social norms

Libertarianism and the State

The version of libertarianism that I address here is minarchism: the belief that the state — whether necessary or inevitable — is legitimate only if its functions are limited to the defense of its citizens from foreign and domestic predators. Anarchism — an extreme form of libertarianism — is a pipe dream, for reasons I detail in several posts; e.g., here.

Under minarchism, the order that is necessary to liberty — peaceful, willing coexistence and its concomitant: beneficially cooperative behavior — is fostered by the institutions of civil society: family, church, club, and the like. Those institutions inculcate morality and enforce it through “social pressure.” The state (ideally) deals only with those persons who violate fundamental canons of behavior toward other persons (e.g., the last six of the Ten Commandments), and also defends the populace from foreign enemies.

Though America is a long way from minarchism, something like it was possible under the Articles of Confederation and in the early decades under the Constitution, when the central government was relatively unobtrusive and most legal constraints on human action were levied by State and local governments. In those conditions, Americans could rid themselves of unwanted social and legal strictures by leaving one State for another or venturing into the relatively ungoverned frontier territories.

Having defined libertarianism (for the purpose of this post), I will now state the surprising conclusion to which I have come: Its adherents are unwitting statists.

Obviously, you will expect — and get — an explanation of that startling statement. I’ll begin with the central tenet of mainstream libertarianism: Individual persons may not be coerced by anyone — state or society — except as their actions may cause harm to others.

That seems like a reasonable position, until you ask what “harm” means. Here’s the author of the harm principle, John Stuart Mill:

[N]either one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it. He is the person most interested in his own well-being: the interest which any other person, except in cases of strong personal attachment, can have in it, is trifling, compared with that which he himself has; the interest which society has in him individually (except as to his conduct to others) is fractional, and altogether indirect: while, with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by any one else. The interference of society to overrule his judgment and purposes in what only regards himself, must be grounded on general presumptions; which may be altogether wrong, and even if right, are as likely as not to be misapplied to individual cases, by persons no better acquainted with the circumstances of such cases than those are who look at them merely from without. In this department, therefore, of human affairs, Individuality has its proper field of action. In the conduct of human beings towards one another, it is necessary that general rules should for the most part be observed, in order that people may know what they have to expect; but in each person’s own concerns, his individual spontaneity is entitled to free exercise….

I fully admit that the mischief which a person does to himself may seriously affect, both through their sympathies and their interests, those nearly connected with him, and in a minor degree, society at large…. No person ought to be punished simply for being drunk; but a soldier or a policeman should be punished for being drunk on duty. Whenever, in short, there is a definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law.

But with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom…. (On Liberty, Chapter IV)

To begin at the end of the quotation, Mill arbitrarily places a higher value on freedom, as an abstract ideal, than he does on the harms that can occur in its name. This kind of mindless devotion to the abstract ideal of freedom, without regard for costs or consequences, is common among libertarians. But freedom means nothing if it can’t be described without reference to the real-world conditions of human existence. To appeal to freedom as an abstract desideratum — superior to whatever alternative is being rejected in its name — is to commit the fallacy of misplaced concreteness and, simultaneously, the nirvana fallacy. Freedom, as philosopher Jamie Whyte would say, is a “hooray word”: “Declare you are in favor of” freedom “and everyone will cheer his agreement, even if he disagrees with you in every particular question of what” freedom means (Bad Thoughts, p. 61).

What about the harms that Mill (and his followers unto this day) dismiss as “neither violat[ing] any specific duty … nor occasion[ing] perceptible hurt to any assignable individual except himself”? Who is fit to make the judgment as to whether a particular action constitutes a “hurt,” the members of the society whose norms have been violated or “rational” observers, like Mill? Society — properly understood — is a tightly woven fabric, individual strands of which can’t be plucked without damaging the whole. Rationalists and “reformers” tend to focus on the parts of society that they want to change, without considering the effects of change on the well-being of society. (I will come to a salient example, below.)

Friedrich Hayek sees through Mill’s rationalism:

[T]rue individualism … began its modern development with John Locke, and particularly with Bernard Mandeville and David Hume, and achieved full stature for the first time in the work of Josiah Tucker, Adam Ferguson, and Adam Smith and in that of their great contemporary, Edmund Burke–the man whom Smith described as the only person he ever knew who thought on economic subjects exactly as he did without any previous communication having passed between them. In the nineteenth century I find it represented most perfectly in the work of two of its greatest historians and political philosophers: Alexis de Tocqueville and Lord Acton…. [T]he classical economists of the nineteenth century, or at least the Benthamites or philosophical radicals among them, came increasingly under the influence of another kind of individualism of different origin.

This second and altogether different strand of thought, also known as individualism, is represented mainly by French and other Continental writers–a fact due, I believe, to the dominant role which Cartesian rationalism plays in its composition…. [T]his rationalistic individualism always tends to develop into the opposite of individualism, namely, socialism or collectivism. It is because only the first kind of individualism is consistent that I claim for it the name of true individualism, while the second kind must probably be regarded as a source of modern socialism as important as the properly collectivist theories….

What, then, are the essential characteristics of true individualism? The first thing that should be said is that it is primarily a theory of society, an attempt to understand the forces which determine the social life of man, and only in the second instance a set of political maxims derived from this view of society. This fact should by itself be sufficient to refute the silliest of the common misunderstandings: the belief that individualism postulates (or bases its arguments on the assumption of) the existence of isolated or self-contained individuals, instead of starting from men whose whole nature and character is determined by their existence in society. If that were true, it would indeed have nothing to contribute to our understanding of society. But its basic contention is quite a different one; it is that there is no other way toward an understanding of social phenomena but through our understanding of individual actions directed toward other people and guided by their expected behavior. This argument is directed primarily against the properly collectivist theories of society which pretend to be able directly to comprehend social wholes like society, etc., as entities sui generis which exist independently of the individuals which compose them….

Quite as important for the functioning of an individualist society … are the traditions and conventions which evolve in a free society and which, without being enforceable, establish flexible but normally observed rules that make the behavior of other people predictable in a high degree. The willingness to submit to such rules, not merely so long as one understands the reason for them but so long as one has no definite reasons to the contrary, is an essential condition for the gradual evolution and improvement of rules of social intercourse… That the existence of common conventions and traditions among a group of people will enable them to work together smoothly and efficiently with much less formal organization and compulsion than a group without such common background, is, of course, a commonplace….

This brings me to … the necessity, in any complex society in which the effects of anyone’s action reach far beyond his possible range of vision, of the individual submitting to the anonymous and seemingly irrational forces of society–a submission which must include not only the acceptance of rules of behavior as valid without examining what depends in the particular instance on their being observed but also a readiness to adjust himself to changes which may profoundly affect his fortunes and opportunities and the causes of which may be altogether unintelligible to him. It is against these that modern man tends to revolt unless their necessity can be shown to rest upon “reason made clear and demonstrable to every individual.”

Yet it is just here that the understandable craving for intelligibility produces illusory demands which no system can satisfy….

The unwillingness to tolerate or respect any social forces which are not recognizable as the product of intelligent design, which is so important a cause of the present desire for comprehensive economic planning, is indeed only one aspect of a more general movement…. The belief that only a synthetic system of morals, an artificial language, or even an artificial society can be justified in an age of science, as well as the increasing unwillingness to bow before any moral rules whose utility is not rationally demonstrated, or to conform with conventions whose rationale is not known, are all manifestations of the same basic view which wants all social activity to be recognizably part of a single coherent plan… They are the results of that same rationalistic “individualism” which wants to see in everything the product of conscious individual reason. They are certainly not, however, a result of true individualism and may even make the working of a free and truly individualistic system difficult or impossible….

