Not-So-Random Thoughts (XVI)

Links to the other posts in this occasional series may be found at “Favorite Posts,” just below the list of topics. This is an especially long entry in the series, so I’ve labeled each item. You can navigate directly to items by clicking on any of the following links:

“Libertarian” Paternalism

Drug Prohibition

Unconstitutionality of Social Security and Medicare

Où est Charlie Hebdo?

Speaking of Censorship


The Disparate Impact of Government

Putting the Civil War in Perspective

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“Libertarian” Paternalism

Timothy Taylor asks “Who Will Nudge the Nudgers?” in a post about a paper by W. Kip Viscusi and Ted Gayer:

Viscusi and Gayer point out a number of reasons why less-than-rational behavioral responses may be more prevalent among government decision-makers than for economic actors in the private economy. Here are some examples: 1) Private actors (like consumers and firms) need to bear the immediate costs of their decisions in a direct way, while elected officials and regulators do not. 2) Public policies are often influenced by the loud voice of concentrated special interests, who can overwhelm the quieter and more diffuse voices for the general interest. 3) Market actions evolve from an interaction of many buyers and sellers, and the checks and balances that such a process provides, but government actions can evolve from a much smaller number of potentially overconfident technocrats, who have a personal and career interest in pushing their own agendas. [The Conversible Economist, July 21, 2015]

There’s much more. Read it, then see my post, “The Perpetual Nudger.” I point out that “nudgers” (e.g., Richard Thaler) are really wannabe dictators:

What seems to bother Thaler is that most people aren’t Econs [hyper-rational calculators]; their tastes and preferences seem irrational to him, and it’s his (self-appointed) role in life to force them to make “correct” decisions (i.e., the decisions he would make).

There’s much more in the many posts to which I link at the end of “The Perpetual Nudger.”

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Drug Prohibition

The estimable Theodore Dalrymple strikes again:

[I]t is not true that problems with drugs arise only when or because they are prohibited.

The relationship between crime and drug prohibition is also much more complex than the legalizers would have us believe. It is certainly true that gangs quickly form that try to control drug distribution in certain areas, and that conflict between the aspirant gangs leads to violence…. But here I would point out two things: first that the violence of such criminal gangs was largely confined to the subculture from which they emerged, so that other people were not much endangered by it; and second that, in my dealings with such people, I did not form the impression that, were it not for the illegality of drugs, they would otherwise be pursuing perfectly respectable careers. If my impression is correct, then the illegality of drugs might protect the rest of society from their criminality: the illegal drug trade being the occasion, but not the cause, of their violence.

What about Prohibition, is the natural reply? It is true that the homicide rate in the United States fell dramatically in the wake of repeal. By the 1960s, however, when alcohol was not banned, it had climbed higher than during Prohibition…. Moreover, what is less often appreciated, the homicide rate in the United States rose faster in the thirteen years before than in the thirteen years during Prohibition. (In other respects, Prohibition was not as much of a failure as is often suggested: alcohol-related problems such as liver disease declined during it considerably. But no consequences by themselves can justify a policy, otherwise the amputation of thieves’ hands would be universal.) Al Capone was not a fine upstanding citizen before Prohibition turned him into a gangster. [“Ditching Drug Prohibition: A Dissent,” Library of Law and Liberty, July 23, 2015, and the second in a series; see also “The Simple Truth about J.S. Mill’s Simple Truth,” op. cit., July 20, 2015; “Myths and Realities of Drug Addiction, Consumption, and Crime,” op. cit., July 31, 2015; and “Closing Argument on the Drug Issue,” op. cit., August 4, 2015]

This reminds me of my post, “Prohibition, Abortion, and ‘Progressivism’,” in which I wrote about the Ken Burns series, Prohibition. Here’s some of it:

Although eugenics is not mentioned in Prohibition, it looms in the background. For eugenics — like prohibition of alcohol and, later, the near-prohibition of smoking — is symptomatic of the “progressive” mentality. That mentality is paternalistic, through and through. And “progressive” paternalism finds its way into the daily lives of Americans through the regulation of products and services — for our own good, of course. If you can think of a product or service that you use (or would like to use) that is not shaped by paternalistic regulation or taxes levied with regulatory intent, you must live in a cave.

