Restoring the Contract Clause

Here is George Leef, writing today at National Review online:

For decades, the Court has allowed the Constitution’s contract clause (in Article I, Section 10, along with other things the states aren’t allowed to do) atrophy. It reads “No state shall enact any law impairing the obligation of contracts” and was meant to help stabilize the national economy at a time when the states often passed laws that rewrote or erased contracts to benefit certain parties or themselves….

The good news is that the Court is about to hear arguments in a case that could revive the Originalist view of the contract clause. I write about that case in my latest article for Forbes.

Leef fleshes out the sad story of the Contract Clause in the Forbes piece:

American courts took the Contract Clause very seriously until the New Deal. Professor James W. Ely’s recent book The Contract Clause: A Constitutional History (which I reviewed here) recounts the way the Marshall Court esteemed the clause and how it held up quite well (although with some erosion) during the “Progressive” era.

Then came the Great Depression.

Just as the Court turned its back on other cornerstones of limited government and the rule of law during that era, so did it jettison the once-formidable Contract Clause. In a 1934 decision, Home Building & Loan Association v. Blaisdell, Chief Justice Hughes decided that during the “emergency” of the Depression, the Court had to allow legislatures to impose a moratorium on mortgage foreclosures. In an early exemplar of “living Constitution” theory, the Chief Justice said that the Contract Clause “is not an absolute one and is not to be read with literal exactness….” He went on to say that the Constitution’s restraints on power “must not be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them.”

Just imagine if the First Amendment had been treated that way, giving the government wide latitude to censor or punish free speech and the press on the breezy, “Well, times have changed” approach. The First Amendment would be cowering in the shadows today.

Conversely, imagine if the Court had developed a robust, pro-contract jurisprudence based on the Contract Clause to match its pro-speech jurisprudence emanating the its favored First Amendment. Lots of governmental interference with people’s liberty to shape their lives through contracts they want — or don’t want — would have been prevented, such as minimum wage laws.

But that’s not what happened to the Contract Clause. The courts kept allowing the states to whittle away at it by devising a three-factor “balancing test” whereby the assertion of the slightest state interest in meddling with contracts was usually good enough….

But what’s wrong with the current approach to the Contract Clause, one that, as Chief Justice Hughes said in Blaisdell is based on the “growing appreciation of public needs and the necessity of finding ground for a rational compromise between individual rights and public welfare”?

A lot, Ely argues. It tears apart the plain meaning of the Clause, whose words, wrote Chief Justice Marshall, “are express and incapable of being misunderstood.” Nor, Ely continues, was there ever any justification for the politically expedient “let’s forget about this Clause because the country is facing an emergency” rationale of Blaisdell and subsequent cases. The truth is that the Clause was inserted precisely because the nation needed contractual stability in the distressed times of 1787 and no amount of economic turmoil can be alleviated by allowing states to rewrite contracts….

Furthermore, Ely contends, the current interpretation of the Clause (again, Marshall would laugh at the idea that it needs any “interpretation”) is far too vague, giving lower courts little guidance. They are only supposed to apply the Contract Clause only if the legislative interference is “substantial” and “unreasonable.” Ely comments, “Yet it is sadly ironic that the Court has fashioned such an amorphous test for the Contract Clause – the one constitutional provision that, more than any other, was designed to ensure stability and predictability in commercial relationships.”

The Supreme Court will hear oral arguments in the case [of  Sveen v. Melin] on March 19. It would be one of the great results of its current term if the justices would not merely uphold the Eighth Circuit [which upheld the contract at issue, despite a Minnesota law that abrogated it] but also give a full-throated declaration that the Contract Clause will henceforth be read just as it was written.

The Supreme Court of 1934 effectively ripped the Contract Clause out of the Constitution. I fervently hope for its restoration. Many things are at stake. As Leef says, a living Contract Clause would have prevented “governmental interference with people’s liberty to shape their lives through contracts they want — or don’t want”. Leef mentions minimum wage laws as an example. In the same category, namely, laws that inhibit job creation, are mandates that require paid family leave and paid sick leave. (The latter was recently dictated by the proglodytes of Austin”s city council.)

Had the Court not killed the Contract Clause in 1934, compulsory recognition of labor unions — one of the biggest job-killers of them all — could have been made purely optional in 1937. It was then that the Court decided in favor of the Wagner Act by invoking the Commerce Clause.

The Commerce Clause has had a long and dishonorable career as an all-purpose justification for dictatorship from D.C. It was taken down a peg in NFIB v. Sibelius (2014) — the nugget of gold in a disgraceful opinion that salvaged Obamacare by other means.

In any event, here’s to the restoration of the Contract Clause — and to the demise of the “modern” reading of the Commerce Clause.

Related posts:
Freedom of Contract and the Rise of Judicial Tyranny
Substantive Due Process, Liberty of Contract, and States’ “Police Power”
The Real Constitution and Civil Disobedience
The Constitution: Original Meaning, Corruption, and Restoration
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Obamacare: Neither Necessary nor Proper
Obamacare, Slopes, Ratchets, and the Death-Spiral of Liberty
Another Thought or Two about the Obamacare Decision
Obamacare and Zones of Liberty
Judicial Supremacy: Judicial Tyranny
Does the Power to Tax Give Congress Unlimited Power? (II)
The Beginning of the End of Liberty in America
Why Liberty of Contract Matters
The Answer to Judicial Supremacy

Recommended Reading

Leftism, Political Correctness, and Other Lunacies (Dispatches from the Fifth Circle Book 1)


On Liberty: Impossible Dreams, Utopian Schemes (Dispatches from the Fifth Circle Book 2)


We the People and Other American Myths (Dispatches from the Fifth Circle Book 3)


Americana, Etc.: Language, Literature, Movies, Music, Sports, Nostalgia, Trivia, and a Dash of Humor (Dispatches from the Fifth Circle Book 4)

Courtship or Molestation?

Several weeks ago I happened upon a statement by Keith Burgess-Jackson (KBJ) about an blog post that he published in November 2017, which became a cause célèbre:

(That is the entire blog post, as reproduced in Alex Macon’s “UT-Arlington Professor: ‘What’s the Big Deal’ About Adult Men Dating Underage Girls?“,, November 30, 2017.)

There is presumably a connection between that post and the demise of Keith Burgess-Jackson (KBJ’s eponymous blog), where it was posted. But it is to KBJ’s credit that he quickly resumed blogging at Just Philosophy, and wasn’t cowed by the notoriety resulting from his post.

But I must say that my own reaction was similar to that of KBJ’s detractors:

I was trying to find a way into Keith Burgess-Jackson’s eponymous blog, which seems to have been closed to public view since he defended Roy Moore’s courtship of a 14-year-old person. (Perhaps Moore might have been cut some slack by a segment of the vast left-wing conspiracy had the person been a male.)

That is to say, I read KBJ’s post as a defense of Roy Moore’s “courtship” of a 14-year-old girl (or young woman). KBJ argues strenuously in his statement that he wasn’t defending Moore, who had been accused of more than “courting” the young woman. This account, from Wikipedia, refers to reportage that predates KBJ’s post:

On November 9, 2017, The Washington Post outlined an account of a woman, Leigh Corfman, who said that Moore initiated a sexual encounter with her in 1979, when she was 14 and he was 32 years old.[18] Corfman said that Moore met her and her mother in the hallway of the county courthouse, where Moore was working as an assistant district attorney, and offered to sit with Corfman while her mother went into a courtroom to testify.[18] Corfman said that during that discussion he asked for her phone number, which she gave him, they later went on two dates, for each date he picked her up in his car around the corner from her house and drove her to his house, and on the first date he “told her how pretty she was and kissed her”. On a second date, Moore allegedly “took off her shirt and pants and removed his clothes … touched her over her bra and underpants … and guided her hand to touch him over his underwear”.[18]

The incident, as described by Ms. Corfman, doesn’t resemble courtship as I have understood it in my lifetime, and I am older than KBJ and Roy Moore. Christian minister Patricia Bootsma explains that

in contrast to the modern conception of dating, in “courtship, time together in groups with family or friends is encouraged, and there is oversight by and accountability to parents or mentors”.[7] She further states that with courtship, “commitment happens before intimacy”.[7]

That is courtship, and I’m surprised when an erudite man who uses language precisely (i.e., KBJ) doesn’t know the difference between it and “making out“, which is more or less what Moore was (allegedly) bent on doing. Perhaps KBJ picked up the term from another news story, or perhaps he chose to use it as a euphemism for the acts described in the Post‘s story (which were repeated throughout the news media).