This cult of the distinct and different individuality has, of course, deep roots in the German intellectual tradition and, through the influence of some of its greatest exponents, especially Goethe and Wilhelm von Humboldt, has made itself felt far beyond Germany and is clearly seen in J. S. Mill’s [On] Liberty. This sort of “individualism” not only has nothing to do with true individualism but may indeed prove a grave obstacle to the smooth working of an individualist system…. [I]f people are too “individualistic” in the false sense, if they are too unwilling voluntarily to conform to traditions and conventions, and if they refuse to recognize anything which is not consciously designed or which cannot be demonstrated as rational to every individual. It is at least understandable that the prevalence of this kind of “individualism” has often made people of good will despair of the possibility of achieving order in a free society and even made them ask for a- dictatorial government with the power to impose on society the order which it will not produce itself. (Individualism and Economic Order, Chapter I)

Consider Mill’s defense of the drunkard. Mill speaks of “punishment” as if that were the only alternative, and he sets up dereliction of duty as the only kind of act stemming from drunkenness that ought to be punished. But an habitual drunk does great damage to those around him, by failing to provide properly for his wife and children, by performing his job to less than his ability, by causing accidents that can harm others as well as himself, and so on. When there was such a thing as society — before it was constructively eradicated by the state’s usurpation and suppression of traditional functions of civil society (e.g., education, charity, religious expression) — a drunkard would have been an object of scorn and opprobrium. Whether or not a particular drunkard would have changed his ways because of scorn and opprobrium, observant fellows would have seen in his treatment an object lesson.

In any event, social justice of the true kind — the reaction of society to those who offend against its norms — serves a civilizing function that the state simply cannot duplicate. The state is a rule-bound, reactive institution, unlike the kind of living institution that is found in true society: an enduring and cooperating social group whose members have developed organized patterns of relationships through interaction with one another.

This brings me to the example that I promised earlier: abortion. At the time of the founding of the United States, abortion was widely prohibited under common law. Statutory prohibitions followed throughout the 19th century. Before Roe v. Wade (1973), only four States allowed abortions without restrictions; 16 States allowed abortions in cases of rape, incest, danger to the mother’s health, or fetal damage; abortion was simply not allowed in the other 30 States. The prevailing restrictions are consistent with the historical condemnation of abortion (at some stage of fetal development) by most religions. (It is irrelevant to this discussion that some faiths and denominations have, in the years since Roe v. Wade, changed their dogmas in an attempt to be “relevant.”)

In sum, the widespread proscription of abortion in the United States enjoyed broad and deep support for almost two centuries. One could reasonably call condemnation of abortion a social norm. Special pleading in favor of abortion, which led to the pro-abortion ruling in Roe v. Wade, contributed greatly to the division of America that runs along the fault lines of the culture war and the proper role of government.

Did the social engineers who foisted legalized abortion on America mean to weaken the already strained bonds of trust among Americans? Probably not, but neither is it likely that they gave the prospect of social division much thought, or if they did they probably didn’t care about it. (I have no doubt about the equally reckless and insouciant attitudes of the social engineers who put the full force of law behind reverse racism, and who are now trying to do the same for homosexual “marriage.”)

This is what happens when social norms are overturned by do-gooders. Which brings me to the do-gooders who call themselves libertarians. They claim to be against the intrusion of the state into social arrangements — except when those social arrangements don’t suit them. They are the false individualists of whom Hayek writes.

The widespread prohibition of abortion, by law, reflected a deep-seated social norm. The desire of most whites to avoid forced association with blacks reflected (and reflects) valid observations about differences in culture, behavior, and intelligence. The desire of most heterosexuals to preserve the traditional definition of marriage reflected (and still reflects) their rightful abhorrence of a perverse “lifestyle” and visceral understanding that redefining marriage will weaken it, and thus weaken its civilizing influence. But such truths matter not to a false individualist, who cannot see the forest of society for the trees of their individual whims.

And so, when a libertarian (really a pseudo-libertarian) wants to enact his particular anti-social social agenda, where does he turn? He turns to the state and implores it to intervene in social matters, without thinking of or caring about the consequences. Because the (psuedo) libertarian — like Mill — is bedazzled by “freedom” from social restraints. In that respect, it’s hard to tell a (pseudo) libertarian from a “liberal; both want to strike down social restraints that they dislike, in favor of state-imposed restraints that are to their liking.

Thus do (pseudo) libertarians (and “liberal”) shred the bonds of trust that enable a people to live in liberty, which is not the same thing as “freedom” from social restraints. As Hayek puts it:

[T]he existence of common conventions and traditions among a group of people … enable them to work together smoothly and efficiently with much less formal organization and compulsion than a group without such common background.

Or, as I have said, liberty is a state of peaceful, willing coexistence and its concomitant: beneficially cooperative behavior. Such a state is unattainable where the “conventions and traditions” that underlie mutual trust are demolished willy-nilly in the name of “freedom.”

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Related posts:
Diversity
The Cost of Affirmative Action
It Can Happen Here: Eugenics, Abortion, Euthanasia, and Mental Screening
Affirmative Action: A Modest Proposal
Affirmative Action: Two Views from the Academy
Affirmative Action, One More Time
A Contrarian View of Segregation
The Consequences of Roe v. Wade
The Old Eugenics in a New Guise
The Left, Abortion, and Adolescence
After the Bell Curve
A Footnote . . .
Schelling and Segregation
“Equal Protection” and Homosexual Marriage
Law, Liberty, and Abortion
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
Law, Liberty, and Abortion
Abortion and the Slippery Slope
An Argument Against Abortion
Singer Said It
A “Person” or a “Life”?
The Case against Genetic Engineering
Affirmative Action: Two Views from the Academy, Revisited
A Wrong-Headed Take on Abortion
“Family Values,” Liberty, and the State
On Liberty
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
Our Enemy, the State
Pseudo-Libertarian Sophistry vs. True Libertarianism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Libertarian Conservative or Conservative Libertarian?
Evolution, Human Nature, and “Natural Rights”
More Pseudo-Libertarianism
More about Conservative Governance
The Meaning of Liberty
In Defense of Marriage
Understanding Hayek
Burkean Libertarianism
Rights: Source, Applicability, How Held
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
Utilitarianism and Psychopathy
Abortion and Logic
The Myth That Same-Sex “Marriage” Causes No Harm
Society and the State
Are You in the Bubble?
Liberty, Negative Rights, and Bleeding Hearts
Conservatives vs. “Liberals”
Why Conservatism Works
Abortion, Doublethink, and Left-Wing Blather
Race and Reason: The Victims of Affirmative Action
Abortion, “Gay Rights,” and Liberty
Race and Reason: The Achievement Gap — Causes and Implications
Liberty and Society
The Eclipse of “Old America”
Genetic Kinship and Society
Liberty as a Social Construct: Moral Relativism?
Defending Liberty against (Pseudo) Libertarians
“Conversing” about Race
Defining Liberty
Conservatism as Right-Minarchism
“We the People” and Big Government
Evolution and Race
The Culture War
The Pseudo-Libertarian Temperament
Parsing Political Philosophy (II)
Getting Liberty Wrong
Surrender? Hell No!

O Tempora O Mores!

I was exceedingly irritated by a rah-rah piece about “affordable housing” in today’s edition of the local rag. The piece was early intended to promote subsidies that would enable low-income persons to live in mixed-income areas, that is, in the vicinity of persons with higher incomes. The writer of the piece advanced some (admittedly) not-very-convincing sociological arguments for mixed-income neighborhoods, including cost-benefit studies that purport to show that the benefits of subsidized housing outweigh the costs. He failed to mention, of course, that the persons who subsidize “affordable housing” for low-income persons are not the persons who benefit from it. Nor did he make much of the obvious fact that as people earn more, they generally prefer to live among persons with similar earnings, and not among people who earn a lot less.

