Constitution – Courts – Law – Justice

If Men Were Angels

Libertarians, God bless them, are always looking for simple solutions to complex problems. Here, for example, is David Bernstein, writing at The Volokh Conspiracy:

I doubt [that] any two libertarians agree on the exact boundaries of libertarianism, but how’s this for a working definition: “A libertarian is someone who generally opposes government interference with and regulation of civil society, even when the result of such government action would be to clamp down on things the individual in question personally dislikes, finds offensive, or morally disapproves of.”

Thus, for example, a libertarian who hates smoking opposes smoking bans in private restaurants, a libertarian who thinks homosexual sodomy is immoral nevertheless opposes sodomy laws, a libertarian who finds certain forms of “hate speech” offensive still opposes hate speech laws, a libertarian who believes in eating natural foods opposes bans or special taxes on processed foods, and a libertarian who thinks that all employers should pay a living wage nevertheless opposes living wage legislation. It doesn’t matter whether the libertarian holds these positions because he believes in natural rights, for utilitarian reasons, or because he thinks God wants us to live in a libertarian society. [“How’s This for a Working Definition of ‘Libertarian’?“, February 26,2015]

This reminds me of the title of a poem by A.E. Housman: “Terence, This Is Stupid Stuff“. Why is it stupid stuff? Because it omits an essential ingredient of liberty, which is line-drawing.

By Bernstein’s logic, one must conclude that anything goes; for example, a libertarian who hates murder, rape, theft, and fraud must oppose laws against such things. Bernstein, like many a libertarian, propounds a moral code that is devoid of morality.

Bernstein might argue that morality is supplied by prevailing social norms. Which, until the bandwagon effect produced by the Supreme Court’s decision in Obergefell v. Hodges, would have meant the non-recognition of homosexual “marriage”. But libertarians were prominent in the chorus of voices clamoring for the Supreme Court to make a national law recognizing homosexual “marriage”, even though the marriage laws still on the books in most parts of the nation — laws that defined marriage as the union of male and female — arose from prevailing social norms. Libertarians have a slippery way of proclaiming laissez faire while striving to enforce their own moral views through law.

Libertarianism is an ideology rooted in John Stuart Mill’s empty harm principle (a.k.a the non-aggression principle), about which I’ve written many times (e.g., here). Regarding ideology, I turn to Jean-François Revel:

As an a priori construction, formulated without regard to facts or ethics, ideology is distinct from science and philosophy on the one hand, and from religion and ethics on the other. Ideology is not science — which it pretends to be. Science accepts the results of the experiments it devises, whereas ideology systematically rejects empirical evidence. It is not moral philosophy — which it claims to have a monopoly on, while striving furiously to destroy the source and necessary conditions of morality: the free will of the individual. Ideology is not religion — to which it is often, and mistakenly, compared: for religion draws its meaning from faith in a transcendent reality, while ideology aims to perfect the world here below.

Ideology — that malignant invention of the human spirit’s dark side, an invention which has cost us dearly — has the singular property of causing zealots to project the structural features of their own mentality onto others. Ideologues cannot imagine that an objection to their abstract systems could come from any source other than a competing system.

All ideologies are aberrations. A sound and rational ideology cannot exist. Falsehood is intrinsic to ideology by virtue of cause, motivation and objective, which is to bring into being a fictional version of the human self — the “self,” at least, that has resolved no longer to accept reality as a source of information or a guide to action. [Last Exit to Utopia, pp. 52-53]

A key aspect of ideology — libertarian ideology included — is its studied dismissal of human nature. Arnold Kling notes, for example,

that humans in large societies have two natural desires that frustrate libertarians.

1. A desire for religion, defined as a set of rituals, norms, and affirmations that are shared by a group and which the group believes it is wrong not to share….

2. A desire for war. I think that it is in human nature to fantasize about battles against tribal enemies….

If these desires were to disappear, I believe that humans could live without a state. However, given these desires, the best approach for a peaceful large society is that which was undertaken in the U.S. when it was founded: freedom of religion guaranteed by the government, and a political system designed for peaceful succession and limitations on the power of any one political office….

I think that it is fine for libertarians to warn of the dangers of religion and to oppose war…. On other other hand, when libertarians assume away the desire for religion and war, their thinking becomes at best irrelevant and at worst nihilistic. [“Libertarians vs. Human Nature“, askblog, February 17, 2017]

In Madison’s words:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. [The Federalist No. 51, February 6, 1788]

Related posts:
On Liberty
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism
Bounded Liberty: A Thought Experiment
More Pseudo-Libertarianism
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
The Myth That Same-Sex “Marriage” Causes No Harm
Defending Liberty against (Pseudo) Libertarians
The Pseudo-Libertarian Temperament
Parsing Political Philosophy (II)
Libertarianism and the State
My View of Libertarianism
More About Social Norms and Liberty
The Authoritarianism of Modern Liberalism, and the Conservative Antidote
The Harm Principle Revisited: Mill Conflates Society and State
Liberty and Social Norms Re-examined

Lincoln Was Wrong

Michael Stokes Paulsen and his son Luke opine:

[A]t the heart of the Civil War, the crisis that triggered it, and the changes that it brought were enormous constitutional issues. Indeed, it is no exaggeration to say that the Civil War was fought over the meaning of the Constitution, and over who would have the ultimate power to decide that meaning. The Civil War decided—on the battlefields rather than in the courts—the most important constitutional questions in our nation’s history: the nature of the Union under the Constitution, the status and future of slavery, the powers of the national government versus the states, the supremacy of the Constitution, and the wartime powers of the president as commander in chief. It was the Civil War, not any subsequent judicial decision, that “overruled” the Supreme Court’s atrocious decision in Dred Scott v. Sandford creating a national constitutional right to own slaves….

The United States is the nation it is today because of Lincoln’s unwavering commitment to the Constitution as governing a single, permanent nation and forbidding secession. Lincoln’s vision of Union is so thoroughly accepted today that we forget how hotly disputed it was for the first seventy years of our nation’s history. The result was hardly inevitable. Lincoln’s vision and resolve saved the nation. Lincoln’s nationalist views have shaped every issue of federalism and sovereignty for the past one hundred fifty years. Compared with the constitutional issues over which the Civil War was fought, today’s disputes over federal- versus-state power are minor-league ball played out on a field framed by Lincoln’s prevailing constitutional vision of the United States as one nation, indivisible.

On the president’s constitutional duty: Lincoln understood his oath to impose an absolute personal moral and legal duty not to cave in to wrong, destructive views of the Constitution. He fought on the campaign trail for his understanding of Union and of the authority of the national government to limit the spread of slavery. Once in office, he understood his oath to impose on him an irreducible moral and legal duty of faithful execution of the laws, throughout the Union. It was a duty he could not abandon for any reason. [“The Great Interpreter”, University of St. Thomas (Minnesota) Research Paper No. 15-09, April 17, 2017]

Whence Lincoln’s view of the Union? This is from the Paulsens’ book, The Constitution: An Introduction:

Lincoln was firmly persuaded that secession was unconstitutional. Immediately upon taking office as President, in his First Inaugural Address, Lincoln— a careful constitutional lawyer— laid out in public his argument as to why secession was unconstitutional: The Constitution was the supreme law of the land, governing all the states. The Constitution did not provide that states could withdraw from the Union, and to infer such a right was contrary to the letter and spirit of the document. The Constitution’s Preamble announced the objective of forming a “more perfect Union” of the states than had existed under the Articles of Confederation, which themselves had said that the Union would be “perpetual.” Moreover, the Constitution created a true national government, not a mere “compact,” league, or confederacy— in fact, it explicitly forbade states from entering into alliances, confederacies, or treaties outside of national authority. The people of the United States, taken as a whole, were sovereign, not the states.

It followed from these views, Lincoln argued, that “no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.” Purported secession was simply an illegal— unconstitutional— rebellion against the Union.

Lincoln’s position, which the Paulsens seem to applaud, is flawed at its root. The Constitution did not incorporate the Articles of Confederation, it supplanted them. The “perpetual Union” of the Articles vanished into thin air upon the adoption of the Constitution. Moreover, the “more perfect Union” of the Constitution’s preamble is merely aspirational, as are the desiderata that follow it:

establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.

“More perfect”, if it means anything, means that the Constitution created a central government where there was none before. The Constitution is silent about perpetuity. It is silent about secession. Therefore, one must turn elsewhere to find (or reject) a legal basis for secession, but not to the Civil War.

The Civil War “decided” the issue of secession in the same way that World War I “decided” the future of war. It was the “war to end all wars”, was it not? Therefore, tens of millions of deaths to the contrary notwithstanding, there have been no wars since the Armistice of 1918. By the same logic, the thief who steals your car or the vandal who defaces your home or the scam artist who takes your life savings has “decided” that you don’t own a car, or that your home should be ugly, or that your savings are really his. Thus does might make right, as the Paulsens would have it.

There is in fact a perfectly obvious and straightforward case for unilateral secession, which I have made elsewhere, including “A Resolution of Secession”. You should read all of it if you are a rabid secessionist — or a rabid anti-secessionist. Here are some key passages:

The Constitution is a contract — a compact in the language of the Framers. The parties to the compact are not only the States but also the central government….

Lest there be any question about the status of the Constitution as a compact, we turn to James Madison, who is often called the Father of the Constitution. Madison, in a letter to Daniel Webster dated March 15, 1833, addresses

the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.

Madison continues:

It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity….

[I]n The Federalist No. 39, which informed the debates in the various States about ratification….

Madison leaves no doubt about the continued sovereignty of each State and its people. The remaining question is this: On what grounds, if any, may a State withdraw from the compact into which it entered voluntarily?

There is a judicial myth — articulated by a majority of the United States Supreme Court in Texas v. White (1869) — that States may not withdraw from the compact because the union of States is perpetual….

The Court’s reasoning is born of mysticism, not legality. Similar reasoning might have been used — and was used — to assert that the Colonies were inseparable from Great Britain. And yet, some of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that the Colonies were not obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the States, as authorized by the people thereof.

In fact, the Constitution supplanted the Articles of Confederation and Perpetual Union, by the will of only nine of the thirteen States….

[I]n a letter to Alexander Rives dated January 1, 1833, Madison says that

[a] rightful secession requires the consent of the others [other States], or an abuse of the compact, absolving the seceding party from the obligations imposed by it.

An abuse of the compact most assuredly necessitates withdrawal from it, on the principle of the preservation of liberty, especially if that abuse has been persistent and shows no signs of abating. The abuse, in this instance, has been and is being committed by the central government.

The central government is both a creature of the Constitution and a de facto party to it, as co-sovereign with the States and supreme in its realm of enumerated and limited powers. One of those powers enables the Supreme Court of the United States to decide “cases and controversies” arising under the Constitution, which alone makes the central government a responsible party. More generally, the high officials of the central government acknowledge the central government’s role as a party to the compact — and the limited powers vested in them — when they take oaths of office requiring them to uphold the Constitution.

Many of those high officials have nevertheless have committed myriad abuses of the central government’s enumerated and limited powers. The abuses are far too numerous to list in their entirety. The following examples amply justify the withdrawal of the State of _______________ from the compact….

We, therefore, the representatives of the people of _______________ do solemnly publish and declare that this State ought to be free and independent; that it is absolved from all allegiance to the government of the United States; that all political connection between it and government of the United States is and ought to be totally dissolved; and that as a free and independent State it has full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Related posts:
Secession Redux
A New Cold War or Secession?
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
The Constitution: Original Meaning, Corruption, and Restoration
The Southern Secession Reconsidered
A Declaration of Civil Disobedience
Our Perfect, Perfect Constitution
Reclaiming Liberty throughout the Land
Secession, Anyone?
Secession for All Seasons
A New Constitution for a New Republic
Restoring Constitutional Government: The Way Ahead
Secession Made Easy
More about “Secession Made Easy”
How Libertarians Ought to Think about the Constitution
The States and the Constitution
Judicial Supremacy: Judicial Tyranny
The Answer to Judicial Supremacy
Turning Points
A Resolution of Secession
Polarization and De-facto Partition

Natural Law and Natural Rights Revisited

An esteemed correspondent took exception to my statement in “Natural Law, Natural Rights, and the Real World” that I “don’t accept the broad outlines of natural law and natural rights,” which I had summarized thus:

Natural law is about morality, that is, right and wrong. Natural rights are about the duties and obligations that human beings owe to each other. Believers in natural law claim to start with the nature of human beings, then derive from that nature the “laws” of morality. Believers in natural rights claim to start with the nature of human beings, then derive from that nature the inalienable “rights” of human beings.

A natural law would be something like this: It is in the nature of human beings to seek life and to avoid death. A natural right would be something like this: Given that it is natural for human beings to seek life and avoid death, every human being has the right to life.

The correspondent later sent me a copy of Hadley Arkes’s essay “A Natural Law Manifesto” (Claremont Review of Books, Fall 2011, pp. 43-49). There’s an online version of the essay (with a slightly different opening sentence) at the website of The James Wilson Institute on Natural Rights and the American Founding, which I’ll quote from in the course of this post.

I don’t lightly dismiss natural law and natural rights. Many proponents of those concepts are on the side of liberty and against statism, which makes me their natural ally. As I say in “Natural Law, Natural Rights, and the Real World,” my problem with the concepts is their malleability. It is too easy to claim to know specifically what is and isn’t in accordance with natural law and natural rights, and it is too easy to issue vague generalizations about rights — generalizations that collapse easily under the weight of specification.

Consider the UN’s Universal Declaration of Human Rights, which rights are declared to be inalienable (i.e., natural). (The Declaration’s 30 articles comprise 48 such rights.) Quotations from the Declaration are followed by my comments in italics:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. What is arbitrary? One person’s “arbitrary” will be another person’s “lawful,” and there will be endless quibbles about where to draw lines.

1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country. Everyone, even including criminals and terrorists? And if “everyone” is qualified by criteria of criminality, there will be endless quibbles about those criteria.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. But what if the practice of a religion includes the commission of terrorist acts?

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. The qualification about the “organization and resources of each State” speak volumes about the relative nature of entitlements. But left unsaid is the nature of the “right” by which some are taxed to provide “social security” for others. Is there no natural right to the full enjoyment of the fruits of one’s own labors? I would think that there would be such a natural right, if there were any natural rights.

Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. See the preceding comment.

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Ditto.

It goes on an on like that. And the UN’s litany of “rights” is surely one that millions or even billions of people would claim to be “natural rights” which inhere in them as human beings. Certainly in the United States almost every Democrat, most independents, and a large fraction of Republicans would agree that such rights are “natural” or God-given or just plain obvious. And many of them would put up a good argument for their position.

If the Declaration of Human Rights seems too easy a target, consider abortion. Arkes and I are in agreement about the wrongness of abortion. He says this in his essay:

[T]he differences in jural perspective that I’m marking off here may have their most profound effect as they reach the most central question that the law may ever reach: who counts as a human person—who counts as the kind of being whose injuries matter? It was the question raised as President Bill Clinton vetoed the bill on partial birth abortion and expressed the deepest concern for the health of the woman denied that procedure. Of that other being present in the surgery, the one whose head was being punctured and the contents sucked out—the assault on the health of that being made no impression on Clinton. The harms didn’t register because the sufferer of the harms did not count in this picture.

But in raising questions of this kind, a jurisprudence with our [natural law] perspective would pose the question insistently: what is the ground of principle on which the law may remove a whole class of human beings from the circle of rights-bearing beings who may be subject to the protections of the law?

The “ground of reason,” though I hesitate to call it that, is the libertarian doctrine of self-ownership (which is tautologous). The child in the womb is dependent on the mother for its life. It is therefore up to the mother to decide whether the “demands” of the child in the womb should take precedence over other aspects of her life, including the remote possibility that bearing a child will kill her.

My objection to abortion is both empathic and prudential. Empathically, I can’t countenance what amounts to the brutal murder of an innocent human being for what is, in almost every case, a matter of convenience. Prudentially, abortion is a step down a slippery slope that leads to involuntary euthanasia. It puts the state on the wrong side of its only legitimate function, which is to protect the lives, liberty, and property of the citizenry.

