My View of Mill, Endorsed

Scott Yenor, writing in “The Problem with the ‘Simple Principle’ of Liberty” (Law & Liberty, March 19, 2018), makes a point about J.S. Mill’s harm principle that I have made many times. Yenor begins by quoting the principle:

The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. . . . The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. . . .The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part that merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

This is the foundational principle of libertarianism, and it is deeply flawed, as Yenor argues (successfully, in my view). He ends with this:

[T]he simple principle of [individual] liberty undermines community and compromises character by compromising the family. As common identity and the family are necessary for the survival of liberal society—or any society—I cannot believe that modes of thinking based on the “simple principle” alone suffice for a governing philosophy. The principle works when a country has a moral people, but it doesn’t make a moral people.

Here are some of the posts in which I address liberty as Mill saw it and as I see it:

On Liberty
Parsing Political Philosophy
Pseudo-Libertarian Sophistry vs. True Libertarianism
More Pseudo-Libertarianism
The Meaning of Liberty
Understanding Hayek
Burkean Libertarianism
What Is Libertarianism?
True Libertarianism, One More Time
Why Conservatism WorksLiberty and Society
Defending Liberty against (Pseudo) Libertarians
Defining Liberty
The Pseudo-Libertarian Temperament
Parsing Political Philosophy (II)
Getting Liberty Wrong
My View of Libertarianism
Social Norms and Liberty
More About Social Norms and Liberty
Individualism, Society, and Liberty
The Harm Principle Revisited: Mill Conflates Society and State
Liberty and Social Norms Re-examined

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)

Freespace and Me

This is the introduction to “Freespace and Me”, one of the pages listed at the top of this blog. It gives a place of prominence to two subjects about which I’ve often blogged: “natural rights” (the quotation marks connote their fictional status) and the connection between race and intelligence.

Late in 2004, I was asked by Timothy Sandefur to guest-blog for a week at Freespace. By combing the archives of Mr. Sandefur’s blog and using The Wayback Machine, I have reconstructed that week and its sequel, in which Sandefur and I continue an exchange that began during my guest-blogging stint. I reproduce the entire sequence of posts here.

Some of my posts are culled from my old blog, Liberty Corner, where I had cross-posted from Freespace, My name appears as Fritz at the bottom of those posts because I was using it as my handle when I culled the posts.

The attentive and determined reader who slogs through the posts reproduced here will note that Sandefur didn’t thank me for guest-blogging at Freespace. It is my view that Sandefur regretted having asked me to guest-blog because of my less-than-pure view of rights — which I take to be social constructs, not timeless entities — and my candid and accurate (but negative) take on the relative intelligence of blacks. For more on that, see “Race and Reason: The Victims of Affirmative Action“, “Race and Reason: The Achievement Gap — Causes and Implications“, “Evolution and Race“, ““Wading” into Race, Culture, and IQ“, “The Harmful Myth of Inherent Equality“, “Let’s Have That “Conversation” about Race“, “Non-Judgmentalism as Leftist Condescension“, “Affirmative Action Comes Home to Roost“, “The IQ of Nations“, “Race and Social Engineering“, “More about Intelligence“, “Leftist Condescension“, “Who’s Obsessing, Professor McWhorter?“, and “Racism on Parade“.

Among the posts reproduced below are some early ones in a prolonged exchange between Sandefur and me on the question of “natural rights”. I answered him definitively in “Evolution, Human Nature, and ‘Natural Rights’“, and he never responded, as far as I am able to tell. He has addressed “natural rights” only once since I wrote “Evolution…”, but persists in error; thus:

Of course, philosophy probably knows no more complicated word than “natural,” but when used in the context of rights, the word is meant to signify that rights are not merely conventional—they are not privileges accorded to people by the state. Instead, their origin is in something real about them: in the objective characteristics of human beings qua human beings. I know of no better word for that than “natural.” Rand contends that “[t]he source of man’s rights is not divine law or congressional law, but the law of identity, A is A—and Man is Man. Rights are conditions of existence required by nature for his proper survival…. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational.” (Emphasis altered).

To understand the error –a common one among doctrinaire leftists, who justify all kinds of coercion and theft in the name of “natural rights” — read “Evolution, Human Nature, and ‘Natural Rights’“, “The Futile Search for Natural Rights’“, “Natural Law, Natural Rights, and the Real World“, and “Natural Law and Natural Rights Revisited“.

Cakes and Liberty

Mark David Hall yesterday posted “Phillips Likely to Win Masterpiece Cakeshop Case, Five Votes to Four” at Law & Liberty. I fervently hope that Phillips wins, and by a greater margin than 5-4 (though that’s probably too much to hope for).

I must say, however, that I do not much care for the First-Amendment grounding of Phillips’s case. As Hall points out, Phillips was found guilty of violating Colorado’s public accommodation statute by the state’s Civil Rights Commission when he refused to provide a cake for a same-sex wedding.

And therein lies the real injustice, which stems from the Civil Rights Act of 1964. That law (among several things) prohibits racial discrimination in “public accommodations“, which are

generally defined as facilities, both public and private, used by the public. Examples include retail stores, rental establishments and service establishments as well as educational institutions, recreational facilities, and service centers.

What is going on with Masterpiece Cakeshop, and similar cases involving florists and photographers, is what has been going on since the enactment of the Civil Rights Act of 1964 and the U.S. Supreme Court’s subsequent rulings to uphold the law: the abrogation of property rights, liberty of contract, and freedom of association.

The only excuse for pursing Phillips’s cause as a First Amendment issue is that it is far too late to restore property rights, liberty of contract, and freedom of association — all of which have been smothered by the dense web of legislative, executive, and judicial decrees that suppresses liberty in the name of liberty.

Freedom of speech and freedom of religion are hanging on by the barest of threads. If Phillips loses in the Supreme Court, they will go the way of property rights, liberty of contract, and freedom of association.

Related posts:
Substantive Due Process, Liberty of Contract, and the States’ Police Power
The Constitution: Original Meaning, Corruption, and Restoration
Our Perfect, Perfect Constitution
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
Getting “Equal Protection” Right
The Writing on the Wall
How to Protect Property Rights and Freedom of Association and Expression
The Principles of Actionable Harm
Judicial Supremacy: Judicial Tyranny
The Beginning of the End of Liberty in America
Substantive Due Process, Liberty of Contract, and States’ “Police Power”
Why Liberty of Contract Matters
The Answer to Judicial Supremacy
There’s More to It Than Religious Liberty
Turning Points
Equal Protection in Principle and Practice
Freedom of Speech and the Long War for Constitutional Governance
Academic Freedom, Freedom of Speech, and the Demise of Civility

The End of an Era?

What do these people have in common?

Roy Moore
Harvey Weinstein
Kevin Spacey
Louis C.K.
Al Franken
Charlie Rose
John Conyers
Matt Lauer
Garrison Keillor

I’m sure I’ve missed some names. They’ve been coming too fast for me to keep up. And that’s just this year’s crop — though Bill Clinton always heads the list of past offenders (proven and alleged).

What they have in common, of course, is a rap for sexual harassment or worse — sometimes much worse.

What they also have in common is that they are all public figures who are either in politics or entertainment (which includes “news”).

The most important thing that they have in common, with the exception of Roy Moore, is their attachment to left-wing politics. Oops, here comes Clinton, again.

The day of the free pass because “his heart’s in the right place”* seems to be over.
* This is a reference to following passage in “The Devolution of American Politics from Wisdom to Opportunism“:

The canonization of Ted Kennedy by the American left and its “moderate” dupes — in spite of Kennedy’s tawdry, criminal past — reminds me of the impeachment trial of William Jefferson Clinton. Clinton’s defense attorney Cheryl Mills said this toward the end of her summation:

[T]his president’s record on civil rights, on women’s rights, on all of our rights is unimpeachable.

In other words, Clinton could lie under oath and obstruct justice because his predatory behavior toward particular women and the criminal acts they led to were excused by his being on the “right side” on the general issue of “women’s rights.” That makes as much sense as allowing a murderer to go free because he believes in capital punishment.

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

Another Angle on Alienation

In an earlier post about alienation I said that

the life of the hunter-gatherer, however fraught, is less rationalized than the kind of life that’s represented by intensive agriculture, let alone modern manufacturing and office work.

The hunter-gatherer isn’t “a cog in a machine”, he is the machine. He is the shareholder, the manager, the worker, and the consumer, all in one. His work with others is truly cooperative. It is like the execution of a game-winning touchdown by a football team, and unlike the passing of a product from stage to stage in an assembly line, or the passing of a virtual piece of paper from computer to computer.

What really matters in life — perhaps as much as love and friendship — is the sense of accomplishment that derives from producing something of value to others, something that they willingly pay for.

In decades of post-collegiate work, nothing gave me more satisfaction than the weekly publication of the Pennysaver that — in the late 1970s — I owned, operated, and poured my labor (and a large share of my savings) into for three years. “Publish or perish” was far truer of me than it is of the academics who exclaim it.

I bought the Pennysaver to escape the “rat race” of the D.C.-area government-contractor milieu: big-city anonymity, commuting, high taxes, and — most of all — disconnect between work and accomplishment. In fact, I doubted that the work that I and thousands of others like me accomplished anything but the appropriation of taxpayers’ money.

During the Pennysaver years I concentrated intensly on making a living. But more than that, I was producing something of real value — a publication supported by willing advertisers and eagerly awaited by local residents, who found it in their mailboxes every Wednesday.

I gave up the Pennysaver to return to the “rat race” of the D.C. area, so that I could earn enough to retire comfortably. (Life is full of choices; that was mine.) I often took pride in some of what I accomplished in the ensuing 18 years. But it wasn’t the same sense of accomplishment that I experienced as a business owner. It was just the satisfaction of doing a job well, even if the job wasn’t worth doing.

I worked hard in those final 18 years — from 60 to 70 hours a week until the end was nigh. But I was no longer the captain of my own ship, though I usually worked directly for the CEO. There were three of them in those years. The first one was deposed (deservedly) in a coup, brought about in part by internal opposition to his Queegish management. The second one was a careerist of high professional and ethical standards who steered the organization back to its roots as an empirical, objective, and apolitical operations research outfit.

Then along came the third one, and a new kind of alienation descended on me: I couldn’t even derive a sense of satisfaction from doing a useless job well because he corrupted the organization. Not in a criminal way, but — almost as bad — in a political way. He was prone to magical thinking (e.g., there should be a greater percentage of black Ph.D.s on the staff but standards shouldn’t be lowered), and he pushed the organization away from empirical research into “policy analysis” (a.k.a., advocacy bullshit) with a partisan edge. It was all in keeping with his proud self-identification as a “Carter Democrat”.

The stress of working for such a man became almost debilitating. So I arranged for early retirement on favorable terms before the stress became absolutely unbearable. My foreboding was borne out when, in the years after my retirement, the organization took an overtly political turn (e.g., backing for some of Obama’s domestic programs, “global warming” as a national-security issue).

Alienation comes in many forms. And it isn’t restricted to workers who are just “cogs in a machine”. Alienation is a sense of uselessness that can descend on anyone in any job at any income level.

Liberty in Chains

I continue to add items to the list of related readings at the bottom of this post.