But what people actually want doesn’t matter in the end, because what counts is what do-gooders want and what government can compel in the name of doing good, don’t you see? That’s why the gauleiters of our fair city persist in the subsidization of low-income housing in mixed-income areas.

In any event, the article led me to think about the many ways in which social norms have changed for the worse since the days of my Midwestern upbringing in the 1940s and 1950s. For one thing, the idea that people should work, save, and pay for their own housing — as I did and my parents did — seems to have gone to the great graveyard of quaint ideas. That graveyard is populated by such formerly vital notions as these:

Behavior is shaped by social norms, like those listed here. The norms are rooted in the Ten Commandments and time-tested codes of behavior. The norms aren’t altered willy-nilly in accordance with the wishes of “activists,” as amplified through the megaphone of the mass media.

Rules of grammar serve the useful purpose of enabling people to understand each other easily. The flouting of grammatical rules in everyday conversation is a sign of ignorance and ill-breeding, not originality.

Dead, white, European males produced some of the greatest works of art, music, literature, philosophy, science, and political theory. Those dead, white, European males are to be celebrated for their accomplishments, not derided just because they are dead or were not black/brown/tan, female, of confused gender, or inhabitants of non-European places.

Marriage is a union of man and women.

Marriage comes before children. This is not because people are pure at heart, but because it is the responsible way to start life together and to ensure that one’s children enjoy a stable, nurturing home life.

Marriage is until “death do us part.” Divorce is a recourse of last resort, not an easy way out of marital and familial responsibilities or the first recourse when one spouse disappoints or angers the other.

Children are disciplined — sometimes spanked — when they do wrong. They aren’t given long, boring, incomprehensible lectures about why they’re doing wrong. Why not? Because they usually know they’re doing wrong and are just trying to see what they can get away with.

Gentlemen don’t swear in front of ladies, and ladies don’t swear in front of gentlemen; discourse is therefore more likely to be rational, and certainly more bearable to those within earshot.

A person’s “space” is respected, as long as person is being respectful of others. A person’s space is not invaded by a loud conversation of no interest to anyone but the conversant.

A person grows old gracefully and doesn’t subject others to the sight of flabby, wrinkled tattoos (unless you were a sailor who has one tattoo on one arm). (This may seem like a nit-pick, but the epidemic of tattooing is symptomatic of the loud, brash, self-centered, faddish culture that now commands center stage in much of America.)

Drugs are taken for the treatment of actual illnesses, not for recreational purposes.

Income is earned, not “distributed.” Persons who earn a lot of money are to be respected. If you envy them to the point of wanting to take their money, you’re a pinko-commie-socialist (no joke).

Welfare is a gift that one accepts as a last resort, it is not a right or an entitlement, and it is not bestowed on persons with convenient disabilities

A man holds a door open for a woman out of courtesy, and he does the same for anyone who is obviously weaker than he is, or laden with packages

Sexism (though it isn’t called that) is nothing more than the understanding — shared by men and women — that women are members of a different sex (the only different one); are usually weaker than men; are endowed with different brain chemistry and physical skills than men (still a fact); and enjoy discreet admiration (flirting) if they’re passably good-looking, or better. Women who reject those propositions — and who try to enforce modes of behavior that assume differently — are embittered and twisted.

A mother who devotes time and effort to the making of a good home and the proper rearing of her children is a pillar of civilized society. Her life is to be celebrated, not condemned as “a waste.”

Homosexuality is a rare, aberrant kind of behavior. (And this is before AIDS proved it to be aberrant.) It’s certainly not a “lifestyle” to be celebrated and shoved down the throats of all who object to it.

Privacy is a constrained right. It doesn’t trump moral obligations, among which are the obligations to refrain from spreading a deadly disease and to preserve innocent life.

Addiction isn’t a disease; it’s a surmountable failing.

Envy is an unsavory and unseemly state of mind; a person should better himself instead of tearing others down.

Justice is for victims. Victims are persons to whom actual harm has been done by way of fraud, theft, bodily harm, murder, and suchlike. A person with a serious disease or handicap isn’t a victim, nor is a person with a drinking or drug problem.

Justice is a dish best served hot, so that would-be criminals can connect the dots between crime and punishment. Swift and sure punishment is the best deterrent of crime. Capital punishment is the ultimate deterrent because an executed killer can’t kill again.

Peace is the result of preparedness for war; lack of preparedness invites war.

The list isn’t exhaustive, but it’s certainly representative. The themes are few and simple: self-reliance, respect for others, respect for tradition, and the defense of society from predators foreign and domestic. The result is liberty: A regime of mutually beneficial coexistence based on trust.

Whence the now-dominant leftist schemes and themes, like “affordable housing” and “the undeserving rich” (a.k.a. “the 1%” and “the 0.1%”), which have replaced the dominant mores of old? Leftist ideas, like the poor, have always been with us, but their political ascendancy arises from the indoctrination mills known as the mainstream media and educational institutions. This is from an article by Graham Cunningham:

“[R]eality” as reflected in the big “old” media is—notwithstanding the relatively recent uncorking of (mainly U.S. based) conservative voices in the “new” media—still overwhelmingly liberal…. And the old media—a virtual Fifth Estate—is still a very big wild wood of seductive liberal myth and folklore. The “staccato signals of constant information” appear, in large part, to be apolitical, making them all the more persuasive. But such is the relentless focus of conservative intellectual discourse on a current affairs agenda that conservatives—never mind liberals—often cannot see the wood for the trees. It is a wood with tangled roots deep in early 20th century socialist intellectual soil. Its filigree branches have since grown and spread into every corner of 21st century public consciousness.

… As someone whose own working life has, at various times, brought me into close contact, not only with schools, colleges, and universities but also local government, the architectural profession, and the British NHS, I can attest that soft-left prejudices prevail in all of these. So the educational incubation of the professional, business, and mandarin classes is another part of the story of the rise of politically correct, middle-class, liberal orthodoxy.

It has also long been true that a great majority of school teachers will be Democrats/Labour Party voters. In varying degree they are likely to emerge from their teacher training with a soft-left baggage ranging from old-fashioned vaguely collectivist economic assumptions and Dickensian sentimental notions (like something called “The Working Class” being perennially victim of something called “The Rich”) to various newer relativist “liberation” and victimhood theologies. Plus a sympathetic take on various kinds of “anti-something-or-other” and “eco” militancy….

[T]he much more potent influence is that everyone born since the Second World War—university educated or not—will have spent a large part of their leisure time in Media Land—a virtual parallel universe, rich in sublimated myth and fairytale. Now Media Land is not some Orwellian Big-Brother conspiracy. It is in itself, too diffuse and anarchic to be a place of didactic political bias per se. Its quintessential characteristic is, rather, that it allows you—without any great effort on your part—to sustain the illusion that you know, and are entitled to have an opinion about, all manner of things beyond your direct experience. It is from these intangible, ego-flattering, seductive characteristics that its mind-bending power flows.

It is the great oracle from which we absorb not just “The News” (intrinsically an editorial semi-fiction anyway) but also the good-guy/bad-guy narratives of film and television drama, the satirical talking-heads panel show, the “shocking” lid-lifting documentary etc. So it is that—drip by drip—the public’s imagination becomes accustomed to the notion that the apparently law-abiding, white, middle-class dwellers in suburbia—though they may not in reality always be the one who have actually “done” the murder—nevertheless do have a dark side to their supposedly smug existence and their desk job in the City—which must, by the way, axiomatically be ignoble, venal and soul destroying. Whereas the violent teenage gangster turns out to have the soul of a poet buried under all those years of oppression. And the lardy, welfare-cheating couch-potato turns out to be quite a sound bloke underneath it all and good fun too. And anyone who takes to the streets in a “protest”—never mind how ignorant and bloody-minded—instantly becomes a hero whilst the target of the “protest” is instantly a villain. And so it is too that the alleged misdeeds of supposedly smug political and business elites are ruthlessly exposed and then wittily sent-up by even more smug, smartly-pants TV “personalities” whose own elite lifestyles remain relatively out of the media spotlight….