But I can understand the objections to KBJ’s post because (a) the story wasn’t about “courtship”, it was about a 32-year-old man (allegedly) making sexual advances to a 14-year-old girl-woman. Moreover, the alleged behavior took place in 1979, not in 1922, when KBJ’s maternal grandparents were “courting” or courting, as the case may be.

In 1922, legislative battles about age-of-consent laws had only recently been settled (for the most part):

While the general age of consent is now set between 16 and 18 in all U.S. states, the age of consent has widely varied across the country in the past. In 1880, the age of consent was set at 10 or 12 in most states, with the exception of Delaware where it was 7.[2] The ages of consent were raised across the U.S. during the late 19th century and the early 20th century.[3][4] By 1920 ages of consent generally rose to 16-18 and small adjustments to these laws occurred after 1920. As of 2015 the final state to raise its age of general consent was Hawaii, which changed it from 14 to 16 in 2001.[5]

By contrast, Alabama’s age of consent (which was 10 in 1880) had been 16 since 1920. Sexual behavior that might have been deemed acceptable in 1922, when old ways were a fresh memory, was surely beyond the pale in 1979 — 59 years after Alabama’s age of consent had been raised to 16.

So to answer KBJ’s question: It was a very big deal if Moore had in fact done the things that he is accused of having done with a 14-year-old girl-woman. Things were different in 1979 than in 1922. As someone who is older than KBJ, I will even say that things were nearly as different in 1979 as they were in 2017. The Mad Men days were by 1979 almost a faint memory. (Not in Hollywood, politics, or the upper echelons of the business world, but the Mad Men days never ended there — or not until recently, maybe. I’m talking about the workaday world of real people, when sexual harassment had by 1979 become widely frowned on, if not always suppressed.)

KBJ’s outrage about “people imposing their own moral standards on people of the past” is obviously misplaced. Because of that, any reasonable reader — even a leftist — could conclude that KBJ was attempting to excuse Moore’s alleged behavior.

I can’t quote portions of KBJ’s long, copyrighted statement because of the terms of the copyright (“Publishable in Its Entirety or Not at All”). I will just say that it struck me as an after-the-fact justification of a reflexive defense of Roy Moore (widely considered a conservative) by a conservative blogger who is (rightly) exasperated by the torrent of abuse that is heaped continuously on (actual and self-styled) conservatives.

Having said all of that, I should add that I am very much a fan of KBJ. I’m glad that he quickly resumed blogging, despite the barrage of criticism that was aimed at him — much of it, I’m sure, by leftists who attacked him reflexively because of his conservatism.

California Dreaming

EDITED 02/15/18

It is my long-held view that States have a constitutional right to secede from the union without the approval of other States or the central government. (See this post, for example.) If the Yes California movement succeeds, the political benefits to the rest of the United States (or at least the conservative parts of it) will be substantial; for example:

The last presidential election in which the GOP candidate won California’s electoral votes was in 1988. There wouldn’t have been a Bush-Gore controversy in 2000 with California out of the picture. And in 2016, Hillary would have lost the nationwide popular-vote tally by 1.4 million, thus putting to rest another baseless claim that the Democrat candidate was “robbed”.

The GOP would hold a bigger majority in the Senate (4 seats instead of 2) and House (74 seats instead of 47), thus enabling Republicans to move national policy to the right with less interference from RINOs.

Illegal immigrants will flock in greater numbers to welcoming California, thus reducing tax burdens and crime rates in Arizona, New Mexico, Texas, and the many States farther north that also absorb illegal immigrants.

According to the Yes California campaign, federal receipts from California are about equal to (perhaps a bit higher than) federal spending in California. Even a slight deficit would be worth it. That could easily be covered by spending cuts that might not otherwise occur because of the California Democrats in Congress.

And even more importantly, as commenter Timoid says, California’s wacky environmentalists wouldn’t be setting policy for the rest of the nation.

Last but best, Nancy Pelosi would no longer be a Congress-critter.

Scapegoating in Baltimore

WaPo reports that Baltimore’s police commissioner has been fired:

Baltimore’s mayor on Friday abruptly replaced Police Commissioner Kevin Davis weeks after the city ended 2017 with a record-setting homicide rate and amid increased political pressure to control crime….

The leadership change comes as Davis was overseeing the department during one of its most difficult eras. He was tasked with driving down violent crime that flared to historic levels after a young man’s death in police custody while simultaneously reforming an agency the Justice Department cited for discriminating against black residents.

You can see the problem immediately. Homicide in Baltimore, as in other cities, is mainly a black-on-black crime. But how are you going to police black areas of the city if, in doing so, you’re accused of discriminating against blacks?

As the WaPo story puts it,

Davis was left to balance trying to change a culture of policing the Justice Department called discriminatory while being tough enough on criminals to deliver safe streets.

Officers were not as aggressive as they might ordinarily have been out of fear “they, too, would be arrested for doing their jobs,” said Gene Ryan, a Baltimore police lieutenant who heads the Fraternal Order of Police labor union.

Chuck Wexler, executive director of the Police Executive Research Forum, said the average tenure of a police chief is three or four years but that Davis was “really between a rock and a hard place in trying to implement reform and deal with violent crime.”

“It’s almost like changing two tires on a car at the same time,” Wexler said.

What it’s really like is being expected to do a job without being allowed to use the requisite tools.

Baltimore’s soaring homicide rate is evidence of the Ferguson Effect, which Heather Mac Donald wrote about in “Yes, the Ferguson Effect Is Real” (National Review, September 26, 2016). She was seconded by John Hinderaker (“Violent Crime Jumped in 2015“, Power Line, September 26, 2016), who said:

I don’t know of any potential explanation for the jump last year other than the war on cops, Black Lives Matter, and the Obama administration’s anti-incarceration policies. Expect another increase when the numbers come in for 2016.

And he was right. See, for example, Mark Berman’s “Violent Crimes and Murders Increased for a Second Consecutive Year in 2016, FBI Says” (The Washington Post, September 25, 2017).

I get to the root of the problem in “Crime Revisited”, to which I 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. It’s not racism:

Criminologists talk about the race-crime connection behind closed doors, and often in highly guarded language; the topic is a lightning rod for accusations of racial hostility that can be professionally damaging. They avoid discussing even explicitly racist examples of black-on-white crime such as flash-mob assaults, “polar bear hunting,” and the “knockout game.” What criminologists won’t say in public is that black offending differences have existed since data have been collected and that these differences are behind the racial disparities in arrest, prosecution, and incarceration. They also won’t tell you that, despite claims of widespread racial discrimination in the justice system, legal variables—namely, the number of prior arrests and the seriousness of the crime for which the offender has currently been arrested—account for all but a small fraction of the variance in system outcomes. Nor will they tell you the truth about politically correct remedies, such as diversifying police forces, hiring black police chiefs, or training officers in the alleged effects of implicit bias: that these measures won’t reduce racial disparities in crime….

… 50 years of research on the topic have failed to find the smoking gun linking justice-system disparities to racism. Claims to the contrary often manipulate data or ignore them altogether. [John Paul Wright and Matt DeLisis, “What Criminologists Don’t Say, and Why“, City Journal, Summer 2017]

Follow the links — and read and weep.

Look Out for That Slippery Slope

In the truly disgusting department:

Bestiality brothels are spreading through Germany faster than ever thanks to a law that makes animal porn illegal but sex with animals legal, a livestock protection officer has warned….

‘There are now animal brothels in Germany,’ Martin told the paper, adding that people were playing down the issue by by describing it as a ‘lifestyle choice’.

Armed with a host of similar case studies, Ms Martin is now calling for the government to categorically ban bestiality across the country….

German ‘zoophile’ group ZETA has announced it will mount a legal challenge should a ban on bestiality become law.

‘Mere concepts of morality have no business being law,’ said ZETA chairman Michael Kiok.

If inter-species “dating” catches on in the U.S., there is bound to be a legal movement to legalize inter-species marriage. If that happens while Anthony Kennedy is still the swing (pun intended) justice, I can easily imagine what his deciding opinion will say:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family, pack, flock, herd, etc. In forming a marital union, two animals (one of them human) become something greater than once they were. As some of the petitioners in these cases demonstrate, inter-species marriage embodies a love that may endure even past death. It would misunderstand these animals to say they disrespect the idea of marriage. Their plea (sometimes expressed by piteous looks rather than words) is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness (in a pasture, stable, doghouse, etc.), excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. Amen, baa, arf, moo, whinny, etc.