Liberty is a good thing, and not just because most people like to feel unconstrained by anything but their moral obligations and principles. (And it’s a good thing for liberty that it doesn’t depend entirely on self-control.) Liberty fosters constructive competition and, in the terminology of pop psychology, self-actualization; for example: the trial-and-error emergence of social norms that advance cooperation and comity; the trial-and-error emergence (and dissolution) of businesses that advance consumers’ interests; the freedom to work where one chooses (according to one’s ability), to live where one chooses (within one’s means), to marry the person of one’s choosing (consistent with public health and the wisdom embedded in voluntarily evolved social norms), to have as many children as a couple can provide for without imposing involuntary burdens on others; and the freedom to associate with persons of one’s own choosing, including the persons with whom one does business.

It’s no secret that those manifestations of liberty haven’t held throughout the United States and throughout its history. It’s also no secret that none of them is sharply and permanently defined in practice. In some jurisdictions, for example, a businessperson is forced by law to provide certain services or pay a stiff fine. The argument for such treatment takes a one-sided view of freedom of association, and grants it only to the person seeking the services, while denigrating the wishes of the person who is forced to provide them. The liberty of the customer is advanced at the expense of the liberty of the businessperson. It is an approach, like that of civil-rights law generally, which favors positive rights and dismisses negative ones. It is therefore anti-libertarianism in the name of liberty, as I explain in a recent post.

In sum, liberty isn’t a simple thing. It’s certainly not as simple or simplistic as J.S. Mill’s harm principle (a.k.a. non-aggression principle), as I have explained many times (e.g. here). In fact, it’s impossible for everyone to be satisfied that they’re living in a state of liberty. This is partly because so many people believe that they possess positive rights — entitlements provided at the expense of others.

More generally, liberty has been and continues to be invoked as a justification for anti-libertarian acts, beyond the creation and enforcement of positive rights. There is the problem of freedom of speech, for example, which has been interpreted to allow advocacy of anti-libertarian forms of government — most notably America’s present de facto blend of socialism and fascism.

This problem, which is actually a constitutional catastrophe, is closely related to the problem of democracy. There are many who advocate unbridled democratic control of private institutions through government power. One such person is Nancy MacLean, whose recent book, Democracy in Chains, seems to be a mindless defense of majority opinion. The Wikipedia entry for the book (as of today’s writing) seems fair and balanced (links and footnotes omitted):

In June 2017 MacLean published Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, focusing on the Nobel Prize winning political economist James McGill Buchanan, Charles Koch, George Mason University and the libertarian movement in the U.S, who, she argues, have undertaken “a stealth bid to reverse-engineer all of America, at both the state and national levels back to the political economy and oligarchic governance of midcentury Virginia, minus the segregation.” According to MacLean, Buchanan represents “the true origin story of today’s well-heeled radical right.”….

Booklist, which gave the book a starred review, wrote that Democracy in Chains … is “perhaps the best explanation to date of the roots of the political divide that threatens to irrevocably alter American government.” Publisher’s Weekly wrote that “MacLean constructs an erudite searing portrait of how the late political economist James McGill Buchanan (1919 – 2013) and his deep-pocketed conservative allies have reshaped–and undermined–American democracy.” Kirkus said “MacLean offers a cogent yet disturbing analysis of libertarians’ current efforts to rewrite the social contract and manipulate citizens’ beliefs.”

In The Atlantic, Sam Tanenhaus called Democracy in Chains, “A vibrant intellectual history of the radical right.” Genevieve Valentine wrote on NPR: “This sixty-year campaign to make libertarianism mainstream and eventually take the government itself is at the heart of Democracy in Chains.”

Democracy in Chains was criticized by libertarians. David Bernstein disputed MacLean’s portrayal of Buchanan and George Mason University, where Bernstein is and Buchanan was a professor. Jonathan H. Adler noted allegations of serious errors and misleading quotations in Democracy in Chains raised by Russ Roberts, David R. Henderson, Don Boudreaux and others. Ilya Somin disagreed that libertarianism was uniquely anti-democratic, arguing that libertarians and left-liberals alike believed in constraining democratic majorities regarding “abortion, privacy rights, robust definitions of free speech… and freedom of religion, extensive protections for criminal defendants, and limitations on the powers of law enforcement personnel”. George Vanberg argued that MacLean’s portrayal of Buchanan as wishing to “preserve (or enhance) the power of a white, wealthy elite at the expenses of marginalized social groups … represents a fundamental misunderstanding”. Michael Munger wrote that Democracy in Chains “is a work of speculative historical fiction” while Phillip Magness argued that MacLean had “simply made up an inflammatory association” concerning Buchanan and the Southern Agrarians. In response MacLean argued she was the target of a “coordinated and interlinked set of calculated hit jobs” from “the Koch team of professors who don’t disclose their conflicts of interest and the operatives who work fulltime for their project to shackle our democracy.”

Henry Farrell and Steven Teles wrote that “while we do not share Buchanan’s ideology … we think the broad thrust of the criticism is right. MacLean is not only wrong in detail but mistaken in the fundamentals of her account.”

The writers cited in the second and third paragraphs are far better qualified than I am to defend Buchanan’s integrity and ideas. (See “Related Reading”, below.) I will focus on MacLean’s ideas.

Why does MacLean claim that democracy is in chains? In what follows I draw on Alex Shephard’s interview of MacLean for The New Republic. MacLean is especially interested in preserving “liberal democracy”. What is it, according to Maclean? She doesn’t say in the interview, and mentions it only once:

[I]f you block off the political process from answering people’s needs, as the radical right managed to do throughout Barack Obama’s two terms on so many major issues, then people get frustrated. They get frustrated that politics has become so polarized between right and left and they believe that liberal democracy does not work—they start to believe that we need a radical alternative.

MacLean seems to have the same view of “liberal democracy” as her European counterparts. It is a mechanism through which government takes some people’s money, property rights, and jobs to buy other people’s votes. It is democracy only in the sense that a majority of voters can be counted on to demand other people’s money, property rights, and jobs. It confers on “liberal” politicians and their bureaucratic minions the image of being “compassionate”, and enables them to characterize their opponents — people who don’t support legalized theft — as mean-spirited. It is asymmetrical ideological warfare in action, with an unsurprising result: the victory of “liberal democracy”.

This sample of MacLean’s thinking (to dignify her knee-jerk leftism) is consistent with her assumption that she knows what “the people” really want; for example:

On issue after issue you see vast majorities of Republicans who actually agree on some of the fundamental needs of the country: They support a progressive income tax, they want to address global warming, they care about the preservation of Medicare and Social Security as originally construed as social insurance, they care about public education…. But they have been riled up by this apparatus [“radical right” libertarianism], and by very cynical Republican leaders, to support a party that is undermining the things that they seek.

What does the purported (and dubious) existence of “vast majorities of Republicans” have to do with anything? To the extent that there are voters who identify themselves as Republicans and who favor those programs that benefit them (or so they believe), that simply makes them part of the problem: another interest-group trying to spend other people’s money, and thus spending their own because every “favor” requires repayment in the realpolitik of Washington.

Also, as evidenced by many of the items listed below in “Related Reading”, MacLean’s discussion of “the fundamental needs of the country” and how they can best be met is deeply flawed. Further, her generalization about “vast majorities” is dubious given that (a) not a single Republican member of Congress voted for Obamacare but (b) Republicans made large gains in both houses of Congress in the election that followed the enactment of Obamacare.

There’s a bigger problem that MacLean doesn’t seem to grasp or acknowledge, namely, the debilitating effects of “liberal democracy” on liberty and prosperityeveryone’s liberty and prosperity, contrary to MacLean’s “right-wing conspiracy” theory. Even the poorest of today’s Americans would be far better off had the United States not become a “liberal democracy”. As for liberty, social and economic liberty are indivisible; taxation and regulation diminish prosperity and liberty (the ability to choose where one lives, with whom one associates, etc.).

In any event, by MacLean’s logic the demise of liberty and decline of prosperity are acceptable if a majority of the American people want it. Certainly, by the mid-1930s a vast majority of the German people wanted Adolph Hitler to remain in power, and it’s likely that similar majorities of the Russian and Chinese people felt the same way about Stalin and Mao. (The devil you know, etc.) The difference between “liberal democracy” and the totalitarian regimes of Hitler, Stalin, Mao, and their ilk is only a matter of degree.

MacLean would no doubt respond that there is a proper limit on government power, a limit that is respected in a “liberal democracy” but not in a dictatorship. But there is no limit, not even in a “liberal democracy”, except for the limit that those in power actually observe. In the end, it is up to those in power to observe that limit — and they won’t.

The Framers of the Constitution, who understood human nature very well, knew that venality and power-lust would prevail if the new government wasn’t constrained by rigorous checks and balances. (Those words don’t occur in the Constitution, but it is nevertheless replete with checks on the power of the central government and balances of power within the central government and between it and the States.) But the checks and balances have all but disappeared under the onslaught of decades’ worth of unconstitutional legislation, executive usurpation, and judicial malfeasance. The election of Donald Trump — leftist hysteria to the contrary notwithstanding — is all that saved America (temporarily, at least) from its continued spiral into hard despotism. Hillary Clinton would no doubt have redoubled Barack Obama’s penchant for government by executive fiat, given her expansive view of the role of the central government and her own dictatorial personality. (As far as I know, for all the hysteria about Mr. Trump’s supposed “fascism”, he has yet to defy court orders enjoining his executive actions, despite the apparent unconstitutionality of some of the judicial interventions.)

MacLean’s hysteria is badly misplaced. “Liberal democracy” isn’t under siege. Liberty and prosperity are, and have been for a long time. The siege continues, in the form of resistance to Mr. Trump’s administration by legislators, judges, the media, much of the academy, and the usual left-wing rabble. It’s all part of a vast, left-wing conspiracy.

Related reading (listed chronologically):

Jason Brennan, “Conspire Me This: Is Nancy MacLean a Hired Gun for the Establishment?“, Bleeding Heart Libertarians, June 23, 2017 (See grant number FA-57183-13, awarded to MacLean by the National Endowment for the Humanities.)

