The Eclipse of “Old America”

This is the second installment of a series that explores the true nature of liberty, how liberty depends on society, how society (properly understood) has been eclipsed by statism and its artifacts, and how society — and therefore liberty — might re-emerge in the United States. In this installment, I take up the first of several possible objections to my model of a society’s essence and workings. This series will close with a blueprint for the restoration of society and liberty.

If you have not read the first installment, “Liberty and Society,” I recommend that you do so before you continue. This post addresses the following question: Is Society, as I define It, Impossible? Or, Isn’t This All Rather Romantic?

The answers are “no” and “no.” All that the existence of a society requires is the general observance of the Golden Rule. This is not difficult in relatively small communities.

You will have known such a community if you have ever lived or spent much time in a rural or semi-rural village, or in an urban enclave consisting of persons bound by ethnic or religious affiliation. Everyone may not know everyone else in such a community, but the circles formed by common bonds (family, church, etc.) are interlocking. (And a lot of the community’s members will “know of” almost everyone in the community.)

One result of this kind of living is less anti-social behavior and outright crime, but without a lot of formal rules and regulations or more than a token police presence. (Anonymity not only fosters crime but also rudeness, as is evident in comment threads, e-mail exchanges, and behavior on the highway.) Another result is genuine charity, based on direct knowledge of persons who are in need, or a sense of community with them.

Do such communities know unkindness, conflict, and crime? Of course, but to suggest or demand otherwise is to be deluded or to demand impossible perfection. It should be good enough that such communities — where they still exist — are better places in which to live than the mostly anonymous urban complexes that now dominate America.

The United States, for a very long time, was a polity whose disparate parts cohered, regionally if not nationally, because the experience of living in the kind of small community sketched above was a common one. Long after the majority of Americans came to live in urban complexes, a large fraction of the residents of those complexes had grown up in small communities.

This was Old America — and it was predominant for almost 200 years after America won its independence from Britain. Old America‘s core constituents, undeniably, were white, and they had much else in common: observance of the Judeo-Christian tradition; British and north-central European roots; hard work and self-reliance as badges of honor; family, church, and club as cultural transmitters, social anchors, and focal points for voluntary mutual aid. The inhabitants of Old America were against “entitlements” (charity was real and not accepted lightly); for punishment (as opposed to excuses about poverty, etc.); overtly religious or respectful of religion (and, in either case, generally respectful of the Ten Commandments, especially the last six of them); personally responsible (stuff happens, and it is rarely someone else’s fault); polite, respectful, and helpful to strangers (who are polite and respectful); patriotic (the U.S. was better than other countries and not beholden to international organizations, wars were fought to victory); and anti-statist (even if communitarian in a voluntary way). Living on the dole, weirdness for its own sake, open hostility to religion, habitual criminality, “shacking up,” and homosexuality were disgraceful aberrations, not “lifestyles” to be tolerated, celebrated, or privileged.

It is now de rigeur to deride the culture of Old America, and to call its constituents greedy, insensitive, hidebound, culturally retrograde, and — above all — intolerant. But what does that make the proponents and practitioners of the counter-culture of the ’60s and ’70s (many of whom have long-since risen to positions of prominence and power), of the LGBT counter-culture that is now so active and adamant about its “rights,” and of recently imported cultures that seek dominance rather than assimilation (certain Latins and Muslims, I am looking at you)?

These various counter-culturalists and incomers have not been content to establish their own communities; rather, they have sought to overthrow Old America. Intolerance is their essence. They are not merely reacting to the intolerance that may be directed at them. No, they are intolerant, and militantly so. They seek to destroy what is left of Old America. — and they have enlisted the power of the state in that effort.

Has Old America receded just because its enemies have enlisted the power of the state? Not entirely. There was (and is) also a collective-action phenomenon at work, and it began while Old America was dominant. Americans prospered with the rise of industrialization after the Civil War. But industrialization led to greater productivity in agriculture (thus fewer farm workers per unit of output) while demanding more workers in factories, and thus putting in motion America’s long march toward urban anonymity and away from rural and semi-rural communities. That march led to the New America, where governmental power, geographic displacement, and cultural intermarriage have diluted (and often destroyed) the social norms that bound Old America.

These changes, once put in motion, were bound to continue (unless interrupted by a shock or massive social change) because of path dependence: decisions made in the present are constrained by decisions made in the past. Quite simply, the possibility of quitting the urban scene for rural splendor — however attractive in theory — was closed to most Americans by economic reality, that is, the necessity of making a living and the perceived necessity of doing as well as the urban Joneses. And, worse, the values of Old America simply could not (and cannot) be replicated in New America, given its reliance on governmental power and widespread rejection of the values of Old America.

On that point, I interject a personal note: I have, in my adult life, lived in semi-rural splendor. And I can tell you that it has much to commend it as a way of life, especially as a way of life for one’s children. And I can tell you, also, that living in semi-rural splendor — despite the generally lower cost of living — does require the acceptance of a lower standard of living than that enjoyed by the urban Joneses. Most Americans who recognize and pine for the virtues of rural and semi-rural life, cannot realize those virtues except vicariously on vacation trips or upon retirement, when small towns, small cities, and retirement enclaves beckon.

At any rate, the eclipse of Old America owes much to the bad guys — especially leftist “educators,” so-called intellectuals, and politicians who have conspired with intolerant minorities in the effort to overthrow Old America. But Americans who long for the Old America must also blame themselves and their forbears for its eclipse because of urbanization — a (mostly) voluntary movement. Nothing could demonstrate more starkly the saying that “There ain’t no such thing as a free lunch.”

All of the foregoing might lead you to think that I am incurably pessimistic about the possibility of a resurgence of Old America. I am not. For what I have said, up to this point, is merely prologue. For one thing, somewhere between 20 and 30 percent of Americans still live in rural and semi-rural places. (See the statistics and definitions on this page of Census.gov.) Nor has the core of Old America has shrunk; it is relatively smaller than it was in, say, 1900 — but it is absolutely larger. In fact, the number of persons living in a rural place (defined by the Census Bureau as having a population of less than 2,500), grew from 46 million in 1900 to 59 million in 2010. And in 2010, another 30 million persons lived in a so-called urban cluster (a place with a population of at least 2,500 and less than 50,000).

Of course, not all of the 59 to 89 million persons represent Old America. But surely a lot of them do; and a lot of urban dwellers long for Old America. Just look at the number of States that are Red and getting Redder, despite predictions of a permanent Democrat (i.e., leftist) majority. Have adherents of Old America been let down by Republicans? Of course they have. Have some adherents of Old America been tempted to join the statist brigade, and sometimes succumbed to temptation? Of course they have. But would Old America prevail, and attract new followers were those who preach its values to hold sway in Washington long enough and securely enough to stay true to those values? Of course it would.

Before I leave this topic, I must address the fallacy, propounded by “liberals” and libertarians, that a return to Old America would mean a return to the bad old days of Jim Crow and subservient women. Such a claim is nothing more than a smear on liberty-lovers. “Liberal” fascists have no shame and will resort to any distortion of truth and logic that might help them to retain their hold on power. Libertarians — I should say, pseudo-libertarians — have proved themselves no better. But they, at least, are powerless.

Would the resurgence of Old America transform America into a society? Of course not. A society, as I have described it, cannot be as extensive as a nation the size of the United States. But the resurgence of Old America would enable societies to flourish again in America, and those societies — with their many common values — would form the backbone of a nation that is far less fragmented and far freer than the America that arose in the 20th century.

The third installment is here; the fourth installment is here.

Related reading:
Arnold Kling, “Enrico Moretti on Mobility,” EconLog, July 28, 2012
Bill Vallicella, “Systematic Deracination,” Maverick Philosopher, August 5, 2012
Russell Nieli, “Religion as a Public-Bonding Fiction,” The Public Discourse, August 9, 2012
John Derbyshire, “Si Jeunesse Svait, Si Viellesse Pouvait,” Taki’s Magazine, August 9, 2012

Tolerance on the Left

UPDATED (BELOW), 08/10/12

I begin with the Chick-fil-A controversy. If you know more about it than is good for your mental health, jump to the text that follows the second row of asterisks.

* * * * *

For the benefit of anyone who has just returned to the U.S. after spending six weeks in Tierra del Fuego, the Chick-fil-A controversy began when the company’s president and COO, Dan Cathy,

made what was seen as an inflammatory statement. Cathy stated: “I think we are inviting God’s judgment on our nation when we shake our fist at Him and say, ‘We know better than you as to what constitutes a marriage’. I pray God’s mercy on our generation that has such a prideful, arrogant attitude to think that we have the audacity to define what marriage is about.”^[43]^[44]^[45]

And it took off from there:

On July 2, 2012, the LGBT watchdog group Equality Matters published a report with details of donations given by Chick-fil-A to organizations that are opposed to same-sex marriage, such as the Marriage & Family Foundation and the Family Research Council.^[46]^[47]^[48] Also, on July 2, Biblical Recorder published an interview with Dan Cathy, who was asked about opposition to his company’s “support of the traditional family.” He replied: “Well, guilty as charged.”^[49]^[50] Cathy continued:

“We are very much supportive of the family – the biblical definition of the family unit. We are a family-owned business, a family-led business, and we are married to our first wives. We give God thanks for that. … We want to do anything we possibly can to strengthen families. We are very much committed to that,” Cathy emphasized. “We intend to stay the course,” he said. “We know that it might not be popular with everyone, but thank the Lord, we live in a country where we can share our values and operate on biblical principles.”^[49]

In the wake of this interview, Thomas Menino, the Mayor of Boston, stated that he would not allow the company to open franchises in the city “unless they open up their policies.”^[51] Menino subsequently wrote a letter to Dan Cathy, citing Cathy’s earlier statement on The Ken Coleman Show and responding: “We are indeed full of pride for our support of same sex marriage and our work to expand freedom for all people.”^[52] In Chicago alderman Proco “Joe” Moreno announced his determination to block Chick-fil-A’s bid to build a second store in the city: “They’d have to do a complete 180,” Moreno said in outlining conditions under which he would retract the block. “They’d have to work with LGBT groups in terms of hiring, and there would have to be a public apology from [Cathy].”^[53] Moreno received backing from Chicago’s Mayor, Rahm Emanuel: “Chick-fil-A values are not Chicago values,” Emanuel said in a statement. “They disrespect our fellow neighbors and residents. This would be a bad investment, since it would be empty.”^[53] San Francisco soon followed suit on July 26 when mayor Edwin M. Lee tweeted, “Very disappointed #ChickFilA doesn’t share San Francisco’s values & strong commitment to equality for everyone.” Lee followed that tweet with “Closest #ChickFilA to San Francisco is 40 miles away & I strongly recommend that they not try to come any closer.”^[54]

In the wake of this interview, Thomas Menino, the Mayor of Boston, stated that he would not allow the company to open franchises in the city “unless they open up their policies.”^[51] Menino subsequently wrote a letter to Dan Cathy, citing Cathy’s earlier statement on The Ken Coleman Show and responding: “We are indeed full of pride for our support of same sex marriage and our work to expand freedom for all people.”^[52] In Chicago alderman Proco “Joe” Moreno announced his determination to block Chick-fil-A’s bid to build a second store in the city: “They’d have to do a complete 180,” Moreno said in outlining conditions under which he would retract the block. “They’d have to work with LGBT groups in terms of hiring, and there would have to be a public apology from [Cathy].”^[53] Moreno received backing from Chicago’s Mayor, Rahm Emanuel: “Chick-fil-A values are not Chicago values,” Emanuel said in a statement. “They disrespect our fellow neighbors and residents. This would be a bad investment, since it would be empty.”^[53] San Francisco soon followed suit on July 26 when mayor Edwin M. Lee tweeted, “Very disappointed #ChickFilA doesn’t share San Francisco’s values & strong commitment to equality for everyone.” Lee followed that tweet with “Closest #ChickFilA to San Francisco is 40 miles away & I strongly recommend that they not try to come any closer.”^[54]

The proposed bans in Boston and Chicago drew criticism from liberal pundits, legal experts and the American Civil Liberties Union. Kevin Drum of Mother Jones magazine said “[T]here’s really no excuse for Emanuel’s and Menino’s actions… you don’t hand out business licenses based on whether you agree with the political views of the executives. Not in America, anyway.”^[55] UCLA law professor and blogger Eugene Volokh observed, “[D]enying a private business permits because of such speech by its owner is a blatant First Amendment violation.”^[56] Echoing those views were Glenn Greenwald of Salon, professor [Jonathan] Turley of George Washington University, and Adam Schwartz, a senior attorney with the ACLU.^[57]

The city of New York is heard from, as well:

A powerful New York politician claims she was just speaking as a private citizen when she tried to run Chick-fil-A out of town, but she used her official letterhead and even invoked her position as City Council speaker to apply pressure on the embattled chicken chain.

New York City Council Speaker Christine Quinn, who has mayoral aspirations, sent a letter to New York University president John Sexton on Saturday asking the school to immediately end their contract with the fast food restaurant. The Atlanta-based company’s sole New York City outlet is in the school’s food court.

“I write as the Speaker of the NYC Council, and on behalf of my family. NYC is a place where we celebrate diversity. We do not believe in denigrating others. We revel in the diversity of all our citizens and their families,” the letter begins….

New York City Mayor Michael Bloomberg said last week that he would not follow the lead of his counterparts in Chicago, San Francisco and Boston, who all said Chick-fil-A was not welcome in their cities. Bloomberg said it was “inappropriate” for any government to decide if a business can or cannot operate in a city because of someone’s political views.