Oh, wait, that’s what he said in Obergefell v. Hodges (with a few immaterial changes). Well, recycling is an essential aspect of the “progressive” religion, is it not?

What greater tribute to the social benefits of traditional marriage than to extend it to different sexes and different species? In fact, why discriminate against pond scum and compost?

In the brave new world to which Justice Kennedy has led us, it can be literally true that a man is married to his golf game.

Sexual Misconduct: A New Crime, A New Kind of Justice

Not all bad behavior is, or should be, the subject of official investigation, prosecution, and punishment. It should be enough, in the vast majority of cases, to stop bad behavior and discourage its repetition by simply saying “no”, administering a spanking, or subjecting the miscreant to social scorn.

These time-honored methods gave way decades ago to the sob-sister school of pseudo-psychology, which instructs all and sundry that it is harmful to young psyches to say “no” without a long explanation (couched in psychological rather than moral terms), to spank (or otherwise administer corporal punishment), or to squelch “creativity” (i.e., mischief-making) by any method of communication, from frowning to screaming.

It should therefore come as no surprise that several generations of persons born after World War II — which includes almost all of today’s practicing politicians, lawyer, judges, and celebrities — have lacked the benefit of moral guidance. What they seem to have learned is not to eschew bad behavior, but to feign contrition for it when caught. Pseudo-contrition can be made to seem genuine by a method-acting technique: converting mortification for being caught into sorrow for having committed the offending deed.

Meanwhile, the broader system of justice, which encompasses the kinds of social censure discussed above, is shifting away from the inculcation of traditional morality (which would reinforce “white privilege” and “patriarchy”) and becoming a delivery vehicle for socio-political vengeance. This perversion seemed to have peaked with the Obama-Holder regime’s penchant for launching federal investigations of shootings by police when the persons shot were black, under the rubric of “civil rights”, and with the refusal of campus and municipal officials to curb violence committed by leftists and their protégés (e.g., Antifa and BLM).

But the perversion of justice has reached a new low with the wave of public accusations of sexual misconduct fomented by the #MeToo campaign,

to denounce sexual assault and harassment, in the wake of sexual misconduct allegations against film producer and executive Harvey Weinstein. The phrase, long used in this sense by social activist Tarana Burke, was popularized by actress Alyssa Milano, who encouraged women to tweet it to publicize experiences to demonstrate the widespread nature of misogynistic behavior.

Dozens of prominent or high-ranking men in politics, entertainment, and business have been accused of various acts of sexual misconduct. Many of them have lost their jobs as a result of the accusations. Roy Moore probably lost the special election in Alabama because of the accusations. It is a widely held view on the left that Donald Trump should lose his job because of accusations that have been leveled against him, and also because he’s a creepy loud-mouth who mainly takes a conservative political stance and is a “racist” to boot. (“Racist” is the go-to word for leftists who want to open the southern border to more waves of future Democrat voters.)

In other words, there’s a new crime on the block: sexual misconduct. It consists not only of actual crimes — such as rape — that ought to be prosecuted, and have been prosecuted since long before the #MeToo campaign. It also consists of any perceived sexism or slight on the part of a male toward a female.

This new, ill-defined crime is in the mind of the beholder. She may perceive a crime simply because she hates men or finds it psychologically satisfying to think of them as the enemy — along with Republicans, Israelis, “the rich” (one of which she may well be), climate-change “deniers”, NASCAR fans, and on and on.

In fact, it’s the old double-standard at work: Misogyny (real or imagined) is bad, but man-hating is good. Or so it has become among many women (and their male sycophants) who, with unintentional irony, call themselves “liberal” and “progressive”.  It is illiberal in the extreme to deprive someone of life, liberty, property, or a job based on mere accusations, but that is what is happening. It is regressive in the extreme to wage war against half the population (minus the mental cuckolds who are their allies) when it is the half of the population that does the really hard and dangerous jobs that make it possible for them to live in a hypocritical state of comfort and security.

So, despite my schadenfreude about the comeuppance of many left-wing males (most of whom probably deserve it), I am unenthusiastic about this latest incarnation of the Salem witch-trials. It is too much of a piece with the many memes that have captured the fickle attentions of neurotic leftists in recent decades, years, months, weeks, and days; for example, eugenics, prohibition, repeal of prohibition, peace through unilateral disarmament, overpopulation, global cooling, peak oil, global warming, carbon footprints, recycling, income inequality, unconscious racism, white privilege, forced integration, forces segregation (if blacks want it), coeducation, mixed-sexed dorms, single-sex schools, any reference to or image of a firearm, keeping score, winning, cultural appropriation, diversity, globalization, free speech (not), homophobia, same-sex “marriage”, smoking, gender “assignment” at birth, “free” college for all, “settled science”, collective guilt (but only of straight, white, conservative males of European descent, and Germans in 1933-1945), racial profiling and stereotyping (except when leftists do it), etc., etc., etc.

Each “good” can be attained and each “bad” averted simply by enacting laws, regulations, and punishments. Though nature and human nature are not so easily controlled (let alone changed), the neurotic appetite for action can be sated temporarily by the mere enactment of laws, regulations, and punishments. And when these have been piled one on top of the other for decades, the results are as predicted by conservatives and libertarians: the suppression of liberty and economic growth.

There’s real crime for you.

Related posts:
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Liberalism and Sovereignty
Fascism with a “Friendly” Face
Penalizing “Thought Crimes”
Democracy and Liberty
The Interest-Group Paradox
Inventing “Liberalism”
Civil Society and Homosexual “Marriage”
Fascism and the Future of America
The Indivisibility of Economic and Social Liberty
The Near-Victory of Communism
Tocqueville’s Prescience
Accountants of the Soul
In Defense of Marriage
The Left
Rationalism, Social Norms, and Same-Sex “Marriage”
Our Enemy, the State
“Intellectuals and Society”: A Review
The Left’s Agenda
The Left and Its Delusions
“Occupy Wall Street” and Religion
Merit Goods, Positive Rights, and Cosmic Justice
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
More about Merit Goods
The Morality of Occupying Private Property
Prohibition, Abortion, and “Progressivism”
Liberty, Negative Rights, and Bleeding Hearts
Our Perfect, Perfect Constitution
Liberty and Society
Tolerance on the Left
The Eclipse of “Old America”
The Fallacy of Human Progress
Fighting Modernity
Defining Liberty
The Culture War
Modern Liberalism as Wishful Thinking
Getting Liberty Wrong
Romanticizing the State
Governmental Perversity
The Pretence of Knowledge
“The Science Is Settled”
Ruminations on the Left in America
No Wonder Liberty Is Disappearing
Academic Ignorance
More About Social Norms and Liberty
The Euphemism Conquers All
Defending the Offensive
The War on Conservatism
A Dose of Reality
God-Like Minds
The Authoritarianism of Modern Liberalism, and the Conservative Antidote
Society, Polarization, and Dissent
Non-Judgmentalism as Leftist Condescension
An Addendum to (Asymmetrical) Ideological Warfare
The Rahn Curve Revisited
Social Justice vs. Liberty
The Left and “the People”
Why Conservatives Shouldn’t Compromise
Liberal Nostrums
Liberty and Social Norms Re-examined
Retrospective Virtue-Signalling
The Left and Violence
Four Kinds of “Liberals”
Leftist Condescension
If Men Were Angels
The Vast Left-Wing Conspiracy
The Left and Evergreen State: Reaping What Was Sown
Liberty in Chains
Leftism As Crypto-Fascism: The Google Paradigm
What Is Going On? A Stealth Revolution
Libertarianism, Conservatism, and Political Correctness
“Liberalism” and Leftism
Disposition and Ideology
Much Ado about the Unknown and Unknowable
A (Long) Footnote about Science
Down the Memory Hole
The Dumbing-Down of Public Schools
Cakes and Liberty

Another (Big) Problem with “Nudging”

I’ve written recently about Richard Thaler’s Nobel prize and my objections to his (and Cass Sunstein’s) cheerleading for “nudging”. That’s a polite term for the use of business and government power to get people to make the “right” decisions. (“Right” according to Thaler, at least.) It’s the government part that really bothers me. Ilya Somin of The Volokh Conspiracy is of the same mind:

Thaler and many other behavioral economics scholars argue that government should intervene to protect people against their cognitive biases, by various forms of paternalistic policies. In the best-case scenario, government regulators can “nudge” us into correcting our cognitive errors, thereby enhancing our welfare without significantly curtailing freedom.