And then there is “The News”. Whilst the current affairs output of the mainstream media is not uniformly politically biased per se, it does often have the same entrenched undercurrents as the rest. Underpinning all the day-to-day news ephemera are some enduring fairytales that are both highly seductive and at the same time so diffuse as to be almost subconscious. A major example is the one in which some big bad wolf (maybe “The Government” or “Big Business”)—and definitely not you personally—is either to blame for all your problems in life or has failed to solve them for you. You—a member of “the great mass of ordinary decent people”—are a victim of some or other system or institution. Another (almost certainly subconscious) fairytale is the one in which—by the simple device of espousing “progressive” liberal attitudes—you can carry on with your (and your family’s) own personal pursuit of happiness, just like before but now with the added bonus of feeling that you—unlike those nasty “Right-wingers”—are on the side of the angels. Now that is a really seductive one! …

It is also worth noting that, quite apart from any questions of political bias as such, “The News”, with its inevitable editorial selectivity can—at least in the minds of the uncurious and suggestible—actually help to spread ignorance dressed up as illusory knowledge….

… Having so many alternative gadgets to play with, [members of the post-internet generation] are less and less likely to watch [TV] and especially “The News” and “Current Affairs”. But overall, the power of the Media-Academia Complex is likely to remain undiminished for a very long time to come. Its power comes ultimately from the illusion it creates that you can sit back and soak up all you need to “know” about the big wide world without actually having to be all that curious about it. (“How the Left Was Won,” The Imaginative Conservative, February 2014)

The 1940s and 1950s weren’t idyllic, by any means — but no era ever is, except in gauzy hindsight. There was more poverty and racism then than now. But the economy would be even more robust today, absent the incursions of the regulatory-welfare state. And racism would have declined in time, with less of the lingering resentment that was a foreseeable result of government’s heavy-handed “equality” policies. Simply enforcing existing laws so that blacks enjoyed equal treatment would have been enough.

The undoing of traditional mores began in earnest in the 1960s, with a frontal assault on traditional morality and the misguided expansion of the regulatory-welfare state. The unraveling continues to this day. Traditional morality is notable in its neglect; social cohesion is almost non-existent, except where the bonds of religion and ethnicity remain strong. The social fabric that once bound vast swaths of America has rotted — and is almost certainly beyond repair.

If Hillary Clinton possessed an ounce of intellectual honesty, she would justifiably call the great unraveling a vast, left-wing conspiracy. As Cunningham suggests, it is to some extent an unwitting conspiracy of smug, like-minded persons. But it is nevertheless a broad-based, often concerted, and nihilistic effort to undermine the foundations of morality — and economic progress.

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Related reading:
Dwight Longnecker, “Modern Marriage – Revolution or Regression?,” The Imaginative Conservative, February 14, 2014

Related posts:
PC Madness
Why Not Marry Your Pet?
Stuff White (Liberal Yuppie) People Like
“Men’s Health”
I’ve Got a LIttle List
See also the preceding post, and the many posts listed at the bottom.

The Social Animal and the “Social Contract”

Here we go again, into “all men are brothers” territory:

“Morality can do things it did not evolve (biologically) to do,” says [Joshua] Greene [author of Moral Tribes: Emotion, Reason, and the Gap between Us and Them]. How can it do this? By switching from the intuitive “automatic mode” that underpins our gut reactions to the calculating, rational “manual mode”. This, for Greene, means embracing utilitarianism, “the native philosophy of the manual mode”. Utilitarianism takes the idea that “happiness is what matters, and everyone’s happiness counts the same”, generating the simple three-word maxim, “maximise happiness impartially”.

Greene is not the first to think that he has found “a universal moral philosophy that members of all human tribes can share” and that those who disagree are simply not being rational enough. Many a philosopher will raise an eyebrow at his claim that “the only truly compelling objection to utilitarianism is that it gets the intuitively wrong answers in certain cases”.

At least one strong objection is suggested by what Greene himself says. He knows full well that the kind of absolutely impartial perspective demanded by utilitarianism – in which the interests of your own child, partner or friends count for no more than any others – “is simply incompatible with the life for which our brains were designed”. Greene takes this as a flaw of human beings, not his preferred moral theory. But when someone, for example, dedicates a book to his wife, as Greene does, this does not reflect a failure to be appropriately objective. A world in which people showed no such preferences would be an inhuman, not an ideal, one. A morality that values human flourishing, as Greene thinks it should, should put our particular attachments at its core, not view them as “species-typical moral limitations” to be overcome.

That’s an excerpt of Julian Baggiani’s commendable review of Greene’s book and two others (“The Social Animal,” FT.com, January 3, 2014).

Greene makes two errors. First, he assumes that it’s wrong to prefer those who are closest to one, geographically and by kinship, to those who are farther away. Second, he assumes that happiness can be added, and that what should matter to a person is not his happiness but the sum of all the happiness in the world. The errors are so obvious that I won’t dwell on them here. If you want to read more about them, start with “Liberalism and Sovereignty,” “Inside-Outside,” “Modern Utilitarianism,” “The Social Welfare Function,” and “Utilitarianism vs. Liberty.” And by all means read “The Fallacy of Human Progress,” which addresses Steven Pinker’s rationalistic thesis about overcoming human nature (The Better Angels of Our Nature: Why Violence Has Declined).

Yes, human beings are social animals, but human beings are not “brothers under the skin,” and there is no use in pretending that we are. Trying to make us so, by governmental fiat, isn’t only futile but also wasteful and harmful. The futility of forced socialization is as true of the United States — a vast and varied collection of races, ethnicities, religions, and cultures — as it is of the world.

Despite the blatant reality of America’s irreconcilable diversity, American increasingly are being forced to lead their lives according to the dictates of the central government. Some apologists for this state of affairs will refer to the “common good,” which is a fiction that I address in the third, fourth, and fifth of the above-linked posts. Other apologists like to invoke the “social contract,” another fiction that Michael Huemer disposes of quite nicely:

[I]t is often said that the government derives its powers from a “social contract,” whereby the people have granted these special powers to the government. The only problem with this theory is that it is factually false—I have not in fact agreed to have a government, to pay taxes, or to obey the government’s laws.

A number of suggestions have been made as to how, despite my protestations to the contrary, I really have agreed to all those things. Here I will just mention one, because it is the one most often heard in conversation. This is the suggestion that I have “implicitly” agreed to have a government merely by residing in the government’s territory. (“If you don’t want a government, simply move to Antarctica!”) Very briefly, the problem with this suggestion is that it presupposes that the state owns all the territory over which it claims jurisdiction, or that for some other reason it has the right to exclude people from that area. But there is no way to establish such a right on the part of the state, unless one has already shown that the state has legitimate authority. This therefore cannot be presupposed in an argument designed to establish the state’s authority. In this case, the statist’s claim seems analogous to the leader of a protection racket claiming that his victims have voluntarily agreed to pay him protection money, merely by living in their own houses. There are other ways in which social contract enthusiasts claim that we have accepted the social contract, but as I explain in the book, each of them falls to equally serious objections, which show that the social contract does not come close to satisfying the generally accepted principles of real, valid contracts.

