More Social Justice

Matt Zwolinksi has a post at Bleeding Heart Libertarians in which he asks “What Is Social Justice?” He offers a couple of specific answers and alludes to others. One of his offerings is something he calls prioritarianism.

Prioritarianism, as I understand it from Zwolinski’s explanation, assumes that (a) the welfare of an individual can be quantified, (b) the welfare of individuals can be summed, (c) the welfare-value of a marginal dollar is inversely proportional to the initial welfare state of the recipient, (d) the inverse relationship is stronger at lower initial welfare-values, and (e) most importantly, in accordance with (b), the welfare gained by the person to whom a marginal dollar is given somehow cancels the welfare lost by the person from whom that dollar is taken.

If this is a valid prescription for “social justice,” it must be capable of implementation. Otherwise, it is no more useful than a map of the Kingdom of Oz.

And who should be in charge of measuring welfare, summing it, and weighing the gains and losses in order to arrive at a socially “just” distribution of income, whatever that is? Well, we know the answer to that question: It has to be the state — or more accurately — elected officials and bureaucrats: people not known for their perspicacity, objectivity, and even-handedness.

In the alternative, a just society could be one where individuals engage in voluntary, cooperative exchanges of goods and services for their mutual betterment, and from the fruits of which they voluntarily aid those whom they know to be in need of aid.

The alternative is inevitably attacked as “unjust.” But it should be noted that such attacks come from individuals (philosophers, politicians, do-gooders, etc.) who would impose their own views of “social justice” on everyone. How any such imposition can be considered more “just” than a regime of voluntary, cooperative, mutually beneficial behavior is beyond me.

I submit that what we now have in the United States is a statist, “prioritarian” regime, with all of real-life arbitrariness, scheming, and graft that inexorably accompanies statism. What we need badly is a reversion to the kind of constitutional order that would allow the alternative to flourish.

Related posts:
Economic Growth since WWII
The Price of Government
The Commandeered Economy
The Price of Government Redux
The Mega-Depression
The Real Burden of Government
Toward a Risk-Free Economy
The Rahn Curve at Work
The Illusion of Prosperity and Stability
Estimating the Rahn Curve: Or, How Government Inhibits Economic Growth

Soros the Bootlegger

In the preceding post I summarized Bruce Yandle’s theory of regulation, which Yandle calls “Baptists and Bootleggers.” The “Baptists” are well-meaning parties who want to protect the public from something that they, the “Baptists,” consider harmful. The “bootleggers” are parties (usually incumbent producers of a product or service) who stand to benefit from regulations that put make it difficult or impossible for competition to arise.

The “bootleggers” side of the equation is known as regulatory capture, which “occurs when a … regulatory agency created to act in the public interest instead advances the commercial or special interests that dominate the industry or sector it is charged with regulating.” Regulatory capture is a common phenomenon, and it should be a telling argument for deregulation. It isn’t, of course, because of the all-too-human tendency to believe that with the right people or party in charge of things, capture would vanish. Good luck with that.

Anyway, it seems that George Soros, in addition to his other sins, is a “bootlegger” par excellence. Michael Knox Beran, writing in City Journal (“Exposing the Elites“), begins with this:

In 1997 George Soros, writing in The Atlantic, declared: “The main enemy of the open society, I believe, is no longer the communist but the capitalist threat.”

The words marked the beginning of a decade and a half of plutocratic progressivism. In July 2003, AFL-CIO political director Steven Rosenthal conferred with some of America’s richest tycoons at El Mirador, Soros’s estate in Southampton, to figure out how to defeat George W. Bush. In August 2004, the president of the Service Employees International Union, Andy Stern—the “most important labor boss in America”—traveled to Aspen to plot strategy in a moneyed conclave that included savings and loan moguls Herbert and Marion Sandler, Progressive Insurance founder Peter Lewis, and businessman John Sperling. Warren Buffett, de facto chairman of the country’s billionaires’ club, endorsed the candidacy of presidential aspirant Barack Obama, while the Democracy Alliance, which Matthew Vadum and James Dellinger dub “Billionaires for Big Government,” bankrolled progressive groups like ACORN and the Center for American Progress.

Beran then explains this odd alliance of plutocrats and “progressives”:

Is there something novel in these alliances which, Demos scholar David Callahan observes, have brought some of the nation’s most notable elites together during the last decade to make common cause with some of the country’s most progressive leaders? Hardly: pacts between munificent plutocrats and progressive reformers are one of the oldest tricks in oligarchy’s playbook….

[Henry] James’s and [Lionel] Trilling’s belief that social pity conceals an unacknowledged desire for power finds corroboration in the behavior of today’s elites, who in promoting the ostensibly virtuous cause of social reform are making a shrewd investment in their own continued dominance. Much of today’s big money was made during the extraordinary period of market liberalization that began around 1980 and came to an end with the crash of 2008. In pushing for a revival of the social state, tycoons who benefited from freer markets seek to limit market competition. If they succeed, they will forestall the emergence of a new generation of innovators, young Turks who would otherwise push the old Croesuses aside.

Classic “bootlegger” behavior. And Soros is a classic “bootlegger.” Ed Lasky, writing at American Thinker (“Soros Wins under Obama’s Energy Policies“), makes a good case that Soros is engaged in an act of massive “bootlegging”:

Are Barack Obama’s energy policies influenced by hedge fund billionaire and political patron, George Soros?

Abby Wisse Schacter, in the New York Post, notes that the Obama administration is clamping down on oil and gas development in America (both onshore and offshore) but is hell-bent on helping other nation’s tap their resources and points out that such help is being showered specifically in New Guinea, of all places.

It is starting to look obvious that the administration doesn’t want oil exploration and extraction at home while it is promoting the same exploration and extraction elsewhere — specifically Brazil and New Guinea….

Others have commented on Obama’s generosity regarding Brazil’s oil wealth and how those actions might help George Soros.

But focus should now turn towards the exotic land of New Guinea.

New Guinea? Why there? Why is he using our taxpayer dollars to help energy development in New Guinea? Hasn’t Secretary of the Interior Salazar bemoaned that his budget is just not large enough to process all the drilling permits submitted for tapping America’s oil and gas wealth? Why are he and the President devoting staff and money to help that undeveloped island nation?

Perhaps, he just wants to pay back George Soros, who was so instrumental in helping his election and the election of fellow Democrats across America. George Soros is the Patron Saint of the Democratic Party and was a very early and generous supporter of Barack Obama’s.  Soros even used a loophole in Federal campaign laws that allowed him and his family to give outsized donations to Barack Obama; he also fielded his army of so-called 527 groups (such as MoveOn.Org) to help Obama win the Oval Office.

Soros also stands to massively benefit if New Guinea becomes an energy power, especially if the American taxpayer subsidizes this development….

We won’t be the beneficiaries from the spending of tax dollars in New Guinea? We may actually be the losers from all that spending.

We have an abundance of natural gas (due to the tapping of our own shale gas reserves); we don’t need LNG. We have such vast amounts of natural gas that ports that were built to import LNG are being reconfigured to export LNG. Why is Obama spending our tax dollars to help a foreign competitor while increasing taxes exponentially on  American oil and gas companies? Why encourage New Guinea to develop its LNG capability to export to China, Japan, and other nations when we can and should export our own LNG to them?

But helping America’s oil and gas industry (and helping lower the energy bills for Americans) is not and never has been on the agenda of Barack Obama.

Obama’s rewarding his friends and donors, who no doubt will reciprocate by supporting him in 2012, is Cook County Politics writ large. That modus operandi has always guided him.

Does his agenda include helping further enrich George Soros, sugar daddy of the Democratic Party?

The “Baptists” in this case are environmentalists and their allies, who’d rather have Americans pay $10 for a gallon of gasoline than run the slightest risk of environmental damage. Well, that’s the excuse, anyway. The fact of the matter is that they’ve been duped into supporting a party that prizes power above all else, and multi-billionaires like George Soros, who profit from that power.

P.S. It’s also possible — and not unlikely — that Soros also has a bigger objective than making himself richer:

Bootleggers, Baptists, and Pornography

Bruce Yandle’s “Bootleggers and Baptists–The Education of a Regulatory Economist” appeared 28 years ago in Cato Institute’s Regulation (vol 7, no. 3). Yandle explains how he came to the evocative phrase “Bootleggers and Baptists”:

I joined the Council on Wage and Price Stability in 1976. There my assignment was to review proposed regulations from the Environmental Protection Agency (EPA), the Federal Trade Commission (FTC), the Department of Transportation (DOT), and parts of the Department of Health, Education, and Welfare (HEW)…. I was ready to educate the regulators. But then I began to talk with some of them, and I began to hear from people in the industries affected by the rules. To my surprise, many regulators knew quite a bit about economics. Even more surprising was that industry representatives were not always opposed to the costly rules and occasionally were even fearful that we would succeed in getting rid of some of them. It was in considerable confusion that I returned later to my university post, still unable to explain what I had observed and square it with the economics I thought I understood.

That marked the beginning of a new approach to my research on regulation. First, instead of assuming that regulators really intended to minimize costs but somehow proceeded to make crazy mistakes, I began to assume that they were not trying to minimize costs at all — at least not the costs I had been concerned with. They were trying to minimize their costs, just as most sensible people do….

Second, I asked myself, what do industry and labor want from the regulators? They want protection from competition, from technological change, and from losses that threaten profits and jobs. A carefully constructed regulation can accomplish all kinds of anticompetitive goals of this sort, while giving the citizenry the impression that the only goal is to serve the public interest.

Indeed, the pages of history are full of episodes best explained by a theory of regulation I call “bootleggers and Baptists.” Bootleggers, you will remember, support Sunday closing laws that shut down all the local bars and liquor stores. Baptists support the same laws and lobby vigorously for them. Both parties gain, while the regulators are content because the law is easy to administer. Of course, this theory is not new. In a democratic society, economic forces will always play through the political mechanism in ways determined by the voting mechanism employed. Politicians need resources in order to get elected. Selected members of the public can gain resources through the political process, and highly organized groups can do that quite handily. The most successful ventures of this sort occur where there is an overarching public concern to be addressed (like the problem of alcohol) whose “solution” allows resources to be distributed from the public purse to particular groups or from one group to another (as from bartenders to bootleggers).-

Where does pornography come in? For a long time, pornography was prohibited, just as alcoholic beverages were (for the most part) during Prohibition. That didn’t stop the production of pornography, of course, but it did reduce the flow of output, making pornography more lucrative  — for those willing to buck the law —  than it would have been in the absence of prohibition.