(The first two block quotations are from Wikipedia, as of July 30, 2012. I note the date because history and interpretations of history are notably unstable elements in the hands of Wikipedia’s contributors and editors.)

* * * * *

It is good to know that there are those on the left (the ACLU, Kevin Drum, and Glenn Greenwald, RINO Bloomberg) who defend Chick-fil-A’s right to exist. But those few voices do not cancel or diminish the left’s general stance of vitriolic disrespect toward persons who oppose the LGBT agenda. That agenda includes legal recognition of same-sex “marriage” (of course), the legalization of adoption by same-sex couples, and a laundry list of other “rights.” All would be secured by depriving non-believers in the LGBT agenda of freedom of conscience, freedom of association, and property rights.

Tolerance in America — left-wing style — has become a one-way street: Conservatives must succumb to the left’s social agenda, but the left need not tolerate the beliefs of conservatives. Conservatives who oppose the left’s social agenda are not viewed as mere political opponents. Nay, they are — depending on the issue at hand — hate-filled racists or hate-filled gay-bashers.

In a lifetime that now surpasses the number of years prescribed in Psalms 90, I have heard, read, and witnessed much hate. But for sustained, high-volume hate, nothing in my experience exceeds that which pours from the lips and keyboards of left-wingers. As a group, they are intolerant of truth, where it contradicts their cherished beliefs , and hateful toward those whose values conflict with theirs. For example:

Skeptics of the flimsy evidence for anthropogenic global warming, and who offer ample evidence against AGW, are flat-earth-global-warming-deniers.

Those who believe that governmental interference in economic affairs leads to slower growth and more poverty are not merely drawing out the implications of economic logic and empirical analysis. No, they are the hand-servants of greedy, exploitative corporations and super-rich fat cats (who, oddly enough, bankroll many left-wing causes).

Persons who object to the killing of human beings at the fetal stage are not merely principled defenders of life, they are meddling moralists who seek to deny women the convenience of abortion.

Those who understand that marriage is a long-standing social institution which cannot be redefined by statute are hate-filled, bigoted troglodytes, not defenders of an essential, civilizing institution.

Left-wingers march in lockstep like wind-up toy soldiers. And all it takes to wind them up is to propose a governmental intervention in social or economic affairs — preferably one that flouts a social tradition that is based on decades and centuries of of experience. Why do leftists have so little respect for the wisdom that accrues in social norms? Because leftism is rooted in two psychological tendencies. One of them is adolescent rebellion, which can persist for decades past adolescence. This explains the left’s hatred of conventional authority figures who (usually) represent conservative (civilizing) values (e.g., parents, police officers, military officers, members of the clergy). The other psychological tendency is the urge to dominate others, an urge that leftists project onto conservatives. (See this, this, and this.) In that regard, I have observed, at first hand, that vociferous leftists are fiercely defensive of their autonomy, despite their willingness to deny autonomy to others. (Think “liberal” fascism; more here and here.)

In the face of incessant propagandizing for LBGT causes by the left’s vast academic-entertainment-opinion-cum-news conspiracy, those who dare to be different are not lesbian, gay, bisexual, and transgendered persons. No, the LGBTers are figuratively ensconced in the left’s sheltering arms, where their outré “lifestyles” are celebrated, promoted, and proclaimed to be normal — or, at least, The New Normal. Those who dare to be different, these days, are the defenders of traditional sexuality, traditional marriage, and traditional families — the core of civilized society. UPDATE: It fact, it is now possible to be accused of a crime for the mere act of stating a preference for traditional sexuality, traditional marriage, and traditional families. This is not surprising, given the growth of the ~~thought~~ hate-crime industry.

And so it has come to pass that heads of hugely influential corporations (e.g., Google and Amazon) lend their names and money to the LGBT cause. Having become “the thing to do,” the LGBT cause is joined by lesser corporations. That cause is today’s version of affirmative action; it is embraced by boards of directors and senior executives who do not have to live with the consequences of their politically correct policy edicts. The consequences include the reduction of corporate income (which belongs to shareholders) by the hiring, retention, and promotion of otherwise unqualified persons — so that the directors and senior officers can feel good about their commitment to “inclusiveness.”

But that is nothing to the destruction of liberty that is sought in the name of LBGT “rights.” Consider the case of same-sex “marriage”:

It was only yesterday, was it not, that we were being assured that the redefinition of marriage to include same-sex partnerships would have no impact on persons and institutions that hold to the traditional view of marriage as a conjugal union? Such persons and institutions would simply be untouched by the change. It won’t affect your marriage or your life, we were told, if the law recognizes Henry and Herman or Sally and Sheila as “married.”

Those offering these assurances were also claiming that the redefinition of marriage would have no impact on the public understanding of marriage as a monogamous and sexually exclusive partnership. No one, they insisted, wanted to alter those traditional marital norms. On the contrary, the redefinition of marriage would promote and spread those norms more broadly.

When some of us warned that all of this was nonsense, and pointed out the myriad ways that Catholics, Evangelicals, Mormons, Eastern Orthodox Christians, Orthodox Jews, Muslims, and others would be affected, and their opportunities and liberties restricted, the proponents of marriage redefinition accused us of “fearmongering.” When we observed that reducing marriage to a merely emotional union (which is what happens when sexual reproductive complementarity is banished from the definition) removes all principled grounds for understanding marriage as a sexually exclusive and faithful union of two persons, and not an “open” partnership or a relationship of three or more persons in a polyamorous sexual ensemble, we were charged with invalid slippery-slope reasoning. Remember?

No one, they assured us, would require Catholic or other foster care and adoption services to place children in same-sex headed households. No one, they said, would require religiously affiliated schools and social-service agencies to treat same-sex partners as spouses, or impose penalties or disabilities on those that dissent. No one would be fired from his or her job (or suffer employment discrimination) for voicing support for conjugal marriage or criticizing same-sex sexual conduct and relationships. And no one was proposing to recognize polyamorous relationships or normalize “open marriages,” nor would redefinition undermine the norms of sexual exclusivity and monogamy in theory or practice.

That was then; this is now….

…[A]dvocates of redefinition are increasingly open in saying that they do not see these disputes about sex and marriage as honest disagreements among reasonable people of goodwill. They are, rather, battles between the forces of reason, enlightenment, and equality—those who would “expand the circle of inclusion”—on one side, and those of ignorance, bigotry, and discrimination—those who would exclude people out of “animus”—on the other. The “excluders” are to be treated just as racists are treated—since they are the equivalent of racists. Of course, we (in the United States, at least) don’t put racists in jail for expressing their opinions—we respect the First Amendment; but we don’t hesitate to stigmatize them and impose various forms of social and even civil disability upon them and their institutions. In the name of “marriage equality” and “non-discrimination,” liberty—especially religious liberty and the liberty of conscience—and genuine equality are undermined.The fundamental error made by some supporters of conjugal marriage was and is, I believe, to imagine that a grand bargain could be struck with their opponents: “We will accept the legal redefinition of marriage; you will respect our right to act on our consciences without penalty, discrimination, or civil disabilities of any type. Same-sex partners will get marriage licenses, but no one will be forced for any reason to recognize those marriages or suffer discrimination or disabilities for declining to recognize them.” There was never any hope of such a bargain being accepted. Perhaps parts of such a bargain would be accepted by liberal forces temporarily for strategic or tactical reasons, as part of the political project of getting marriage redefined; but guarantees of religious liberty and non-discrimination for people who cannot in conscience accept same-sex marriage could then be eroded and eventually removed. After all, “full equality” requires that no quarter be given to the “bigots” who want to engage in “discrimination” (people with a “separate but equal” mindset) in the name of their retrograde religious beliefs. “Dignitarian” harm must be opposed as resolutely as more palpable forms of harm….

The lesson, it seems to me, for those of us who believe that the conjugal conception of marriage is true and good, and who wish to protect the rights of our faithful and of our institutions to honor that belief in carrying out their vocations and missions, is that there is no alternative to winning the battle in the public square over the legal definition of marriage. The “grand bargain” is an illusion we should dismiss from our minds…. [Robert P. George, “Marriage, Religious Liberty, and the ‘Grand Bargain’,” Public Discourse, July 19, 2012]

The battle over the legal definition of marriage (and other items on the LGBT agenda) will be won through the exercise of political power, abetted by lies and chicanery, and not by sweet reason. Conservatives will (and should) eschew lies and chicanery, leaving them to the LGBT crowed and its allies. But conservatives should not flinch from the use of political power; their cause is liberty, and it is just.

* * *

Related reading:
Michael Brown, “The Rise of the Intolerance Brigade,” Townhall.com, August 2, 2012
Matthew J. Franck, “Truth and Lies, Nature and Convention: The Debate Over Same-Sex Marriage,” Public Discourse, July 30, 2012
Christian Smith, “An Academic Auto-da-Fé, The Chronicle of Higher Education, July 23, 2012
Michael Barone, “Supporters of Ted Cruz and Chick-fil-A Break News,” The Examiner, August 4, 2012

Liberty and Society

This is the first installment of a series that explores the true nature of liberty, how liberty depends on society, how society (properly understood) has been eclipsed by statism and its artifacts, and how society — and therefore liberty — might re-emerge in the United States.

The typical libertarian — like the one who commented on my post “Not Guilty of Libertarian Purism” — will say something like this:

Liberty is simply defined as “do what you want, constrained only by the harm to others.”

This is just a restatement of John Stuart Mill’s “harm principle,” which first appears in Chapter I, paragraph 9, of Mill’s On Liberty:

[T]he 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.

Mill himself reveals the emptiness of his formulation in paragraphs 11 through 13:

[11] …I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being. Those interests, I contend, authorize the subjection of individual spontaneity to external control, only in respect to those actions of each, which concern the interest of other people. If any one does an act hurtful to others, there is a primâ facie case for punishing him, by law, or, where legal penalties are not safely applicable, by general disapprobation. There are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as, to give evidence in a court of justice; to bear his fair share in the common defence, or in any other joint work necessary to the interest of the society of which he enjoys the protection; and to perform certain acts of individual beneficence, such as saving a fellow-creature’s life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man’s duty to do, he may rightfully be made responsible to society for not doing. A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury….

[12] But there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person’s life and conduct which affects only himself, or if it also affects others, only with their free, voluntary, and undeceived consent and participation. When I say only himself, I mean directly, and in the first instance: for whatever affects himself, may affect others through himself; and the objection which may be grounded on this contingency, will receive consideration in the sequel. This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.

[13] No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.

The latter two paragraphs (12 and 13) would seem to satisfy the typical libertarian. But they are as empty of content as the bald statement of the harm principle in paragraph 9. What Mill does in paragraph 11 is to pour content into the harm principle — content that the typical libertarian would find abhorrent, for its statism if not for its utilitarianism. The discussion of liberty in paragraphs 12 and 13 cannot be understood without reference to Mill’s restrictive definition of harm in paragraph 11.

To put it another way, liberty — “do what you want, constrained only by the harm to others” — is an empty concept unless it rests on a specific definition of harm. Why? Because harm is not a fixed thing — like the number 1 or your house — it is a vague concept that has meaning only when it refers to specific types of act, which then may be judged as harmful by some and unharmful by others. But until harm is defined and agreed through mutual consent (explicit or implicit), liberty lacks real meaning.

My goal in this post is to outline the social conditions that conduce to actual liberty, that is, a kind of liberty that could be found in the real world, given the nature of human beings as self-centered, quarrelsome, often aggressive individuals, as well as loving, cooperative, and generous ones. (Social behavior, in this context, includes what is usually called economic behavior, which is just a kind of social behavior.) I will try to be realistic (rather than pessimistic) about the degree to which liberty is attainable.

I begin with my definition of liberty, which is

peaceful, willing coexistence and its concomitant: beneficially cooperative behavior.

That may seem just as vague as the harm principle, but it is not. The harm principle is meaningless without an agreed definition of harm. My definition is operationally meaningful, in itself. It says that liberty is found wherever there is peaceful, willing coexistence and beneficially cooperative behavior. Why? Because a society which meets those conditions is a free society to its members, who (by definition) prefer it to alternative conditions of existence. Among other things, they must be agreed about what constitutes harm and how it should be treated.

It is now only(!) a matter of describing the kind of society in which there can be peaceful, willing coexistence and beneficially cooperative behavior. Going from broad characteristics to narrow ones, this is such a society:

1. “Society” has many meanings. This one rings truest:

an enduring and cooperating social group whose members have developed organized patterns of relationships through interaction with one another.

The “organized patterns of relationships” will include rules about behavior (a moral code). On the negative side, the rules will specify (if only tacitly) what is allowed, what is not allowed, how transgressions should be treated, and how certain mitigating circumstances figure into judgments about and the treatment of transgressions. On the positive side, the rules will specify (if only tacitly) expectations about how certain members of society should treat others (e.g., respect for elders, voluntary aid to those in need, mannerly behavior of certain kinds). A society, in other words, is inseparable from its moral code.

2. Mutual trust, respect, and forbearance allow differences within a society to be resolved through voluntary means, according to its moral code (1).

The means will include compromise; not every member of a society will agree with every rule, the way in which rules are enforced, or every resolution of differences, but every member of society will accept them. When a member of society can no longer compromise his preferences with the enactments of society, and has voiced his discontent to no avail, exit is his only option. Exit, at this stage, is exit from a society, as defined in 1. Unlike the situation that pertains when a person can no longer abide the rules imposed on him by a distant and unrepresentative government that controls a large geographic area, exit from a society need not require physical exile.

3. Mutual trust, respect, and forbearance (2) depend, in turn, on genetic kinship and cultural similarity.

Human beings are, at bottom, tribal creatures. This is a fact of life that cannot be erased by wishful thinking: “Why can’t we just all get along with each other?”

