to models of great complexity. Thus, if useful estimates of detection probabilities are unavailable, the detection process is modeled; if estimates of the outcomes of dogfights are unavailable, aerial combat is reduced to minutiae. Spurious accuracy replaces obvious inaccuracy; untestable hypotheses and unchecked calibrations multiply apace. Yet the analyst claims relative if not absolute accuracy, certifying that he has identified, measured, and properly linked, a priori, the parameters that differentiate weapons, forces, and strategies….

Should we really attach little significance to differences of less than a hemibel? Consider a five-parameter model, involving the conditional probabilities of detecting, shooting at, hitting, and killing an opponent — and surviving, in the first place, to do any of these things. Such a model might easily yield a cumulative error of a hemibel, given a twenty-five percent error in each parameter. My intuition is that one would be lucky if relative errors in the probabilities assigned to alternative weapons and forces were as low as twenty-five percent.

The further that one travels from an empirical question, such as the likely effectiveness of an extant weapon system under specific, quantifiable conditions, the more likely one is to encounter the kind of sophistry known as policy analysis. It is in this kind of analysis that one  — more often than not — encounters in the context of broad policy issues (e.g., government policy toward health care, energy, or defense spending). Such analysis is constructed so that it favors the prejudices of the analyst or his client, or support the client’s political case for a certain policy.

Policy analysis often seems credible, especially on first hearing or reading it. But, on inspection, it is usually found to have at least two of these characteristics:

  • It stipulates or quickly arrives at a preferred policy, then marshals facts, calculations, and opinions that are selected because they support the preferred policy.
  • If it offers and assesses alternative policies, they are not placed on an equal footing with the preferred policy. They are, for example, assessed against criteria that favor the preferred policy, while other criteria (which might be important ones) are ignored or given short shrift.
  • It is wrapped in breathless prose, dripping with words and phrases like “aggressive action,”grave consequences,” and “sense of urgency.”

No discipline or quantitative method is rigorous enough to redeem policy analysis, but two disciplines are especially suited to it: political “science” and macroeconomics. Both are couched in the language of real science, but both lend themselves perfectly to the old adage: garbage in, garbage out.

Do I mean to suggest that broad policy issues should not be addressed as analytically as possible? Not at all. What I mean to suggest is that because such issues cannot be illuminated with scientific rigor, they are especially fertile ground for sophists with preconceived positions.

In that respect, the model of cost-effectiveness analysis, with all of its limitations, is to be emulated. Put simply, it is to state a clear objective in a way that does not drive the answer; reveal the assumptions underlying the analysis; state the relevant variables (factors influencing the attainment of the objective); disclose fully the data, the sources of data, and analytic methods; and explore openly and candidly the effects of variations in key assumptions and critical variables.

A Declaration and Defense of My Prejudices about Governance

I am a pro-defense, conservative libertarian.

By conservative libertarian, I mean that I am a libertarian who understands that liberty depends on the preservation of the traditional institutions of civil society (e.g., marriage, religion, voluntary charity) because it is those institutions that make possible mutual trust, respect, and forbearance. And it is those things that enable a people to coexist peacefully and cooperatively, to their mutual benefit. It is those things — not the statutes, ordinances, codes, and regulations that may be overlaid on them — which constitute the rule of law. Without the rule of law, liberty and the enjoyment of its fruits is impossible.

The alternatives to a robust civil society are chaos, from which warlordism springs, and the police state. Police and courts are a necessary evil, because bad things happen, even where civil society is strong. But, as civil society is weakened by the intrusions of government, police and courts become more necessary because dependence on police and courts to maintain the rule of law further weakens civil society, which leads to the need for even more intrusion by police and courts, and so on, toward the dark night of oppression.

In any event, I part company with those libertarians who believe that private agencies can and should perform the functions of police forces and courts. Private agencies, each acting on behalf of their clients, will sooner or later clash, warlord-style. Or the vacuum of statelessness will be filled by those who seek power for its own sake and for the riches it can bring them. Better an accountable state than an unaccountable warlord.