Another popular suggestion is that, in democratic nations (about half the world today), the democratic process confers authority on the government. The motivation behind this view is initially puzzling. Recall that the problem is to explain why the state may undertake actions that would be considered rights violations if anyone else were to perform them. Typically, if some type of action violates someone’s rights—for instance, theft, kidnapping, or murder—the action will not be converted into an ethically permissible, non-rights-violating one if a larger number of people support the action than oppose it. If you’re in a group of friends, and five of them decide they want to rob you, while only three oppose robbing you, this does not make it ethically permissible to rob you. Similarly, even if every law were directly authorized by a popular referendum of everyone affected by the law, it is unclear why this would render legitimate a law that would otherwise have been a rights violation. Matters are only more problematic in a society in which a minority of people vote, and they vote merely to select representatives who may or may not keep their promises, and may or may not do what their supporters wanted.

But doesn’t the government have to coerce us in the ways that it does in order to maintain itself in existence, so that it can provide law and order? And without government, wouldn’t society degenerate into a constant war of everyone against everyone? The first thing to note about this argument is that it could at most justify a tiny minority of all the powers claimed by any modern state. Perhaps the government must make laws against violence and theft and provide a court system to adjudicate disputes, in order to prevent a Hobbesian war of all against all. But why must the government control what drugs you may put into your body, what wages you may pay your employees, how much wheat you may grow on your farm, and whether you buy health insurance? Why must they subsidize agribusiness, send rockets to Mars, fund the arts, provide college loans, and run their own school system? The question is not, “Why are those programs beneficial?” The question is, “How are those programs justified by the threat of the Hobbesian war that would supposedly result from anarchy?”

Granted, sometimes it is necessary to use coercion to prevent some disaster from occurring. But having done so, one is not then ethically permitted to continue using coercion beyond the minimal amount necessary to prevent that disaster. If we really stand in danger of some sort of all-out Hobbesian war, then the state would be justified in employing the minimum coercion necessary to prevent the state of war from occurring. This would not justify their continuing to employ coercion whenever it strikes their fancy, or whenever they think they can achieve some benefit by doing so. (“The Problem of Authority,” Cato Unbound, March 4, 2013)

A point that Huemer doesn’t make in his essay is to compare Americans with the “boiling frog“:

The premise is that if a frog is placed in boiling water, it will jump out, but if it is placed in cold water that is slowly heated, it will not perceive the danger and will be cooked to death. The story is often used as a metaphor for the inability or unwillingness of people to react to significant changes that occur gradually.

The metaphor is apt. Americans — or a very large fraction of Americans — have been “boiled” stealthily:

Power has been passing to Washington for more than 100 years, in defiance of the Constitution, because of … the Nirvana fallacy, unrepresentative government, logjams and log-rolling, fiefdoms and egos, and the ratchet effect and interest-group paradox. Thus Washington is able to exert its power on the entire country, bringing big government to places that don’t want it….

[G]overnmental acts and decrees have stealthily expanded and centralized government’s power, and in the process have usurped social norms. The expansion and centralization of power occurred in spite of the specific limits placed on the central government by the original Constitution and the Tenth Amendment. These encroachments on liberty are morally illegitimate because their piecemeal adoption has robbed Americans of voice and mooted the exit option. And so, liberty-loving Americans have discovered — too late, like the proverbial frog in the pot of water — that they are impotent captives in their own land.

Voice is now so muted by “settled law” (e.g., “entitlements,” privileged treatment for some, almost-absolute control of commerce) that there a vanishingly small possibility of restoring constitutional government without violence. Exit is now mainly an option for the extremely wealthy among us. (More power to them.) For the rest of us, there is no realistic escape from illegitimate government-made law, given that the rest of the world (with a few distant exceptions) is similarly corrupt. (“‘We the People’ and Big Government,” Politics & Prosperity, November 16, 2013)

And, no, “we” — that is all of “us” — don’t want it to be that way:

If there is an “American psyche,” it has multiple-personality disorder.

What do you think when a snobbish European generalizes about Americans — a bunch of crude, gun-toting, money-grubbers? Do you think that such generalizations are correct? You probably don’t. And if you don’t, why would you think (or speak and write) as if Americans are like ants, that is, of one mind and collectively responsible for the actions of government? …

There’s no need to look abroad for inapplicable generalizations about America…. [C]onservatives and liberals have been separating themselves from each other. Only a cock-eyed optimist — the kind of person who believes that living in the same (very large) geographic requires unity — would call this a bad thing. As if proximity yields comity. It doesn’t work for a lot of families; it doesn’t work for most blacks and whites; it doesn’t work for upper-income and lower-income groups. Why should it work for most conservatives and liberals? …

But aren’t “we all in this together,” as proponents of big and bigger government are wont to proclaim? Not at all. The notion that “we are all in this together” is just a slogan, which really means “I want big and bigger government” to “solve” this or that problem — usually at the expense of persons who have done nothing to create the “problem.” “We are all in this together” is a call for action by government, not proof of a mythical “national will.” If “we” were “all in this together,” we wouldn’t need to be reminded of it. Like a good sports team or military unit, we would simply act that way. (Op. cit.)

It’s true that most human beings crave some kind of social connection. But the gap between that craving and the faux connectedness of one-size-fits-all big government can’t be bridged by ringing phrases (“We the People”), by appeals to patriotism, or by force.

Government can take my money, and it can make me do things the way “technocrats” want them done — and it can do the same to millions of other Americans. But government can’t make me (or those other millions) love the recipients of my money or feel happier because I’m doing things the “right” way. It can only make my (and those other millions) despise the recipients and detest forced conformity. Only divisiveness can prevent the complete destruction of liberty in the name of “society.”

Social unity is found not in government but in genetic kinship:

[G]enetic kinship is indispensable to society, where society is properly understood as “an enduring and cooperating social group whose members have developed organized patterns of relationships through interaction with one another.” (“Genetic Kinship and Society,” Politics & Prosperity, August 16, 2012)

It takes overeducated dunderheads like Joshua Greene to denigrate the bonds of genetic kinship, even while openly prizing them.

*     *     *

Other related posts:
On Liberty
Rights, Liberty, the Golden Rule, and the Legitimate State
Tocqueville’s Prescience
What Is Conservatism?
Zones of Liberty
Society and the State
I Want My Country Back
The Golden Rule and the State
Government vs. Community
Evolution, Human Nature, and “Natural Rights”
More about Conservative Governance
The Meaning of Liberty
Evolution and the Golden Rule
Understanding Hayek
The Golden Rule as Beneficial Learning
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
Utilitarianism and Psychopathy
Why Conservatism Works
Reclaiming Liberty throughout the Land
Rush to Judgment
Secession, Anyone?
Race and Reason: The Achievement Gap — Causes and Implications
Liberty and Society
The Eclipse of “Old America”

The Culture War

“Culture war” is a familiar term, but one that I hadn’t thought deeply about until a few days ago. I read something about abortion in which “culture war” occurred. The fog lifted, and I grasped what should have been obvious to me all along: The “culture war” isn’t about “culture,” it’s about morality and liberty.

Rod Dreher, in the course of a premature paean to Barack Obama’s “diplomatic” approach to ideological strife, gets it right:

The source of our culture war is conflicting visions of what it means to be free and what it means to be an American – and even what it means to be fully human. More concretely, as Princeton’s Robert George has written, they have to do mainly “with sexuality, the transmitting and taking of human life, and the place of religion and religiously informed moral judgment in public life.”

Because the cultural left and cultural right hold to irreconcilable orthodoxies on these questions, we find scant cultural consensus. That’s life in America. Unless we become a homogenous country, we will continue to struggle to live together, staying true to our deepest beliefs while respecting the liberty of others to stay true to their own.

But we do not live in a libertarian Utopia. We can’t have it all. If, for example, courts constitutionalized same-sex marriage, as gay activists seek, that would have a ground-shaking effect on religious liberty, public schooling and other aspects of American life. Without question, it would intensify the culture war, as partisans of the left and right fight for what each considers a sacred principle.

