Is the State Necessarily Paternalistic?

Correspondence with a reader about my post, “The Feds and ‘Libertarian Paternalism’,” leads me to this observation:

The state is not paternalistic per se. The state acts paternalistically when it forces or incentivizes its citizens to behave in certain ways. But the state is not acting paternalistically when it shields its citizens and enables them to behave as they will, in accordance with the harm principle as it is properly understood (see below).

Related definitions:

paternalism – the attitude (of a person or a government) that subordinates should be controlled in a fatherly way for their own good

shielding – the act of shielding from harm

Eternity Road Takes It Up Several Notches

Francis W. Porretto, proprietor of Eternity Road, takes my humble post of yesterday (“Utopian Schemes“) and builds upon it a towering edifice of erudition and logic. Go there and read the whole thing. I’m still digesting it, and I may — or may not — have more to say on the subject.

Utopian Schemes

In the preceding post I referred to anarcho-capitalism. Anarcho-capitalism rests on the utopian proposition that peace and liberty can reign in a stateless world in which human beings freely contract with each other for all goods and services, including justice and defense. But admitting that justice and defense might be necessary is tantamount to admitting that peace and liberty might not reign, that there are renegades — potentially powerful ones — who are uninterested in peaceful cooperation, free markets, property rights, and all the rest of it. From there it is but a step to imagine that such renegades might prevail. And it is but another step to acknowledge that they have prevailed in many places and at many times, up to and including the present.

Anarcho-capitalism is not the only utopian worldview, of course. Consider this definition of utopian: “The ideals or principles of a[n] . . . idealistic and impractical social theory.” Communism and socialism also fit that definiton. The difference between anarcho-capitalism, on the one hand, and communism and socialism, on the other hand, is that communism and socialism have reigned in some places and at some times. But they have reigned in name only; like anarcho-capitalism, pure communism and pure socialism are idealistic and impractical.

And it is practicality that matters, not imaginary schemes based on implausible assumptions about human nature. Most persons know instinctively that anarcho-capitalism is nothing but a pipe dream, an ideology not worth their time and attention. Anarcho-capitalism (like its close relative, Objectivism) is mainly the refuge of naïfs, cranks, malcontents, and persons under the age of 25 who are still searching for “the meaning of life.” Anarcho-capitalism, in other words, can actually harm the cause of liberty to the extent that it is mistaken for realistic libertarianism.

What is realistic libertarianism? It is Hayekian classical liberalism, which focuses on the maximization of liberty under the aegis of a state that dispenses justice and provides for the common defense. (See this, this, and this, for example.) Our most realistic hope for living in something close to a state of classical liberalism is the realization of the principles of the Constitution of the United States. Those principles more or less held sway for 120 years, until the advent of the “progressive” movement about 100 years ago.

Is the Constitution a perfect statement of libertarian principles? No. Are the principles the Constitution still attainable in practice? Perhaps not entirely. But the Constitution still says what it says — its words cannot be obliterated. It is therefore a realistic and practical project to restore something like constitutional government to the United States. As I suggested in the preceding post, we may be only a Supreme Court justice or two away from beginning to undo the damage of the past 100 years.

What Is the American Constitution?

I recently came across an essay written by Donald J. Boudreaux in 1998: “What Is the American Constitution?” Boudreaux — who is now a co-blogger at the excellent Cafe Hayek and its companion, Market Correction, and also serves as chairman of the Department of Economics at George Mason University — wrote the essay when he was president (1997-2001) of the Foundation for Economic Education.

Boudreaux is an idealistic libertarian who, in my reading of him, seems to be an anarcho-capitalist (a.k.a. stateless capitalist). Eerily, “What Is the American Constitution?” parallels the views of Roger Scruton — a conservative, statist, monarchist, skeptic of free markets — as expressed in his The Meaning of Conservatism, which I am now reading. (I won’t say more about Scruton’s book until I’ve finished it.)

Here I comment on several excerpts of Boudreaux’s essay. In the end I offer a much different view of the American constitution than that offered by Boudreaux.

I begin with Boudreaux’s thesis:

The constitution is neither a document nor the collection of words in a document. Instead, the constitution is the dominant ideology within us, an ideology that determines what we permit each other to do, as well as what we permit government to do. No words on parchment, regardless of the pedigree of that parchment or of the men and women who composed those words, will ever override the prevailing belief system of the people who form a polity.

Boudreaux suggests that the constitution is only what “we” allow each other to do. But “we” are, to a large extent, bound by the decrees of government (popular or not) and government’s ability to enforce those decrees. That there is not a one-to-one linkage between the “prevailing belief system” of the people and what the people are allowed to do (or not do) can be seen, for example, in the imposition of integration in the South, the legalization of abortion, and the collection of taxes to support for several years what had become an unpopular war in Vietnam.

Moreover, it is far from clear that there is a “prevailing belief system” that enables “us” to agree about what “we permit each other to do, as well as what we permit government to do.” Can there be such a monolith in a republic whose citizens are so heterogenous in ethnicity, religion, education, economic status, social status, intelligence, and exposure to the arguments for and against free markets (to name only a few aspects of dissimilarity)? I doubt it. There may be general agreement about such matters as the wrongness of murder and theft, but that general agreement does not translate to a national consensus about what constitutes murder or theft, or how (or whether) they should be punished. (Consider, for example, the disparate ways in which murder and theft are parsed in the laws of the States, the equally disparate sentences that may be applied to those various degrees of murder and theft, and the broad latitude exercised by prosecutors and juries in their application of the law.) The meaning of liberty (and how best to secure it) is similarly surrounded in discord. Thus we inevitably fall back on government as the means by which to reach and enforce compromises about what we permit each other to do and what we permit government to do.