But can we trust government to be less prone to cognitive error than the private-sector consumers whose mistakes we want to correct? If not, paternalistic policies might just replace one form of cognitive bias with another, perhaps even worse one. Unfortunately, a recent study suggests that politicians are prone to severe cognitive biases too – especially when they consider ideologically charged issues….

Even when presented additional evidence to help them correct their mistakes, Dahlmann and Petersen found that the politicians tended to double down on their errors rather than admit they might have been wrong….

Politicians aren’t just biased in their evaluation of political issues. Many of them are ignorant, as well. For example, famed political journalist Robert Kaiser found that most members of Congress know little about policy and “both know and care more about politics than about substance.”….

But perhaps voters can incentivize politicians to evaluate evidence more carefully. They can screen out candidates who are biased and ill-informed, and elect knowledgeable and objective decision-makers. Sadly, that is unlikely to happen, because the voters themselves also suffer from massive political ignorance, often being unaware of even very basic facts about public policy.

Of course, the Framers of the Constitution understood all of this in 1787. And they wisely acted on it by placing definite limits on the power of the central government. The removal of those limits, especially during and since the New Deal, is a constitutional tragedy.

Not-So-Random Thoughts (XXI)

An occasional survey of web material that’s related to subjects about which I’ve posted. Links to the other posts in this series may be found at “Favorite Posts,” just below the list of topics.

Fred Reed, in a perceptive post worth reading in its entirety, says this:

Democracy works better the smaller the group practicing it. In a town, people can actually understand the questions of the day. They know what matters to them. Do we build a new school, or expand the existing one? Do we want our children to recite the pledge of allegiance, or don’t we? Reenact the Battle of Antietam? Sing Christmas carols in the town square? We can decide these things. Leave us alone….

Then came the vast empire, the phenomenal increase in the power and reach of the federal government, which really means the Northeast Corridor. The Supreme Court expanded and expanded and expanded the authority of Washington, New York’s store-front operation. The federals now decided what could be taught in the schools, what religious practices could be permitted, what standards employers could use in hiring, who they had to hire. The media coalesced into a small number of corporations, controlled from New York but with national reach….

Tyranny comes easily when those seeking it need only corrupt a single Congress, appoint a single Supreme Court, or control the departments of one executive branch. In a confederation of largely self-governing states, those hungry to domineer would have to suborn fifty congresses. It could not be done. State governments are accessible to the governed. They can be ejected. They are much more likely to be sympathetic to the desires of their constituents since they are of the same culture.

Tyranny is often justified by invoking “the will of the people”, but as I say here:

It is a logical and factual error to apply the collective “we” to Americans, except when referring generally to the citizens of the United States. Other instances of “we” (e.g., “we” won World War II, “we” elected Barack Obama) are fatuous and presumptuous. In the first instance, only a small fraction of Americans still living had a hand in the winning of World War II. In the second instance, Barack Obama was elected by amassing the votes of fewer than 25 percent of the number of Americans living in 2008 and 2012. “We the People” — that stirring phrase from the Constitution’s preamble — was never more hollow than it is today.

Further, the logical and factual error supports the unwarranted view that the growth of government somehow reflects a “national will” or consensus of Americans. Thus, appearances to the contrary (e.g., the adoption and expansion of national “social insurance” schemes, the proliferation of cabinet departments, the growth of the administrative state) a sizable fraction of Americans (perhaps a majority) did not want government to grow to its present size and degree of intrusiveness. And a sizable fraction (perhaps a majority) would still prefer that it shrink in both dimensions. In fact, The growth of government is an artifact of formal and informal arrangements that, in effect, flout the wishes of many (most?) Americans. The growth of government was not and is not the will of “we Americans,” “Americans on the whole,” “Americans in the aggregate,” or any other mythical consensus.

I am pleased to note that my prognosis for Trump’s presidency (as of December 2016) was prescient:

Based on his appointments to date — with the possible exception of Steve Bannon [now gone from the White House] — 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”….

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.

But anti-Trump hysteria continues unabated, even among so-called conservatives. David Gelertner writes:

Some conservatives have the impression that, by showing off their anti-Trump hostility, they will get the networks and the New York Times to like them. It doesn’t work like that. Although the right reads the left, the left rarely reads the right. Why should it, when the left owns American culture? Nearly every university, newspaper, TV network, Hollywood studio, publisher, education school and museum in the nation. The left wrapped up the culture war two generations ago. Throughout my own adult lifetime, the right has never made one significant move against the liberal culture machine.

David Brooks of The New York Times is one of the (so-called) conservatives who shows off his anti-Trump hostility. Here he is writing about Trump and tribalism:

The Trump story is that good honest Americans are being screwed by aliens. Regular Americans are being oppressed by a snobbish elite that rigs the game in its favor. White Americans are being invaded by immigrants who take their wealth and divide their culture. Normal Americans are threatened by an Islamic radicalism that murders their children.

This is a tribal story. The tribe needs a strong warrior in a hostile world. We need to build walls to keep out illegals, erect barriers to hold off foreign threats, wage endless war on the globalist elites.

Somebody is going to have to arise to point out that this is a deeply wrong and un-American story. The whole point of America is that we are not a tribe. We are a universal nation, founded on universal principles, attracting talented people from across the globe, active across the world on behalf of all people who seek democracy and dignity.

I am unaware that Mr. Trump has anything against talented people. But he rightly has a lot against adding to the welfare rolls and allowing jihadists into the country. As for tribalism — that bugbear of “enlightened” people — here’s where I stand:

There’s a world of difference between these three things:

  1. hating persons who are different because they’re different
  2. fearing persons of a certain type because that type is highly correlated with danger
  3. preferring the company and comfort of persons with whom one has things in common, such as religion, customs, language, moral beliefs, and political preferences.

Number 1 is a symptom of bigotry, of which racism is a subset. Number 2 is a sign of prudence. Number 3 is a symptom of tribalism.

Liberals, who like to accuse others of racism and bigotry, tend to be strong tribalists — as are most people, the world around. Being tribal doesn’t make a person a racist or a bigot, that is, hateful toward persons of a different type. It’s natural (for most people) to trust and help those who live nearest them or are most like them, in customs, religion, language, etc. Persons of different colors and ethnicities usually have different customs, religions, and languages (e.g., black English isn’t General American English), so it’s unsurprising that there’s a tribal gap between most blacks and whites, most Latinos and whites, most Latinos and blacks, and so on.

Tribalism has deep evolutionary-psychological roots in mutual aid and mutual defense. The idea that tribalism can be erased by sitting in a circle, holding hands, and singing Kumbaya — or the equivalent in social-diplomatic posturing — is as fatuous as the idea that all human beings enter this world with blank minds and equal potential. Saying that tribalism is wrong is like saying that breathing and thinking are wrong. It’s a fact of life that can’t be undone without undoing the bonds of mutual trust and respect that are the backbone of a civilized society.

If tribalism is wrong, then most blacks, Latinos, members of other racial and ethnic groups, and liberals are guilty of wrong-doing.

None of this seems to have occurred to Our Miss Brooks (a cultural reference that may be lost on younger readers). But “liberals” — and Brooks is one of them — just don’t get sovereignty.

While we’re on the subject of immigration, consider a study of the effect of immigration on the wages of unskilled workers, which is touted by Timothy Taylor. According to Taylor, the study adduces evidence that

in areas with high levels of low-skill immigration, local firms shift their production processes in a way that uses more low-skilled labor–thus increasing the demand for such labor. In addition, immigrant low-skilled labor has tended to focus on manual tasks, which has enabled native-born low-skilled labor to shift to nonmanual low-skilled tasks, which often pay better.

It’s magical. An influx of non-native low-skilled laborers allows native-born low-skilled laborers to shift to better-paying jobs. If they could have had those better-paying jobs, why didn’t they take them in the first place?

More reasonably, Rick Moran writes about a

Federation for American Immigration Reform report [which] reveals that illegal aliens are costing the U.S. taxpayer $135 billion.  That cost includes medical care, education, and law enforcement expenses.

That’s a good argument against untrammeled immigration (legal or illegal). There are plenty more. See, for example, the entry headed “The High Cost of Untrammeled Immigration” at this post.

There’s a fatuous argument that a massive influx of illegal immigrants wouldn’t cause the rate of crime to rise. I’ve disposed of that argument with one of my own, which is supported by numbers. I’ve also dealt with crime in many other posts, including this one, where I say this (and a lot more):

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….