In any event, Arkes’s essay is as much an attack on jurisprudence that scorns natural law as it is an explanation and defense of natural law. In that vein, Arkes says this:

I come then today, perhaps in the style of Edmund Burke, to make An Appeal from the Old Jurisprudence to the New: from the old jurisprudence, which relied on natural law as a matter of course, to a new conservative jurisprudence that has not only been resistant to natural law, but scorns it. At one level, some of the conservative jurists insist that their concern is merely prudential: Justice Antonin Scalia will say that he esteems the notion of natural law but the problem is there is no agreement on the content of natural law. Far better, he argues, that we simply concentrate on the text of the Constitution, or where the text is silent, on the way in which the text was “originally understood” by the men who framed and ratified it.

Justice Scalia’s key point — there is no agreement on the content of natural law — is underscored by two letters to the editor of the Claremont Review of Books, and Arkes’s reply to those letters (all found here). The writers take issue with Arkes’s pronouncements about the certainty of natural law. The crux of Arkes’s long and argumentative reply is that there are truths that may not be known to all people, but the truths nevertheless exist.

That attitude has two possible bases. The first is that Arkes is setting himself up as a member of the cognoscenti who knows what natural law is and is therefore qualified to reveal it to the ignorant. The second possibility, and the one that Arkes seems to prefer, is that reasonable people will ferret out the natural law. For example, here is a comment and reply about the 14th Amendment:

Max Hocutt: Arkes’s discussion of the 14th Amendment raises a very difficult question: its contemporaries believed mix-raced marriage to be contrary to nature. On the basis of what definition of nature is Arkes confident they were mistaken?

Arkes: It is quite arguable in this vein that the framers of the 14th Amendment did not understand the implications of their own principles when they insisted that nothing in that amendment would be at odds with the laws that barred marriage across racial lines. On the other hand, Mr. Hocutt may want to argue that there was no inconsistency, that there may be some kind of argument in prudence, or perhaps even a racial principle, that could make it justified to bar marriage across racial lines. Well, it is quite possible to have that argument. And the only way of having the “argument”— the only thing that makes it an argument—is that there are standards of reason to which we can appeal to judge the soundness, the truth of falsity, of these reasons.

Clearly, Arkes believes that the “standards of reason” will result in a declaration that the 14th Amendment allows interracial marriage, even if the amendment’s framers didn’t intend that outcome. But Arkes concedes that there is an argument to be had. And that is why Justice Scalia (and I, and many others) say that there is no agreement on the content of natural law, and therefore no agreement as to the rights that ought to be considered “natural” because they flow from natural law.

For example, there is eloquent disagreement with Arkes’s views in Timothy Sandefur’s review of Arkes’s Constitutional Illusions and Anchoring Truths. Notably, Sandefur is also a proponent of natural rights, and I have sparred with him on the subject.

Endless arguments about natural law and natural rights will lead nowhere because even reasonable people will disagree about human nature and the rights that inhere in human beings, if any. In “Evolution, Human Nature, and ‘Natural Rights’,” I explain at length why human beings do not have inherent (i.e., inalienable or “natural”) rights, at least not in the way that Arkes would have it. In the end, I take my stand on negative rights and the Golden Rule:

The following observations set the stage for my explanation:

1. “Natural rights” inhere in a particular way; that is, according to Randy Barnett, they “do not proscribe how rights-holders ought to act towards others. Rather they describe how others ought to act towards rights-holders.” In other words, the thing (for want of a better word) that arises from my nature is not a set of negative rights that I own; rather, it is an inclination or imperative to treat others as if they have negative rights. To put it crudely, I am wired to leave others alone as long as they leave me alone; others are wired to leave me alone as long as I leave them alone.

2. The idea of being inclined or compelled to “act toward” is more plausible than idea that “natural rights” inhere in their holders. It is so because “act toward” suggests that we learn that it is a good thing (for us) to leave others alone, and not that we (each of us) has a soul or psyche on which is indelibly inscribed a right to be left alone.

3. That leads to the question of how one learns to leave others alone as he is left alone by them. Is it by virtue of evolution or by virtue of socialization? And if the learning is evolutionary, why does it seem not to be universal; that is, why it is so routinely ignored?

4. The painful truth that vast numbers of human beings — past and present — have not acted and do not act as if there are “natural rights” suggests that the notion of “natural rights” is of little practical consequence. It may sometimes serve as a rallying point for political action, but with mixed results. Consider, for example, the contrast between the American Revolution, with its Declaration of Independence, and the French Revolution, with its Déclaration des droits de l’Homme et du Citoyen.

5. Even if humans are wired to leave others alone as they are left alone, it is evident that they are not wired exclusively in that way.

And now, for my natural (but not biologically deterministic) explanation. It comes from my post, “The Golden Rule and the State“:

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

The Golden Rule implies the acceptance of negative rights as a way of ensuring peaceful (and presumably fruitful) human coexistence. But, as I point out, there is a “positive” side to the Golden rule:

[It] can be expanded into two, complementary sub-rules:

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

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

An ardent individualist — particularly an anarcho-capitalist — might insist that social comity can be based on the negative sub-rule… I doubt it. There’s but a short psychological distance from mean-spiritedness — failing to be kind and charitable — to sociopathy, a preference for harmful acts…. [K]indness and charity are indispensable to the development of mutual trust among people who live in close proximity, without the protective cover of an external agency (e.g., the state). Without mutual trust, mutual restraint becomes problematic and co-existence becomes a matter of “getting the other guy before he gets you” — a convention that I hereby dub the Radioactive Rule.

The Golden Rule is beneficial even where the state affords “protective cover,” because the state cannot be everywhere all the time. The institutions of civil society are essential to harmonious and productive coexistence. Where those institutions are strong, the state’s role (at least with respect to internal order) becomes less important. Conversely, where the state is especially intrusive, it usurps and displaces the institutions of civil society, leading to the breakdown of the Golden Rule, that is, to a kind of vestigial observance that, in the main, extends only to persons joined by social connections.

In sum, the Golden Rule represents a social compromise that reconciles the various natural imperatives of human behavior (envy, combativeness, meddlesomeness, etc.). Even though human beings have truly natural proclivities, those proclivities do not dictate the existence of “natural rights.” They certainly do not dictate “natural rights” that are solely the negative rights of libertarian doctrine. To the extent that negative rights prevail, it is as part and parcel of the “bargain” that is embedded in the Golden Rule; that is, they are honored not because of their innateness in humans but because of their beneficial consequences.


Among those of us who agree about the proper scope of rights, should the provenance of those rights matter? I think not. The assertion that there are “natural rights” (“inalienable rights”) makes for resounding rhetoric, but (a) it is often misused in the service of positive rights and (b) it makes no practical difference in a world where power routinely accrues to those who make the something-for-nothing promises of positive rights.

The real challenge for the proponents of negative rights — of liberty, in other words — is to overthrow the regulatory-welfare state’s “soft despotism” and nullify its vast array of positive rights. Libertarians, classical liberals, and libertarian-minded conservatives ought to unite around that effort, rather than divide on the provenance of negative rights.

Given the broad range of disagreement about the meaning of the Constitution and the content of natural law, neither will necessarily lead to judicial outcomes of which both Arkes and I approve. What really matters is whether or not judges are conservative in the sense that they are committed to the peaceful, voluntary evolution and exercise of social and economic relationships. Conservative judges of that stripe will more reliably use the words of the Constitution to protect and preserve the voluntary institutions of civil society and the salutary traditions that emerge from them. It is, after all, the Constitution that judges are sworn to support and defend, not amorphous conceptions of natural law and natural rights. As I say in “How Libertarians Ought to Think about the Constitution,” the document “may be a legal fiction, but … it’s a useful fiction when its promises of liberty can be redeemed.”

Arkes’s complaints about Justice Scalia and other strict constitutionalists exemplifies the adage that “perfect is the enemy of good.” The real alternative to Scalia and others similarly inclined isn’t a lineup of judges committed to Arkes’s particular view of natural law and natural rights. The real alternative to Scalia and others similarly inclined is a Court packed with the likes of Douglas, Warren, Brennan, Blackmun, Stevens, Kennedy, Souter, Breyer, Ginsburg, Sotomayor, and Kagan — to name (in chrononlogical order) only the worst in a long list of egregious appointments to the Supreme Court since the New Deal.

I prefer the good — reliably conservative justices like Scalia, Thomas, and Alito — to the impossible perfection sought by Hadley Arkes.

Related posts:
The Real Constitution: I
Negative Rights
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
The Real Constitution and Civil Disobedience
“Natural Rights” and Consequentialism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Evolution, Human Nature, and “Natural Rights”
The Golden Rule as Beneficial Learning
Human Nature, Liberty, and Rationalism
Libertarianism and Morality
Libertarianism and Morality: A Footnote
Merit Goods, Positive Rights, and Cosmic Justice
More about Merit Goods
Liberty, Negative Rights, and Bleeding Hearts
Liberty as a Social Construct: Moral Relativism?
The Futile Search for “Natural Rights”
How Libertarians Ought to Think about the Constitution
More About Social Norms and Liberty
Liberty and Social Norms Re-examined
Natural Law, Natural Rights, and the Real World

Privatizing Marriage: Alabama Takes a Step in the Right Direction

I posted “Marriage: Privatize It and Revitalize It” on July 14, 2015, in the wake of the U.S. Supreme Court’s Justice Anthony Kennedy’s decision in Obergefell v. Hodges. I said that

I used to oppose the privatization of marriage because I believed, naively, that it would be protected by government. By “marriage” I mean the ages-old institution through which heterosexual couples conjoined their lives — an institution that arose without benefit of government, and which government has subverted.

I now believe privatization to be a good idea because a majority of the Supreme Court has made a mockery of marriage with its ruling in Obergefell v. Hodges. As a private institution, marriage would be accorded more respect than it will be accorded as a definitional whim of five justices….

How can government exit the marriage business? Rather easily, I believe. Each State still has the power to regulate marriage within its borders. A State could simply repeal its extant constitutional provisions and marriage laws and replace them with a fairly simple statute; for example … :

Marriage in this State is a private contractual arrangement between two mentally competent, adult persons whose consanguinity is of the 5th degree or greater, and who are not currently in a marriage.

This State shall not dictate the terms and conditions of marriage contracts, but each marriage contract must specify:

  • conditions (if any) for separation and divorce
  • provisions for financial support, the division of property, and the custody of children in the event of separation or divorce
  • obligations of the parties with respect to any children from a previous marriage
  • provisions for private counseling, and the arbitration of disputes arising under the marriage contract.  (If the parties are still in dispute after private proceedings, either or both of them may initiate a civil action, but there will be no special courts devoted to marital disputes and related matters.)

Every marriage contract shall be witnessed by two mentally competent adults.

The signing of a marriage contract, in the sole discretion of the parties thereto, may be preceded, accompanied, or followed by a ceremony and/or celebration, which shall be held in a private home, other private location, or place of religious worship. In accordance with the First and Fifth Amendments to the United States Constitution, neither this State nor the government of the United States may require any person, organization, or religious institution to perform or host a marriage ceremony and/or celebration.

No marriage ceremony or celebration shall be held in or on property owned, leased, or otherwise controlled by this State or any political subdivision or entity of this State.

No official of this State or of any political subdivision or entity of this State, acting in his or her official capacity, shall witness a marriage contract or perform or host a marriage ceremony or celebration.

In accordance with the First, Ninth, and Tenth Amendments to the United States Constitution, neither this State nor the government of the United States may require a person to witness a marriage contract against his or her will. It shall be the responsibility of the parties to a contract to obtain willing witnesses.

The legislature of Alabama seems poised to enact the privatization of marriage in that State, according to this report. The privatization bill (SB20) has been approved by the Senate of Alabama and has been referred to the Committee on the Judiciary of the Alabama House of Representatives. The bill, as it stands now, would

abolish the requirement that a marriage license be issued by the judge of probate and replace existing state statutory marriage law; to provide that a marriage would be entered into by two parties; to provide that the judge of probate would record each marriage presented to the probate court for recording and would forward the document to the Office of Vital Statistics; to provide for the content of a properly formed marriage…

Two persons desiring to unite in marriage may do so by submitting the affidavits, forms, and data specified in Section 30-1-5 and Section 2 of the act amending this section for recording with the office of the judge of probate. The recording of the affidavits, forms, and data establishes legal recognition of the marriage as of the date the affidavits and forms were properly signed by the two parties so long as such documentation was provided to the probate office within 30 days of the signatures of the parties. Each marriage filed with the probate office shall be filed and registered with the Office of Vital Statistics….

On the effective date of this act and thereafter, the only requirement for a marriage in this state shall be for parties who are otherwise legally authorized to be married to enter into a marriage as provided herein….

A civil and independent or religious ceremony of marriage, celebration of marriage, solemnization of marriage, or any other officiation, or administration of the vows of marriage may be conducted or engaged in by the parties by an officiant or other presiding person to be selected by the persons entering into the marriage. The state shall have no requirement for any such ceremony or proceeding which, if performed or not performed, will have no legal effect upon the validity of the marriage….

All requirements to obtain a marriage license by the State of Alabama are hereby abolished and repealed. The requirement of a ceremony of marriage to solemnize the marriage is abolished.

There’s language about the conditions that enable or prohibit parties to enter into a marriage contract (e.g., minimum age, degree of relationship). And State law regarding “divorce, spousal support, child custody, or child support” still stands. But the thrust of the bill is to take the State of Alabama out of the business of authorizing and approving marriages.

The bill doesn’t specifically forbid coerced participation in homosexual “marriages.” There will undoubtedly be law suits aimed at coercing such participation (e.g., requiring private wedding chapels to perform same-sex “marriages”).

Those suits will land in the U.S. Supreme Court. I hope that Justice Kennedy vanishes from the Court before that day (see this), and that the day of his disappearance comes long before January 20, 2021.

Related posts:
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
The Myth That Same-Sex “Marriage” Causes No Harm
Getting “Equal Protection” Right
Posner the Fatuous
The Writing on the Wall
The Beginning of the End of Liberty in America
Marriage: Privatize It and Revitalize It
Equal Protection in Principle and Practice

Supreme Court Lines of Succession, Updated


The updated page takes account of the confirmation of Neil Gorsuch to succeed Antonin Scalia. I have also updated a graph that shows the extent to which each justice has disagreed with other justices; it now covers October Term 2005 – October Term 2016. And there’s a new graph which shows the extent to which each justice has defected from his or her wing of the Court, by term. It shows, unsurprisingly, that in recent terms Anthony Kennedy has disagreed with the conservative (Alito, Roberts, Scalia, and Thomas) more frequently than he has diagreed with the “liberals” (Breyer, Ginsburg, Kagan, and Sotomayor). The graph also underscores Roberts’s recent weakness.

Time for a Jacksonian Response?

Mr. Trump’s revised executive order on visas has been rejected by two federal courts, despite compelling arguments that the rulings are unconsitutional.

Were I in Mr. Trump’s shoes, I would emulate Andrew Jackson:

On March 3, 1832, Chief Justice Marshall handed down the unanimous opinion of the [U.S. Supreme] Court. The Cherokee Nation was sovereign. Georgia law no longer applied to the Cherokee. Justice Story wrote “The Court has done its duty. Now let the Nation do theirs.” At some point, Andrew Jackson supposedly said “Marshall made the ruling, let him enforce it.”

It’s not certain that Jackson uttered those words, but they seem true to the man’s character. And they would seem true to Mr. Trump’s character, and — in this case — to the Constitution.

Race and Social Engineering

It’s well known that the white-black gap in intelligence is persistent. (See, for example, the section headed “Race” in this post, and the graphs of average SAT scores by ethnicity in this one.) But according to this paper, those

group mean differences in cognitive test scores arise from the following racially disparate conditions: family income, maternal education, maternal verbal ability/knowledge, learning materials in the home, parenting factors (maternal sensitivity, maternal warmth and acceptance, and safe physical environment), child birth order, and child birth weight.

You should now ask yourself whether family income, maternal education, etc., are the causes of the intelligence gap or evidence of it. My money is on the latter.

But that won’t keep the social engineers at bay. Segregation is a perennial whipping-boy for those who are still seeking the Great Society, even if it’s voluntary, socioeconomic segregation rather than involuntary, state-mandated segregation. People can’t just be allowed to live among the kinds of people they prefer. No, they must be forced to integrate in the (vain) hope of bettering the groups favored by social engineers.