Let us return to Boudreaux, as he discusses the disparity between the written Constitution and the de facto constitution:

We have at hand ready proof that the constitution is ideology rather than words in a document. Read the document popularly called “the Constitution” and ask if it accurately describes the law of the land. Your answer will almost certainly be no. That document clearly gives to the national government only very limited powers for example, to coin money, to operate post offices, and to supply national-defense services. Today, however, Washington knows almost no restraints on how deeply its regulatory arms reach into the lives of American citizens. No species of economic regulation is off-limits to the national government. Likewise, Washington routinely and without a whiff of apology exercises governmental powers clearly intended by the framers of the Constitutional document to be reserved to each state.

Of course, the de facto constitution does not and cannot represent a coherent ideology, for the reasons discussed above. Like the written Constitution, the de facto one represents a compromise among varied interests. It has been shaped willy-nilly by generations of elected and appointed government officials, for the benefit of the shifting coalitions of special interests that have enabled those governors to govern. FDR, for example, was not elected because he promised to nationalize the means of production and institute socialistic schemes — but that is what he tried to do after he was elected. A majority (but never a super-majority) of citizens then rallied around FDR out of desperation and in the false belief that his methods were effective.

Boudreaux nevertheless tries to salvage a role for “prevailing ideology”:

Those instances in which the Constitutional document has teeth (such as the First Amendment’s prohibition of government interference with the press) are those instances in which the prevailing ideology of the American people happens to correspond with what’s written in the Constitutional document. But in those many instances when the prevailing ideology runs counter to the text of the Constitutional document, the document is toothless.

The apparent survival of freedom of the press has little to do with prevailing ideology, such as it is, and much to do with political power — not the power of “the people” but the power of special interests. Freedom of the press is fiercely defended by parties with a strong interest in the enforcement of that prohibition (e.g., the press and the liberal elites for whom the press is a mouthpiece), and by courts eager to check executive power. By the same token, a provision of the Constitution that might seem to be of interest to the people — namely the First Amendment’s prohibition of governmental interference with political speech — has been gutted by campaign-finance “reform” in the service of the nation’s most powerful special interest group: members of Congress. (I have just demonstrated public choice theory, which has several proponents and exponents among GMU’s economics faculty.)

Returning to Boudreaux:

In the past, when I got furious at the government for doing things clearly prohibited by the Constitutional document, I would declare “That’s unconstitutional!”

I was wrong. Those innumerable government actions that are at odds with the Constitutional document as well as with the principles of a free society are in fact constitutional. These actions are constitutional because the constitution is the actual legal framework of our society—and the actual legal framework in America today grants to government extraordinarily vast powers for intruding into the lives of peaceful people.

And yet, if President Bush were to appoint one or two more Supreme Court justices in the mold of John Roberts and Samuel Alito, the government might suddely find itself with fewer of those “extraordinarily vast powers.” The successful appointment of another Roberts or Alito would come about not through the osmotic application of a mythical “prevailing belief system” but, rather, through politics as usual (e.g., public relations “blitzes,” horse-trading with Democrat senators, and the enforcement of party discipline among Republican senators.)

Boudreaux proceeds to a hypothetical illustration of the power of “prevailing ideology”:

[A]sk what would happen if Congress enacted legislation banning interstate travel by Americans. Can you imagine Americans today respecting such an odious statute? Of course not despite the fact that the Constitutional document does not explicitly prevent Congress from passing such legislation. To avoid enforcement of this statute we wouldn’t have to wait to throw from office the bums who enacted it. Because of the prevailing American ideology, which is hostile to such legislation, this statute would be a nullity from the moment the President signed it.

Here, Boudreaux conjures another Prohibition. He appeals (if only subconsciously) to the popular but misguided notion that Prohibition didn’t work. In any event, Prohibtion, which lasted for 13 years, resulted from a century-long campaign against the consumption of alcoholic beverages. It wasn’t a sudden, broadly unpopular legislative whim of the type suggested by Boudreaux’s example.

There would have to be strong but far from unanimous support for a ban on interstate travel (e.g., among environmentalists, their allies on the Left, and paternalistic politicians of the McCain-Feingold ilk), which such ban would certainly grant exceptions for certain interest groups (e.g., truckers and bus companies). Lobbying and clever media campaigns could do the rest. In any event, even legislation that is not broadly popular will be honored broadly (if not by everyone) if it is seen to be enforced. (Consider, for example, the integration of Southern schools and the registration of black voters, both of which came to be the rule rather than the exception in spite of broad popular opposition to those measures.)

In any event, Boudreaux’s resort to an extreme and implausible example tells us nothing about the piecemeal subversion of the Constitution, which owes little to a mythical prevailing ideology and much to leadership, opportunism, political alliances, elite opinion, lobbying, media manipulation, interest-group log-rolling, pork-barrel legislation, judicial fiat, and the “followership” tendencies of most Americans.

Boudreaux next exalts the power of ideas:

It follows that ideas matter enormously. Ideas, not words, are the principal ingredient of the American constitution. If ideas change, so does the constitution. And the only way really to change the constitution is to change the ideas accepted by the great swath of citizens.