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.

How real is the Ferguson effect? Jazz Shaw writes about the rising rate of violent crime:

We’ve already looked at a couple of items from the latest FBI crime report and some of the dark news revealed within. But when you match up some of their numbers with recent historical facts, even more trends become evident. As the Daily Caller reports this week, one disturbing trend can be found by matching up locations recording rising murder rates with the homes of of widespread riots and anti-police protests.

As we discussed when looking at the rising murder and violent crime rates, the increases are not homogeneous across the country. Much of the spike in those figures is being driven by the shockingly higher murder numbers in a dozen or so cities. What some analysts are now doing is matching up those hot spots with the locations of the aforementioned anti-police protests. The result? The Ferguson Effect is almost undoubtedly real….

Looking at the areas with steep increases in murder rates … , the dots pretty much connect themselves. It starts with the crime spikes in St. Louis, Baltimore and Chicago. Who is associated with those cities? Michael Brown, Freddie Gray and Laquan McDonald. The first two cities experienced actual riots. While Chicago didn’t get quite that far out of hand, there were weeks of protests and regular disruptions. The next thing they have in common is the local and federal response. Each area, rather than thanking their police for fighting an increasingly dangerous gang violence situation with limited resources, saw municipal leaders chastising the police for being “too aggressive” or using similar language. Then the federal government, under Barack Obama and his two Attorney Generals piled on, demanding long term reviews of the police forces in those cities with mandates to clean up the police departments.

Small wonder that under such circumstances, the cops tended to back off considerably from proactive policing, as Heather McDonald describes it. Tired of being blamed for problems and not wanting to risk a lawsuit or criminal charges for doing their jobs, cops became more cautious about when they would get out of the patrol vehicle at times. And the criminals clearly noticed, becoming more brazen.

The result of such a trend is what we’re seeing in the FBI report. Crime, which had been on the retreat since the crackdown which started in the nineties, is back on the rise.

It is well known that there is a strong, negative relationship between intelligence and crime; that is, crime is more prevalent among persons of low intelligence. This link has an obvious racial dimension. There’s the link between race and crime, and there’s the link between race and intelligence. It’s easy to connect the dots. Unless you’re a “liberal”, of course.

I was reminded of the latter link by two recent posts. One is a reissue by Jared Taylor, which is well worth a re-read, or a first read if it’s new to you. The other, by James Thompson, examines an issue that I took up here, namely the connection between geography and intelligence. Thompson’s essay is more comprehensive than mine. He writes:

[R]esearchers have usually looked at latitude as an indicator of geographic influences. Distance from the Equator is a good predictor of outcomes. Can one do better than this, and include other relevant measures to get a best-fit between human types and their regions of origin?… [T]he work to be considered below…. seeks to create a typology of biomes which may be related to intelligence.

(A biome is “a community of plants and animals that have common characteristics for the environment they exist in. They can be found over a range of continents. Biomes are distinct biological communities that have formed in response to a shared physical climate.”)

Thompson discusses and quotes from the work (slides here), and ends with this:

In summary, the argument that geography affects the development of humans and their civilizations need not be a bone of contention between hereditarian and environmentalist perspectives, so long as environmentalists are willing to agree that long-term habitation in a particular biome could lead to evolutionary changes over generations.

Environment affects heredity, which then (eventually) embodies environmental effects.

Returning to economics, about which I’ve written little of late, I note a post by Scott Winship, in which he addresses the declining labor-force participation rate:

Obama’s Council of Economic Advisers (CEA) makes the argument that the decline in prime-age male labor is a demand-side issue that ought to be addressed through stimulative infrastructure spending, subsidized jobs, wage insurance, and generous safety-net programs. If the CEA is mistaken, however, then these expensive policies may be ineffective or even counterproductive.

The CEA is mistaken—the evidence suggests there has been no significant drop in demand, but rather a change in the labor supply driven by declining interest in work relative to other options.

  • There are several problems with the assumptions and measurements that the CEA uses to build its case for a demand-side explanation for the rise in inactive prime-age men.
  • In spite of conventional wisdom, the prospect for high-wage work for prime-age men has not declined much over time, and may even have improved.
  • Measures of discouraged workers, nonworkers marginally attached to the workforce, part-time workers who wish to work full-time, and prime-age men who have lost their job involuntarily have not risen over time.
  • The health status of prime-age men has not declined over time.
  • More Social Security Disability Insurance claims are being filed for difficult-to-assess conditions than previously.
  • Most inactive men live in households where someone receives government benefits that help to lessen the cost of inactivity.

Or, as I put it here, there is

the lure of incentives to refrain from work, namely, extended unemployment benefits, the relaxation of welfare rules, the aggressive distribution of food stamps, and “free” healthcare” for an expanded Medicaid enrollment base and 20-somethings who live in their parents’ basements.

An additional incentive — if adopted in the U.S. — would be a universal basic income (UBI) or basic income guarantee (BIG), which even some libertarians tout, in the naive belief that it would replace other forms of welfare. A recent post by Alberto Mingardi reminded me of UBI/BIG, and invoked Friedrich Hayek — as “libertarian” proponents of UBI/BIG are wont to do. I’ve had my say (here and here, for example). Here’s I said when I last wrote about it:

The Basic Income Guarantee (BIG), also known as Universal Basic Income (UBI), is the latest fool’s gold of “libertarian” thought. John Cochrane devotes too much time and blog space to the criticism and tweaking of the idea. David Henderson cuts to the chase by pointing out that even a “modest” BIG — $10,000 per adult American per year — would result in “a huge increase in federal spending, a huge increase in tax rates, and a huge increase in the deadweight loss from taxes.”

Aside from the fact that BIG would be a taxpayer-funded welfare program — to which I generally object — it would necessarily add to the already heavy burden on taxpayers, even though it is touted as a substitute for many (all?) extant welfare programs. The problem is that the various programs are aimed at specific recipients (e.g., women with dependent children, families with earned incomes below a certain level). As soon as a specific but “modest” proposal is seriously floated in Congress, various welfare constituencies will find that proposal wanting because their “entitlements” would shrink. A BIG bill would pass muster only if it allowed certain welfare programs to continue, in addition to BIG, or if the value of BIG were raised to a level that such that no welfare constituency would be a “loser.”

In sum, regardless of the aims of its proponents — who, ironically, tend to call themselves libertarians — BIG would lead to higher welfare spending and more enrollees in the welfare state.


From Cigarettes to Guns to Opioids

UPDATED 09/29/17

Here we go again, blaming the manufacturer instead of the user.

Cigarettes were known to be a health hazard long before the link between smoking and lung cancer was proved. But people continued to smoke, even after the unsurprising news about the link became official. People who wanted to smoke just fooled themselves into believing that cancer couldn’t happen to them. Or they just didn’t contemplate it. They could have quit smoking — millions of others did — despite their so-called nicotine addiction. Whose fault was it that they didn’t quit? Did Big Tobacco hire enforcers to shove cigarettes into the mouths of smokers?

Guns don’t kill people. People with guns — and knives, baseball bats, garrotes, rebar, fists, and many other things — kill people. It’s an old truism, but valid nonetheless, that if guns are confiscated only outlaws will have guns.

Now comes the opioid “crisis” or “epidemic”, as the media like to call it. Instead of (or perhaps in addition to) an addiction to nicotine, there is apparently a growing addiction to pain-killers. There’s no addiction without an addict: a person who can’t say “no” because he doesn’t want to say “no”.

But it’s easier to blame “soulless” corporations than it is to blame people who die of lung cancer, gunshot wounds, and pain-killers. Well, it’s easier for leftists, because it plays into their denial of personal responsibility. Nothing is your fault, you see (unless you’re a straight, white male of European descent), so just lay all your troubles on Big Daddy government and he will take care of you — for “free”.


I should have included the subprime mortgage crisis, which contributed greatly to the financial crisis that led to the Great Recession. The mortgage crisis had many ingredients, including pressure from Congress and regulators to boost lending to low-income persons, mortgage securitization by “Wall Street” (approved by regulators), a housing price bubble, and loose money (the Fed at work, again). But at the bottom of it all was the eagerness of low-income borrowers to get in over their heads. It’s not politic to blame them, especially because they were disproportionately black. So the blame is apportioned elsewhere, with the left’s favorite target being “Wall Street”, of course. So much for personal responsibility.

Rush to Judgment?