However, the passing acknowledgement of “progressivism” as a force for the prohibition of alcohol is outweighed by the attention given to the role of “evangelicals” in the enactment of prohibition. I take this as a subtle swipe at anti-abortion stance of fundamentalist Protestants and adherents of the “traditional” strands of Catholicism and Judaism. Here is the “logic” of this implied attack on pro-lifers: Governmental interference in a personal choice is wrong with respect to the consumption of alcohol and similarly wrong with respect to abortion.

By that “logic,” it is wrong for government to interfere in or prosecute robbery, assault, rape, murder and other overtly harmful acts, which — after all — are merely the consequences of personal choices made by their perpetrators. Not even a “progressive” would claim that robbery, assault, etc., should go unpunished, though he would quail at effective punishment.

“Progressives” just don’t know where to draw lines. (Witness the many phantom red lines that Obama has drawn for Syria and  Iran.) It’s centuries too late to prohibit the consumption of alcohol (not that I’d wish it had happened); it’s still not too late to prohibit the consumption of hard, death-dealing drugs. If those drugs are legalized, it won’t be long before taxpayers are forced to pay for the drug habits of a growing population of drug abusers. That’s the “progressive” way.

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Unconstitutionality of Social Security and Medicare

Mike Rappaport makes the case, and concludes with this:

Now that we have had Social Security and Medicare for generations and people have relied upon them, I don’t think that the original meaning can be enforced to hold them unconstitutional.  Precedent should allow them to continue.  But it is worth remembering that these programs would have never taken their pernicious form if the Constitution’s original meaning had been followed in the first place. [“The Unconstitutionality of Social Security and Medicare,” Library of Law and Liberty, July 23, 2015]

This comes as no surprise to me. Here’s a bit from a recent post, “Does the Power to Tax Give Congress Unlimited Power? (II),” which refers to a much older one:

[T]he power to tax is not unlimited. Taxes levied by the central government must be levied for the purpose of executing powers specifically enumerated in Article I, Section 8 of the Constitution. Nevertheless, the majority NFIB v. Sebelius chose not only to distort the individual mandate — which is clearly a penalty, not a tax — but also to willfully disregard the Constitution’s expressed limitations on the powers of Congress. Even if the individual mandate were a tax, Congress cannot constitutionally levy such a tax because the Affordable Care Act isn’t contemplated in its enumerated powers. (ACA derives its supposedly constitutional status from the Court’s decision in 1935 to declare the Social Security Act constitutional, even though it isn’t. See my post of October 31, 2004, “Social Security Is Unconstitutional.”)

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Où est Charlie Hebdo?

As dead (in spirit) as the 12 who were murdered in January. Mark Steyn writes:

I mentioned a few days ago the announcement by Charlie Hebdo that they are no longer in the business of Mohammed cartoons:

So another non-senseless act has paid off bigtime for the Islamic enforcers. I regret the decision, although I understand it.

Which I do. Almost everyone who mattered at Charlie Hebdo is dead. What did they die for? A hashtag and a candlelight vigil? None of those who seized eagerly on #JeSuisCharlie as the cause du jour, from Angela Merkel and François Hollande to George Clooney and Helen Mirren to thousands in the streets of Paris and millions across the Internet, were willing to do the one thing that would have mattered, and show the reason why they died. Which is why such sterling champions of free speech as PLO leader Mahmoud Abbas and Sultan Erdogan’s vizier Ahmet Davutoglu were happy to march in the big post-slaughter parade. Do you think they’d have been there if any of the dead’s multitudes of new “friends” were waving Charlie magazine covers?…

And so, after a similar but fortunately less bloody attack in Texas [link added], virtually the entire American media decided to blame the victim and took it as read that Islam now has an opt-out from the First Amendment. You can’t fence off Islam and contain the damage to freedom of speech: the decision to surrender it incrementally leads inevitably to its total loss. On the day of his murder, I quoted the words of Stéphane “Charb” Charbonnier, Laurent Sourisseau’s predecessor as Charlie editor, from two years earlier:

It may seem pompous, but I’d rather die standing than live on my knees.

It’s not pompous, but it is lonely. And the slippery, weaselly nature of the post-bloodbath support told Charlie Hebdo it was only going to get lonelier. It’s hard standing on your feet when everyone else with the #JeSuisCharlie buttons is on their knees, bottoms in the air, prostrate before the fanatics. And so Charb’s successor has opted to live on his knees. [“The Knees Have It,” SteynOnline, July 22, 2015]

Color me unsurprised. In the aftermath of the slaughter in January, I wrote “Sober Reflections on ‘Charlie Hebdo’.” Here’s some of it:

[Charlie Hebdo is] a stridently left-wing rag that mocks religion (of all kinds), and anything else deemed too “respectable” for the adolescent tastes of its staff.