Yes, it does matter if ideas change. But it especially matters whose ideas change, and whose interests are served by adopting new ideas. I refer you to the final paragraph of the preceding discussion.

Boudreaux closes with this:

Liberty cannot be secured by asking its foe-the state-for more respect. Liberty cannot be secured at ballot boxes or in courtrooms. Liberty must reside in the hearts of people if it is to reign. And the only way that liberty can find its way into the hearts of people is through the promulgation and circulation of the ideas of liberty. In these ideas lies liberty’s only hope.

The promulgation of the right ideas is necessary but far from sufficient. Anti-statist ideas have gained much respectability in America since the advent of Ronald Reagan, but I cannot see that we have gained liberty as a result. Elected and appointed officials who are dedicated to liberty must come to the fore and lead the way. And then we must be lucky enough to avoid, for a very long time, another Great Depression or similar national trauma, so that the idea of liberty can sink deep roots and withstand the attempts of demagogues and power-hungry politicians to diminish liberty by appealing to fear and building coalitions of anti-liberty interests.

What, then, is the American constitution? It is whatever our governors make it out to be, regardless of the written Constitution. The people, by and large, seem willing to acquiesce in almost any unwritten constitution, as long as they retain the illusion that their particular interests are being served. Most Americans harbor that illusion because they focus on the special benefits which with their votes are bought, while failing to grasp the very high price they pay (in money and liberty) for the benefits received by others. Contrary to the proponents of campaign-finance “reform,” the money that corrupts politics flows from the governors to the governed, not the other way around.

It will take more than ideas to reform the unwritten constitution so that it passingly resembles the written one. It will take acts of moral courage and leadership. Those acts must come mainly from generations that have yet to enter the political arena. And those generations must embrace liberty in spite of the misconceptions, propaganda, and outright lies that emanate from the media, the academy, special-interest organizations, the vocal Left, and — most of all — from the governing classes, the elites whose agenda they serve, their entourages, and their constituencies.

In the meantime, the best we can hope for is another good Supreme Court justice, or two.

The Price of Liberty

Justin Logan, one of Cato Institute’s nay-sayers, asks: “What Would You Rather Have, The War in Iraq or $1,075?” He notes, “That’s how much you’ve spent on it so far.”

Well, I know his answer: He’d rather have the $1,075. That’s because he’s one of those paleo-libertarians who’d rather wait until he sees the whites of his enemy’s eyes, that is, until it’s too late.

My answer: I’d rather have a successful war in Iraq, even if it costs me a lot more than $1,075. World War II cost the average American more than $20,000 in today’s dollars, not to mention the vastly greater number of casualties inflicted on American forces in that war than in Iraq.

Regardless of what paleo-libertarians and their Leftist allies may think, the war in Iraq is a facet of a larger effort to defeat terrorism, in part by neutralizing its state sponsors. It is not an exercise to slake the blood-lust or power-lust of the Bush-Cheney-Rumsfeld axis.

It is imperative to win in Iraq, just as it is imperative to keep the airways safe, even if that means inconveniencing travelers. Terrorists win when they kill us, not when we thwart them. They certainly do not win when a flight is diverted or canceled, as whiners and scoffers (of all political stripes) would have it.

The Meaning of Conservatism: A First Reaction

I am reading Roger Scruton’s The Meaning of Conservatism. I have finished the first two chapters. There is, thus far, much with which I agree and that I have said already: here and here, for example.

That is all for now. I will say no more about the book until I get deeper into it. Perhaps not until I finish it and have mulled it thoroughly.

An Opportunity for Libertarian Relevance

Republicans should do the wise thing and back the Libertarian Party’s candidate for Tom DeLay’s seat, as Don Luskin suggests. Such a move — if successful, or nearly so — might encourge the LP to follow some sage advice and back those major-party candidates who are closest to their views, instead of wasting time and money by running LP candidates, who are almost always doomed to defeat. A Republican-LP rapprochement would be good for the libertarian cause, in that it would push the Republican Party back toward its limited-government tradition. Only die-hard libertarian purists could object.

The Feds and "Libertarian" Paternalism

President Bush today signed into law the Pension Protect Act of 2006. Why the federal government — or any government in the U.S. — is in the business of regulating and insuring pension plans is another whole story, as they say. (See this for a general treatment of the erosion of the Constitution’s meaning. See this about liberty of contract, which applies to the States.)

In reading McGuireWoods’s detailed summary of the act, I am especially struck by this:

The Internal Revenue Service (“IRS”) has permitted automatic enrollment of employees in 401(k) plans since 1998. The PPA adds a number of provisions to the Code and ERISA to facilitate and encourage automatic enrollment.

A victory of sorts for “libertarian paternalists.” A defeat for liberty and, in particular, liberty of contract and the right to make decisions and learn from their consequences.

Related post: Another Voice Against the New Paternalism (with links to several other related posts)

Taking On Torture

There is a reason for the United States to abjure torture. That reason can be summarized thusly: We could allow torture in exigent circumstances (e.g., to save the life of a kidnapped child who has been buried in a sealed container, where the perpetrator is in custody and is unwilling to disclose the child’s location). But if we do that, it is likely that the precedent will result in the use of torture in circumstances where an innocent person is tortured to no avail.