The same is true when it comes to defense against foreign powers — whether they are states or terrorist groups. Yes, some very wealthy Americans might pool their resources and provide defense, from which everyone might benefit. But the might of a defense force can easily be turned inward and aimed at particular individuals and groups who are out of favor with the proprietors of the defense force.

An accountable, state-run defense force, on the other hand, should be used to defend Americans and their legitimate overseas interests, and to do that decisively. Either get in and win, or stay out. But always remember that staying out — or delaying action — enables an actual or potential enemy to gather strength.

Enough of that. How did I become a libertarian, of the kind that I am?

My disillusionment with the predictably “liberal” worldview that I acquired as an undergraduate came in stages, beginning in the late 1960s. The urban riots that had begun earlier in the decade and reached a zenith in 1968 were evidence of the futility of solving the “black problem” by throwing tax dollars at it. What was needed instead of welfare was robust economic growth and jobs — especially for black males. The intellectual clincher came for me in the mid-1970s, when — as a defense analyst — I grasped the limitations of warfare models.

What is the connection between the limitations of warfare models and the proper role of government? A mathematical model of a fairly well-defined phenomenon — combat involving certain types of weapons — is unlikely to yield an accurate prediction of the outcome of combat. Therefore, it is even more unlikely that emotionally justified government programs — designed mainly to benefit this and that interest group — will perform as predicted. Or, even if they deliver something like the expected benefits, they will also have unanticipated, negative side effects.

The evidence against social and economic engineering is staggering. See, for example, the 144 issues of Regulation that have been published since the magazine’s inception in 1977. Or consider just four salient examples of the social and economic engineering that have had untoward results:

1. Social Security. On the surface, this seems to have helped millions of old persons live more comfortably. It has in fact led people to save less for their retirement, causing them to be more dependent on Social Security and reducing the nation’s rate of saving, with adverse consequences for growth-inducing capital investment. Add to that the inevitable political consequences of a popular program that brings in revenue — the expansion of benefits as a vote-getting measure and the expenditure of “contributions” on other government programs — and you have an explanation for a large chunk of the burgeoning federal deficit.

2. Health care. The creation and expansion of Medicare and Medicaid, coupled with employer-supported health insurance (a result of tax policy), have led to the over-consumption of health-care services with little effect on health. (There is an authoritative, scientific RAND study to support that contention.) It is therefore largely because of government actions that drugs and medical services have become so expensive in the U.S. Another contributor to the apparently high cost of health-care in the U.S. has been the invention and improvement of life- and health-saving drugs, procedures, and equipment. Such things do not come cheaply. But put them all together and you have what the proponents of government intervention like to call a “broken” system. That it is “broken” largely because of government intervention does not faze the proponents of still more intervention.

3. Welfare. Daniel Patrick Moynihan explained well the contributions of government welfare programs to what he called “he cycle of poverty and disadvantage” among urban blacks. For his pains, he was labeled a “racist” and accused of “blaming the victim.” The evidence of subsequent history is on Moynihan’s side.

4. Deficit spending. This canon of Keynesian orthodoxy has led to bouts of wasteful spending and a larger federal debt, both of which cause the displacement of private outlays on consumption goods (including health care) and job-producing, growth-enhancing capital investments. Deficit spending is stoutly defended by believers in big government, even though (a) it did not cure the Great Depression (conventional wisdom to the contrary), (b) its sudden withdrawal at the end of World War II did not cause a new depression (despite “authoritative” predictions to the contrary), and its recurrence in the form of “stimulus” did not alleviate the Great Recession. There are many reasons that deficit spending does not work as advertised, but its defenders will hear none of them because they are persons of faith in big government, not facts and reason.

Were it not for these and other government interventions, Americans — even the poorest ones — would be much better off than than they are, because they would strive to do better for themselves and because they would earn much more from their striving. In addition, there would be significantly more voluntary charity for those many fewer persons who really need it. That is a real “social safety net.”