It should come as no surprise that — even in this day of government-approved licentiousness — there are members of the port industry who are critical of the approval of the .xxx domain. According to,

Internet Corp. for Assigned Names and Numbers (ICNN), the group that supervises the naming system of the Internet, approved .xxx domain for use in pornographic sites. This decision was made amid opposition from porn stars and other people in the industry who contended that the approval will just lead to censorship.

Religious groups also argued that web content of pornographic sites will be legitimized when they are given their own corner of the Internet….

Critics that [sic] include Vivid Entertainment, producer of adult video, and Free Speech Coalition contended that the triple x suffix of the domain would make a virtual section of the Internet that would undermine speech and would eventually lead to censorship.

What the “bootleggers” in the porn industry mean, of course, is that their commercial products will lose value because the .xxx domain will encourage entry into the porn market. Some of the entrants undoubtedly will provide “free samples” in the hope of getting viewers to pay for the more “tantalizing” material that is locked behind paywalls.

The  “Baptists” are the religious groups, of course. And they are sincere in their opposition to .xxx, whereas the “bootleggers” are merely cynical in their opposition.

So, there you have it. Another case study in “Bootleggers and Baptists.” For more, read Yandle’s article in its entirety. Also, read Yandle’s “Bootleggers and Baptists in Retrospect (Regulation, vol. 22, no. 3),” which appeared 15 years later.

Positive Liberty vs. Liberty

There is a special kind of liberty known as “positive liberty,” which is inimical to “liberty,” as that term is properly understood. To show why, I begin by expanding on an earlier post, where I offer the following definition of liberty:

peaceful, willing coexistence and its concomitant: beneficially cooperative behavior

Liberty, thus defined, is liberty — full stop. It is neither negative nor positive. It is a modus vivendi that is accepted and practiced by a social group, in keeping with the group’s behavioral norms. There is no liberty if those norms do not include voice and exit, because willing coexistence then becomes problematic. (For a further elaboration, see “On Liberty” and scroll down to “What Liberty Is.”)

However, peaceful, willing coexistence is likely (and perhaps only) to be found where a close-knit social group lives by the Golden Rule:

One should treat others as one would like others to treat oneself….

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

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

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

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

I must qualify the term “convention,” to say that the Golden Rule will be widely observed within any group only if the members of that group are generally agreed about the definition of harm, value kindness and charity (in the main), and (perhaps most importantly) see that their acts have consequences. If those conditions are not met, the Golden Rule descends from convention to admonition.


Self-governance by mutual consent and mutual restraint — by voluntary adherence to the Golden Rule — is possible only for a group of about 25 to 150 persons: the size of a hunter-gatherer band or Hutterite colony. It seems that self-governance breaks down when a group is larger than 150 persons. Why should that happen? Because mutual trust, mutual restraint, and mutual aid — the things implied in the Golden Rule — depend very much on personal connections. A person who is loathe to say a harsh word to an acquaintance, friend, or family member — even when provoked — often waxes abusive toward strangers, especially in this era of e-mail and comment threads, where face-to-face encounters aren’t involved.  More generally, it’s a human tendency to treat acquaintances differently than strangers; the former are accorded more trust, more cooperation, and more kindness than the latter. Why? Because there’s usually a difference between the consequences of behavior that’s directed toward strangers and the consequences of behavior that’s directed toward persons one knows, lives among, and depends upon for restraint, cooperation, and help. The allure of  doing harm without penalty (“getting away with something”) or receiving without giving (“getting something for nothing”)  becomes harder to resist as one’s social distance from others increases.

When self-governance breaks down, it becomes necessary to spin off a new group or to establish a central power (a state) to establish and enforce rules of behavior (negative and positive). The problem, of course, is that those vested with the power of the state quickly learn to use it to advance their own preferences and interests, and to perpetuate their power by granting favors to those who can keep them in office. It is a rare state that is created for the sole purpose of protecting its citizens from one another and from outsiders, and rarer still is the state that remains true to such purposes.

In sum, the Golden Rule — as a uniting way of life — is quite unlikely to survive the passage of a group from community to state. Nor does the Golden Rule as a uniting way of life have much chance of revival or survival where the state already dominates. The Golden Rule may have limited effect within well-defined groups (e.g., parishes, clubs, urban enclaves, rural communities), by regulating the interactions among the members of such groups. It may have a vestigial effect on face-to-face interactions between stranger and stranger, but that effect arises mainly from the fear that offense or harm will be met with the same, not from a communal bond.

In any event, the dominance of the state distorts behavior. For example, the state may enable and encourage acts (e.g., abortion, homosexuality) that had been discouraged as harmful by group norms; the ability of members of the group to bestow charity on one another may be diminished by the loss of income to taxes and discouraged by the establishment of state-run schemes that mimic the effects of charity (e.g., Social Security).

The attainment of something that all Americans would recognize as liberty is next to impossible. The United States does not comprise a single, close-knit social group, nor even a collection of close-knit social groups. It is a motley, shifting conglomeration of (mostly) loose-knit groups with widely varying social norms and conceptions of harm. It is only a slight exaggeration to say that America is a nation of strangers.

It follows that the only kind of state-sponsored liberty which is possible in America is so-called negative liberty, that is, a regime of 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 we are far from such a regime:

[M]ost 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).

On top of that,

[s]uch 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.

There is much more in the pages of this blog (e.g., here and here). The sum and substance of it all is that liberty is a dead letter in America. It has succumbed to a series of legislative, executive, and judicial acts that have, on the one hand, suppressed and distorted voluntary social and economic relationships and, on the other hand, bestowed positive rights on selected groups to the general detriment of liberty. Positive rights are grants of privilege that can come only at the expense of others, and which are therefore incompatible with the “willing” aspect of liberty.

The clamor for positive liberty ought to set off alarm bells in the minds of libertarians because positive liberty, wrongly understood, justifies positive rights. The last thing this nation needs is what passes for a philosophical justification of positive rights. The first thing this nation needs is a lot fewer positive rights.

Positive liberty is nevertheless on the agenda of the philosophers who blog at Bleeding Heart Libertarians. What is it? According to Wikipedia:

Positive liberty is defined as the power and resources to act to fulfill one’s own potential (this may include freedom from internal constraints); as opposed to negative liberty, which is freedom from external restraint….

…Specifically, … in order to be free, a person should be free from inhibitions of the social structure in carrying out their free will. Structurally speaking classism, sexism or racism can inhibit a person’s freedom….

In other words, it is not enough to have “peaceful, willing coexistence and its concomitant: beneficially cooperative behavior.” That kind of liberty — liberty in the fullest sense — encompasses the acts of love, affection, friendship, neighborliness, and voluntary obligation that help individuals acquire the “power and resources” with which they may strive to attain the fruits of liberty, insofar as they are willing and able to do so.

That should be enough to satisfy the proponents of positive liberty at Bleeding Heart Libertarians, but I suspect otherwise. I would be more sanguine were they proponents of a proper definition of liberty, but they are not. Thus, armed with an inchoate definition of liberty, they are prepared to do battle for positive liberty and, I fear, the positive rights that are easily claimed as necessary to it; to wit:

  • A lack of “power” entitles certain groups to be represented, as groups, in the councils of government (a right that is not extended to other groups).
  • A lack of “resources” becomes the welfare entitlements of various kinds — for personal characteristics ranging from low intelligence to old age — which threaten to suck ever more resources out the productive, growth-producing sectors of the economy.
  • The exercise of “free will” becomes the attainment of certain “willed” outcomes, regardless of one’s ability or effort, which then justifies such things as an affirmative-action job, admission to a university, a tax-subsidized house, etc.
  • “Classism,” “sexism,” “racism,” and now “beauty-ism” become excuses for discriminating against vast swaths of the populace who practice none of those things.

With respect to the final point, a certain degree of unpleasantness inevitably accompanies liberty. Legal attempts to stifle that unpleasantness simply spread injustice by fomenting resentment and covert resistance, while creating new, innocent victims who are deemed guilty until they can prove their innocence.

In sum, the line between positive liberty and positive rights is so fine that the advocacy of positive liberty, however well meant, easily becomes the basis for preserving and extending the burden of positive rights that Americans now carry.

Peter Presumes to Preach

Thanks (?) to one of the Bleeding Heart Libertarians (Jason Brennan, in “Class Experiment on Helping the Poor“), I was introduced to an essay by Peter Singer, “Famine, Affluence, and Morality.” Singer was writing in 1972, when there were thought to be nine million destitute refugees in Bangladesh as a result of the Bhola cyclone of 1970 and atrocities committed by the Pakistani Army during the Bangladesh Liberation War of 1971.

I hope that Brennan, who teaches philosophy at Brown University, is using Singer’s essay to illustrate fallacious reasoning about moral obligations. For that is the lesson to be drawn from Singer’s presumptuous sermon on moral duty and its fulfillment.

I begin the lesson by arranging pertinent excerpts of Singer’s essay to give the main points of his argument:

[1.] I begin with the assumption that suffering and death from lack of food, shelter, and medical care are bad….

[2.] My next point is this: if it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, we ought, morally, to do it….

[3.] The uncontroversial appearance of the principle just stated is deceptive. If it were acted upon, even in its qualified form, our lives, our society, and our world would be fundamentally changed. For the principle takes, firstly, no account of proximity or distance. It makes no moral difference whether the person I can help is a neighbor’s child ten yards from me or a Bengali whose name I shall never know, ten thousand miles away. Secondly, the principle makes no distinction between cases in which I am the only person who could possibly do anything and cases in which I am just one among millions in the same position….

[a.] The fact that a person is physically near to us, so that we have personal contact with him, may make it more likely that we shall assist him, but this does not show that we ought to help him rather than another who happens to be further away. If we accept any principle of impartiality, universalizability, equality, or whatever, we cannot discriminate against someone merely because he is far away from us (or we are far away from him)….

[b.] There may be a greater need to defend the second implication of my principle – that the fact that there are millions of other people in the same position, in respect to the [persons in need], as I am, does not make the situation significantly different from a situation in which I am the only person who can prevent something very bad from occurring. Again, of course, I admit that there is a psychological difference between the cases; one feels less guilty about doing nothing if one can point to others, similarly placed, who have also done nothing. Yet this can make no real difference to our moral obligations….