As an answer to that objection, there is Alan Dershowitz’s proposal to legitimate and regulate torture (as summarized at Wikipedia):

Although [Dershowitz] claims to be personally against the use of torture, he believes that authorities should be permitted to use non-lethal torture in a “ticking bomb” scenario, regardless of whether international law permits it, and that it would be less destructive to the rule of law to regulate the process than to leave it up to the discretion of individual law-enforcement agents. Under his proposal, the government would not be allowed to prosecute the torture subject based upon information revealed under that interrogation method. “If torture is going to be administered as a last resort in the ticking-bomb case, to save enormous numbers of lives, it ought to be done openly, with accountability, with approval by the president of the United States or by a Supreme Court justice”. [A CNN interview of Dershowitz on this subject is here.]

Relatedly, Tom Bevan of the RealClearPolitics Blog writes about an exchange between Charles Krauthammer and Michael Kinsley:

Last December Charles Krauthammer argued the following in a Weekly Standard cover story:

However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information). And once you’ve established the principle, to paraphrase George Bernard Shaw, all that’s left to haggle about is the price. In the case of torture, that means that the argument is not whether torture is ever permissible, but when–i.e., under what obviously stringent circumstances: how big, how imminent, how preventable the ticking time bomb.

Michael Kinsley responded the following week, calling Krauthammer’s argument a case of “salami-slicing:”

You start with a seemingly solid principle, then start slicing: If you would torture to save a million lives, would you do it for half a million? A thousand? Two dozen? What if there’s only a two-out-of-three chance that person you’re torturing has the crucial information? A 50-50 chance? One chance in 10? At what point does your moral calculus change, and why? Slice the salami too far, and the formerly solid principle disappears.

If the reports out of Pakistan are true [that Pakistan used torture to develop the intelligence that led to the breakup of the plot to take down 10 UK-U.S. flights], this theoretical debate just became much more interesting, because we now have a very real slice of salami. If more than four thousand lives were saved as a direct result of intel obtained using torture, does that make it justified? I think it’s clear what Krauthammer would say. But what about Kinsley? Are four thousand innocent lives a big enough slice of salami for him?

Krauthammer seems to subscribe to something along the lines of Dershowitz’s proposal. Kinsley does not, because he is worried about proportionality. In Kinsley’s case, the proportion must be, say, tens of potential victims saved for every act of torture. That’s akin to the foolish notion that it is better that ten [or 100] guilty persons escape than that one innocent suffer. But, as I put it here,

Better for whom? It’s better for the guilty, who may claim more victims, but certainly not better for those victims. [See also this post.]

With respect to torture, the right proportion, under the right circumstances, is one to one. Why should the life of, say, one kidnapped child be sacrificed because we are unwilling to condone the torture of one known perpetrator? Where’s the morality in that?

It seems to me that given the circumstances now surrounding the United States, we should openly adopt a policy along the lines of Dershowitz’s proposal, as opposed to posturing piously about torture à la John McCain.

Other related post: A Rant about Torture

If Liberty Depends on Democracy, We’re Doomed to Slavery

Seven dwarfs more famous than US judges: poll

NEW YORK (Reuters) – Three quarters of Americans can correctly identify two of Show White’s seven dwarfs while only a quarter can name two Supreme Court Justices, according to a poll on pop culture released on Monday.

Democracy is “Government by the people, exercised either directly or through elected representatives.” LIberty is “Freedom from unjust or undue governmental control.” Yet, as we know very well, “the people’s representatives” have piled one and another form of unjust and undue governmental control on us since the advent of TR and his cousin, FDR.

The conflation of “democracy” and “liberty” must stop. They are most decidedly not the same thing.

Two Views of Liberty

1. The purist:

Liberty — the right to do as one wishes as long as one does not harm others — is an inherent right, something that humans are born with. Therefore, no one need prove than liberty is superior to statism or other totalitarian philosophies (e.g., Islamism). Liberty would reign in a world of statelessness, where all relations and transactions are consensual.

2. The realist:

The precise contours of liberty depend very much on agreement about harms, which are defined through politics (interpersonal and intergroup bargaining). Liberty, thus defined, is sustained by defending it politically and, as necessary, with force. The justification for liberty (or more rather than less of it) depends very much on evidence that it is superior to statism or other totalitarian philosophies.

Not all nations and peoples subscribe to the notion of liberty. Those who do must be prepared defend it against those who do not, even to the point of acting preemptively. Moreover, the government of a nation must be prepared to defend liberty over the objections of some of its citizens — and by means that not all will applaud.

Liberty — like economic and scientific achievements — requires leadership as well as cooperation, it does not simply “happen.” The ideal world of stateless consent is just that: an ideal. The real world is fraught with predators, persons of ill will (e.g., persons whose allegiance is to party rather than nation), and dupes. Predators succeed in crushing liberty where a nation’s politics are dominated by dupes and persons of ill will.

Related: Consent of the Governed and the many posts linked therein, especially these:

Practical Libertarianism for Americans (links to a series; see especially The Origin and Essence of Rights)
The Meaning of Liberty (a series gathered in a single post)
Actionable Harm and the Role of the State
Varieties of Libertarianism

Also: Com-Patriotism and Anti-Patriotic Acts

Com-Patriotism and Anti-Patriotic Acts

This post isn’t about compatriots, who are persons who happen to be citizens of the same nation. This is about com-patriots — persons who happen to be citizens of the same nation and who share a moral commitment to the defense of that nation and its ideals. This post is necessarily also about anti-patriots — citizens who do not evidence the same moral commitment. The nation in question, of course, is the United States.