4. The voluntary institutions of society (civil society) inculcate and enforce a society’s moral code (1), foster mutual trust and respect (2), and help to preserve cultural similarity (3).

The institutions of civil society include families, friendships, neighborhoods, churches, clubs, markets — and interconnected circles of them. Enforcement of the moral code, up to a point, is by voluntary observance (for fear of the social and physical consequences of non-observance. Where unacceptable behavior persists or is egregious, it is dealt with by civil institutions, including ad hoc groups organized for the purpose of controlling, confining, and punishing behavior is uncontrollable through the usual means. Those means include intra-familial punishment, physical retaliation, social signalling (ranging from expressions of approval and disapproval to ostracism, at the extreme). The means, themselves, are encompassed in the moral code.

5. A society’s moral code (1) and culture (3) evolve by trial and error, through the operation of the institutions of civil society (4).

The members of a society perceive that certain behaviors enable the society to thrive, and that others do not. Thriving is a matter of social and economic success, of the attainment of outcomes that the members of society find pleasing, and which they seek to promote by encouraging the behaviors that are consistent with pleasing outcomes and discouraging the behaviors that work against those outcomes. These signals — pro and con — are transmitted through the institutions of civil society (4) and thus become part of the society’s culture (3). Observance of the signals is essential to the maintenance of mutual trust and respect (2).

To summarize: A society coheres around genetic kinship, and is defined by its common culture, which includes its moral code. The culture is developed, transmitted through, and enforced by the voluntary institutions of society (civil society). The culture is the product of trial and error, where those elements that become part of received culture serve societal coherence and — in the best case — help it to thrive. Coherence and success depend also on the maintenance of mutual respect, trust, and forbearance among society’s members. Those traits arise in part from the sharing of a common culture (which is an artifact of societal interaction) and from genetic kinship, which is indispensable to societal coherence.

If the foregoing description is correct, there is one aspect of society — and one only — that a society cannot “manufacture” through its social processes. That aspect is genetic-cultural kinship. To put it another way, it is unlikely that a society’s membership can be drawn from more than one genetic grouping (or cluster), of which there may be dozens. Throw in cultural differences, originating in the geographic separation of otherwise genetically close populations, and the number of distinct genetic-cultural groupings must be very large indeed.

Though it is possible that an occasional outsider can be accepted into a society through acculturation and acceptance, because of bonds that develop between the outsider and insiders, it is far less likely that a society will welcome significant numbers of outsiders. This contention is borne out by the checkerboard and tipping models of voluntary racial segregation:

[E]ven when every agent prefers to live in a mixed-race neighborhood, almost complete segregation of neighborhoods emerges as individual decisions accumulate. In [Thomas Schelling’s] “tipping model”, he demonstrated the effects which emerge when people have varying levels of perception as to acceptable levels for other ethnic groups in the neighborhood. The model shows that members of an ethnic group do not move out of a neighborhood as long as the proportion of other ethnic groups is relatively low, but if a critical level of other ethnicities is exceeded, the original residents may make rapid decisions and take action to leave. This tipping point is viewed as simply the end-result of domino effect originating when the threshold of the majority ethnicity members with the highest sensitivity to sameness is exceeded. If these people leave and are either not replaced or replaced by other ethnicities, then this in turn raises the level of mixing of neighbours, exceeding the departure threshold for additional people. Domino and tipping models were suggested to be explanatory factors for white flight in the 1960s US. Schelling also noted that in different societies, people have residential preferences, for factors other than ethnicity, such as age, gender, income levels.^[41] In 2010 Junfu Zhang found support for both the checkerboard model of residential segregation as the only stable spatial arrangement (arrangement not subject to tipping effects), and for tipping effects, showing how these lead to integrated residential areas being irreversibly tipped into complete segregation.^[40]

This is “wrong,” in the “liberal” and left-libertarian view of the world. That view is not based on what can be, given the nature of human beings, but on what ought to be: a desirable but unattainable ideal (see nirvana fallacy).

I will next consider several possible objections to my model of a society’s essence and workings. This series will close with a blueprint for the restoration of society and liberty. The first sequel is “The Eclipse of ‘Old America’ “; the second is “Genetic Kinship and Society“; the third is “Liberty as a Social Construct: Moral Relativism?”

Dan Quayle Was (Almost) Right

Regarding The New York Times piece by Jason DeParle, called “Two Classes in America, Divided by ‘I Do,'” Rick Garnett says, “Maybe the piece should be called “Dan Quayle was right”? There’s no “maybe” about it. Dan Quayle was right when he said this in 1992:

Right now the failure of our families is hurting America deeply. When families fall, society falls. The anarchy and lack of structure in our inner cities are testament to how quickly civilization falls apart when the family foundation cracks. Children need love and discipline. A welfare check is not a husband. The state is not a father. It is from parents that children come to understand values and themselves as men and women, mothers and fathers.

And for those concerned about children growing up in poverty, we should know this: marriage is probably the best anti-poverty program of them all. Among families headed by married couples today, there is a poverty rate of 5.7 percent. But 33.4 percent of families are headed by a single mother are in poverty today.

Nature abhors a vacuum. Where there are no mature, responsible men around to teach boys how to become good men, gangs serve in their place. In fact, gangs have become a surrogate family for much of a generation of inner-city boys….

The system perpetuates itself as these young men father children whom they have no intention of caring for, by women whose welfare checks support them. Teenage girls, mired in the same hopelessness, lack sufficient motive to say no to this trap….

Ultimately, however, marriage is a moral issue that requires cultural consensus, and the use of social sanctions. Bearing babies irresponsibly is, simply, wrong. Failure to support children one has fathered is wrong. We must be unequivocal about this.

It doesn’t help matters when prime time TV has Murphy Brown – a character who supposedly epitomizes today’s intelligent, highly paid, professional woman – mocking the importance of a father, by bearing a child alone, and calling it just another “lifestyle choice.”

I know it is not fashionable to talk about moral values, but we need to do it. Even though our cultural leaders in Hollywood, network TV, the national newspapers routinely jeer at them, I think that most of us in this room know that some things are good, and other things are wrong. Now it’s time to make the discussion public….

Quayle’s message was derided by the usual suspects, of course. But Quayle’s remarks now apply just as much to whites as to the inner-city blacks whose behavior Quayle cites.

Indeed, DeParle focuses on the example of two white women, Jessica Schairer and her boss, Chris Faulkner:

They are both friendly white women from modest Midwestern backgrounds who left for college with conventional hopes of marriage, motherhood and career. They both have children in elementary school. They pass their days in similar ways: juggling toddlers, coaching teachers and swapping small secrets that mark them as friends. They even got tattoos together. Though Ms. Faulkner, as the boss, earns more money, the difference is a gap, not a chasm.

But a friendship that evokes parity by day becomes a study of inequality at night and a testament to the way family structure deepens class divides. Ms. Faulkner is married and living on two paychecks, while Ms. Schairer is raising her children by herself. That gives the Faulkner family a profound advantage in income and nurturing time, and makes their children statistically more likely to finish college, find good jobs and form stable marriages.

Ms. Faulkner goes home to a trim subdivision and weekends crowded with children’s events. Ms. Schairer’s rent consumes more than half her income, and she scrapes by on food stamps.

DeParle also hammers at inequality in a companion piece to the article quoted above:

An interesting pattern over the last four decades is that inequality has grown much faster for households with children than it has for households over all — an indication that changes in family structure (as opposed to wages and employment alone) have increased inequality….

While the decline of two-parent families is most striking in the bottom quarter, that is a familiar story and had largely occurred by 1990. Much of the recent growth has occurred in the second-lowest quarter, sometimes called the working class. In that group, the share of households with children headed by unmarried parents has soared to nearly 40 percent and the growth has continued in recent years:

The focus on inequality is perverse but predictable, inasmuch as DeParle is writing for The New York Times. Yes, DeParle eventually gets around to mentioning the choices made by the women in question:

College-educated Americans like the Faulkners…

Less-educated women like Ms. Schairer, who left college without finishing her degree….

[Ms. Schairer] got pregnant during her first year of college, left school and stayed in a troubled relationship that left her with three children when it finally collapsed six years ago. She has had little contact with the children’s father and receives no child support. With an annual income of just under $25,000, Ms. Schairer barely lifts her children out of poverty, but she is not one to complain. “I’m in this position because of decisions I made,” she said.

Why, then, the focus on economic inequality, which is an unsurprising consequence of the kinds of decisions made by Ms. Schairer and growing numbers of white women? DeParle eventually acknowledges the latter point:

Long concentrated among minorities, motherhood outside marriage now varies by class about as much as it does by race. It is growing fastest in the lower reaches of the white middle class — among women like Ms. Schairer who have some postsecondary schooling but no four-year degree.

But Ms. Schairer finds herself in “the lower reaches of the white middle class” because of her decisions — not because of a mysterious force called inequality, which has become the left’s all-purpose excuse for social ills.

The focus on inequality is surely meant to suggest that there is a “problem” about which government should do something. But the real problem is not economic inequality, which (though inevitable) is exacerbated by the rising trend toward broken families and one-parent homes. And that is the real problem, because its victims are innocent bystanders: the children of broken families and one-parent homes.

Rick Garnett asks, what “[c]an can law [i.e., government] do, if anything, about the challenges identified in [DeParle’s] piece?” The correct answer is that government should not compensate women like Ms. Schairer for the consequences of their bad decisions. Where government, through various welfare schemes, does compensate the Ms. Schairers for the consequences of their bad decisions, the result is to encourage more such bad decisions. (Economists call it moral hazard.)

The most that government can and should do is to cancel the perverse incentives that it has created in the past several decades: lax divorce laws; favoritism in employment and child-care subsidies that lure women into the working world, away from their children; and, of course, the welfare programs that reward bad decisions.

Government can’t do anything about the real problem, which is the decline of Judeo-Christian values as a guiding force in the affairs of Americans. Government has hastened that decline, but anything that it might do in an effort to reverse the decline is sure to be counterproductive.

Dan Quayle was almost right when he closed his infamous speech with this:

So I think the time has come to renew our public commitment to our Judeo-Christian values – in our churches and synagogues, our civic organizations and our schools. We are, as our children recite each morning, “one nation under God.” That’s a useful framework for acknowledging a duty and an authority higher than our own pleasures and personal ambitions.

Quayle’s counsel is one of lip-service and, strangely, reliance on government.

Judeo-Christian values, to be vital and effective in the affairs of society, must be inculcated within the family circle. Only when government stops breaking up families will there be hope for a broad resurgence of Judeo-Christian values in America.

I am a realist, however. And so I must close by paraphrasing the conclusion of a recent post. I do not believe that America can recover from its descent into hedonism. Therefore, the “single-parent problem” will not go away, and the dwindling fraction of Americans who conduct their lives conscientiously will subsidize an ever-growing fraction of Americans who make bad “life choices.” America is becoming (has become?) a moral wasteland, replete with one-parent “families,” broken families, and children who suffer spiritual neglect.

Given this state of affairs, it is prudent and desirable for traditional families to insulate themselves, as much as possible, from “mainstream” America. This can be done by limiting one’s social relationships (other than superficial ones) to those persons who share one’s values (even to the exclusion of family members, if necessary), and by home-schooling one’s children or sending them to private schools that can be relied on to transmit Judeo-Christian values.

Obama’s Big Lie

I was too easy on Barack Obama in “Barack Channels Princess SummerFall WinterSpring.” It’s not that I gave him a pass for denigrating the accomplishments of successful businesspersons. Far from it. But the Obama piñata deserves another good beating.

This beating is prompted by Jason Brennan’s tone-deaf post, “On Quoting Out of Context and the Right-Wing Smear Machine,” at Bleeding Heart Libertarians. Referring to Obama’s remarks in Roanoke, Virginia, on July 13. Brennan writes:

Obama said:

If you’ve been successful, you didn’t get there on your own…

If you are successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business, you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet, so then all the companies could make money off the Internet. The point is, is that, when we succeed, we succeed because of our individual initiative, but also because we do things together.

The right-wing smear machine quotes this out of context, as follows:

If you’ve got a business, you didn’t build that. Somebody else made that happen.

Wow, notice how quoting out of context changes the apparent meaning of those two sentences. In context, the sentences mean: If you own a business, you relied upon background institutions, infrastructure, and help from others to build that business. Your success depended upon many of the rest of us and on government. You didn’t create everything from scratch. The bolded “that” refers to “this unbelievable American System” and “roads and bridges”. This is what Obama actually said.

Out of context, the sentences seem to mean: You didn’t build your business; someone else did. Quoting him out of context makes it seem like the bolded “that” refers to your business.

Well, as it happens, the only way to interpret Obama’s statement — in or out of context — is to read it exactly as the so-called right-wing smear machine interprets it. To help Brennan understand that, I hereby reproduce the paragraph from the official White House source:

If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business — you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet.

Note that the official source places an em-dash where Brennan places a comma. I will come to the em-dash in a moment.

The pronoun “that” in the fourth sentence unambiguously refers to “business,” which (in context) is the antecedent of “that.” And the em-dash that sets off the clause “you didn’t build that” makes it all the clearer that “that” refers to “business.” For it is the task of an emphatic clause set off by an em-dash to make an additional or clarifying statement about what immediately precedes the clause.

Further, having introduced the “that” in the fourth sentence, Obama repeats it in the next sentence. So, what Obama says in the fourth and fifth sentence of the paragraph is this:

If you’ve got a business — you didn’t build that [business]. Somebody else made that [business] happen.

One doesn’t have to be a right-winger to see through Obama’s rhetoric.