[4.] The outcome of this argument is that our traditional moral categories are upset. The traditional distinction between duty and charity cannot be drawn, or at least, not in the place we normally draw it….

[5.] It follows from some forms of utilitarian theory that we all ought, morally, to be working full time to increase the balance of happiness over misery…. Given the present conditions in many parts of the world, … it does follow from my argument that we ought, morally, to be working full time to relieve great suffering of the sort that occurs as a result of famine or other disasters…. [W]e ought to be preventing as much suffering as we can without sacrificing something else of comparable moral importance.

Singer continues:

I now want to consider a number of points, more practical than philosophical, which are relevant to the application of the moral conclusion we have reached….

This argument [against private giving] seems to assume that the more people there are who give to privately organized famine relief funds, the less likely it is that the government will take over full responsibility for such aid. This assumption is unsupported, and does not strike me as at all plausible. The opposite view – that if no one gives voluntarily, a government will assume that its citizens are uninterested in famine relief and would not wish to be forced into giving aid – seems more plausible….

I do not … dispute the contention that governments of affluent nations should be giving many times the amount of genuine, no-strings-attached aid that they are giving now….

[Another] point raised by the conclusion reached earlier relates to the question of just how much we all ought to be giving away…. [E]arlier I put forward both a strong and a moderate version of the principle of preventing bad occurrences. The strong version, which required us to prevent bad things from happening unless in doing so we would be sacrificing something of comparable moral significance, does seem to require reducing ourselves to the level of marginal utility [the level at which, by giving more, I would cause as much suffering to myself or my dependents as I would relieve by my gift]. I should also say that the strong version seems to me to be the correct one. I proposed the more moderate version – that we should prevent bad occurrences unless, to do so, we had to sacrifice something morally significant – only in order to show that, even on this surely undeniable principle, a great change in our way of life is required. On the more moderate principle, it may not follow that we ought to reduce ourselves to the level of marginal utility, for one might hold that to reduce oneself and one’s family to this level is to cause something significantly bad to happen…. Even if we accepted the principle only in its moderate form, however, it should be clear that we would have to give away enough to ensure that the consumer society, dependent as it is on people spending on trivia rather than giving to famine relief, would slow down and perhaps disappear entirely. There are several reasons why this would be desirable in itself. The value and necessity of economic growth are now being questioned not only by conservationists, but by economists as well. There is no doubt, too, that the consumer society has had a distorting effect on the goals and purposes of its members. Yet looking at the matter purely from the point of view of overseas aid, there must be a limit to the extent to which we should deliberately slow down our economy; for it might be the case that if we gave away, say, 40 percent of our Gross National Product, we would slow down the economy so much that in absolute terms we would be giving less than if we gave 25 percent of the much larger GNP that we would have if we limited our contribution to this smaller percentage.

Singer’s dicta make it evident that Singer not only is a strong utilitarian but also considers himself the keeper of the collective conscience of mankind. He knows how to measure the pain and pleasure of individuals, how to sum those quantities, and how to redistribute the world’s goods so as to arrive at a sustainable level of net pleasure.

The sustainable level, in Singer’s benighted view, is not the maximum that human beings could produce through their ingenuity, which is never a limited resource. No, the maximum, in Singer’s view, is much less than that because he is also a puritan who “knows” that there is entirely too much “consumerism,” and that its devotees ought to be made to scale it back to the “right” level — as defined by Singer.

In sum, nothing counts unless Singer says it counts. That rules out many values which compete or interfere with Singer’s view of what the world should be like. Those values include liberty, bonds of love and affection, the striving to better oneself and to leave something behind for one’s descendants, the cooperative spirit without which material progress and mutual acts of kinds and charity cannot flourish, and much more.

Singer’s world is a world in which governments apply a formula whereby persons having an “excess” of worldly goods — above some arbitrarily determined minimum — are required to forfeit that “excess” to those who have less than the minimum.

With this understanding of Singer’s mindset, the “logic” of his argument becomes apparent. I restate it more plainly below. Each restatement is accompanied by a libertarian alternative, in bold, italicized type.

1. I begin by appealing to the image of 9 million suffering human beings, as a way of lulling the unwary reader into believing that I am a caring human being, when in fact I have an authoritarian penchant for imposing my views on others.

Every bad thing that happens to an individual is a bad thing for that individual. Whether it is a thing that calls for action by another individual is for that other individual (or a group of them acting in concert) to decide on the basis of love, empathy, conscience, specific obligation, or rational calculation about the potential consequences of the bad thing and of helping or not helping the person to whom it has happened.

2. If it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, we ought to do it. However, it is morally wrong for anyone to have more in the way of material possessions than anyone else. The limit of sacrifice is therefore defined by whatever one has to give up in order to reduce himself and his dependents and descendants to the standard of living that would result through massive income redistribution.

There is no universal social-welfare function. Therefore, it is up to the potential alms-giver to give or not, based on his knowledge and preferences. No third party is in a moral position to make that choice or to prescribe the criteria for making it. Governments have the power to force a choice other than the one that the potential alms-giver would make, but power is not morality.

3a. It is wrong to favor persons nearer to oneself over persons who are farther away. I am able to say that because I believe that such things as family, religion, ethnicity, club, church, community, and nation have no moral relevance. It matters not that individuals may form bonds of mutual respect and affection that lead them to commit acts of kindness and charity toward one another, and to treat each other with restraint. Such things are beyond the ken of the cold rationalist that I am.

It is foolish to say that persons with whom one shares no connection are as important as persons to whom one is connected. It is equally foolish to ignore the positive value of social connections. The personal choice about helping others (or not) may properly take into account the effects of that choice on those connections, without which there would be for more anti-social acts and state interventions.

3b. One’s moral obligation to give aid is unaffected by failure of others to do so.

Moral obligations arise from individual circumstances and mutual understandings, not from philosophical abstractions. But if one is inclined to help others in need, it is reasonable to ask whether a certain amount of money will materially aid those others. If not, withholding the amount may be the wisest course because it will be available for use in a case where it can have a material affect. Giving for the sake of giving can be irrational if one is truly committed to helping others.

4. Charity is duty; therefore, it is not charity.

Charity is a voluntary act that one commits without a sense of obligation; one helps one’s family, friends, neighbors, etc., out of love, affection, empathy, or other social bond. The fact that charity may strengthen a social bond and heighten the benefits flowing from it is an incidental fact, not a consideration. Duty, on the other hand, arises from specific obligations, formal or informal. These include the obligations of parent to child, teacher to pupil, business partner to business partner, and the like. Charity can be mistaken for duty only in the mind of a philosopher for whom love, affection, and individuality are alien concepts.

5. There is a universal social welfare function, and everyone ought to be striving, at all times, to maximize it. Moreover, only I know how to maximize universal social welfare. Anyone who contravenes my edicts is acting anti-socially and ought to be brought into line by the state (as long as it acts according to my dictates, of course).

If there is a universal social welfare function, then reducing the level of consumption in an affluent society just for the sake of reducing it (as Singer would) makes no sense; the outcome would be a reduction of social welfare. Of course, it may be that Singer would be so gratified by the reduction of others’ welfare that his own would rise by enough to offset that reduction. The preceding (facetious) observation points to the emptiness of the concept of a social welfare function, which implies that A’s unhappiness at having money stolen by B (or taxed away for B’s benefit) is canceled by B’s happiness at acquiring the money that he has acquired from A (by theft or taxation).

Finally, at the risk of seeming cold-hearted, I must ask the following question: Given the scarcity of resources (at a given time), is it not better to put those resources to work where they will do the most good? I disagree with Singer’s arguments for abortion and euthanasia (including “death panels“) because, among other things, such practices put us on a slippery-slope toward eugenics. But I can do disagree with Singer and still say that, given a choice, I will (and do) give to those who have a chance of a better life (especially if I love them) before giving to those whose lives seem hopeless.

My first duty (as Singer would say) is to those whom I love. And by helping to secure a future for them, I am also increasing the possibility that one or more of them will invent, develop, or apply technologies that help to prevent the kinds of suffering for which Singer merely prescribes palliatives.

Other posts about Peter Singer:
Peter Singer’s Fallacy
Peter Singer’s Agenda
Singer Said It
Rationing and Health Care

Other related posts:
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
The Mind of a Paternalist
Accountants of the Soul
Rawls Meets Bentham
Enough of “Social Welfare”
The Left
Social Justice
The Left’s Agenda

Substantive Due Process and the Limits of Privacy


David Bernstein of The Volokh Conspiracy discussesThe One and Only Substantive Due Process Clause,” (120 Yale Law Journal 408), by Ryan C. Williams, who is not a law professor but a living, breathing, practicing attorney. Here is the abstract of the article:

The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are among the most debated topics in all of constitutional law. At the core of this debate is the question of whether these clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the due process guarantee should be understood to encompass certain “substantive” protections as well. An important though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive due process question must be the same for both provisions. This Article questions that assumption by separately examining the historical evidence regarding the original public meaning of the Due Process Clauses of both the Fifth and Fourteenth Amendments with a single question in mind: did the original meaning of each clause, at the time of its enactment, encompass a recognizable form of substantive due process? At the time of the Fifth Amendment’s ratification in 1791, the phrase “due process of law,” and the closely related phrase “law of the land,” were widely understood to refer primarily to matters relating to judicial procedure, with the second phrase having a somewhat broader connotation referring to existing positive law. Neither of these meanings was broad enough to encompass something that would today be recognized as “substantive due process.” Between 1791 and the Fourteenth Amendment’s enactment in 1868, due process concepts evolved dramatically, through judicial decisions at the state and federal levels and through the invocation of due process concepts by both proslavery and abolitionist forces in the course of constitutional arguments over the expansion of slavery. By 1868, a recognizable form of substantive due process had been embraced by courts in at least twenty of the thirty-seven then-existing states as well as by the United States Supreme Court and the authors of the leading treatises on constitutional law. As a result, this Article concludes that the original meaning of one, and only one, of the two Due Process Clauses—the Due Process Clause of the Fourteenth Amendment—was broad enough to encompass a recognizable form of substantive due process [emphasis added].

What is substantive due process? Ryan helpfully contrasts it with procedural due process:

[T]he distinction between adjudication-related conduct and nonadjudication-related conduct is sufficiently distinct to serve as a useful dividing line for distinguishing between substantive and procedural rights.