Russell Roberts, “Nancy MacLean Owes Tyler Cowen an Apology“, Medium, June 25, 2017

Don Boudreaux, Cafe Hayek — begin with “Russ Roberts on Nancy MacLean on Tyler Cowen on Democracy” (June 26, 2017) and continue through dozens of relevant and eloquent posts about MacLean’s outright errors, mental sloppiness, and argumentative slipperiness

David Henderson, “Nancy MacLean’s Distortion of James Buchanan’s Statement“, EconLog, June 27, 2017

Philip W. Magness, “How Nancy MacLean Went Whistlin’ Dixie“, Philip W. Magness, June 27, 2017

Ramesh Ponnuru, “Nancy MacLean’s Methods“, National Review Online, The Corner, June 27, 2017

Johnathan H. Adler, “Does ‘Democracy in Chains’ Paint an Accurate Picture of James Buchanan?“, The Volokh Conspiracy, June 28, 2017 (Adler updates this often)

David Bernstein, “Some Dubious Claims in Nancy MacLean’s ‘Democracy in Chains’“, The Volokh Conspiracy, June 28, 2017

Steve Horwitz, “MacLean on Nutter and Buchanan on Universal Education“, Bleeding Heart Libertarians, June 28, 2017

David Bernstein, “Some Dubious Claims in Nancy MacLean’s ‘Democracy in Chains,’ Continued“, The Volokh Conspiracy, June 29, 2017

Philip W. Magness, “Nancy MacLean’s Calhounite Imagination“, Philip W. Magness, June 29, 2017

Michael C. Munger, “On the Origins and Goals of Public Choice“, Independent Institute (forthcoming in The Independent Review), June 29, 2017

Daniel Bier, “The Juvenile ‘Research’ of ‘Historian’ Nancy MacLean“, The Skeptical Libertarian, July 5, 2017

David Boaz, “Another Misleading Quotation in Nancy MacLean’s ‘Democracy in Chains’“, Cato At Liberty, July 5, 2017

David Bernstein, “Yet More Dubious Claims in Nancy MacLean’s ‘Democracy in Chains’“, The Volokh Conspiracy, July 6, 2017

Michael Giberson, “Fun With Footnotes (A Game of Scholarly Diversity)“, Knowledge Problem, July 9, 2017

David Gordon, “MacLean on James Buchanan: Fake History for an Age of Fake News“, Mises Wire, July 10, 2017

Ilya Somin, “Who Wants to Put Democracy in Chains?“, The Volokh Conspiracy, July 10, 2017

David Bernstein, “Nancy MacLean’s Conspiratorial Response to Criticism of ‘Democracy in Chains’“, The Volokh Conspiracy, July 11, 2017

Don Boudreaux, “Quotation of the Day…“, Cafe Hayek, July 12, 2017

Don Boudreaux, “Nancy MacLean Should Get Back in Touch with Reality“, Cafe Hayek, July 12, 2017

Steve Horwitz, “A Devastating Review of Nancy MacLean’s Book on the Klan“, Bleeding Heart Libertarians, July 12, 2017

Jeffrey A. Tucker, “This Confused Conspiracy Theory Gets the Agrarians All Wrong“, FEE, Articles, July 12, 2017

David Bernstein, “Duke Professor Georg Vanberg on ‘Democracy in Chains’“, The Volokh Conspiracy, July 14, 2017

Henry Farrell and Steven Teles, “Even the Intellectual Left Is Drawn to Conspiracy Theories about the Right.Resist Them.“, Vox, July 14, 2017

Jonathan H. Adler, “‘Why Have So Many Embraced Such an Obviously Flawed Book?’“, The Volokh Conspiracy, July 15, 2017

Sarah Skwire, “MacLean Is Not Interested in a Fair Fight“, FEE, Articles, July 15, 2017

Steven Hayward, “The Scandal of the Liberal Mind“, Power Line, July 16, 2017

Steven Hayward, “When You’ve Lost Rick Perlstein…“, Power Line, July 19, 2017

Jonathan H. Adler, “Nancy MacLean Responds to Her Critics“, The Volokh Conspiracy, July 20, 2017

Charlotte Allen, “They’re Out to Get Her?“, The Weekly Standard, July 20, 2017

Dave Bernstein, “Did Nancy MacLean Make Stuff Up in ‘Democracy in Chains’?“, The Volokh Conspiracy, July 20, 2017

Brian Doherty, “What Nancy MacLean Gets Wrong about James Buchanan“,, July 20, 2017

Arnold Kling, “Nancy MacLean: Ignoring the Central Ethical Issue“, askblog, July 20, 2017

Greg Weiner, “Nancy MacLean’s Ad Hominem Ad Hominem“, Library of Law & Liberty, July 25, 2017

Jon Cassidy, “Render Them Unable: More on Nancy MacLean’s ‘Democracy in Chains’“, The American Spectator, July 27, 2017

Steve Horwitz, “Book Review — Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America“, Cato Journal, September 2017

The Invention of Rights

Negative rights are those rights that do not impose claims against others. Such rights include:

  • freedom from force and fraud (including the right of self-defense against force)
  • property ownership (including the right of first possession)
  • freedom of contract (including contracting to employ/be employed)
  • freedom of association and movement.

A negative right, in sum, is the right to be left alone by others as long as one is not violating the negative rights of others.

Negative rights aren’t self-enforcing, though they may be widely observed through adherence to the Golden Rule. Because negative rights aren’t self-enforcing, it is necessary to provide for government protection of negative rights (though an anarchist would say that it isn’t necessary). Government protection includes:

  • deterrence of rights violations by citizens through swift and sure detection, prosecution, and punishment (including restitution and compensation, where feasible)
  • deterrence of rights violations by non-citizens through armed defense, including the preemption of imminent violations.

Negative rights aren’t free-floating essences that persons possess by the mere act of being alive. Such rights would be “natural rights”, which I have argued do not exist (e.g., here). Negative rights are simply rights that can be recognized and exercised universally within a polity, without imposing a burden on anyone (other than the general burden of enforcement). I emphasize within because negative rights are of no practical value unless they are enforced.

Thus, for example, unlike American citizens who may freely move about within the United States, foreigners do not possess a right to cross into the United States without permission from the government of the United States. Whatever the legal reasons for such a restriction, there is a reason based on the concept of negative rights: Unrestricted immigration imposes costs on at least some Americans (e.g., the payment of taxes to provide schooling and subsidies) even as it may benefit other Americans (e.g., those who benefit from the low wage rates of immigrant laborers).

Positive rights are negative rights turned upside down. They imply claims against others, for the benefit of the “possessors” of positive rights. Some positive rights are compatible with and arise from negative rights, but only in limited circumstances. For example, two persons may enter into a voluntary employment contract. The employer undertakes to pay the employee certain compensation in return for the performance of certain duties. The negative right, freedom of contract, encompasses and legitimates the positive rights mutually conveyed: the obligation of the employee to perform certain duties and the obligation of the employer to pay certain compensation in return.

But positive rights can only coexist with negative rights when the positive rights are created voluntarily by persons who are exercising their negative rights. Where positive rights are created by government action, they necessarily conflict with and nullify negative rights. Returning to the question of illegal immigration: Where there are government-run schools and welfare programs, illegal immigration (and a lot of legal immigration) necessarily forces some taxpayers to support immigrants. That is quite a different thing than a system which would allow immigration only by persons who have demonstrated that they can support themselves, or who are sponsored by persons or organizations that undertake to subsidize the immigrants’ schooling, medical care, training, etc. I must emphasize that the violation of negative rights stems from the existence of government-run schools and welfare programs, the use of which bestows positive rights not only on illegal immigrants but also on many Americans.

In sum:

  • The exercise of a negative right by one person doesn’t demand something of another person, other than forbearance, at times.
  • Negative rights will therefore reflect prevailing social norms; they will not exist in a vacuum or arise without social approbation.
  • Government action may be required to protect negative rights, but they can (and do) exist independently of government action.
  • The exercise of a positive right by one person necessarily demands something of another person.
  • Two or more persons may create positive rights that they, and only they, are obliged to observe.
  • But the creation of a positive right by an outside party (e.g., government) necessarily results in the involuntary (forceful) imposition of demands on persons other than those who exercise the right.

Negative rights are timeless. For example, freedom of association could (and did) exist in the United States of 1789. Its exercise didn’t depend on the size of the nation’s GDP, the existence of public schools, the invention of a cornucopia of beneficial drugs, the existence of automobiles, or any of the other trappings of life in today’s United States.

Positive rights tend to come into existence by force (i.e., government action) only when the means to provide them have come into existence. Thus the “right” to an education (i.e. government-approved indoctrination) arose after the forceful creation of public schools and universities. The “right” to health care came into existence only after the development of a robust, inventive, and effective system of health care in the United States, mainly through voluntary, private action (and despite the dead hand of occupational licensing and death-dealing drug-approval procedures). The “right” to housing came into existence only after do-gooders, politicians, and bureaucrats decided in recent, relatively affluent decades that it should exist … just because. The “right” to free public transportation came into existence only after the invention of the automobile and the creation of government-owned and government-franchised transit systems. And on and on.

All rights are invented. Negative rights arise from social agreement. Positive rights (other than those granted voluntarily by consenting parties) arise from the force of government action. Negative rights are the only ones that can be enjoyed by everyone in a polity at no material cost to anyone else in the polity.

Related posts:
On Liberty
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
The Interest-Group Paradox
Parsing Political Philosophy
Inventing “Liberalism”
Negative Rights
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
“Natural Rights” and Consequentialism
More about Consequentialism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Evolution, Human Nature, and “Natural Rights”
The Meaning of Liberty
Positive Liberty vs. Liberty
The Golden Rule as Beneficial Learning
Rights: Source, Applicability, How Held
Nature Is Unfair
Merit Goods, Positive Rights, and Cosmic Justice
More about Merit Goods
Liberty, Negative Rights, and Bleeding Hearts
Liberty and Society
Liberty as a Social Construct: Moral Relativism?
The Futile Search for “Natural Rights”
Parsing Political Philosophy (II)
More About Social Norms and Liberty
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

Academic Freedom, Freedom of Speech, and the Demise of Civility

A professor has been suspended after claiming that anyone witnessing white people in mortal danger should “let them fucking die.”

Daniel Payne, The College Fix (June 27, 2017)

Predictably, the suspension of the professor — one Johnny Eric Williams of Trinity College in Hartford, Connecticut — and a similar case at Essex County (New Jersey) College caused the usual (left-wing) suspects to defend the offenders and claim that their “academic freedom” and “freedom of speech” were being violated. (Boo hoo.) I will be unsurprised if the ACLU doesn’t weigh in on the side of hate.

This is what happens when the law becomes an abstraction, separate and apart from social norms. There is no better example of the degradation of the law, and of public discourse, than the case of Snyder v. Phelps, which I addressed in “Rethinking the Constitution: ‘Freedom of Speech and of the Press’“. What follows is based on that post.

Contrary to the current state of constitutional jurisprudence, freedom of speech and freedom of the press — and, by implication, academic freedom — do not comprise an absolute license to “express” almost anything, regardless of the effects on the social fabric.

One example of misguided absolutism is found in Snyder v. Phelps, a case recently and wrongly decided by the U.S. Supreme Court. This is from “The Burkean Justice” (The Weekly Standard, July 18, 2011):

When the Supreme Court convened for oral argument in Snyder v. Phelps, judicial formalities only thinly veiled the intense bitterness smoldering among the parties and their supporters. At one table sat counsel for Albert Snyder, father of the late Marine Lance Corporal Matthew Snyder, who was killed in al Anbar Province, Iraq. At the other sat Margie Phelps, counsel for (and daughter of) Fred Phelps, whose notorious Westboro Baptist Church descended upon Snyder’s Maryland funeral, waving signs bearing such startlingly offensive slogans as “Thank God for IEDs,” “God Hates Fags,” and “Thank God for Dead Soldiers.” A federal jury had awarded Snyder nearly $11 million for the “severe depression” and “exacerbated preexisting health conditions” that Phelps’s protest had caused him.

In the Supreme Court, Phelps argued that the jury’s verdict could not stand because the First Amendment protected Westboro’s right to stage their protest outside the funeral. As the Court heard the case on a gray October morning, Westboro protesters marched outside the courthouse, informing onlookers that God still “Hates Fags” and advising them to “Pray for More Dead Soldiers.”

Amidst that chaos, the Court found not division, but broad agreement. On March 2, 2011, it held that Westboro’s slurs were protected by the First Amendment, and that Snyder would receive no compensation, let alone punitive damages, for the emotional injuries that he had suffered. Chief Justice John Roberts wrote the Court’s opinion, speaking for all of his brethren, conservatives and liberals alike—except one.