What, then, is American com-patriotism? I begin with this definition of patriotism:

Love of and devotion to one’s country.

Which I expand to get American com-patriotism, which is decidedly not mere flag-waving. It is:

A devotion to the ideals of life, liberty, and property, to which the nation was dedicated by the Declaration of Independence.

An understanding that the attainment of the Declaration’s ideals is served through the Constitution’s essential principles: (a) a limited role for government in the affairs of citizens; (b) mutual defense of the life, liberty, and property of citizens.

Defense of the nation’s ideals against enemies — foreign and domestic — by upholding the principles of the Constitution.

There are many legitimate ways by which a citizen may contribute to the defense of the nation’s ideals; for example: reasoned questioning of the aims, policies, and actions of government; honorable service in the armed forces; or reasoned challenges to those who seek to use the levers of government to deprive their citizens of liberty and property. Such are com-patriotic acts.

But it is not com-patriotic to speak or act in blatant disregard of the nation’s founding ideals and principles of governance; for example:

It is reprehensible to publish in The New York Times (or any other newspaper) detailed accounts of various necessarily secret efforts to combat terrorism. (Some would, with justification, call it treasonous.)

It is hypocritical to profess love of country and then to oppose efforts to combant terrorism — without offering feasible alternatives — simply because you abhor Republicans generally and the Republican president particularly.

It is arrogant of the fat-cats who inhabit Congress to cry crocodile tears about the plight of this year’s fashionable underdog, and then to make that underdog’s supposed plight yet another excuse for assuming powers not granted by the Constitution — at the expense of all diligent non-underdogs.

It is abhorrent that the justices of the U.S. Supreme Court subvert the clear meaning of the Constitution, as they acquiesce in the arrogance of Congress and commit their own feats of arrogance, solely for the purpose of assuaging their personal (non-legal) preferences) and in complete disregard of the rule of law.

Such acts endanger the lives, liberty, and property of peaceable, honorable Americans. Such acts flout the Constitution. They are not to be tolerated. They must be called what they are: anti-patriotic. That is what I will call them at every opportunity.

Related reading: American Exceptionalism (Wikipedia), Points of No Return (Eternity Road)

Wisdom from Roger Scruton

Roger Scruton, if you haven’t heard of him, is a conservative English philosopher. I first came across Scruton through his book of essays, Untimely Tracts. Marvelous reading. Scruton is witty, erudite, and articulate — everything one would expect of graduate of Jesus College, Cambridge. He is, moreover, bitingly and devastatingly iconoclastic about the idols of the Left. Nor does he spare conservatives and libertarians.

In any event, I recently found a speech given by Scruton two years ago, “An Englishman Looks at American Conservatism in the New Century.” In the course of the speech Scruton says that

the underlying purpose of left-wing argument is not to conserve existing things but to destroy them. It is always so much easier to find arguments against the imperfect customs of human society than arguments in favour of them, and so much easier to posture as the virtuous champion of the underdog than as the prudent defender of social hierarchy and other such ‘permanent things’.

What is neo-conservatism, really? Here is Scruton’s take:

When Irving Kristol, Norman Podhoretz, Midge Decter and Gertrude Himmelfarb first staked out what came to be known as the neo-conservative position it was very obviously an attempt to repossess the European cultural inheritance, and to reaffirm for a secular community the moral values of the Judaeo-Christian tradition. It was a belated endorsement of the culture that was taken so much for granted by the Founding Fathers that it never occurred to them to make explicit that the Constitution was premised on it.

He talks about conservatism, American foreign policy, and the war in Iraq:

For me, the true conservative approach in international relations is that adopted by the paleo-conservatives – namely to do whatever is required by the national interest, but to leave others to their fate. However, I also think that leaving others to their fate is not always in the national interest. The September 11th attacks awoke America to the existence of enemies that it had neglected to uncover and therefore failed to destroy. Whether it was right or wrong to invade Iraq, I believe that the motive for the invasion was one that all conservatives – whether neo or paleo, American or European – could endorse, namely a perception that the national interest required it. That perception may have been wrong. But it was not so obviously wrong that a responsible president could merely choose to ignore it – as Mr. Clinton chose to ignore the persistent threats from al-Qa’eda during his presidency.

The difficulty for American foreign policy is that America is always held to a much higher standard than any other country. To be precise, America is required always to have some other motive than self-interest when it goes to war, and is therefore compelled – in the forum of world opinion – to justify its belligerence in terms of benefits conferred on others. We invaded Iraq, the President will find himself saying, in order to bring law, rights and democracy to a people which had suffered under tyranny. We will do what is necessary to confer these benefits, and then we will withdraw. It is somehow not acceptable to world opinion – though it would be perfectly acceptable to me, as an English conservative – for the President to say ‘we invaded Iraq in order to destroy a tyrant who presented a real threat to our security. Having destroyed him we will leave, and allow Iraqis to get on with their lives’. It is not American conservatism that has led to a foreign policy of democratic internationalism, but the tyranny of liberal opinion, which won’t allow to America what every other country claims by right, namely, the freedom to make war in the national interest. America is allowed to make war, but only in the international interest, as this is defined by liberals.