Under the dichotomy sketched above, an interpretation of the Due Process Clauses can be categorized as “procedural due process” if it imposes no constraints on governmental deprivations of “life, liberty, or property” that do not relate to the form of adjudication that must be provided in connection with such deprivations and the procedures that must be observed in connection with such adjudication. By contrast, an interpretation of the Due Process Clauses can be classified as “substantive due process” if, and only if, it would prohibit governmental actors, in at least some circumstances, from depriving individuals of life, liberty, or property even if those individuals receive an adjudication in which “even the fairest possible procedure[s]” are observed. (Id. at 419)

Governmental power, in other words, has limits, and those limits may not (or should not) be breached simply by observing the niceties of judicial or legislative procedure.


Of particular interest are what Ryan calls “Police Powers” Due Process and “Fundamental Rights” Due Process. The former most famously (or infamously) prevailed in the U.S. Supreme Court’s so-called Lochner era (roughly 1897-1937), when the Court

invalidated state and federal legislation that inhibited business or otherwise limited the free market, including laws on minimum wage, child labor, regulations of banking, insurance and transportation industries.

The era takes its name from Lochner v. New York (1905), in which the Supreme Court struck down a State statute that attempted to impose a maximum-hours limitation on bakers. (I discuss this case in “Substantive Due Process, Liberty of Contract, and the States’ Police Power.”) Ryan writes about the “police powers” emphasis of the Lochner era:

The Lochner-era Court’s application of the Due Process Clauses encompassed review of both the ends that the legislature sought to achieve and the means employed to achieve such ends; if the Court determined that either the ends or means chosen exceeded the legislature’s legitimate authority, the law was condemned as a violation of due process. This more flexible conception of due process allowed for legislation to be upheld even if it interfered with preexisting rights or affected identifiable interests in different ways, so long as the government could point to some legitimate justification for the legislature’s decision. Conversely, legislation that fell outside the scope of the state’s traditional police powers could be invalidated even if it did not deprive individuals of preexisting property rights and did not operate unequally. The Lochner-era police powers cases also differed from the earlier property-focused vested rights and general law interpretations by placing principal emphasis on the protection of individual “liberty” rather than “property.” (Id. at 426-7)

The Court’s embrace of substantive due process was broken by the exigencies of the Great Depression, in which a “chastened” and reshaped Court found adequate justification to repudiate the Constitution in favor of the New Deal.


The Court nevertheless resumed its embrace of substantive due process, in a different guise, when various majorities discovered “fundamental rights” in the emanations and penumbrae of the Constitution:

[A] new paradigm of substantive due process decisionmaking began to emerge in cases such as Griswold v. Connecticut [1965, contraception], Shapiro v. Thompson [welfare as a newcomer to a State, regardless of residency requirements, 1969], and Roe v. Wade [1973, abortion]. This new approach, which is the Court’s currently prevailing framework for dealing with substantive due process claims, places principal emphasis on identifying a narrow category of liberty interests that are deemed sufficiently “fundamental” to warrant heightened scrutiny and “forbids the government to infringe . . . ‘fundamental’ liberty interests at all . . . unless the infringement is narrowly tailored to serve a compelling state interest.” (Id. at 427, links added)

Why substantive due process for individuals proclaiming “lifestyle” rights but not for individuals and business owners striving to better their economic lot?

It is likely no coincidence that … early twentieth-century critics of the Supreme Court’s Lochner-era substantive due process jurisprudence, who conducted the first detailed examinations of the pre-Fourteenth Amendment meaning of “due process of law,” failed to identify much support for substantive due process. Nor is it a coincidence that more recent critics of post-Lochner substantive due process decisions have tended to endorse the conclusions of the Lochner-era critics. (Id. at 509-10)

In other words, it all depends on the ideological complexion of the Court. Perhaps even a Court with a solid originalist majority (i.e., a Court with one less Kennedy and at least two more Thomases) would not roll back the precedents of Griswold v. Connecticut and Lawrence v. Texas (2003, homosexual sodomy), but I would be surprised if it did not roll back the precedent of Roe v. Wade et seq.

If there is a fundamental right to privacy, surely it does not encompass everything that flows from private acts. And yet through judicial sleight-of-hand, Roe v. Wade moved constitutional interpretation in that direction.


I have written elsewhere about Roe v. Wade:

Abortion was considered murder long before States began to legislate against it in the 19th century. The long-standing condemnation of abortion — even before quickening — is treated thoroughly in Marvin Olasky’s Abortion Rites: A Social History of Abortion in America. Olasky corrects the slanted version of American history upon which the U.S. Supreme Court relied in Roe v. Wade.

Because abortion was not a right at the time of the adoption of the Ninth Amendment, there is no unenumerated right to abortion in the Constitution. The majority in Roe v. Wade (1973) instead seized upon and broadened a previously manufactured “privacy right” in order to legalize abortion….

In effect, the Roe v. Wade majority acknowledged that abortion is not even an unenumerated right. It then manufactured from specified procedural rights enumerated in the Bill of Rights — rights which are totally unrelated to abortion — and from strained precedents involving “penumbras” and “emanations,” a general right to privacy in order to find a “privacy” right to abortion….

It is therefore unsurprising that the majority in Roe v. Wade could not decide whether the general privacy right is located in the Ninth Amendment or the Fourteenth Amendment. Neither amendment, of course, is the locus of a general privacy right because none is conferred by the Constitution, nor could the Constitution ever confer such a right, for it would interfere with such truly compelling state interests as the pursuit of justice. The majority simply chose to ignore that unspeakable consequence by conjuring a general right to privacy for the limited purpose of ratifying abortion.

The spuriousness of the majority’s conclusion is evident in its flinching from the logical end of its reasoning: abortion anywhere at anytime. Instead, the majority delivered this:

The privacy right involved, therefore, cannot be said to be absolute. . . . We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

That is, the majority simply drew an arbitrary line between life and death — but in the wrong place. It is as if the majority understood, but wished not to acknowledged, the full implications of a general right to privacy. Such a general right could be deployed by unprincipled judges to decriminalize a variety of heinous acts.

The Fourteenth Amendment may countenance a lot of things, but it should not be used to countenance murder.

More about Taxing the Rich

This is a sequel to “Taxing the Rich,” which reproduces my correspondence with a correspondent who laments the unequal “distribution” of income and wealth. This installment is heavily edited, for the sake of brevity. And, for the sake of clarity, I have reorganized our exchange so that each of his points (in italics) is followed immediately by my response (in bold type).

My correspondent opens by referring to a link that I sent him about the distribution of wealth in the United States:

Granted 25% owning 87%  is a lot better than 2% owning 90% like in S. America, but satisfactory? Warren Buffett doesn’t think so. Nor George Soros. Nor do I. So certainly not revolution, but reformation seems in order.

It may be that George Soros and Warren Buffet don’t like the way things are, but their own wealth merely proves that they’re good at making money, not at setting economic policy for the country. Experts who venture outside their own fields of expertise remind me of the doctors who used to endorse Camel cigarettes.

I’m not sure why it’s “bad” that one-fourth of the people in this country own a relatively large fraction of the wealth in this country. The composition of the one-fourth has changed greatly over time, and will continue to change greatly. There’s no entrenched aristocracy that somehow controls the country or determines who gets how much income, except to the extent that money buys a certain amount of political influence. But you will have noticed that the left has been far more influential than the right for a long time, and that a lot of the very rich (perhaps most of them) tend to favor government welfare programs, highly progressive taxes, and other things associated with your party.

In any event, big fortunes are (usually) made by people who did something for their money — invented computer software, picked good businesses in which to invest — and so on. They don’t steal their money from anyone. (The same is true of John D. Rockefeller and the other so-called robber barons of the late 1800s and early 1900s, popular mythology to the contrary.) What they really do is make a lot of money from their investments while — and this is important — also creating better jobs and higher incomes for a lot of Americans. It’s a win-win thing. And it’s been going on for more than 200 years.

So, I can’t understand why it’s thought of as “bad” that some people earn large fortunes in the process of contributing to the growth of the country’s economy. The “concentration” of wealth in a fraction of the populace is just something that happens — it’s not part of a plot. And it means that the wealthy are doing something good, for their own benefit and the benefit of a lot of other people, not that they’ve stolen from others or are somehow oppressing them.

I do understand why this theme is popular now, in a time of economic stress and concerted efforts to reduce the size of government. But, as I’ve said before, I don’t think those efforts can be pinned on “the rich,” though some of them are sympathetic and supportive — just as some of them, like Soros, are unsympathetic and opposed. There are millions of taxpayers who are also feeling the pinch, and they are fed up with the inexorable rise of government spending. The push to cut the size and cost of government is about as “grass roots” as anything I’ve seen in my lifetime.

I do think experts can develop more than one field, especially when they can afford to, and weren’t the doctors endorsing camels paid to do so? Probably not your best example.

And it may not be so bad that 25% own 87%, may be the inevitable Darwinian sort out as you suggest, and it’s not ownership I find so objectionable if I felt they paid their fair share.

I agree that it’s possible for someone to be expert in more than one field, but I haven’t yet read any utterances by Buffet or Soros on economic policy that go beyond pushing their political views. Perhaps I’m not paying enough attention to them, but I doubt that they have anything to offer that I don’t get from reading a variety of “real” economists. It’s probably true that the doctors were paid for endorsing Camels, but the analogy holds true: doctors aren’t necessarily experts in all aspects of medicine. I wouldn’t ask a thoracic surgeon for advice about how to deal with allergies, for example. But that’s beside the main point, which is the question of economic policy and whether there’s something “wrong” with a skewed distribution of income and wealth, and whether high-income people are paying a “fair share” of taxes” (given that they’re already paying the lion’s share).  Bear with me to the end, because you’ll find out that my objective is to defend all taxpayers, and to promote growth that benefits all Americans. My defense of high rollers is merely incidental.

My thoughts about “fair share” and “Darwinism” are given below.

Is it not true that real wages/earnings of middle class or those less than or = $250,000/yr have shrunk or remained stagnant over last 30 years while income of top 2-3% (say, over $1,000,000/yr?) has grown exponentially? I’ve certainly seen studies re CEO pay.