Despite the foregoing, social and economic engineering by government persists for five reasons:

  • Ignorance — which includes the kind of blind faith in the power of government to do “the right thing,” as discussed above.
  • Smugness — the self-satisfaction that comes from having supported or voted for a certain cause as a token of one’s “enlightenment,” “open-mindedness,” or “compassion.”
  • Power-seeking — as politicians cater to and shape the preferences of certain voting blocs, for the sake of gaining and holding office and the power that goes with it.
  • Rent-seeking — the effort to gain an economic or social advantage at the expense of others, an advantage that is mainly illusory because one group’s gains must be paid for, politically, by supporting the efforts of other groups to acquire gains.

Appeals to “fairness,” “social justice,” “equality,” and other such high-flown concepts are good indicators of ignorance, smugness, power-seeking, and rent-seeking.

Am I right about the essential bankruptcy of social and economic engineering by government? All I can say is that I came to my views as a result of observation and reflection. I did not inherit them from my parents (who were inarticulate in such matters), nor did I absorb them from my professors (who, if anything led me in the opposite direction). I believe in the rightness of my views — of course. But whether I am right or wrong is not for me to say. What I could say has been said well by an economist named Russell Roberts that I will quote him:

I am willing to admit that I have trouble thinking of a natural experiment that would get me to change my worldview. It would take a lot of natural experiments in lots of different settings before I became convinced, for example, that government can spend our way out of a recession or that bailouts are a good way to deal with systemic risk. I have a worldview. I’m an ideologue. I have a philosophy of what makes the world a better place. I stand by that philosophy because I think its principles if implemented more widely would actually make the world a better place. It would take a lot of evidence to dissuade me from my views on economic freedom and the proper role of government. Those principles color the way I see the world. I think that’s true for almost all of us. What distinguishes is honesty about what we believe and why.

Now you have a good idea — if you didn’t already — of what I believe and why I believe it.

*   *   *

Related and supporting posts: Too many to list. Go here and browse.

Preemptive War

What should be done about the imminent acquisition by Iran of material with which to produce nuclear weapons? This is a question that the president of the United States and Congress must face because Iran’s possession of nuclear weapons will threaten vital U.S. interests in the Middle East, namely, access to about one-third of the world’s present output of oil. That alone — even if Iran would not strike U.S. allies in Europe or the U.S. itself — should cause the president and congressional leaders to entertain the possibility of a preemptive strike on the Iranian facilities that could produce material for nuclear weapons.

This is not a new subject, and my aim here is not to assess the chances of a successful strike or the political fallout from a strike, successful or not. I want to explore different aspects of preemption — aspects that, so far, have drawn relatively little attention — namely, its morality, the conditions under which it should occur, and its constitutionality.


Here is my argument, in brief:

1. Any sovereign nation (A) has the right to act preemptively against any other sovereign nation (B) to prevent B from harming the ability of A‘s citizens to enjoy liberty and its fruits. In fact, if A could afford to do so, and if it would serve the interests of A‘s citizens, A might act preemptively against B to prevent B from harming C‘s citizens because of the resulting harm to A‘s citizens.

2. If A‘s preemptive act results in A‘s violating its treaty obligations, A simply has put its reason for being above an obligation that was supposed to serve its reason for being, but which patently does not. A nation dedicated to liberty is obliged, first and foremost, to take the course of action that best serves its citizens’ liberty and their enjoyment of it.

You should note that harm (or prospective harm) is not just bodily harm. There is more to liberty than the preservation of life and limb. What are life and limb without the ability to own property and pursue happiness? Theft is a denial of liberty, no matter where the theft occurs, that is, whether it takes place in the U.S. or overseas? If it is not theft to disrupt America’s economy by force or threat of force, and to make Americans poorer by denying them (among others) access to oil pumped from the ground in Middle Eastern countries, then what is it?

The only other thing it can be called — with good reason — is an act of aggression against the liberty of Americans. If there is good reason to believe that the aggression will occur, if not prevented, then it is the duty of the American government to act preemptively to prevent the aggression and thus the harm that would flow from it.

Given the preceding, I cannot exempt any nation or foreign entity as a legitimate target of preemption. Nor can I rule out any form of action against Americans’ interests as a legitimate cause of preemption. Harm is harm; the question is how best to respond to the certain prospect of harm.