What’s most striking about the “Je suis Charlie” movement is its pure hypocrisy….

Yes, the left gets up in arms when some of its members are slaughtered by Muslim pigs (I love that phrase). But this is the same, hypocritical left that condones and promotes censorship….

The slaughter at Charlie Hebdo is not a reason for solidarity with the left, but a reason to oppose the left and its clients — especially (but not exclusively) the murderous adherents of Islam.

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Speaking of Censorship

Erick Erickson writes about

an organized movement within the gay rights community that is sometimess referred to as the “gay mafia.” They want to harass those who disagree with their agenda and silence any dissent from their agenda. They have worked overtime in the past twenty-four hours because an AP poll shows that the number of Americans who now support gay marriage has declined since the Supreme Court’s ruling and a majority believe Christian businesses should not be compelled to provide goods and services to gay weddings.

They cannot have that. They also cannot have books and data that dispute their claims. One such book is by my friend Ryan Anderson. The book is called Truth Overruled: The Future of Marriage and Religious Freedom. A subgroup of the gay mafia who call themselves “Flying Monkeys” are flinging poo in the direction of Ryan’s book.

In particular, they have organized a campaign to down vote Ryan’s book on The Daily Signal has screenshots of the gay mafia’s online conversations encouraging people to go “review” Ryan’s book and give it one star reviews.

The people have not read the book. But they want you to think the book is a terrible read. They are attacking Ryan personally and attacking arguments they have not even read. Anyone who knows Ryan knows he takes a very scholarly approach to the marriage arguments and has provided a great deal of foresight into the movement again marriage.

You can order Ryan’s book on the Kindle now or get a print edition next month via Amazon. I highly recommend it. [“The Gay Mafia Wants to Stop You from Doing This,” RedState, July 21, 2015]

I have ordered it.

We in the U.S. have thus far been spared the excesses of censorship that plague Canada. One such excess is the subject of my post, “Free Speech Ends at the Northern Border.” That an overstatement, of course, because censorship is rife in America, especially on college campuses. Just check out the website of The Foundation for Individual Rights in Education.

See also my posts “The Gaystapo at Work,” “The Gaystapo and Islam.” “The Beginning of the End of Liberty in America,” and “The Tenor of the Times.”

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In a closely related development, there’s a portentous recent ruling by the Equal Employment Opportunity Commission:

Last week, the Equal Employment Opportunity Commission dropped an astounding ruling: By a 3-2 vote, it concluded that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

This is a big deal: The Commission’s recommendations shape rulings on federal employees’ workplace-discrimination claims, and its field offices deal with claims made by employees at private organizations, as well. But the ruling is also a reminder of how complicated—and unresolved—the post-Obergefell legal landscape is. The Supreme Court’s ruling in favor of same-sex marriage at the end of June has set the country up for two new waves of discrimination claims: those made by same-sex couples and LGBT workers, and those made by religious Americans who oppose same-sex marriage. The two may seem distinct or even opposed, but they’re actually intertwined: In certain cases, extending new rights to LBGT workers will necessarily lead to religious-freedom objections, and vice versa.

Right now, it’s impossible to know how these claims will fall out. It’s been less than a month since the ruling, and much of the legal theory on these issues is just that: theory. In Congress, there’s at least some effort to reconcile the two sides. As my colleague Russell Berman wrote on Friday, Democrats are pushing for legislation which would include prohibitions on discrimination in education, housing, and public accommodation, and Republicans may well sign on—if that legislation allows for religious exemptions. No matter what passes, the issues will remain tangled. These will be some of the questions courts and legislatures have to untangle in the wake of Obergefell. [Emma Green, “Gay Rights May Come at the Cost of Religious Freedom,” The Atlantic, July 27, 2015]

It’s not just religious liberty that’s under attack, it’s liberty — period. It’s clear that the federal government is gearing up to tell Americans what they may say about others and who they must associate with, like it or not:

Most citizens will, of course, attempt to exercise their freedom of speech, and many business owners will, of course, attempt to exercise their freedom of association. But for every person who insists on exercising his rights, there will be at least as many (and probably more) who will be cowed, shamed, and forced by the state into silence and compliance with the new dispensation. And the more who are cowed, shamed, and forced into silence and compliance, the fewer who will assert their rights. Thus will the vestiges of liberty vanish.