The income of households in all quintiles of the income distribution has been rising, with some bumps along the way. This graph covers 1967-2003: There’s been no significant change since 2003, as indicated by this Excel spreadsheet from the Census Bureau:
Also, it’s important to keep in mind that people aren’t “stuck” in a particular quintile; there’s a general tendency to move up as one ages, and then to drop down a bit after retiring. For more, see this:

My thoughts about CEO compensation are given below.

Isn’t the Tea Party focus on cutting government budgets just months after another unneeded/unwarranted huge tax break for the wealthiest a bit disingenuous? There will always be tug between those of us who think wealthy should pay more because they can afford to as either a Judeo/Christian responsibility or just self protection from violence, but…

Although there’s nothing new about organized efforts to cut government spending (it was a main theme of the GOP from the 1920s to the early 1950s), the current Tea Party movement began in February 2009. It had been gaining ground as an anti-spending movement well before the extension of the Bush tax cuts late in 2010.

Anyway, I don’t think of the two things — spending cuts and tax cuts — as contradictory. They are really complementary. If you see them as contradictory because tax cuts can exacerbate deficits, that may be because you don’t want to see the spending cuts. (I don’t know that for sure, it’s just a guess.) I, on the other hand, see tax cuts as putting more pressure on the folks in Washington to make some spending cuts. The serious problem with the looming deficits isn’t so much the mounting pile of government debt and high interest payments (though those are problems). The serious problem is that government spending absorbs resources that could be put to work building the economy through the operation of the market mechanism — which is how this country’s economic progress has been achieved. (Economic “Darwinism” is a matter of offering things that people value in their daily lives and business operations. If you’re good at it, you’ll prosper; if you’re not, you won’t. I can’t think of a fairer system; any alternative rewards people for doing the wrong things or doing them badly. In that respect, corporate welfare is no better than the other kind.)

As you know from our earlier exchange, high-income people already are paying the lion’s share of taxes in this country. (And, surprisingly, more than their peers in the other industrialized nations: I don’t think it has much (or anything) to do with Judeo-Christian ethics or protecting themselves from violence. It’s the law, and governments have a lot of power when it comes to enforcing the law. Some would gladly pay more, which they can do by sending a donation to the U.S. Treasury. But it isn’t their place to speak for all high-income people, which is gross presumption. A mega-millionaire or billionaire who invests his money in new technologies is doing more for working people than a billionaire who sends the same amount of money to D.C.

The U.S. was prosperous resulting in surplus under Clinton, so we couldn’t go back to the higher tax rates of the Clinton years?

The prosperity under Clinton was a continuation of the growth that began with Reagan’s tax cuts and the success of the Fed’s anti-inflationary efforts in the early 1980s. There was a minor recession in 1990-91, but growth had resumed before Clinton took office. The surpluses that he eventually realized had a lot to do with the fact the his spending proclivities were reined in by the GOP-controlled Congress. So, no, I don’t see any magic in the higher tax rates of the Clinton years. The real magic is a combination of reduced government spending and more incentives for people to do things that create wealth for themselves and jobs and higher incomes for others — that is, lower tax rates across the board.

I know that you’d call this “trickle down economics,” but it’s not really. I’m not just trying to defend high-income earners from ill-advised taxation, I’m trying to defend everyone from it. Economic growth requires not only big investments by high rollers but also small investments by “little people.” Why? Because (a) most new jobs are created in smaller businesses (;, and (b) from acorns do mighty oaks grow (think Ford, Microsoft, and the like). And growth benefits working people generally, and everyone who has a spare dollar to invest in a mutual fund (stocks for the risk-takers, bonds for the risk-averse).

Mega millionaires & billionaires continue to make off with a disproportionate share have pitted us against each other.

I’m not sure what you mean when you refer to “disproportionate share.” Let’s take highly paid athletes. The top-100 single-season salaries in baseball (through 2010) range from A-Rod’s $33 million in 2009 to Richie Sexson’s $16 million in 2008. The average major-league player’s salary in 2010 was $3.3 million ( Are those multi-millionaires making off with a “disproportionate share,” relative to (say) a member of the grounds crew? Or are they simply being paid a requisite amount for their expected contributions to their teams’ bottom lines?

Is the case of CEOs vs. floor sweepers any different? If so, why? In any event, high CEO compensation is mainly a symbolic thing that’s a handy target for griping. Top CEOs don’t make any more than baseball players (, and they’re on the line for the performance of companies that are vastly larger than baseball clubs.

Related posts:
The Causes of Economic Growth
A Short Course in Economics
Addendum to a Short Course in Economics
Enough of “Social Welfare”
The Case of the Purblind Economist
Economic Growth since WWII
The Price of Government
Does the Minimum Wage Increase Unemployment?
The Price of Government Redux
The Mega-Depression
The Real Burden of Government
Toward a Risk-Free Economy
The Rahn Curve at Work
The Illusion of Prosperity and Stability
Society and the State
The “Forthcoming Financial Collapse”
Estimating the Rahn Curve: Or, How Government Inhibits Economic Growth
The Deficit Commission’s Deficit of Understanding
Undermining the Free Society
The Bowles-Simpson Report
The Bowles-Simpson Band-Aid
Build It and They Will Pay
Government vs. Community
The Stagnation Thesis
Government Failure: An Example

Taxing the Rich

UPDATED 03/20/11

The quotation below is the text of a private message I sent to a friend who laments the unequal “distribution” of income and wealth. (I use sneer quotes around “distribution” because the use of the word suggests that there is a pie to be divided; a fallacy that I address later.) The friend likens the United States to corrupt Latin American regimes of yore, where wealth and political power were concentrated in the hands of land owners. He then attributes this mythical situation to Reagan’s “trickle down economics.” Emotion trumps facts, as usual on the left.

I’m sending this for your private consideration, in view of your latest post. I’m not sure what prompted that post, or what it’s based on, but there are a lot of misconceptions about income distribution and tax burdens in the United States. First, income rises across the board; it isn’t just “the rich” who get richer (, unlike Latin America, there is a lot of mobility across income groups; “the rich” are not the same set of people from year to year and decade to decade ( Third, most of “the rich” in the U.S. got that way by earning their incomes (, unlike Latin American aristocrats. Fourth, “the rich” already pay the lion’s share of income taxes (

Although most people in the United States deserve what they earn, because they’re not stealing it from other people, I agree that there are a lot of high rollers who earn more than they would if they weren’t granted special privileges by government. The giveaways to the financial industry are a notorious example. But bankers are only the tip of the iceberg, which extends down through many income levels. Not far from the top are members of Congress, who have one of the best self-created pension rackets going. (A cushy, guaranteed, taxpayer-funded pension amounts to a substantial, untaxed bonus.) Further down the ladder, but still worthy of note, are government employees — whether unionized or not — whose low quit-rates attest to the fact that their compensation (which usually includes generous pension benefits) is above what they could earn in the private sector. It is only in the past few years that public-sector employees have begun the feel the effects of tight budgets. Which is to say that they’ve had a free ride for a long time, at taxpayers’ expense.

Bottom line: A high income isn’t necessarily a sign of political corruption or special privileges. Nor is it clear that high-income earners are paying less than their “share.” A good case can be made that they’re paying too much, because it’s high-income earners whose investments fund growth-producing, job-creating technology and business start-ups. What bothers me is people — at all income levels — who are given special privileges by government, which the rest of us pay for in taxes and higher prices for certain goods and services.


My friend replies:

Thanks for offering your views, but I can’t see how 2% essentially owning 90% is good for the country, nor do I think it will stand.

My response:

I don’t know what you mean by 2% “owning 90%” of the country. It’s true that wealth is concentrated, but that has been true since the birth of the Republic, and it’s to be expected because wealth is strongly (but not perfectly) correlated with income. And except where government grants the kinds of privileges I mentioned earlier, one’s income depends on talent and effort. Further, as I pointed out earlier, income disparities aren’t permanent; there’s plenty of mobility in the U.S., up and down the ladder.

The U.S. isn’t a feudal aristocracy, ripe for revolution because of actual oppression. Some people make it, and some don’t; those who make it (excepting the beneficiaries of government privileges) are able to do so because, in this country, they’re free to reap the fruits of their effort and ability.

Moreover, there’s no fixed “pie” of wealth that’s jealously guarded by a ruling clique. There’s a (usually) growing pie, to which each able person adds as he or she is willing and able. And it belongs to those who produce it — not to “the country.”

If you’re interested in actual facts (as opposed to myths and slogans), you should read the links I sent previously (if you haven’t already) and also this one:

Some Leit(er) Reading

In recent news:

“Still waiting for any of the brilliant liberals to explain the difference between Leiter’s ‘philosophical musings’ and Sharron Angle’s discussion of Second Amendment remedies.”

“It’s sad that Brian Leiter seems to put so much effort into reinforcing — or, perhaps the proper term is ’embodying’ — right-wing stereotypes regarding the academy.”

The Ethics of Publishing Cease-and-Desist Letters

Which is old news for Leiter “fans”:

Brian Leiter Is an Idiot

What’s With the Name Calling?

Through the Looking Glass with Leiter

Making an Exception

Leading Indicators?

If the political mood of the country (or much of it) doesn’t change markedly in the next several months, don’t be surprised if there’s an anti-Obama insurgency in the Democrat party. The Democrats my lose the White House no matter the party’s nominee for president, but a landslide loss would create an anti-Democrat bandwagon effect that lasts for years or decades.

For the history challenged among you, I point to the post-Civil War succession of Republican administrations from 1869 to 1913, broken only by the two terms of Grover Cleveland — a pro-business, gold-standard, small-government, northern Democrat. Then, there was the reaction to the Great Depression, which yielded Democrat presidencies from 1933 to 1969, broken only by the two terms of Dwight Eisenhower — a middling Republican known mainly to the public as the general in charge of the D-Day invasion and subsequent defeat of Hitler’s armies.

With those precedents in mind, there must be a goodly number of influential Democrats who are thinking about alternatives to Obama. If they are not, they should be. BO’s net popularity index has returned to the slough of despond, after having risen somewhat in the post-election “honeymoon” that followed BO’s cave-in on the extension of the Bush tax cuts:

Each plot-point represents the 7-day trend in BO’s net popularity (or lack thereof). Net popularity is measured as the percentage of likely voters who strongly approve of BO, minus the percentage of likely voters who strongly disapprove of BO. The approval and disapproval statistics are derived from Rasmussen Reports’ Daily Presidential Tracking Poll. I use Rasmussen’s polling results because Rasmussen has a good track record with respect to presidential-election polling.

