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Speaking of States’ Rights and Judge McConnell

I wrote recently that

I favor States’ rights — as long as States’ rights advance liberty. The Left (Stevens-Souter-Ginsburg-Breyer) wing of the Supreme Court has no such agenda. The Court’s Left wing has as its main agenda the advancement of governmental power. Anyone who applauds the Left wing’s accidental embrace of States’ rights (as in Kelo) might as well applaud the Dixiecrat wing of the Democrat Party for its cynical embrace of States’ rights in the defense of state-enforced segregation and denial of voting rights.

I’m reminded of the Stevens-Souter-Ginsburg-Breyer wing’s cynical appeal to States’ rights in Bush v. Gore. In Part I of Justice Ginsburg’s dissent (joined by Justices Stevens, Souter, and Breyer), she wrote “Rarely has this Court rejected outright an interpretation of state law by a state high court.” As if it were as simple as that.

Judge Michael McConnell, now considered a front-runner to replace Justice O’Connor, showed a much finer understanding of constitutional law when he wrote for OpinionJournal on Novemeber 24, 2000, about the then-unsettled case of Bush v. Gore:

One sentence of the Florida Supreme Court’s decision on hand recounts tells it all: “The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle.”

That is like saying, of a disputed umpire call in the World Series: “Athletic superiority, not a hyper-technical reliance upon the rules of baseball, should be our guiding principle.” In our system, the will of the people is manifested through procedures specified in advance. When those rules are changed in mid-stream, something has gone terribly wrong.

Article II of the U.S. Constitution provides: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” The Florida legislature has enacted a detailed election code, including an unambiguous deadline of seven days after the election for counties to report their results. No party to the litigation has argued that this statutory scheme is unconstitutional under either the federal or the state constitution.

As Judge McConnell pointed out on December 14, 2000, the majority in Bush v. Gore came to the right result but for the wrong reason:

[O]nly three justices–William Rehnquist, Antonin Scalia, and Clarence Thomas–were ultimately persuaded by the Article II argument. The majority rested entirely on the theory that the recount, as ordered by the Florida court, would violate the equal protection of the laws by failing to provide a uniform standard for vote counting, by counting some overvotes and not others, and by failing to recount the challenged results in Broward and Miami-Dade. That rationale was sufficiently uncontroversial to command widespread assent among the justices–even those presumably favorable to Mr. Gore. . . .

The court did not have the resolution to declare that no recount was necessary, or the patience to declare that a proper recount should proceed. That means, unfortunately, that Mr. Bush will take office under conditions of continued uncertainty. I do not think that part of the decision did him, or the nation, a favor.

Amen to that.

Understanding the Miers Nomination

Here’s my “conspiracy theory” of the day:

  • But Bush had to seem to want to replace O’Connor with another woman.
  • Bush therefore chose Miers, whose nomination he knew would be fiercely opposed on the right.
  • Given Miers’s position as White House counsel, her name could be withdrawn as a matter of principle (defense of the separation of powers).
  • Bush’s withdrawal of the Miers nomination would not only please the right but also not be seen as a bow to the left.

Personally, if the real nominee is to be a male, I like David Bernstein’s suggestion: Judge Douglas Ginsburg (he of the “Constitution in Exile“).

The Economics of Corporate Fitness Programs

One of the many fads to sweep the corporate world in recent years is the fitness fad. The fad has two components: real costs and putative benefits. The real costs involve the installation of exercise facilities on company property, subsidies for off-site health-club memberships, a certain amount of paid time off for fitness programs, the hiring of nutritionists for company-subsidized cafeterias, and on and on. The putative benefits of the fitness fad are (1) more productive workers (healthy bodies, healthy minds, and all that); (2) workers who, in the longer run, will be less costly to insure; and (3) greater competitiveness in the labor market (i.e., being able to hire and keep employees who value fitness programs).

The fitness fad has five main proponents:

  • Executives who wish to be known as “progressive” and “interested in employee welfare”
  • Consultants who are hired by executives for the purpose of recommending the fitness programs that executives already favor
  • Vendors of fitness-related products and services
  • Those employees who already are physically fit, but who find it easier and cheaper to stay fit because of company programs
  • Other employees who want to be part of the “in” crowd or to curry favor with bosses who preach fitness.

As for the immediate benefits of company fitness programs, I have observed that the already-fit tend to stay fit, but at the company’s expense, while the less-fit give fitness a try, but it doesn’t last. If it did, Americans wouldn’t be getting fatter, would they?

What about the returns to the company in the form of lower health-insurance costs? Health-care costs rise with age. Assuming that fitness programs actually make employees more fit, which I doubt, a company is unlikely to reap long-run returns unless (a) its employees are exceptionally loyal or (b) it is able to hire equally fit replacements from other companies that have similarly effective (or ineffective) fitness programs.

And what about hiring and retention? Well, it’s like an arms race in which the objective isn’t to fight a war but to spend more than the other guy. If “everyone does it” in a certain industry, here’s what happens:

  • Workers who don’t participate in fitness programs (that is, most of them) lose because compensation has been shifted from wages and non-fitness benefits toward fitness benefits. Therefore, that industry finds it harder to hire and retain workers for whom fitness isn’t an important consideration; that is, productivity declines and costs rise.
  • If firms in the industry try to raise prices in order to cover the costs of fitness programs, consumers find substitute products or services, thus cutting into the industry’s sales and profits.
  • And so, one way or the other, shareholders take a hit in the form of lower stock prices.

Who benefits? Trendy executives and employees who’d rather work out than work.

That’s my hypothesis, and I’m sticking with it until I see hard numbers that prove it wrong.

Killing Conservatism in Order to Save It

EconoPundit quotes a Times column by David Brooks (not worth $50 a year to read online). A choice morsel:

Let’s start by remembering where conservatism was before Bush came on the scene. In the late 1990’s, after the failure of the government shutdown, conservatism was adrift and bereft of ideas.

Voters preferred Democratic ideas on issue after issue by 20-point margins.

Which was it David? Were conservatives bereft of ideas or did voters prefer Democrats’ “ideas.” Well, as Capital Freedom observes, ” Free handouts get more votes than free markets.” Democrats didn’t (and don’t) trade in ideas, they trade in bribery. The Bush-led GOP has simply followed suit.

