Affirmative Action, One More Time

Alex Tabarrok at Marginal Revolution points to a paper in this month’s Journal of Law and Economics by Nobel-prize-winning economist James Heckman and colleagues. Heckman et al. conclude their thorough analysis of “Labor Market Discrimination and Racial Differences in Premarket Factors” with this:

Gaps in [IQ] test scores of the magnitude found in recent studies were found in the earliest tests developed at the beginning of the twentieth century, before the results of testing were disseminated and a stereotype threat could have been “in the air.” The recent emphasis on the stereotype threat as a basis for black white test scores ignores the evidence that tests are predictive of schooling attainment and market wages. It diverts attention away from the emergence of important skill gaps at early ages, which should be a target of public policy.

Effective social policy designed to eliminate racial and ethnic inequality for most minorities should focus on eliminating skill gaps, not on discrimination in the workplace of the early Twenty-First Century. Interventions targeted at adults are much less effective and do not compensate for early deficits. Early interventions aimed at young children hold much greater promise than strengthened legal activism in the workplace.

Back in December, I anticipated Heckman and company’s findings and offered a policy solution aimed specifically at skill gaps:

[I]ntelligence (and hence income) is a heritable trait, one that remains differentiated along racial lines (a consistent but controversial finding discussed here, for example). Thus the findings give further evidence, if any were needed, that affirmative action policies — whether government-prescribed or voluntarily adopted — tend to undermine the quality of workplaces and educational institutions. (I am speaking here of the quality of effort and thought, not the value of workers and students as human beings.)

The premise of affirmative action finds expression in a 1986 speech to the Second Circuit Judicial Conference by Justice Thurgood Marshall, where he

urged Americans to “face the simple fact that there are groups in every community which are daily paying the cost of the history of American injustice. The argument against affirmative action is… an argument in favor of leaving that cost to lie where it falls. Our fundamental sense of fairness, particularly as it is embodied in the guarantee of equal protection under the laws, requires us,” Marshall said, “to make an effort to see that those costs are shared equitably while we continue to work for the eradication of the consequences of discrimination. Otherwise,” Marshall concluded, “we must admit to ourselves that so long as the lingering effects of inequality are with us, the burden will [unfairly] be borne by those who are least able to pay.” [From “Looking Ahead: The Future of Affirmative Acton after Grutter and Gratz,” by Professor Susan Low Bloch, Georgetown University Law Center.]

In sum, affirmative action is a way of exacting reparations from white Americans for the sins of their slave-owning, discriminating forbears — even though most of those forbears didn’t own slaves and many of them didn’t practice discrimination. Those reparations come at a cost, aside from the resentment toward the beneficiaries of affirmative action and doubt about their qualifications for a particular job or place in a student body. As I wrote here:

Because of affirmative action — and legal actions brought and threatened under its rubric — employers do not always fill every job with the person best qualified for the job. The result is that the economy produces less than it would in the absence of affirmative action….

[A]ffirmative action reduces GDP by about 2 percent. That’s not a trivial amount. In fact, it’s just about what the federal government spends on all civilian agencies and their activities — including affirmative action….

Moreover, that effect is compounded to the extent that affirmative action reduces the quality of education at universities, which it surely must do. But let us work with 2 percent of GDP, which comes to about $240 billion a year, or more than $6,000 a year for every black American.

Thus my modest proposal to improve the quality of education and the productivity of the workforce: End affirmative action and give every black American an annual voucher for, say, $5,000 (adjusted annually for inflation). The vouchers could be redeemed for educational expenses (tuition, materials, books, room and board, and mandatory fees). Recipients who didn’t need or want their vouchers could sell them to others (presumably at a discount), give them away, or bequeath them for use by later generations. The vouchers would be issued for a limited time (perhaps the 25 years envisioned by Justice O’Connor in Grutter), but they would never expire.

That settles affirmative action, reparations, and school vouchers (for blacks), at a stroke.

Next problem.

Conservatism, Libertarianism, and Public Morality

In a recent post I reservedly endorsed limited-government conservatism:

I…reserve the right to agree with conservative positions. And I shall, when the consequences serve the general welfare. I also reserve the right to differ with conservative positions. And I shall, when the consequences disserve the general welfare.

In either case, I am confident that the general welfare is served best by liberty, and that liberty is not served when the state recklessly subverts socially evolved standards of behavior in the name of license masquerading as liberty.

That post was inspired by Edward Feser’s post about “Libertarianism and moral neutrality” at Right Reason. Feser there refers to his recent article (“Self-Ownership, Abortion, and the Rights of Children: Toward a More Conservative Libertarianism”), which appears in the Journal of Libertarian Studies. I’ve now read Feser’s article and find that I am in deep disagreement with him. My disagreement hinges on Feser’s constant resort to a particular conception of morality that seems disconnected from a deeper principle.

Feser seems to see morality as a set of a priori prohibitions of certain types of behavior. He argues that libertarians ought to embrace those prohibitions because they follow from the Self-Ownership Proviso (which he attributes to Erick Mack):

[R]espect for others’ self-ownership rights entails abiding by restrictions on the use of one’s own property and self-owned powers enshrined in…the Self-Ownership Proviso (SOP)….

Evens non-invasive us of one’s property and powers can violate another’s self-ownership if it effectively nullifies or disables the other’s ability to bring his self-owned powers to bear on the world….

Taking self-ownership seriously thus entails endorsing the SOP. But this, as we are now in a position to see, means that respecting self-ownership requires taking a decidedly conservative position concerning abortion and the the rights of children.

I reject the self-ownership principle as a valid basis for libertarianism because self-ownership is an a priori concept with no anchor in reality. That is why I am a consequentialist libertarian, who rests his libertarianism on the demonstrable belief that the enjoyment of liberty makes us better off. (For more, go here, then go here and follow the links.)

A consequentialist libertarian may — as I have done — reject abortion as a step down a slippery slope toward involuntary euthanasia. As for children, here is a sensible consequentialist principle: Bad behavior toward children breeds bad behavior in adults. Children should be treated well and brought up properly for the sake of general well-being (less crime, greater prosperity, etc.).

I am certainly not ruling out love — which matters greatly to the proper upbringing of children — nor empathy — which causes most of us instinctively to protect children. But empathy and love are human instincts that seem to operate independently of one’s political leanings.