Justice Samuel Alito rejected the Court’s analysis and wrote a stirring lone dissent. “The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.” Repeatedly characterizing Westboro’s protest as not merely speech but “verbal assaults” that “brutally attacked” the fallen Snyder and left the father with “wounds that are truly severe and incapable of healing themselves,” Justice Alito concluded that the First Amendment’s text and precedents did not bar Snyder’s lawsuit. “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims. .  .  . I therefore respectfully dissent.”

There is more:

Snyder v. Phelps would not be the last time that Alito stood nearly alone in a contentious free speech case this term. Just weeks ago, as the Court issued its final decisions of the term, Alito rejected the Court’s broad argument that California could not ban the distribution of violent video games without parental consent. Although he shared the Court’s bottom-line conclusion that the particular statute at issue was unconstitutional, he criticized the majority’s analysis in Brown v. Entertainment Merchants Association as failing to give states and local communities latitude to promote parental control over children’s video-game habits. The states, he urged, should not be foreclosed from passing better-crafted statutes achieving that legitimate end.

Moreover, Alito’s opinions in those cases followed a solo dissent late in the previous term, in United States v. Stevens, where eight of the nine justices struck down a federal law barring the distribution of disturbing “crush videos” in which, for example, a woman stabs a kitten through the eye with her high heel, all for the gratification of anonymous home audiences.

The source of Alito’s positions:

[T]hose speculating as to the roots of Alito’s jurisprudence need look no further than his own words—in public documents, at his confirmation hearing, and elsewhere. Justice Alito is uniquely attuned to the space that the Constitution preserves for local communities to defend the vulnerable and to protect traditional values. In these three new opinions, more than any others, he has emerged as the Court’s Burkean justice….

A review of Alito’s Snyder, Brown, and Stevens opinions quickly suggests the common theme: Alito, more than any of his colleagues, would not allow broad characterizations of the freedom of speech effectively to immunize unlawful actions. He sharply criticized the Court for making generalized pronouncements on the First Amendment’s reach, when the Court’s reiterations of theory glossed over the difficult factual questions that had given rise to regulation in the first place—whether in grouping brutal verbal attacks with protected political speech; or in equating interactive Duke Nukem games with the text of Grimm’s Fairy Tales; or in extending constitutional protection to the video of women illegally crushing animals. And Alito was particularly sensitive to the Court’s refusal to grant at least a modicum of deference to the local communities and state officials who were attempting to protect their populations against actions that they found so injurious as to require state intervention.

A general and compelling case against the current reign of absolutism is made by David Lowenthal in No Liberty for License: The Forgotten Logic of the First Amendment. My copy is now in someone else’s hands, so I must rely on Edward J. Erler’s review of the book:

Liberty is lost when the law allows “freedom of speech, and of the press” to undermine the social norms that enable liberty. Liberty is not an abstraction, it is it is the scope of action that is allowed by socially agreed upon rights. It is that restrained scope of action which enables people to coexist willingly, peacefully, and cooperatively for their mutual benefit. Such coexistence depends greatly on mutual trust, respect, and forbearance. Liberty is therefore necessarily degraded when courts sunder social restraints in the name of liberty.

Other related posts:
On Liberty
Line-Drawing and Liberty
The Meaning of Liberty
Positive Liberty vs. Liberty
Facets of Liberty
Burkean Libertarianism
What Is Libertarianism?
True Libertarianism, One More Time
Human Nature, Liberty, and Rationalism
Liberty, Negative Rights, and Bleeding Hearts
Why Conservatism Works
Liberty and Society
Liberty as a Social Construct: Moral Relativism?
Defending Liberty against (Pseudo) Libertarians
Defining Liberty
The Futile Search for “Natural Rights”
The Pseudo-Libertarian Temperament
Parsing Political Philosophy (II)
Getting Liberty Wrong
Libertarianism and the State
“Liberalism” and Personal Responsibility
My View of Libertarianism
More About Social Norms and Liberty
The War on Conservatism
Social Justice vs. Liberty
Economically Liberal, Socially Conservative
The Harm Principle Revisited: Mill Conflates Society and State
Liberty and Social Norms Re-examined
Natural Law, Natural Rights, and the Real World
Rescuing Conservatism
If Men Were Angels
The Left and Evergreen State: Reaping What Was Sown

Roundup: Civil War, Solitude, Transgenderism, Academic Enemies, and Immigration

Civil War II

Are Americans really in the midst of Civil War II or a Cold Civil War? It has seemed that way for many years. I have written about it in “A New (Cold) Civil War or Secession?”, “The Culture War“, “Polarization and De-facto Partition“, and “Civil War?“.* Andrew Sullivan, whom I quit following several years ago for reasons that are evident in the following quotation (my irrepressible comments are in boldface and bracketed), has some provocative things to say about the situation:

Certain truths about human beings have never changed. We are tribal creatures in our very DNA; we have an instinctive preference for our own over others, for “in-groups” over “out-groups”; for hunter-gatherers, recognizing strangers as threats was a matter of life and death. We also invent myths and stories to give meaning to our common lives. Among those myths is the nation — stretching from the past into the future, providing meaning to our common lives in a way nothing else can. Strip those narratives away, or transform them too quickly, and humans will become disoriented. Most of us respond to radical changes in our lives, especially changes we haven’t chosen, with more fear than hope. We can numb the pain with legal cannabis or opioids, but it is pain nonetheless.

If we ignore these deeper facts about ourselves, we run the risk of fatal errors. It’s vital to remember that multicultural, multiracial, post-national societies are extremely new for the human species [but they are not “societies”], and keeping them viable and stable is a massive challenge. Globally, social trust is highest in the homogeneous Nordic countries, and in America, Pew has found it higher in rural areas than cities. The political scientist Robert Putnam has found that “people living in ethnically diverse settings appear to ‘hunker down,’ that is, to pull in like a turtle.” Not very encouraging about human nature — but something we can’t wish away, either. In fact, the American elite’s dismissal of these truths, its reduction of all resistance to cultural and demographic change as crude “racism” or “xenophobia,” only deepens the sense of siege many other Americans feel….

… Within the space of 50 years, America has gone from segregation to dizzying multiculturalism; … from homosexuality as a sin [or dangerous aberration] to homophobia as a taboo; from Christianity being the common culture to a secularism no society has ever sustained before ours [but mainly within the confines of the internet-media-academic complex, except where they have successfully enlisted government in the task of destroying social norms]….

And how can you seriously regard our political system and culture as worse than ever before in history? How self-centered do you have to be to dismiss the unprecedented freedom for women, racial minorities, and homosexuals? [How self-centered to you have to be to dismiss the fact that much of that “unprecedented freedom” has been bought at the expense of freedom of speech, freedom of association, property rights, and advancement based on merit — things that are at the very heart of liberty?]….

If the neo-reactionaries were entirely right, the collapse of our society would surely have happened long before now [Strawman alert: How does Sullivan know when “society” would have collapsed?]. But somehow, an historically unprecedented mix of races and cultures hasn’t led to civil war in the United States. [Not a shooting war, but a kind of civil war nevertheless.] … America has assimilated so many before, its culture churning into new forms, without crashing into incoherence. [Strawman alert 2: “America”, note being a “society”, doesn’t have a “culture”. But some “cultures” (e.g., welfare-dependency, “hate whitey”, drugs, political correctness) are ascendant, for those with eyes to see.] [“The Reactionary Temptation“, New York, April 30, 2017]

All in all, I would say that Mr. Sullivan protests too much. He protests so much that he confirms my view that America is smack in the middle of a Cold Civil War. (Despite that, and the fatuousness of Mr. Sullivan’s commentary, I am grateful to him for a clear explanation of the political philosophy of Leo Strauss,** the theme of which had heretofore been obscure to me.)

For other, more realistic views of the current state of affairs, see the following (listed in chronological order):

David French, “A Blue State ‘Secession’ Model I Can Get Behind” (National Review, March 19, 2017)

Daniel Greenfield, “The Civil War Is Here” (Frontpage Magazine, March 27, 2017)

Daniel Greenfield, “Winning the Civil War of Two Americas” (Frontpage Magazine, April 4, 2017)

Rick Moran, “War Between U.S. Government and Sanctuary Cities Heating Up” (American Thinker, April 10, 2017)

Angelo M. Codevilla, “The Cold Civil War” (Claremont Review of Books, April 25, 2017)

Solitude for the Masses

Paul Kingsworth reviews Michael Harris’s Solitude in “The End of Solitude: In a Hyperconnected World, Are We Losing the Art of Being Alone?” (New Statesman, April 26, 2017):

Harris has an intuition that being alone with ourselves, paying attention to inner silence and being able to experience outer silence, is an essential part of being human….

What happens when that calm separateness is destroyed by the internet of everything, by big-city living, by the relentless compulsion to be with others, in touch, all the time? Plenty of people know the answer already, or would do if they were paying attention to the question. Nearly half of all Americans, Harris tells us, now sleep with their smartphones on their bedside table, and 80 per cent are on their phone within 15 minutes of waking up. Three-quarters of adults use social networking sites regularly. But this is peanuts compared to the galloping development of the so-called Internet of Things. Within the next few years, anything from 30 to 50 billion objects, from cars to shirts to bottles of shampoo, will be connected to the net. The internet will be all around you, whether you want it or not, and you will be caught in its mesh like a fly. It’s not called the web for nothing….

What is the problem here? Why does this bother me, and why does it bother Harris? The answer is that all of these things intrude upon, and threaten to destroy, something ancient and hard to define, which is also the source of much of our creativity and the essence of our humanity. “Solitude,” Harris writes, “is a resource.” He likens it to an ecological niche, within which grow new ideas, an understanding of the self and therefore an understanding of others.

The book is full of examples of the genius that springs from silent and solitary moments. Beethoven, Dostoevsky, Kafka, Einstein, Newton – all developed their ideas and approach by withdrawing from the crowd….

Yet it is not only geniuses who have a problem: ordinary minds like yours and mine are threatened by the hypersocial nature of always-on urbanity….

So, what is to be done about all this? That’s the multibillion-dollar question, but it is one the book cannot answer. Harris spends many pages putting together a case for the importance of solitude and examining the forces that splinter it today….

Under the circumstances – and these are our circumstances – the only honest conclusion to draw is that the problem, which is caused primarily by the technological direction of our society, is going to get worse. There is no credible scenario in which we can continue in the same direction and not see the problem of solitude, or lack of it, continue to deepen….

… Short of a collapse so severe that the electricity goes off permanently, there is no escape from what the tech corporations and their tame hive mind have planned for us. The circle is closed, and the net is being hauled in. May as well play another round of Candy Crush while we wait to be dragged up on to the deck.

Well, the answer doesn’t lie in the kind of defeatism exemplified by Harris (whose book is evidently full of diagnosis and empty of remedy) or Kingsworth. It’s up to each person to decide whether or not to enlarge his scope of solitude or be defeated by the advance of technology and the breakdown of truly human connections.

But it’s not an all-or-nothing choice. Compromise is obviously necessary when it comes to making a living these days. That still leaves a lot of room for the practice of solitude, the practice and benefits of which I have addressed in “Flow“, “In Praise of Solitude“, “There’s Always Solitude“, and “The Glory of the Human Mind“.