The real problem in the late 1990s wasn’t that conservatives lacked ideas, but that those ideas didn’t happen to garner enough votes to defeat Bill Clinton and deliver overwhelming Republican control of Congress. But instead of regrouping around the functionally sound and widely accepted ideas of the “Contract with America,” the GOP largely abandoned its conservative principles and sold its soul for a few more votes, thus joining Democrats in the bribery game.

Brooks, who is either deluded or stupid, nevertheless quotes Bush’s defense of big government:

“Government should help people improve their lives, not run their lives,” Bush said. This is not the Government-Is-the-Problem philosophy of the mid-’90s, but the philosophy of a governing majority party in a country where people look to government to play a positive but not overbearing role in their lives.

In other words, the GOP should bribe voters, but somehow restrain its bribery so that it’s not quite as egregious as the kind of bribery practiced by Democrats. That simply won’t work. The bribed (i.e., voters) won’t let government off the hook unless and until they understand how bribery works against their own interests. The only way to get government out of our lives (or to push it toward the exit) is to oppose it in the first place, and to explain why voters should join in that opposition.

But Brooks applauds Bush’s sophistry, even though it is indistinguishable (in essence) from the Left’s excuses for big government: Government just needs to “fix things” because markets don’t always get it right. People just can’t be trusted to take care of themselves. Brooks fails to see (or wishes not to say) that Bush has simply adopted the Democrats’ old game plan: Tax, spend, regulate, elect, tax, spend, regulate, elect, ad infinitum.

Well, Brooks’s column proves one thing, with finality: He’s a so-called conservative who is devoid of valid ideas, valid logic, and intellectual honesty. Brooks would kill true conservatism in the name of saving it. What’s worse, he’d believe that he had saved it.

A Useful Precedent

UPDATED BELOW AT 1:40 PM (CT) 10/23/05

Orin Kerr of The Volokh Conspiracy comments on a decision by the Kansas Supreme Court:

The Kansas Supreme Court issued its decision in Kansas v. Limon [yesterday], invalidating a Kansas statutory scheme that imposed higher punishments for same-sex sexual misconduct than opposite-sex sexual misconduct. . . .

Limon argued that Kansas law violated the equal protection clause of the Fourteenth Amendment because if the act had taken place between opposite sex participants, Limon would have received a much lower punishment . . . than he did. . . . The Kansas Supreme Court agreed, finding that the different treatment did not survive rational basis scrutiny and was therefore unconstitutional under the Equal Protection clause. . . .

It seems to me that (1) the Kansas Supreme Court’s reasoning is correct and (2) the same reasoning can be applied to so-called hate-crime statutes, in which the penalty for a crime is based on its supposed motivation rather than its actual severity.

UPDATE: I knew that I should have addressed the distinction between motivation and intention. Because I didn’t do so, a reader took issue with what I wrote above by suggesting (wrongly, I believe) that “the criminal law system is largely built on the fundamental premise of punishing crimes based on motivation rather than outcome.” He pointed me to the Wikipedia article about manslaughter. I found the article about murder to be more helfpful in drawing the distinction between motivation and intention:

In law, murder is the crime of a human being causing the death of another human being, without lawful excuse, and with intent to kill or with an intent to cause grievous bodily harm. . . .

  • Unintentionally caused deaths due to recklessness or negligence are treated in most countries as the lesser crime of involuntary manslaughter or criminally negligent homicide
  • Intentional killings without premeditation are sometimes charged as voluntary manslaughter rather than murder.

The distinction between murder and voluntary manslaughter rests on the timing of intention — whether or not the killer intended to kill the victim before the encounter that led to the victim’s death. The distinction between voluntary and involuntary manslaughter rests on whether or not the killer intended to kill the victim. Proving motivation (or lack thereof) may be crucial to proving intention, and the timing of intention. But the distinctions between murder, voluntary manslaughter, and involuntary manslaughter revolve around intention and its timing with respect to the act of killing.

A hate crime, on the other hand is defined by motivation:

A hate crime is a crime (not necessarily a violent crime, though sometimes so) that is motivated by prejudice against a social group. . . .

In the last decade of the 20th century, legislation in many U.S. states has established harsher penalties for a number of crimes when they are also considered hate crimes. . . .

[H]ate crime prosecutions seek to punish an individual for motive rather than intent. For example, the difference between first or second degree murder is intent, not motive. . . .

In sum, the logic of hate-crime legislation plays out like this:

  • A (a man) murders B (a woman), with premeditation, after learning that B has embezzled funds from A. A’s sentence is, say, 20 years to life, with the possibility of parole.
  • A murders B, with premeditation, after learning that B has been involved in a lesbian affair with A’s wife. A is shown to have expressed his distaste for lesbianism. A’s sentence is, say, life without parole.

In both cases A murders B with premeditated intent. But in the second instance A receives a harsher sentence because his motivation was animus toward lesbianism. I don’t get it. Why is the crime worse because B is a lesbian rather than an embezzler? Murder is murder and ought to be treated as such by the law.

There’s already more than enough mind-reading involved in drawing lines between various degrees of murder and manslaughter, not to mention other types of crime in which similarly fine distinctions arise. Hate-crime legislation compounds the already difficult task of mind-reading and widens the gap between the act (e.g., killing) and the punishment for that act.

The result is to give preference to certain identifiable groups (e.g., homosexuals) while, by implication, denigrating others (e.g., embezzlers). Or, to turn it around, the result is to treat the murderers of embezzlers more leniently than the murderers of homosexuals. Either way you look at it, hate-crime legislation seems to run afoul of the Fourteenth Amendment’s guarantee of “equal protection of the laws.”

Related posts:

I’ll Never Understand the Insanity Defense (03/31/04)
A Crime Is a Crime (11/26/04)

The Corporation and the State

The existence of the corporation (and such similar entities as limited liability companies) encourages business and capital formation by mitigating investors’ personal risks. Because the corporation is state-sanctioned, some apologists for the state like to argue that the existence of the corporation is a proof of the indispensibility of the state.

The existence of the corporation, in fact, proves no such thing. Absent the state, investors could indemnify themselves through private contractual arrangements, that is, insurance pools.