Now, if you remain opposed to preemption, you should ask yourself whether you are willing to acquiesce in the aims of a foreign entity. For, to believe that the United States should not act against aggression — except where the evidence of impending aggression is weak or doubtful — is tantamount to acquiescing in the aggression. I can see it no other way.

But, as outlined below, a decision to preempt should not be taken easily.


Criteria for Preemption

The case for preemption must be met by answering six questions:

1. What is the object of preemption?

2. Who can be the target of preemption?

3. When is preemption the appropriate course of action?

4. Must preemption be limited to a “proportional” response?

5. Do treaty obligations trump preemption?

6. Is preemption unconstitutional?

What Is the Object of Preemption?

The object of preemption must be to prevent a foreign state or entity from acquiring or deploying the means of attacking Americans’ liberty interests, as discussed above, where the foreign entity’s behavior clearly indicates that an attack is almost certain to follow from said acquisition or deployment.

Who Can Be a Target of Preemption?

Does that formulation mean, for example, that the United States should act preemptively if good intelligence indicates that (a) the Saudi regime is about to drastically curtail oil production, (b) a terrorist organization has co-opted the Saudi regime, or (c) the terrorist organization is about to launch a massive attack on Saudi oil facilities?

The first scenario might lead to preemption, if certain other conditions are met, as discussed below.

The second and third scenarios would almost certainly warrant preemption because of the potential harm to the well-being of Americans. It is one thing if Americans lose jobs and income through the normal fluctuations of the business cycle. It is another thing, entirely, if Americans are likely to lose jobs and income because of what would amount to an act of aggression by a foreign enemy. If we would not stand for the sabotage of oil refineries on American soil, why would we contemplate the sabotage of overseas facilities that provide oil which is refined in the United States?

Americans are not “entitled” to oil. But they are entitled to ply trade with willing partners who provide oil. The principle applies to any product or service. The question is not whether the United States might legitimately conduct preemptive operations in defense of free trade, but under what circumstances such operations are warranted.

When Is Preemption the Appropriate Course of Action?

Given the foregoing, preemption is appropriate when several conditions are met. First, it must be clear that the target of preemption is an enemy of the United States. A foreign state or entity can be an enemy without having any immediate or specific plans to attack Americans or their interests. Thus a foreign state or entity can become an enemy by

  • undertaking to harm Americans’ interests through unilateral actions (e.g., shutting off a major supply of oil)
  • threatening or attacking allies of the United States upon whom we depend for trade (e.g., Iraq in 1990)
  • threatening or attacking nations whose defeat might jeopardize the security of the United States (e.g., Hitler’s declaration of war on Great Britain in 1939)
  • threatening or attacking overseas areas of strategic importance to the United States (e.g., the oil fields of the Middle East or South America, the Suez or Panama Canal)
  • developing, or planning to develop, the wherewithal to acquire weapons that could enable an attack the United States, harm Americans’ interests, attack our allies, or attack strategically important nations or strategic areas
  • otherwise engaging in a persistent course of provocative opposition toward the United States, which opposition might consist of pronounced ideological enmity (as in the cases of Cuba and North Korea, for example), supporting efforts by third parties to harm the United States (as was the case with Saddam, doubters to the contrary), or engaging in efforts to harm the United States through economic or diplomatic machinations (as did the USSR during the Cold War).

Such conditions are necessary but not sufficient for preemption. Sufficient conditions are:

  • the failure of diplomatic efforts, which may include the United Nations but need not depend on the UN’s course of action (see the later discussion of treaty obligations)
  • the failure of economic sanctions and military threats
  • the likelihood that preemption would not cause a breakdown of diplomatic, military, or economic relations with foreign states, where such relations are important to the well-being of Americans
  • the prospect of a successful preemption, where the costs (in life, limb, and money) are judged to be less than the costs of failing to act
  • an open debate resulting in an authorization by Congress, where events do not require swift and even clandestine actions, which should be taken in accordance with the War Powers Resolution of 1973.

Must Preemption Be Limited to a “Proportional” Response?