More about the Transgender Fad

Is the transgender fad fading away, or is it just that I’m spending more time in solitude? Anyway, is was reminded of the fad by “Most Children Who Identify As Transgender Are Faking It, Says ‘Gender Clinic’ Psychiatrist” (The College Fix, April 17, 2017). It’s a brief post and the title tells the tale. So I’ll turn to my own post on the subject, “The Transgender Fad and Its Consequences“. Following a preamble and some long quotations from authoritative analysis of transgenderism, I continue with this:

Harm will come not only to  those who fall prey to the transgender delusion, but also to those who oppose its inevitable manifestations:

  • mandatory sex mingling in bathrooms, locker rooms, and dorm rooms — an invitation to predators and a further weakening of the norms of propriety that help to instill respect toward other persons
  • quotas for hiring self-described transgender persons, and for admitting them to universities, and for putting them in the ranks of police and armed forces, etc.
  • government-imposed penalties for saying “hateful and discriminatory” things about gender, the purpose of which will be to stifle dissent about the preceding matters
  • government-imposed penalties for attempts to exercise freedom of association, which is an unenumerated right under the Constitution that, properly understood, includes the right to refuse business from anyone at any time and for any reason (including but far from limited to refusing to serve drug-addled drag queens whose presence will repel other customers)….

How did America get from the pre-Kinsey view of sex as a private matter, kept that way by long-standing social norms, to the let-it-all-hang-out (literally) mentality being pushed by elites in the media, academy, and government?

I attribute much of it to the capitalist paradox. Capitalism — a misnomer for an economic system that relies mainly on free markets and private-property rights — encourages innovation, entrepreneurship, and economic growth. One result is that a “capitalist” economy eventually produces enough output to support large numbers of persons who don’t understand that living off the system and regulating it heavily will bring it down….

The social paradox is analogous to the capitalist paradox. Social relations are enriched and made more productive by the toleration of some new behaviors. But to ensure that a new behavior is enriching and productive, it must be tested in the acid of use.* Shortcuts — activism cloaked in academese, punditry, and political posturing — lead to the breakdown of the processes by which behaviors become accepted because they are enriching and productive.

In sum, the capitalist paradox breeds the very people who are responsible for the social paradox: those who are rich enough to be insulated from the vicissitudes of daily life, where living among and conversing with similar folk reinforces a distorted view of the real world.

It is the cossetted beneficiaries of capitalism who lead the way in forcing Americans to accept as “natural” and “of right” behavior that in saner times was rarely engaged in and even more rarely flaunted. That restraint wasn’t just a matter of prudery. It was a matter of two things: respect for others, and the preservation of norms that foster restraint.

How quaint. Avoiding offense to others, and teaching one’s children that normal behavior helps them to gain the acceptance and trust of others. Underlying those understood motivations was a deeper one: Children are susceptible creatures, easily gulled and led astray — led into making mistakes that will haunt them all their lives. There was, in those days, an understanding that “one thing leads to another.”…

… If the Kennedy Court of Social Upheaval continues to hold sway, its next “logical” steps  will be to declare the illegality of sexual identifiers and the prima facie qualification of any person for any job regardless of “its” mental and physical fitness for the job….

… [T[he parents of yesteryear didn’t have to worry about the transgender fad, but they did have to worry about drinking, drug-taking, and sex. Not everyone who “experimented” with those things went on to live a life of dissolution, shame, and regret. But many did. And so, too, will the many young children, adolescents, and young adults who succumb to the fad of transgenderism….

When did it all begin to go wrong? See “1963: The Year Zero.”

Thank you for working your way through this very long quotation from my own blog. But it just has to be said again and again: Transgenderism is a fad, a destructive fad, and a fad that is being used by the enemies of liberty to destroy what little of it is left in America.

The Academic Enemies of Liberty

Kurt Schlichter quite rightly says that “Academia Is Our Enemy So We Should Help It Commit Suicide“:

If Animal House were to be rebooted today, Bluto – who would probably be updated into a differently–abled trans being of heft – might ask, “See if you can guess what am I now?” before expelling a whole mass of pus-like root vegetable on the WASPrivileged villains and announcing, “I’m a university – get it?”

At least popping a zit gets rid of the infection and promotes healing. But today, the higher education racket festers on the rear end of our culture, a painful, useless carbuncle of intellectual fraud, moral bankruptcy, and pernicious liberal fascism that impoverishes the young while it subsidizes a bunch of old pinkos who can’t hack it at Real World U….

If traditional colleges performed some meaningful function that only they could perform, then there might be a rationale for them in the 21st Century. But there’s not. What do four-year colleges do today?

Well, they cater to weenies who feel “unsafe” that Mike Pence is speaking to their graduates. Seventy-some years ago, young people that age were feeling unsafe because the Wehrmacht was trying to kill them on Omaha Beach….

And in their quest to ensure their students’ perpetual unemployment, colleges are now teaching that punctuality is a social construct. Somewhere, a Starbucks manager is going to hear from Kaden the Barista that, “I like, totally couldn’t get here for my shift on time because, like intersectionality of my experience as a person of Scandinavianism and stuff. I feel unsafe because of your racist vikingaphobia and tardiness-shaming.”

Academia is pricing itself out of reach even as the antics of its inhabitants annoy and provoke those of us whose taxes already pick up a big chunk of the bill even without the “free college” okie-doke….

The quarter million dollar academic vacation model is economically unsustainable and poisonous to our culture. The world of Animal House was a lot more fun when it didn’t mean preemptive bankruptcy for its graduates and the fostering of a tyrannical training ground for future libfascists. It’s time to get all Bluto on the obsolete boil that is academia; time to give it a squeeze. [Townhall, April 13, 2017]

Cue my post, “Subsidizing the Enemies of Liberty“:

If there is a professional class that is almost solidly aligned against liberty it is the teachers and administrators who control the ideas that are pumped into the minds of students from kindergarten through graduate school. How are they aligned against liberty? Most of them are leftists, which means that they are statists who are dedicated to the suppression of liberty in favor of current left-wing orthodoxies. These almost always include the coddling of criminals, unrequited love for America’s enemies, redistribution of income and jobs toward less-productive (and non-productive) persons, restrictions on speech, and the destruction of civil society’s bulwarks: religion, marriage, and family.

In any event, spending on education in the United States amounted to $1.1 trillion in 2010, about 8 percent of GDP.  Most of that $1.1 trillion — $900 billion, in fact — was spent on public elementary and secondary schools and public colleges and universities. In other words, your tax dollars support the leftists who teach your children and grandchildren to bow at the altar of the state, to placate the enemies of liberty at home and abroad, and to tear down the traditions that have bound people in mutual trust and respect….

And what do tax-paying Americans get for their money? A strong left-wing bias, which is inculcated at universities and spreads throughout public schools (and a lot of private schools). This has been going on, in earnest, since the end of World War II. And, yet, the populace is roughly divided between hard-headed conservatives and squishy-minded “liberals.” The persistence of the divide speaks well for the dominance of nature over nurture. But it does not change the fact that American taxpayers have been subsidizing the enemies of liberty who dominate the so-called education system in this country.

See also “Academic Bias“, “Politics, Sophistry, and the Academy“, “Academic Ignorance“, and John C. Goodman’s “Brownshirts, Subsidized with Your Tax Dollars” (Townhall, May 20, 2017).

The High Cost of Untrammeled Immigration

The third entry in “Not-So-Random Thoughts (XVIII)” is about illegal immigration. It opens with this:

Ten years ago, I posted “An Immigration Roundup”, a collection of 13 posts dated March 29 through September 22, 2006. The bottom line: to encourage and allow rampant illegal immigration borders on social and economic suicide. I remain a hardliner because of the higher crime rate among Hispanics (“Immigration and Crime“), and because of Steven Camarota’s “So What Is the Fiscal and Economic Impact of Immigration?“ [National Review, September 22, 2016].

I suggest that you go to Camarota’s article, which I quote at length, to see the evidence that he has compiled. For more facts — as opposed to leftish magical thinking about immigration — see also “Welfare: Who’s on It, Who’s Not” (Truth Is Justice, April 16, 2017), which draws on

a report called “Welfare Use by Immigrant and Native Households.” The report’s principle finding is that fully 51 percent of immigrant households receive some form of welfare, compared to an already worrisomely high 30 percent of American native households. The study is based on the most accurate data available, the Census Bureau’s Survey of Income and Program Participation (SIPP). It also reports stark racial differences in the use of welfare programs.

I’ll throw in some excerpts:

Needless to say, the percentage of immigrants using some form of welfare varies enormously according to the part of the world from which they come. Rates are highest for households from Central America and Mexico (73 percent), the Caribbean (51 percent), and Africa (48 percent). Those from East Asia (32 percent), Europe (26 percent), and South Asia (17 percent) have the lowest rates….

A majority of native black and Hispanic households are on some form of means-tested welfare, compared to just 23 percent of native white households….

A striking 82 percent of black households with children receive welfare–double the white rate. Hispanic families are not far behind blacks….

Among natives, blacks receive cash handouts at more than three times the white rate; Hispanics at more than twice the white rate. Rates for black and Hispanic immigrants are relatively lower due to often-ignored restrictions on immigrant use of these programs….

Among all households, native blacks and Hispanics receive food handouts at three times the white rate; for Hispanic immigrants, the figure is four times the white rate. Among households with children, nearly all immigrant Hispanics–86 percent–get food aid. Native blacks and Hispanics aren’t far behind, with rates of 75 and 72 percent, respectively.

The takeaway: Tax-paying citizens already heavily subsidize native-born blacks and Hispanics. Adding welfare-dependent immigrants — especially from south of the border — adds injury to injury.

As long as the welfare state exists, immigration should be tightly controlled so that the United States admits only those persons (with their families) who have verifiable offers of employment from employers in the United States. Further, an immigrant’s income should be high enough to ensure that (a) he is unlikely to become dependent on any welfare program (federal, State, or local) and (b) he is likely to pay at least as much in taxes as he is likely to absorb in the way of schooling for his children, Social Security and Medicare benefits, etc.

(See also: Bob le Flambeur, “Against Open Borders“, Rightly Considered, February 8, 2017.)

* Sharp-eyed readers will notice that with this post I am adopting a “new” way of using quotation marks. The American convention is to enclose commas and periods within quotation marks, even where the commas and periods are not part of the quoted text or other material that belongs inside quotation marks (e.g., the title of a post). The American convention creates some ambiguity and awkwardness that is avoided by the British convention, which is to enclose inside quotation marks only that punctuation which is part of the quoted text or other material.

** This is from the article by Sullivan cited in the first section of this post:

[Leo] Strauss’s idiosyncratic genius defies easy characterization, but you could argue, as Mark Lilla did in his recent book The Shipwrecked Mind, that he was a reactionary in one specific sense: A Jewish refugee from Nazi Germany, Strauss viewed modernity as collapsing into nihilism and relativism and barbarism all around him. His response was to go back to the distant past — to the works of Plato, Aristotle, and Maimonides, among others — to see where the West went wrong, and how we could avoid the horrific crimes of the 20th century in the future.