The state exists because powerful individuals and coalitions with an agreed agenda find it convenient to enforce that agenda through an entity that has a monopoly of power in a geographical area. The desirability of a particular state can be judged only by the extent to which its agenda fosters the unforced evolution of peaceful, voluntary, social and business arrangements.

What’s Wrong with Game Theory

I took aim at a particular application of game theory in “Schelling and Segregation.” Dave Patterson (Order from Chaos), offers a general critque of game theory. Here’s a sample:

[G]ame theory has one major flaw inherent in it: The arbitrary assignment of expected outcomes and the assumption that the values of both parties are equally reflected in these external outcomes. By this I mean a matrix is filled out by an individual (we’ll call them the conductor), it is up to that conductor’s discretion to assign outcome values to that grid. This means that there is an inherent bias towards the expected outcomes of conductor.

Or: Garbage in, garbage out.

Same-Sex Marriage

UPDATED BELOW AT 5:12 PM (CT) 10/20/05
FINAL LINK AND EXCERPT ADDED AT 1:50 PM (CT) 10/21/05

Maggie Gallagher is guest-blogging at The Volokh Conspiracy on the topic of same-sex marriage (SSM). As a service to myself and others, below I list chronologically the titles of and links to the posts in the series. I include related posts by other Volokh bloggers (denoted by naming the blogger parenthetically).

Maggie Gallagher Guest-Blogging About Same-Sex Marriage (Eugene Volokh)
The Marriage Debate (1)
The Marriage Debate (2)
The Marriage Debate (3)
The Marriage Debate, Round 3 (or 4, but who’s counting?)
Marriage Debate Digression
Question for Maggie About Marriage (Todd Zywicki)
The Legal Marriage Debate
Answer from Maggie About Marriage
Maggie Answer on Marriage, P.S.
Two Reactions to the Gay Marriage Discussion (Eugene Volokh)
The Marriage Debate and ReproTech
Marriage Debate DataDump
The Marriage Debates: What’s the Harm?
Question on the Marriage Debates (Orin Kerr)
The Marriage Debate, What’s the Harm? (cont.)
Marriage Debate and Motives
Understanding the Argument (Orin Kerr)
Gay Marriage for Some, or Unisex Marriage for All?
Is Marriage Innate? More Reply to Orin
A Frank Concession
Brief Rebuttals
The Marriage Debate, a few last thoughts

UPDATE:

A few key points thus far:

[M]arriage serves many private and individual purposes. But its great public purpose, the thing that justifies its . . . unique legal status, is protecting children and society by creating sexual unions in which children are (practically) guaranteed the love and care of their own mother and father.

The vast majority of children born to married couples begin life with their own mother and fathers committed to jointly caring for them. Only a minority of children in other sexual unions (and none in same-sex unions) get this benefit.

Sex makes babies. Society needs babies. Babies need fathers as well as mothers. That’s the heart of marriage as a universal human institution.

[Different post]

[F]undamentally marriage is sustained by culture, not biology. Why then is it universal? Because it is the answer to an urgent problem that is biological and innate: sex makes babies. Nature alone won’t connect fathers to children. Children need a society in which both men and women are committed to their care.

And thus to the socialization of those children and their fathers, without which a civil, self-regulating society in which we enjoy the fruits of liberty would be even more difficult if not impossible to realize. But that is all threatened if heterosexual marriage’s status is threatened:

[T]he most important remaining way the legal institution of marriage supports the social institution of marriage is in fact definitional.

Marriage’s unique status at law helps draw clear public boundaries that distinguish between those who are married and who is not, allowing the more important actors who support the social institution to do their work.

Redrawing the definitional boundaries of marriage, is thus fiddling with the law’s core remaining support for marriage (and we’ve withdrawn quite a few legal supports in recent years).

I really do think, btw, that this is what bothers most ordinary people: an instinct that their government, against their will, is telling them (and will re-educate their children) that everything they know about marriage (like the first ingredient is a husband and a wife, duh) is wrong and must now change. Upon penalty of being officially labelled bigots by their government. And everyone knows its open season on bigots in our society. . . .

If the principle behind SSM is institutionalized in law, and the law is able (as it is really pretty good at) to impose its values on the American people, then people like me who think marriage is the union of husband and wife importantly related to the idea that children need moms and dads will be treated in society and at law like bigots

And you are asking me why I think that might affect marriage?

I’ve sat in rooms where some of the most famous architects of gay marriage have made this analogy (the Christians who oppose gay marriage are just like those poor southern folks who favored segregation. We’ll be re-educating them soon, and they will cave.)

The conjugal vision of marriage itself is being stamped as discriminatory and bigoted. Well, under these circumstnaces, I’m pretty sure fewer people will hold it, speak for it, try to transmit it to the kids (over the interference of government schools, who will teach the next generation that SSM was a great civil rights victory over bigots like your parents). Perhaps, under these circumstances, very few people indeed will speak up for this conjugal view.

In sum, the recognition of SSM will legitimate the attacks on traditional marriage, weaken its allure, and thus weaken (further) its indispensible socializing role, which already has been weakened by another liberal desideratum: pushing mothers out of the home.

UPDATE 2: From the final post in the series:

[I]f you are advocating for SSM, you really do know that social meanings matter. You’ve made passionately clear that an identical institution called “civil unions” that delivered all the legal incidents of marriage just wouldn’t be good enough, because it doesn’t mean the same thing. You seek to use the power of government to take all those accumulated meanings of marriage (which were not created by the government) and re-direct them to same-sex relations, and many of you clearly also want to discipline those who don’t accept your moral view. . . . And so many want to do this in the name of liberty, without even acknowledging what SSM is: the use [of] government power to impose a new morality on a reluctant people.

After SSM, the law will be committed to reclassfying the once-privileged conjugal vision of marriage—with its deep roots in the reality that humanity comes in two halves, male and female, who are called to join together in love, not only as a private satisfaction, but in order to make the future actually happen—as at best a private understanding and most likely a discouraged, discriminatory understanding of marriage.

If two men are married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad. So long as they have love, money and stability, fathers (or mothers) are equally dispensable. That’s what “no difference” means. The institutions of government, including public schools, will begin to enforce this new concept of marriage. This is not a conservative case for marriage; it is the final triumph of the family diversity argument.