Then there is Obamacare, which has never been popular, and has just receded to its lowest rating since congressional Democrats committed collective suicide by ramming it through:

Derived from this article and its predecessors at Rasmussen Reports. Poll results before passage of Obamacare represent strong approval minus strong disapproval. Poll results after passage of Obamacare represent strong approval of repeal minus strong disapproval of repeal.

A Digression about Probability and Existence

The probability of an event can be the probability that it will (or could) happen, or the relative occurrence of the event as that occurrence is observed in nature or experiment.

It is known, for example, that the following prior probabilities attach to the outcome of a single roll of a pair of fair dice:

And if a single person rolled a pair of dice 1,000,000 times or 1,000,000 persons each rolled a pair of dice once, the result would be close (but not necessarily identical) to this:

But the fact that a single player, on a single roll, throws a 2, 5, 9, 12, or any other sum tells us nothing about the number of rolls the player has made or will make, nor does it tell us anything about the number of players who may have rolled dice at the same moment. All it tells us is that the player has attained a particular result on that particular roll of the dice.

This is at odds with the view that there is life as we know it — an outcome with a low, prior probability given the (theoretical) multitude of possible configurations of the universe — only because there are vastly many actual or possible universes with vastly many configurations. In this view, life as we know it is an improbable phenomenon that we are able to witness only because we happen to exist in one of the multitude of possible or actual universes.

So, is our universe and the life that has arisen in it a consequence of design, or is it all a matter of “luck”? And if it is due to “luck,” what created the material of which the universe is made and what determined the laws that are evident in the actions of that material?

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

The China Syndrome

Many (most?) “deficit hawks” invoke China as a reason to reduce government debt. The hawks say something like this: “China holds a lot of our debt and, presumably, will buy more of it, which means that ‘we’ are beholden to China.”

By that logic, China is beholden to “us” because China’s purchases of U.S. government debt are financed by Americans’ purchases of Chinese products. Moreover, there is not (as far as I know) a provision in U.S. securities that enables the holder to demand payment before the securities mature.

The real “threat” is that U.S. securities will become unattractive to China (and others), and so China (and others) will quit buying them. But that possibility has nothing to do with China (or any other foreign nation), and everything to do with prospective debt-buyers’ views about the soundness of U.S. government securities. A case in point is PIMCO, a huge investment company. Bloomberg News reports:

Bill Gross, who runs the world’s biggest bond fund at Pacific Investment Management Co., eliminated government-related debt from his flagship fund last month as the U.S. projected record budget deficits.

The economic threat to the U.S. doesn’t come from China, it comes from the U.S. government.

The Meaning of Liberty

If you were a physicist who was writing about Einstein’s special theory of relativity, would you bother to list the ways in which non-physicists define the concept? I doubt it.

But at least one of the bloggers at Bleeding Heart Libertarians — a new group blog whose eight contributors (thus far) are professors of law and/or philosophy — advances the proposition that “liberty” means whatever non-philosophers think it means. The contributor in question, Jason Brennan, justifies his preference by saying  that liberty “is a concept philosophers are interested in, but it’s a not a philosopher’s technical term.”

That may be so, but I would think that philosophers who are going to use a term that is central to the theme of their blog — the connection of libertarianism to social justice — would begin by searching for a relevant and logically consistent definition of liberty. Brennan, instead, casts a wide net and hauls in a list of seven popular definitions, one of which (negative liberty) has three sub-definitions. That may be a useful starting point, but Brennan leaves it there, thus implying that liberty is whatever anyone thinks it is.

His evident purpose in doing so is to leave the door open to a positive definition of liberty, while dismissing those who maintain that logic demands a negative definition of liberty. Consider Brennan’s list, which he calls partial and in which he uses “freedom” for “liberty”:

  1. Freedom as Absence of Obstacles: Someone is free to the extent that no obstacles impede her ability to do as she pleases.

    [a.] Freedom as Absence of Deliberate Interference: Someone is free to the extent that no one deliberately interferes with her ability to do as she pleases.
    [b.] Freedom as Absence of Interference: Someone is free to the extent that no one interferes with her ability to do as she pleases.
    [c.] Freedom as Absence of Wrongful Interference: Someone is free to the extent that no one wrongfully interferes with her ability to do as she pleases.

  2. Freedom as Capacity: Someone is free to the extent that she has the power, ability, capacity, or means to do as she pleases.
  3. Freedom as Autonomous SelfControl: Someone is free to the extent that she exhibits sufficient deliberative self-control, such that she is authentically the author of her actions.
  4. Freedom as Non-Domination: A person is free to the extent she is not subject to another person’s or group’s arbitrary will.
  5. Freedom as Moral Virtue: A person is free to the extent she has the power to recognize and act upon her moral obligations.
  6. Freedom as Absence of Pressure: A person is free to the extent she feels no social pressure to do anything.
  7. Freedom as Absence of Reasons: A person is free to the extent she has no grounds or reasons for making decisions.

And so on. Notice that 1a­–1c are just more specific version[s] of 1.

[A person who insists on using the politically correct “she” in place of the traditional and, in truth, gender-neutral “he” is likely to be a person who is driving toward an acceptable answer instead of the right answer.]

I am struck by the fact that none of the definitions offered by Brennan is a good definition of liberty (about which, more below). This suggests to me that Brennan and (possibly) the other contributors to Bleeding Heart Libertarianism will offer views about the connection of libertarianism and social justice that have nothing to do with liberty, but which merely reflect their various visions of preferred socioeconomic arrangements* and the uses (or non-uses) of state power in the attainment thereof. I therefore humbly suggest that the next order of business at Bleeding Heart Libertarianism ought to be a concerted effort to define the concept that is part of the blog’s raison d’etre.

To help Brennan & Co. in their quest, I offer the following definition of liberty, which is from the first post at this blog, “On Liberty“:

peaceful, willing coexistence and its concomitant: beneficially cooperative behavior

The problem with the definitions listed by Brennan should now be obvious. Those definitions focus on the individual, whereas the relevant definition of liberty is a social one. That is to say, one cannot address social justice and its connection to liberty unless liberty is viewed as a modus vivendi for a group of individuals. There is no such thing as the ability to do as one pleases — the dominant motif of Brennan’s list — unless

  • one lives in complete isolation from others, or
  • one lives in the company of others who are of identical minds, or
  • one rules others.

The first condition is irrelevant to the matter of social justice. The second is implausible. The third takes the point of view of a dictator, and omits the point of view of his subjects.

The implausibility of the second condition is critical to a proper understanding of liberty. Brennan says (in “Positive Liberty and Legal Guarantees“) that “[w]e often equate freedom with an absence of constraints, impediments, or interference.” In a political context (i.e., where two or more persons coexist), there are always constraints on the behavior of at least one person, even in the absence of coercion or force. Coexistence requires compromise because (I daresay) no two humans are alike in their abilities, tastes, and preferences. And compromise necessitates constraints on behavior; that is, compromise means that the parties involved do not do what they would do if they were isolated from each other or of like minds about everything.

In sum, “peaceful, willing coexistence” does not imply “an absence of constraints, impediments, or interference.” Rather, it implies that there is necessarily a degree of compromise (voluntary constraint) for the sake of “beneficially cooperative behavior.” Even happy marriages are replete with voluntary constraints on behavior, constraints that enable the partners to enjoy the blessings of union.

The specific landscape of liberty — the rights and obligations of individuals with respect to one another — depends on the size and composition of the social group in question. It is there that the question of positive vs. negative liberty (really positive vs. negative rights) takes on importance. I will tackle that question in a future post.


* Sure enough, only a few hours after I posted this, we hear from the newest recruit to Bleeding Heart Libertarianism, Roderick Long (a left-libertarian whom I have addressed before). Long’s is a left-libertarian because he is against state power but, at the same time, against outcomes that can occur in the absence of state power:

On the one hand, I’m committed to libertarianism in a fairly standard sense: self-ownership, the non-aggression principle, Lockean homesteading, private property, and free markets. On the other hand, I’m committed to a fairly standard set of traditionally leftist concerns, including opposition to such social evils as worker exploitation, plutocratic privilege, racism, homophobia, gender inequality, militarism, environmental degradation, and the prison-industrial complex. (Call them all “oppression” for short.)

“Worker exploitation” is what happens when workers and employers are free to agree about the terms and conditions of employment, which is good for competent, productive workers and bad for incompetent, unproductive ones (the ones that unions protect). “Plutocratic privilege” is bad only if it is the result of crony capitalism; otherwise, it is merely a case of well-to-do individuals enjoying the fruits of what they have earned. “Racism” is a inescapable aspect of human nature, and it cuts in all directions; typical efforts to compensate for it result in the theft of property rights and the hiring and promotion of less-qualified persons. “Homophobia” is a personal choice, and efforts by the state to squelch it will surely result in the theft of property rights and denial of freedom of speech. “Gender inequality” is mostly a figment of the imagination of leftists who always fail to take into account differences in age, experience, and aptitude when lamenting the fact that women generally earn less than men and are “underrepresented” in certain occupations. “Militarism” is what has kept many a Roderick Long from going to the concentration camps of Nazi Germany and the gulags of Soviet Russia. “Environmental degradation” is vastly overrated, to the point where Americans pay more for a lot of things than they should (oil among them), and is becoming an excuse for prohibitively costly and needless regulations aimed at fighting a myth and scientific fraud: anthropogenic global warming. The “prison-industrial complex” has, in fact, kept violent criminals off the streets and led to a reduction in the rate of violent crimes.

I am surprised that Long doesn’t have “universal health care” and “living wage” on his list.

Roderick Long is to libertarianism as Adolf Hitler was to capitalism. Long wants a stateless world, but only if the “free” people in it have “correct” attitudes and beliefs.

Texas, The New York Times, and Teen Pregnancy

There is something about Texas that irritates lib’ruls — especially those who write for The New York Times. The latest case in point is a column by Gail Collins (“Mrs. Bush, Abstinence and Texas,” Feb. 16, 2011), in which Ms. Collins notes that Texas “ranks third in teen pregnancies — always the children most likely to be in need of extra help. And it is No. 1 in repeat teen pregnancies.” Why? According to Collins, it’s because “Texas is doing as little as possible to help women — especially young women — avoid unwanted pregnancy,” and “it’s extremely tough for teenagers to get contraceptives in Texas.”