That’s from my post, “The Beginning of the End of Liberty in America,” which I published on the day of the Obergefell diktat.

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The Disparate Impact of Government

Speaking of impending atrocities, Michael Barone takes on “HUD’s ‘Disparate Impact’ War on Suburban America“:

Disparate impact. It’s a legal doctrine that may be coming soon to your suburb (if you’re part of the national majority living in suburbs).

Bringing it there will be the Obama Department of Housing and Urban Development’s Affirmatively Furthering Fair Housing program. It has been given a green light to impose the rule from Justice Anthony Kennedy’s majority opinion in the Supreme Court’s 5-4 decision [link added] in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. [Kennedy must have been warming up for his Obergefell diktat, which came on the following day. — TEA]

The decision purports to interpret the Fair Housing Act of 1968 as authorizing lawsuits if municipal policies have a “disparate impact” as measured by the racial percentages of those affected — this despite the fact that the words of the Fair Housing Act prohibit only intentional racial discrimination….

In every large metropolitan area with a significant black population, you won’t find a single census tract with 0 black residents. Blacks sometimes encounter resistance when trying to buy or rent a house that they can afford, which is unjust and infuriating, and a problem for which the Fair Housing Act provides remedies.

But, of course, that has not created an America in which every community has the same percentage as the national average of blacks and whites, Hispanics and Asians, marrieds and singles, gays and straights, Protestants and Catholics and Jews and Muslims.

Free choice never shakes out that way. Throughout history, Americans and immigrants have tended to choose to cluster with likeminded people….

How did disparate impact come into the law? In a 1971 Supreme Court case, Griggs v. Duke Power Co., the Court, acting when memory was still fresh of Southern resistance to desegregation, ruled that the company’s aptitude test amounted to discrimination because whites passed at higher rates than blacks. But that’s true of most aptitude tests — which as a result aren’t used much in hiring any more. [, July 21, 2015]

Don’t tell it to the “social justice” police in D.C. They don’t want to hear it.

The 1971 “disparate impact” ruling by the Supreme Court ranks among the 16 cases that I list as examples of “the judicial betrayal of the constitutional scheme of limited government, and of order and traditional morality,” in “The Fall and Rise of American Empire.” (I would now add the Kennedy Court’s decisions about “disparate impact,” same-sex “marriage,” and Obamacare subsidies.)

“Disparate impact” isn’t just about where people live and work. Malcolm Pollack is on the case:

Here is an item that’s been going around over the past couple of days: an essay by Paul Sperry describing the Obama administration’s latest race-leveling operation.

The idea is to fish for “disparate impact” violations, wherever they can be found — in housing, lending, school discipline, academic performance, enrollment in gifted-student programs, etc. — and to use the coercive power of the State to flatten outcomes.

The Left has a secret weapon here, and in the current cultural climate, it’s a beaut. Here’s how it works:

1) If you go looking for disparate outcomes by racial groups (or by sex), you’ll certainly find them. They are real, and persistent. (See, for example, just how persistent they can be, here.)

2) When such disparate outcomes occur, there are only two possible causes: either they are due to an external obstacle, or something intrinsic to the group itself.

3) If all racial groups are assumed, as by current social convention they must be, to have exactly identical distributions of every cognitive and behavioral trait, then any variation in outcome that disparately affects a particular racial group must be evidence of some external obstacle. This can only be due to racism and injustice, and therefore it is just and proper for the State to detect and remove it, by whatever means necessary.

4) If however, you suggest that disparities under neutral policies may be due, even in part, to innate differences in the distribution of cognitive and behavioral characteristics in different racial groups, then you are a racist. (If you present actual evidence of such differences, you’re a “scientific” racist.) Moreover, the fact that you are even thinking such things is evidence of the persistence and prevalence of racism in general, which in turns confirms the assumption that disparate outcomes are the result of pervasive and intractable racism, and not innate differences. This is what justifies redoubled efforts on the part of the State to bring every aspect of our lives under racial scrutiny, and impose corrective measures wherever disparate outcomes are found.