One answer was America, where Strauss eventually found his home at the University of Chicago. Some of his disciples — in particular, the late professor Harry Jaffa — saw the American Declaration of Independence, with its assertion of the self-evident truth of the equality of human beings, as a civilizational high point in human self-understanding and political achievement. They believed it revived the ancient Greek and Roman conception of natural law. Yes, they saw the paradox of a testament to human freedom having been built on its opposite — slavery — but once the post–Civil War constitutional amendments were ratified, they believed that the American constitutional order was effectively set forever, and that the limited government that existed in the late-19th and early-20th centuries required no fundamental change.

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

The Intransitivity of Political Philosphy

Rachel Lu, in an excellent post at The Public Discourse (“How I Learned to Stop Worrying and Love the Libertarian Atheists,” April 5, 2017), writes:

Undergraduates like communism and libertarianism for the same reasons they like utilitarianism and the categorical imperative. These theories are expansive in their reach, claiming to explain every aspect of the universe from the Milky Way to marriage….

Economy notwithstanding, I see low buy-in theories as a poor value. Like cheap appliances, they look neat in the packaging. Once you start trying to use them, it becomes clear that they’re riddled with bugs. When a political or moral view is grounded in just a few conceptually simple premises, the fleshed-out picture never turns out to be either satisfying or plausible….

My few abortive efforts to read Ayn Rand never got very far. Compared to the ancients and medievals, she seemed utterly plebeian, stomping all over subtle realities in clunky too-large boots. That just sealed my conviction that libertarians were simplistic dunderheads who couldn’t handle the complexity of real life….

… When I first ventured into the political sphere, it quickly became evident that libertarians were far more numerous there. They were a genuinely diverse lot, not fitting all my stereotypes. Some offered astute and fairly subtle social critiques. Some combined Hayekian political ideas with more robust moral views, making for a more interesting blend of influences than I had seen in the academy. I lightened up a little on libertarians….

Have I now repented of my grim assessment of libertarianism? Not entirely. I do still think that most libertarians (serious devotees of Rand, for instance) are metaphysically impoverished to some extent….

In the introduction to God and Man at Yale, William F. Buckley expresses gratitude for the help of Albert J. Nock, whom he describes as “a fine essayist whose thought turned on a single spit: all the reasons why one should be distrustful of state activity, round, and round, and round again.”

This is a wonderful description of a type I know well. Libertarians do indeed obsess over the negative ramifications of government interference. It can become exasperating, and at one time it seemed to me like a serious limitation. If your life’s overwhelming obsession is getting Uncle Sam off your back, you may find yourself thin on ideas for what to do with that cherished liberty.

Still, when a mind relentlessly works on a particular set of questions, it may unearth some useful things. Many libertarians (Milton Friedman, for instance) are genuinely brilliant at working through the potential negative ramifications of government involvement in human life….

There is certainly more to human life than repelling the advances of aggressive government. Still, in modern times, the growth of Leviathan does in fact pose a very significant threat to human thriving.

So far, so good. Lu has nailed the kind of simplistic libertarianism of which I long ago became intolerant, to the point that I have rejected the libertarian label.

Lu turns to Trump:

[T]he “Trumpian skeptic” room just kept getting emptier, and emptier, and still emptier. In the end, there was only one group of fellow travelers who reliably proved impervious to the Trumpian allure. They were my old friends, the libertarian atheists….

Obviously, I am generalizing; I still know a great many anti-Trump religious conservatives. I also do not wish to imply that all people who supported Trump, even in a limited way, should be seen as sellouts or opportunists. I understand why some reluctantly voted for Trump, despite grave concerns about his character. Nonetheless, it did really seem that a great many people whom I once viewed as “like-minded” (religious conservatives and intellectuals of a broadly Aristotelian bent) were, in a sense, seduced by Trump. It was excruciating to watch. Most people started tentatively with a “lesser evils” argument, but soon their justifications and even mannerisms made clear that they had given him, not just their votes, but also an alarming measure of loyalty, trust, and even love. Of course, many people had very legitimate concerns about the judiciary, the left’s cultural aggression, and so forth. None of that can fully explain the enthusiasm, which drew people into a complicity that went far beyond what pragmatic concerns alone could justify. The traditionalists felt the tug of Trump’s cultural nostalgia. Also, of course, they hated the political left.

And there you have it: Traditional conservatives oppose simplistic libertarianism; simplistic libertarians oppose Trump (to put it mildly); therefore, traditional conservatives should oppose Trump. But not all of them do. Why not? Because real life isn’t reducible to logic. Logic, in this case, is trumped (pun intended) by hatred for the political left, which seems (with a great deal of justification) to pose a far greater threat to liberty and prosperity than Trumpism (whatever that is).

The Hypocrisy of “Local Control”

There’s much ado among the big-city Democrats of Texas about bills introduced by Republican legislators to ease the burden of city-imposed regulations. The Democrats like to accuse the Republicans of hypocrisy, saying that Republicans are against the federal government telling the States what to do; therefore (the Democrats say), Republicans should be against the government of Texas telling the cities of Texas what to do.

That’s a superficially appealing argument. But what the Republicans are trying to do is keep the cities of Texas from  telling their citizens and businesses what to do, and what not to do. In Austin, for example:

A property owner must have the city’s permission to remove a tree with a diameter greater than 19 inches. The doom-and-gloom scenario is the preposterous one that homeowners will have their trees cut down, which would — among other things — eventually cause more erosion and flooding. Give me a break. It’s costly to cut down trees, and homeowners appreciate their beauty, shade, and value to prospective buyers. A tree comes down only when it’s diseased or in the way of something essential (e.g., an addition to make room for mother-in-law).

Thin plastic bags and flimsy paper bags have been outlawed (with some exceptions). Why? Because the sight of a relatively small number of loose bags offends the greenies and artsy-craftsy crowd. But damn the inconvenience and expense to consumers, who must now carry their purchases in their hands or buy an approved bag if they leave their own approved bag at home. Picking up loose bags is good therapy for greenies and artsy-craftsy types, and an excellent form of community service for Austin’s ample supply of jailbirds.

The city is the monopoly provider of water and electricity to homes and businesses. It overcharges for utilities in order to subsidize the usual causes deemed “worthy” by the city’s left-wing government. And it doesn’t allow utility customers to shop around and buy gas or electricity from low-cost providers.

The city’s government — populated as it is with true believers in AGW — insists on stringent standards for the energy efficiency of new homes and replacement systems for existing homes (e.g., new windows and doors, new HVAC systems). The city, in other words, isn’t content to let property owners decide between investment and operating costs — the city preempts the decision and makes it for property owners.

I could go on, but you get the idea. Austin, like most other big cities, insists on micro-managing the affairs of the persons and businesses within its jurisdiction. Then, when Republican legislators threaten to deregulate something that the city regulates, local politicians appeal to “local control.”

Well, the ultimate in local control is the freedom to do as one wishes with one’s own property — barring actual criminality, of course. Dictation by Austin’s left-wing city council and the hired hands in the city’s various bureaucracies isn’t that kind of local control — it’s local tyranny.

Republican legislators (or some of them) are seeking to liberate me (and others) from local tyranny. It’s no different in kind than the Thirteenth Amendmentan initiative of the federal government — which voided State laws allowing slavery.

A Pledge I Wouldn’t Take

If I wanted to join the Libertarian Party of the United States (and perhaps many or all State parties), I would have to “certify that I oppose the initiation of force to achieve political or social goals.” That’s ridiculous. I would approve the initiation of force to achieve many political and social goals; for example:

The overthrow of an oppressive government of the United States, but only under conditions where success is likely. Otherwise, too many lives would be lost in vain.

Stealthy vigilantism where a known murderer or rapist has escaped justice on a legal technicality (e.g., the failure to give him a Miranda warning). Stealthy so that the vigilantes could execute justice without themselves suffering retribution from an unjust government.

A preemptive military attack on a foreign state or organization that is inimical to Americans, is actively developing plans to harm them, and has or is acquiring the means to execute those plans. This could include instances of great economic harm, such as shutting off a major source of oil or a key trade route.

I wouldn’t join the LP for another reason: It probably drains more votes from GOP candidates than from Democrat candidates. The GOP is far from perfect, but it’s better than the Democrat Party on most issues.


Liberty and Social Norms Re-examined

What is liberty, and why does it depend on the general observance of social norms?

Liberty is not the absence of restraint, whence chaos and depredation flow. Liberty is the presence of mutual restraint based on trust, respect, and forbearance. Where those attributes prevail, a people can coexist peacefully and cooperate beneficially. Cooperation includes not only unremunerated assistance but also the exchange of products and services for mutual benefit, directly or with the use of money.

The state, at best, provides an ambience in which liberty can flourish. It does that by defending citizens from foreign and domestic predators. But the actualization of liberty depends on the institutions of civil society: family, church, community, club, charity, and commercial enterprise. It is those institutions that inculcate social norms, and it the common observance of those norms that creates and sustains mutual trust, respect, and forbearance among a people.

By the same token, a lack of shared norms — especially by outright rejection — fuels mistrust, disrespect, and aggression. How do I know when someone isn’t worthy of my trust, respect, and forbearance? When he habitually signals — by deeds, words, or allegiances — the rejection of social norms.

Here is a rough taxonomy of social norms and their relationship to each other and to liberty:

Taxonomy of social norms

I’ll talk about some of the ways in which leftists undermine and signal their opposition to the norms that enable a functional civil society — one that advances mutual trust, respect, and forbearance. But first I want to make a general point about the power of the state to destroy socializing norms and institutions without overtly abolishing them. Leftists like to portray themselves as anti-authoritarian, but they do so cynically. One of the things that they know (or intuit) is that a vast swath of the populace is morally malleable, so if the state says that something is all right (or verboten) huge numbers of persons will follow suit and say that it’s all right (or verboten). As I once wrote, in a post about same-sex “marriage,”

When the state sends signals about private arrangements, private arrangements tend to align themselves with the signals being sent by the state.

Which is why the left relies heavily on non-electoral means of exerting control, that is, litigation and regulation. There is as much authority in those aspects of governance as there is in the decisions of elected representatives. If five justices of the Supreme Court were to say that the death penalty is unconstitutional, as they have said that homosexual “marriage” should be considered marriage, millions of people will acquiesce, without giving more than a moment’s thought to the broader social implications of either decree.

As the following paragraphs attest, decades-long persistence in such matters has amply rewarded the left’s efforts to transform America fundamentally — for the worse.

Murder. Core norms are widely accepted in America, though inconsistently. Leftists will decry murder and even call for the death penalty when the perpetrator is a white heterosexual and the victims are not. But leftists won’t admit that abortion is murder, that is, the taking of a human life. Moreover, leftists (and not a few misguided conservatives and libertarians) have for more than a century signaled their toleration of murder by opposing capital punishment. A pro-life leftist is someone who believes in sparing criminals and enemy combatants, while killing children in the womb.

Theft. Leftists will say that the prohibition of theft is a core social norm, and that it ought to be observed and enforced by the state. In the next breath, they will defend all manner of state-enforced theft, from Social Security transfer payments to housing subsidies, and then propose more of them (e.g., Universal Basic Income). If you believe that taxation isn’t theft (or worse), consider this. And if you believe that income redistribution at the point of a gun is charity, consider this.

Marriage and divorce. Leftists obviously have no qualms about the destruction of a crucial reinforcing norm: marriage. I have written a detailed defense of traditional marriage as a civilizing and libertarian institution, and a detailed condemnation of same-sex “marriage” as an anti-libertarian innovation. Rather than repeat the arguments of that post, I refer you to it. The bottom line is that the left, in its usual zeal to advance the cause of imaginary victims, has set in motion the destruction of a bulwark of civil society.