There is one thing to be said for lib’rul columnists — they don’t need facts, especially when they “know” that the world’s problems are caused by callous Republicans like Gov. Rick Perry. Ms. Collins was in such a hate-filled rush to blame the high teen pregnancy rate in Texas on its Republican governor (a busy man, he) that she overlooked the real cause of the high rate: the large Hispanic population of Texas.

Here are the facts, according to the 2011 Statistical Abstract, an official publication of the U.S. government (a.k.a. the omniscient, benevolent institution to which lib’ruls bow thrice daily):

Putting two and two together — a trick that Ms. Collins evidently has not mastered — yields the less-than-startling conclusion that teen-pregnancy rates are determined not by the political affiliation of a State’s governor but by the State’s demographic composition.

Incidentally, the demographic determinant is backed (unwittingly) be left-leaning PolitiFact Texas (PFT). Today’s PFT emission merely quibbles with Collins by pointing out that she “incorrectly referred to Texas’ teen birth rate as a pregnancy rate — Texas actually ranks fourth in teen pregnancies, not third.” Which States hold down the number 1, 2, and 3 spots? According to PFT, they are Arizona, Nevada, and New Mexico. Guess what? Those States rank 4th, 5th, and 1st in percentage of population of Hispanic origin.

Get the picture? Gail Collins doesn’t. That’s what happens when your left-wing heart is filled with hate for Republicans.

P.S. to Ms. Collins: If you happen across this post, pass it along to your colleague, Mr. Krugman. He is another factually challenged, hate-filled leftist.

Related posts:
The Left
Our Enemy, the State
Is the Anger Gone?
A Not-So-Fine Whine
Social Justice
The Left’s Agenda

More Thoughts about Evolutionary Teleology

In “Evolution, Human Nature, and ‘Natural Rights’,” I address the proposition that humans have natural ends that have arisen through evolution and which imply the necessity of negative “natural rights.” My purpose here is not to revisit the proposition, which I firmly reject for the reasons given  in “Evolution, Human Nature, and ‘Natural Rights’,” but to focus on my reasons for rejecting the linchpin of the proposition: evolutionary teleology, or teleonomy. This is the

apparent purposefulness and of goal-directedness of structures and functions in living organisms that derive from their evolutionary history, adaptation for reproductive success, or generally, due to the operation of a program.

Francisco Ayala offers a specific example in his essay, “Teleology and Teleological Explanations,” at Evolutionary Biology:

The wings of birds call for teleological explanation: the genetic constitutions responsible for their configuration came about because wings serve to fly and flying contributes to the reproductive success of birds. But there was nothing in the constitution of the remote ancestors of birds that would necessitate the appearance of wings in their descendants. Wings came about as the consequence of a long sequence of events, where at each stage the most advantageous alternative was selected among those that happened to be available; but what alternatives were available at any one time depended, at least in part, on chance events.

In short, the end (survival of the species through reproductive success) dictates the means (the development of wings). Nonsense. “Contingent teleology” is nothing more than “what happened as a result of breeding, random mutation, geophysical processes, and survival of the fittest and/or luckiest, as the  case may be.” The usual shorthand for all of that is “natural selection.” But “selection” is inappropriate because — unless there is such a thing as Intelligent Design — no one (or no thing) is selecting anything.

Evolutionary zoologist John O. Reiss exposes the fallacy of teleology in Not by Design: Retiring Darwin’s Watchmaker. This is from the first chapter:

The general mode of thinking that I object to goes as follows: “character x plays a useful (‘adaptive’) role in the life of organism y; therefore, character x must have evolved by natural selection for this role.” The definitional equation of adaptations and past natural selection is fairly standard in evolutionary biology today: “a feature is an adaptation for a particular function if it has evolved by natural selection for that function” (Futuyma 2005, 265). When combined with the assumption that useful features or characters are in fact adaptations by this definition, a teleological role for natural selection results. In this role, natural selection is inferred to have directed evolution from an unimproved (poorly adapted) past state toward an improved (well-adapted) present state, merely on the basis that the present state exists and is well adapted….

While the best solution might be to do what Wallace suggested so long ago—to completely extirpate the term natural selection from the lexicon of evolutionary biology—the term is by now too well established to replace….

…I believe that the continued teleological use of the concept of natural selection, in spite of the obvious problems involved, is due primarily to the absence of another evolutionary principle that can be used to interpret patterns of macroevolutionary transformation. Fundamental to my restriction of the term natural selection will be the reintroduction of another principle, related to and often confused with that of natural selection. This principle is founded on the concept of the necessary conditions for an organism’s (or other evolutionary entity’s) continued existence; it states that (by definition) the existence of any organism is contingent on its satisfaction of these conditions.

Of particular relevance is Reiss’s observation that “natural selection is inferred to have directed evolution from an unimproved (poorly adapted) past state toward an improved (well-adapted) present state, merely on the basis that the present state exists and is well adapted.” That formulation of evolutionary teleology exposes it as an instance of the hypostatization fallacy:

Hypostatization (together with the closely related fallacy of reification) may be the most common of all fallacies. Whole systems of philosophy, politics, religion, science, and social theories are built on or supported by this fallacy.11


“Nature’s purposes are always pure, therefore we should always accede to her.” Nature has no purposes.

“The only just laws are those that relieve a society’s suffering.” Laws do not “relieve” anything, and “societies,” do not suffer.

“Industry is a danger to both nature and society.” Here are three hypostatized abstractions, industry, nature, and society. Industry is not a “thing” that does anything, and neither nature or society are things to which anything is done. Some industries might do something that is harmful to some natural things or some persons in some society, but treating any of these as entities, even collective entities, is fallacious.

“What are personal considerations in the face of the needs of society, the fate of the nation, the preservation of culture?” Since, society has no needs, nations do not have fates, and there is no such thing as culture to preserve, personal considerations are all that are left.

“My fellow Americans, ask not what your country can do for you: Ask what you can do for your country.” -(John F. Kennedy) Obviously rhetorical, and therefore, all the more subtle. Behind the rhetoric is the insidious concept that citizens exist for the sake of a country (state or government), the opposite of the intention of the American Constitutional, that government exists for the sake of the citizens.

Evolutionary teleology boils down to this: Species seek survival, therefore species acquire characteristics that improve their chances of surviving. In fact:

  • Species do not do anything as species; there is no such thing as species-consciousness.
  • Species do not acquire characteristics in the way that a person acquires a pair of glasses to improve his ability to see.
  • It is tautologous to say that something survives because it has “acquired” the wherewithal to survive.

The preceding analysis points to another, more subtle, fallacy in evolutionary teleology, a fallacy known as observation selection bias. Philosopher Nick Bostrom illustrates it, in “A Primer on the Anthropic Principle“:

[S]uppose you’re a young investor pondering whether to invest your retirement savings in bonds or equity. You are vaguely aware of some studies showing that over sufficiently lengthy periods of time, stocks have, in the past, substantially outperformed bonds (an observation which is often referred to as the “equity premium puzzle”). So you are tempted to put your money into equity. You might want to consider, though, that a selection effect might be at least partly responsible for the apparent superiority of stocks. While it is true that most of the readily available data does favor stocks, this data is mainly from the American and British stock exchanges, which both have continuous records of trading dating back over a century. But is it an accident that the best data comes from these exchanges? Both America and Britain have benefited during this period from stable political systems and steady economic growth. Other countries have not been so lucky. Wars, revolutions, and currency collapses have at times obliterated entire stock exchanges, which is precisely why continuous trading records are not available elsewhere. By looking at only the two greatest success stories, one would risk overestimating the historical performance of stocks. A careful investor would be wise to factor in this consideration when designing her portfolio….

The focus of evolutionary teleology is on evolutionary success. The ultimate success is survival, which — in a teleological explanation of evolution– is the ultimate purpose of a species, the end toward which it “acquires” characteristics. Does this imply that extinct species had the ultimate purpose of extinction, thus “acquiring” characteristics that ensured extinction?  More plausibly, some species happen to survive (and some to die out) because their characteristics — along with the “luck” of not being (or being) in the wrong places at the wrong times — help to ensure their survival (or extinction) in the face of threats beyond their control: geophysical changes (abrupt and gradual), predators, diseases.

The focus on success ignores the fact that extinct species evolved to some degree before meeting with threats that they could not surmount. It also assumes that success to date ensures success in the future. Imagine an adherent of evolutionary teleology who is transported to a time when dinosaurs roamed the earth. By his reckoning, dinosaurs would have “selected” their characteristics in order to ensure their survival. The same person, thrust a million years into the future, might conclude that cockroaches were destined to inherit the earth.

Re-Forming the United States

UPDATE: The urgency of re-forming the United States is underscored by “Our Perfect, Perfect Constitution.” The author, Michael Stokes Paulsen (Distinguished University Chair and Professor of Law at the University of St. Thomas (Minnesota) School of Law), restates the entire Constitution in the form of twenty provisions that reflect the current state of constitutional law as established by decisions of the Supreme Court. Paulsen’s version of the Constitution is true, depressing, and enraging.

Paulsen wrote his paper before U.S. District Judge Gladys Keesler opined that the central government may regulate mental activity.  Judge Keesler’s view, which is applauded on the left, is the last straw. The juggernaut that rules from Washington is nothing more than an alien occupying force. It should be treated accordingly by liberty-loving Americans.

The specter of constitutional revitalization haunts “liberals”:

Imagine that, a few years from now, Americans are suddenly plunged into a constitutional crisis. Imagine an economy still muddling in recession; a government rendered inept by the complete collapse of the Senate as a serious institution of deliberation or a continued division between House and Senate; a conservative Supreme Court gripped by a passion to restore the pre-New Deal version of the Commerce Clause (which treated commerce merely as the physical movement of goods across state lines); a militant Tea Party movement convinced that the Tenth Amendment imposes real limits on the lawmaking power of Congress, and is not simply a hollow “truism” saying that Congress can only do what it is constitutionally empowered to do. These days, conjuring up such a vision is not so hard. Imagine that somehow the belief took hold that what the Constitution needed was not a revision here or there, but wholesale replacement. (Jack Rakove of Stanford University, in “American Ratification,” Harvard Magazine, January-February 2011)

How much misrepresentation and distortion is packed into that paragraph? Let’s see:

1. The United States has been in constitutional crisis since the 1930s, when the Supreme Court — frightened by the Great Depression, cowed by FDR, and then reshaped by him — allowed Congress and the States to exceed their constitutional authority. To the Rakoves of this world, a constitutional crisis is what happens when there’s a movement to honor the spirit and letter of the Constitution.