So: notwithstanding that race, as we are told, is a “social construct” with no basis in reality, the government will spare no effort to group people by race, and to scour vast collections of intrusively gathered data to find inequalities in social and economic outcomes — not on any individual basis, but by race. But despite race being real enough, apparently, to justify making such racial categorizations, race can have no deeper reality as regards any shared characteristics that might contribute to such inequalities. Race is, in other words, real, but only real enough to serve, somehow, as a marker for defining groups, and thereby to serve as the basis of racism, without having any other actual properties. Moreover (and this is what makes the whole thing work so beautifully): if you disagree with any of this, you are yourself a racist — and you have thereby just demonstrated that persistent racism is indeed the problem.

Thanks to this secret weapon, we have moved beyond — far beyond — the idea that particular differences in outcomes may be due to specific and remediable instances of conscious and intentional racism. As we go Forward, we have a new paradigm: differences in outcomes simply ARE racism, now and forever.

That’s some catch!

[“A Respectful Whistle,” waka waka waka, July 21, 2015]

(I couldn’t resist reproducing Pollack’s brilliant post in its entirety. If you don’t already follow his blog, you should do so.)

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Putting the Civil War in Perspective

Walter Williams does it brilliantly:

Was President Abraham Lincoln really for outlawing slavery? Let’s look at his words. In an 1858 letter, Lincoln said, “I have declared a thousand times, and now repeat that, in my opinion neither the General Government, nor any other power outside of the slave states, can constitutionally or rightfully interfere with slaves or slavery where it already exists.” … Debating Sen. Stephen Douglas, Lincoln said, “I am not, nor ever have been, in favor of making voters or jurors of Negroes nor of qualifying them to hold office nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races, which I believe will forever forbid the two races living together on terms of social and political equality.”

What about Lincoln’s Emancipation Proclamation? Here are his words: “I view the matter (of slaves’ emancipation) as a practical war measure, to be decided upon according to the advantages or disadvantages it may offer to the suppression of the rebellion.” …

Lincoln did articulate a view of secession that would have been heartily endorsed by the Confederacy: “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. … Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can may revolutionize and make their own of so much of the territory as they inhabit.” Lincoln expressed that view in an 1848 speech in the U.S. House of Representatives, supporting the secession of Texas from Mexico.

Why didn’t Lincoln share the same feelings about Southern secession? Following the money might help with an answer. Throughout most of our nation’s history, the only sources of federal revenue were excise taxes and tariffs. During the 1850s, tariffs amounted to 90 percent of federal revenue. Southern ports paid 75 percent of tariffs in 1859. What “responsible” politician would let that much revenue go? [“Historical Ignorance II,”, July 22, 2015]

(There’s more in William Sullivan’s “Lincoln vs. Lee: How History Is Distorted to Preserve Legends,” American Thinker, August 1, 2015.)

Yes, it can be asserted (with some degree of accuracy) that slavery was the proximate cause of the Civil War, because it was the issue of slavery that brought to a head the longstanding tension between North and South. But the leaders of the South also had a righteous cause, in principle: the cause of constitutional government. This is from my post, “The Southern Secession Reconsidered“:

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

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

My current view of the Constitution — “How Libertarians Ought to Think About the Constitution” — is more cynical and sweeping:

What does all of this mean for secession? Here it is, from the beginning and by the numbers:

1. The Constitution was a contract, but not a contract between “the people.” It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States….

2. Despite their status as “representatives of the people,” the various fractions of the populace that drafted and ratified the Constitution had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations….

3. The Constitution was and is binding only in the way that a debt to a gangster who demands “protection money” is binding. It was and is binding because state actors have the power to enforce it, as they see fit to interpret it….

4. The Constitution contains provisions that can be and sometimes have been applied to advance liberty. But such applications have depended on the aims and whims of those then in positions of power.

5. It is convenient to appeal to the Constitution in the cause of liberty … but that doesn’t change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

6. Any person and any government in the United States may therefore, in principle, reject the statutes, executive orders, and judicial holdings of the United States government (or any government) as non-binding.

7. Secession is one legitimate form of rejection….

8. An  act of secession may be put down — through legal process or force of arms — but that doesn’t alter the (limited) legitimacy of the act.

9. Given the preceding, any act of secession is no less legitimate than was the adoption of the Constitution.

10. The legitimacy of an act of secession isn’t colored by its proximate cause, whether that cause is a desire to preserve slavery, or to escape oppressive taxation and regulation by the central government, or to live in a civil society that is governed by the Golden Rule. The proximate cause must be evaluated on its own merits, or lack thereof.

If the feds continue their assault on liberty, secession will become an increasingly attractive option. There are other options, including de facto secession.

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