Conservatives, a priori libertarians, Democrats, Republicans, and socialists all may feel love and empathy toward others, but each adheres to, and wishes to enforce, a different (if inchoate) code of behavior on others. It is that enforced code of behavior — that public morality — which shapes our ability to pursue happiness through social and economic intercourse.

I do not trust any public morality whose first principles are demonstrably inconsistent with the general welfare — general happiness, if you will. That is why I will stick to consequentialist libertarianism and leave the other “isms” to “true believers.”

RELATED POSTS:

The Origin and Essence of Rights
A Footnote to My Theory of Rights
Why I Am Not a Conservative
Libertarian Conservative or Conservative Libertarian?
The Trouble with Libertarianism?
Does Libertarian-Conservative Fusion Have a Future?
Libertarianism and Conservatism
Judeo-Christian Values and Liberty
Libertarianism, Marriage, and the True Meaning of Family Values
Where Conservatism and (Sensible) Libertarianism Come Together

Getting Neolibertarianism Wrong
Fundamentalist Libertarians, Anarcho-Capitalists, and Self-Defense

Libertarian Paternalism

UPDATED TWICE BELOW

There’s a fuss about “libertarian paternalism,” which its proponents (Richard Thaler and Cass Sunstein of the University of Chicago) say is intended to help individuals make better decisions by having corporations and governments shape choices more artfully. Zimran Ahmed (Winterspeak) defends the concept because he

spoke to Thaler about this and read the monograph he [Thaler] wrote with Sunstein.

“Libertarian Paternalism” is noting that people often just take whatever default choice is offered and therefore working hard to come up with good default choices. This does not limit choice because you don’t need to stick with the default. But since *something* has to be the default, you might as well put effort into making it something good.

I don’t think it’s quite that easy to defend libertarian paternalism, which strikes me as another paving brick on the road to hell.

Consider an example that’s used to explain libertarian paternalism. Some workers choose “irrationally” — according to libertarian paternalists — when they decline to sign up for an employer’s 401(k) plan. The paternalists characterize the “do not join” option as the default option. In my experience, there is no default option: An employee must make a deliberate choice between joining a 401(k) or not joining it. And if the employee chooses not to join it, he or she must sign a form certifying that choice. That’s not a default, it’s a clear-cut and deliberate choice which reflects the employee’s best judgment, at that time, as to the best way to allocate his or her income. Nor is it an irrevocable choice; it can be revisited annually (or more often under certain circumstances).

But to help employees make the “right” choice, libertarian paternalists would find a way to herd employees into 401(k) plans (perhaps by law). In one variant of this bit of paternalism, an employee is automatically enrolled in a 401(k) and isn’t allowed to opt out for some months, by which time he or she has become used to the idea of being enrolled and declines to opt out.

The underlying notion is that people don’t always choose what’s “best” for themselves. Best according to whom? According to libertarian paternalists, of course, who tend to equate “best” with wealth maximization. They simply disregard or dismiss the truly rational preferences of those who must live with the consequences of their decisions. Richard Thaler may want you to save your money when you’re only 22, but you may have other things to do with your money, such as paying off a college loan.

Libertarian paternalism incorporates two fallacies. One is what I call the “rationality fallacy,” the other is the fallacy of centralized planning.

As for the rationality fallacy, I once wrote this:

There is simply a lot more to maximizing satisfaction than maximizing wealth. That’s why some people choose to have a lot of children, when doing so obviously reduces the amount they can save. That’s why some choose to retire early rather than stay in stressful jobs. Rationality and wealth maximization are two very different things, but a lot of laypersons and too many economists are guilty of equating them.

Nevertheless, many economists (like Thaler) do equate rationality and wealth maximization, which leads them to propose schemes for forcing us to act more “rationally.” Such schemes, of course, are nothing more than centralized planning, dreamt up by self-anointed wise men who seek to impose their preferences on the rest of us. As I wrote more recently:

The problem with [rules aimed at shaping economic behavior] is that someone outside the system must make the rules to be followed by those inside the system.

And that’s precisely where [central] planning and regulation always fail. At some point not very far down the road, the rules will not yield the outcomes that spontaneous behavior would yield. Why? Because better rules cannot emerge spontaneously from rule-driven behavior….

Of course, the whole point…is to produce outcomes that are desired by planners…

…and to hell with what the individual thinks is in his or her own best interest.

“Libertarian paternalism” consists of paternalism and a rather subtle form of socialism. There’s no libertarianism in it, no matter what its proponents may say.

Free people, free markets, no compromise.

UPDATE: And here comes “libertarian” paternalism — from the left, of course:

Rep. Rahm Emanuel, D-Ill., who this year has proposed three pieces of retirement savings legislation, said Monday, “We need to work on strengthening Social Security, but if you look at where the immediate problems are, it’s not in Social Security, it’s in their ability to save for retirement and the amount they have saved.”….

…Peter Orszag, an economic policy adviser in the Clinton administration who now heads the Retirement Security Project.

…is recommending Emanuel’s proposals to extend the savings tax credit and automatically enroll workers in 401(k)s. Orszag also wants automatic increases in the percentage of income directed toward 401(k)s and the automatic diversification of assets in them as workers near retirement.

“This is an area where there is strong bipartisan interest,” Orszag said. “Why not do something that both sides agree on, and do something that will build a sense of bipartisanship, as a precursor to dealing with some of the more difficult issues down the road?”

So, instead of allowing workers to invest 12.4 percent of their income in a real retirement plan, they will be forced to continue paying that amount into the Social Security Ponzi scheme. On top of that, a chunk of their income will be forcefully diverted to 401(k) plans — because Big Brother thinks that’s the “rational” thing to do. Workers will have no say in the matter, because socialist paternalists know what’s best for them.

UPDATE II: Then there’s this, from an article about “neuronomics”:

The problem, of course, is that people don’t always behave rationally. They make decisions based on fear, greed, and envy. They buy plasma TVs and luxury vehicles they can’t afford. They don’t save enough for retirement. They indulge in risky behavior such as gambling. Economists understand this as well as anyone, but in order to keep their mathematical models tractable, they make simplifying assumptions.

As Steve Antler (EconoPundit) explains:

Look: economics teachers with good sense tell students they’re talking about how people would behave if they were rational.

Whether people actually are rational is another matter entirely.

And, to repeat myself, rationality isn’t the same thing as wealth maximization.