It may be legitimate to say that (almost) nothing is accomplished (these days) by individuals working on their own. But Obama is trying, not so subtly, to denigrate those who are successful in business (e.g., Mitt Romney) and to make a case for redistributionism. The latter rests on Obama’s (barely concealed) premise that the fruits of a collective enterprise should be shared on some basis other than market valuations of individual contributions. (Brennan seems to share that view, so perhaps he is not altogether unsympathetic to Obama’s aims.)

It is (or should be) obvious that Obama’s agenda is the advancement of collectivist statism. I will credit Obama for the sincerity of his belief in collectivist statism, but his sincerity only underscores and how dangerous he is. (Note to Jason Brennan: “his” and “he” refer to “Obama.”)

Related reading:
Thomas Sowell, “Obama’s Rhetoric,” Townhall.com, July 19, 2012
Thomas Sowell, “Trashing Achievements,” JWR Insight, July 19, 2012
Mark J. Perry, “Milton Friedman Responds to Obama’s Claim That There Is No Such Thing As Individual Achievement,” Carpe Diem, July 20, 2012
Mark Steyn, “Golden Gateway to Dependency,” National Review Online, July 21, 2012

Race and Reason: The Achievement Gap — Causes and Implications

This is the third (and probably last) post in a series. The first two posts are “Race and Reason: The Derbyshire Debacle” and “Race and Reason: The Victims of Affirmative Action.” The purpose of the series, as suggested by the titles of the posts, is to inject reason (and facts) into the discussion of race. It has been done before, of course, but it cannot hurt to add another voice to the chorus of race-realism.

Yes, I am a race-realist. I believe (based on fact) that the socioeconomic divide between blacks and other racial-ethnic groups in America is primarily a product of genetic and cultural differences that work to the general disadvantage of blacks.

I know that some readers will quickly reject what I have to say, and a lot of them will do so as soon as they reach the end of the preceding paragraph. Why? Because the facts that I present will not comport with their view of the way the world ought to be. What is the “ought to be”? Briefly, it is an imaginary world in which all races are equal in ability, and in which cultural differences hove no bearing on economic achievement. If that is your view of the world, and if you are unwilling to consider a different, fact-based view, you may stop reading now and return to the land of unreality. Before you do that, however, I want you to be aware of one important thing: My own racial views are neutral; that is, I am unprejudiced toward blacks as blacks, though I am greatly opposed to pro-black policies (as opposed to race-neutral ones), which have been harmful to black Americans as well as their countrymen. For evidence of my race-neutrality, see the note at the bottom of this post.

Then there are those readers who might agree with the facts that I present here, but who prefer to ignore them because they might “feed racism” and be used as an excuse to treat blacks as second-class citizens. Racists need no help from me or anyone else who presents the facts about the causes of the socioeconomic divide in America. Racists are immune to facts and see the world as they think it ought to be, which is free of blacks or with blacks shunted to second-class citizenship. The socioeconomic gap between blacks and other Americans cannot be shrunk by ignoring the reasons for the gap. The gap can be shrunk (though never closed) only by understanding its real causes and adopting policies that address those causes.

A note about usage: It is my practice in this blog to put “liberal” (and its variants) in quotation marks when referring to modern liberalism, which is quite a different thing than classical liberalism. The difference, of course, is that modern liberals espouse statism. In particular, they believe that what is adjudged “good” by academic-political elites should be imposed on everyone by the state. And liberty — despite its etymological relationship to the word liberal — be damned. Thus the sarcastic quotation marks, or sneer quotes. In any event, I have, in this post, omitted the quotation marks for the sake of typographical neatness. Rest assured, however, that where I use “liberal” and its variants in this post I am referring to statists and statism.

Continued below the fold. Continue reading “Race and Reason: The Achievement Gap — Causes and Implications” →

Obamacare and Zones of Liberty

Uwe Reinhardt, a professor of economics at Princeton, offers this tantalizing idea:

Let us set up two distinct systems for health care within our nation. Call one the Social Solidarity system and the other the Libertarian system. Ask young people — at age 25 or so — to choose one or the other.

People joining the Social Solidarity system would know that they will be asked to subsidize their less fortunate fellow citizens in health care through taxes or premiums or both. They would also know, however, that the community will take care of them, and they will not go broke, should serious illness befall them.

People choosing the Libertarian system would not have to pay taxes to subsidize other people’s health care, and they would pay actuarially fair health insurance premiums — low for healthy people and high for sicker people.

Libertarians, however, would not be allowed to come into the Social Solidarity system, unless they were so pauperized as to qualify for Medicaid. Hospitals would have every right to use tough measures to make them pay their medical bills in full, to prevent freeloading at the expense of others.

Furthermore, care would have to be taken to prohibit the kind of estate planning that now often permits well-to-do individuals to take advantage of Medicaid benefits. [“Health Care: Solidarity vs. Rugged Individualism,” in Economix, The New York Times, June 29, 2012]

Reinhardt’s suggestion has much merit — his loaded labels aside. The “social solidarity” model really amounts to freeloading, or the futile attempt to freeload. The “rugged individualism” model really amounts to a preference for making one’s own decisions instead of having decisions rammed down one’s throat by government — in other words, a preference for liberty.

But, as I say, the suggestion has merit. And the merit extends far beyond the matter of health care. As John Goodman puts it, “why restrict the choice to health care?”

Which leads to my immodest proposal for zones of liberty:

The 50 States (and their constituent municipalities) are incompatible with the kind of federalism envisioned by the Framers. Today’s State and municipal governments are too bureaucratic and too beholden to special interests; they have become smaller versions of the federal government. For, in today’s populous States and municipalities, coalitions of minority interests are able to tyrannize the populace. (The average State today controls the destinies of 25 times as many persons as did the average State of 1790.) Those Americans who “vote with their feet” through internal migration do not escape to regimes of liberty so much as they escape to regimes that are less tyrannical than the ones in which they had been living.

The kind of federalism envisioned by the Framers — and the kind of federalism necessary to liberty — would require the devolution to small communities and neighborhoods of all but a few powers: war-making, the conduct of foreign affairs, and the regulation of inter-community commerce for the sole purpose of ensuring against the erection of barriers to trade. With that kind of federalism, the free markets of ideas and commerce would enable individuals to live in those communities and neighborhoods that best serve their particular conceptions of liberty.

What do I have in mind? A zone of liberty would be something like a “new city” — with a big difference. Uninhabited land would be acquired by a wealthy lover (or lovers) of liberty, who would establish a development authority for the sole purpose of selling the land in the zone. The zone would be populated initially by immigrants from other parts of the United States. The immigrants would buy parcels of land from the development authority, and on those parcels they could build homes or businesses of their choosing. Buyers of parcels would be allowed to attach perpetual covenants to the parcels they acquire, and to subdivide their parcels with (or without) the covenants attached. All homes and businesses would have to be owned by residents of the zone, in order to ensure a close connection between property interests and governance of the zone.

Infrastructure would be provided by competing vendors of energy, telecommunications, and transportation services (including roads and their appurtenances). Rights-of-way would be created through negotiations between vendors and property owners. All other goods and services — including education and medical care — would be provided by competing vendors. No vendor, whether or not a resident of the zone, would be subject to any regulation, save the threat of civil suits and prosecution for criminal acts (e.g., fraud). Any homeowner or business owner could import or export any article or service from or to any place, including another country; there would be no import controls, duties, or tariffs on imported or exported goods and services.

The zone’s government would comprise an elected council, a police force, and a court (all paid for by assessments based on the last sale price of each parcel in the zone). The police force would be empowered to keep the peace among the residents of the zone, and to protect the residents from outsiders, who would be allowed to enter the zone only with the specific consent of resident homeowners or business owners. Breaches of the peace (including criminal acts) would be defined by the development of a common law through the court. The elected council (whose members would serve single, four-year terms) would oversee the police force and court, and would impose the assessments necessary to defray the costs of government. The council would have no other powers, and it would be able to exercise its limited powers only by agreement among three-fourths of the members of the council. The members, who would not be salaried, would annually submit a proposed budget to the electorate, which would have to approve the budget by a three-fourths majority. The electorate would consist of every resident who is an owner or joint owner of a residence or business (not undeveloped land), and who has attained the age of 30.

A zone of liberty would not be bound by the laws (statutory and otherwise) of the United States, the individual States, or any of political subdivision of a State. (The federal government could impose a per-capita tax on residents of the zone, in order to defray the zone’s per-capita share of the national budget for defense and foreign affairs.) The actions of the zone’s government would be reviewable only by the U.S. Supreme Court, and then only following the passage of a bill of particulars by two-thirds of each house of Congress, and with the concurrence the president. (A zone could be abolished only with the approval of four-fifths of each house of Congress, and with the concurrence of the president.)

Absent such an experiment, I see only one hope for liberty — albeit a slim one — a Supreme Court that revives the Constitution. Politics as usual will only take us further down the road to serfdom.

I wrote that two years ago, and it is based on a post that is now more than six years old. Much has happened since, almost all of it to the detriment of liberty. Would our rulers dare allow at least a few of us to undertake an experiment in liberty? It is doubtful, because they fear the possibility that the experiment would succeed. And if it did, they would face the prospect of demands for more of the same. And where would that leave them? Without vast power. Scratch the idea of asking the federal government or any State government for a zone of liberty.

But maybe it isn’t necessary to ask. Suppose that a new (unincorporated) city were to spring up in, say, an isolated county with a friendly government. Suppose, further, that the new city’s citizens were to do nothing to organize themselves but (a) set up a police department and (b) hire legal counsel to ensure that the residents obey those State and federal laws that they must obey. And suppose that the city were to be an economic and social success, despite the absence of all of the codes and ordinances that ensnare the residents and businesses of today’s typical city.

Isn’t it worth a try? And doesn’t it beat trying to entice libertarians to move to New Hampshire (brrr!) or to live in international waters (pirates off the bow)?

Another Thought or Two about the Obamacare Decision

In the preceding post, I alluded to commentators who found silver linings in Chief Justice Roberts’s alignment with the Court’s liberal wing in upholding the individual mandate. I feel compelled to say more about the supposed silver linings.

I begin with Ilya Somin, writing at The Volokh Conspiracy:

Although the Supreme Court upheld the individual mandate as an exercise of the Tax Power, a majority of the justices also ruled that it is not a legitimate exercise of Congress’ powers under the Commerce Clause. In doing so, they endorsed the plaintiffs’ argument that the individual mandate exceeds the scope of the Commerce power because it does not regulate “economic activity,” but instead targets inactivity.

But, as Somin points out:

The problem is that Roberts then proceeds to “empower Congress to make those decisions [to buy health insurance]” for us under the guise of imposing taxes.

Why did Roberts not simply join the four dissenting justices and throw out Obamacare while making clear the limits on Congress’s Commerce Clause power? The same (hypothetical) majority opinion also would have found unconstitutional the feds’ expansion of Medicaid.

Sean Trende, writing at RealClearPolitics, has much to say in Roberts’s defense, including this:

Thursday’s health care ruling shocked most observers. It upheld the health care law as constitutional. But rather than find that the law was justified under Congress’ authority to regulate commerce, it instead found it was justified only under Congress’ power to tax. It also imposed limits upon Congress’ ability to condition spending grants to the states upon those states taking certain steps. To my knowledge, former Solicitor General Walter Dellinger was the only person who thought that the court would ultimately rule on those grounds. I certainly was surprised.

Even more surprising, the decision was 5-4, and Chief Justice John Roberts authored the majority opinion upholding the law, rather than Anthony Kennedy. Conservatives are flabbergasted by the chief’s decision (or, in their view, betrayal)….

But I think if you scratch the surface here, Roberts embarked upon a gambit much like [Chief Justice John] Marshall did 200 years ago [in Marbury v. Madison]…

Let’s start with Roberts’ presumed crass political considerations. Namely, as a conservative Republican, he would not want the health care law implemented….

If Republicans win the Senate and presidency, the law is doomed. They will use reconciliation to repeal it, or to gut it….

And the decision may help to ensure a GOP sweep in November by energizing unenthusiastic conservatives and fiscally prudent independents.

Trende continues:

Five justices just signaled to lower courts that, but for the unique taxation power argument, they were prepared to rule that a major act of Congress that plainly touched upon economic activity exceeded Congress’ commerce powers….

The most important aspect of the ruling, however, comes with respect to the spending clause. Seven justices just agreed to real limits on Congress’ ability to attach strings to legislation. This is significant. Until today, these limits were hypothetical, and it was believed that Congress could, for example, remove all Medicaid funding as a punishment for a state’s refusal to comply with the Medicaid expansion. I did not expect the court to rule the way it did here, much less to do so by a 7-2 vote….

Roberts has basically … [i]nsulate[d] the court from criticism of bald partisan bias and infidelity to, as he once put it, calling balls and strikes. He’s earning plaudits from the left. Though the right is grumbling, I suspect they won’t be doing so for long.

This is not the last battle to be fought on the Roberts Court. It might not even be the most significant. In the next term, for example, the court is being asked to reconsider its affirmative action jurisprudence. There are almost certainly five votes to overturn court rulings from a decade ago upholding some forms of affirmative action.

Following that, the court will face a variety of tough decisions. There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act.

I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series of decisions really might have irrevocably hurt the court’s reputation for independence.

But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues….

Yes, but Roberts and his conservative brethren have life tenure, and what the public thinks about the Court surely is less important that what the Court does. Giving ground to seem “nice” is a classic conservative blunder.

Perhaps I can find solace in a column by Tom Socca, writing at Slate:

There were two battles being fought in the Supreme Court over the Affordable Care Act. Chief Justice John Roberts—and Justice Anthony Kennedy—delivered victory to the right in the one that mattered….