Related posts:

A Century of Progress? (01/30/05)
Libertarianism, Marriage, and the True Meaning of Family Values (04/06/05)

States’ Rights and Skunks

In light of the preceding post, I want to make it perfectly clear that I favor States’ rights — as long as States’ rights advance liberty. The Left (Stevens-Souter-Ginsburg-Breyer) wing of the Supreme Court has no such agenda. The Court’s Left wing has as its main agenda the advancement of governmental power. Anyone who applauds the Left wing’s accidental embrace of States’ rights (as in Kelo) might as well applaud the Dixiecrat wing of the Democrat Party for its cynical embrace of States’ rights in the defense of state-enforced segregation and denial of voting rights.

When it comes to the advancement of liberty, it is only fitting and proper to deploy every legal argument at one’s disposal — as I have tried to do in the preceding post. The old saying goes that you can’t win a peeing contest with a skunk (i.e., the Left wing of the Supreme Court). My version goes like this: Sometimes you can’t avoid a peeing contest with a skunk; that’s when you stand back a safe distance and blast it with a fire hose.

When it comes to the defense of liberty, a timid bow to States’ rights is no virtue and an attack on States’ rights isn’t always a vice.

Kelo, Federalism, and Libertarianism

UPDATED BELOW

Doug at Below the Beltway joins Scott Scheule of Catallarchy in arguing that Kelo v. City of New London was rightly decided in the 2004-5 term of the U.S. Supreme Court. The Supremes, as you undoubtedly recall, upheld the right of the City of New London, Connecticut, to condemn private property for redevelopment. The rationale, in brief: The city’s redevelopment plan serves a public purpose under the “takings clause” of the Fifth Amendment because the plan enables the city to generate higher tax revenues.

Doug and Scott are buying into the argument that Kelo was rightly decided on federalism grounds; that is, the central government oughtn’t intrude in matters best left to State and local governments. Scott says, in part, that

Kelo is undoubtedly a glorification of federalism. In a decision nothing short of miraculous, the liberal members of the Court deferred to a state’s judgment. Is that not precisely what a federalist should want? A professor once told me the true test of your belief in individual freedom is when you think people should be free to do even the things that you would prefer them not do.

I propose that, by the exact same token, the true test of your belief in states’ rights is when you think states should be free to do even the things that you would prefer them not do. The alternative is often to simply pick and choose which government, federal or state, you would like to defer to based on nothing more than your personal political preferences. It is not exactly an unpopular philosophy: indeed it is the policy of much of the Supreme Court today. Still, the blatant inconsistency seems unsatisfactory.

Assumedly many of us are federalists because we believe the federal government does things badly. Is there any reason why this principle, if true, should be the case in issues of, let us say, euthanasia or drug use, and not hold when it comes to issues of eminent domain?

There is a deep tension here.

And though, as Justice Thomas quite rightly perceived, “something has gone seriously awry” with the Court’s interpretation of much of the Constitution, I disagree there is something awry with the interpretation of this particular provision.

I expect this post to make me exceedingly [un?]popular in libertarian circles.

The post should make Scott exceedingly unpopular (temporarily, one hopes) because of its wrongheadedness. Being a libertarian and being a federalist are two entirely different things. A libertarian would oppose government land-grabbing regardless of which level of government is doing the grabbing. Scott simply has to decide whether he’s a federalist or a libertarian.

Moreover, Kelo was not decided rightly, even when viewed through the lens of federalism. The key can be found in Doug’s incorrect assertion that

[t]he 5th Amendment, as originally written, applied only to the Federal Government, not the states. It was only through several decades of tortured jurisprudence that we have come to accept the idea that the 14th Amendment “incorporated” most (but not all) of the provisions of the Bill of Rights and made them applicable to the states, thus giving Federal Courts jurisdiction to determine the Constitutionality of the actions of state and local governments in a way that they did not have under the Constitution as originally understood.

Now, whatever you may think about “incorporation,” certain parts of the Bill of Rights were meant, from the beginning, to bear on certain kinds actions by any and all governments in the United States. The Fifth Amendment clearly belongs in that category, as do Amendments II, IV, VI, VII, VIII, and X.* It’s important to remember that the U.S. Constitution wasn’t meant (or written) as a “set of rules” applicable only to the central government but, rather, as a sorting out of the rights and powers of the newly created central government, the governments of the various States, and the people. The Bill of Rights must be understood as a clarification of that broader sorting out, and not simply as a set of restrictions on the central government.

Consider the Fifth Amendment, specifically:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It was well understood in 1791 that the prosecution of almost all crimes was a matter for State action, which is why the Fifth Amendment specifically enumerates the kinds of cases that then came under the jurisdiction of the central government: “in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” Thus, given its main focus on crime and punishment, the Fifth Amendment clearly applies to the States as well as to the central government (no “incorporation” is necessary, thank you). The position of the “takings clause” — in a string of clauses that clearly apply to the States — means that the Fifth Amendment, from the moment of its adoption, was meant to proscribe takings by States (and their subordinate jurisdictions), when such takings aren’t for “public use” (which means public use).

Kelo was wrongly decided, period.

UPDATE: Doug, as I hoped he would, has posted a reply to this post. He responds, first, to my statement that one must decide whether one is a libertarian or a federalist:

[T]he choice is not so much between being a libertarian and being a federalist as it is between being a libertarian and being faithful to the original understanding of the Constitution. Judicial activism can exist not only on the left, but also on the right and there have been those who have argued for what is essentially a form of libertarian judicial activism which concerns itself more with the results of a judicial decision than with whether that decision is a correct interpretation of the Constitution. If you believe that judges should be faithful to the original understanding and intent of the Constitution, as I do, then that means being a federalist.

Federalism was at the heart of the Constitution when it was drafted. The Federal Government and its institutions, including the Supreme Court, were intended to be weak as compared to the states. This can be seen in the Constitution itself, which strictly defined the powers of Congress and the President but has very little to say about the powers of the states.

Fine, but that leaves libertarians to fight for liberty while federalists fight for States’ rights, whether or not those rights are compatible with liberty.