As for “world opinion”:

As the world’s most successful country, the place where almost all its critics want to live and whose generosity all its enemies are determined to enjoy, America occupies a large place in the envy and aspiration of the world’s people. Americans believe that people will therefore love them. In fact it means that people will hate them. Human nature is so framed that, unless rescued by a large dose of humility, people will hate those who possess what they covet. They will destroy what they cannot create. And the sight of freedoms enjoyed by a people who seem to have no special entitlement to them, other than being born in the right place at the right time, gets up the nose of snobs, failures and fanatics everywhere.

Toward the end, Scruton returns to the meaning of “conservatism”:

Conservatism, as I understand it, means maintenance of the social ecology. Individual freedom is a part of that ecology, since without it social organisms cannot adapt. But freedom is not the sole or the true goal of politics. Conservatism and conservation are in fact two aspects of a single long-term policy, which is that of husbanding resources. These resources include the social capital embodied in laws, customs and institutions; it also includes the material capital contained in the environment, and the economic capital contained in a free but law-governed economy. The purpose of politics, in my view, is not to rearrange society in the interests of some over-arching vision or ideal, such as equality, liberty or fraternity. It is to maintain a vigilant resistance to the entropic forces that erode our social and ecological inheritance. The goal is to pass on to future generations, and if possible to enhance, the order and equilibrium of which we are the temporary trustees.

Agree with Scruton or not, you will learn from him. You will learn not just because he sometimes supplies arguments that buttress your beliefs, but also because he challenges your beliefs and forces you to consider them more carefully.

Slopes, Ratchets, and the Death Spiral of Liberty

In describing the baneful influence of state action on the general welfare, I sometimes invoke the slippery slope, which is

an argument for the likelihood of one event or trend given another. Invoking the “slippery slope” means arguing that one action will initiate a chain of events that will lead to a (generally undesirable) event later. The argument is sometimes referred to as the thin end of the wedge or the camel’s nose.

That is to say, once a polity becomes accustomed to relying on the state for a particular thing that could be done better through private action, it becomes easier for that polity to ask the state to do other things that could be done better through private action.

Another metaphor for the rising path of state power is the ratchet effect,

the commonly observed phenomenon that some processes cannot go backwards once certain things have happened, by analogy with the mechanical ratchet that holds the spring tight as a clock is wound up.

As people become accustomed to a certain level of state action, they take that level as a given. Those who question it are labeled “radical thinkers” and “out of the mainstream.” The “mainstream” — having taken it for granted that the state should “do something” — argues mainly about how much more it should do and how it should do it, with cost as an afterthought.

Perhaps the best metaphor for the phenomenon I’ve been discussing is the death spiral. Reliance on the state creates more problems than it solves. But, having become accustomed to relying on the state, we then rely on the state to deal with the problems caused by our previous decisions to rely on the state. That only makes matters worse, which causes us to rely further on the state, etc., etc. etc.

More specifically, unleashing the power of the state to deal with matters best left to private action has diminished the ability of private actors to deal with problems and to make progress, thereby fostering the false perception that state action is inherently superior. At the same time, the accretion of power by the state has created dependencies and constituencies, leading to support for state action in the service of particular interests. Coalitions of such interests resist efforts to diminish state action, while supporting efforts to increase it. Thus the death spiral.

Can we pull out of the spiral? Not unless and until resistance to state action — especially in the domestic sphere — becomes much stronger than it is. It cannot be merely intellectual; it must be conjoined to political power. Which brings me back to my advice to the Libertarian Party:

Don’t run LP candidates for office — especially not for the presidency. Throw the LP’s support to candidates who — on balance — come closest to espousing libertarian positions. Third parties — no matter how they’re packaged — just don’t have staying power, given the American electoral system. The LP’s only hope of making progress toward libertarian ideals is to “sell” its influence to the highest bidder.

Cato Institute’s Bill Niskanen has offered similar advice. Libertarians must heed it.

We will not pull liberty out of its death spiral simply by shouting “halt.” This is no time for fastidiousness. The “best” cannot be attained until we pass through “better,” “much better,” and “very good.” The time to start is now, before the death spiral becomes irreversible. If it’s not already too late.

Kelo Revisited

Larry Kudlow comments about Kelo, in light of two recent decisions by the supreme courts of Oklahoma and Ohio:

Kelo was a dreadful decision.

It had anti-private property rights, anti-capitalist and anti-growth stains all over it, and the political system is repudiating it (as it should) just about everywhere.

Oklahoma’s Supreme Court repudiated it, now comes Ohio’s highest court, in addition to almost twenty states which have passed laws protecting property rights.

To put it simply: Kelo was un-American.

Kelo, in case you need a reminder, was decided by the U.S. Supreme Court in its October 2004 term. A 5-4 majority of the Court (led by Justice John Paul Stevens) upheld the right of the City of New London, Connecticut, to condemn private property for redevelopment. The majority’s rationale, in brief:

The city’s redevelopment plan serves a public purpose under the “takings clause” of the Fifth Amendment because the plan enables the city to generate higher tax revenues.

The Court should defer to the judgment of the States and their political subdivisions as to what constitutes a public purpose. (The majority wrote that “For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.”)

In other words, the “takings clause” does not really apply to the States.