How can integration be forced? Well, the Obama administration found a way to get the ball rolling. It’s a HUD regulation called Affirmatively Furthering Fair Housing, which Wikipedia summarizes as follows:

It requires cities and towns which receive Federal money to examine their housing patterns and look for racial bias. The intention is to promote racial integration….

Under the rule, any jurisdiction that receives money from HUD must analyze its housing occupancy by race, class, English proficiency, and other categories. It must then analyze factors which contribute to any imbalance, and formulate a plan to remedy the imbalance. The plan can be approved or disapproved by HUD. This is done at both the local and regional level. For example, a major city, such as Chicago, will have to analyze any racial disparities within Chicago, and Chicago suburbs will analyze their own racial disparities. In addition, Chicago and the suburbs will have to analyze any disparities as compared with each other. Thereafter, the community has to track progress (or lack thereof). The planning cycle will be repeated every five years. If the Federal Government is not satisfied with a community’s efforts to reduce disparities, then under the disparate impact doctrine, this could be considered illegal discrimination. As a result, federal funds could be withheld, or the community could be sued, using the racial disparity statistics as evidence.

You know about disparate impact, of course. It’s a legalistic contrivance which says, in effect, that outcomes which are attributable to inherent differences between races and genders amount to illegal discrimination. In other words, it’s illegal to pick the best-qualified candidate for a job if the best-qualified candidate is of the “wrong” color or gender. “Disparate impact” effectively outlaws tests of intelligence for jobs that require above-average intelligence because otherwise “not enough” blacks will qualify for such jobs. “Disparate impact” effectively requires the lowering of physical standards for jobs that require strength because otherwise “not enough” women will qualify for such jobs. It’s affirmative action with a vengeance.

Affirmatively Furthering Fair Housing is reverse discrimination with a vengeance. Luckily, Affirmatively Furthering Fair Housing may not survive the Trump administration.

Why would social engineers seek forced integration, other than for the sheer enjoyment of exerting their power and doing unto others as they wouldn’t do unto themselves? The pretext for social engineering, in this case, is the existence of supportive academic studies (shades of the “doll tests” that influenced Brown v. Board of Education). Several of the studies are cited by Thomas B. Edsall in “Integration Works. Can It Survive the Trump Era?” (The New York Times, February 9, 2017). According to Edsall, the studies purport to show that

segregation, especially neighborhood segregation, exacerbates the racial test score gap….

[T]he higher the level of racial and economic segregation in an area, the larger the achievement gap.


Among the scholars cited here, there is virtual unanimity on the conviction that one way to improve the prospects of poor minorities, black and Hispanic, is to desegregate both schools and housing.

It’s utilitarianism upon stilts.* And the stilts — the studies — are of dubious quality. Consider, for example, the one that seems to be the least circular of the lot, and which claims to prove that desegregation raises the measured intelligence of blacks. I’m referring to Rucker C. Johnson’s “Long-Run Impacts of School Desegregation & School Quality on Adult Attainments” (National Bureau of Economic Research Working Paper 16664, January 2011). According to the abstract, the study

analyzes the life trajectories of children born between 1945 and 1968, and followed through 2013, using the Panel Study of Income Dynamics (PSID). The PSID data are linked with multiple data sources that describe the neighborhood attributes, school quality resources, and coincident policies that prevailed at the time these children were growing up. I exploit quasi-random variation in the timing of initial court orders, which generated differences in the timing and scope of the implementation of desegregation plans during the 1960s, 70s, and 80s. Event study analyses as well as [two-stage least-squares] and sibling-difference estimates indicate that school desegregation and the accompanied increases in school quality resulted in significant improvements in adult attainments for blacks. I find that, for blacks, school desegregation significantly increased both educational and occupational attainments, college quality and adult earnings, reduced the probability of incarceration, and improved adult health status; desegregation had no effects on whites across each of these outcomes. The results suggest that the mechanisms through which school desegregation led to beneficial adult attainment outcomes for blacks include improvement in access to school resources reflected in reductions in class size and increases in per-pupil spending [emphasis added].

Before I get to the italicized assertions, I must comment on Johnson’s method. Convoluted and speculative are the best words to describe it. Here are some apt quotations directly from Johnson’s paper:

I compiled data on school spending and school segregation, linked them to a comprehensive database of the timing of court-ordered school desegregation, and linked these data to a nationally representative longitudinal dataset that follows individuals from childhood into adulthood. Education funding data come from several sources that are combined to form a panel of per-pupil spending for US school districts in 1967 and annually from 1970 through 2000. School segregation data come from the Office of Civil Rights (OCR), and are combined to form a panel used to construct school segregation indices that span the period 1968 through 1988. The school segregation and spending data are then linked to a database of desegregation litigation between 1954 and 2000.

The data on longer-run outcomes come from the Panel Study of Income Dynamics (PSID) that links individuals to their census blocks during childhood. The sample consists of PSID sample members born between 1945 and 1968 who have been followed into adulthood through 2013; these individuals were between the ages of 45 and 67 in 2013. I include all information on them for each wave, 1968 to 2013. Due to the oversampling of black and low-income families, 45 percent of the sample is black.

I match the earliest available childhood residential address to the school district boundaries that prevailed in 1969 to avoid complications arising from endogenously changing district boundaries over time…. Each record is merged with data on the timing of court ordered desegregation, data on racial school segregation, student-to-teacher ratios, school spending at the school district level that correspond with the prevailing levels during their school-age years. Finally, I merge in county characteristics and information on other key policy changes during childhood (e.g., the timing of hospital desegregation, rollout of “War on Poverty” initiatives and expansion of safety net programs…) from multiple data sources. This allows for a rich set of controls.

The comprehensive desegregation court case data I use contains an entire case inventory of every school district ever subject to court desegregation orders over the 1955-1990 period (American Communities Project), and major plan implementation dates in large districts (compiled by Welch/Light). Every court case is coded according to whether it involved segregation of students across schools, whether the court required a desegregation remedy, and the main component of the desegregation plan. The combined data from the American Communities Project (Brown University) and Welch/Light provide the best available data that have ever been utilized to study this topic for several reasons. First, the year of the initial court order (available for all districts) is plausibly more exogenous than the exact year in which a major desegregation plan was implemented because opposition groups to integration can delay major desegregation plan implementation by lengthening the court proceedings or by implementing inadequate desegregation plans…. And, court-ordered desegregation by legal mandate is plausibly more exogenous than other more voluntary forms of desegregation. Second, the date of the initial court order is precisely measured for all districts.

Sixty-nine percent of the PSID individuals born between 1945-1968 followed into adulthood grew up in a school district that was subject to a desegregation court order sometime between 1954 and 1990 (i.e., 9,156 out of 13,246 individuals), with the timing of the court order not necessarily occurring during their school-age years. Eighty-eight percent of the PSID black individuals born between 1945-1968 followed into adulthood grew up in a school district that was subject to a desegregation court order sometime between 1954 and 1990 (i.e., 4,618 out of 5,245 black individuals). The share of individuals exposed to school desegregation orders during childhood increases significantly with birth year over the 1945-1970 birth cohorts analyzed in the PSID sample….

After combining information from the aforementioned 5 data sources, the main sample used to analyze adult attainment outcomes consists of PSID individuals born between 1945-1968 originally from 8 school districts that were subject to desegregation court orders sometime between 1954 and 1990; this includes 9,156 individuals from 3,702 childhood families, 645 school districts, 448 counties, representing 39 different states. I restrict the estimation sample to individuals who grew up in school districts that were ever subject to court-ordered desegregation, since school districts of upbringing that were never under court order are arguably too different to provide a credible comparison group.

That’s just a small sample of Johnson’s statistical gyrations. Given the complexity of his sources, assumptions, and statistical manipulations, there was ample opportunity for cherry-picking to arrive at the desired result: integration is good for blacks and doesn’t harm whites.

If Johnson has shown anything, it’s that throwing money at the problem is the way to get results. That’s all integration means in the context of his study; it has nothing to do with whatever beneficial effects might arise from the commingling of blacks and whites. (About which, see below.)

And throwing money at the problem most certainly harms whites because most of the money undoubtedly cames from whites. How many white children are denied a chance to go to college, or to a better college, because of the school taxes levied on their parents? Johnson doesn’t bother to consider that question, or any other reasonable question about the deprivations visited upon whites because of higher school taxes.

Moreover, throwing money at the problem doesn’t really work:

Academic performance and preparation for college success are widely shared goals, and so it is useful for the public and policymakers to know how they have varied over time at the state level. The present paper estimates these trends by adjusting state average SAT scores for variation in student participation rates and demographic factors known to be associated with those scores.

In general, the findings are not encouraging. Adjusted state SAT scores have declined by an average of 3 percent. This echoes the picture of stagnating achievement among American 17-year-olds painted by the Long Term Trends portion of the National Assessment of Educational Progress, a series of tests administered to a nationally representative sample of students since 1970. That disappointing record comes despite a more-than-doubling in inflation-adjusted per pupil public-school spending over the same period (the average state spending increase was 120 percent). Consistent with those patterns, there has been essentially no correlation between what states have spent on education and their measured academic outcomes. In other words, America’s educational productivity appears to have collapsed, at least as measured by the NAEP and the SAT.

That is remarkably unusual. In virtually every other field, productivity has risen over this period thanks to the adoption of countless technological advances—advances that, in many cases, would seem ideally suited to facilitating learning. And yet, surrounded by this torrent of progress, education has remained anchored to the riverbed, watching the rest of the world rush past it.

Not only have dramatic spending increases been unaccompanied by improvements in performance, the same is true of the occasional spending declines experienced by some states. At one time or another over the past four decades, Alaska, California, Florida, and New York all experienced multi-year periods over which real spending fell substantially (20 percent or more of their 1972 expenditure levels). And yet, none of these states experienced noticeable declines in adjusted SAT scores—either contemporaneously or lagged by a few years. Indeed, their score trends seem entirely disconnected from their rising and falling levels of spending. [Andrew J. Coulson, “State Education Trends Academic Performance and Spending over the Past 40 Years,” Cato Institute, Policy Analysis Number 746, March 18, 2014]

Similar findings emerged from an earlier study by Dan Lips, Shanea J. Watkins, and John Fleming, “Does Spending More on Education Improve Academic Achievement?” (The Heritage Foundation, Backgrounder Number 2179, November 8, 2008). The answer to the question posed by the title is “no.”

Johnson’s expedition through a maze of data sets somehow miraculously arrives at a conclusion that isn’t supported by following the much more direct route of the Cato and Heritage studies: Throwing money at public schools has had almost no effect on the academic performance of students. Johnson report of exceptional results for a select set of public schools that had been integrated is incredible, in the proper meaning of the word: ” So implausible as to elicit disbelief; unbelievable.”

Don’t try to tell me that court-ordered integration has been worth the cost — in money and liberty — because it has fostered brotherly and sisterly love between whites and blacks. The opposite effect is the more likely one. Rather than repeat myself, I refer you to “Genetic Kinship and Society,” especially the discussions of Robert Putnam’s “E Pluribus Unum: Diversity and Community in the Twenty-first Century“ and Byron M. Roth’s The Perils of Diversity: Immigration and Human Nature. A clear implication of those analyses is that conflict — political, if not violent — is bound to result from racial-ethnic-cultural commingling, especially if it’s forced.

Forced integration is on a moral par with with forced segregation. Don’t let the social engineers tell you otherwise.
*This is an allusion to Jeremy Bentham’s characterization of natural rights as “simple nonsense: natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts.” It is a characterization with which I agree.

*     *     *

Related posts:
Race and Reason: The Derbyshire Debacle
Race and Reason: The Victims of Affirmative Action
Race and Reason: The Achievement Gap — Causes and Implications
“Conversing” about Race
Evolution and Race
“Wading” into Race, Culture, and IQ
Evolution, Culture, and “Diversity”
The Harmful Myth of Inherent Equality
Let’s Have That “Conversation” about Race
Affirmative Action Comes Home to Roost
The IQ of Nations
Liberty and Social Norms Re-examined

A Nation of Immigrants, a Nation of Enemies

I’m sick and tired of hearing that the United States is a nation of immigrants. So what if the United States is a nation of immigrants? The real issue is whether immigrants wish to become Americans in spirit, not in name only — loyal to the libertarian principles of the Constitution or cynical abusers of it.

I understand and sympathize with the urge to live among people with whom one shares a religion, a language, and customs. Tribalism is a deeply ingrained trait. It is not necessarily a precursor to aggression, contrary to the not-so-subtle message (aimed at white Americans) of the UN propaganda film that I was subjected to in high school. And the kind of tribalism found in many American locales, from the barrios of Los Angeles to the disappearing German communities of Texas to the Orthodox Jewish enclaves of New York City, is harmless compared with  Reconquista and Sharia.

Proponents of such creeds don’t want to become Americans whose allegiance is to the liberty promised by the Constitution. They are cynical abusers of that liberty, whose insidious rhetoric is evidence against free-speech absolutism.

But they are far from the only abusers of that liberty. It is unnecessary to import enemies when there is an ample supply of them among native-born Americans. Well, they are Americans in name because they were born in the United States and (in most cases) haven’t formally renounced their allegiance to the Constitution. But they are its enemies, no matter how cleverly they twist its meaning to support their anti-libertarian creed.

I am speaking of the left, of course. Lest we forget, the real threat to liberty in America is home-grown. The left’s recent hysterical hypocrisy leads me to renounce my naive vow to be a kinder, gentler critic of the left’s subversive words and deeds.

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Related posts:
IQ, Political Correctness, and America’s Present Condition
Greed, Conscience, and Big Government
Privilege, Power, and Hypocrisy
Thinkers vs. Doers
Society, Polarization, and Dissent
Another Look at Political Labels
Individualism, Society, and Liberty
Social Justice vs. Liberty
My Platform
Polarization and De-facto Partition
How America Has Changed
The Left and “the People”
Why Conservatives Shouldn’t Compromise
Liberal Nostrums
Politics, Personality, and Hope for a New Era

Not-So Random Thoughts (XIX)

ITEM ADDED 12/18/16

Manhattan Contrarian takes on the partisan analysis of economic growth offered by Alan Blinder and Mark Watson, and endorsed (predictably) by Paul Krugman. Eight years ago, I took on an earlier analysis along the same lines by Dani Rodrik, which Krugman (predictably) endorsed. In fact, bigger government, which is the growth mantra of economists like Blinder, Watson, Rodrik, and (predictably) Krugman, is anti-growth. The combination of spending, which robs the private sector of resources, and regulations, which rob the private sector of options and initiative, is killing economic growth. You can read about it here.

*     *     *

Rania Gihleb and Kevin Lang say that assortative mating hasn’t increased. But even if it had, so what?

Is there a potential social problem that will  have to be dealt with by government because it poses a severe threat to the nation’s political stability or economic well-being? Or is it just a step in the voluntary social evolution of the United States — perhaps even a beneficial one?

In fact,

The best way to help the people … of Charles Murray’s Fishtown [of Coming Apart] — is to ignore the smart-educated-professional-affluent class. It’s a non-problem…. The best way to help the forgotten people of America is to unleash the latent economic power of the United States by removing the dead hand of government from the economy.

*     *     *

Anthropogenic global warming (AGW) is a zombie-like creature of pseudo-science. I’ve rung its death knell, as have many actual scientists. But it keeps coming back. Perhaps President Trump will drive a stake through its heart — or whatever is done to extinguish zombies. In the meantime, here’s more evidence that AGW is a pseudo-scientific hoax:

In conclusion, this synthesis of empirical data reveals that increases in the CO2 concentration has not caused temperature change over the past 38 years across the Tropics-Land area of the Globe. However, the rate of change in CO2 concentration may have been influenced to a statistically significant degree by the temperature level.

And still more:

[B]ased on [Patrick[ Frank’s work, when considering the errors in clouds and CO2 levels only, the error bars around that prediction are ±15˚C. this does not mean—thankfully— that it could be 19˚ warmer in 2100. rather, it means the models are looking for a signal of a few degrees when they can’t differentiate within 15˚ in either direction; their internal errors and uncertainties are too large. this means that the models are unable to validate even the existence of a CO2 fingerprint because of their poor resolution, just as you wouldn’t claim to see DnA with a household magnifying glass.