Suppose you see a man with a gun chasing another man down the street. You are armed and decide to intervene. You yell at the pursuer to stop or you’ll shoot him. He pays you no heed and continues his pursuit. You shoot the pursuer in the back and he drops dead. The pursued man continues his flight and soon disappears from your view.

You call the police to report the incident, and an investigative team soon arrives on the scene. The crime-scene investigator turns the dead man over and sees that he is a fellow police officer. The investigator calls the officer’s unit to determine the officer’s assignment at the time of the shooting.

The investigator learns that the officer had been about to make an arrest in a drug sting. The man he was chasing was probably a mid-level drug dealer who was in charge of a drug-dealing operation that spanned one-fourth of the large city in which you live. On further investigation, these facts are confirmed. You are charged with manslaughter.

But if the person you shot had been a criminal intent on killing the fleeing man, you would have been hailed as a hero.

This hypothetical situation can be thought of as a metaphor for the possibility that a jury will convict an innocent person for a crime that carries the death penalty.

There is almost always some degree of uncertainty about the guilt of a person who is convicted of murder. Most murder convictions are based on “circumstantial” evidence, though it should be compelling evidence to secure a conviction. But a murderer is seldom caught at the scene of the crime in a manner that points unambiguously to (a) his culpability and (b) lack of mitigating circumstances (e.g., self-defense). Rock-solid, 100-percent certainty of guilt is hard to come by.

There are many who argue that such considerations — wrongful conviction, less-than-certainty — call for abolition of the death penalty.

There are two ancillary arguments against the death penalty. The first is that the execution of a person is an irrevocable act which can’t be reversed if evidence surfaces to prove the person’s innocence or, at least, cast reasonable doubt on his guilt. But imprisonment can’t be reversed, either. Awards of monetary damages in cases of wrongful conviction aren’t truly compensatory; time can’t be rewound.

Thus I am unpersuaded that  the death penalty is wrong because it is irreversible. All penalties except strictly monetary ones, repaid with interest, are irreversible. And even those have some costs attached to them (e.g., time lost, shame) that can’t be erased.

The second ancillary argument — which isn’t really an argument — is that the death penalty is barbaric. I am unpersuaded that the death penalty is barbaric. It is a penalty for the commission of a barbaric act. To call it barbaric is to stoop to the kind of emotionalism that typifies the left, whence flows most opposition to the death penalty. (If it’s not barbaric, it’s racist; if it’s not racist, it’s primitive; and on into the night.)

Lost in all the noise are the the essential purposes of punishment: vengeance, deterrence, and security. Restitution and rehabilitation are pipe dreams.

Capital punishment is the capstone of a system of justice that used to work quite well in this country because it was swift, certain, and harsh. But the erosion of the capstone has led to the erosion the edifice beneath it. When the worst crimes merit less than death, the next worse crimes merit lesser punishments than before, and so on down the line. At the end of the line, there are increasing numbers of police officers who refrain from intervening in criminal activity lest they themselves be charged with brutality. It’s little wonder that the rate of violent crime has risen for the past two years.

There must be a hierarchy of penalties for crime, and that hierarchy must culminate in the ultimate penalty if criminals and potential criminals are to believe that crime will be punished. When punishment is made less severe and less certain, crime flourishes and law-abiding citizens become less secure. (Some of the related posts listed below provide relevant statistical evidence.)

There are those who argue that the deterrent effect of capital punishment isn’t what it used to be. But that is because the death penalty is rarer and less certain than it used to be. The deterrent effect would be greater if there were a strict limit on the number of appeals and the time available for such appeals.

In any event, even if capital punishment had no deterrent effect, the execution of a murderer eliminates the possibility that he will murder again.

What about the possibility of a mistaken conviction? That possibility argues not for the abolition of the death penalty, but for strict scrutiny of the evidence against an accused to ensure that it is completely and timely divulged to the defense. It also calls for a special class of defense counsel: lawyers who specialize in and are knowledgeable of the kinds of evidence that are (and should be) presented and examined in capital cases (e.g., evidence about DNA, ballistics, poisons, etc.).

As a taxpayer, I would rather subsidize the training, testing, and monitoring of such lawyers than put up with the seemingly endless rounds of death-sentence appeals and the costs associated with them. The tradeoff would be enshrined in law: a definite limit as to the number of appeals and the length of time allowed for them, on the one hand, and a greater assurance of robust defense for the accused, on the other hand.

Justice delayed is justice denied.

Related reading: John Paul Wright and Matt DeLisi, “What Criminologists Don’t Say, and Why“, City Journal, Summer 2017

Related posts:
I’ll Never Understand the Insanity Defense
Does Capital Punishment Deter Homicide?
Libertarian Twaddle about the Death Penalty
Crime and Punishment
Saving the Innocent?
Saving the Innocent?: Part II
More Punishment Means Less Crime
More About Crime and Punishment
More Punishment Means Less Crime: A Footnote
Clear Thinking about the Death Penalty
Let the Punishment Fit the Crime
A Precedent for the Demise of the Insanity Defense?
Another Argument for the Death Penalty
Less Punishment Means More Crime
Clear Thinking about the Death Penalty
What Is Justice?
Why Stop at the Death Penalty?
In Defense of Capital Punishment
Lock ‘Em Up
Free Will, Crime, and Punishment
Stop, Frisk, and Save Lives
Poverty, Crime, and Big Government
Crime Revisited

Libertarianism, Conservatism, and Political Correctness

Why do conservatives and libertarians generally eschew political correctness? Because we take individual persons as they come, and evaluate each them on his merits.

That is to say, we reject stereotyping, and political correctness is just another form of stereotyping. Instead of insisting on something foolish like “all blacks are criminals”, political correctness leans the other way and insists that it is wrong to believe or say anything negative of blacks — or of any other group that has been condescendingly identified as “victims” by leftists.

Group differences matter mainly to the extent that they affect the likely success or (more likely) failure of government interventions aimed at defeating human nature. They also matter to the extent that human beings — including members of all racial and ethic groups — tend to prefer like to unlike (e.g., the preference of “liberal” white yuppies to live in enclaves of “liberal” white yuppies). But such matters have nothing to do with the conservative-libertarian disposition to treat individuals, when encountered as individuals, with the respect (or disrespect) due to them — as individuals.

In that regard, the conservative disposition is especially instructive. A conservative will not rush to judgment (pro or con) based on superficial characteristics, but will judge a person by what he actually says and does in situations that test character and ability. For example, I distinguish between leftists of my acquaintance who are at bottom kind but politically naive, and those whose political views reflect their inner nastiness.

Leftists, in their usual mindless way, take the opposite view and presume that the superficial characteristics that define a group count for more than the character and ability of each member of the group. Political correctness is of a piece with the intellectual laziness that characterizes leftism.

Related posts:
Academic Bias
Intellectuals and Capitalism
“Intellectuals and Society”: A Review
The Left’s Agenda
The Left and Its Delusions
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
Are You in the Bubble?
The Culture War
Ruminations on the Left in America
Academic Ignorance
The Euphemism Conquers All
A Dose of Reality
God-Like Minds
Non-Judgmentalism as Leftist Condescension
An Addendum to (Asymmetrical) Ideological Warfare
Retrospective Virtue-Signalling
The Left and Violence
Four Kinds of “Liberals”
Leftist Condescension
The Vast Left-Wing Conspiracy
The Left and Evergreen State: Reaping What Was Sown
Leftism As Crypto-Fascism: The Google Paradigm
Leftism (page) and related bibliography

The Danger of Marginal Thinking

The “marginal revolution” in economics, which occurred in the latter part of the 19th century, introduced marginalism,

a theory of economics that attempts to explain the discrepancy in the value of goods and services by reference to their secondary, or marginal, utility. The reason why the price of diamonds is higher than that of water, for example, owes to the greater additional satisfaction of the diamonds over the water. Thus, while the water has greater total utility, the diamond has greater marginal utility.

Although the central concept of marginalism is that of marginal utility, marginalists, following the lead of Alfred Marshall, drew upon the idea of marginal physical productivity in explanation of cost. The neoclassical tradition that emerged from British marginalism abandoned the concept of utility and gave marginal rates of substitution a more fundamental role in analysis. Marginalism is an integral part of mainstream economic theory.

But pure marginalism can be the road to ruin for a business if the average cost of a unit of output is greater than average revenue, that is, the price for which a unit is sold.