In any event, the original Constitution does say some things about the powers of the States, not the least of which is the second clause of Article VI:

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

Madison’s view was that the federal Bill of Rights ought to be supreme. I quote from Irving Brant’s The Bill of Rights: Its Origin and Meaning (1965 edition, pp. 49-50):

The next contention Madison took up [in 1789, as chairman of the House committee to consider and report amendments to the Constitution] was that a federal Bill of Rights was not needed because state declarations of rights were still in force. The solemn acts of the people in putting such declarations in their state constitutions, it had been said, could not be annihilated by their later establishment of a general government whose express purpose was “securing to themselves and posterity the liberties they had gained by an arduous conflict.” (Here again the objectives of the American Revolution were defined in terms of the guarantees contained in bills of rights.)

Madison found this objection inconclusive. In the first place it was too uncertain ground on which to leave a matter considered so important by the people. “Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.”

Here Madison refuted in advance an argument later utilized to undermine the basic freedoms — the contention that the defects in state bills of rights should be used to measure the purpose, force and extent of the federal guarantees. In reality, those defects were used as an argument for adoption of a strong federal bill of rights, instead of being evidence of weakness in the one adopted.

This brought Madison to the question of enforcement. It had been said that a federal provision would be useless “because it was not found effectual in the constitution of the particular States.” True it was that there were few states in which the most valuable rights had not been violated. But it did not follow that they had no salutary effect against the abuse of power. He saw two great protective agencies that would support the federal guarantees of liberty. . . .

The other protection was to come from the states:

“[T]here is the great possiblilty that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a federal government admit the State Legislatures to be sure guardians of the people’s liberties.”

. . . The Constitution, [Madison] told the House, already contained wise and proper restrictions on the states in the words “No State shall pass any bill of attainder, ex post facto law, etc.” There was more danger, he thought, of those powers being abused by state governments than by that of the United States.

Madison wanted the States to be bound by the Bill of Rights, morally as well as legally. Congress did restrict the applicability of the First Amendment to acts of Congress, but mainly because it saw First Amendment rights as being adequately protected by State constitutions (even though they weren’t always). It is telling that Congress did not insert similarly restrictive language into Amendments II through VIII, that is, the other original amendments that prescribe specific rights. The omission speaks volumes about original intent, as do Madison’s views.

If Chief Justice John Marshall, in Barron v. Mayor & City Council of Baltimore (1833), had chosen to invoke Madison’s original intent, we would not be having this argument. The “takings clause” would have been understood to apply to the States and their subordinate jurisdictions. We would have been spared piecemeal “incorporation” of the Bill of Rights, which has yet to apply the “takings clause” to the States, as it should have in 1833.

I conclude that Barron was wrongly decided by a Chief Justice who went against the accepted view of the Bill of Rights. I again quote Brant, writing about the adoption of the Fourteenth Amendment (p. 322):

. . . Bingham . . . had the erroneous impression that the first eight amendments were intended to restrict both the federal and state governments. That belief was widely held among legislators, laity and lawyers during the first half century after the amendments were adopted, and it persisted even after Marshall’s Supreme Court decided in Barron v. Baltimore (1833) that they did not apply to the states.

Why does Brant assert that there was from 1791 until 1833 (and even later) a prevailing “erroneous” impression about the scope of the first eight amendments? Here, Brant goes in a circle. The prevailing impression was erroneous because of Barron, which was decided 42 years after the adoption of the Bill of Rights. But Barron is where Brant rests his case. In particular, Brant says (p. 326)

that in a Constitution setting up a government of limited powers, any “limitations of power, if expressed in general terms,” must apply to the government created by that instrument. [The quotation is from Marshall’s opinion in Barron.]

But the first eight amendments are decidely not general. Nor does the original Constitution simply limit the power of the central government, it also limits the powers of the States both generally (in Article VI) and specifically (in Articles I and IV).

Brant hangs his hat on Barron, which flies in the face of Madison’s intent and 42 years of acceptance of that intent by “legislators, laity and lawyers.”

In sum, Kelo was wrongly decided because Barron was wrongly decided.
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* If you still think that the Bill of Rights restrains only the central government, and not the States, read Amendments II, IV, V, VI, VII, VIII, and X together:

Amendment II

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

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Barking Up the Wrong Libertarian

Diana Hsieh (Noodle Food) points to an article at The Ayn Rand Institute‘s site by Peter Schwartz, in which Schwartz asserts this:

Libertarianism belligerently rejects the very need for any justification for its belief in something called “liberty.” It repudiates the need for any intellectual foundation to explain why “liberty” is desirable and what “liberty” means. Anyone from a gay-rights activist to a criminal counterfeiter to an overt anarchist can declare that he is merely asserting his “liberty” — and no Libertarian (even those who happen to disagree) can objectively refute his definition. Subjectivism, amoralism and anarchism are not merely present in certain “wings” of the Libertarian movement; they are integral to it. In the absence of any intellectual framework, the zealous advocacy of “liberty” can represent only the mindless quest to eliminate all restraints on human behavior — political, moral, metaphysical. And since reality is the fundamental “restraint” upon men’s actions, it is nihilism — the desire to obliterate reality — that is the very essence of Libertarianism.

I refuse to be lumped with the kind of libertarian to whom Schwartz refers, namely, the libertarian who is devoted to a mindless, “anything goes,” libertarianism. For more, read my series, “Practical Libertarianism for Americans,” which I summarize here. See especially Part III of the series (“The Origin and Essence of Rights“) and sample my unorthodox libertarian positions at this collection of links.

My bottom line: True liberty — the kind of liberty that advances happiness — is incompatible with the removal of restraints on human behavior. If that makes me a Burkean conservative, in the mold of Friedrich Hayek, so be it.