The heavy hand of leftism is visible in the adoption of no-fault divorce laws, which work against marital perseverance, which helps to ensure children to be raised by both parents. As Wikipedia puts it, the “Women’s movement effected change in Western society, including … ‘no fault’ divorce.” And where did no-fault divorce first become available? In California, of course.

Sexuality. The LGBTQ movement is a left-wing inspiration, designed mainly to infuriate conservatives and incidentally advance the cause of people whom leftists see as victims. (If the aim of persons who “identify” as LGBT or Q is to be left alone, loud shrillness isn’t the way to go about it.) Left-wing support of such groups — which are really identity groups, not victim groups — serves two purposes. The first is virtue-signaling; the second is goading conservatives into acts that can be portrayed as victim-bashing (e.g., various “bathroom bills”).  More deeply, left-wing support of the LGBTQ movement signals a rejection of civilizing norms, and is meant to erode them further. At the margin, there are many impressionable young persons who will turn their backs on marriage and family and adopt the frivolous, decadent, and too-often-fatal LGBTQ “lifestyle.”

Race. Before the contrived prominence of the LGBTQ “cause,” the left’s favorite victim group was blacks. Early and proper attention to barbarous and unjust practices (e.g., lynchings and denial of voting rights) gave way to the persistent myth that racial inequality is an artifact of slavery and legal segregation. The myth persists because of an obdurate refusal to recognize racial differences in intelligence. In “Race Gaps in SAT Scores Highlight Racial Inequality and Hinder Upward Mobility,” for example,  the authors (researchers at the Brookings Institution, which the media usually describe as center-left) document persistent race differences in IQ, admit that “it is unlikely that the racial achievement gap can be explained away by class differences across race,” but end with “race gaps on the SAT hold up a mirror to racial inequities in society as a whole,” as if those inequalities could be eradicated despite the demonstrably ineradicable intelligence gap. Well, they could be reduced — and are reduced, to some extent — but mainly by stealing money, jobs, and university admissions from whites and East Asians.

And so, billions upon billions of dollars have been wasted on early education, job training, public housing, and welfare payments (the conditions of which have destroyed black families and worsened the unemployment rate among blacks). Racial quotas (called “affirmative action” and “diversity programs”) have penalized better-qualified whites and Asians seeking jobs, promotions, and university admissions — and have also penalized blacks by setting them up for failure (see this, this, and this).

Forced “diversity” is in fact socially divisive, as Maverick Philosopher correctly observes. Then there were the divisive eight years of Obama’s presidency, in which he and his so-called Department of Justice defended black thugs and persecuted white cops. Is it any wonder that blacks and whites probably mistrust each other more than they have since the bad old days of D.W. Griffith’s The Birth of a Nation? Where all of this isn’t directly destructive of social comity, it signals rejection of core and reinforcing norms that make social comity possible.

Drugs. The legalization of marijuana isn’t just an issue for leftists, but they certainly champion legalization as yet another blow for “personal freedom.” The usual response to evidence that marijuana has many undesirable long-term effects is something like “so does alcohol, so why isn’t it illegal?” Well, it’s far too late to prohibit alcohol in the United States (tried and failed), and it’s probably far too late (and futile) to prohibit marijuana.

I’m not a prohibitionist (of alcohol or marijuana), but marijuana should be used knowing the risks associated with its use, just as the risks of alcohol consumption are well known. Instead, the push for “personal freedom” simply dodges the issue of risk by allowing marijuana consumption for medical conditions that apply to only a small fraction of its users.

Leftists will eventually turn on marijuana because it’s used and enjoyed by the unwashed masses (like cigarettes), so they will then campaign to regulate it and curtail its use. Marijuana use, in other words, is just a weapon in the culture war-cum-civil war — another route by which the left attacks and weakens traditional norms and those who stand behind them.

Religion. There’s nothing left to be said about the effort to eradicate religion. The late Justice Scalia called it “freedom from religion” as opposed to “freedom of religion,” which the Constitution guarantees. The ACLU and similar organizations attack expressions of religion at every turn. Those attacks may have the unsought effect of redoubling the devotion of many Americans to liberty-advancing religious principles. But surely, at the margin, the attacks will diminish religious affiliation and the social good that goes with it: true kindness and charity, true tolerance, true forgiveness. (For a discussion of the beneficial effects of religion go here and scroll to “Religion and Liberty.”)

To be against religion is an article of faith for most leftists, who fancy themselves rational and fact-based, despite ample evidence to the contrary. They are, in fact, spoiled children of capitalism engaged in adolescent rebellion. And religion is a favored target of the rebellious adolescent — especially religion of the Judeo-Christian variety, because most leftists were reared in that tradition. Islam, on the other hand, is acceptable because its adherents — who stand against almost everything leftists stand for — are “victims” in the twisted topography of leftist dogma.

Self-reliance. What better way to control people than to make them reliant on you instead of themselves? That’s how drug dealers (at the top of the food chain) make big bucks — until they’re shot or arrested. Dependency on big government is tantamount to dependency on the left, which gratifies a deeply felt need for power. (Fascism is a left-wing phenomenon.) Conservatives treat their children like children, so that those children will become responsible adults. Leftists treat adults like children because it makes them (leftists) feel superior. Though when leftists don’t get their way, they act like children, as they have done since the election of Donald Trump.

The left has devised and implemented many forms of control over the past 80 years. Those forms range from Social Security, Medicare, and Medicaid to food stamps, special deals on housing and mortgages, and rampant regulation of all aspects of the economy. What better way to break the old American habit of self-reliance and personal responsibility — a habit that fosters mutually beneficial cooperation — than to establish government as the go-to arbiter of social and economic relations?

I could relate many personal run-ins with the nanny state, but I will close this discussion by pointing to examples of an especially annoying outrage: “Parents In Trouble Again for Letting Kids Walk Alone” (USA Today, April 13, 2015), “Parents Arrested for Letting their Children Play Outside as America Degenerates into Clinical Insanity” (OffTheGridNews, ca. 2012), and “How Children Lost the Right to Roam in Just 4 Generations” (Free-Range Kids, February 1, 2017). Fortunately, as a child I was not cooped up by the state.

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That’s more than enough of that. The left’s crusade against social norms leads to predatory and destructive behavior and suppresses peaceful coexistence and mutually beneficial cooperation. It is the inevitable result of the culture war that the left has waged for decades:

When social norms — long-established rules of behavior — are sundered willy-nilly the result is a breakdown of the voluntary order known as civil society. The liberty to live a peaceful, happy, and even prosperous life depends on civil society: the daily observance of person X’s negative rights by persons W, Y, and Z — and vice versa. That is so because it is impossible and — more importantly — undesirable for the state to police everyone’s behavior. Liberty depends, therefore, on the institutions of society — family, church, club, and the like — through which individuals learn to treat one another with respect, through which individuals often come to the aid of one another, and through which instances of disrespect can be noted, publicized, and even punished (e.g., by criticism and ostracism). That is civil society, which the state ought to protect, but instead usurps and destroys. Usurping is one of the state’s primary (and illegitimate) functions. The state establishes agencies (e.g., public schools, welfare), gives them primary and even sole jurisdiction in many matters, and funds them with tax money that could have gone to private institutions. Worse, however, is the way in which the state destroys the social norms that foster social harmony — mutual respect and trust — without which a people cannot flourish….

“Thanks” to the signals sent by the state — many of them in the form of legislative, executive, and judicial dictates — we now have not just easy divorce, subsidized illegitimacy, and legions of non-mothering mothers, but also abortion, concerted (and deluded) efforts to defeminize females and to neuter or feminize males, forced association (with accompanying destruction of property and employment rights), suppression of religion, absolution of pornography, and the encouragement of “alternative lifestyles” that feature disease, promiscuity, and familial instability. The state, of course, doesn’t act of its own volition. It acts at the behest of special interests — interests with a “cultural” agenda…. I call them left-statists. They are bent on the eradication of civil society — nothing less — in favor of a state-directed Rousseauvian dystopia from which morality and liberty will have vanished, except in Orwellian doublespeak.

The culture war, which escalated sharply in the 1960s, is a classic case of barbarism vs. civilization. Arnold Kling describes it in The Three Languages of Politics:

[Leftists] use the heuristic of the oppressed-oppressor axis. [They] view most favorably those groups who can be regarded as oppressed or standing with the oppressed. They view most unfavorably those groups who can be regarded as oppressors. [Conservatives] use the heuristic of the civilization-barbarism axis. [They] view most favorably the institutions that they believe constrain and guide people toward civilized behavior, and they view most unfavorably those people who they see as trying to tear down such institutions.

Kling often strains to be even-handed, not only in Three Languages of Politics but in general. (Sample his blog.) Here, I think he is being unduly kind by crediting the left with a concern for the oppressed. That is a superficial interpretation of the left’s championing of “victims,” but the deeper explanation — of which I’ve given many examples — is an attitude of rebellion for rebellion’s sake, coupled with a desire for control. And damn the social and economic consequences, which seem not to occur to (or bother) leftists hell-bent having their way by harnessing the power of the state.

I must therefore revise Kling’s statement of the conservative heuristic, to read as follows: Conservatives view most favorably the voluntary institutions that constrain and guide people toward civilized behavior. And they view most unfavorably those people who they see as trying to tear down such institutions, even if they are doing it unwittingly and for the ostensible objective of helping the “oppressed.”

But leftists will object that the institutions of civil society are often oppressive, or were when they held sway. That objection usually rests on the nirvana fallacy; the institutions do not or did not live up to the left’s idea of perfection. The left’s answer to the “failure” of civil institutions is the enactment of laws, writing of regulations, and promulgation of a judicial decrees. But how often do “reality based” leftists check back to see whether the various government interventions have produced their wanted effects without producing deleterious side effects? I venture to say that the answer is almost never. If leftists were interested in the actual betterment of their fellow Americans, as opposed to controlling them, they would long ago have curbed government spending and regulatory activity, which have stunted economic growth to the detriment of poor and rich alike.

The urge to control is evident in the nascent secessionist movement in California, which has my best wishes for success. Leftists reject constitutional limits on the central government as long as they’re in charge. But confront leftists with a central government that is at least nominally controlled by Republicans (many of whom are actually conservatives) and they want out. (By contrast, my support of secession is meant to restore constitutional limits on the central government by starting over.)

The urge to secede is legitimate, if hypocritical on the part of leftists. Exit, or the threat of it, is an essential element of the evolution of civil society — or would be if it weren’t under the thumb of the state. If you don’t like the policies of an institution to which you belong, you can voice your objections and exit if your objections aren’t met. The smaller the institution, the more likely is voice to be effective. And the smaller the institution, the more likely that there are ready alternatives to it.

Voice and the threat of exit are part of what make voluntary institutions effective. They can and do change gradually through trial-and-error. Even large ones, like the Roman Catholic Church, which has changed over the centuries in ways large and small. And when it changed too much in a “liberal” direction, alternatives arose in the form of various Traditional Catholic organizations.