The scholars expected to see the court gut existing Commerce Clause precedent and overturn the individual mandate in a partisan decision: Five Republican-appointed justices voting to rewrite doctrine and reject Obamacare; four Democratic-appointed justices dissenting.

Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well)….

This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.

Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

This strikes me as more of the same. But perhaps Trende and Socca are on to something. Roberts, by reaching out the the Court’s left, may have gained useful allies for future fights. Kennedy, despite his surprising (to me) absolute opposition to Obamacare, can and will stray off the conservative reservation without warning.

There is also the important and still-to-be-decided issue of Obamacare’s effects on religious freedom. This is from a post by Sarah Marshall and Jennifer Torre at The Foundry:

…The Court’s ruling to uphold Obamacare doesn’t mean the law has cleared its legal challenges, however. Twenty-three federal lawsuits against Obamacare’s Health and Human Services (HHS) mandate—which goes into effect on August 1—now take on added urgency….

The HHS anti-conscience mandate is a completely separate rule from the individual mandate, and its constitutionality was not considered by the Supreme Court in the cases decided today. The HHS mandate, along with the individual mandate and the rest of Obamacare, still presents a clear threat to individual and religious liberty. Nothing short of full repeal of the statute will adequately protect our freedoms from this federal overreach.

The next legal battleground against Obamacare resides in the fight to protect employers from the coercive requirement to provide coverage of abortion-inducing drugs, contraception, and sterilization under the HHS mandate….

Obamacare’s anti-conscience mandate affords the narrowest religious exemption in federal law, effectively covering only formal houses of worship. Countless other religious employers, like schools, hospitals, and religious charities, are forced to provide coverage for the mandated services despite moral or religious objections—simply because they step outside the four walls of a church to serve others.

Creating the choice to violate conscience or forgo providing health insurance entirely—and risk hefty fines under Obamacare—the HHS mandate profoundly and adversely affects many employers and the people they serve….

Perhaps this is one of the fights anticipated by Roberts. And perhaps he wants to win it by more than 5-4 (or to ensure that he wins it). Robert John Araujo of Mirror of Justice has some related thoughts:

[The following observation of Justice Ginsburg and her colleagues in their partial concurrence and dissent might suggest that the debate and probably the litigation involving the legality of this legislation will continue for some time to come. As she says about the provisions of the Constitution that exist to check Congressional overreaching:

A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.

…[I]t would appear that this subject which Justice Ginsburg, and those who agree with her, has identified may well be in the courts in the not-too-distant future [as discussed in the preceding quotation].

Could Roberts be angling to enlist Ginsburg as an ally in the looming freedom-of-conscience cases? That strikes me as a long shot because Ginsburg — “good” statist that she is, will no doubt find a way to wiggle out of her implied commitment to the free exercise of religion. But Roberts’s real targets may be Justices Breyer and Kagan, who joined his opinion — including the ruling that the expansion of Medicaid was unduly coercive of the States.

If Roberts has made the political calculations attributed to him — and I wouldn’t be surprised if he has — my only wish is that his calculations prove correct. If they are not, he simply will have wasted what would have been a perfectly good majority opinion, namely, the dissent of Justices Scalia, Kennedy, Thomas, and Alito.

Obamacare, Slopes, Ratchets, and the Death Spiral of Liberty

Today’s ruling by the U.S. Supreme Court in the matter of Obamacare (National Federation of Business et al. v. Sebelius, Secretary of Health and Human Services, et al.) is portrayed by some commentators as a victory of sorts for limited government. Consider the following excerpts of the Syllabus:

[T]he individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause….

The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.”… The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”…

Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power…. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

So far, so good, but

for the reasons explained, the Commerce Clause does not give Congress that power.It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.”… In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,”… the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax….

The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.”…

Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax.

What a strange tax it is that must be paid to the government in order to breathe life into a program for which there is no constitutional remit in the “limited and enumerated powers” of the government. The government’s powers to tax and spend are not open-ended; they must serve a constitutional purpose.

There is more:

[T]he Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion….

The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.”… Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs…. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism….

Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically. The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion….

The constitutional violation is fully remedied by precluding the Secretary from … withdraw[ing] existing Medicaid funds for failure to comply with the requirements set out in the expansion.

Again, gratifying as the holding may be to some parties, it assumes (and therefore affirms) the constitutionality of an act that “meet[s] he health care needs of the entire nonelderly population with income below 133 percent of the poverty level.” Where does the Constitution set forth Congress’s power to do any such thing?

My outrage is echoed in the dissent by Justices Scalia, Kennedy, Thomas, and Alito; for example:

The striking case of Wickard v. Filburn, … , which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers… Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development. The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of managing a Federal Government large enough to administer such a system. That obstacle can be overcome by granting funds to the States, allowing them to administer the program. That is fair and constitutional enough when the States freely agree to have their powers employed and their employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the States have no choice.

The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying nonconsenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.

Amen to that. And the same goes for Social Security and Medicare. (My words, not the words of the dissenting justices, unfortunately.)

Where does today’s ruling leave Americans? Further down the slippery slope to serfdom. The “slippery slope” 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 it became accepted that the federal government could establish programs like Social Security, Medicare, and Medicaid, it became relatively easy to expand those programs to encompass the “national emergency” of the day. And so, the stage has been set for government-run health care in the United States, with all that goes with it: long queues, worse care, rationing, and death panels, and more.

Another metaphor for the inexorable engrossment 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.

The acceptance of the status quo (Social Security, Medicare, and Medicaid) as a baseline sets the stage for a ratcheting up to a new, more expansive and expensive status quo (Obamacare), on the ground that if X is good, X+ will be better. That X is good and X+ will be better are articles of faith, which become widely accepted without serious consideration of the burden they impose on the most productive citizens, the negative effect of that burden on the nation’s economy, or the liberty of the people. It has been heartening that most Americans have opposed Obamacare, in the main because of the perceived insult to liberty known as the individual mandate. But, alas, a majority of the Supreme Court has found a legalistic way in which to ratchet up the mainspring of government power.

Perhaps the best metaphor for today’s ruling is the death spiral. Reliance on government usually creates more problems than it solves. But, having become accustomed to relying on government, most Americans rely on government to deal with the problems caused by government’s previous enactments. That only makes matters worse, which causes Americans to rely further on government, etc., etc. etc.

In the case of Obamacare, what we have is a reaction to the high costs of medical services and the presumed failure of markets to provide adequate health care for large chunks of the population. It escapes the notice of most Americans — and is of no interest to most politicians — that the high costs and supposed “market failures” are due to government action: tax subsidies for employer-provided insurance (which results in an artificially high demand for medical services); mandated insurance coverages; barriers to interstate competition in insurance markets; the FDA’s long, death-inducing approval process for new drugs; the AMA’s government-sponsored stranglehold on the training and licensing of doctors; a similar stranglehold on the establishment of health-care facilities; and on and on.This is the real “national emergency,” which today’s majority blithely ignored in its quest to find an extra-constitutional (i.e., precedential) basis for the further expansion of government power.

It is long past time for Americans to declare their independence from the legislative, executive, and judicial tyranny under which we labor for the benefit of politicians, bureaucrats, and freeloaders.

Posts about government power, its effects, and ways to combat it:
FDR and Fascism
The People’s Romance
Fascism
Fascism with a “Friendly” Face
Secession
Democracy and Liberty
The Interest-Group Paradox
Is Statism Inevitable?
Inventing “Liberalism”
The Price of Government
A New, New Constitution
Zones of Liberty
Fascism and the Future of America
Secession Redux
A New Cold War or Secession?
The Price of Government Redux
The Real Constitution and Civil Disobedience
The Near-Victory of Communism
A Declaration of Independence
The Mega-Depression
Tocqueville’s Prescience
First Principles
As Goes Greece
Accountants of the Soul
Ricardian Equivalence Reconsidered
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
Society and the State
I Want My Country Back
Estimating the Rahn Curve: Or, How Government Inhibits Economic Growth
The Bowles-Simpson Report
The Bowles-Simpson Band-Aid
Regime Uncertainty and the Great Recession
Re-Forming the United States
The Stagnation Thesis
Taxing the Rich
More about Taxing the Rich
America’s Financial Crisis Is Now
The Southern Secession Reconsidered
A Declaration of Civil Disobedience
The Repealer
Regulation as Wishful Thinking
The Real Multiplier
Vulgar Keynesianism and Capitalism
Why Are Interest Rates So Low?
The Commandeered Economy
Estimating the Rahn Curve: A Sequel
In Defense of the 1%
The Real Multiplier (II)
Lay My (Regulatory) Burden Down
The Burden of Government
Constitutional Confusion
Reclaiming Liberty throughout the Land
Economic Growth Since World War II
More Evidence for the Rahn Curve

In Mourning

I am in mourning for liberty in the United States, which has been killed by today’s ruling by the U.S. Supreme Court. Thus the black band at the top of this blog.

More to come.

UPDATE (09/06/13)

I’ve gone back to red because I’m fighting mad, and plan to stay that way.

“Big SIS”: A Review

“Big SIS” is the special-interest state, of which James V. DeLong writes in Ending “Big SIS” (The Special Interest State) and Renewing the American Republic.It is a non-fiction horror story, one that should outrage every reader. A reader must be impervious facts and logic if he gets very far into “Big SIS” without grasping the direness of America’s present condition.

What is that condition? It is enslavement (not too strong a word) to the regulatory state. DeLong does an admirable job of describing the growth and entrenchment of the regulatory state (chapter 2). But the most compelling parts of his thoroughly factual narrative arrive with his documentation of the costs of the regulatory state and his enumeration of example after example of its lunacies. If you have a visceral feeling that government in the United States has become entirely too intrusive in its methods and perverse in its results, DeLong’s book will confirm that feeling and give you plenty of weapons with which to refute those who believe in government as a disinterested, omniscient force for good.

If chapters 2 and 3 outrage you, as they should, surely chapter 4 will depress you. There, DeLong enumerates and explicates the many reasons that the regulatory state’s death grip on America is unlikely to be loosened. DeLong holds out some hope for change in chapter 5, where he discusses many ways in which the death-grip might be loosened.

But I am less sanguine than DeLong seems to be about the possible efficacy of his proposed counter-measures. The forces that DeLong describes in chapter 4 are likely to prove too strong to be defeated in gentlemanly fashion. In the end, it may well come to non-gentlemanly counter-measures, something along the lines of a new Declaration of Independence from the imperial state that has arisen in Washington.

If it does come to that, DeLong’s catalog of imperial acts and their vile consequences would serve splendidly as a replacement for the original Declaration’s enumeration of King George III’s “repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny.”

Obesity and Statism

Richard Posner, a leader of the law and economics movement, exposes himself as an out-and-out statist:

I am not particularly interested in saving the obese from themselves. I am concerned about the negative externalities of obesity—the costs that the obese impose on others. Some of the others are the purchasers of health insurance and the taxpayers who pay for Medicaid and Medicare and social security disability benefits…. Obesity kills, but slowly, and en route to dying the obese run up heavy bills that, to a great extent, others pay.

Even more serious are the harmful effects of obesity, and of the food habits that contribute to it, on children…. Children who grow up in a household of obese parents (often there is just one parent, and she is obese) very often acquire the same bad habits.

One might think that since most parents are altruistic toward their children, parents would strive to prevent their children from acquiring their bad habits. But if they don’t know how to avoid becoming obese themselves, it is unlikely that they know how to prevent their children from becoming obese.

Then too, the more people in one’s family or circle of friends or coworkers who are obese, the more obesity seems normal. This is an implication of the fact that homo sapiens is a social animal. We want to blend in with our social peers….

Bloomberg’s proposal is widely criticized, not only on the shallow ground that it interferes with freedom of choice, but on the more substantial ground that it can’t have much effect, since the same sugared drinks can be sold in smaller containers…. [I]f the sale of sugared drinks in big containers is forbidden, there will be at least a slight drop in the purchase of those drinks and hence in their consumption….

More important is the symbolic significance of Bloomberg’s proposal (if it is adopted and enforced). It is an attention getter! It tells New Yorkers that obesity is a social problem warranting government intervention, and not just a personal choice.

Think of the history of cigarette regulation…. Cigarette smoking fell, from an average of 40 percent of the adult population in the 1970s to 19 percent today. There is some grumbling about this massive governmental intrusion into consumer choice, but very little. I certainly am not grumbling about it.

If there is to be a parallel movement to reduce obesity, it has to start somewhere. Maybe it will start with Bloomberg’s container proposal—an attention getter. Maybe it will grow. Maybe someday it will be as effective, and receive as much public approbation, as the anti-smoking movement. [From Posner’s post about “Bloomberg, Sugar, and Obesity,” at The Becker-Posner Blog, June 18, 2012.]

There you have a reputedly keen “legal mind” in the throes of economistic thinking. It perfectly illustrates a phenomenon about which I write in “A Man for No Seasons“:

[T]oo many economists justify free markets on utilitarian grounds, that is, because free markets produce more (i.e., are more efficient) than regulated markets. This happens to be true, but free markets can and should be justified mainly because they are free, that is, because they allow individuals to pursue otherwise lawful aims through voluntary, mutually beneficial exchanges of products and services. Liberty is a principle, a deep value; economic efficiency is merely a byproduct of adherence to that value.

It is evident that Posner cares not a jot about liberty; efficiency is his god.

Posner’s facile analysis of the costs of obesity is obviously grounded in an aversion to obese persons. He gives his game away by lauding the anti-cigarette campaign, which is really based on two things:

an esthetic revulsion

the snobbishness of the middle and upper-middle classes toward their “inferiors.”