But methinks that Schwartz vents his spleen on an increasingly uninfluential branch of libertarianism — the anything-goes absolutists who adhere to anarcho-capitalism. I call them “fundamentalist” libertarians because their libertarianism is rooted in a priori beliefs that have little to do with the facts of human nature. I have addressed their baseless dogmas in many posts, including these:

Libertarian Nay-Saying on Foreign and Defense Policy (06/29/04)
Libertarian Nay-Saying on Foreign and Defense Policy, Revisited (07/23/04)
An Aside about Libertarianism and War (08/02/04)
More about Libertarian Hawks and Doves (09/24/04)
Defense, Anarcho-Capitalist Style (09/26/04)
The State of Nature (12/05/04)
Getting Neolibertarianism Wrong (04/19/05)
Fundamentalist Libertarians, Anarcho-Capitalists, and Self-Defense (04/22/05)
The Legitimacy of the Constitution (05/09/05)
Another Thought about Anarchy (05/10/05)
Anarcho-Capitalism vs. the State (05/26/05)
Rights and the State (06/13/05)
The Essential Case for Consequentialist Libertarianism (07/10/05)
But Wouldn’t Warlords Take Over? (07/26/05)
Sorting Out the Libertarian Hawks and Doves (07/27/05)
A Paradox for Libertarians (08/04/05)
A Non-Paradox for Libertarians (08/15/05)
Liberty or Self-Indulgence? (10/10/05)

Thanks to Diana Hsieh for calling my attention to an Objectivist essay that comes fairly close to echoing my brand of libertarianism. I say “fairly close” because Schwartz appeals to a priori judgments about moral values, judgments which — like those of “fundamentalist” libertarians — seem unanchored in reality.

DWI

DWI usually means “driving while intoxicated.” The more common offense, however, is “driving while incompetent.” I’ve just returned from a quick round of errands, during which I observed a young female driver who:

  • Pulled up to a drive-by mailbox and then had to fumble for her mail. (Old female drivers are usually the ones who have to fumble for their mail when they pull up to a drive-by mailbox.)
  • Threw her mail in a slot and only then looked to see that she had used an “Express Mail” box.
  • Pulled forward and paused for a moment as if she were thinking about backing up (and into my car) in order to reach into the mailbox for her miscast mail.
  • Made an “Austin stop” (that is, slowed down) before pulling onto the street.
  • Proceeded to make an illegal U-turn and looped out into the traffic lane in order to do so, instead of staying in the turning lane. (“Well, officer, how was I supposed to make an illegal U-turn without making a illegal turning maneuver?”)
  • Capped her performance by sporting an opaque “Kerry-Edwards” bumper sticker in her rear window (illegally, I’m sure).

Not counting her gender and relative youth against her (no sexist or agist am I), the young woman is at least a six-time loser. But I saw her in action for only a few minutes. Think what the rest of her life must be like.

Perhaps she is kind to her mother. But I have no reason to believe that, given her evident disregard for other persons.

Related posts:

Pet Peeves (04/06/04)
You’re Driving Me Crazy (Revised Version) (06/21/04)

A Long Long Way

That’s the title of the novel I finished yesterday. A Long Long Way, by Irish writer Sebastian Barry, was shortlisted for the 2005 Man Booker Prize for Fiction, which went to John Banville for The Sea. Banville’s novel is on my to-read list, but it will have to be a masterpiece to top Barry’s novel.

A Long Long Way is the story of William (Willie) Dunne, an Southern Irish Catholic who volunteers for the British Army soon after the outbreak of the Great War. Willie, who is not yet 18 years old when he enlists, is motivated by the belief that a good showing by Southern Irish troops will be rewarded by Home Rule when the war is done.

The action follows wee Willie (who is just 5’6″ tall and naïve, if not simple-minded) through the mud, blood, and abject terror of trench warfare. If Barry meant to write an anti-war novel it doesn’t show. The gory fighting, rendered in a wholly believable way, is only a backdrop for Willie’s thoughts, loves, comradeships, and (most of all) his relationship with his towering figure of a father. All of that holds center stage.

What happens to Willie? Read A Long Long Way and find out.

Schelling and Segregation

Tyler Cowen of Marginal Revolution, who was mentored by Thomas Schelling at Harvard, praises Schelling’s Nobel prize by noting, among other things, Schelling’s analysis of the economics of segregation:

Tom showed how communities can end up segregated even when no single individual cares to live in a segregated neighborhood. Under the right conditions, it only need be the case that the person does not want to live as a minority in the neighborhood, and will move to a neighborhood where the family can be in the majority. Try playing this game with white and black chess pieces, I bet you will get to segregation pretty quickly.

True, but trivial. For, like many game-theoretic tricks, Schelling’s segregation gambit omits much important detail.

To begin with, blacks are not culturally homogeneous. Thomas Sowell argues, rather persuasively to this native of the North, that

[t]here have always been large disparities, even within the native black population of the U.S. Those blacks whose ancestors were “free persons of color” in 1850 have fared far better in income, occupation, and family stability than those blacks whose ancestors were freed in the next decade by Abraham Lincoln. . . .

The redneck culture [prevalent in the South] proved to be a major handicap for both whites and blacks who absorbed it. Today, the last remnants of that culture can still be found in the worst of the black ghettos, whether in the North or the South, for the ghettos of the North were settled by blacks from the South. The counterproductive and self-destructive culture of black rednecks in today’s ghettos is regarded by many as the only “authentic” black culture–and, for that reason, something not to be tampered with. Their talk, their attitudes, and their behavior are regarded as sacrosanct.

The people who take this view may think of themselves as friends of blacks. But they are the kinds of friends who can do more harm than enemies.

As Sowell explains more fully in his essay “Black Rednecks and White Liberals” (from the eponymous book) Northerners were rather accepting of the blacks in their midst until the great migrations of Southern blacks to the North from the 1930s onward. Then whites began to flee the neighborhoods into which Southern blacks were moving. The “old line” blacks sought to do the same, but they had less success than whites because the “old line” blacks became identified with the uncouth intruders from the South.

It is therefore meaningless to treat segregation as a game in which all whites are willing to live with black neighbors as long as they (the whites) aren’t in the minority. Most whites (including most liberals) do not want to live anywhere near any black rednecks if they can help it. Living in relatively safe, quiet, and attractive surroundings comes far ahead of whatever value there might be in “diversity.”

“Diversity” for its own sake is nevertheless a “good thing” in the liberal lexicon. The Houston Chronicle notes Schelling’s Nobel by saying that Schelling’s work

helps explain why housing segregation continues to be a problem, even in areas where residents say they have no extreme prejudice to another group.