Today’s Quiz

1. Choose your preferred GDP per capita (in year 2000 dollars):

a. $36,000

b. $63,000

2. Choose between:

a. government that provides “free” services (most of which you don’t use), guarantees you a minimum income and a certain level of medical care when you retire, and tries to remove risk from your life

b. government that protects you from foreign enemies and domestic predators but otherwise leaves you alone to make the best of your life, which includes earning more money, enjoying a more comfortable retirement, and living at less risk (e.g., enjoying better health because health care and drugs are more readily available and affordable; enjoying less crime because there wouldn’t be government programs to keep people mired in poverty)

3. Choose between:

a. the level of taxation and regulation now extant in the United States

b. the level of taxation and regulation extant in the United States until about 100 years ago

If you choose “b” in question 1, you must also choose “b” in questions 2 and 3.

Some Ear Candy

Click here for Marian Anderson‘s 1941 recording of Georg Friedrich Händel‘s “He shall feed His flock,” from the Messiah.

And here for a 1930 recording by Ezio Pinza of Wolfgang Amadeus Mozart‘s “Fin ch’han dal vino,” from Don Giovanni.

Pasquale Amato made this recording of “Largo al factotum” (Il Barbiere di Siviglia, Giaocchino Rossini) in 1911. It’s as clear as a bell, and almost as thrilling as this 1917 version by Riccardo Stracciari.

Fundamentalist Libertarians, Anarcho-Capitalists, and Self-Defense

I recently chided another blogger for getting all hot and bothered about neolibertarianism. That blogger, you see, is a member of a strange sect that I call the fundamentalist branch of libertarianism. Fundamentalists — who tend to be anarcho-capitalists — believe that rights are somehow innate to humans. Those mysterious “natural rights” give us “self-ownership,” which is just another way of saying that rights are innate to us. Fundamentalists never explain — to my satisfaction — how rights invade our being, who decides precisely what those rights are, and why they are negative (e.g., the right to be left alone) and not positive (e.g., the right to be fed at the expense of others). (I agree that rights ought to be negative, but that’s the extent of my agreement with fundamentalists. For an exposition of my views on the origin and essence of rights, go here.)

In any event, fundamentalists derive from innate rights and self-ownership the principles of non-coercion and non-aggression: If everyone has innate rights and self-ownership, no one has the right to coerce or commit aggression against anyone else. (The fact that coerciveness and aggressiveness seem to be innate human behaviors doesn’t faze fundamentalists.)

The principles of non-coercion and non-aggression lead fundamentalists — anarcho-capitalists, in particular — to the position that the state shouldn’t exist, even if solely for the purpose of collective self-defense. Further, state or no state, it’s wrong to act aggressively against anyone, anywhere, until that someone already has acted against you. Wikipedia explains:

Anarcho-capitalists hold that a modern territorial state by its nature initiates coercion (for example, by implementing taxation), and therefore oppose the existence of such a state and argue that markets and individuals should operate free from this type of interference. If individual liberty is to be defended by an organization, they insist that it be in the form of a private business who [sic] sells its services to private individuals rather than a public institution that relies on taxation to fund its operations. Individuals unable to pay for their protection in such a system are left to the auspices of charity. Anarcho-capitalists reject all coercive aggressions of the state, from initiatory war to government monopolies….

[S]ome also oppose the use of retaliatory or punitive force, asserting that any use of force beyond self-defense is itself an initiation of force.

Because of their uncompromising antipathy to government, many fundamentalist libertarians claim no special allegiance to the United States and believe, further, that it is as wrong for the United States to act preemptively in the defense of its citizens as it is for you to punch your neighbor without provocation.

That’s jolly well easy to say if you happen to live in the United States, whose citizens (even allowing for Pearl Harbor, 9/11, and violent crime) are, on the whole, well protected from foreign enemies and domestic predators because

  • there is a United States,
  • its government has excellent (if imperfect) armed forces and intelligence systems, and
  • its government and the governments of the individual States and their political subdivisions have large and generally effective law-enforcement agencies.

Fundamentalist libertarians — especially anarcho-capitalists — are simply deluding themselves if they think that they don’t owe their liberty and physical security to the state and to its ability to exercise coercive power on their behalf. They are further deluding themselves if they believe that private agencies could possess the same coercive power without descending into gang warfare, if not coercing their “customers” at least as much as governments coerce their citizens.

It’s true that the state doesn’t perfectly protect Americans from foreign enemies and domestic predators. But we’re protected well enough that anarcho-capitalists and other fundamentalist libertarians have the luxury of imagining that, without the benefit of protection from the state, they could enter into enforceable contracts with protective agencies. The American state, at least, remains somewhat accountable and responsive to those who pay its bills. What will keep your local protection racket (oops, protective agency) in check, an even more predatory competitor?

There is a difference between the United States and other nations and extra-national terrorist organizations. The United States exists for the purpose of securing the rights so prized by fundamentalist libertarians. Yes, it’s far from perfect, but it’s the best deal available. It therefore makes sense to adhere to the United States and oppose its enemies, unless you’re prepared to move to a place that offers you a better combination of rights and physical security. If you’re not, stick around, pay your taxes, and use your freedom of speech in an effort to make the union more perfect. But don’t try to pretend that the United States is just another place on the map that has no special attributes worth defending.

As for defending those attributes, I will simply ignore as irrelevant those relatively few anarcho-capitalist, fundamentalist libertarians who profess outright pacifism. I am mainly concerned with the rather more prominent set of fundamentalist libertarians who oppose preemptive defense. Because they oppose preemptive defense but not self-defense, they are only arguing about where to draw the line in the sand. It’s an important argument, however, because if the line is drawn too close to home, that increases my chances of being killed by someone who is bent on killing me (and who will try to do so regardless of my views about preemptive self-defense). Fundamentalist libertarians and others who hide safely behind the wall of American might are just as much a target of foreign enemies as are those of us who would aggressively pursue those enemies.

There can be no quid pro quo with fanatical aggressors. Their stated “reasons” for hating America are cover stories for their twisted set of values. And if they do hate us because — among other things — we maintain a presence in the Middle East to protect our access to oil, that’s tough. We have just as much right to buy that oil as anyone else, and if we have to fight to protect that right, so be it. Why should we try, vainly, to assuage the hatred of our fanatical enemies by withdrawing from the Middle East and going into an economic decline deeper than that which we experienced during the Great Depression?