The parallels to the anti-obesity campaign are so evident that I need say nothing more on this point.

In any event, the real problem is not obesity. It is that Americans have been forced to accept responsibility for other persons’ health. Posner almost grasps this when he writes about “the purchasers of health insurance and the taxpayers who pay for Medicaid and Medicare and social security disability benefits.” These problems would largely disappear if government did not distort the cost of health insurance through mandates and barriers to entry, and did not force some Americans to subsidize the health care of others through Medicare, Medicaid, and various State and local programs. The consumption of junk food, which Posner correctly indicts as a cause of obesity, is undoubtedly subsidized (indirectly) by welfare payments and food stamps.

The growing fraction of Americans who are considered obese is, in fact, a symptom of the ability of competitive markets to deliver more nourishment at a lower real cost. If obesity is concentrated among low-income groups — and I believe that it is — it means that low-income groups, on the whole, are better nourished than they were in the past. But, in typical fashion, paternalists like Posner focus on the aspects of progress that they find distasteful, while ignoring the larger picture.

If Posner were really serious about saving Americans from the consequences of their own behavior, he would be agitating for a ban on automobiles and the prohibition of alcoholic beverages. Oh, prohibition was tried and it failed because of its unintended consequences? My, my, what a surprise.

The unintended consequences of a war on obesity should be obvious to Posner — or would be if he were not blinded by paternalism. Regulators, armed with the power to limit what Americans can consume, would inevitably do great mischief to the health and enjoyment that Americans derive from the preparation and consumption of foodstuffs. Regulators love to impose one-size-fits all restrictions on everyone, instead of allowing individuals and firms to choose those courses of action that best suit them. And so — in the name of health and under the influence of various food-Nazis — regulators would move beyond Bloomberg’s simplistic “solution” to truly draconian measures. Almost anything that is believed to be harmful to some persons (e.g., salt, fat, nuts) would be strictly metered if not banned for all persons. (I have no taste for raw fish, but I would be aghast if those who like sashimi were unable to buy it because of the health risk that accompanies its consumption.) Then there are the opportunities for various interest groups (e.g., American cheese manufacturers) to rig the regulatory game in their favor. In short, it is not far down the regulatory slope from a ban on super-size drinks to a ban on foods that most of us find enjoyable, and even healthful.

But Mrs. Grundy — er, Judge Posner and his ilk — will not be deterred. And if the Grundy-Posners succeed in their paternalistic crusade, they will have turned America into a land of grim, granola-crunching Zombies. For that is liberty, Posner-style.

Secession, Anyone?

As a denizen of the People’s Republic of Austin, I “relate” to this piece by Will Wilkinson:

…Lorrie Moore, a professor of English at the University of Wisconsin-Madison and fiction writer of note, reports that the acrimonious recall campaign has set brother against brother from Eau Claire to Kenosha:

Despite the assertion by journalist David Brooks (and others) that Americans live in more like-minded communities than ever before and are therefore cut off from values and opinions at variance with their own, more than a year later Wisconsin’s recall of its Governor and several legislators is now said to have pitted neighbor against neighbor. It is being called “a civil war,” and as in our American Civil War some family members are not talking to other family members. Despite a history of bipartisanship, people have chosen sides (as midwesterners tend to do in divorce; not for them the pseudo-sophisticated friends-with-all approach). Tales of confrontation abound: A driver with a “Recall Walker” bumper sticker might be tailed on the highway then passed in the adjacent lane by someone holding up a “Fuck the Recall” sign.

…Trust and a convincing imitation of geniality keep the public institutions of the upper Midwest running relatively smoothly. One hopes the discord brought upon the Badger State by moneyed outsiders bent on proving partisan points dies down after the vote is in, but I’m afraid this sort of fight will become increasingly common in so-called “swing states” as Americans continue to polarise along partisan lines.

The Pew Research Center’s “2012 American Values Survey” finds that Americans have never been more polarised, at least not since polarisation has been measured. Here’s a picture of the extent of the partisan divide:

….

America is dotted with hundreds of islands of concentrated liberalism, thanks to its largely publicly-funded university system. In Wisconsin, for example, it is not at all unusual to hear the state capital called “the People’s Republic of Madison”, on account of the university and its attendant politics. The role of universities in the story of American polarisation seems to me under-appreciated. America’s college towns facilitate within-state sorting according to political affinity by offering temperamentally liberal Wisconsinites or Georgians or Texans attractive places to live among fellow bleeding hearts, but without having to go too far from home. Big state universities also act as magnets drawing “foreign”, out-of-state academics, artists and their wannabe students away from their natural habitats on the coasts….

Now, as partisan polarisation increases nationwide, the town-gown divide inevitably grows more stark and hostile. The denizens of our nation’s inland archipelago of people’s republics grow politically further and further from the surrounding citizenry, whose taxes and tuition keep college-town bookstores in Bataille [link added]….

Regarding the partisan divide and the Pew survey, Arnold Kling says ” I do not think that this will end well.”

It could end quite well — if enough politicians at the State level would muster the guts to do the right thing, which is to secede en bloc. What would a Free States of America look like? Possibly like this:

The States in red went for G.W. Bush in 2000 and 2004. I have omitted three other twice-Bush States — Nevada, Colorado, and Virginia — because they went for Obama in 2008 by margins of greater than 5 percentage points. I would welcome Nevada, Colorado, and Virginia into the fold. New Mexico (which went for Bush in 2004) would be welcome, too, for the sake of territorial integrity. (The other once-Bush States are Iowa, which is suspect because of its attachment to ethanol, and New Hampshire, which (sad to say) is trending “blue.”)

What about the bastions of “liberalism,” like Austin? Well, without the support of a central government that underwrites and encourages its fads and foibles, it would become a saner, freer place as its “liberals” gradually emigrate to friendlier climes.

See also “The Constitution: Myths and Realities“.

Abortion, “Gay Rights,” and Liberty

Among the items that drew my attention today is “A Prime Instance of Political Correctness: The Blackballing of Nat Hentoff,” by Maverick Philosopher.

My opposition to abortion on libertarian grounds is of long standing, with this being the most recent of many posts on the subject. As it turns out, Nat Hentoff, who on many issues might be considered a leftist, holds views similar to mine. This, for example, is from his “Indivisible Fight for Life“:

I’ll begin by indicating how I became aware, very belatedly, of the “indivisibility of life.” I mention this fragment of autobiography only be cause I think it may be useful to those who are interested in bringing others like me – some people are not interested in making the ranks more heterogeneous, but others are, as I’ve been finding out – to a realization that the “slippery slope” is far more than a metaphor.

When I say “like me,” I suppose in some respects I’m regarded as a “liberal,” although I often stray from that category, and certainly a civil libertarian – though the ACLU and I are in profound disagreement on the matters of abortion, handicapped infants and euthanasia, because I think they have forsaken basic civil liberties in dealing with these issues. I’m considered a liberal except for that unaccountable heresy of recent years that has to do with pro-life matters.

It’s all the more unaccountable to a lot of people because I remain an atheist, a Jewish atheist. (That’s a special branch of the division.) I think the question I’m most often asked from both sides is, “How do you presume to have this kind of moral conception without a belief in God?” And the answer is, “It’s harder.” But it’s not impossible….

Now, I had not been thinking about abortion at all. I had not thought about it for years. I had what W. H. Auden called in another context a “rehearsed response.” You mentioned abortion and I would say, “Oh yeah, that’s a fundamental part of women’s liberation,” and that was the end of it.

But then I started hearing about “late abortion.” The simple “fact” that the infant had been born, proponents suggest, should not get in the way of mercifully saving him or her from a life hardly worth living. At the same time, the parents are saved from the financial and emotional burden of caring for an imperfect child.

And then I heard the head of the Reproductive Freedom Rights unit of the ACLU saying – this was at the same time as the Baby Jane Doe story was developing on Long Island – at a forum, “I don’t know what all this fuss is about. Dealing with these handicapped infants is really an extension of women’s reproductive freedom rights, women’s right to control their own bodies.”

That stopped me. It seemed to me we were not talking about Roe v. Wade. These infants were born. And having been born, as persons under the Constitution, they were entitled to at least the same rights as people on death row – due process, equal protection of the law. So for the first time, I began to pay attention to the “slippery slope” warnings of pro-lifers I read about or had seen on television. Because abortion had become legal and easily available, that argument ran – as you well know – infanticide would eventually become openly permissible, to be followed by euthanasia for infirm, expensive senior citizens….

Recently, I was interviewing Dr. Norman Levinsky, Chief of Medicine of Boston University Medical Center and a medical ethicist. He is one of those rare medical ethicists who really is concerned with nurturing life, as contrasted with those of his peers who see death as a form of treatment. He told me that he is much disturbed by the extent to which medical decisions are made according to the patient’s age. He says there are those physicians who believe that life is worth less if you’re over 80 than if you’re 28.

So this is capsulizing an incremental learning process. I was beginning to learn about the indivisibility of life. I began to interview people, to read, and I read Dr. Leo Alexander. Joe Stanton, who must be the greatest single resource of information, at least to beginners – and, I think, non-beginners – in this field, sent me a whole lot of stuff, including Dr. Leo Alexander’s piece in the New England Journal of Medicine in the 1940s. And then I thought of Dr. Alexander when I saw an April 1984 piece in the New England Journal of Medicine by 10 physicians defending the withdrawal of food and water from certain “hopelessly ill” patients. And I found out that Dr. Alexander was still alive then but didn’t have much longer to live. And he said to Patrick Duff, who is a professor of philosophy at Clarke University and who testified in the Brophy case, about that article, “It is much like Germany in the 20s and 30s. The barriers against killing are coming down.”…

Back to Dr. Norman Levinsky. This is all part of this learning process. It is not a huge step, he said, from stopping the feeding to giving the patient a little more morphine to speed his end. I mean it is not a big step from passive to active euthanasia.

Well, in time, a rather short period of time, I became pro-life across the board, which led to certain social problems, starting at home. My wife’s most recurrent attack begins with, “You are creating social mischief,” and there are people at my paper who do not speak to me anymore. In most cases, that’s no loss.

Which leads to “Blackballing Nat Hentoff,” by Mark Judge (writing at RealClearReligion):

Hentoff’s conversion from pro-choice to pro-life, and the fallout that resulted, is explained in an essay in the new book, The Debate Since Roe: Making the Case Against Abortion 1975-2010. It’s a compendium of essays from the journal Human Life Review….

Hentoff’s liberal friends didn’t appreciate his conversion: “They were saying, ‘What’s the big fuss about? If the parents had known she was going to come in this way, they would have had an abortion. So why don’t you consider it a late abortion and go on to something else? Here were liberals, decent people, fully convinced themselves that they were for individual rights and liberties but willing to send into eternity these infants because they were imperfect, inconvenient, costly. I saw the same attitude on the part of the same kinds of people toward abortion, and I thought it was pretty horrifying.”

The reaction from America’s corrupt fourth estate was instant. Hentoff, a Guggenheim fellow and author of dozens of books, was a pariah. Several of his colleagues at the Village Voice, which had run his column since the 1950s, stopped talking to him. When the National Press Foundation wanted to give him a lifetime achievement award, there was a bitter debate amongst members whether Hentoff should even be honored (he was). Then they stopped running his columns. You heard his name less and less. In December 2008, the Village Voice officially let him go.

The blackballing of Hentoff, reprehensible and revealing of the left’s moral bankruptcy as it may be, has one positive aspect: It seems to have been accomplished by private action; that is, the power of the state has not been wielded against Hentoff. (As far as I know.)

The power of the state has been wielded against those who dare to resist the “gay rights” movement and its ancillary activities. Here is Hentoff, writing in September 2000 (“Media Ignores Far-Ranging Gag Order“) about one such instance:

On March 30, the Boston chapter of the national Gay, Lesbian, and Straight Education Network (GLSEN) held a conference at Tufts University. Present, from around the state, were teen-agers and some children as young as 12, as well as teachers who received state ‘professional development credits’ for being there.

One of the sessions was titled, ‘What They Don’t Tell You About Queer Sex & Sexuality in Health Class: A Workshop for Youth Only, Ages 14-21.’ Instructing the students were two employees of the state Department of Education and a consultant from the Department of Public Health.

Scott Whiteman of the conservative Parents Rights Coalition attended that class and secretly taped it. I have a copy of the transcript. When a youngster asked, ‘What’s fisting?’ in gay sex, a woman from the Education Department explained how to do it. There might be some pain, she said, but it’s an ‘experience of letting somebody into your body that you want to be that close and intimate with.’

Among other lessons, there was a ‘hand diagram’ to show how lesbians have sex. Another workshop was: ‘Early Child Educators: How to Decide Whether to Come Out at Work or Not.’

Part of the tape was played on Boston talk-radio station WTKK-FM by the host, Jeanine Graf, whom I’ve known for years as a vigorous advocate for free speech.

The Parents Rights Coalition made the tape available to others, and GLSEN sued to have it and any transcripts suppressed. On May 17, Suffolk County Superior Court Judge Allan van Gestel, who moonlights as a lecturer at Harvard Law School, issued one of the most far-ranging prior-restraint orders in American judicial history….

It included not only the Parents Rights Coalition but anyone, including lawyers, who tried ‘to disclose or use such tape in any forum’ or its contents. That included the press, electronic and print….

The … media [other than the Boston Herald] was silent, except for WTKK’s Graf. She kept playing the tape. And, on her program, Harvard law professor Alan Dershowitz and Harvey Silverglate – a civil-rights and civil-liberties lawyer as well as a national columnist – attacked the prior restraint as a violation of a series of U.S. Supreme Court decisions.