Preemption should be limited to the military means necessary to accomplish the object of preemption, no more and no less. No more because excessive force can harm the standing of the United States with its allies others upon whom it might depend for moral and military support in future contingencies. No less because failure or perceived failure (as in Vietnam, Lebanon, Somalia, and Gulf War I) can embolden enemies and potential enemies to act against Americans’ interests.

Do Treaty Obligations or the Constitution Trump Preemption? (Iraq as a Case Study)

Opponents of the war in Iraq argued, among other things, that the war was illegal because the United States was not acting under a resolution of the United Nations that specifically authorized the war. That argument hinged on a reading of certain provisions of the U.S. Constitution and the UN Charter. First, there is Article VI, Clause 2, of the Constitution, which says:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Then there are these provisions of the UN Charter:

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. (Article 2, Clause 3)

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. (Article 39)

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. (Article 51)

All of which has been read to say this: Treaty obligations are legally binding on the United States. Our treaty obligations under the UN Charter therefore required us to proceed to war only in the case of self defense, and then only until the UN had decided what to do about the situation.

On the other hand, there is Article II, Section 1, of the UN Charter, which states that the UN “is based on the principle of the sovereign equality of all its Members.” From that principle comes the authorization for the invasion of Iraq (Public Law 107-243, 16 October 2002):


(a) AUTHORIZATION. –The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to –

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

(b) PRESIDENTIAL DETERMINATION. — In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that –

(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq. . . .

The Security Council resolutions referred to are those that had been passed in the years preceding the invasion of Iraq. It is clear that PL 107-243 contemplated military action without a further, authorizing UN resolution.

Absent PL 107-243 the invasion of Iraq might be found illegitimate under the doctrine enunciated by Chief Justice Marshall in The Nereide (13 U.S. [9 Cranch] 388, 422, 3 L. Ed. 769 [1815]), that in the absence of a congressional enactment, United States courts are “bound by the law of nations, which is a part of the law of the land.” But there was a congressional enactment in the case of Gulf War II. Therefore, under the Constitution, the issue of the legitimacy of the invasion of Iraq or any other preemptive act authorized by Congress becomes a political question.

A legal challenge of the legitimacy of the PL 107-243 (Doe v. Bush) was rebuffed, first by the U.S. District Court for the District of Massachusetts in a summary judgment, then by the U.S. Court of Appeals for the First Circuit after hearing arguments from both parties. It was evident by the date of the appellate court’s opinion (March 13, 2003) that President Bush was on a course to invade Iraq without a specific authorizing resolution by the UN Security Council (the pre-invasion air bombardment began on March 20, 2003). The appellate court nevertheless ducked the issue of the war’s legitimacy under the UN Charter, claiming that that issue was not yet “ripe” for adjudication. The concluding language of the court’s opinion suggests, however, that the judicial branch is unlikely to rule on the legitimacy of military action unless such action is the subject of a dispute between the legislative and executive branches:

In this zone of shared congressional and presidential responsibility [for war-making], courts should intervene only when the dispute is clearly framed…. Nor is there clear evidence of congressional abandonment of the authority to declare war to the President. To the contrary, Congress has been deeply involved in significant debate, activity, and authorization connected to our relations with Iraq for over a decade…. Finally, the text of the October Resolution itself spells out justifications for a war and frames itself as an “authorization” of such a war.

It is true that “courts possess power to review either legislative or executive action that transgresses identifiable textual limits” on constitutional power…. But courts are rightly hesitant to second-guess the form or means by which the coequal political branches choose to exercise their textually committed constitutional powers…. As the circumstances presented here do not warrant judicial intervention, the appropriate recourse for those who oppose war with Iraq lies with the political branches.

Similar formulations can be found in Dellums v. Bush, 752 F. Supp. (D.C. Cir. 1990), and Goldwater v. Carter, 444 U.S. 996 (1979).

More about the Constitutionality of Preemption

I begin with Mr. Justice Black, writing for the U.S. Supreme Court in Reid v. Covert (1957):

Article VI, the Supremacy Clause of the Constitution, declares:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;… .”

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result….

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it declared:

“The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.”