That leads to my first three (rhetorical) questions for fundamentalist libertarians: Where are our rights? Why aren’t you worried about our rights? Why are you so bloody worried about the rights of others and not about our rights?

My fourth question for fundamentalist libertarians is this: Where should the state draw the line in protecting the interests of its citizens? When our fanatical enemies are about to slit your throat? No, that may be too late. When they’re inside our country, planning to slit your throat? That, also, may be too late. Overseas, then, where they’re planning and training to slit your throat? Yes, overseas, where there are regimes that support — or turn a blind eye — to the planning and training that would enable our fanatical enemies to slit your throat? You see, we’re merely quibbling about where to draw the line in self-defense, and where you — my fundamentalist libertarian friends — want to draw it is in the wrong place.

Non-fundamentalist non-libertarians out there will ask — cynically — “Why don’t we deal with other regimes in other parts of the world that threaten us?” To them I say: You do what you can, when you can, and then you move on to the next enemy, who may — upon sober reflection — choose to limit his aggression to verbiage in light of our willingness to smite our enemies.

That’s self-defense.

Lamm (Sort Of) Lays It on the Line

Richard Lamm, a Democrat with impeccable civil rights credentials, who has taught at the University of Denver since 1969 (except for 12 years when he was Colorado’s governor) has this to say (punctuation errors in the original):

Most discussion of minority failure blames racism and discrimination. I m an old civil rights lawyer and such racism and discrimination clearly still exists. But the problem is, I fear, deeper than the current dialogue. We need to think honestly about these problems with new sophistication. One of these new areas is to recognize that increasingly scholars are saying culture matters.

I m impressed, for instance, that minorities that have been discriminated against earn the highest family incomes in America. Japanese Americans, Jews, Chinese Americans, and Korean Americans all out-earn white Americans by substantial margins and all have faced discrimination and racism. We put Japanese Americans in camps 60 years ago and confiscated much of their property. Yet today they out-earn all other demographic groups. Discrimination and racism are social cancers and can never be justified but it is enlightening that, for these groups, they were a hurdle, not a barrier to success.

The Italians, the Irish, the people from the Balkans America has viewed all these groups and many more with hostility and suspicion, yet all have integrated and succeeded. Hispanic organizations excuse their failure rates solely in terms of discrimination by white America and object vociferously when former Education Secretary Lauro Cavazos observes that Hispanic parents don t take enough interest in education. But Cuban Americans have come to America and succeeded brilliantly. Do we discriminate against Hispanics from Mexico but not Hispanics from Cuba?

I suggest that those groups whose culture and values stress delayed gratification, education, hard work, success and ambition are those groups that succeed in America regardless of discrimination. I further suggest that, even if discrimination was removed, other groups would still have massive problems until they develop the traits that lead to success. Asian and Jewish children do twice as much homework as Black and Hispanic students, and get twice as good grades. Why should we be surprised?

A problem well defined is a problem half-solved. We must recognize that all the civil rights laws in the world are not going to solve the problem of minority failure. Ultimately Blacks and Hispanics are going to have to see that the solution is largely in their own hands.

The solution was taken out of their hands because Hispanics and Blacks (especially Blacks) have been the preferred targets of welfare and affirmative-action programs. Yes, culture matters, but Black and Hispanic culture has come to include a heavy dose of dependence on government. Dependency breeds dependency, not initiative. I wonder if Lamm can see that, or if he thinks the solution is simply a different kind of special treatment?

Tolerance and Poverty

Wikipedia gives this definition of tolerance:

Tolerance is a social, cultural and religious term applied to the collective and individual practice of not persecuting those who may believe, behave or act in ways of which one may not approve….It is usually applied to non-violent, consensual behavior, often involving religion, sex, or politics.

I would go further. One may tolerate persons who engage in certain types of harmful behavior, without tolerating the behavior. We do it all the time; for example, parents continue to love their children even though parents often disapprove of — and punish — their children’s behavior.

Tolerance of a particular kind of behavior encourages more of that kind of behavior. That is why conservatives and libertarians oppose income redistribution, which is a legal form of theft. Income redistribution encourages the belief among those who are on the receiving end of it that rewards come without the acquisition of skills and the diligent application of those skills in gainful employment. (Income redistribution also discourages diligence, innovation, and job-creating investments among those who are on the “giving” end of it.) Conservatives and libertarians tolerate (and sometimes love) the poor, but conservatives and libertarians do not wish to tolerate the bad behavior of legal theft.

Liberals — ironically, in view of their increasingly rude and thuggish behavior toward their political enemies — often accuse conservatives and libertarians of being “haters,” because conservatives and libertarians oppose the cheap “compassion” of income redistribution. That such opposition arises from a supportable belief that it actually harms everyone — including its intended beneficiaries — is of no consequence to liberals. They would rather impugn the motives of conservatives and libertarians than face two uncomfortable facts: (1) It is liberal policies that are largely responsible for poverty. (2) In spite of those policies, and in spite of liberal propaganda to the contrary, most of the poor manage to escape poverty, though the fact remains that everyone (including the poor) is made worse off by liberal policies.

It seems to me that liberals ought to go back to tolerating the poor (in their condescending way) and leave the business of helping the poor to those “intolerant” conservatives and libertarians.

A Renewed Respect?

In response to a post in which I was critical of Christopher Hitchens and Timothy Sandefur’s reactions to the death of Pope John Paul II, Sandefur wrote (in part):

I quite respect the Vatican for refusing to budge in the face of so much opposition from Catholics and others: it shows a level of integrity that few institutions today possess.

The elevation of “hard liner” Joseph Cardinal Ratzinger to the papacy must renew Sandefur’s respect for the Vatican, if not for religion and Catholicism, about which he said,

I think religion is wrong, and a massive force for evil in the world, and I think Catholicism perverts the doctrines of Christ and is deeply un-Christian.

That aside, he “entirely” believes

in the right of all Catholics to profess and practice their faith, and I have nothing at all against Catholics personally–—quite the opposite, I usually get along with Catholics better than with Protestants.

It must be their uncompromising views that he finds so attractive. (Just kidding, Timothy. Another post is unnecessary, though you may be hearing more from “Feddie” at Southern Appeal.)