Segregation isn’t a “problem,” it’s the solution to a potential problem. Segregation today is mainly a social phenomenon, not a legal one. It reflects a rational aversion on the part of whites to having neighbors whose culture breeds crime and other types of undesirable behavior.

As for what people say about their racial attitudes: Believe what they do, not what they say. Most well-to-do liberals choose to segregate themselves and their children from black rednecks. That kind of voluntary segregation, aside from demonstrating liberal hypocrisy about black redneck culture, also demonstrates the rationality of choosing to live in safer and more decorous surroundings.

Nor is segregation confined to cities. It has spread to the suburbs, as well, because black redneck culture has — too commonly — followed blacks there.

Related posts: Affirmative Action and Race (a collection of links)

Rich October Skies

I used the phrase “bright, blue, mid-October skies” in the preceding post. That reminds me of one of my favorite Carter Family songs,* A.P. Carter’s “School House on the Hill,” the third verse of which ends in the evocative phrase “rich October skies”:

Fond memory paints its scenes of other years
Bring me their memory still
And bright amid those joyous scenes of years
The schoolhouse on the hill

Oh, the schoolhouse that stands upon the hill
I never, never can forget
Dear happy days are gathered ’round me still
I never, no never can forget

There hangs the swing upon the maple tree
Where you and I once swung
There flows the spring, forever flowing free
As when we both were young

Oh, the schoolhouse that stands upon the hill
I never, never can forget
Dear happy days are gathered ’round me still
I never, no never can forget

There climbs the vines and there the berries grow
Which once would rise so high
And there the ripe nuts glistened in the grove
Of rich October skies

Oh, the schoolhouse that stands upon the hill
I never, never can forget
Dear happy days are gathered ’round me still
I never, no never can forget

The song was first recorded on June 17, 1933, in Camden, New Jersey, by A.P., Sara, and Maybelle Carter. And here they are:


Standing, A.P. and Sara; seated, Maybelle.

Here’s a snippet of the Carters’ original recording. And here’s a longer but, unfortunately, incomplete excerpt of a recording made by Jim Watson, Mike Craver, and the late Tommy Thompson of the original Red Clay Ramblers. The excerpt is from a 1980 album, Meeting in the Air, in which Watson, Craver, and Thompson performed 14 original Carter Family pieces. If the Ramblers’ rendition of “School House. . .” doesn’t bring a lump to your throat, you’re too young, too citified, or both.
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Lyrics of original Carter Family songs are available here and here.

Global Warming and the Liberal Agenda

So Mars is getting warmer, without human activity. It’s more evidence that the apparent warming of Earth’s climate is due mainly to phenomena over which humans have no control.

The rush by many scientists and all hair-shirted liberals, anti-capitalists, and inveterate doomsayers to blame global warming on human activity arises from a predisposition to think of economic motives as “greedy” and “evil.” But it is the “greedy” and “evil” pursuit of profit and self-interest that lifts individuals out of poverty, leads to cures for disease, and generally makes life more livable.

In sum, the pursuit of profit and self-interest advances liberals’ proclaimed agenda. But liberals have been blinded to that fact by their own guilt, ignorance, and anti-capiltalist rhetoric. That many liberals are also hypocritical beneficiaries of the system they claim to despise should not go unmentioned, either.

Related posts:

Climatology (07/16/04)
Global Warming: Realities and Benefits (07/18/04)
Scientists in a Snit (08/14/04)
Another Blow to Climatology? (08/21/04)
Bad News for Politically Correct Science (10/18/04)
Another Blow to Chicken-Little Science (10/27/04)
Bad News for Enviro-Nuts (11/27/04)
The Hockey Stick Is Broken (01/31/05)
Science in Politics, Politics in Science (05/11/05)
Hurricanes and Global Warming (09/24/05)

The Case of the (Happily) Missing Supreme Court Nominee(s)

A timely post by “Rice” at Southern Appeal assesses the happiness and unhappiness of party regulars with the Supreme Court picks of presidents since JFK’s day. Rice’s analysis reminds me of the happy fact that one James Earl (call me “Jimmy”) Carter had no picks. Given the ability of Democrats to pick stalwart Leftists — and the inability or unwillingness of Republicans to oppose them — imagine the Court’s current configuration had Carter been able to place one or more of his ilk on the Big Nine.

Rice’s post also convinces me that Senate Republicans should demand the withdrawal of Harriet Miers’s name in favor of a judge with a track record of “strict constructionism.” Given the strong possibility that a Democrat will win the 2008 election, Bush shouldn’t squander a single opportunity to point the Supreme Court in the right direction.

Further Erosion of the Employment Relationship

UPDATED TWICE BELOW

From the law firm of McGuireWoods:

The National Labor Relations Board recently held that an employee’s statements to a local newspaper and subsequent postings on an Internet message board in the context of labor organizing were protected activity under the National Labor Relations Act.

Following the purchase of a manufacturing facility and subsequent layoff of roughly 200 employees by the new owner, the union attempting to organize the facility’s employees approached a retained employee to talk to a newspaper about the firings. The newspaper quoted the employee that the layoffs “left gaping holes in this business”. The company warned the employee that such comments violated the employee handbook because they were disparaging to the company, and that the employee would be fired if he did it again. Two weeks later, the same employee responded to an anti-union posting on the newspaper’s internet message board. Among other statements, the employee stated in his post that the company was “being tanked by a group of people that have no ability to manage it.” He was fired soon after, and the union filed an unfair labor practice.

Affirming the statement that management “cannot be too thin-skinned,” the Board affirmed the ALJ’s decision that the activity was protected for three reasons. First, the newspaper quote and internet posting both involved employment matters. Second, there was a sufficient link between the statements and the ongoing controversy. Finally, the Board ruled that the comments were “not so egregious” as to fall outside the realm of protected activity.

Clearly, the NLRB remains in the grip of Left-wing doctrines, if not in the grip of Left-wing members. It takes a lot of specious reasoning to hold for the employee in the case cited by McGuireWoods. First, the newspaper quote and internet posting were statements by the employee, not the employer. Second, the employee made the link between the statements and the “ongoing controversy.” Finally, the employee’s statements could be found to be “not so egregious” only by a body that is already biased against employers. In sum, the employee bad-mouthed his employer and got away with it simply because of an “ongoing controversy” about unionization. It’s an invitation to disgruntled employees to incite unionization. Apparently almost anything goes under the cover of an effort to unionize a workplace.