And more yet:

[P]oliticians using global warming as a policy tool to solve a perceived problem is indeed a hoax. The energy needs of humanity are so large that Bjorn Lomborg has estimated that in the coming decades it is unlikely that more than about 20% of those needs can be met with renewable energy sources.

Whether you like it or not, we are stuck with fossil fuels as our primary energy source for decades to come. Deal with it. And to the extent that we eventually need more renewables, let the private sector figure it out. Energy companies are in the business of providing energy, and they really do not care where that energy comes from….

Scientists need to stop mischaracterizing global warming as settled science.

I like to say that global warming research isn’t rocket science — it is actually much more difficult. At best it is dodgy science, because there are so many uncertainties that you can get just about any answer you want out of climate models just by using those uncertianties as a tuning knob.

*     *     *

Well, that didn’t take long. lawprof Geoffrey Stone said something reasonable a few months ago. Now he’s back to his old, whiny, “liberal” self. Because the Senate failed to take up the nomination of Merrick Garland to fill Antonin Scalia’s seat on the Supreme Court — which is the Senate’s constitutional prerogative, Stone is characterizing the action (or lack of it) as a “constitutional coup d’etat” and claiming that the eventual Trump nominee will be an “illegitimate interloper.” Ed Whelan explains why Stone is wrong here, and adds a few cents worth here.

*     *     *

BHO stereotypes Muslims by asserting that

Trump’s proposal to bar immigration by Muslims would make Americans less safe. How? Because more Muslims would become radicalized and acts of terrorism would therefore become more prevalent. Why would there be more radicalized Muslims? Because the Islamic State (IS) would claim that America has declared war on Islam, and this would not only anger otherwise peaceful Muslims but draw them to IS. Therefore, there shouldn’t be any talk of barring immigration by Muslims, nor any action in that direction….

Because Obama is a semi-black leftist — and “therefore” not a racist — he can stereotype Muslims with impunity. To put it another way, Obama can speak the truth about Muslims without being accused of racism (though he’d never admit to the truth about blacks and violence).

It turns out, unsurprisingly, that there’s a lot of truth in stereotypes:

A stereotype is a preliminary insight. A stereotype can be true, the first step in noticing differences. For conceptual economy, stereotypes encapsulate the characteristics most people have noticed. Not all heuristics are false.

Here is a relevant paper from Denmark.

Emil O. W. Kirkegaard and Julius Daugbjerg Bjerrekær. Country of origin and use of social benefits: A large, preregistered study of stereotype accuracy in Denmark. Open Differential Psychology….

The high accuracy of aggregate stereotypes is confirmed. If anything, the stereotypes held by Danish people about immigrants underestimates those immigrants’ reliance on Danish benefits.

Regarding stereotypes about the criminality of immigrants:

Here is a relevant paper from the United Kingdom.


Public beliefs about immigrants and immigration are widely regarded as erroneous. Yet popular stereotypes about the respective characteristics of different groups are generally found to be quite accurate. The present study has shown that, in the UK, net opposition to immigrants of different nationalities correlates strongly with the log of immigrant arrests rates and the log of their arrest rates for violent crime.

The immigrants in question, in both papers, are Muslims — for what it’s worth.

UPDATE 06/02/17: There’s new material of relevance at and

* * *

ADDED 12/18/16:

I explained the phoniness of the Keynesian multiplier here, derived a true (strongly negative) multiplier here, and added some thoughts about the multiplier here. Economist Scott Sumner draws on the Japanese experience to throw more cold water on Keynesianism.

The “H” Word, the Left, and Donald Trump

I don’t believe it but — according to many leftists, Democrats, pundits, and media outlets — Donald Trump is a fascist, a Nazi, a Hitler-in-the making. That’s the scare story that’s been peddled since it began to look as if Trump had a serious chance of becoming the GOP nominee. (Please excuse the superfluity of synonyms for “leftists” in the first sentence.)

There’s something about Republicans that causes leftists to invoke the “H” word — Hitler, that is — and its close substitutes: Nazi and fascist. I have a little story that illustrates the tendency and suggests its cause. I was visiting Austin years ago and fell into a discussion with my brother-in-law and his wife, who were and are both ardent leftists and active in local Democrat politics. They had recently moved to the affluent Northwest Hills section of the city, ostensibly to enable their daughter to attend the schools in that part of the city, which are by reputation better than the ones in South Austin, where they had been living. Northwest Hills is mostly white; many of the whites are Jewish; and the non-white population is mainly of East Asian origin and descent. Blacks and Hispanics are seldom seen in Northwest Hills, except as employees of the city and businesses in the area, and as nannies and yard men. South Austin is much less affluent than Northwest Hills, and far more heavily populated by Hispanics.

The brother-in-law and his wife were apologetic about their move. Though they didn’t put it this way, they had revealed themselves as hypocrites about ethnic diversity and their supposed sympathy with the “less fortunate.” But their hypocrisy was excused by their concern for their daughter’s education. (A classic example of leftist hypocrisy, in the same mold as Democrat presidents — Clinton and Obama most recently — who sent their children to private schools in mostly black D.C.) They were especially chagrined because they (and their leftist ilk) referred to the denizens of their new neighborhood the Northwest Nazis. The appellation arose from the fact that Northwest Hills was then (and still is) markedly more Republican than the surrounding parts of heavily Democrat Austin.

I thought to myself at the time, how utterly wrong-headed it is for leftists — who are ardent fans of dictatorial statism — to refer to Republicans as Nazis. Republicans generally oppose the left’s dictatorial schemes. (I chose to keep my observation to myself rather than incite a fruitless and possibly acrimonious discussion). But leftists like my brother-in-law and his wife — who are given to equating Republicans with fascists, Nazis, and Hitlers — are themselves ardent proponents of the expansion of the fascistic state that has been erected, almost without pause, since the New Deal. (See this, this, this, this, this, this, this, and this.) It’s Through the Looking Glass logic:

‘I don’t know what you mean by “glory,”’ Alice said.

Humpty Dumpty smiled contemptuously. ‘Of course you don’t—till I tell you. I meant “there’s a nice knock-down argument for you!”’

‘But “glory” doesn’t mean “a nice knock-down argument,”’ Alice objected.

‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all.’

The “logic” of applying such labels as Hitler, fascist, and Nazi to Republicans strikes me as psychological projection. That’s not a new explanation, but it’s a sound one, as you’ll see.

The following quotations are excerpted from two blog posts (here and here) by Australian psychologist John J. Ray, who has done a lot of research and writing about the left and its delusions:

I have been looking at the differences between the Left and the Right of politics since 1968, when I submitted my Master’s dissertation  on that subject.  And my aim has been to understand WHY Leftists behave like SoBs so much of the time. How is it that implementing Leftist policies always results in harm and destruction of some sort, if not mass murder?

So my interest has been not only in Leftist claims and policies but also in their underlying psychology.  I think, in fact, that it is only at the psychological level that Leftism can be understood.  And, in that, I find myself in a degree of agreement with Leftist psychologists.  Leftists never stop offering accounts of the psychology of conservatives, adverse accounts, of course. It is one of the more popular fields of research in psychology.  So Leftists are most emphatic that you need to delve into the psychological realm to understand politics.  In any argument on the facts they will be defeated by conservatives so impugning the motives of their opponent is essentially all that they have left.

I am VERY familiar with the Leftist claims in that regard. Most of my 200+ academic journal articles were devoted to showing that the research they relied on in support of their claims was flawed, often hilariously so.

But there was one redeeming feature in their research.  In purporting to describe conservatives they usually were quite clearly describing themselves!  An accusation that they never seem able to let go of, despite much contrary evidence, is that conservatives are “authoritarian”….

*     *     *

The concept of “authoritarianism” as an explanation for conservatism has been like catnip to Leftist psychologists.  They cannot leave it alone.  It first arose among a group of Jewish Marxists in the late 1940s and was published in a 1950 book called “The authoritaian personality” under the lead authorship of a prominent Marxist theoretician, Theodor Wiesengrund, who usually used as his surname the stage name of his Spanish dancer mother — Adorno.

The theory underlying it failed in all sorts of ways so it fell out of favour after the ’60s, though it still got an occasional mention. For more on the Adorno work see here.

In the first half of his first book in 1981, “Bob” Altemeyer gave a comprehensive summary of the problems with the Adorno theory and submitted that it had to be discarded.  He then went on to put forward a slightly different theory and measuring instrument of his own that rebooted the concept of authoritarianism as an explanation of conservative thinking.

That theory and its accompanying measuring instrument (the RWA scale) also soon ran aground, however.  Altemeyer himself admitted that scores on the RWA scale were just about as high among Leftist voters as Rightist voters — which rather ruined it as an explanation of conservatism.  The death knell came when it was revealed that the highest scorers on the RWA scale were in fact former Russian Communists!  Right wing Communists??  For more on Altemeyer’s confusions see here. Or more concisely here.

So the RWA scale lost most of its interest after that, though it is still cautiously used on some occasions — e.g here.

But … Leftist psychologists did not give up.  A group of them including Karen Stenner, Stanley Feldman, Marc Hetherington and Jonathan Weiler revived the old ideas and invented a new questionnaire to measure the concept.  And reading their “new” theory is like a trip back into the 1940’s.  Conservatives are still said to be sad souls who live in a state of constant and unreasonable  fear.

The amusing thing is that there is some reality behind their theory.  The key word is “unreasonable”.  How much fear is “unreasonable”?  Is all fear “unreasonable”?  Obviously not.  Fear is an important survival mechanism.  We would all be eaten by lions etc. without it.  And conservatives do fear the probable results of the hare-brained schemes put forward by Leftists.  Conservatives are nothing if not cautious but to the superficial thinkers of the Left, that caution seems like fear.  So from a conservative viewpoint Leftists are not fearful enough.  They do not fear the “unforeseen” and adverse side effects that invariably accompany any implementation of their schemes.

So, despite the laughable psychometric characteristics of their new measuring instrument, which I set out yesterday, they have in fact achieved some grasp of reality.  They have just not grasped that caution can be a good thing and have not thought deeply enough about the distinction, if any, between caution and fear.  So all their writings amount to little more than an adverse value judgment of things that are in fact probably desirable.

So why all the mental muddle from them?  Why does the old “authoritarianism” catnip keep them coming back to that dubious concept?  Why have they not learnt from its past failures?  Easy:  It’s all Freudian projection.  They see their own faults in conservatives.  The people who REALLY ARE authoritarian are Leftists themselves.  Communist regimes are ALWAYS authoritarian and in democracies the constant advocates of more and more government control over everything are the Left.  The Left are the big government advocates, not conservatives.  What could be more authoritarian than Obama’s aim to “fundamentally transform” America? It is the Left who trust in big brother while conservatives just want to be left alone.

It’s true that conservatives have respect for authority, which isn’t the same thing as authoritarianism. Respect for authority, where it’s earned by authority, means respect for the civilizing norms that are represented in a lawful institution when it acts within its traditional bounds. For example, conservatives respect presidents when they strive to restore and sustain the constitutional order; conservatives therefore disrespect presidents who blatantly violate that order.

What about Mussolini and Hitler, who are usually thought of as right-wing dictators and therefore labeled as conservative? I return to John Ray, who has this to say about Mussolini:

Let us listen initially to some reflections on the early days of Fascism by Mussolini himself — first published in 1935 (See the third chapter in Greene, 1968).

“If the bourgeoisie think they will find lightning conductors in us they are the more deceived; we must start work at once …. We want to accustom the working class to real and effectual leadership“.

And that was Mussolini quoting his own words from the early Fascist days. So while Mussolini had by that time (in his 30s) come to reject the Marxist idea of a class-war, he still saw himself as anti-bourgeois and as a saviour and leader of the workers. What modern-day Leftist could not identify with that?…

“If the 19th century has been the century of the individual (for liberalism means individualism), it may be conjectured that this is the century of the State.

This is Mussolini’s famous prophecy about the 20th century in the Enciclopedia Italiana….

“Laissez faire is out of date.”

To this day the basic free market doctrine of “laissez faire” is virtually a swear-word to most Leftists. Quoted from Smith (1967, p. 87)….

And Mussolini’s “Fascist Manifesto” of 1919 (full translation by Vox Day here) includes in Fascist policy such socialist gems as (I quote):
* The nationalization of all the arms and explosives factories.
* A strong progressive tax on capital that will truly expropriate a portion of all wealth.
* The seizure of all the possessions of the religious congregations and the abolition of all the bishoprics, which constitute an enormous liability on the Nation and on the privileges of the poor.
* The formation of a National Council of experts for labor, for industy, for transportation, for the public health, for communications, etc. Selections to be made from the collective professionals or of tradesmen with legislative powers, and elected directly to a General Commission with ministerial powers.
* A minimum wage.
* The participation of workers’ representatives in the functions of industry commissions.

Elsewhere, Ray says this about Mussolini and his aims:

“Fascism” is a term that was originally coined by the Italian dictator Mussolini to describe his adaptation of Marxism to the conditions of Italy after World War I. Lenin in Russia made somewhat different adaptations of Marxism to the conditions in Russia during the same period and his adaptations came to be called Marxism/Leninism. Mussolini stayed closer to Marx in that he felt that Italy had to go through a capitalist stage before it could reach socialism whereas Lenin attempted to push Russia straight from semi-feudalism into socialism. Mussolini’s principal modification of Marxism was his rejection of the notion of class war, something that put him decisively at odds with Lenin’s “Reds”….

Mussolini’s ideas and system were very influential and he had many imitators — not the least of which was Adolf Hitler….

…Mussolini was quite intellectual and his thinking was in fact much more up-to-date than that would suggest. He was certainly influenced by Marx and the ancient world but he had a whole range of ideas that extended beyond that. And where did he turn for up-to-date ideas? To America, of course! And the American ideas that influenced him were in fact hard to miss. They were the ideas of the American “Progressives”. And who was the best known Progressive in the world at that time? None other than the President of the United States — Woodrow Wilson….

Ray takes up FDR’s resemblance to Mussolini, and defers to Srdja Trifkovic’s “FDR and Mussolini: A Tale of Two Fascists,” which includes these observations:

Genuine conservatives … may argue that FDR and Mussolini were in fact rather similar. They will point out both men’s obsessive focus on strong, centralized government structures, their demagoguery, and especially their attempt to overcome the dynamics of social and economic conflict through the institutions of the corporate state.

For all their apparent similarities, however, Franklin Delano Roosevelt was a more deleterious figure than Benito Mussolini, and his legacy proved to be more damaging to America than Il Duce’s was to Italy. This is not a case of good versus bad, or of two equal evils, but of bad versus even worse: Roosevelt was a more efficient, and certainly more successful, fascist than Mussolini.

(See my “FDR and Fascism” and also follow the links therein.)

As for Hitler, I return to John Ray and his monograph, “Hitler Was a Socialist“:

It is very easy to miss complexities in the the politics of the past and thus draw wrong conclusions about them. To understand the politics of the past we need to set aside for a time our own way of looking at things and try to see how the people involved at the time saw it all. Doing so is an almost essential step if we wish to understand the similarities and differences between Nazism and Marxism/Leninism. The following excerpt from James P. O’Donnell’s THE BUNKER (1978, Boston, Houghton Mifflin, pp. 261-262) is instructive. O’Donnell is quoting Artur Axmann, the Nazi youth leader, recalling a conversation with Goebbels in the Hitler bunker on Tuesday, May 1, 1945, the same day Goebbels and his wife would kill themselves after she killed their children.

“Goebbels stood up to greet me. He soon launched into lively memories of our old street-fighting days in Berlin-Wedding, from nineteen twenty-eight to thirty-three. He recalled how we had clobbered the Berlin Communists and the Socialists into submission, to the tune of the “Horst Wessel” marching song, on their old home ground.He said one of the great accomplishments of the Hitler regime had been to win the German workers over almost totally to the national cause. We had made patriots of the workers, he said, as the Kaiser had dismally failed to do. This, he kept repeating, had been one of the real triumphs of the movement. We Nazis were a non-Marxist yet revolutionary party, anticapitalist, antibourgeois, antireactionary….

Starch-collared men like Chancellor Heinrich Bruening had called us the “Brown Bolsheviks,” and their bourgeois instincts were not wrong.