What irritates conservatives is the liberals’ groundless conceit that they fight from a values-neutral position, while the right seeks to impose its norms on others. Nonsense. Marriage was a settled issue until liberals began using courts to impose their moral vision on (so far) an unwilling majority. Who fired the first shot there? (“Obama Won’t End the Culture Wars,” RealClearPolitics, February 16, 2009)

And it doesn’t matter whether the unwilling are a majority or a minority. Just about everyone is a loser in the war against morality and liberty.

When social norms — long-established rules of behavior — are sundered willy-nilly the result is a breakdown of the voluntary order known as civil society.

The liberty to live a peaceful, happy, and even prosperous life depends on civil society: the daily observance of person X’s negative rights by persons W, Y, and Z — and vice versa. That is so because it is impossible and — more importantly — undesirable for the state to police everyone’s behavior. Liberty depends, therefore, on the institutions of society — family, church, club, and the like — through which individuals learn to treat one another with respect, through which individuals often come to the aid of one another, and through which instances of disrespect can be noted, publicized, and even punished (e.g., by criticism and ostracism).

That is civil society, which the state ought to protect, but instead usurps and destroys. Usurping is one of the state’s primary (and illegitimate) functions. The state establishes agencies (e.g., public schools, welfare), gives them primary and even sole jurisdiction in many matters, and funds them with tax money that could have gone to private institutions.

Worse, however, is the way in which the state destroys the social norms that foster social harmony — mutual respect and trust — without which a people cannot flourish.  As I observed some years ago, in connection with same-sex “marriage”:

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

“Thanks” to the signals sent by the state — many of them in the form of legislative, executive, an judicial dictates — we now have not just easy divorce, subsidized illegitimacy, and legions of non-mothering mothers, but also abortion, concerted (and deluded) efforts to defeminize females and to neuter or feminize males, forced association (with accompanying destruction of property and employment rights), suppression of religion, absolution of pornography, and the encouragement of “alternative lifestyles” that feature disease, promiscuity, and familial instability.

The state, of course, doesn’t act of its own volition. It acts at the behest of special interests — interests with a “cultural” agenda. Dreher calls them liberals. I call them left-statists. They are bent on the eradication of civil society — nothing less — in favor of a state-directed Rousseauvian dystopia from which morality and liberty will have vanished, except in Orwellian doublespeak.

*     *     *

Related reading:
Trevor Thomas, “The Laughable Liberal ‘Moral Imperative’,” American Thinker, December 1, 2013
Deborah C. Tyler, “Morality, Anti-Morality, and Socialism,” American Thinker, December 1, 2013

Related posts:
Refuting Rousseau and His Progeny
Libertarianism, Marriage, and the True Meaning of Family Values
The Consequences of Roe v. Wade
The Old Eugenics in a New Guise
The Left, Abortion, and Adolescence
Moral Luck
Consider the Children
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
Law, Liberty, and Abortion
Equal Time: The Sequel
Marriage and Children
Abortion and the Slippery Slope
More on Abortion and Crime
Peter Singer’s Agenda
Parenting, Religion, Culture, and Liberty
Singer Said It
A “Person” or a “Life”?
A Wrong-Headed Take on Abortion
Crime, Explained
“Family Values,” Liberty, and the State
Intellectuals and Capitalism
Civil Society and Homosexual “Marriage”
Rawls Meets Bentham
The Left
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
“Intellectuals and Society”: A Review
Our Enemy, the State
Pseudo-Libertarian Sophistry vs. True Libertarianism
The Left’s Agenda
More Pseudo-Libertarianism
More about Conservative Governance
The Meaning of Liberty
Positive Liberty vs. Liberty
On Self-Ownership and Desert
In Defense of Marriage
The Left and Its Delusions
Burkean Libertarianism
Crimes against Humanity
Abortion and Logic
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
Utilitarianism and Psychopathy
The Myth That Same-Sex “Marriage” Causes No Harm
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
Libertarianism and Morality
Libertarianism and Morality: A Footnote
Society and the State
Are You in the Bubble?
Legislating Morality
Legislating Morality (II)
Abortion, Doublethink, and Left-Wing Blather
Abortion, “Gay Rights,” and Liberty
Race and Reason: The Achievement Gap — Causes and Implications
Liberty and Society
Tolerance on the Left
The Eclipse of “Old America”
Genetic Kinship and Society
Liberty as a Social Construct: Moral Relativism?
Defending Liberty against (Pseudo) Libertarians
“Conversing” about Race
Defining Liberty
“We the People” and Big Government

“We the People” and Big Government

This post incorporates three earlier installments and completes the series.

When the Framers of the Constitution began the preamble with “We the People” and spoke as if the Constitution had been submitted to “the People” for ratification, they were indulging in rhetorical flourishes (at best) and misleading collectivization (at worst). The Founders may have been brave and honorable men, and their work — as long as it lasted — served liberty-loving Americans well. But do not forget that the Framers were politicians eager to sell a new framework of government. They were not gods or even demi-gods. They served liberty ill when they invoked the idea of a national will — expressed through government. Their coinage lends undeserved credence and emotional support to the rhetoric of statist demagogues, a breed of which Barack Obama is exemplary.

*     *     *

I make two basic points in this very long post:

1. It is a logical and factual error to apply the collective “we” to Americans, except when referring generally to the citizens of the United States. Other instances of “we” (e.g., “we” won World War II, “we” elected Barack Obama) are fatuous and presumptuous. In the first instance, only a small fraction of Americans still living had a hand in the winning of World War II. In the second instance, Barack Obama was elected by amassing the votes of fewer than 25 percent of the number of Americans living in 2008 and 2012. “We the People” — that stirring phrase from the Constitution’s preamble — was never more hollow than it is today.

2. Further, the logical and factual error supports the unwarranted view that the growth of government somehow reflects a “national will” or consensus of Americans. Thus, appearances to the contrary (e.g., the adoption and expansion of national “social insurance” schemes, the proliferation of cabinet departments, the growth of the administrative state) a sizable fraction of Americans (perhaps a majority) did not want government to grow to its present size and degree of intrusiveness. And a sizable fraction (perhaps a majority) would still prefer that it shrink in both dimensions. In fact, The growth of government is an artifact of formal and informal arrangements that, in effect, flout the wishes of many (most?) Americans. The growth of government was not and is not the will of “we Americans,” “Americans on the whole,” “Americans in the aggregate,” or any other mythical consensus.

Continued below the fold. (more…)

Rationalism, Social Norms, and Same-Sex “Marriage”

Judge Vaughn Walker’s recent decision in Perry v. Schwarnenegger, which manufactures a constitutional right to same-sex marriage, smacks of Rationalism. Judge Walker distorts and sweeps aside millennia of history when he writes:

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

Judge Walker thereby secures his place in the Rationalist tradition. A Rationalist, as Michael Oakeshott explains,

stands … for independence of mind on all occasions, for thought free from obligations to any authority save the authority of ‘reason’. His circumstances in the modern world have made him contentious; he is the enemy of authority, of prejudice, of the merely traditional, customary or habitual. His mental attitude is at once sceptical and optimistic: sceptical, because there is no opinion, no habit, no belief, nothing so firmly rooted or so widely held that he hesitates to question it and to judge it by what he calls his ‘reason'; optimistic, because the Rationalist never doubts the power of his ‘reason … to determine the worth of a thing, the truth of an opinion or the propriety of an action. Moreover, he is fortified by a belief in a ‘reason’ common to all mankind, a common power of rational consideration…. But besides this, which gives the Rationalist a touch of intellectual equalitarianism, he is something also of an individualist, finding it difficult to believe that anyone who can think honestly and clearly will think differently from himself….