Getting Neolibertarianism Wrong

Justin Logan gets all hot and bothered about neolibertarianism. He can’t decide which he hates more: neolibertarian principles or prose. After thoroughly misreading and misrepresenting neolibertarianism, or at least some of what’s in the first issue of The New Libertarian (password tnlv1i1), Logan says:

Put me firmly down in the “libertarian” wing of the libertarian movement. Or maybe the better dichotomy is “anti-state” versus “anti-left.”

So, Pope Justin has decided that he is a true libertarian and those of us who call ourselves neolibertarians are a lesser species. Well, bully for him, but I guess I missed the conclave where he was elected supreme arbiter of libertarian principles. Two (or more) can play that game.

Logan’s rant makes it plain that he’s of the non-coercion school of libertarian thought. That’s the one where rights descend from some mysterious source on high — it’s sort of an anti-religious religion. Those mysterious rights make self-defense wrong until you’ve seen the whites of your assassin’s eyes, by which time it’s too late for self-defense. It’s a form of idealism about as relevant to the liberation of human beings as the singing of “Kumbaya” by a bunch of hippie pinkos sitting around a campfire.

If anti-state is where Logan wants to be, fine. He and his like-minded “religious” libertarians can form their own country somewhere and defend themselves, if they are able to — which I doubt. There’s a lot more to libertarianism than not shooting before you’re being shot at.

I am neither suicidal nor tolerant of the regulatory-welfare state that has “progressively” robbed Americans of their freedom and prosperity. That’s why I like my libertarianism with a touch of statism (just enough for aggressive self-defense) and a large portion of anti-leftism, thank you.

Taxation for Taxation’s Sake

“Jane Galt” of Asymmetrical Information proposes an alternative to the estate tax:

Why don’t we just get rid of the estate tax entirely, and set the basis on anything one inherits to $0? That way, if you sell whatever it is you inherited, you have to pay 20 percent or so of its value to the taxman, while if you just use it (i.e. a family small business) you pay no inheritance tax.

To which I say: What’s the purpose of the tax? To penalize those who choose to work hard and invest prudently in order to leave something to their children? “Counterproductive” is the mildest epithet that comes to mind.

But “Jane” seems bent on proving that she’s “not against taxing people; [but] against the special, complicated, economic-value-destroying structure of the estate tax.” So, she’d rather have an economic-value-destroying capital-gains tax. Same thing.

The Constitution in Exile

The Volokh Conspiracy has a flock of posts about the so-called Constitution-in-Exile movement. The thrust of the posts is to downplay the notion, current in left-wing circles, that there is such a movement. Orin Kerr said this in December:

In a book review in the latest issue of The New Republic, Cass Sunstein renews his claims that “[t]here is increasing talk [among conservatives] of what is being called the Constitution in Exile — the Constitution of 1932, Herbert Hoover’s Constitution before Roosevelt’s New Deal.” Sunstein has suggested this a number of times before (see, e.g., here and here), and the claim has been repeated recently by The New York Times and by my colleague Jeffrey Rosen. The suggestion is that influential conservative lawyers express their goal for the courts as being the restoration of “the Constitution in Exile.”

The odd thing is, I can’t recall ever hearing a conservative use the phrase “the Constitution in Exile.” I asked a couple of prominent conservatives if they had ever heard the phrase, and they had the same reaction: they had never heard the phrase used by anyone except Cass Sunstein and those discussing Sunstein’s claims.

As best I can tell, the phrase “Constitution in Exile” originally appeared in a book review by D.C. Circuit Judge Douglas H. Ginsburg in 1995 in the course of discussing the nondelegation doctrine in the journal Regulation.

Today David Bernstein adds:

I’m sure the legal blogosphere will be abuzz with discussions of Jeff Rosen’s N.Y. Times magazine piece on the purported “Constitution in Exile” movement….

First, I take issue with the whole idea that there is a “Constitution in Exile movement,” as such. [UPDATE: co-blogger Orin makes similar points here.] “Constitution in Exile” is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren’t that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to write about some dark conspiracy among right-wingers to restore something called “the Constitution in Exile.”

Ginsburg’s coinage, regardless of its modest provenance, appears in a paragraph in which he neatly encapsulates what many conservatives and libertarians have said on countless occasions about the subversion of original meaning. Here’s the paragraph (source):

So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty — even if perhaps not in their own lifetimes.

That presages Ginsburg’s 2003 speech, entitled “On Constitutionalism,” in which he elaborates on that paragraph, without using the phrase “Constitution in exile.”

In any event, dedication to the real Constitution of original meaning — the “Constitution in exile” — seems to be alive and well in The Federalist Society, in a few law schools, and in many places on the web, notably at The Volokh Conspiracy. If that isn’t a movement, it has all the makings of one.

Where Conservatism and (Sensible) Libertarianism Come Together

UPDATED BELOW

Edward Feser, writing at Right Reason, says this:

If “libertarianism” is merely another way of describing the classical liberal presumption in favor of free markets and limited government, then it is a healthy tendency which conservatives ought to welcome. But if libertarianism entails also that government can and must be neutral between views about the moral legitimacy of abortion, same-sex marriage, and euthanasia; that we can have no enforceable positive obligations to other human beings other than those we explicitly consent to take on; and that a society can be perfectly just as long as property titles are respected, no matter how morally depraved that society might otherwise become, then it is a view that is in my estimation false and dangerous, and ought to be opposed by every conservative.

The launching point for Feser’s post is an article by Jennifer Roback Morse in the latest Policy Review, from which I quoted from in a recent post.

My agreement with Feser on the social issues doesn’t make me a conservative. Morse has a compelling argument for the essential libertarianism of social conservatism:

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

It is high time libertarians object when their rhetoric is hijacked by the advocates of big government. Fairness and freedom do not demand sexual and parental license. Minimum-government libertarianism needs a robust set of social institutions.

Perhaps there’s still some hope for a conservative-libertarian fusion, or at least a fusion of limited-government conservatives and neolibertarians.

UPDATE: I have reread a post of mine from August 10, 2004, in which I took issue with a pair of Tech Central Station columns by Feser. I ended my commentary on Feser’s TCS pieces by saying this:

I accept that not all libertarians think alike about all issues, but neither do all conservatives, liberals, Democrats, or Republicans think alike about all issues. The important thing, to me, about conservatives, liberals, Democrats, and Republicans is that they don’t share my commitment to what Feser describes so well

as the view in political philosophy that the only legitimate function of a government is to protect its citizens from force, fraud, theft, and breach of contract, and that it otherwise ought not to interfere with its citizens’ dealings with one another, either to make them more economically equal or to make them more morally virtuous.