It seems inconceivable to modern minds that just a few differences between two similar ideologies — Marxism and Nazism — could have been sufficient cause for great enmity between those two ideologies. But the differences concerned were important to the people involved at the time. Marxism was class-based and Nazism was nationally based but otherwise they were very similar. That’s what people said and thought at the time and that explains what they did and how they did it.

And a quote from Hitler himself:

“Stalin and I are the only ones who envisage the future and nothing but the future. Accordingly, I shall in a few weeks stretch out my hand to Stalin at the common German-Russian frontier and undertake the redistribution of the world with him.”

…Consider this description by Edward Feser of someone who would have been a pretty good Presidential candidate for the modern-day U.S. Democratic party:

He had been something of a bohemian in his youth, and always regarded young people and their idealism as the key to progress and the overcoming of outmoded prejudices. And he was widely admired by the young people of his country, many of whom belonged to organizations devoted to practicing and propagating his teachings. He had a lifelong passion for music, art, and architecture, and was even something of a painter. He rejected what he regarded as petty bourgeois moral hang-ups, and he and his girlfriend “lived together” for years. He counted a number of homosexuals as friends and collaborators, and took the view that a man’s personal morals were none of his business; some scholars of his life believe that he himself may have been homosexual or bisexual. He was ahead of his time where a number of contemporary progressive causes are concerned: he disliked smoking, regarding it as a serious danger to public health, and took steps to combat it; he was a vegetarian and animal lover; he enacted tough gun control laws; and he advocated euthanasia for the incurably ill.

He championed the rights of workers, regarded capitalist society as brutal and unjust, and sought a third way between communism and the free market. In this regard, he and his associates greatly admired the strong steps taken by President Franklin Roosevelt’s New Deal to take large-scale economic decision-making out of private hands and put it into those of government planning agencies. His aim was to institute a brand of socialism that avoided the inefficiencies that plagued the Soviet variety, and many former communists found his program highly congenial. He deplored the selfish individualism he took to be endemic to modern Western society, and wanted to replace it with an ethic of self-sacrifice: “As Christ proclaimed ‘love one another’,” he said, “so our call — ‘people’s community,’ ‘public need before private greed,’ ‘communally-minded social consciousness’ — rings out.! This call will echo throughout the world!”

The reference to Christ notwithstanding, he was not personally a Christian, regarding the Catholicism he was baptized into as an irrational superstition. In fact he admired Islam more than Christianity, and he and his policies were highly respected by many of the Muslims of his day. He and his associates had a special distaste for the Catholic Church and, given a choice, preferred modern liberalized Protestantism, taking the view that the best form of Christianity would be one that forsook the traditional other-worldly focus on personal salvation and accommodated itself to the requirements of a program for social justice to be implemented by the state. They also considered the possibility that Christianity might eventually have to be abandoned altogether in favor of a return to paganism, a worldview many of them saw as more humane and truer to the heritage of their people. For he and his associates believed strongly that a people’s ethnic and racial heritage was what mattered most. Some endorsed a kind of cultural relativism according to which what is true or false and right or wrong in some sense depends on one’s ethnic worldview, and especially on what best promotes the well-being of one’s ethnic group

There is surely no doubt that the man Feser describes sounds very much like a mainstream Leftist by current standards. But who is the man concerned? It is a historically accurate description of Adolf Hitler. Hitler was not only a socialist in his own day but he would even be a mainstream socialist in MOST ways today. Feser does not mention Hitler’s antisemitism above, of course, but that too seems once again to have become mainstream among the Western-world Left in the early years of the 21st century.

I have barely scratched the surface of Ray’s writings about fascism, Nazism, and the left. Based on the writings of Ray (and others), and on my own observations, I have no doubt that the American left — from Woodrow Wilson (if not Teddy Roosevelt) to the present day — is aligned with the political aims of Mussolini and Hitler.

Which isn’t to say that there haven’t been a few dictators who may rightly be called conservatives because of their defense of traditional institutions and their willingness to suppress real threats to those institutions, namely, socialism and communism. Franco and Pinochet spring to mind as leading examples of such dictators. But compared with Hitler, Stalin, and Mao, they were rank amateurs in the arts of repression and murder. Had they not come to power, the people of Spain and Chile would have suffered under regimes similar to those of Castro and Chavez, which have impoverished and repressed the people of Cuba and Venezuela.

What about Donald Trump? Based on his appointments to date — with the possible exception of Steve Bannon — he seems to be taking a solidly conservative line. He isn’t building a government of bomb-throwers, but rather a government of staunch conservatives who, taken together, have a good chance at rebuilding America’s status in the world while dismantling much of Obama’s egregious “legacy”: onerous energy regulations (due to Obama’s embrace of the AGW hoax), Obamacare, the push for a higher minimum wage, opposition to school choice, racial politics in the Justice Department, the reinflation of the low-income housing bubble, and other meddlesome manifestations of Obama’s hopey-changey war on America.

I said some nasty things about Trump during his campaigns for the GOP nomination and the presidency. On the basis of his performance since the election, it seems likely that I was wrong about him as a prospective president (though perhaps not as a person). Like so many of his critics, I was put off by his vulgarity, his seeming dismissal of constitutional values, his “liberal” reputation, and his apparent ignorance of the details of many issues. All of that may have been well-designed electoral camouflage — a way of distracting the left-dominated media while he smuggled in a conservative agenda that could restore America’s standing in the world, revitalize its economy, and reweave its shredded liberty.

Will Donald Trump be a perfect president, if perfection is measured by adherence to the Constitution? Probably not, but who has been? It now seems likely, however, that Trump will be a far less fascistic president than Barack Obama has been and Hillary Clinton would have been. He will certainly be far less fascistic than the academic thought-police, whose demise cannot come too soon for the sake of liberty.

In sum, Trump’s emerging agenda seems to resemble my own decidedly conservative one.

Freedom of Speech and the Long War for Constitutional Governance

Freedom of speech is at the heart of the war between the friends and enemies of liberty. The Constitution’s guarantee of freedom of speech is misunderstood. The social order that underlies liberty has been undermined by the Supreme Court’s free-speech absolutism. At the same time, the kind of speech that should be protected by the First Amendment is increasingly suppressed by the enemies of liberty, who will find succor in Justice Kennedy’s ruling in Obergefell v. Hodges.

The restoration of freedom of speech, properly understood, will take a long time and determined action by conservatives. It will require a counter-revolution against the insidious, decades-long spread of leftist doctrines by “educators” and the media.


Bill Vallicella (Maverick Philosopher) characteristically asks a tough question, and answers it:

Ought flag burning come under the rubric of protected speech?  Logically prior question: Is it speech at all?  What if I make some such rude gesture in your face as ‘giving you the finger.’  Is that speech?  If it is, I would like to know what proposition it expresses.  ‘Fuck you!’ does not express a proposition.  Likewise for the corresponding gesture with the middle finger.  And if some punk burns a flag, I would like to know what proposition the punk is expressing.
The Founders were interested in protecting reasoned dissent, but the typical act of flag burning by the typical leftist punk does not rise to that level.  To have reasoned or even unreasoned dissent there has to be some proposition that one is dissenting from and some counter-proposition that one is advancing, and one’s performance has to make more or less clear what those propositions are.  I think one ought to be skeptical of arguments that try to subsume gestures and physical actions under speech.

The only reasonable objection to Vallicella’s position is that a government which can outlaw flag-burning or finger-flipping can outlaw any form of expression. The objection is a slippery-slope argument: allow X (suppression of certain forms of expression) and Y (suppression of any kind of expression, at the whim of government) is sure to follow.

What has happened, in fact, is the opposite: Forms of expression (i.e., speech and symbolic acts) that had been outlawed have been made legal by the U.S. Supreme Court. Examples are the showing of films that the authorities of a State considered obscene, the utterance or publication of statements advocating the overthrow of government, and flag-burning. The Court has developed something like an absolute position regarding freedom of speech — or, more accurately, freedom of expression.

For example, only where advocacy of and organization for an overthrow of government is deemed to be a “clear and present danger” can such advocacy or organization be curbed. Which is somewhat like waiting to shoot at an enemy armed with a long-range rifle until you are able to see the whites of his eyes. Or, perhaps more aptly in the 21st century, waiting until a terrorist strikes before acting against him. Which is too late, of course, and impossible in the usual case of suicide-cum-terror.

And therein lies the dangerous folly of free-speech absolutism. A general and compelling case against the current reign of absolutism is made by David Lowenthal in No Liberty for License: The Forgotten Logic of the First Amendment. Lowenthal’s case is summarized in Edward J. Erler’s review of the book (“The First Amendment and the Theology of Republican Government,” Interpretation, Spring 2000):

The thesis of David Lowenthal’s [book] is as bold as it is simple: “the First Amendment, intended as a bulwark of the republic, has become a prime agent of its destruction” (p. xiv). Lowenthal rightly argues that the First Amendment was adopted for a political purpose; it sought to protect only those liberties necessary for the preservation of republican government. Today, however, the focus of the First Amendment is on “individual rights” rather than the common good, at it is this “over-expansion of individual liberty” that Lowenthal believes has led to the vast decline of the “moral and political health of the republic,” a decline that undermines the very foundations of liberty itself. Indeed, the Supreme Court has “made individual freedom its god — at the expense of the moral, social, and political needs of ordered society” (p. xiv).

Lowenthal argues that this corruption in First Amendment jurisprudence was caused by the deliberate departure from the intentions of its framers: “the great impetus for movement in the direction of extreme liberty came not from within the system but from new philosophies and theories, mostly imported from abroad…. The main culprit here, according to Lowenthal, is John Stuart Mill who, in the hands of Justices Holmes and Brandeis, became the intellectual guide for a “second, hidden founding” (pp. 54, 45, 248, 250, 253, 267, 273). It was Mill who “supplied a new theoretical foundation for liberty, calling for its vast expansion in the name of freedom of thought,” and by the middle of the twentieth century, those forces set in motion by modernity, “relativism and subjectivism,” had become the dominant mode of thought informing constitutional interpretation (p. 267). Mill and his epigones replaced the founders as the source for understanding the Constitution.

The efforts of Holmes and Brandeis, of course, were part of the larger Progressive movement. The explicit goal of Progressivism was to free the Constitution from its moorings of the founding, most particularly from the “static” doctrines of the Declaration of Independence and its reliance on the permanent truths of the “laws of nature and nature’s God.” Progressivism itself was only one strain of modernity, but it shared with the other strains the depreciation of both reason and revelation as sources of moral and political authority. Progressivism was phenomenally successful in it debunking of the founding and its reformist zeal appealed wholly to the passions. It sought to liberate the passions from the constraints of morality, whereas the founders appealed to the “reason … of the public” (The Federalist, No. 49 [Rossiter, ed.] p. 317) as the foundation of moral and political order. The appeal to reason will always be more difficult than the appeal to passion, especially when the appeal to passion has itself assumed a kind of “moral” authority. It should not be surprising therefore that the success of the “Holmes-Brandeis school of jurisprudence,” in Lowenthal’s estimation, “is wholly out of keeping with its intrinsic merits” (p. 61).

Progressivism was a wholly alien doctrine; it derived not from any thought of the founding, but from Continental thought, principally of Hegel. The result was moral relativism verging on nihilism. But Lowenthal rightly questions “whether any alien doctrines, any doctrines other than those of the founders and framers, written into the language of the Constitution, should be so employed” (p. 54). Lowenthal supports original intent jurisprudence because the ideas of the framers and founders “remain constitutionally, politically, and morally superior to those that have displaced them” (p. xxii). Lowenthal does not minimize the difficulty of restoring the founding to its rightful place; he believe the republic is in grave danger and the danger is more than abundantly evident in the current understanding of the First Amendment. Lowenthal’s account is not that of a mere intellectual; it is written with a verve, moral passion, and deep understanding that is almost unknown among intellectuals.

The First Amendment, in the hands of the Supreme Court, has become inimical to the civil and state institutions that enable liberty. The Court has been so busy protecting the right of the media to subvert the national defense, that it hasn’t spared the time to extend its free-speech absolutism by striking down speech codes at taxpayer-funded universities. That’s perverse because, among many things, speech codes are intended to suppress the very kind of political dissent that the First Amendment was meant to protect. It isn’t protected because it’s conservative dissent from “liberal” orthodoxy.


One aspect of that orthodoxy, which Lowenthal addresses, is John Stuart Mill’s harm principle:

[T]he sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. [John Stuart Mill, On Liberty (1869), Chapter I, paragraph 9.]

This is empty rhetoric. Theodore Dalrymple exposes its emptiness in “The Simple Truth about J.S. Mill’s Simple Truth” (Library of Law and Liberty, July 20, 2015). Dalrymple writes about the legalization of drugs, but his indictment of the harm principle is general:

I can do as I please, and take what I like, so long as I harm no others.

One can easily sympathize with this attempt to delimit the relations between the individual and the state or other powerful authorities. Every government today is in practice vastly more oppressive than that of George III in the American colonies. Which of us does not feel an increasing weight on him of regulation, prohibition, and compulsion from on high—most of it nowadays supposedly for our own good—to help us lead a better or a longer life whether we want it or not? How are we to hold back the flood of official intrusion into our lives without a principle to distinguish legitimate from illegitimate intrusion?…

The objections to the Millian premise of the call to drug legalization are well-known. Man is a social as well as a political animal, and except for the very few who live in genuine isolation, almost all that we do affects someone else….

We may, indeed we ought to, have a bias or presumption in favor of individual liberty, and we should also have a lively appreciation of the fact that interference with liberty to prevent harm to others may actually cause more harm than it prevents. Moreover, because liberty is a good in itself, loss of liberty is a harm in itself, always to be taken into account.

None of this means that there is a very clear principle that can lay down in advance the limits of liberty, such as Mill wants (and the would-be legalizers of drugs rely upon)….

The libertarian position with regard to drugs would be more convincing if the costs of the choices of those who took them could be brought home to them alone. We know that, in practice, they are shared….

In short, there is no “very simple principle” of the kind that Mill enunciated, with an eloquence that disguised a certain hollowness, that establishes as inherently wrong the forbidding of citizens to take whatever drugs they like. By the same token, there is no very simple principle that will determine which drugs should be permitted and which banned.

If it is right to begin permitting the consumption of a heretofore banned drug, it must, therefore, be on other grounds than that “the sole end for which mankind are warranted individually or collectively in interfering with the liberty of action of any of their number is self-protection.” As Einstein said, a theory should be as simple as possible, but not simpler than possible.

(See also: “Toleration Extremism: Notes on John Stuart Mill“, Maverick Philosopher, January 14, 2015.)


Harm must be defined. And its definition must arise from voluntarily evolved social norms. Such norms evince and sustain the mutual trust, respect, forbearance, and voluntary aid that — taken together — foster willing, peaceful coexistence and beneficially cooperative behavior. And what is liberty but willing, peaceful coexistence and beneficially cooperative behavior?

Behavior is shaped by social norms. Those norms once were rooted in the Ten Commandments and time-tested codes of behavior. They weren’t nullified willy-nilly in accordance with the wishes of “activists,” as amplified through the megaphone of the mass media, and made law by the Supreme Court. What were those norms? Here are some of the most important ones:

Marriage is a union of one man and one woman. Nothing else is marriage, despite legislative, executive, and judicial decrees that substitute brute force for the wisdom of the ages.

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

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

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

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

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

People should work, save, and pay for their own housing. The prospect of owning one’s own home, by dint of one’s own labor, is an incentive to work hard and to advance oneself through the acquisition of marketable skills.

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

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

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

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

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

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

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

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

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

The list isn’t exhaustive, but it’s certainly representative. The themes are few and simple: respect others, respect tradition, restrict government to the defense of society from predators foreign and domestic. The result is liberty: A regime of mutually beneficial coexistence based on mutual trust and respect. That’s all it takes — not big government bent on dictating new norms just because it can.

But by pecking away at social norms that underlie mutual trust and respect, “liberals” have sundered the fabric of civilization. There is among Americans the greatest degree of mutual enmity (dressed up as political polarization) since the Civil War.