Marginalism is the road to ruin in law and politics. If a governmental act can be shown to have a positive effect “at the margin”, its broader consequences are usually ignored. This kind of marginalism is responsible for the slippery sloperatchet effect enactment and perpetuation of one economically and socially destructive government program after another. Obamacare, same-sex “marriage”, and rampant transgenderism are the most notorious examples of recent years. Among the many examples of earlier years are the Pure Food and Drug Act, the Supreme Court’s holding in Wickard v. Filburn, the Social Security Act and its judicial vindication, the Civil Rights Act of 1964, and the various enactments related to “equal employment opportunity”, including the Americans with Disabilities Act.

Frédéric Bastiat’s wrote about it more than 160 years ago, in “What Is Seen and What Is Not Seen“:

[A] law produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them.

The unseen effects — the theft of Americans’ liberty and prosperity — had been foreseen by some (e.g., Tocqueville and Hayek). But their wise words have been overwhelmed by power-lust, ignorance, and greed. Greed manifests itself in the interest-group paradox:

The interest-group paradox is a paradox of mass action….

Pork-barrel legislation exemplifies the interest-group paradox in action, though the paradox encompasses much more than pork-barrel legislation. There are myriad government programs that — like pork-barrel projects — are intended to favor particular classes of individuals. Here is a minute sample:

  • Social Security, Medicare, and Medicaid, for the benefit of the elderly (including the indigent elderly)
  • Tax credits and deductions, for the benefit of low-income families, charitable and other non-profit institutions, and home buyers (with mortgages)
  • Progressive income-tax rates, for the benefit of persons in the mid-to-low income brackets
  • Subsidies for various kinds of “essential” or “distressed” industries, such as agriculture and automobile manufacturing
  • Import quotas, tariffs, and other restrictions on trade, for the benefit of particular industries and/or labor unions
  • Pro-union laws (in many States), for the benefit of unions and unionized workers
  • Non-smoking ordinances, for the benefit of bar and restaurant employees and non-smoking patrons.

What do each of these examples have in common? Answer: Each comes with costs. There are direct costs (e.g., higher taxes for some persons, higher prices for imported goods), which the intended beneficiaries and their proponents hope to impose on non-beneficiaries. Just as importantly, there are indirect costs of various kinds (e.g., disincentives to work and save, disincentives to make investments that spur economic growth)….

You may believe that a particular program is worth what it costs — given that you probably have little idea of its direct costs and no idea of its indirect costs. The problem is millions of your fellow Americans believe the same thing about each of their favorite programs. Because there are thousands of government programs (federal, State, and local), each intended to help a particular class of citizens at the expense of others, the net result is that almost no one in this fair land enjoys a “free lunch.” Even the relatively few persons who might seem to have obtained a “free lunch” — homeless persons taking advantage of a government-provided shelter — often are victims of the “free lunch” syndrome. Some homeless persons may be homeless because they have lost their jobs and can’t afford to own or rent housing. But they may have lost their jobs because of pro-union laws, minimum-wage laws, or progressive tax rates (which caused “the rich” to create fewer jobs through business start-ups and expansions).

The paradox that arises from the “free lunch” syndrome is…. like the paradox of panic, in that there is a  crowd of interest groups rushing toward a goal — a “pot of gold” — and (figuratively) crushing each other in the attempt to snatch the pot of gold before another group is able to grasp it. The gold that any group happens to snatch is a kind of fool’s gold: It passes from one fool to another in a game of beggar-thy-neighbor, and as it passes much of it falls into the maw of bureaucracy.

As far as I know, only one agency of the federal government has been abolished in my lifetime, while dozens have been created and expanded willy-nilly at the behest of politicians, bureaucrats, and cronies. The one that was abolished — the Interstate Commerce Commission — still had “residual functions” that were transferred elsewhere. That’s the way it works in Washington, and in State capitals.

So one obvious danger of marginal thinking is that the nose of the camel under the edge of the tent is invariably followed by its neck, its humps, its tail, another camel’s nose, etc., etc. etc.

There’s a less obvious danger, which is typified by the penchant of faux-libertarians for dismissing objections to this and that “harmless” act. Economist Mark Perry, for example, regurgitates Milton Friedman’s 30-year-old plea for the decriminalization of drugs. Just because some behavior is “private” doesn’t mean that it’s harmless to others. Murder behind a closed door is still murder.

In the case of drugs, I turn to Theodore Dalrymple:

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

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

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

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

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

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

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

“Liberals” of both kinds (“progressive” fascists and faux-libertarian) just don’t know when to smack camels on the nose. Civilization depends on deep-seated and vigorously enforced social norms. They reflect eons of trial and error, and can’t be undone peremptorily without unraveling the social fabric — the observance of mores and morals that enable a people to coexist peacefully and beneficially because they are bound by mutual trust, mutual respect, and mutual forbearance.

A key function of those norms is to inculcate self-restraint. For it is the practice of self-restraint that underlies peaceful, beneficial coexistence: What goes around comes around.

Related pages and posts:
Social Norms and Liberty
On Liberty
In Defense of Marriage
Myopic Moaning about the War on Drugs
Facets of Liberty
Burkean Libertarianism
The Myth That Same-Sex “Marriage” Causes No Harm
Lock ‘Em Up
Liberty and Society
The Eclipse of “Old America”
Genetic Kinship and Society
The Fallacy of Human Progress
Defining Liberty
The Pseudo-Libertarian Temperament
Getting Liberty Wrong
“Liberalism” and Personal Responsibility
Crime Revisited
A Cop-Free World?
The Beginning of the End of Liberty in America
Marriage: Privatize It and Revitalize It
More About Social Norms and Liberty
Amen to That
The Opposition and Crime
“And the Truth Shall Set You Free”
Double Amen
Economically Liberal, Socially Conservative
The Transgender Fad and Its Consequences
The Harm Principle Revisited: Mill Conflates Society and State
Liberty and Social Norms Re-examined
Natural Law, Natural Rights, and the Real World
Natural Law and Natural Rights Revisited
If Men Were Angels
Death of a Nation
Self-Made Victims

Death of a Nation

More than 50 years ago I heard a white woman say of blacks “They’re not Americans.” I was appalled by that statement, for it contradicted what I had been taught to believe about America, namely, this:

“America is not just a country,” said the rock singer Bono, in Pennsylvania in 2004: “It’s an idea.”

That’s the opening of John O’Sullivan’s essay, “A People, Not Just an Idea” (National Review, November 19, 2015).

Bono is a decent, thoughtful, and public-spirited man. I didn’t choose his quotation to suggest that this view of America is a kind of pop opinion. It just happened that in my Google search his name came ahead of many others, from George Will to Irving Kristol to almost every recent presidential candidate, all of whom had described America either as an idea or as a “proposition nation,” to distinguish it from dynastic realms or “blood and soil” ethnicities. This philosophical definition of America is now the conventional wisdom of Left and Right, at least among people who write and talk of such things.

Indeed, we have heard variations on Bono’s formulation so many times that we probably fail to notice how paradoxical it is. But listen to how it sounds when reversed: “America is not just an idea; it is a nation.” Surely that version has much more of the ring of common sense. For a nation is plainly something larger, more complex, and richer than an idea. A nation may include ideas. It may have evolved under the influence of a particular set of ideas. But because it encompasses so many other things — notably the laws, institutions, language of the nation; the loyalties, stories, and songs of the people; and above all Lincoln’s “mystic chords of memory” — the nation becomes more than an idea with every election, every battle, every hero, every heroic tale, every historical moment that millions share.

That is not to deny that the United States was founded on some very explicit political ideas, notably liberty and equality, which Jefferson helpfully wrote down in the Declaration of Independence. To be founded on an idea, however, is not the same thing as to be an idea. A political idea is not a destination or a conclusion but the starting point of an evolution — and, in the case of the U.S., not really a starting point, either. The ideas in the Declaration on which the U.S. was founded were not original to this country but drawn from the Anglo-Scottish tradition of Whiggish liberalism. Not only were these ideas circulating well before the Revolution, but when the revolutionaries won, they succeeded not to a legal and political wasteland but to the institutions, traditions, and practices of colonial America — which they then reformed rather than abolished….

As John Jay pointed out, Americans were fortunate in having the same religion (Protestantism), the same language, and the same institutions from the first. Given the spread of newspapers, railways, and democratic debate, that broad common culture would intensify the sense of a common American identity over time. It was a cultural identity more than an ethnic one, and one heavily qualified by regional loyalties… And the American identity might have become an ethnic one in time if it had not been for successive waves of immigration that brought other ethnicities into the nation.