I went on Graf’s show to violate the gag order. I discussed what was on the tape and underlined the judge’s contempt for settled First Amendment law. Also criticizing the prior restraint was Jay Severin, a WTKK commentator.

The Massachusetts affiliate of the American Civil Liberties Union was silent….

On May 25, van Gestel modified his gag rule, saying, ‘Nothing in this preliminary injunction shall be deemed to apply in any way to the print or electronic news media.’ But the rest of the prior restraint continued….

Subsequently, there has been some coverage of this assault on the First Amendment and the acquiescence of most of the Boston media. Rod Dreher, a New York Post columnist, wrote an indignant ‘Banned in Boston’ article in the July 3-10 issue of The Weekly Standard….

Aside from Dreher’s piece, I’ve seen no mention in the national press of this gag order that should go into the Guinness Book of World Records. If a similar suppression of speech had been handed down by a judge against a secret taping of a David Duke-sponsored conference by the National Association for the Advancement of Colored People, would there have been such media silence?

Fast forward to 2012, where the leftist-statist conspiracy to advance “gay rights” (i.e., gay privileges) is alive and well. A case in point is described in “Wedding Photographer May Be Required (on Pain of Legal Liability) to Photograph Same-Sex Commitment Ceremonies,” at The Volokh Conspiracy:

So the New Mexico Court of Appeals held last week in the long-pending Elane Photography v. Willock (N.M. Ct. App. May 31, 2012). The court began by holding that the state law that bans sexual orientation discrimination in places of public accommodation applies to professional wedding photographers’ decisions not to photograph same-sex commitment ceremonies: Such photography businesses are “places of public accommodation” under the language of the law, and the discrimination between legally recognized opposite-sex marriages (New Mexico only recognizes such marriages) and same-sex commitment ceremonies constitutes discrimination based on sexual orientation.

The court then rejected the argument of the photographer (Elane Huguenin, the co-owner and principal photographer for Elane Photography) that penalizing her for not photographing such same-sex ceremonies was an unconstitutional “speech compulsion.” The First Amendment, Huguenin argued, has been repeatedly held to protect the right to speak as well as the right not to speak; and the right not to speak includes the right not to create artistic expression that one doesn’t want to create. And just as the First Amendment protects speech that is said for money (indeed, most books, newspapers, movies, and the like are created and distributed commercially), so it protects the right not to create certain artistic works for money, even if one is in that line of business. But the court disagreed….

I don’t think this [ruling] is right, for reasons that I discussed in my earlier posts about earlier stages of this case. It seems to me that the right to be free from compelled speech includes the right not to create First-Amendment-protected expression — photographs, paintings, songs, press releases, or what have you — that you disagree with, even if no-one would perceive you as endorsing that expression….

Amen to that.

Not that I am surprised by the court’s action. This is from “Civil Society and Homosexual “Marriage,” a post that I wrote three years ago:

[A]s sure as the sun sets in the west, the state will begin to apply the equal protection clause of the Fourteenth Amendment in order to protect homosexual “marriage” from its critics. Acting under the rubric of “civil rights” — and in keeping with the way that anti-discrimination laws have been applied to date — the state will deal harshly with employers, landlords, and clergy who seem to discriminate against homosexual “marriage” and its participants.

The post concludes with this:

Many will dismiss consequential arguments against homosexual “marriage” by asserting that the state’s refusal to legitimate homosexual marriage simply isn’t “fair.” In return, I will ask this:

Unfair to whom, to the relatively small number of persons who seek to assuage their pride or avoid paying a lawyer to document the terms of their relationship, or generally unfair to members of society (of all sexual proclivities), whose well-being is bound to suffer for the sake of homosexual pride or cost-avoidance?

As a practicing minarchist, I would rather have the state stay out of “the marriage business.” But given that the state is already in that business — and is unlikely to get out of it — the next-best outcome is for the state to uphold societal norms instead of bowing to the preferences of the gay lobby and its influential supporters.

Faced with a choice between libertarian shibboleth and libertarian substance, I have chosen substance. I now say: Ban homosexual marriage and avoid another step down the slippery slope toward incivility and bigger government.

And, while we are striking blows for liberty, let us ban abortion, too.

Not Guilty of Libertarian Purism

I highly recommend “Understanding Hayek” as a companion-piece to this post.

UPDATED (BELOW), 06/01/12

This post is in response to Jason Brennan’s post of May 30, “We Are Statists in Classical Liberal Clothing.” Brennan’s post was triggered ” by “Bleeding Heart Libertarians = Left-Statists,” which I posted on May 10.

I must say, first, that I am grateful to Brennan for linking to my blog, my bio, and the post that offends him. Today, the number of page views at Politics & Prosperity is about double the usual total for a Wednesday.

Now, what is right and what is wrong in Brennan’s reaction to my (admittedly and intentionally) provocative post? The first thing that is wrong with it is that I am not a libertarian, at least not of a kind that Brennan and company would recognize as such. I call myself a Burkean libertarian because (a) I am a Burkean conservative and (b) true libertarianism is found in Burkean conservatism; to wit:

A “true” libertarian respects socially evolved norms because those norms evidence and sustain the mutual trust, respect, forbearance, and voluntary aid that — taken together — foster willing, peaceful coexistence and beneficially cooperative behavior. And what is liberty but willing peaceful coexistence and beneficially cooperative behavior?

If socially evolved norms include the condemnation of abortion (because it involves the murder of a living human being) and the rejection of same-sex “marriage” (because it mocks and undermines the institution through which children are born and raised by an adult of each gender, fate willing), the “true” libertarian will accept those norms as part and parcel of the larger social order — as long as it is a peaceful, voluntary order.

The “pseudo” libertarian — in my observation — will reject those norms because they interfere with the “natural rights” (or some such thing) of the individuals who want to abort fetuses and/or grant same-sex “marriage” the same status as heterosexual marriage. But to reject and reverse norms as fundamental as the condemnation of abortion and same-sex “marriage” is to create strife and distrust, therefore undermining the conditions upon which liberty depends….

The pseudo-libertarian … is afraid to admit that the long evolution of rules of conduct by human beings who must coexist might just be superior to the rules that he would arbitrarily impose, reflecting as they do his “superior” sensibilities. I say “arbitrarily” because pseudo-libertarians have not been notably critical of the judicial impositions that have legalized abortion and same-sex marriage, or of the legislative impositions that have corrupted property rights in the pursuit of “social justice.”

All in all, it seems that pseudo-libertarians believe in the possibility of separating the warp and woof of society without causing the disintegration of the social fabric. The pseudo-libertarian, in that respect, mimics the doctrinaire socialist who wants prosperity but rejects one of its foundation stones: property rights.

A true libertarian will eschew the temptation to prescribe the details of social conduct. He will, instead, take the following positions:

The role of the state is to protect individuals from deceit, coercion, and force.

The rules of social conduct are adopted voluntarily within that framework are legitimate and libertarian.

There is much more to it than that, of course. So, before anyone challenges my view of what truly constitutes libertarianism, he or she should first read the many posts that I link to at the bottom of this one.

Brennan’s second mistake is to assume that I am interested in libertarian purity. The original title of his post was “Libertarian Purity: Statists in Classical Liberal Clothing”; he calls me a hardcore libertarian; and — following a flawed reconstruction of my argument (about which more, below) — he links to an “antidote,” which is a piece by Alexander McCubin called “Let’s Reject the Purity Test.” But, as a non-libertarian, I am uninterested in libertarian purity.

What I am interested in, in the case of Brennan, many of his co-authors at Bleeding Heart Libertarians, and others of their ilk, is how they can call themselves libertarians when they are willing to invoke the power of the state to bring the social and economic order into compliance with their preconceptions of its proper shape. It is not as if I suddenly arrived at that assessment. Here is a list of fourteen earlier posts in which I address various aspects of the contorted libertarianism of BHLs:

“The Meaning of Liberty” (03/09/11)
“Positive Liberty vs. Liberty” (03/25/11)
“More Social Justice” (03/30/11)
“On Self-Ownership and Desert” (04/22/11)
“Corporations, Unions, and the State” (06/30/11)
“In Defense of Subjectivism” (08/02/11)
“The Folly of Pacifism, Again” (08/28/11)
“What Is Libertarianism?” (09/06/11)
“Why Stop at the Death Penalty?” (09/22/11)
“Regulation as Wishful Thinking” (10/13/11)
“What Is Bleeding-Heart Libertarianism?” (12/17/11)
“The Morality of Occupying Private Property” (12/21/11)
“The Equal-Protection Scam and Same-Sex ‘Marriage’” (01/03/12)
“Liberty, Negative Rights, and Bleeding Hearts” (02/13/12)

A third, arguably wrong thing in Brennan’s post is his statement that “Hayek was more ‘statist’ than Zwolinski or I.” I do not know how to measure degrees of statism (perhaps Brennan can tell me), but I respect Hayek and his memory because, for one thing, he did not pretend to be a libertarian. This passage from the Wikipedia article about Hayek comports with what I know of him and his ideas:

Hayek wrote an essay, “Why I Am Not a Conservative”^[94] (included as an appendix to The Constitution of Liberty), in which he disparaged conservatism for its inability to adapt to changing human realities or to offer a positive political program, remarking, “Conservatism is only as good as what it conserves”. Although he noted that modern day conservatism shares many opinions on economics with classic liberals, particularly a belief in the free market, he believed it’s because conservatism wants to “stand still,” whereas liberalism embraces the free market because it “wants to go somewhere”. Hayek identified himself as a classical liberal but noted that in the United States it had become almost impossible to use “liberal” in its original definition, and the term “libertarian” has been used instead.

However, for his part, Hayek found this term “singularly unattractive” and offered the term “Old Whig” (a phrase borrowed from Edmund Burke) instead. In his later life, he said, “I am becoming a Burkean Whig.” However, Whiggery as a political doctrine had little affinity for classical political economy, the tabernacle of the Manchester School and William Gladstone.^[95] His essay has served as an inspiration to other liberal-minded economists wishing to distinguish themselves from conservative thinkers, for example James M. Buchanan‘s essay “Why I, Too, Am Not a Conservative: The Normative Vision of Classical Liberalism”.

A common term in much of the world for what Hayek espoused is “neoliberalism“. A British scholar, Samuel Brittan, concluded in 2010, “Hayek’s book [The Constitution of Liberty] is still probably the most comprehensive statement of the underlying ideas of the moderate free market philosophy espoused by neoliberals.”^[96]…

In Why F A Hayek is a Conservative,^[97] British policy analyst Madsen Pirie believes Hayek mistakes the nature of the conservative outlook. Conservatives, he says, are not averse to change – but like Hayek, they are highly averse to change being imposed on the social order by people in authority who think they know how to run things better. They wish to allow the market to function smoothly and give it the freedom to change and develop. It is an outlook, says Pirie, that Hayek and conservatives both share.

If Hayek was, in some respects, more statist than Brennan and company, his essential program was nevertheless more libertarian — by my lights — because it was more grounded in an understanding of and respect for society as a complex organism. That is why I dedicate this blog to Hayek’s memory.

BHLs, in contrast to Hayek, strike me as shallow and naive. They seem to believe that their proposed interventions in the name of “social justice” would (a) work as intended and (b) not invite further interventions from entrenched (and more powerful) interests. Interventions are to the state what raw meat is to a beast. Libertarians should be proposing ways to tame the beast, not feed it.

Which brings me to my final point: Brennan’s reconstruction of an argument (my argument?) that he attributes to “hardcore libertarians”:

Most of the BHLers think that the consequences of different kinds of institutions matter sufficiently that, under at least some hypothetical circumstances, they would not advocate anarcho-capitalism or minimal statism.
If 1, then BHLers are left-statists.
Therefore, BHLers are left-statists.
Either the BHLers are stupid and don’t know they are left-statists, or they are conniving and know they are left-statists.
The BHLers are not stupid. [Thanks for the bone!]
Therefore, the BHLers are conniving and know they are left-statists.

My argument was rather more complex and nuanced than that. I will not replicate or summarize it here; you can read it for yourself. Brennan focuses on one (non-essential) aspect of my argument, the one that offends him — namely, that BHLs are conniving left-statists. Brennan’s post convinces me that I was wrong to imply that BHLs are connivers; they (or too many of them) are just arrogant in their judgments about “social justice” and naive when they presume that the state can enact it. It follows that (most) BHLs are not witting left-statists; they are (too often) just unwitting accomplices of left-statism.

Accordingly, if I were to re-title the offending post I would call it “Bleeding-Heart Libertarians: Crypto-Statists or Dupes for Statism?”.

UPDATE (06/01/12):

I will not respond to every commentary about this post, but I will say some things about “Saving Liberty from the ‘True Libertarians’,” by “dL” of Libérale et libertaire. First, though, I want to thank dL for using an attractive WordPress theme, Suburbia, I liked the look of dL’s blog so much that I switched to Suburbia almost as soon as I had finished reading dL’s post. [06/08/12: I later found and switched to DePo Masthead. It is another multi-column theme, but unlike Suburbia, the front page of DePo Masthead displays complete, properly formatted posts.] [06/12/12: DePo Masthead had drawbacks that were not evident when I previewed it. I am now using NotesIL, which is much like Enterprise, the theme I had used for at least a few years, but with a brighter look and a sidebar on the left.]

Now, for the serious stuff. It would seem that dL did not heed what I say in the original post:

[B]efore anyone challenges my view of what truly constitutes libertarianism, he or she should first read the many posts that I link to at the bottom of this one.