I therefore ally myself with those who share that view. If that isn’t moral neutrality, what is?

It is now clear to me, in light of my recent agreement with Jennifer Roback Morse’s position on the issue of marriage, that I am sliding away from what might called a position of “moral neutrality.” But perhaps a better way of putting is that I have, since last August, clarified my own thinking about the justification for libertarianism.

Libertarianism cannot be justified on either of these bases, which are the tenets of what I call fundamentalist libertarianism:

  • Rights are immanent in humans; that is, humans are innately endowed with rights, which no one may take away from them.
  • Humans own themselves; it is therefore wrong to deprive them of rights. In fact, it is impossible to do so, given the innateness of rights.

Libertarianism cannot rest on such assertions because they have three fatal flaws:

  • First, they are pulled out of thin air: Who or what endows us with rights? By the same token, whence self-ownership?
  • Second, they simply beg the crucial questions: What is a “right”? How is it defined? Who defines it?
  • Third, they are not self-evidently true.

As I wrote here:

Fundamentalist libertarians argue that the only right is liberty — the right to be left alone as long as one leaves others alone — and that it is a natural right with which human beings are endowed a priori. In one rendition, liberty is immanent — something that simply is in human nature, perhaps as a gift from God. In another rendition, humans are endowed with liberty as a logical necessity, because humans own themselves.

But appeals to immanence and self-ownership are no more meaningful than appeals to faith. Such appeals fail because they take liberty as a first principle. Liberty, which is a condition of existence, cannot be a first principle, it can only serve the first principle of existence, which is self-interest. Only experience (of the right kind) and reason can show that liberty serves self-interest.

The appeal to liberty as a first principle is unconvincing, except to those who already want to believe in the immanence of liberty because they understand that liberty serves their self-interest. A belief in the immanence of liberty — whether it is God-given or simply axiomatic — is a skyhook: “a materially unsupported (and thus implausible) entity or process.”

The concept of self-ownership as the basis of liberty is simply another skyhook. Yes, “I” am “me” and not “you,” but what gives me the right to be left alone by you, without sharing your burdens? Where does my self-ownership come from? Who or what imprinted it on me? And there we are, searching for a skyhook.

Rights — though they can exist without the sanction of government and the protection of a state — are political. That is, although rights may arise from human nature, they have no essence until they are recognized through interpersonal bargaining (politics), in the service of self-interest. It is bargaining that determines whether we recognize only the negative right of liberty, or the positive right of privilege as well. The preference of human beings — revealed over eons of coexistence — is to recognize both liberty (usually constrained to some degree) and privilege (which necessitates constraints on liberty).

The problem for libertarians, therefore, is to convince the body politic of two complementary truths: Self-interest dictates that liberty should be the paramount right. The recognition of privilege as a co-equal right undermines the benefits that flow from liberty.

In the same post I went on, at length, to show the logical absurdity of appeals to immanence and self-ownership as the basis of libertarianism. I came down on the side of consequentialism:

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.

In later posts I explicated those superior consequences. (See here, here, here, and here.)

Does my consequentialism — which has led me to support traditional marriage, oppose abortion and euthanasia, and support preemptive war — somehow make me a conservative? I think not. My support for those positions isn’t a priori, as it would be if I were a conservative. Rather, my support for those positions comes from my considered judgment that they will have superior consequences for the general welfare. Among those consequences, they will advance liberty and the blessings that flow from it.

Libertarians should value liberty not because it is “good” per se but because it has good consequences. As I wrote here:

Fundamentalist libertarianism 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?

I therefore reserve the right to agree with conservative positions. And I shall, when the consequences serve the general welfare. I also reserve the right to differ with conservative positions. And I shall, when the consequences disserve the general welfare.

In either case, I am confident that the general welfare is served best by liberty, and that liberty is not served when the state recklessly subverts socially evolved standards of behavior in the name of license masquerading as liberty.

Rich Voter, Poor Voter, and Academic Liberalism

Alex Tabarrok at Marginal Revolution points to a presentation in which this graphic appears:


Standard deviations from mean income on the X-axis, probability of voting Republican on the Y-axis. Data plotted here are for counties in Mississippi, Ohio, and Connecticut (being “poor,” “average,” and “rich” States, respectively).

That graphic is supposed to clinch this point (Tabarrok is writing):

We all know that in the recent election poorer states tended to vote Republican while richer states tended to vote Democrat. On the basis of the famous maps many people jumped to the conclusion that poorer individuals were voting Republican (Nascar Republicans) while richer individuals were voting Democrat (trust fund Democrats). But the inference is a fallacy, the ecological fallacy. In fact, high-income individuals, as opposed to high-income states, vote Republican with greater likelihood than low-income individuals (the effect is not huge and it may be declining but it is significant). It’s even true that rich counties tend to vote Republican with greater likelihood than poorer counties. Gelman links to this graph which nicely illustrates the ecological fallacy. The three lines show that within each state higher-income counties are more likely to vote Republican but when you look between states the correlation between income and voting Republican is negative.

Actually, when I saw the geographic distribution of votes in the 2004 election, by State and county, I didn’t “jump[ ] to the conclusion that poorer individuals were voting Republican (Nascar Republicans) while richer individuals were voting Democrat (trust fund Democrats).” I drew the more reasonable inference that there is a strong geographic correlation between values and voting preferences; that is, adherence to the tenets of the regulatory-welfare state is stronger in richer States, at every income level. And that’s precisely what the graphic indicates: Where you live does make a difference in how you vote.

It may be true that the higher your income in a rich State, the more likely you are to vote Republican. But for any given level of income, a person who lives in a rich State you is less likely to vote Republican than a person who lives in a poor State.

Why? Here’s my take: The “rich” in the rich States — as is obvious from casual reading about limousine liberals and wannabe limousine liberals in New York and California — have by and large bought into the regulatory-welfare state, which is mainly a creation of the Democrat Party. So, the rich-State rich vote their “consciences” or, rather, they tend to vote Democrat because the think they can

  • keep the unwashed masses at bay with the modern equivalent of bread and circuses.
  • salve their (misplaced) guilt about the “good luck” that made them rich.

At the other end of the scale, low-income NASCAR fans who live in rich States are more likely to vote Democrat than low-income NASCAR fans who live in poor States.