The mutual enmity isn’t just political. It’s also racial, and it shows up as crime. Heather Mac Donald says “Yes, the Ferguson Effect Is Real,” and Paul Mirengoff shows that “Violent Crime Jumped in 2015.” I got to the root of the problem in “Crime Revisited,” to which I’ve added “Amen to That” and “Double Amen.” What is the root of the problem? A certain, violence-prone racial minority, of course, and also under-incarceration (see “Crime Revisited”).

The Ferguson Effect is a good example of where the slippery slope of free-speech absolutism leads. More examples are found in the violent protests in the wake of Donald Trump’s electoral victory. The right “peaceably to assemble, and to petition the Government for a redress of grievances” has become the right to assemble a mob, disrupt the lives of others, destroy the property of others, injure and kill others, and (usually) suffer no consequences for doing so — if you are a leftist or a member of one of the groups patronized by the left, that is.


But that’s not the end of it. There’s a reverse slippery-slope effect when it comes to ideas opposed by the left. There are, for example, speech codes at government-run universities; hate-crime laws, which effectively punish speech that offends a patronized group; and penalties in some States for opposing same-sex “marriage” (a recent example is documented here).

Justice Kennedy’s egregious majority opinion in Obergefell v.Hodges lays the groundwork for more suppression. This is from Chief Justice Roberts’s dissent (references omitted):

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion.Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n]or stigmatiz[e]” same-sex couples. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. These apparent assaults on the character of fairminded people will have an effect, in society and in court. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.

Justice Alito, in his dissent, foresees that the majority opinion

will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion,the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

I expect Roberts and Alito to be proved right unless the election of Donald Trump soon results in a conservative majority on the Court, that is, the replacement of Kennedy or one of his allies in Obergefell v. Hodges.

In sum, there is no longer such a thing as the kind of freedom of speech intended by the Framers of the Constitution. There is on the one hand license for “speech” that subverts and flouts civilizing social norms — the norms that underlie liberty. There is on the other hand a growing tendency to suppress speech that supports civilizing social norms.


What I have just described is a key component of the left’s continuing and relentless effort to reshape the world to its liking. Leftists don’t care about the licentious consequences of free-speech absolutism because they’re insulated from those consequences (or so they believe). Their motto should be “I’m all right, Jack.”

But leftists do care about making government big and all-powerful, so that it can enact the programs and policies they favor. To that end, leftists seek to suppress political dissent and to subvert voluntary cooperative behavior, which is found not only in evolved social norms but also in free markets. The people must be brought to heel at the command of big brother, who knows best.

It is war, in other words, and more than a culture war. It’s a war between the enemies of liberty and those who want liberty, not license. The problem is that too many of those who want liberty don’t know that there is a war. For one thing, those who want liberty aren’t necessarily self-described libertarians; rather, they’re traditional conservatives (Burkean libertarians) who, by nature, are attuned to beneficial cooperation, not ideological conflict. For another thing, many of those who want liberty have been brainwashed into believing that leftists also want liberty but are misguided about how to attain it.

It may be too late to pull victory from the jaws of defeat. But while there is still freedom to challenge the enemies of liberty there is still hope for the restoration of constitutional governance.

I would return to first principles. The United States was reconstituted in 1788 when the Constitution was ratified. As stated in the preamble to the Constitution, one of the purposes for reconstituting the nation was to “secure the Blessings of Liberty to ourselves and our Posterity.”

Why, then, should the government of the United States tolerate the promulgation of anti-libertarian views? It is evident that in practice the free-speech slippery slope really leads away from liberty not toward it. I’m referring not just to riotous, licentious behavior that flouts civilizing norms and undermines them. I’m also referring to something much deeper and more subversive than that: the toleration of speech that has turned the Constitution on its head by converting the central government from a miserly, non-interfering night watchman to a partisan, micro-managing nanny with deep pockets into which almost everyone is allowed to dip.

This means, at a minimum, and end to free-speech absolutism, which has become a license for two-percent tyranny and the destruction of civilizing social norms. It also means taking a hard line with respect to advocates of big, intrusive government. It will be a cold day in hell before there is a president and a Congress and a Supreme Court who consistently and concertedly take a hard line — and carry it into action. Donald Trump is preferable to Hillary Clinton, but he is a far cry from Ronald Reagan, let alone Calvin Coolidge (my favorite president). The Republican majorities in Congress are infested with special pleaders who will log-roll until the cows come home. The Supreme Court will continue to be the Kennedy Court until Trump is able to replace Kennedy or one of the leftists with whom he allies increasingly often — assuming that Trump will stay true to his word about the conservative character of his nominees.

In sum, there’s no prospect of quick or certain victory in the war to restore constitutional governance to Washington and liberty to the land.


Conservatives must be prepared for and committed to a long war, with the aim of changing the character of the institutions that — in addition to family — hold the most sway over the minds of future leaders and the voters who will select those leaders: public schools, universities, and the media.

The long war will be a war to transform fundamentally the prevailing ethos of a nation that has sunk gradually into decadence and despotism. (Barack Obama’s “fundamental transformation” was nothing more than the proverbial frosting on the proverbial cake.) How does one even begin to wage such a war?

I would begin by following a key maxim of war-fighting: concentration of force. Roll up one enemy unit at a time instead of attacking on a broad front. As each enemy unit falls, the rest become relatively weaker by having fewer friendly units to call on for support.

Imagine, for example, a conservative takeover of several major universities,* which might be abetted by a concentrated campaign by conservative trustees with the support of friendly forces within the universities, and a few sympathetic media outlets, all backed by a loud and sustained chorus of supportive reporting, commentary, and outright propaganda emanating from the blogosphere. University administrators, as we have seen, are especially sensitive to changes in the prevailing direction of opinion, especially if that opinion is fomented within universities. Thus, if one major university were to move sharply in a conservative direction, it would take less effort to move a second one, even less effort to move a third one, and so on.

With universities falling into line, it would be a fairly simple task to remake the face of public education. It is universities, after all, which are mainly responsible for the left-wing indoctrination that most public-school teachers and administrators have been spreading throughout most of the land for many decades. It wouldn’t take a generation for the new, conservative disposition to spread. It would spread almost like wildfire for the same reasons that it would spread rapidly among universities: the desire to be “on the right side of history,” no matter what side it is. It would become more or less permanent, however, as new waves of students leave the universities that have converted to conservatism and begin to spread its gospel in public schools.

The conversion of the media would proceed in parallel with the conversion of public schools. It would be a self-inflicted conversion, born of the desire to please an audience that is becoming more and more conservative. The act of pleasing that audience would, in turn, result in the dissemination of stories with a conservative slant, which would help to speed the conversion of the as-yet unconverted members of the audience.

As for how to arrange a conservative takeover of a major university, I would begin with those few that have shown themselves ripe for conversion. Perhaps it’s one of the 27 universities that is a rated a “green-light institution” by the Foundation for Individual Rights in Education (FIRE). The University of Chicago is a recent and prominent addition to that list.

Wherever the campaign begins, it should begin with a university whose trustees, sources of income, faculty, and current ideological balance make it ready to be pushed into the ranks of conservative institutions. Perhaps it would be a matter of electing a few more conservative trustees, with the help of a major donation from a conservative source. Perhaps a key department could be moved to the conservative side of the ledger by the hiring of a few faculty members. Perhaps the university needs only a slight push to become a leader in the refutation of speech codes, “safe spaces,” “trigger warnings,” and in the open embrace of conservative speakers and movements.

The devil is in the details, and I’m not conversant enough with the state of any university to suggest how or where to begin the campaign. But begin it must — and soon, before it’s too late to reverse the incoming tide of leftist regimentation of all aspects of our lives.
* A takeover is better than a startup. A takeover not only means that there’s one less “enemy” to fight, but it also means that some “enemy” forces have been converted to friendly ones, which sets a precedent for more takeovers. Fox News Channel is a case in point. Its creation didn’t reduce the number of left-wing outlets. And the growth of FNC’s market share at the expense of left-wing outlets (mainly CNN) merely tapped into a ready market for a somewhat conservative outlet; it didn’t create that market. Further, FNC isn’t “serious” in the way that a university is, and so its slant is more easily dismissed as propaganda than would be the emanations from a major university.

Andrew Cuomo’s Fatuous Casuistry

Andrew Cuomo, governor of New York, is quoted as saying that

[i]f there is a move to deport immigrants, then I say start with me. I am a son of immigrants. If we deport immigrants then I ask, ‘Who is safe and who will be left?’ Because we are all immigrants. If we deport immigrants then the only ones left will be the Iroquois, the Sioux and the Cherokee and the Apache.

What I want to know is what his lordship has against persons of the Sioux, Cherokee, and Apache persuasion. He makes it sound as if there’s something wrong with being such a person. In the parlance of the day, that’s r-a-a-a-cist!

Let’s parse the rest of his excellency’s statement. First, he’s not a son of immigrants. His father, the late, overrated Mario Cuomo, was born in New York City, as was his mother, Matilda Raffa Cuomo. It was their parents who were immigrants.

But Andrew is just exercising his poetic license, to which liberals are entitled by virtue of their self-defined moral superiority. By the same standard (poetic license, that is) I am the son of immigrants because my paternal grandparents were born in Canada, though they were of non-exotic English-Scots-Irish descent. But my maternal great-grandfathers and all of my maternal great-greats and beyond were born in exotic French Canada and France. Voilà.

It’s obvious that Andrew, like his parents, is a lawyer. His lawyerly mind slides over the word “illegal.” Thus he implies that Mr. Trump would deport all immigrants, even though Mr. Trump has said only that he would deport illegal immigrants.

In any event, Herr Governor Cuomo isn’t an immigrant (supra, as they say in legalese). So he wouldn’t be deported even if he were correct in his lawyerly casuistry regarding Mr. Trump’s stated intentions.

But if he would like to be deported to prove a point (whatever it is), I’ll gladly pack his bag.

Corresponding with a Collaborator

I correspond with a fellow whom I’ve known for more than forty years. He’s a pleasant person with a good sense of humor and an easy-going personality. He’s also a chameleon.

By which I mean that he takes on the ideological coloration of his surroundings. He agrees with his companions of the moment. It’s therefore unsurprising that he proudly calls himself a “centrist.” Though he wouldn’t put it this way, his centrism involves compromises between good and evil — the necessary result of which is more evil.

“Centrist,” in his case, is just another word for “collaborator.”

A recent exchange will tell you all that you need to know about him. It began with an e-mail from a third party, in which this was quoted:


ABC News executive producer Ian Cameron is married to Susan Rice, National Security Adviser.

CBS President David Rhodes is the brother of Ben Rhodes, Obama’s Deputy National Security Adviser for Strategic Communications.

ABC News correspondent Claire Shipman is married to former White House Press Secretary Jay Carney.

ABC News and Univision reporter Matthew Jaffe is married to Katie Hogan, Obama’s Deputy Press Secretary.

ABC President Ben Sherwood is the brother of Obama’s Special Adviser Elizabeth Sherwood.

CNN President Virginia Moseley is married to former Hillary Clinton’s Deputy Secretary Tom Nides.

Ya think there might be a little bias in the news?

The chameleon’s comment:

I share your concern about MSM bias, but am not as troubled by it. (I stopped watching the Big 3s’ evening news 50 years ago because I couldn’t get a straight view on the Vietnam War.)

My comment on his comment:

You may have stopped watching, and I did too, but millions haven’t. And too many of them are swallowing it whole, which is a big reason for the leftward drift of the country over the past 50 years. (JFK could pass for a conservative today.) So I’m very troubled by it.

His reply to me:

But at my absolute center is a belief in universal suffrage.
In a nation of 150m or so (potential) voters, tens of millions are going to be swayed by CBS or, egads, Fox. If it weren’t those sources, it would be something else like them.

I can’t fix that, and see trying as futile. That’s why I’m not troubled. (My lack of concern also stems from seeing the USA as fundamentally on the right track. The latest evidence for that is the rejection of Trump about to occur. And yes, we’ll get Hillary’s excesses in consequence — but Congress will put on the brakes. We survived the Carter presidency when I’d have preferred Ford.)

Let’s parse that.

But at my absolute center is a belief in universal suffrage. What’s sacred about universal suffrage? If suffrage should encompass everyone who’s looking for a free ride at the expense of others — which it does these days — it should certainly include children and barnyard animals. Why should suffrage of any kind be the vehicle for violating constitutional limits on the power of the central government? That’s what it has come to, inasmuch as voters since the days of TR (at least) have been enticed to elect presidents and members of Congress who have blatantly seized unconstitutional powers, with the aid of their appointed lackeys and the connivance of a supine Supreme Court.

In a nation of 150m or so (potential) voters, tens of millions are going to be swayed by CBS or, egads, Fox. If it weren’t those sources, it would be something else like them. True, and all the more reason to keep the power of the central government within constitutional limits.

I can’t fix that, and see trying as futile. That’s why I’m not troubled. You, and I, and every adult can strive to “fix it” in ways big and small. Voting is one way, though probably the least effective (as an individual act). Speaking and writing on the issues is another way. I blog in the hope that some of what I say will trickle into the public discourse.

My lack of concern also stems from seeing the USA as fundamentally on the right track. It’s on the right track only if you think that the decades-long, leftward movement toward a powerful, big-spending, paternalistic government is the right track. That may very well suit a lot of people, but it also doesn’t suit a lot of people. Even FDR never won more than 61 percent of the popular vote, and his numbers dwindled as time went on. But perhaps you’re a utilitarian who believes that the pleasure A obtains from poking B in the eye somehow offsets B’s pain. You may not believe that you believe it, but that’s the import of your worship of universal suffrage, which is nothing more than blind allegiance to the primitive kind of utilitarianism known as majority rule.

The latest evidence for that is the rejection of Trump about to occur. Trump hasn’t yet lost, and even if he does, that won’t be evidence of anything other than desperation on the part of the operatives of the regulatory-welfare state and their various constituencies. Rejection, in any case, would be far from unanimous, so rejection is the wrong word — unless you believe, as you seem to do, that there’s a master “social conscience” which encompasses all Americans.

And yes, we’ll get Hillary’s excesses in consequence — but Congress will put on the brakes. Not if the Dems gain control of the Senate (a tie will do it if HRC is elected), and the ensuing Supreme Court appointees continue to ratify unconstitutional governance.

We survived the Carter presidency when I’d have preferred Ford. There have been more disastrous presidencies than Carter’s, why not mention them? In any event “survival” only means that the nation hasn’t yet crashed and burned. It doesn’t mean that there hasn’t been irreparable damage. Mere survival is a low hurdle (witness the Soviet Union, which survived for 74 years). Nor is mere survival an appropriate standard for a nation with as much potential as this one — potential that has been suppressed by the growth of the central government. So much loss of liberty, so much waste. That’s why I’m troubled, even if I can do little or nothing about it.

In closing, your political philosophy is an amalgam of “all is for the best … in the best of all possible worlds,” “What, me worry?,” “I’m all right, Jack,” and “Befehl ist Befehl.”

I won’t send the reply because I’m too nice a guy. And because it would pointless to challenge anyone who’s so morally obtuse — but likeable.

Not-So-Random Thoughts (XVIII)

Links to the other posts in this occasional series may be found at “Favorite Posts,” just below the list of topics.

Charles Murray opines about “America Against Itself“:

With the publication in 2012 of Coming Apart: The State of White America, 1960-2010, political scientist Charles Murray – celebrated and denigrated in equal measure for his earlier works, Losing Ground (1984) and The Bell Curve (1994) – produced a searing, searching analysis of a nation cleaving along the lines of class, a nation, as he put it, ‘coming apart at the seams’. On the one side of this conflicted society, as Murray sees it, there is the intellectual or ‘cognitive’ elite, graduates of America’s leading universities, bound together through marriage and work, and clustered together in the same exclusive zipcodes, places such as Beverly Hills, Santa Monica and Boston. In these communities of the likeminded, which Murray gives the fictional title of ‘Belmont’, the inhabitants share the same values, the same moral outlook, the same distinct sense of themselves as superior. And on the other side, there is the ‘new lower class’, the white Americans who left education with no more than a high-school diploma, who increasingly divorce among themselves, endure unemployment together, and are gathered in neighbourhoods that Murray gives the title of ‘Fishtown’ – inspired by an actual white, blue-collar neighbourhood of the same name in Philadelphia.