…And having cut himself off from the traditional knowledge of his society, and denied the value of any education more extensive than a training in a technique of analysis, he is apt to attribute to mankind a necessary inexperience in all the critical moments of life, and if he were more self-critical he might begin to wonder how the race had ever succeeded in surviving. (“Rationalism in Politics,” pp. 5-7, as republished in Rationalism in Politics and Other Essays)

At the heart of Rationalism is the view that “a problem” can be analyzed and “solved” as if it were separate and apart from the fabric of life.  On this point, I turn to John Kekes:

Traditions do not stand alone: they overlap, and the problems of one are often resolved in terms of another. Most traditions have legal, moral, political, aesthetic, stylistic, managerial, and multitude of other aspects. Furthermore, people participating in a tradition bring with them beliefs, values, and practices from other traditions in which they also participate. Changes in one tradition, therefore, are likely to produce changes in others; they are like waves that reverberate throughout the other traditions of a society. (“The Idea of Conservatism“)

Edward Feser puts it this way:

Tradition, being nothing other than the distillation of centuries of human experience, itself provides the surest guide to determining the most rational course of action. Far from being opposed to reason, reason is inseparable from tradition, and blind without it. The so-called enlightened mind thrusts tradition aside, hoping to find something more solid on which to make its stand, but there is nothing else, no alternative to the hard earth of human experience, and the enlightened thinker soon finds himself in mid-air…. But then, was it ever truly a love of reason that was in the driver’s seat in the first place? Or was it, rather, a hatred of tradition? Might the latter have been the cause of the former, rather than, as the enlightened pose would have it, the other way around?) (“Hayek and Tradition“)

Same-sex marriage will have consequences that most libertarians and “liberals” are unwilling to consider. Although it is true that traditional, heterosexual unions have their problems, those problems have been made worse, not better, by the intercession of the state. (The loosening of divorce laws, for example, signaled that marriage was to be taken less seriously, and so it has been.) Nevertheless, the state — pursuant to Judge Walker’s decision — may create new problems for society by legitimating same-sex marriage, thus signaling that traditional marriage is just another contractual arrangement in which any combination of persons may participate.

Heterosexual marriage — as Jennifer Roback Morse explains — is a primary and irreplicable civilizing force. The recognition of homosexual marriage by the state will undermine that civilizing force. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will “pick up the pieces.” And so it will go.

In Morse’s words:

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

The state’s signals are drowning out the signals that used to be transmitted primarily by voluntary social institutions: family, friendship, community, church, and club. Accordingly, I do not find it a coincidence that loud, loutish, crude, inconsiderate, rude, and foul behaviors have become increasingly prominent features of “social” life in America. Such behaviors have risen in parallel with the retreat of most authority figures in the face of organized violence by “protestors” and looters; with the rise of political correctness; with the perpetuation of the New Deal and its successor, the Great Society; with the erosion of swift and sure justice in favor of “rehabilitation” and “respect for life” (but not for potential victims of crime); and with the legal enshrinement of infanticide and buggery as acceptable (and even desirable) practices.

Thomas Sowell puts it this way:

One of the things intellectuals [his Rationalists] have been doing for a long time is loosening the bonds that hold a society together. They have sought to replace the groups into which people have sorted themselves with groupings created and imposed by the intelligentsia. Ties of family, religion, and patriotism, for example, have long been treated as suspect or detrimental by the intelligentsia, and new ties that intellectuals have created, such as class — and more recently “gender” — have been projected as either more real or more important….

Under the influence of the intelligentsia, we have become a society that rewards people with admiration for violating its own norms and for fragmenting that society into jarring segments. In addition to explicit denigrations of their own society for its history or current shortcomings, intellectuals often set up standards for their society which no society has ever met or is likely to meet.

Calling those standards “social justice” enables intellectuals to engage in endless complaints about the particular ways in which society fails to meet their arbitrary criteria, along with a parade of groups entitled to a sense of grievance, exemplified in the “race, class and gender” formula…. (Intellectuals and Society, pp. 303, 305)

And so it will go —  barring a sharp, conclusive reversal of Judge Walker and the movement he champions.

Related posts:
“Equal Protection” and Homosexual Marriage
Social Norms and Liberty
The Fallacy of Particularism
History Lessons
On Liberty
Civil Society and Homosexual “Marriage”
Perry v. Schwarzenegger, Due Process, and Equal Protection

Rights, Liberty, the Golden Rule, and the Legitimate State

A right, as opposed to a privilege, is capable of universal application within a polity. The only true rights, therefore, are liberty rights, which are negative rights. So-called positive rights are privileges, not rights.

Liberty rights are represented in the Founders’ trinity of “unalienable Rights“: “Life, Liberty, and the pursuit of Happiness.” These really constitute a unitary right, which I simply call liberty. The liberty right is unitary because liberty (as a separate right) is meaningless without life and the ability to pursue happiness. Thus we have this: rights ≡ liberty (rights and liberty are identical). The identity of rights and liberty is consistent with this definition of liberty:

3. A right or immunity to engage in certain actions without control or interference.

In essence, liberty consists of negative rights (the right not be attacked, robbed, etc.). Negative rights are true rights because they are capable of universal application: Leaving others alone (the essence of negative rights) costs each of us nothing and yields liberty for all.

Positive rights (the right to welfare benefits, a job based on one’s color or gender, etc.) are not rights, properly understood, because they are not capable of universal application: Taking from others (the requisite of positive rights) costs some of us something without an offsetting return. (Think, for example, of the redistributional effects of various taxes.) Positive rights cannot be had without engaging in actions that control or interfere with others. Positive rights are anti-libertarian privileges.

Liberty — rightly understood as the universal application of negative rights — is possible only when the Golden Rule is, in fact, the rule. The Golden Rule, which is the quintessential social norm, encapsulates a lesson learned over the eons of human coexistence. That lesson? If I desist from harming others, they (for the most part) will desist from harming me.

In civil society, exceptional behavior is dealt with by criticism and punishment (which may include ostracism). The exceptions usually are dealt with by codifying the myriad instances of the Golden Rule (e.g., do not steal, do not kill) and then enforcing those instances through communal action (i.e., justice and defense).

The exceptions that cannot be dealt with by civil society are the proper concern of the minimal state — one that is dedicated to the defense of its citizens from predators. But the state becomes illegitimate the moment it crosses the line from the enforcement of the Golden Rule (negative rights) to the granting of privileges (positive rights). For when the state does that, it is no longer dedicated to liberty.

Related posts:
Fascism with a “Friendly” Face
Democracy and Liberty
Inventing “Liberalism”
Parsing Political Philosophy
The Interest-Group Paradox
Utilitarianism vs. Liberty
The Principles of Actionable Harm
Law and Liberty
Negative Rights
Negative Rights, Social Norms, and the Constitution
A New (Cold) Civil War or Secession?
Civil War, Close Elections, and Voters’ Remorse
The Devolution of American Politics from Wisdom to Opportunism

Negative Rights, Social Norms, and the Constitution

In a recent post about negative rights, I quote Randy Barnett, who explains that such “rights that define the space within which people are free to choose how to act.” Well, not quite.

Think about it. A libertarian regime would protect these negative rights:

  • freedom from force and fraud (including the right of self-defense against force)
  • property ownership (including the right of first possession)
  • freedom of contract (including contracting to employ/be employed)
  • freedom of association and movement.

But those rights enclose a cavernous “space,” within which human behavior can find many self-destructive outlets unless it is shaped by social norms — socially evolved rules (as opposed to government-dictated ones) which delineate morally and socially acceptable behavior. Think of the ways in which your present behavior is shaped by the moral lessons of your childhood and by your experiences as a child, student, spouse, parent, friend, co-worker, neighbor, church member, club member, team member, and the like.