That early American identity was robust enough to absorb these new arrivals and to transform them into Americans. But it wasn’t an easy or an uncomplicated matter. America’s emerging cultural identity was inevitably stretched by the arrivals of millions of people from different cultures. The U.S. government, private industry, and charitable organizations all set out to “Americanize” them. It was a great historical achievement and helped to create a new America that was nonetheless the old America in all essential respects….

By World War II, … all but the most recent migrants had become culturally American. So when German commandos were wandering behind American lines in U.S. uniforms during the Battle of the Bulge, the G.I.s testing their identity asked not about … the First Amendment but questions designed to expose their knowledge (or ignorance) of American life and popular culture….

Quite a lot flows from this history. Anyone can learn philosophical Americanism in a civics class; for a deeper knowledge and commitment, living in America is a far surer recipe…. Americans are a distinct and recognizable people with their own history, culture, customs, loyalties, and other qualities that are wider and more various than the most virtuous summary of liberal values….

… If Americans are a distinct people, with their own history, traditions, institutions, and common culture, then they can reasonably claim that immigrants should adapt to them and to their society rather than the reverse. For most of the republic’s history, that is what happened. And in current circumstances, it would imply that Muslim immigrants should adapt to American liberty as Catholic immigrants once did.

If America is an idea, however, then Americans are not a particular people but simply individuals or several different peoples living under a liberal constitution.

For a long time the “particular people” were not just Protestants but white Protestants of European descent. As O’Sullivan points out, Catholics (of European descent) eventually joined the ranks of “particular people”. But there are others — mostly blacks and Hispanics — who never did and never will join those ranks. Whatever the law may say about equality, access to housing, access to public accommodations, and so on, membership in the ranks of “particular people” is up to those who are already members.

The woman who claimed that blacks weren’t Americans was a member. She was a dyed-in-the-wool Southerner, but her attitude wasn’t untypical of the attitudes of many white Americans — Northern and Southern, past and present. Like it or not, the attitude remains prevalent in the country. (Don’t believe polls that purport to demonstrate racial comity; there’s a well-known aversion to giving a “wrong” answer to a pollster.)

The revealed preference of most whites (a preference shared by most blacks) is for racial segregation. Aggregate statistics hide the real story, which is the gentrification of some parts of inner cities (i.e., the creation of white enclaves) and “white flight” from suburbs to which inner-city blacks are fleeing. (See this article, for instance.)

The taste for segregation shows up in statistics about public-school enrollment. (See this article, for instance.) White parents (and affluent blacks) are more often keeping their children out of local public schools with large “minority” enrollments by choosing one of the alternatives legally available to them (e.g., home schooling). (Presidents with school-age children — including Barack Obama — have done the same thing to avoid sending their children to the public schools of the District of Columbia, whose students are predominantly black and Hispanic.)

I have focused on voluntary racial segregation because it underscores the fact — not lost on the white, Southern woman of my acquaintance — that the United States was once built upon the “blood and soil” ethnicity of whites whose origins lay in Europe. Blacks can never be part of that nation. Neither can Hispanics, who now outnumber blacks in America. Blacks and Hispanics belong to the “proposition” nation.

They have been joined by the large numbers of Americans who no longer claim allegiance to the “blood and soil” nation, regardless of their race or ethnicity — leftists, in other words. Since the 1960s leftists have played an ever-larger, often dominant, role in the governance of America. They have rejected the “history, culture, customs, [and] loyalties” which once bound most Americans. In fact they are working daily — through the academy, the media, and the courts — to transform America fundamentally by erasing the “history, culture, customs, [and] loyalties” of Americans from the people’s consciousness and the nation’s laws.

Pat Buchanan, who is usually too strident for my taste, hits it on the head:

In Federalist No. 2, John Jay writes of them as “one united people . . . descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs . . .”

If such are the elements of nationhood and peoplehood, can we still speak of Americans as one nation and one people?

We no longer have the same ancestors. They are of every color and from every country. We do not speak one language, but rather English, Spanish and a host of others. We long ago ceased to profess the same religion. We are Evangelical Christians, mainstream Protestants, Catholics, Jews, Mormons, Muslims, Hindus and Buddhists, agnostics and atheists.

Federalist No. 2 celebrated our unity. Today’s elites proclaim that our diversity is our strength. But is this true or a tenet of trendy ideology?

After the attempted massacre of Republican Congressmen at that ball field in Alexandria, Fareed Zakaria wrote: “The political polarization that is ripping this country apart” is about “identity . . . gender, race, ethnicity, sexual orientation (and) social class.” He might have added — religion, morality, culture and history.

Zakaria seems to be tracing the disintegration of our society to that very diversity that its elites proclaim to be its greatest attribute: “If the core issues are about identity, culture and religion … then compromise seems immoral. American politics is becoming more like Middle Eastern politics, where there is no middle ground between being Sunni or Shiite.”

Among the issues on which we Americans are at war with one another — abortion, homosexuality, same-sex marriage, white cops, black crime, Confederate monuments, LGBT rights, affirmative action.

America is no longer a nation whose inhabitants are bound mainly by “blood and soil”. Worse than that, it was — until the election of 2016 — fast becoming a nation governed by the proposition that liberty is only what leftists say it is: the liberty not to contradict the left’s positions on climate, race, intelligence, economics, religion, marriage, the right to life, and government’s intrusive role in all of those things and more. The resistance to Donald Trump is fierce and unforgiving because his ascendancy threatens what leftists have worked so hard to achieve in the last 50 years: the de-Americanization of America.

Is all of this just the grumbling of white men of European descent? I think not. Measures of national unity are hard to come by. Opinion polls, aside from their relatively brief history (compared with the age of the Union), are notoriously unreliable. Presidential elections are more meaningful because (some degree of chicanery aside) they reflect voters’ feelings about the state of the Union. Regardless of the party affiliation of the winning candidate, a strong showing usually reflects broad satisfaction with the nation’s direction; a weak showing usually reflects the opposite.

Popular votes were first recorded in the election of 1824. Here is a graphical history of the winning candidate’s percentages of the vote in each election from 1824 through 2016 (with the exclusion of 1864, when the South wasn’t in the Union):

Derived from this table in this article at Wikipedia.

Election-to-election variations reflect the personal popularity of some candidates, the strength of third-party movements, and various other transitory factors. The 5-election average smooths those effects and reveals what is (to me) an obvious story: national disunity in the years before and after the Civil War; growing unity during the first half of the 20th century, peaking during the Great Depression and World War II; modest post-war decline followed by stability through the 1980s; and rapid decline since then because of the left’s growing power and the rapid rise of the Hispanic population.

The graph underscores what I already knew: The America in which I was born and raised — the America of the 1940s and 1950s — has been beaten down. It is more likely to die than it is to revive. And even if it revives to some degree, it will never be the same.

Related posts:
Academic Bias
Intellectuals and Capitalism
“Intellectuals and Society”: A Review
The Left’s Agenda
The Left and Its Delusions
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
Are You in the Bubble?
Liberty and Society
The Eclipse of “Old America”
Genetic Kinship and Society
The Culture War
Ruminations on the Left in America
Academic Ignorance
The Euphemism Conquers All
Defending the Offensive
A Dose of Reality
God-Like Minds
Non-Judgmentalism as Leftist Condescension
An Addendum to (Asymmetrical) Ideological Warfare
Retrospective Virtue-Signalling
The Left and Violence
Four Kinds of “Liberals”
Leftist Condescension
Class in America
A Word of Warning to Leftists (and Everyone Else)
Another Thought or Two about Class
The Vast Left-Wing Conspiracy
The Left and Evergreen State: Reaping What Was Sown

Supreme Court Page Updated

I have updated “U.S. Supreme Court: Lines of Succession and Ideological Alignment” to cover the recently completed October 2016 term. Observations:

The fairly harmonious 2014 term was succeeded by more typical (i.e., more divided) 2015 and 2016 terms. In fact, 2016 was even more polarized than 2015.

Kennedy’s long-standing proneness to defect more often than his “conservative” colleagues grew markedly in the 2014-2015 terms and receded a bit in the 2016 term. Kennedy probably should be counted as a member of the Court’s “liberal” wing, but I won’t make that call until the end of the 2017 term. Perhaps Kennedy will have done the right thing and retired by then.

Roberts is more in step with the “conservative” wing than he had been in the previous three terms, but he isn’t back to where he was in 2005-2011.

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.