Why does it work like that? Because where you live has a lot to do with your values. People tend to adapt (“go along and get along”) or migrate.

The same principle applies to academia. Conservative and libertarian intellectuals tend to avoid academic careers (call it pre-emptive migration) because they don’t want to adapt their thinking to fit in with the liberal supermajority on most campuses. Thank goodness there are some campuses (such as George Mason University) that are friendly havens for libertarian-conservative academics like Tabarrok and his blogging partner, Tyler Cowen.

Social Security Transition Costs, in a Nutshell

Milton Friedman explains it in a few sentences:

Q: If the federal government does move to private accounts, does the $3 trillion that President Bush says he would have to borrow to get that moving cause a greater stress on the American economy?

A: No, because we already have that obligation. What we are talking about is replacing an unfunded debt with funded debt. We already have an obligation to all the people like myself who are currently on Social Security. The difference is it is not written out as funded debt. So when you talk about borrowing, they are not really changing the total government debt, they are only changing how much they recognize, and what is open and above board and how much of it is hidden in other funding.

From an interview with Nobel laureate Milton Friedman in the Jackson (Tennessee) Sun. (Thanks to Donald Luskin for the pointer.) Read the whole interview if you’re unfamiliar with Friedman’s incisive analysis of matters economic.

The Broken Promise of Liberty

I have posted at Liberty Corner IIThe Broken Promise of Liberty,” which is Part VI of my series “Practical Libertarianism for Americans.” Here are excerpts of Part VI:

If liberty is so wonderful, why don’t we enjoy it in full? Why are our lives so heavily regulated and legislated by so many federal, State, and local agencies at such a high cost? What happened to the promise of liberty given in the Declaration of Independence and Constitution? The answers to those questions are bound up in human nature and the nature of governance in a democracy….

In sum, it’s all about trust. You can trust in people to do the right thing because it’s to their benefit to do so, as it is in free markets and free societies. Or you can tie people down, economically and socially, in a morass of statutes and regulations….

Trust doesn’t mean an absence of rules, but the rules have only to be minimal, socially evolved rules of acceptable conduct, such as the Golden Rule or the last six of the Ten Commandments. The clearer and more intuitive the rules, the more likely they are to be enforced by self-interest, by fear of social opprobrium, and by pride in reputation — with swift, sure, and hard justice as a backup.

But none of that goes down well with the untrusting, who think that the road to happiness must be paved with hard-and-fast rules for everything and everyone (except those who break the rules, if they have certain racial, sexual, and socio-economic characteristics). Otherwise, how would people know what to do?…

What happens, then, is a ratcheting of government power, in response to demands for government to “do something,” and in furtherance of the ambitions of power-seeking politicians. There is no in-between solution. There is either a government of strictly limited powers — such as the one envisioned by the Framers — or there is, inevitably, socialism or something very close to it….

We have been following the piecemeal route to serfdom — adding link to link and chain to chain — in spite of the Framers’ best intentions and careful drafting. Why? Because the governed — or dominant coalitions of them — have donned willingly the chains that they have implored their governors to forge. Their bondage is voluntary, though certainly not informed. But their bondage is everyone’s bondage….

Unchecked democracy undermines liberty and its blessings. Unchecked democracy imposes on everyone the mistakes and mistaken beliefs of the controlling faction. It defeats learning. It undoes the social fabric that underlies civility. It defeats the sublime rationality of free markets, which enable independent individuals to benefit each other through the pursuit of self-interest. As “anonymous” says, with brutal accuracy, “Democracy is two wolves and a lamb voting on lunch.”…

The Framers understood human nature as a natural enemy of liberty. That is why they strove to check the passions of the mob and the power of government….

Human nature has overcome constitutional obstacles. The governed and their governors — locked in a symbiotic relationship that is built on a mistrustful worldview, economic illiteracy, and baser instincts — have conspired to undermine the Constitution’s checks and balances. People, given their mistrustful and ignorant nature, have turned to government for “solutions” to their “problems.” Government, in its turn, has seized whatever power is necessary to go through the motions of providing “solutions.” For rare is the legislator who doesn’t want to legislate, the executive who doesn’t want to act, and the judge who doesn’t want to exercise his judgment by interpreting the law rather than simply apply it….

The authors of the Declaration of Independence, were they writing it today, would be able to list “a long train of abuses and usurpations” by the federal government against the States and the people. Their list would rightly include these charges, once levelled against the British monarch:

…erected a multitude of new offices, and sent hither swarms of officers to harrass our people and eat out their substance….

…combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws….

…[took] away our [State] charters…and alter[ed] fundamentally the forms of our governments….

[L]iberty has been vanquished in the mistaken belief (or hope) that government can effectively and efficiently make us better off, salve our woes, and put an end to social and racial divisions. To those ends, the governed and their governors, walking hand in hand, have taken liberty for a stroll down a slippery slope. Every step they have taken down that slope has made more problematic our journey back up the slope.

For earlier entries in the series, follow these links:

I. Introduction

II. Terminology

Addendum to Part II: Notes on the State of Liberty in American Law

III. The Origin and Essence of Rights

IV. Liberty and Its Prerequisites

Addendum to Part IV: More Hayek

V. The Economic Consequences of Liberty

Addendum to Part V: The Destruction of Income and Wealth by the State

A Footnote to My Theory of Rights

In Part III of my series “Practical Libertarianism for Americans,” I wrote:

Fundamentalist [natural rights] libertarians argue that the only right is liberty — the right to be left alone as long as one leaves others alone — and that it is a natural right with which human beings are endowed a priori. In one rendition, liberty is immanent — something that simply is in human nature, perhaps as a gift from God. In another rendition, humans are endowed with liberty as a logical necessity, because humans own themselves.

But appeals to immanence and self-ownership are no more meaningful than appeals to faith. Such appeals fail because they take liberty as a first principle. Liberty, which is a condition of existence, cannot be a first principle, it can only serve the first principle of existence, which is self-interest. Only experience (of the right kind) and reason can show that liberty serves self-interest….

I say, therefore, that rights arise from human desires (yearnings) and are agreed through political bargaining among humans (either before or after the creation of a state). Then, to be realized (given effect), those rights must be enforced by someone or something: individuals acting in self-defense, by stateless groups (e.g., bands of hunter-gatherers), and even by the state, if it happens to be the right kind of state (e.g., the one envisioned by the Founders of the United States).