Not only is Kelo un-American — in the best, libertarian sense of that term — it is flat wrong. Note, for instance, the logical inconsistency in the majority’s finding. If the propriety of takings really is a matter for States to decide — as the majority would have it — there was no need for the Court to enter a judgment about the compliance of New London’s condemnation with the Fifth Amendment. All the Court needed to do was to upheld the City of New London’s actions, without determining their appropriateness under the “takings clause.”

Some libertarian commentators (e.g., here and here) have gone so far as to argue that Kelo was rightly decided because it upholds the principle of federalism. I wonder how they feel about Dred Scott?

Kelo was wrongly decided, in part, because Barron v. Mayor & City Council of Baltimore (1833), was wrongly decided. In that case, Chief Justice John Marshall opined that the Fifth Amendment is not binding on the States. As I explain here, the Fifth Amendment (all of it) was meant to apply to the States as well as to the federal government. Kelo also was wrongly decided because the meaning of the “takings clause” has been corrupted. As Justice Clarence Thomas wrote in his dissent from the Kelo majority,

. . . I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property.

Given all that, it is wrong for the U.S. Supreme Court to defer routinely to the takings of State and local governments, as if those takings are not a matter for federal scrutiny under the Fifth Amendment. Further, it is incumbent on the U.S. Supreme Court to reject takings by State and local governments whenever those takings are not for actual public use of property.

The Kelo majority shirked its constitutional duty when it deferred to the City of New London’s blatant seizure of private property for a private use. The majority’s opinion was nothing but a flimsy pretext to favor the collective over the individual and to flout property rights.

Consent of the Governed

A common view among anarcho-libertarians is that the Constitution of the United States is not a binding “social contract” — and never has been — because

the Constitution was imposed on many Americans who were not parties to its ratification or who opposed its ratification, and

regardless of the circumstances of the adoption of the Constitution, one generation cannot impose a contractual obligation on later generations.

I have addressed those objections before, but I have further thoughts.

As to the first objection: Consensus on any set of complex issues is impossible. But why should that prevent a majority from imposing its rules on a commingled minority whose adherence to the rules is necessary to the attainment of their purpose? If that purpose is to establish a regime which fosters liberty — requiring, among other things, a commitment to mutual defense — it would be foolish for the majority to lessen its commitment to liberty for the sake of assuaging the minority. Opponents of the regime cannot claim to be oppressed if the regime allows them to express their opposition peacefully, which the Constitution does.

Moreover, the original Constitution became effective only when ratified by three-fourths of the signatory States (nine of the twelve States that sent delegates to the Constitutional Convention). And it bound only the ratifying States. The other three States (plus Rhode Island, which did not send delegates to the Constitutional Convention) could have refused to ratify it — as New Hampshire, Virginia, New York, and Rhode Island nearly did — and could therefore have remained outside the Union. (Click here for a chronology of the States’ ratifications.)

As to the second objection: The Constitution allows for amendments. (Click here and scroll down to Article V.) An amendment may be proposed by two-thirds of both houses of Congress or a two-thirds of the delegations of the States meeting in convention. An amendment must be approved by three-fourths of the States. The only matter now beyond amendment is “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” In other words, the Constitution can be changed by essentially the same process by which it was adopted: three-fourths of the States must agree to an amendment. But, thankfully, the Constitutions cannot be changed easily, in response to whims and passions that might diminish the Constitution’s guarantees of liberty.

So, yes, one may object to the Constitution, one may refuse to concede its legitimacy, and one may object to being forced by the state to abide by it. But here’s the catch: Such objections and reservations are valid only to the extent that the Constitution actually deprives one of liberty. Inasmuch as it does not do that (except in the fevered minds of anarcho-libertarians), and inasmuch as it fosters liberty, such objections are nothing more than irresponsible tantrums masquerading as a political philosophy.

Most of us are glad of the Constitution and accept it as a bulwark of liberty. The anarcho-libertarian alternative is anarchy, which is a way-station to warlordism and dictatorship. I fail to understand why a small (crackpot) minority should be relieved of its false sense of oppression so that all of us might “enjoy” the “benefits” of anarchy.

For more about the impossibility of peaceful, libertarian anarchy, read these posts:

Defense, Anarcho-Capitalist Style
But Wouldn’t Warlords Take Over?
My View of Warlordism, Seconded
The Fatal Naïveté of Anarcho-Libertarianism
Anarcho-Libertarian ‘Stretching’
QandO Saved Me the Trouble

An essential ingredient of anarcho-libertarianism is the non-aggression principle, which I address here:

Libertarian Nay-Saying on Foreign and Defense Policy
Libertarianism and Preemptive War: Part I
Right On! For Libertarian Hawks Only
Understanding Libertarian Hawks
More about Libertarian Hawks and Doves
Sorting Out the Libertarian Hawks and Doves
Libertarianism and Preemptive War: Part II
Give Me Liberty or Give Me Non-Aggression?
More Final(?) Words about Preemption and the Constitution
“Peace for Our Time”
Idiotarian Libertarians and the Non-Aggression Principle

Contrary to anarcho-libertarians, liberty is not an essence that wafts from heaven to imbue our souls. It is a set of compromises about how we live with each other. To more deeply explore the meaning of liberty and the proper role of the state in assuring it, read these posts:

Practical Libertarianism for Americans (links to a series)
The Meaning of Liberty (a series gathered in a single post)
Actionable Harm and the Role of the State

Finally, there is Varieties of Libertarianism, which summarizes and compares the tenets of anarcho-libertariansim (or anarcho-capitalism as it is usually called) and the other main branches of libertarianism.