In sum, a treaty (such as the UN Charter) may neither violate nor change the meaning of the Constitution. The UN, in other words, may not in any way usurp the authority of Congress (or the president) to decide when and in what circumstances the U.S. goes to war.

As long as Congress and the president have agreed a course of action, as in the case of the preemptive invasion of Iraq, U.S. courts are unlikely to rule that a preemptive military operation is illegitimate under the Constitution. Whether such an operation is illegitimate in the minds of its opponents or in the councils of the United Nations should be irrelevant to those who care about the liberty of Americans.

The decision to preempt is a political judgment in which Congress puts America’s sovereignty and the protection of Americans’ interests above putative treaty obligations. It seems unlikely that a court (the U.S. Supreme Court, in particular) would find that the constitutional grant of power to declare war, which is so fundamental to America’s sovereignty and to the protection of Americans’ interests, can be ceded by treaty to an international body that cannot be relied upon to protect our sovereignty and our interests.


Preemptive war is morally justified if it serves to protect the interests of Americans. But preemptive war is not to be undertaken without careful consideration of its necessity, costs, and consequences. Any specific act of preemption must pass a five-fold test:

1. The object must be to protect Americans’ liberty interests, broadly understood, by preventing a foreign state or entity from acquiring the means by which to attack Americans’ those interests, or to prevent the state or entity from deploying those means if it already has acquired them.

2. The sovereignty and legitimacy of the target of preemption are irrelevant, ultimately, though such considerations should influence our willingness to strive for a diplomatic and/or economic solution.

3. Preemption should be a last resort, following our good-faith efforts toward finding a diplomatic and/or economic solution, and only then after an open debate in which the likely costs and benefits of preemption are weighed.

4. Preemptive military operations should not be undertaken unless there is a good certainty of success. Failure could prove to be more costly, in the long, run than inaction.

5. A preemptive operation must be carried out in accordance with the War Powers Resolution of 1973. But treaty obligations cannot trump America’s sovereign right to wage war for the protection of Americans’ liberty interests.

See also “Some Thoughts and Questions about Preemptive War” and “Preemptive War and Iran.”

Politics, Sophistry, and the Academy

By “politics” I mean the business of acquiring and applying governmental power, which involves — among other things — persuading the electorate, either directly or through advertising and the utterances of political allies and friendly “opinion elites” among journalists and academicians.

“Sophistry” is more complex. Its meaning has evolved, as described at Wikipedia:

The Greek word sophos, or sophia, has had the meaning “wise” or “wisdom” since the time of the poet Homer and originally was used to describe anyone with expertise in a specific domain of knowledge or craft. For example, a charioteer, a sculptor or a warrior could be described as sophoi in their occupations. Gradually, however, the word also came to denote general wisdom and especially wisdom about human affairs (in, for example, politics, ethics, or household management)….

In the second half of the 5th century BC, particularly at Athens, “sophist” came to denote a class of mostly itinerant intellectuals who taught courses in various subjects, speculated about the nature of language and culture and employed rhetoric to achieve their purposes, generally to persuade or convince others: “Sophists did, however, have one important thing in common: whatever else they did or did not claim to know, they characteristically had a great understanding of what words would entertain or impress or persuade an audience.”…

Plato is largely responsible for the modern view of the “sophist” as a greedy instructor who uses rhetorical sleight-of-hand and ambiguities of language in order to deceive, or to support fallacious reasoning. In this view, the sophist is not concerned with truth and justice, but instead seeks power.

Here, I am concerned with sophistry in its modern, political sense: the cynical use of language in the pursuit and application of power. In a word, propaganda. Josef Pieper (1903-97), a German Catholic philosopher, has much to say about this in Abuse of Language, Abuse of Power (for which I thank my son). There, Pieper notes that propaganda

can be found wherever a powerful organization, and ideological clique, a special interest, or a pressure group uses the word as their “weapon”…. (p. 32)

A bit later, Pieper says that “the abuse of political power is fundamentally connected with the sophistic abuse of the word” (p. 32). But this is nothing new under sun, and should come as no surprise to anyone who has even a superficial knowledge of modern history and understanding of politics.