It is in Fishtown that the trends Murray identifies as the most damaging over the past 50 years – family breakdown, loss of employment, crime and a loss of social capital – are felt and experienced. Its inhabitants have a set of values (albeit threadbare ones), an outlook and a way of life that are entirely at odds with those from Belmont. And it is between these two almost entirely distinct moral communities, that the new Culture Wars now appear to be being fought….

Collins: I was thinking about how, in Coming Apart, you explore how the elites seek to distance themselves from the working class. They eat so-called healthier foods, they have different child-rearing practices, and so on. Then, from afar, they preach their preferred ways to the working class, as if they know better. The elites may no longer preach traditional civic virtues, as you note in Coming Apart, but they are still preaching, in a way. Only now they’re preaching about health, parenting and other things.

Murray: They are preaching. They are legislating. They are creating policies. The elites (on both the right and the left) do not get excited about low-skill immigration. Let’s face it, if you are members of the elite, immigration provides you with cheap nannies, cheap lawn care, and so on. There are a variety of ways in which it is a case of ‘hey, it’s no skin off my back’ to have all of these new workers. The elites are promulgating policies for which they do not pay the price. That’s true of immigration, that’s true of education. When they support the teachers’ unions in all sorts of practices that are terrible for kids, they don’t pay that price. Either they send their kids to private schools, or they send their kids to schools in affluent suburbs in which they, the parents, really do have a lot of de facto influence over how the school is run.

So they don’t pay the price for policy after policy. Perhaps the most irritating to me – and here we are talking about preaching – is how they are constantly criticising the working class for being racist, for seeking to live in neighbourhoods in which whites are the majority. The elites live in zipcodes that are overwhelmingly white, with very few blacks and Latinos. The only significant minorities in elite zipcodes are East and South Asians. And, as the American sociologist Andrew Hacker has said, Asians are ‘honorary whites’. The integration that you have in elite neighbourhoods is only for the model minority, not for other minorities. That’s a kind of hypocrisy, to call working-class whites ‘racist’ for doing exactly the same thing that the elites do. It’s terrible.

The elites live in a bubble, which Murray explains in Coming Apart, and which I discuss in “Are You in the Bubble?” — I’m not — and “Bubbling Along.”

*     *     *

Meanwhile, in the climate war, there’s an interesting piece about scientists who got it right, but whose article was pulled because they used pseudonyms. In “Scientists Published Climate Research Under Fake Names. Then They Were Caught” we learn that

they had constructed a model, a mathematical argument, for calculating the average surface temperature of a rocky planet. Using just two factors — electromagnetic radiation beamed by the sun into the atmosphere and the atmospheric pressure at a planet’s surface — the scientists could predict a planet’s temperature. The physical principle, they said, was similar to the way that high-pressure air ignites fuel in a diesel engine.

If proved to be the case on Earth, the model would have dramatic implications: Our planet is warming, but the solar radiation and our atmosphere would be to blame, not us.

It seems to me that their real sin was contradicting the “settled science” of climatology.

Well, Francis Menton — author of “The ‘Science’ Underlying Climate Alarmism Turns Up Missing” — has something to say about that “settled science”:

In the list of President Obama’s favorite things to do, using government power to save the world from human-caused “climate change” has to rank at the top.  From the time of his nomination acceptance speech in June 2008 (“this was the moment when the rise of the oceans began to slow and our planet began to heal . . .”), through all of his State of the Union addresses, and right up to the present, he has never missed an opportunity to lecture us on how atmospheric warming from our sinful “greenhouse gas” emissions is the greatest crisis facing humanity….

But is there actually any scientific basis for this?  Supposedly, it’s to be found in a document uttered by EPA back in December 2009, known as the “Endangerment Finding.”  In said document, the geniuses at EPA purport to find that the emissions of “greenhouse gases” into the atmosphere are causing a danger to human health and welfare through the greenhouse warming mechanism.  But, you ask, is there any actual proof of that?  EPA’s answer (found in the Endangerment Finding) is the “Three Lines of Evidence”….

The news is that a major new work of research, from a large group of top scientists and mathematicians, asserts that EPA’s “lines of evidence,” and thus its Endangerment Finding, have been scientifically invalidated….

So the authors of this Report, operating without government or industry funding, compiled the best available atmospheric temperature time series from 13 independent sources (satellites, balloons, buoys, and surface records), and then backed out only ENSO (i.e., El Nino/La Nina) effects.  And with that data and that sole adjustment they found: no evidence of the so-called Tropical Hot Spot that is the key to EPA’s claimed “basic physical understanding” of the claimed atmospheric greenhouse warming model, plus no statistically significant atmospheric warming at all to be explained.

What an amazing non-coincidence. That’s exactly what I found when I looked at the temperature record for Austin, Texas, since the late 1960s, when AGW was supposedly making life miserable for the planet. See “AGW in Austin? (II)” and the list of related readings and posts at the bottom. See also “Is Science Self Correcting?” (answer: no).

*     *     *

REVISED 11/18/16

Ten years ago, I posted “An Immigration Roundup,” a collection of 13 posts dated March 29 through September 22, 2006. The bottom line: to encourage and allow rampant illegal immigration borders on social and economic suicide. I remain a hardliner because of the higher crime rate among Hispanics (“Immigration and Crime“), and because of Steven Camarota’s “So What Is the Fiscal and Economic Impact of Immigration?“:

The National Academies of Sciences, Engineering, and Medicine have just released what can fairly be described as the most comprehensive look at the economic and fiscal impact of immigration on the United States. It represents an update of sorts of a similar NAS study released in 1997, in the middle of an earlier immigration debate. Overall the report is quite balanced, with a lot of interesting findings….
The most straightforward part of the study is its assemblage of estimates of the current fiscal impact of immigrants. The study shows that immigrants (legal and illegal) do not come close to paying enough in taxes to cover their consumption of public services at the present time. The NAS present eight different scenarios based on different assumptions about the current fiscal impact of immigrants and their dependent children — and every scenario is negative. No matter what assumption the NAS makes, immigrants use more in public services than they pay in taxes. The largest net drain they report is $299 billion a year. It should be pointed out that native-born American are also shown to be a net fiscal drain, mainly because of the federal budget deficit — Washington gives out a lot more than it takes in. But the fiscal drain created by immigrants is disproportionately large relative to the size of their population. Equally important, a fiscal drain caused by natives may be unavoidable. Adding more immigrants who create a fiscal drain, on the other hand, can be avoided with a different immigration policy….
With regard to economics — jobs and wages — the results in the NAS study, based on the standard economic model, show that immigration does make the U.S economy larger by adding workers and population. But a larger economy is not necessarily a benefit to natives. The report estimates that the actual benefit to the native-born could be $54.2 billion a year — referred to as the “immigrant surplus.” This is the benefit that accrues to American businesses because immigration increases the supply of workers and reduces American wages. Several points need to be made about this estimate. First, to generate this surplus, immigration has to create a very large redistribution of income from workers to owners of capital. The model works this way: Immigration reduces the wages of natives in competition with immigrant workers by $493.9 billion annually, but it increases the income of businesses by $548.1 billion, for a net gain of $54.2 billion. Unfortunately, the NAS does not report this large income redistribution, though it provides all the information necessary to calculate it. A second key point about this economic gain is that, relative to the income of natives, the benefit is very small, representing a “0.31 percent overall increase in income” for native-born Americans.
Third, the report also summarizes empirical studies that have tried to measure directly the impact of immigration on the wages of natives (the analysis above being based on economic theory rather than direct measurement). The size of the wage impact in those empirical studies is similar to that shown above. The NAS report cites over a dozen studies indicating that immigration does reduce wages primarily for the least-educated and poorest Americans. It must be pointed out, however, that there remains some debate among economists about immigration’s wage impact. The fourth and perhaps most important point about the “immigrant surplus” is that it is eaten up by the drain on the public fisc. For example, the average of all eight fiscal scenarios is a net drain (taxes minus services) of $83 billion a year at the present time, a good deal larger than the $54.2 billion immigrant surplus.

There’s much more, but that’s enough for me. Build that wall!

*     *     *

It’s also time to revisit the question of crime. Heather Mac Donald says “Yes, the Ferguson Effect Is Real,” and Paul Mirengoff shows that “Violent Crime Jumped in 2015.” I got to the root of the problem in “Crime Revisited,” to which I’ve added “Amen to That” and “Double Amen.”

What’s the root of the problem? A certain, violence-prone racial minority, of course, and also under-incarceration. Follow all of the links in the preceding paragraph, and read and weep.

Double Amen

Paul Mirengoff of Power Line reports:

Cathy Lanier is leaving her job as police chief of Washington, D.C. to become the NFL’s head of security. . . .

On her way out, Lanier had some harsh things to say about criminal justice in D.C. “The criminal justice system in this city is broken,” Lanier told the Washington Post. Indeed, “it is beyond broken.”

Often, it’s the left that calls the criminal justice system “broken.” But Lanier was not offering a leftist critique. Instead, she found the system broken primarily because it allows repeat violent offenders back on the street time after time.

Lanier cited the case of an 18 year-old man who last week was on home detention when his GPS tracking device became inoperable. The man then went on a crime rampage that started in Maryland and ended in the District. His crimes included a robbery, a shooting, and a car theft that resulted in a crash that left a bystander critically injured.

According to Lanier, this sort of thing is “happening over and over and over again.” She added:

Where the hell is the outrage? . . . People are being victimized who shouldn’t be. You can’t police the city if the rest of the justice system is not accountable.

Actually, there’s plenty of outrage. Unfortunately, much of it is directed towards the alleged over-incarceration of young black males.

In “Amen to That,” I quoted an earlier post by Mirengoff on the same subject, namely, under-incarceration:

I’ve argued that America has an under-incarceration problem. Criminals whose records clearly show they should be in jail have, instead, been released and are on the streets committing violent crimes, including some very bloody, high-profile ones.

Here’s another example. Samuel Harviley, paroled from prison less than three months ago, is being held without bond for shooting an off-duty Chicago police officer outside his home earlier this week. In withholding bond, the local judge said that Harviley “poses an extreme danger to the rest of us out in public.”

Indeed, he does. And he did three months ago when he was released early from jail. . . .

Sentencing reform is, indeed, called for. The system should be reformed so that criminals like Harviley don’t get out of prison after serving less than their half of their sentence. As Chicago Patrol Chief Eddie Johnson says, the Harviley shooting illustrates that the criminal justice system “is broken.” He added:

Until we get real criminal justice reform, the cycle will continue. We have the laws here. We just need to make sure that these criminals are held accountable for their actions.

What a quaint notion.

None of this is news to me. See, for example, “Crime Explained” (fifth item) at this post. The bottom line:

Incarceration has a strong, statistically significant, negative effect on the violent-property crime rate. In other words, more prisoners = less crime against persons and their property.

Double amen.

[See also Paul Mirengoff’s “Our Under-Incarceration Problem, Charlotte Edition.”)

“And the Truth Shall Set You Free”

The truth contained in Drs. Lawrence Mayer and Paul McHugh’s “Sexuality and Gender” (The New Atlantis No. 50, Fall 2016) will fall on the same deaf ears as many other truths. The “party of science” is really the party of magical thinking — about many things, including economics, climate, race, war, and (most recently) “gender.”

“Gender” is the latest egregious example of seeing the world as one wishes it were, instead of the way it is. “Gender” smacks of Victorian prudery; it’s a euphemism for “sex.” But it’s more than that, because it connotes more than a mere biological fact of life; it connotes a state of mind that somehow transcends biology. (Very Zen, don’t you think?)

Among the subjects addressed by Drs. Mayer and McHugh is “gender identity” The executive summary of Part Three, which addresses that subject, gives these findings:

● The hypothesis that gender identity is an innate, fixed property of human beings that is independent of biological sex — that a person might be “a man trapped in a woman’s body” or “a woman trapped in a man’s body” — is not supported by scientific evidence.

● According to a recent estimate, about 0.6% of U.S. adults identify as a gender that does not correspond to their biological sex.

● Studies comparing the brain structures of transgender and non-transgender individuals have demonstrated weak correlations between brain structure and cross-gender identification. These correlations do not provide any evidence for a neurobiological basis for cross-gender identification.

● Compared to the general population, adults who have undergone sex-reassignment surgery continue to have a higher risk of experiencing poor mental health outcomes. One study found that, compared to controls, sex-reassigned individuals were about 5 times more likely to attempt suicide and about 19 times more likely to die by suicide.

● Children are a special case when addressing transgender issues. Only a minority of children who experience cross-gender identification will continue to do so into adolescence or adulthood.

● There is little scientific evidence for the therapeutic value of interventions that delay puberty or modify the secondary sex characteristics of adolescents, although some children may have improved psychological well-being if they are encouraged and supported in their cross-gender identification. There is no evidence that all children who express gender-atypical thoughts or behavior should be encouraged to become transgender.

Don’t get me wrong, I bear no animus toward those few persons who are truly conflicted about their sexuality. But I have no sympathy for juvenile faddishness and the unseemly (and temporarily halted) eradication of privacy in the name of “gender equality.” It’s as if time-honored codes of conduct have somehow become unnecessary and unduly discriminatory. (Where have we heard that before?)

And, as usual, the rush to remake the world in a new, trendy image won’t stop with “equality.” It will become (and has become, in some places) verboten to refer to anyone by anything but an approved label, just as it has become verboten in some places to refuse to bake a wedding cake or provide flowers for a homosexual “marriage.”

It’s easy enough for a black, a woman, or any one of a long list of “protected groups” to march into an EEOC office and file a baseless discrimination claim. It’s unsurprising that the list of protected groups now encompasses anyone who identifies as LGB or T. (What’s wrong with Q?)

What I want to know is why the EEOC and all of the other equality-enforcing agencies of government are still in business. Given the relatively small number of persons who aren’t in a protected group — namely straight, white, non-Hispanic males under the age of 40 who are neither disabled (a broad category) or veterans — it seems to me that equality has already been achieved. Except for the unprotected, of course, but only their mothers give two hoots about them (maybe).

*     *     *

Related posts:
Two-Percent Tyranny
The Culture War
Ruminations on the Left in America
The Euphemism Conquers All
The War on Conservatism
How Government Subverts Social Norms
Identity and Crime
There’s More to It Than Religious Liberty
The Authoritarianism of Modern Liberalism, and the Conservative Antidote
Privilege, Power, and Hypocrisy
The Beginning of the End of Liberty in America
The Technocratic Illusion
Equal Protection in Principle and Practice
Society, Polarization, and Dissent

A Resolution of Secession

In Convention, __________ 20__.

The Declaration of the people of the State of _______________.

It has become necessary for the people of _______________ to dissolve the political bands which have connected them with the United States of America, and to assume the separate and equal status of an independent nation. A decent respect for the opinions of mankind requires that the people of _______________ should declare the causes which impel them to the separation, and explain its legality.

The Constitution is a contract — a compact in the language of the Framers. The parties to the compact are not only the States but also the central government.

It was  by the grace of nine States that the Constitution became effective in 1789. Those nine States voluntarily created the central government and, at the same time, voluntarily ceded to it certain specified and limited powers. The States and their people were given to understand that, in return for the powers granted it, the central government would exercise those powers for the benefit of the States and their people. Every State subsequently admitted to the union has ascribed to the Constitution with the same understanding as the nine States whose ratification effected it.

Lest there be any question about the status of the Constitution as a compact, we turn to James Madison, who is often called the Father of the Constitution. Madison, in a letter to Daniel Webster dated March 15, 1833, addresses

the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.

Madison continues:

It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity.

Moving closer in time to the ratification of the Constitution, this is from Madison’s report on the Virginia Resolutions of 1798, a report that was adopted by the General Assembly of Virginia in 1800:

The third resolution is in the words following:–

“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact–as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.”…

The resolution declares, first, that “it views the powers of the federal government as resulting from the compact to which the states are parties;” in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties….

The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution,” or compact, is, in the judgment of the committee, equally free from objection…. [I]n that sense the Constitution was submitted to the “states;” in that sense the “states” ratified it; and in that sense of the term “states,” they are consequently parties to the compact from which the powers of the federal government result. . . .

. . . The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity.

Finally, in The Federalist No. 39, which informed the debates in the various States about ratification,  Madison says that

the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. . . .