Idiotarian Libertarians and the Non-Aggression Principle

There’s an internecine brawl in progress about libertarianism and war. It began with a post by Ilya Somin at The Volokh Conspiracy. It has spread to a post by Jonathan Wilde at Catallarchy, to which I have added my comment. I have written many relevant posts on the subject. (Check out the links here, and see especially this, this, this, this, this, and this.)

A typical “idiotarian libertarian” view of war appears in the first comment about Ilya Somin’s post; viz.:

I don’t actually understand how someone can call themselves libertarian and be pro-war.

Think about it. Being absolutely against war means being against self-defense. What the commenter means, I guess, is that a central principle of libertarianism is non-aggression,

which holds that “aggression” — which is defined as the initiation of physical force or the threat of such upon persons or their property — is inherently illegitimate. The principle does not preclude retaliation against aggression.

The non-aggression principle — in the hands of idiotarian libertarians — puts non-aggression (a means) above the end (liberty). The non-aggression principle works only among those who agree to observe it and to accept an enforceable penalty when they fail to observe it. That’s why it’s barely relevant to domestic affairs and completely irrelevant with respect to international relations.

Liberty, Human Nature, and the State

Liberty — simply defined — is the ability to do as one wishes, as long as one does not harm others. It follows that the members of a society can enjoy liberty only to the extent that each of them refrains from doing harm to the others. The exercise of such mutual restraint requires that each member of society must

1. agree to the same definition of harm; and

2. trust that other persons will not harm him, so that (a) he is not tempted to act pre-emptively against them or (b) he is not quick to decide that he has been harmed when there is ambiguity about the intent of effect of another’s actions; and

3. given 1 and 2, be unwilling to do harm to other persons, out of (a) respect or affection for them, (b) a desire for respect or affection from them, or (c) empathy for them; or

Alternatively, given condition 1 (an agreed definition of harm), each member of society must

4. be deterred from causing harm by the likelihood of being punished.

Conditions 1, 2, and 3 are the pillars of civil society — a society that regulates itself and operates without interference by a state. The fragility of civil society can be seen in the fragility of the conditions for its existence. There is no room in those conditions for

5. disagreement about harm, except to the extent that members of society are willing to compromise their views in return for something of value from others (e.g., respect, affection, mutual defense).

6. persons who are untrusting, untrustworthy, sociopathic, or unempathic.

But, given the likelihood of conditions 5 and 6, it is futile to expect civil society to arise absent condition 4. And condition 4 cannot arise as an agreement among all members of society as long as conditions 5 and 6 persist. (Anarchists and anarcho-capitalists seem blind to this contradition, which is inherent in their philosophies.)

Society therefore quickly devolves into a “warre of every man against every man,” or at least a war of faction against faction. Or it does so unless enough “men” band together to impose upon all a uniform definition of harms and a state that is capable of enforcing that definition. “Enough” may be a majority or even a super-majority, but it is unlikely ever to be a consensus. Human nature is too varied for that.

The best one may hope for, then, is a state that is (a) accountable to all members of society (even those who do not endorse its ruling faction or its existence) and (b) liberal (in the old, anti-statist meaning of that word). Minarchism prescribes such a state. It follows, therefore, that minarchism is the only viable libertarian philosophy.

A New Constitution, Revised Again

I have further revised my re-write of the Constitution of the United States. You can read the whole thing at “A New Constitution.”

Another blogger once said of such efforts that

[a]ll the Constitution really needs is some well-placed “And we mean it!” clauses:

–The Ninth Amendment…and we mean it!

—Privileges or Immunities…and we mean it!

–Taking property only for public use…and we mean it!

And so on.

Maybe abolish the well-intentioned but subsequently corrupted Necessary & Proper Clause, clarify the meaning of “regulate” in the Commerce Clause to return it to its intended denotation (i.e., “to make regular,” or “to standardize”) and of “commerce” to “that which is not agriculture or manufacturing” (i.e., trade).

The rest is all bells and whistles.

Not quite. The devil, as they say, is in the details. The main problem with the Constitution is not what it means but what meanings can be imputed to it because of its vagueness and ambiguity. What the Constitution really needs is a lot of loophole-closing and more checks on Congress and the Supreme Court, both of which have subverted and twisted the Constitution’s intended meanings.

My “new Constitution” is not only far more specific than the original — and more restrictive of the powers of government — but it also includes more checks on those powers. Specifically, there is this provision in Article V:

A judgment of any court of the United States of America may be revised or revoked by an act of Congress, provided that such any revision or revocation is approved by two-thirds of the members of each house and leads to a result that conforms to this Constitution.

Then there is Article VII, Conventions of the States, which opens with this:

Delegations of the States shall convene every four years for the purpose of considering revisions to and revocations of acts of Congress and/or holdings of the Supreme Court of the United States of America. Such conventions (hereinafter “convention of the States”) may revise and/or revoke any act or acts and/or any holding or holdings, in the sole discretion of a majority of State delegations present and voting.

Read the whole thing.

Certain Unalienable Rights . . .

. . . that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Whatever your view of the origin of rights or the necessity of a state, today is a day to reflect on the central argument of the Declaration of Independence:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

That argument remains as valid today as it was 230 years ago. It is time for a constitutional convention to redeem the promise of liberty made in the Declaration of Independence.

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