In sum, negative rights are meaningless absent a framework of social norms that is consistent with negative rights and which directs behavior along constructive paths. Conversely, constructive social norms are undermined where government fails to protect negative rights or actively denies them. There is, for example, no right of freedom from force in a community where violence is the norm and government is unable to protect residents from violence; there is no right of property ownership in a community where government seizes property as it sees fit to do so; there is no right of freedom of movement for slaves; and so on. (Obviously, I am referring to rights as they are actually enjoyed, not “natural” rights.)

In the United States, the history of negative rights parallels the history of the Constitution:

The original Constitution protected the rights to life, liberty, and property against infringement by the federal government in two ways. First and foremost, Congress was not given a general legislative power but only those legislative powers “herein granted,” referring to those powers enumerated in Article I, section 8. It is striking how these powers avoid expressly restricting the rightful exercise of liberty. The power “to raise and support armies” does not include an express power of conscription, which would interfere with the property one has in one’s own person. The power to establish the post office does not expressly claim a power to make the government post office a monopoly, which would interfere with the freedom of contract of those who wish to contract with a private mail company of the sort founded by Lysander Spooner. (By contrast, the Articles of Confederation did accord the power in Congress to establish a postal monopoly.)…

Two years after its enactment, the Constitution was amended by the Bill of Rights. These ten amendments included several express guarantees of such liberties as the freedom of speech, press, assembly, and the right to keep and bear arms. The Bill of Rights barred takings for public use without just compensation. It provided additional procedural assurances that the laws would be applied accurately and fairly to particular individuals.
All of the rights enumerated in the Bill of Rights are consistent with modern libertarian political philosophy. And to this list of rights was added the Ninth Amendment that said, “The enumeration in the Constitution of certain rights shall not
be construed to deny or disparage others retained by the people.” In this way, even liberty rights that were not listed were given express constitutional protection. Finally, the Tenth Amendment reaffirmed that Congress could exercise only those
powers to which it was delegated “by this Constitution.”…

While the Thirteenth Amendment’s ban on involuntary servitude expanded the Constitution’s protection of individual liberty against abuses by states, it was the Fourteenth Amendment that radically altered the federalism of the original
Constitution. For the first time, Congress and the courts could invalidate any state laws that “abridge[d] the privileges or immunities of citizens of the United States.” The original meaning of “privileges or immunities” included the same natural rights retained by the people to which the Ninth Amendment referred, but also the additional enumerated rights contained in the Bill of Rights. The Due Process Clause of the Fourteenth Amendment placed a federal check on how state laws are applied to particular persons, while the Equal Protection Clause imposed a duty on state executive branches to extend the protection of the law on all persons without
discrimination. (Randy Barnett, “Is the Constitution Libertarian?,” p. 14-17)

However,

the Supreme Court has upheld countless federal laws restricting
liberty, primarily under the power of Congress “to regulate commerce . . . among the several states” combined with an open-ended reading of the Necessary and Proper Clause. Further it has upheld the power of Congress to spend tax revenue for purposes other than “for carrying into execution” its enumerated powers, thereby exceeding the scope of the Necessary and Proper Clause….

Beginning in the 1930s, the Supreme Court . . . adopted a presumption of constitutionality whenever a statute restricted unenumerated liberty rights. In the 1950s it made this presumption effectively irrebuttable. Now it will only protect those liberties that are listed, or a very few unenumerated rights such as the right of privacy. (op. cit., pp. 15, 17-18)

What the law giveth, the law taketh away. The power of the States, individually, to trample negative rights has been supplanted by the far greater power of the central government to trample negative rights.

Generally, negative rights are trampled by every government enactment that does more than protect negative rights.  Which is to say that most government enactments deny negative rights; for example, they

  • compel the surrender of income to government agencies for non-protective purposes (violating freedom from force and property ownership)
  • compel the transfer of income to persons who did not earn the income (violating freedom from force and property ownership)
  • direct how business property may be used, through restrictions on the specifications to which goods must be manufactured (violating property ownership)
  • force the owners of businesses (in non-right-to-work-States) to recognize and bargain with labor unions (violating property rights and freedom of contract)
  • require private businesses to hire certain classes of persons (“protected groups”) and undertake additional expenses for the “accommodation” of handicapped persons (violating property rights and freedom of contract)
  • require private businesses to restrict or ban smoking (violating property rights and freedom of association)
  • mandate attendance at tax-funded schools and the subjects taught in those schools, even where those teachings run counter to the moral values that parents are trying to inculcate (violating freedom from force and freedom of association)
  • limit political speech through restrictions on political contributions and the publication of political advertisements (violating freedom from force and freedom of association).

Such enactments also trample social norms. First, and fundamentally, they convey the message that government, not private social institutions, is the proper locus of moral instruction and interpersonal mediation. Persons who seek special treatment (privileges, a.k.a. positive rights) learn that they can resort to government for “solutions” to their “problems,” which encourages other persons to do the same thing, and so on. In the end — which we have not quite reached — social institutions lose their power to instruct and mediate, and become merely sources of solace and entertainment.

More specifically, government enactments have

  • engendered disrespect for life by authorizing abortion
  • legitimated lewd, lascivious, inconsiderate, and violent behavior in the name of “freedom of expression” and “freedom of speech,” even while distancing children from the moral lessons of religion by declaring freedom from religion where the Constitution only prohibits government establishment of religion
  • undermined the role of the family as a central civilizing force by encouraging the breakup of families (welfare rules, easy divorce)
  • usurped the authority of parents by usurping their authority to instill moral values (as mentioned above)
  • encouraged the absence of mothers from the home through subsidized day-care and “affirmative action”
  • engendered disrespect for constructive economic behavior by rewarding shiftlessness (welfare) and penalizing success (progressive income tax, the “death tax,” etc.)
  • shifted the burden of care for the elderly from families to “society” (i.e., taxpayers) through Social Security, Medicare, and Medicaid, thus teaching the wrong lessons about the value of life and respect for old persons.

I could go on and on, but I hope that I have made my point: Politicians — in their zeal to pander to special interests — have damaged the general interest through their disregard of negative rights and the framework of civilizing norms that transforms negative rights into constructive behavior.

How could this have happened? Here is my explanation:

The Framers underestimated the will to power that animates office-holders. The Constitution‘s wonderful design — horizontal and vertical separation of powers — which worked rather well until the late 1800s, cracked under the strain of populism, as the central government began to impose national economic regulation at the behest of muckrakers and do-gooders. The Framers’ design then broke under the burden of the Great Depression, as the Supreme Court of the 1930s (and since) has enabled the central government to impose its will at will. The Framers’ fundamental error can be found in Madison’s Federalist No. 51. Madison was correct in this:

. . . It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. . . .

But Madison then made the error of assuming that, under a central government, liberty is guarded by a diversity of interests:

[One method] of providing against this evil [is] . . . by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. . . . [This] method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. . . .

Madison then went on to contradict what he said in Federalist No. 46 about the States being a bulwark of liberty:

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

Madison understood that a majority can tyrannize a minority. He understood that the States are better able to prevent the rise of tyranny if the powers of the central government are circumscribed. But he then assumed that the States themselves could not resist tyranny within their own borders. Madison overlooked the importance of exit as the ultimate check on tyranny. He assumed that, in creating a new central government with powers greatly exceeding those of the Confederacy, a majority of States would not tyrannize the minority and that minorities with overlapping interests would not concert to tyrannize the majority. Madison was so anxious to see the Constitution ratified that he oversold himself and the States’ ratifying conventions on the ability of the central government to hold itself in check. Thus the Constitution was lamentably silent on nullification and secession.

What has been done by presidents, Congresses, and courts will be very hard to undo. Too many interests are vested in the regulatory-welfare state that has usurped the Framers’ noble vision. Democracy (that is, vote-selling) and log-rolling are more powerful than words on paper. Even a Supreme Court majority of “strict constructionists” probably would decline to roll back the New Deal and most of what has come in its wake.