Leftists evidently lack the disposition toward trial-and-error and compromise that makes for “living” social institutions. They will point to a few extreme examples (e.g., slavery and forced segregation) to make the case for precipitous and overbearing government action. The irony is that slavery and forced segregation were government-backed institutions. Other favorite examples (e.g., child labor and “sweat shops”) usually overlook the voluntary nature of the relationships in question — voluntary because the supposed victims were made better off than they had been before. A modern equivalent is found in the case of Wal-Mart, which doesn’t compensate its employees as well as some other, similar firms (e.g., Costco), but which doesn’t drag people off the street and enslave them. Wal-Mart’s workforce of volunteers is, by definition, better off than it would be in the absence of Wal-Mart, and Wal-Mart’s millions of customers are, too.

The drive to force Wal-Mart to pay higher wages will, in the end, have the same result as the drive to dictate a minimum wage. It will lead to unemployment for people who most need employment, and it will end in the adoption of automated systems to replace human labor.

Similarly, the drive to make America “fairer” by privileging various groups favored by the left will be thwarted by the realities of economics and human nature. Employers who strive to make a profit (unlike government and universities), will do as they have always done: pay lip-service to “equality” while finding ways to hire only the best-qualified employees. And too many of those persons who are temporarily lifted up by affirmative action and “diversity programs” will find themselves on the outside looking in when they don’t measure up to the expectations of demanding professors and profit-seeking employers.

It comes down to this: Leftists start with an idealized view of the world as it should be — socially and commercially. As a result, they see harm where there is actually gain. And in their zeal to make the world right — by their lights — they make it worse.

Dr. John J. Ray, as usual, is most perceptive about the left:

As a good academic, I first define my terms: A Leftist is a person who is so dissatisfied with the way things naturally are that he/she is prepared to use force to make people behave in ways that they otherwise would not….

The essential feature of all Leftism is the desire to stop other people from doing various things they want to do and make them do various things that they do not want to do (via taxation, regulation, mass murder etc.)  When (on October 30, 2008) Obama spoke of his intention to “fundamentally transform” America, he was not talking about America’s geography or topography.  He was talking about transforming what American people can and must do.  So that is the first and perhaps the most important thing about Leftism:  It is intrinsically authoritarian.

Leftists are not alone in desiring to regulate others, however, so to complete the definition, we have to look at other things that characterize them.

The first remaining thing to say about them is that Leftism is emotional.  The second is to say that the emotion is negative and the third thing to say is that the negative emotion (usually anger/hate/rage) is directed at the world about the Leftist, at the status quo if you like.  The Leftist is nothing if he is not a critic, though usually a very poorly-informed critic.  And the criticisms tend to be both pervasive and deeply felt.

Orwell of course understood Leftism exceptionally well so it is revealing that in 1943 he wrote an essay called “Can Socialists Be Happy?”  His answer was that they can’t even imagine it….

While defining Leftism in terms of their apparent drives and motivations is undoubterdly true and useful, it doesn’t provide a really sharp differentiation of the Left from others.  And I think we can improve on it.  And to do that I think we have to refer to the natural state of affairs.  “The natural state of affairs”?  What is that?  It is a concept sometimes used in both law and economics but I want to broaden its applicability.  I think it is actually quite easy to define in a generally applicable way.  It means whatever people would do in the absence of external constraints….

So I think we can now make a pretty sharp distinction between the changes Leftists want and the changes that conservatives want. Leftists want change AWAY from the natural state of affairs while conservatives want changes TOWARDS the natural state of affairs — or at least changes that respect the natural state of affairs.

For “natural state of affairs” read “social norms that underlie liberty.”

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Related:Social Norms and Liberty” and the many posted listed there

The Harm Principle Revisited: Mill Conflates Society and State

John Stuart Mill is the father of modern liberalism, though he is usually thought of as a proponent of classical liberalism. The mistake arises from Mill’s harm principle, enunciated in his long essay On Liberty (1869). It is the sand upon which liberalism (classical and modern) is built:

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

This seemingly libertarian principle is in fact anti-libertarian, as I explain at length in “On Liberty.” In that post I focus on harm. As I say there,

the only plausible interpretation of the harm principle is as follows: An individual may do as he pleases, as long as he does not believe that he is causing harm to others. That is Mill’s prescription for liberty. It is, in fact, an invitation to license and anarchy.

In this post I turn to Mill’s definition of society. Here is Mill again:

Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. [Chapter I, paragraph 5]

But here’s the rub. Who decides when the “tyranny of prevailing opinion and feeling” is too oppressive? The state.

“State” is nothing more than an impressive-sounding word that really denotes the amalgam of elected and non-elected officials who wield governmental power. There are those who say that the state embodies the nation, which is like saying that the lion-tamer embodies the lion. The state most certainly is not society, but it is has the power to be far more tyrannical than society’s “prevailing opinion and feeling.”

Recourse to the power of the state has become the first resort of individuals and groups who object to prevailing opinion and feeling. And when the state meddles with prevailing opinion and feeling it creates new grievances, which produce resistance and resentments that splinter the nation rather than unite it.

What kinds of prevailing opinion and feeling could be so oppressive that their effects must be undone by the oppressive state? Mill devotes Chapter IV of On Liberty to examples of oppression, but they are examples of state action at the behest of sectarian and moralistic interests. Mill conflates society and state, which is excusable in 19th century England, where nation and society were far more congruous than they are in 21st century America.

At any rate, Mill says that

the likings and dislikings of society, or of some powerful portion of it, are thus the main thing which has practically determined the rules laid down for general observance, under the penalties of law or opinion. [Chapter I, paragraph 7]

And opinion, in Mill’s view, becomes inimical to liberty when it is converted into law and bars such things as music, dancing, drinking, the expression of unpopular views, and free trade. In sum, On Liberty should be read as a warning against statist oppression at the behest of powerful factions. Though, as I show in “On Liberty,” it also — and contradictorily — can be read as a justification for behavior that subverts civilizing norms which underlie liberty.

But no matter, the harm principle lives on in the minds of leftists as a justification for using the power of the state to overturn norms of which they disapprove, while it also serves as a justification for anti-social behavior of which they approve. They are faux-individualists because their penchant for governmental intervention against social norms in the name of liberty actually results in the diminution of liberty.

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Related reading: Theodore Dalrymple, “The Simple Truth about J.S. Mill’s Simple Truth,” Library of Law and Liberty, July 20, 2015

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Related posts — everything listed at “Social Norms and Liberty,” but especially “On Liberty” and
The Meaning of Liberty
Facets of Liberty
The Pseudo-Libertarian Temperament
Romanticizing the State
“We the People” and Big Government
Liberty and Social Norms Re-examined

Misunderstanding the Problem

In “How Statistics Lost Their Power — and Why We Should Fear What Comes Next” (The Guardian, January 19, 2017), William Davies asserts that

statistics should help settle arguments. They ought to provide stable reference points that everyone – no matter what their politics – can agree on. Yet in recent years, divergent levels of trust in statistics has become one of the key schisms that have opened up in western liberal democracies. Shortly before the November presidential election, a study in the US discovered that 68% of Trump supporters distrusted the economic data published by the federal government….

Rather than diffusing controversy and polarisation, it seems as if statistics are actually stoking them. Antipathy to statistics has become one of the hallmarks of the populist right, with statisticians and economists chief among the various “experts” that were ostensibly rejected by voters in 2016. Not only are statistics viewed by many as untrustworthy, there appears to be something almost insulting or arrogant about them. Reducing social and economic issues to numerical aggregates and averages seems to violate some people’s sense of political decency….

The declining authority of statistics – and the experts who analyse them – is at the heart of the crisis that has become known as “post-truth” politics. And in this uncertain new world, attitudes towards quantitative expertise have become increasingly divided. From one perspective, grounding politics in statistics is elitist, undemocratic and oblivious to people’s emotional investments in their community and nation. It is just one more way that privileged people in London, Washington DC or Brussels seek to impose their worldview on everybody else. From the opposite perspective, statistics are quite the opposite of elitist. They enable journalists, citizens and politicians to discuss society as a whole, not on the basis of anecdote, sentiment or prejudice, but in ways that can be validated. The alternative to quantitative expertise is less likely to be democracy than an unleashing of tabloid editors and demagogues to provide their own “truth” of what is going on across society.

And yada yada yada.

Davies views the world through the lens of the policy-maker, who believes that he can fine-tune the interests of millions of people and arrive at policies that deliver the “greatest amount of happiness for the greatest amount of people.” This is nothing more than utilitarianism — the arrogant doling out of other people’s money — which is antithetical to liberty.

Here’s why “populists” are up in arms about statistics: They don’t like to be pushed around, and they can smell b.s. a mile away. Social statistics are malleable things. In the hands of pundits and politicians they are cherry-picked and smoothed and slanted in favor of one-size-fits-all “solutions” to perceived problems. The result usually is that a lot of people get burned by those “solutions.” Take Obamacare, please!

The real solution to most “social” problems isn’t more and better statistics, it’s smaller and less powerful government.

That’s what all the fuss is about, Mr. Davies.

Read on:
The Greatest Good of the Greatest Number?
The Interest-Group Paradox
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
Accountants of the Soul
Rawls Meets Bentham
Utilitarianism and Psychopathy
Governmental Perversity
Utilitarianism vs. Liberty (II)
Social Justice vs. Liberty

Politics, Personality, and Hope for a New Era

“Liberals” are more neurotic than conservatives. That is, “liberals” have a “tendency to experience unpleasant emotions easily, such as anger, anxiety, depression, and vulnerability.” This is consistent with what I have observed of family members, friends, and co-workers over a span of more than 50 years.

Anxious persons are eager to sacrifice better but less certain outcomes — the fruits of liberty — for “safe” ones. Anxious persons project their anxieties onto others, and put their trust in exploitative politicians who play on their anxieties even if they don’t share them. This combination of anxieties and power-lust yields “social safety net” programs and regulations aimed at reducing risks and deterring risk-taking.. At the same time, American “liberals” — being spoiled children of capitalism — have acquired a paradoxical aversion to the very things that would ensure their security: swift and sure domestic justice, potent and demonstrably ready armed forces.

Conservatives tend toward conscientiousness more than liberals do; that is, they “display self-discipline, act dutifully, and strive for achievement against measures or outside expectations.” (This paper summarizes previous research and arrives at the same conclusion about the positive correlation between conscientiousness and conservatism.) In other words, conservatives (by which I don’t mean yahoos) gather relevant facts, think things through, assess the risks involved in various courses of action, and choose to take risks (or not) accordingly. When conservatives choose to take risks, they do so after providing for the possibility of failure (e.g., through insurance and cash reserves). Confident, self-reliant conservatives are hindered by governmental intrusions imposed at the behest of anxious “liberals.” All that conservatives need from government is protection from domestic and foreign predators. What they get from government is too little protection and too much interference.

Liberty — secured by swift domestic justice and a strong national defense — abets social comity and informed risk-taking, which is the life-blood of prosperity. “Liberalism” has almost extinguished liberty in America, but its feeble pulse has shown signs of strength since January 20, 2017. I can live with the bombast of Trump’s utterances, with higher labor costs, and some restrictions on imports if those things are part of a package deal that includes the reversal of the Supreme Court’s “liberalism,” the emasculation of the EPA, an end to government-sponsored warmist-pandering, significant deregulation, the end of Obamacare, smaller and cheaper government on the domestic front, respect and support for the police who daily put their lives on the line, larger and more potent armed forces, an “America First” foreign policy, and the end of “social justice” as an animating force in government policy.