2. The state of the economy, the state of the Senate, and a “divided” House and Senate (i.e., not both controlled by Democrats) are hardly the stuff of a constitutional crisis. The standing of the Constitution is — and should be — unaffected by such things, unless one believes (with the New Deal Supreme Court) that the law should bend with economic winds, and that it is the rightful place of Congress to actively involve itself in every nook and cranny of Americans’ lives.

3. The pre-New Deal version of the Commerce Clause is the correct one, contrary to Rakove’s desire for an all-powerful state.

4. The Tenth Amendment isn’t “hollow.” It underscores — for the benefit of the willfully obtuse, like Rakove — the express limits that the original Constitution places on Congress’s power. In leaving no doubt that the States and the people retain the powers not specifically assigned to Congress, it removes (or should remove) any ambiguity about the limited role that Congress (and the federal government) should play in the lives and businesses of Americans. It says that the Constitution means what it says. It is “hollow” to Rakove and his ilk only because they don’t want the Constitution to mean what it says.

5. In that vein, I must add that the “militant Tea Party” movement seeks to honor the entire Constitution, not just the important Tenth Amendment. Rakove wants to believe — or wants his readers to believe — that the Tea Party movement is made up of morons who don’t understand what’s in the original Constitution. Well, the true morons are the Rakoves, who believe that their expansive view of governmental power can’t be turned against them.

6. Rakove posits two options for dealing with the so-called crisis: a revision here or there, or wholesale replacement of the Constitution. There’s a third option: wholesale rewriting to reassert, in no uncertain terms, the meaning and purposes of the Constitution. That’s what Rakove and his ilk really fear, because they’re wedded to the judicially created, left-statist version of the Constitution that has replaced the real thing without benefit of an amendment.

For non-Rakovians — that is, for devotees of the real Constitution — I counsel the following steps:

  • A sufficient number of States (at least one-half of them) would declare their independence from the United States, on the ground that the central government has breached its contract with the States by persistently abusing its powers over many decades.
  • Those States would then convene a constitutional convention to re-form the United States, by adopting a new Constitution that — in no uncertain terms — restates the principles of the original Constitution and ensures their enforcement through additional checks on the central government.

With regard to the second point, Article V of the new Constitution would include this:

A judgment of any court of the United States of America may be revised or revoked by an act of Congress, provided that such any revision or revocation is approved by two-thirds of the members of each house and leads to a result that conforms to this Constitution.

There is this, in Article VI:

Each State retains the right to secede from this Union, but secession shall in each case be approved by three-fourths of the members of each house of a State’s legislature and ratified by the executive of the State within thirty days of its approval by both houses of the State’s legislature.

Articles VII and VIII, Keeper of the Constitution and Conventions of the States, open thusly:

The responsibility for ensuring that the legislative, executive, and judicial branches adhere to this constitution in the exercise of their respective powers shall be vested in a Keeper of the Constitution. The Keeper may review acts of Congress, the executive branch, and judicial branch that have the effect of making law and appropriating monies.

*    *    *

Delegations of the States shall convene every four years for the purpose of considering revisions to and revocations of acts of the government that is established by this constitution. Such conventions (hereinafter “convention of the States”) may revise and/or revoke any act or acts and/or any holding or holdings, in the sole discretion of a majority of State delegations present and voting.

Article IX would authorize petitions and subsequent elections for the revocation of a broad range of governmental acts and the expulsion of members of Congress, the President, Vice President and justices of the Supreme Court. Also, a constitutional convention may be called pursuant to a successful petition.

I understand that I am proposing a radical step, but I believe that it is impossible to reinstate the real Constitution in any other way. Perhaps the threat of radical measures would have a sobering effect on those who are content with the status quo or incremental progress… but probably not.

See “The Constitution: Myths and Realities“.

More about Conservative Governance

In “Evolution, Human Nature, and ‘Natural Rights‘,” I quote at length from Michael Oakeshott’s essay “On Being Conservative (Rationalism in Politics and Other Essays, New and Expanded Edition). The point served by the quotation is that it is unnecessary to erect a regime of liberty on a deep philosophical foundation of the kind proffered by “natural rights” theorists. Conservatism, properly understood, is an attitude toward life, in general, and the role of government, in particular; it is not a political ideology.

There is much more to be said, and Oakeshott says it exceedingly well:

To some people, ‘government’ appears as a vast reservoir of power which inspires them to dream of what use might be made of it. They have favourite projects, of various dimensions, which they sincerely believe are for the benefit of mankind, and to capture this source of power, if necessary to increase it, and to use it for imposing their favourite projects upon their fellows is what they understand as the adventure of governing men. They are, thus, disposed to recognize government as an instrument of passion; the art of politics is to inflame and direct desire. In short, governing is understood to be just like any other activity — making and selling a brand of soap, exploiting the resources of a locality, or developing a housing estate — only the power here is (for the most part) already mobilized, and the enterprise is remarkable only because it aims at monopoly and because of its promise of success once the source of power has been captured….

Now, the disposition to be conservative in respect of politics reflects a quite different view of the activity of governing. The man of this disposition understands it to be the business of a government not to inflame passion and give it new objects to feed upon, but to inject into the activities of already too passionate men an ingredient of moderation; to restrain, to deflate, to pacify and to reconcile; not to stoke the fires of desire, but to damp them down. And all this, not because passion is vice and moderation virtue, but because moderation is indispensable if passionate men are to escape being locked in an encounter of mutual frustration. A government of this sort does not need to be regarded as the agent of a benign providence, as the custodian of a moral law, or as the emblem of a divine order. What it provides is something that its subjects (if they are such people as we are) can easily recognise to be valuable; indeed, it is something that, to some extent, they do for themselves in the ordinary course of business or pleasure…. Generally speaking, they are not averse from paying the modest cost of this service; and they recognize that the appropriate attitude to a government of this sort is loyalty … , respects and some suspicion, not love or devotion or affection. Thus, governing is understood to be a secondary activity; but it is recognised also to be a specific activity, not easily to be combined with any other…. The subjects of such a government require that it shall be strong, alert, resolute, economical and neither capricious nor over-active: they have no use for a referee who does not govern the game according to the rules, who takes sides, who plays a game of his own, or who is always blowing his whistle; after all, the game’s the thing, and in playing the game we neither need to be, nor at present are disposed to be, conservative.

But there is something more to be observed in this style of governing than merely the restraint imposed by familiar and appropriate rules. Of course, it will not countenance government by suggestion or cajolery or by any other means than by law…. But the spectacle of its indifference to the beliefs and substantives activities of its subjects may itself by expected to provoke a habit of restraint. Into the heat of our engagements, into the passionate clash of beliefs, into our enthusiasm for saving the souls of our neighbours or of all mankind, a government of this sort injects an ingredient, not of reason … , but of the irony that is prepared to counteract one vice by another, of the raillery that deflates extravagance without itself pretending to wisdom: indeed, it might be said that we keep a government of this sort to do for us the scepticism we have neither the time nor the inclination to do for ourselves. It is like the cool touch of the mountain that one feels in the plain even on the hottest summer day. Or, to leave metaphor behind, it is like the ‘governor’ which, by controlling the speed at which its marts move, keeps an engine from racketing itself to pieces.

It is not, then, mere stupid prejudice disposes a conservative to take this view of the activity of governing; nor are any highfalutin metaphysical beliefs necessary to provoke it or make it intelligible. It is connected merely with the observation that where activity is bent upon enterprise the indispensable counterpart is another order of activity, bent upon restraint, which is unavoidably corrupted (indeed, altogether abrogated) when the power assigned to it is used for advancing favourite projects. An ‘umpire’ what at the same time is one of the players is no umpire; ‘rules’ about which we are not disposed to be conservative are not rules but incitements to disorder; the conjunction of dreaming and ruling generates tyranny.

Political conservatism is, then, not at all unintelligible in a people disposed to be adventurous and enterprising, a people in love with change and apt to rationalise their affections in terms of ‘progress’. And one does not need to think that the belief in ‘progress’ is the most cruel and unprofitable of all beliefs, arousing cupidity without satisfying it, in order to think it inappropriate for a government to be conspicuously ‘progressive’. Indeed, a disposition to be conservative in respect of government would seem to be pre-eminently appropriate to men who have something to do and something to think about on their own account, who have a skill to practise or an intellectual fortune to make, to people whose passions do not need to be inflamed, whose desires do not need to be provoked and whose dreams of a better world need no prompting. Such people know the value of a rule which imposes orderliness without irecting enterprise, a rule which concentrates duty so that room is left for delight…. (Id., pp. 431-5)

Contrast the conservative attitude to the attitude of left-wing intellectuals, do-gooders, and politicians to whom government “appears as a vast reservoir of power which inspires them to dream of what use might be made of it.” It may be true, as Oakeshott charitably asserts, that some of them “sincerely believe [that their favorite projects] are for the benefit of mankind.” But, in my observation, the left is largely animated by the will to power, for its own sake.

Related posts:
Fascism with a “Friendly” Face
Democracy and Liberty
The Interest-Group Paradox
Parsing Political Philosophy
Is Statism Inevitable?
Inventing “Liberalism”
What Is Conservatism?
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
Fascism and the Future of America
The Indivisibility of Economic and Social Liberty
Law and Liberty
Negative Rights
Negative Rights, Social Norms, and the Constitution
The Devolution of American Politics from Wisdom to Opportunism
Rights, Liberty, the Golden Rule, and the Legitimate State
The Near-Victory of Communism
Tocqueville’s Prescience
Accountants of the Soul
Invoking Hitler
“Natural Rights” and Consequentialism
Rawls Meets Bentham
Is Liberty Possible?
The Left
More about Consequentialism
Special Interests, Good and Bad
Line-Drawing and Liberty
The Divine Right of the Majority
An Encounter with a Marxist
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?
Liberty, Equality, Fraternity: Part I
Bounded Liberty: A Thought Experiment
Evolution, Human Nature, and “Natural Rights”
More Pseudo-Libertarianism