I say that rights do not necessarily depend on the existence of a state, but do arise from politics because politics “is the process and method of decision-making for groups of human beings…[which] also observed in all human group interactions….” And those “group interactions” began long before the creation of a state. As Wikipedia puts it, “rights must be understood by somebody in order to have legal existence, so the understanding of rights is a social prerequisite for the existence of rights.”…

Now, I have explained how I think rights come into being, but until a fundamentalist libertarian explains how he thinks the liberty right comes into being I can only conclude that he must think that (a) everyone has the same conception of rights — a proposition that seems to defy experience — or (b) everyone is somehow (mystically) endowed with the same right to liberty.

Perhaps the answer to my challenge lies in the self-ownership argument. That argument, as forumalated by Robert Nozick, goes like this (according to R.N. Johnson’s summary of the political philosophy of Robert Nozick):

The self-ownership argument is based on the idea that human beings are of unique value. It is one way of construing the fundamental idea that people must be treated as equals. People are “ends in themselves”. To say that a person is an end in herself is to say that she cannot be treated merely as a means to some other end. What makes a person an end is the fact that she has the capacity to choose rationally what she does. This makes people quite different from anything else, such as commodities or animals. The latter can be used by us as mere means to our ends without doing anything morally untoward, since they lack the ability to choose for themselves how they will act or be used. Human beings, having the ability to direct their own behavior by rational decision and choice, can only be used in a way that respects this capacity. And this means that people can’t be used by us unless they consent.

The paradigm of violating this requirement to treat people as ends in themselves is thus slavery. A slave is a person who is used as a mere means, that is, without her consent. That is, a slave is someone who is owned by another person. And quite obviously the reverse of slavery is self-ownership. If no one is a slave, then no one owns another person, and if no one owns another person, then each person is only owned by herself. Hence, we get the idea that treating people as ends in themselves is treating them as owning themselves.

…Nozick’s proposition amounts to nothing more than the assertion that everyone must act from the same principle. Immanuel Kant made essentially the same assertion in his categorical imperative:

Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.

Well, what if the person making that statement believes that his end is to be a slave-owner — and he has the power to make me a slave?

The fact is that people, all too often, do not act according to Nozick’s or Kant’s imperatives. As Dr. Johnson said, I refute it thus: Look around you….

Am I suggesting that might makes “right”? No! It’s just that the right to liberty can’t be pulled out of the air in the form of propositions about immanence and self-ownership. Those are philosophical “oughts” that cannot, in themselves, dictate the “is” of human behavior. It is the actuality of human behavior that matters. To influence that, we must turn to reason — for the acceptance of the proposition that liberty serves self-interest — and (as necessary) to the use of force to compel adherence to the dictates of reason.

For, the logic of liberty, as I have said, lies in its superior consequences. Liberty can prevail through mutual assent. But it will not always prevail through mutual assent, because the yearning for liberty competes with other aspects of human nature. The upshot is that humans, for the most part, fail to comprehend that unalloyed liberty is the best servant of self-interest.

I like the way Anthony de Jasay puts it:

The “rights-based” defence of the free market has a startling element in its very foundation which most academic opinion… seems never to question, let alone reproach. In its starkest form, it appears in the famous first sentence of the Preface of Robert Nozick’s [Anarchy, State, Utopia]: “Individuals have rights, and (etc)”. Alternatives might have read “Individuals ought to have rights, and…” or perhaps “If individuals had rights, and…”and would have been unobjectionable, though they might not have conveyed the same message. As it is, this starting point devalues much that follows it and makes Nozick’s defence of the free market wide open to a flank attack. The fault is important because Nozick is probably the most influential libertarian defender of feasible freedom….

We do not in fact know that “individuals have rights” and nothing entitles us to pretend that we do. Characteristically, authors now frequently refer to rights “we have assigned”, from which one could infer that rights are created by somebody somewhere and are then conferred upon individuals (while the correlative obligations are imposed in some unspecified distribution). Nozick tells us that the rights he asserts individuals to have are boundaries that segregate their person, property and contracts. Once again, we wonder how he knows. However, if these particular rights have somehow been “assigned” to them, what is to stop an anti-Nozick, moved by moral concern for the wellbeing of individuals and for what is due to them in respect of their dignity and autonomy, from assigning additional rights to them—rights that are rights-of-way, easements cutting through the Nozickian boundaries? Is this not the rights-based model of “social market economy” or some other hybrid?

Anything to Smear an Anti-Tax Group

AP headline:

Anti-Tax Group Hires Paroled Sex Offender

Followed by this:

A man who spent 18 years in jail after being convicted of raping eight children at a day care where he worked has been hired by an anti-tax group.

Gerald Amirault was convicted in 1986 of molesting and raping 3- and 4-year-old children at the Fells Acres day care center he and his family ran in Malden, a city north of Boston. Amirault, who maintains his innocence, was released on parole last year.

Citizens for Limited Taxation has hired Amirault as a researcher at its Marblehead office. Barbara Anderson, the anti-tax group’s executive director, said she believes Amirault was unjustly convicted and will be an enthusiastic employee.

But here’s the real story, from WSJ.com:

Friday, April 30, 2004 12:01 a.m. EDT

At 10 o’clock this morning, Gerald Amirault will walk out of his Massachusetts jail, a free man.

It is a joyous day for this prisoner, behind bars for 18 years after his 1986 conviction on charges of child sex abuse based on fantastical testimony dragged from pre-schoolers. Gerald’s mother Violet and his sister Cheryl served eight years before their convictions were overturned in 1995.

It is also a happy day for The Wall Street Journal. Readers of this page will be familiar with Dorothy Rabinowitz’s accounts of judicial abuse of the Amirault family and others falsely convicted of child sex abuse during a wave of irrational cases that swept the courts in the 1980s….

One of the reasons behind the district attorney’s decision last week not to oppose Mr. Amirault’s release on parole was that in order to have him classified as a “sexually dangerous person” there would have had to be a virtual re-trial of the entire Amirault case. The DA had to have been deterred by the prospect of parading into a courtroom with the incredible fantasies extracted from Mr. Amirault’s alleged victims–about secret rooms, magic drinks, animal butchery, assaults by a bad clown. Then-District Attorney Scott Harshbarger had offered them as “proof” of the Amiraults’ guilt.

No liberal bias at the Associated Press, right?