Less evident, I believe, is the tragically corrosive confluence of politics and sophistry in the academy. To push the metaphor, what was a trickle in the middle of the twentieth century has grown to a wide, roaring river of academic dishonesty in the service of political ends.

About the corruption of the academy, Pieper writes:

[T]he term academic expresses something that remained unchanged throughout the centuries, something that can be identified quite accurately. It seems that in the midst of society there is expressly reserved an area of truth, a sheltered space for the autonomous study of reality, where it is possible, without restrictions,to examine, investigate, discuss, and express what is true about any thing — a space, then, explicitly protected against all potential special interests and invading influences, where hidden agendas have no place, be they collective or private, political, economic, or ideological. At this time in history we  have been made aware amply, and forcefully as well, what consequences ensue when a society does or does not provide such a “refuge”. Clearly, this is indeed a matter of freedom — not the whole of freedom, to be sure, yet an essential and indispensable dimension of freedom. Limitations and restrictions imposed from the outside are intolerable enough; it is even more depressing for the human spirit when it is made impossible to express and share, that is, to declare publicly, what according to one’s best knowledge and clear conscience is the truth about things….

Such a space of freedom needs not only a guarantee from the outside, from the political power that thus imposes limits on itself. Such a space of freedom also depends on the requirement that freedom be constituted — and defended — within its own domain. By “defended” we mean here not against any threat from the outside but against dangers arising — disturbingly! — within the scholarly domain itself…. (pp. 37-8)

Pieper’s depiction of the academy may seem, at first glance, to be unrealistically romantic. But Pieper is merely setting forth an ideal toward which the academy should strive. If the academy would renew its dedication to the ideal, it would banish and bar the sophists who lurk within and seek to infiltrate it.

Where are the sophists most likely to be found in the academy? In such pseudo-disciplines as “women’s studies,” “black studies,” and the like, of course. But also throughout the liberal arts, humanities, and social sciences, where artistic forms, economics, history, literature, and sociology serve (to name a few) serve as vehicles for those who would destroy the foundations of Western civilization in the name of “liberation,” “equality,” and “social justice.” Even the sciences are not immune, as evidenced by almost-obligatory belief in anthropogenic global warming, and the need to subscribe to that believe or be ostracized. More generally, there is the selection bias that works against the hiring and promotion of those who come from schools that have a reputation for dissenting from left-wing academic orthodoxy, or who have themselves overtly dissented from the orthodoxy. Especially damning is the fact of dissent based on hard evidence and impeccable logic — especially damning because it is especially threatening to the orthodoxy.

The last word goes to Pieper:

“Academic” must mean “antisophistic” if it is to mean anything at all. This implies also opposition to anything that could destroy or distort the nature of the word as communication and its unbiased openness to reality. In this respect we are well able to pronounce the general principle and at the same time to to be very specific: opposition is required, for instance, against every partisan simplification, every ideological agitation, eery blind emotionality; against seduction through well-turned yet empty slogans, against autocratic terminology with no room for dialogue, against personal insult as an element of style … , against the language of evasive appeasement and false assurance …, and not least against the jargon of the revolution, against categorical conformism, and categorical nonconformism…. (pp. 38-9)

Related posts:
I Missed This One
Affirmative Action: Two Views from the Academy
Feminist Balderdash
What Is the Point of Academic Freedom?
How to Deal with Left-Wing Academic Blather
It’s Not Anti-Intellectualism, Stupid
The Case Against Campus Speech Codes
The Left, Abortion, and Adolescence
Lefty Profs
Apropos Academic Freedom and Western Values
Why So Few Free-Market Economists?
Affirmative Action: Two Views from the Academy, Revisited
Affirmative Action for Conservatives and Libertarians?
Academic Bias
Intellectuals and Capitalism
The Left
Enough of Krugman
“Intellectuals and Society”: A Review
Social Justice
The Left’s Agenda
More Social Justice
The Left and Its Delusions
The Ideal as a False and Dangerous Standard
Utilitarianism and Psychopathy
Demystifying Science