Is there a free-speech issue involved? Not at all. The Constitution’s guarantee of freedom of speech is — or was intended to be — nothing more than a guarantee that government cannot suppress speech. Of course, that guarantee has been vitiated by restrictions on such things as commercial speech and campaign speech.

Nothing in the Constitution gives anyone the right to disparage an employer and duck the consequences. In fact, nothing in the Constitution gives government the right to legislate unionism, in particular, or to interfere in employment relationships, in general.

The NLRB’s ruling is another dreary reminder of the many unconstitutional excesses of the New Deal.

UPDATE: A reader objects to my opening comment on the NLRB decision: “Clearly, the NLRB remains in the grip of Left-wing doctrines, if not in the grip of Left-wing members.” He says:

Left-wing doctrines maybe, but to imply the current Board members are a bunch of left-wingers is an absurdity. Anybody who even casually follows Board decisions readily admits that the Board has moved sharply toward management-side on the whole in recent years. If you feel the statute is left-wing, then your gripe is with Congress, not the Board–unless you can point to an example of the Board interpreting the statute in a left-biased way, which I expect you can’t.

My reply:

Regardless of the Board’s current ideological composition, it’s clear that the Board acted in a Left-biased way in the case at hand. I need look no further. The Board chose to interpret the employer’s actions as an act of interference with an attempt to unionize. I would have interpreted the employer’s actions as a justifiable course of discipline against an employee who contravened the employer’s stated policies.

I have had dealings with a similar body (the EEOC), and I doubt very much that the problem is statutory. No statute can prescribe precisely how a body like the NLRB must judge the motivations of employer and employee in a particular case. The Board made a judgment call, which smacks of complaisant adherence to decades of Left-wing precedent. Perhaps the Board is too willing to accept the recommendations of its Regional Directors and their long-serving staff employees, many of whom are likely to be imbued with the “rightness” of Left-wing interpretations of the NLRA.

Anyway, the sentence to which you object . . . means this: “The NLRB remains in the grip of Left-wing doctrines (interpretations of statutory authority), even though its members may (or may not) be Leftists.” . . .

I might have written this: “Clearly, the NLRB remains in the grip of Left-wing precedents that the Board’s current membership is too gutless to reverse.” But I’ll leave it as it stands.

UPDATE 2: My correspondent rightly notes that the National Labor Relations Act (Wagner Act), which established the NLRB, “could have been an overwhelmingly destructive statute.” Although it has been destructive enough, I agree that things could have been worse had the anti-business (and therefore anti-growth) intentions of its framers been executed down the line. But in spite of the intentions of the Act’s framers, its words (in my opinion) give the NLRB leeway for pro-employer decisions. It’s a shame that the NLRB didn’t take advantage of that leeway in the case highlighted by McGuire Woods.

Liberty or Self-Indulgence?

Anarcho-capitalists would attain liberty by doing away with the state. They believe in

the Contractual Society; “[…] a society based purely on voluntary action, entirely un­hampered by violence or threats of violence.”[12] Because this system relies on voluntary agreements (contracts) between individuals as the only legal framework, it is difficult to predict precisely what the particulars of this society would look like. Those particulars are disputed both among anarcho-capitalists and between them and their critics.

Among the important particulars not accounted for by anarcho-capitalists is the method of resolving disputes between those who agree to settle their differences without resorting to violence and those persons (foreign as well as domestic) who simply refuse to be bound by such agreements. Anarcho-capitalists, in their blindness to that bit of reality, insist on applying the non-aggression principle to inter-state relations, thus effectively granting immunity to lawless states simply because they have not yet attacked us.

Anarcho-capitalists, in effect, have created a fantasy world in which the American state is unnecessary because anarcho-capitalists do not like what it sometimes does. Anarcho-capitalists believe that, somehow or other, the absence of the state will culminate in the advent of nirvana.

The state — or something worse — is inevitable, however. The real question, therefore, is how to channel the power of the American state toward the defense of liberty. The Constitution of the United States, in its original meaning, offers the best practical answer to that question. Anarcho-capitalists will object that the original Constitution was imperfect (e.g., it condoned slavery) and that its desirable provisions (e.g., the Bill of Rights) have been implemented imperfectly. Such arguments assume that perfection would have overtaken us in a stateless world.

Anarcho-capitalism, in sum, is a belief in the impossible. It is the wrong standard by which to judge the possible. The right standard, simply stated, is this: When faced with politically feasible policy options, support the ones that advance liberty rather than those which detract from it.

Incremental but real steps toward liberty are infinitely superior to the self-indulgent but politically irrelevant fantasies of anarcho-capitalism.

Related posts:
Libertarian Nay-Saying on Foreign and Defense Policy (06/29/04)
Libertarian Nay-Saying on Foreign and Defense Policy, Revisited (07/23/04)
An Aside about Libertarianism and War (08/02/04)
More about Libertarian Hawks and Doves (09/24/04)
Defense, Anarcho-Capitalist Style (09/26/04)
The State of Nature (12/05/04)
Getting Neolibertarianism Wrong (04/19/05)
Fundamentalist Libertarians, Anarcho-Capitalists, and Self-Defense (04/22/05)
The Legitimacy of the Constitution (05/09/05)
Another Thought about Anarchy (05/10/05)
Anarcho-Capitalism vs. the State (05/26/05)
Rights and the State (06/13/05)
The Essential Case for Consequentialist Libertarianism (07/10/05)
But Wouldn’t Warlords Take Over? (07/26/05)
Sorting Out the Libertarian Hawks and Doves (07/27/05)
A Paradox for Libertarians (08/04/05)
A Non-Paradox for Libertarians (08/15/05)

More Thoughts That Liberals Should Be Thinking

Continued from this post:

If pornography degrades women and discrimination demeans minorities, gay marriage must diminish heterosexual marriage and its civilizing influence.

Taxes are not the price we pay for civilization. Taxes are the price we pay because liberal policies undermine the natural order to be found in free markets and voluntary associations.

If the execution of criminals is “immoral,” what does that say about the execution of unborn innocents?