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.

Madison leaves no doubt about the continued sovereignty of each State and its people. The remaining question is this: On what grounds, if any, may a State withdraw from the compact into which it entered voluntarily?

There is a judicial myth — articulated by a majority of the United States Supreme Court in Texas v. White (1869) — that States may not withdraw from the compact because the union of States is perpetual:

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

The Court’s reasoning is born of mysticism, not legality. Similar reasoning might have been used — and was used — to assert that the Colonies were inseparable from Great Britain. And yet, some of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that the Colonies were not obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the States, as authorized by the people thereof.

In fact, the Constitution supplanted the Articles of Confederation and Perpetual Union, by the will of only nine of the thirteen States. Madison says this in The Federalist No. 43 regarding that event:

On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? . . .

The . . . question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.

Moreover, in a letter to Alexander Rives dated January 1, 1833, Madison says that

[a] rightful secession requires the consent of the others [other States], or an abuse of the compact, absolving the seceding party from the obligations imposed by it.

An abuse of the compact most assuredly necessitates withdrawal from it, on the principle of the preservation of liberty, especially if that abuse has been persistent and shows no signs of abating. The abuse, in this instance, has been and is being committed by the central government.

The central government is both a creature of the Constitution and a de facto party to it, as co-sovereign with the States and supreme in its realm of enumerated and limited powers. One of those powers enables the Supreme Court of the United States to decide “cases and controversies” arising under the Constitution, which alone makes the central government a responsible party. More generally, the high officials of the central government acknowledge the central government’s role as a party to the compact — and the limited powers vested in them — when they take oaths of office requiring them to uphold the Constitution.

Many of those high officials have nevertheless have committed myriad abuses of the central government’s enumerated and limited powers. The abuses are far too numerous to list in their entirety. The following examples amply justify the withdrawal of the State of _______________ from the compact:

A decennial census is authorized in Article I, Section 2, for the purpose of enumerating the population of each State in order to apportion the membership of the House of Representatives among the States, and for none of the many intrusive purposes since sought by the Executive Branch and authorized by Congress.

Article I, Section 1, vests all legislative powers in the Congress, but Congress has authorized and allowed agencies of the Executive Branch to legislate, in the guise of regulation, on a broad and seemingly limitless range of matters affecting the liberty and property of Americans. Further, in violation of Article III, which vests the judicial power in the Judicial Branch, Congress has authorized and allowed agencies of the Executive Branch to adjudicate matters about which they have legislated, thus creating conflicts of interest that have systematically deprived millions of Americans of due process of law.

Article I, Section 8, enumerates the specific powers of Congress, which do not include many things that Congress has authorized with the cooperation and acquiescence of the other branches; for example, establishing and operating national welfare and health-care programs; intervening in the education of American’s children in practically every village, town, and city in the land; intrusively regulating not only interstate commerce but also intrastate commerce, the minutiae of manufacturing, and private, non-commercial transactions having only a faint bearing, if any, on interstate commerce; making and guaranteeing loans, including loans by quasi-governmental institutions and other third parties; acquisition of the stock and debt of business enterprises; establishment of a central bank with the power to do more than issue money; requiring the States and their political subdivisions to adopt uniform laws on matters that lie outside the enumerated powers of Congress and beyond the previously agreed powers of the States and their subdivisions; and coercing the States and the political subdivisions in the operation of illegitimate national programs by providing and threatening to withhold so-called federal money, which is in fact taxpayers’ money. The view that the “general welfare” and/or “necessary and proper” clauses of Article I, Section 8, authorize such activities was refuted definitively in advance of the ratification of the Constitution by James Madison in The Federalist No. 41, wherein the leading proponents of the Constitution stated their understanding of the Constitution’s meaning when they made the case for its ratification.

One of the provisions of Article I, Section 10, prohibits interference by the States in private contracts; moreover, the Constitution nowhere authorizes the central government to interfere in private contracts. Yet, directly and through the States, the central government has allowed, encouraged, and required interference in private contracts pertaining to employment, property, and financial transactions.

Contrary to the express words of Article II, which vests executive power in the President, Congress has vested executive power in agencies that are not under the control and supervision of the President.

The Supreme Court, in various holdings, has curtailed the President’s ability, as commander-in-chief, to defend Americans and their interests by circumscribing his discretionary authority in matters concerning the capture, detention, interrogation, and appropriate imposition of military punishment for offenses against the law of war, of enemy prisoners captured in the course of ongoing hostilities pursuant to a congressional declaration of war or authorization for use of military force.

Amendment I of the Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” But Congress has nevertheless abridged the freedom of political speech by passing bills that have been signed into law by Presidents of the United States and, in the main, upheld by the Supreme Court of the United States.

Amendment IX of the Constitution provides that its “enumeration . . . of certain rights, shall not be construed to deny or disparage others retained by the people.” But Congress, in concert with various Presidents and Supreme Court majorities, has enacted laws that circumscribe such time-honored rights as freedom of association, freedom of contract, and property rights. That such laws were enacted for the noble purpose of ending some outward manifestations of discrimination does not exempt them from the purview of Amendment IX. As Amendment XIII attests, freedom is for all Americans, not just those who happen to be in favor at the moment.

As outlined above, the central government has routinely and massively violated Amendment X, which states that “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.”

We, therefore, the representatives of the people of _______________ do solemnly publish and declare that this State ought to be free and independent; that it is absolved from all allegiance to the government of the United States; that all political connection between it and government of the United States is and ought to be totally dissolved; and that as a free and independent State it has full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

[Signatures of the people’s representatives]

Unintended Consequences

Now comes this unsurprising revelation from The Economist:

Forcing job applicants to declare they have a criminal record—whether or not it is relevant to the post—allows employers to filter out ex-convicts, it is argued, and prevents them finding the sort of work that would help them stay out of prison. So activists across the world have called for “ban-the-box” laws, which prohibit employers from inquiring about criminal histories prior to job interviews or offers.

Some 24 states and many municipalities in America have now introduced laws along those lines….

A paper by Jennifer Doleac of the University of Virginia and Benjamin Hansen of the University of Oregon, published on August 1st, looked at the impact of introducing ban-the-box policies on labour-market data from America’s population census. It found that withholding criminal-record data from employers encouraged them to treat certain minority groups as if they were more likely to have criminal pasts. In areas where ban-the-box laws have taken effect, the study found, the probability of being employed has fallen by 5.1% for young, low-skilled African-American men, and by 2.9% for young, low-skilled Hispanic men….

Other research backs up this conclusion. Amanda Agan of Princeton University and Sonja Starr of the University of Michigan sent 15,000 fictitious job applications to employers in New York and New Jersey. Before ban-the-box was introduced in these states, white applicants received around 7% more callbacks than similar black applicants. But when the policy took effect the gap increased to 45%.

How do you think a lot of employers cope with racial hiring quotas affirmative action? They use names and other clues to identify those applicants for employment who are black. They then weed out all but those black candidates who seem exceptionally well-qualified, and obviously better-qualified than the white or Asian candidates — which is often none. Why? Because once a black person shows up for an interview, he or she becomes a potential liability — a prospective employee who, if not hired, can file a racial discrimination claim. And it costs a lot of money to defend racial discrimination claims.

Result: Racial hiring quotas affirmative action means that fewer blacks are hired than would otherwise be the case.

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Related posts:

Guilty Until Proven Innocent

Race and Reason: The Victims of Affirmative Action


Jonathan Swift Redux?

Bryan Caplan seems to be muscling in on Jonathan Swift‘s literary territory: satire. Consider Caplan’s post “Murder Equivalents“:

Economists’ [sic] have long struggled to get non-economists to put a dollar value on human life.  We’ve almost completely failed.  No matter how high the dollar value you use, non-economists hear callous minimization of human suffering.  Is there any way to quantify the magnitude of Awful without seeming awful yourself?

I say there is.  From now on, let us measure each horror in “Murder Equivalents.”  The Murder Equivalent of X, by definition, is the number of ordinary murders that would be just as bad as X.  The concept allows for the reasonable possibility that some deaths are less bad than a normal murder.  The Murder Equivalent of an accidental death, for example, might only be .5  The concept also allows for the reasonable possibility than some deaths are worse than a normal murder.  The Murder Equivalent for a death by terrorism, for example, might be 2.  A terrible war that lays a country waste might be twice the number of deaths from war crimes, plus the number of civilian deaths, plus .5 times the number of soldier deaths, plus one per $10 M in property damage.

Logically, this re-scaling is no better than a sophisticated Value of Life calculation.  Psychologically, however, it’s far better.  Comparing something to murder doesn’t sound callous.  Nor does it minimize the badness.  It only puts the world in perspective.  Many salacious front-page horror headlines are clearly less bad than one murder.  Thinking in terms of Murder Equivalents would help diffuse such distractions, reducing the risk of costly crusades against relatively minor problems.

Yes, I know that many people will angrily reject any metric that potentially implies their gut emotional reactions are unreasonable.  As usual, I’m working at the margin.  How can we get more people to think numerately about the horrors of the world?  Murder Equivalents is the best idea I’ve got.

Caplan’s modest proposal is Swiftian, even if it’s not meant to be. I refer, of course, to Dean Swift’s A Modest Proposal for Preventing the Children of Poor People From Being a Burthen to Their Parents or Country, and for Making Them Beneficial to the Publick, wherein the author (an Anglo-Irishman) “suggests that the impoverished Irish might ease their economic troubles by selling their children as food for rich gentlemen and ladies.”

Numerate thinking about the horrors of the world seems to belong in a category with Swift’s idea. Why, pray tell, is thinking numerately about the horrors of the world an improvement on thinking emotionally about them? An emotional reaction to horror is a valid reaction. Murder and terrorism are abhorrent, and ought not be smoothed over by equating them with accidental death or death by old age. Yet, that’s what Caplan’s cold-blooded alternative invites.

Death by old age is death by old age; death by accident is death by accident; death by murder or terrorism is neither, and can’t be calibrated with either of them by an arbitrarily assigned coefficient. Murder is an intentional act that can be deterred and avenged. (The best way yet devised of deterring murder is by executing murderers, swiftly (no pun intended) and surely. Not only does execution send a “message” to would-be murderers, many of whom will heed it, but it prevents murderers from murdering again.) Terrorism is an intentional act that can be prevented, deterred, and avenged, it’s not just another “risk” — like being struck by lightning — as some fatuous economists would have it. Murder and terrorism are not merely death by accident or old age with higher coefficients.

In any event, how would the coefficient (relative value) of death by murder or terrorism be assigned? By a know-it-all professor of economics like Bryan Caplan? Even a first-year student of economics could tell you that the only meaningful relative value is the one that results from a market exchange between a willing seller (the prospective victim) and a willing buyer (the prospective murderer). In a word: price. The problem (for Caplan) is that every murder would have a different price, and a lot of murders would have a price of infinity, because the prospective victims would be unwilling to be murdered at any price.

Individualism, Society, and Liberty

In “How Our Individualism Has Trapped Us in a Welfare State,” Heather Judd has taken a stab at an issue that I’ve pondered for a long time: the tension between individualism and society. Now, by “society” I mean true society:

Society — true society — consists of people who, among other things, agree as to the limits on what one may do. That shared view isn’t imposed by regulation, statute, or judicial decree — though such things will arise from the shared view in a true society. Rather, the shared view arises from the experience of living together and finding the set of customs and prohibitions that yields peaceful, willing coexistence and its concomitant: beneficially cooperative behavior. Liberty, in other words.

“The experience of living together and finding” a common “set of customs and prohibitions” seems consistent with Judd’s view of society, which she calls “an organized group of people sharing a common culture.” Judd doesn’t directly address the libertarian aspect of true society, but the thrust of her essay points in that direction. She laments the fact that

[c]ultural individualization has…cornered us into a welfare state mentality from which we cannot escape unless we replace our concept of a society of individuals with something more ordered and interconnected.

Toward the end of her essay she puts it this way:

Living together in isolation is not a sustainable social model. So long as we continue to think of the individual as the basic unit of society, our progression toward the disenchanted welfare state will continue, even while no amount of socialized government intervention will provide the human cohesion we need.

Judd’s view is that family is the backbone of society. And the drift away from families to individuals is destroying that backbone, which must be reconstructed. In her words,

government is incapable of buttressing our crumbling human connections. That task must start with rebuilding individuals into families and families into society. Like every great undertaking, the process will be slow and require sacrifice, but the recompense will be not only a healthy and sustainable society, but also, paradoxically, a stronger sense of our individual identity as we reconnect with other human beings.

I think she’s right about the breakdown of family, but her vague exhortation at the end leaves me wondering what can actually be done about it And even if there were some restoration of the family on a relatively large scale, I don’t think it would do much to alleviate the fragmentation of the United States, which has never been a society in the true meaning of the word.

Why have family ties loosened and broken? The answer, in two words: prosperity and mobility. Even without the welfare state (and despite it), a large fraction of the populace can afford to buy things like housing and elder-care that until World War II were often provided by families.

Greater mobility goes hand in hand with greater prosperity; the expansion of economic activity has been both intensive and extensive. Modern people are no different than their hunter-gatherer forbears; they go where their labors earn greater rewards. And in doing so they leave behind grandparents, parents, and siblings — most of whom are prosperous enough to fend for themselves. American families have been drifting apart for many generations. The drift was masked to some extent by the influx of European immigrants in the late 1800s and early 1900s, whose strong bonds were forged by economic necessity and mutual self-defense against xenophobic natives. But those bonds, too, have dissolved to the point that the exceptions (e.g., Amish and Hasidic communities) are notable for their rarity. And so it will be with the Hispanic immigration of recent decades, though economic necessity and ethnic differences probably will bind Hispanic immigrants far longer than they bound European ones.

So I don’t see the restoration of the family as likely — barring another World War II or Great Depression. Nor do I see the restoration of the family as necessary to the demotion of the welfare state. The welfare state does feed on individualism, but it also feeds on widespread economic ignorance and the cupidity of politicians and bureaucrats.

Economic ignorance abets cupidity, in that politicians and bureaucrats are able to feed their power-lust and line their pockets because most Americans have no grasp of the huge economic cost of the welfare state — or more accurately, the regulatory-welfare state. If the regulatory-welfare state is to be contained and diminished by electoral means, a huge number of Americans must be convinced of its exorbitant cost in dollars and liberty.

One might as well try to melt an iceberg with a hair dryer. Only a minority of economists understands or is willing to admit the dire economic consequences of the regulatory-welfare state, and only a minority of constitutional scholars understands or is willing to admit the anti-libertarian consequences of the regulatory-welfare state. More importantly — because only a small fraction of Americans is aware of what those “fringe” economists and constitutional scholars say — relatively few politicians and pundits on the national stage understand, agree with, and accurately relay those views to Americans. For every Ted Cruz there are probably two or three Bernie Sanderses.

To repeat the themes of recent posts, leftists are ruthless and they have the rhetorical advantage over principled politicians because they are very good at promising things without knowing or caring about the economic and social costs of what they promise. Their appeal to Mr. and Ms. Average and Below-Average — which is most Americans — rests on envy. Leftists are always on the lookout for privilege, which they promise to uproot:

Privilege…implies that the possessors of certain positive attributes (high intelligence, good looks, high income, access to political power) have come by those things undeservedly, and even at the expense of those who lack them: the underprivileged. [Leftists] believe implicitly in a state of nature wherein everyone would have equal endowments of intelligence, looks, etc., if only it weren’t for “bad luck.” [Leftists] believe it necessary to use the power of government to alleviate (if not eliminate) unequal endowments and to elevate the “victims” of inequality.

If you were Mr. or Ms. Average or Below-Average, would you willingly sacrifice the (illusory) prosperity of the regulatory-welfare state and reject its promise of making everyone a winner? What’s more disheartening — but unsurprising given the state of political discourse — is that  Mr. and Ms. Above-Average are not only reluctant to abandon the regulatory-welfare state, but are its staunchest proponents.

In sum, individualism is here to stay, regardless of what happens to the regulatory-welfare state, unless there is a return to the dire days of 1930-1945. And even then, the regulatory-welfare state is here to stay, unless there is a negotiated partition of the country, a (successful) secession movement, or a coup by liberty-loving patriots.

I’m sorry, but that’s the way it looks from here.