Had dL done what I suggest, he or she would have learned that I do, in fact, accept Hayek’s “evolutionary social framework methodology.” I repeatedly invoke “voluntarily evolved social norms” as the bedrock of a truly libertarian social order.

And why is such a social order “truly libertarian”? Well, it is easy to say, as dL does, that

Liberty is simply defined as “do what you want, constrained only by the harm to others.”

This is an empty formulation that is nowhere close to an operational definition of liberty. Real liberty — what I call “true liberty” — is not a string of words on paper, it is a feasible social order. It is — as I say in several of the posts that dL evidently did not read — a modus vivendi. To spare dL (and others) the trouble of digging through my posts, I quote at length from “The Meaning of Liberty“:

[A]t least one of the bloggers at Bleeding Heart Libertarians — a new group blog whose eight contributors (thus far) are professors of law and/or philosophy — advances the proposition that “liberty” means whatever non-philosophers think it means. The contributor in question, Jason Brennan, justifies his preference by saying that liberty “is a concept philosophers are interested in, but it’s a not a philosopher’s technical term.”

That may be so, but I would think that philosophers who are going to use a term that is central to the theme of their blog — the connection of libertarianism to social justice — would begin by searching for a relevant and logically consistent definition of liberty. Brennan, instead, casts a wide net and hauls in a list of seven popular definitions, one of which (negative liberty) has three sub-definitions. That may be a useful starting point, but Brennan leaves it there, thus implying that liberty is whatever anyone thinks it is….

I am struck by the fact that none of the definitions offered by Brennan is a good definition of liberty (about which, more below)…. I therefore humbly suggest that the next order of business at Bleeding Heart Libertarianism ought to be a concerted effort to define the concept that is part of the blog’s raison d’etre.

To help Brennan & Co. in their quest, I offer the following definition of liberty, which is from the first post at this blog, “On Liberty“:

peaceful, willing coexistence and its concomitant: beneficially cooperative behavior

The problem with the definitions listed by Brennan should now be obvious. Those definitions focus on the individual, whereas the relevant definition of liberty is a social one. That is to say, one cannot address social justice and its connection to liberty unless liberty is viewed as a modus vivendi for a group of individuals. There is no such thing as the ability to do as one pleases — the dominant motif of Brennan’s list — unless

one lives in complete isolation from others, or

one lives in the company of others who are of identical minds, or

one rules others.

The first condition is irrelevant to the matter of social justice. The second is implausible. The third takes the point of view of a dictator, and omits the point of view of his subjects.

The implausibility of the second condition is critical to a proper understanding of liberty. Brennan says (in “Positive Liberty and Legal Guarantees“) that “[w]e often equate freedom with an absence of constraints, impediments, or interference.” In a political context (i.e., where two or more persons coexist), there are always constraints on the behavior of at least one person, even in the absence of coercion or force. Coexistence requires compromise because (I daresay) no two humans are alike in their abilities, tastes, and preferences. And compromise necessitates constraints on behavior; that is, compromise means that the parties involved do not do what they would do if they were isolated from each other or of like minds about everything.

In sum, “peaceful, willing coexistence” does not imply “an absence of constraints, impediments, or interference.” Rather, it implies that there is necessarily a degree of compromise (voluntary constraint) for the sake of “beneficially cooperative behavior.” Even happy marriages are replete with voluntary constraints on behavior, constraints that enable the partners to enjoy the blessings of union.

The specific landscape of liberty — the rights and obligations of individuals with respect to one another — depends on the size and composition of the social group in question. It is there that the question of positive vs. negative liberty (really positive vs. negative rights) takes on importance. I will tackle that question in a future post.

I would expect dL (and many others) to protest that I hold a morally relative view of what constitutes liberty. I might let that assertion bother me if morality existed as an ideal (Platonic) form, visible to superior beings like dL, but not to mere mortals like me. But morality, itself, arises from the nature of human beings as social animals, a nature that is widely (though not universally) shared across races, ethnicities, and cultures. (On this point, see my posts “Libertarianism and Morality” and “Libertarianism and Morality: A Footnote.”) Unlike dL and his or her ilk, I prefer to ground political theory in the possible, not the imaginary ideal.

It seems that dL is especially vexed by what he or she calls my “byline.” This is a slogan that appears near the title of this blog, a slogan that I change from time to time. The current slogan is “Gay ‘marriage’: a tyranny of a minuscule minority.” This, to dL, is evidence that I am a defender of a “’tradition’ is not the actual tradition”; that is, I am anxious to defend a particular status quo instead of allowing social norms to evolve, as a good Hayekian would do.

I do not see how it is unfaithful to conservatism of the Burkean-Hayekian kind to oppose gay “marriage” in the current circumstances. Put simply, we have on the one hand a long-standing social institution that pre-dates the state, and on the other hand a “movement” to redefine that institution through the use of state power: legislative, executive, and judicial. If popular opinion is swinging toward support for gay “marriage,” as has been reported, we can chalk up a good deal of the swing to the influence of state action on popular opinion, and not vice versa. Is that dL’s idea of “actual tradition”?

The “About” page at dL’s blog opens with this quotation:

Liberty is the mother, not the daughter, of order Pierre-Joseph Proudhon

This is exactly 180 degrees from what is true and feasible in the real world. It is order (of a socially agreed kind) that fosters liberty and defines its precise contours.

David Brooks, Useful Idiot for the Left

David Brooks’s latest atrocity, “The Role of Uncle Sam,” appears in The New York Times of yesterday. I quote, in relevant part:

[T]he federal [government’s] role [in the economy] has historically been sharply limited. The man who initiated that role, Alexander Hamilton, was a nationalist. His primary goal was to enhance national power and eminence, not to make individuals rich or equal….

But this Hamiltonian approach has been largely abandoned. The abandonment came in three phases. First, the progressive era. The progressives were right to increase regulations to protect workers and consumers. But the late progressives had excessive faith in the power of government planners to rationalize national life. This was antithetical to the Hamiltonian tradition, which was much more skeptical about how much we can know and much more respectful toward the complexity of the world.

Second, the New Deal. Franklin Roosevelt was right to energetically respond to the Depression. But the New Deal’s dictum — that people don’t eat in the long run; they eat every day — was eventually corrosive. Politicians since have paid less attention to long-term structures and more to how many jobs they “create” in a specific month. Americans have been corrupted by the allure of debt, sacrificing future development for the sake of present spending and tax cuts.

Third, the Great Society. Lyndon Johnson was right to use government to do more to protect Americans from the vicissitudes of capitalism. But he made a series of open-ended promises, especially on health care. He tried to bind voters to the Democratic Party with a web of middle-class subsidies.

In each case, a good impulse was taken to excess. A government that was energetic and limited was turned into one that is omnidirectional and fiscally unsustainable. A government that was trusted and oriented around long-term visions is now distrusted because it tries to pander to the voters’ every momentary desire. A government that devoted its resources toward future innovation and development now devotes its resources to health care for the middle-class elderly….

In his engrossing new book, “Our Divided Political Heart,” E.J. Dionne, my NPR pundit partner, argues that the Hamiltonian and Jacksonian traditions formed part of a balanced consensus, which has been destroyed by the radical individualists of today’s Republican Party. But that balanced governing philosophy was destroyed gradually over the 20th century, before the Tea Party was even in utero. As government excessively overreached, Republicans became excessively antigovernment.

We’re not going back to the 19th-century governing philosophy of Hamilton, Clay and Lincoln. But that tradition offers guidance. The question is not whether government is inherently good or evil, but what government does.

Brooks begins by assuming that the Hamiltonian approach to government is the correct one: An assertion that Madison and Jefferson would refute.

Beyond that, Brooks ignores the evidence of his own analysis, which is that each aggrandizement of governmental power (economic and social) — beginning with Hamilton’s nationalism — fostered subsequent expansions of governmental power. It is a combination of ratchet effects and slippery slopes. The status quo is a baseline from which retreat is nigh impossible because of vested interests; the only possible next step, therefore, is an expansion of government to serve the newest “compelling need.”

Dionne’s so-called consensus never was a consensus. Consider, for example, the relative narrowness of FDR’s and LBJ’s “mandates,” which were in fact 60-40 splits. The fact of the matter is that the rules of the political game — as they have evolved through utter disregard of the real Constitution and the wishes of large segments of the populace — simply have allowed the accretion of power in Washington, even when there has been a “consensus” to diminish that power. I am, of course, thinking of the election of presidents like Harding, Coolidge, and Reagan by margins as great as those bestowed on FDR and LBJ.

If “government excessively overreached” — as Brooks admits — how could it be that “Republicans became excessively antigovernment”? It would seem that their (largely imagined) excessiveness is necessary and proper.

Nor should the “antigovernment” label be allowed to pass without comment. There is a difference between being “antigovernment” (i.e., anarchistic) and “pro-limited-government” (i.e., Madisonian and Jeffersonian rather than Hamiltonian). The “antigovernment” label is a cynical libel routinely deployed by the forces of big government in an effort to discredit those who are bold enough to point out that the expansion of governmental power has undermined social comity and prosperity. (The most cynical of efforts to discredit the opponents of big government occurred in the aftermath of Timothy McVeigh’s atrocious act in Oklahoma City. McVeigh was an antigovernment terrorist. And so it became the theme-of-the-month among the NPR crowd that everyone who is for less government is “antigovernment” and, by extension, a kind of terrorist.)

Brooks wants a limited government, but only if it is limited to a Hamiltonian scope. But the instant that government is allowed to exceed its brief, as it was when Hamilton’s “nationalism” became the central government’s leitmotif, the proverbial genie comes out of the bottle. It can only be stuffed back into the bottle by getting government completely out of the business of trying (in any way) to help business (except to protect it from domestic and foreign predators, of course).

Markets respond quite nicely to real needs, thank you. On the other hand, powerful governments (Hamiltonian and worse) respond to the capricious and costly commands of those who govern.

The Real Constitution and Civil Disobedience
Columnist, Heal Thyself
The Mega-Depression
The Real Burden of Government
Toward a Risk-Free Economy
The Left
The Constitution: Original Meaning, Corruption, and Restoration
Our Miss Brooks
The Illusion of Prosperity and Stability
Society and the State
I Want My Country Back
Estimating the Rahn Curve: Or, How Government Inhibits Economic Growth
Undermining the Free Society
Intelligence, Personality, Politics, and Happiness
“Intellectuals and Society”: A Review
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
Government vs. Community
The Stagnation Thesis
The Left’s Agenda
The Public-School Swindle
The Evil That Is Done with Good Intentions
The Left and Its Delusions
The Destruction of Society in the Name of “Society”
Miss Brooks’s “Grand Bargain”
More Fool He
Externalities and Statism
Taxes: Theft or Duty?
Society and the State
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
Estimating the Rahn Curve: A Sequel
A Nation of (Unconstitutional) Laws
Are You in the Bubble?
Lay My (Regulatory) Burden Down
Conservatives vs. “Liberals”

Enough with the Bleeding Hearts, Already

Regular readers will know of my disdain for the “bleeding heart” variety of so-called libertarianism. I not only find bleeding-heart libertarians (BHLs) to be unnecessarily apologetic about libertarianism, but also all too willing to impose their views about “social justice” through state action. (On the latter point, see my post “Bleeding Heart Libertarians = Left-Statists,” and this from a BHL who clearly advocates state action on utilitarian grounds.)

A recent post by Aaron Ross Powell at Libertarianism.org reminds me that not all useful “libertarian” idiots are housed at the Bleeding Heart Libertarians blog. Powell’s post, “Libertarian Caring,” makes some good points; for example, Powell ends the post with this:

Liberty does not come at the exclusion of all other concerns. Rather, liberty is the best way to maximize all other concerns. Yes there are libertarians who want nothing more than “to be left alone.” But that feeling doesn’t carry with it Haidt’s implied “and screw all the rest of you.” Instead, “left alone” means freed from officious government so we can better go about making the world a happier, healthier, richer, and more caring place.

Very well said, except that earlier in the post insists that his heart is in the right place not because he is a libertarian but because he “cares”; for example:

Of course libertarians value liberty. But a great many of us, myself included, value caring very highly too. In fact, the reason I shifted from being a progressive to a libertarian was not because my moral foundations changed but because I came to realize that genuine caring means making an effort to actually help people—and that government programs intended to help have a rather poor track record.

Which means that Powell does not value liberty, or thinks of it as a secondary value. In his heart he is still a “progressive” — just one who is looking for the best way to maximize the mythical social-welfare function. Powell is right about the fruits of liberty, but it seems that if he were convinced that liberty did not have beneficial consequences he would revert to statism.

I do not care why anyone is a libertarian, just as long as he is not a left-statist in libertarian clothing.

On that point I turn to David Henderson (with whom I sometimes disagree). Henderson makes an excellent point in the video embedded here. Free markets (i.e., libertarian institutions) foster ethical behavior because producers compete by striving to do things that benefit consumers. The same is not true of governments and NGOs.

The teaching of ethical behavior is not to be scorned. But scoundrels will always be with us, in all walks of life. There is nothing about business that attracts or breeds a disproportionate number of scoundrels. In fact, I would say that politics and bureaucracies attract and breed more than their share of scoundrels. But even if that is not the case, the scoundrels who are drawn to “public service” are less constrained in their behavior toward others than the scoundrels who are drawn to business.

Not-So-Random Thoughts (III)

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

Apropos Science

In the vein of “Something from Nothing?” there is this:

[Stephen] Meyer also argued [in a a recent talk at the University Club in D.C.] that biological evolutionary theory, which “attempts to explain how new forms of life evolved from simpler pre-existing forms,” faces formidable difficulties. In particular, the modern version of Darwin’s theory, neo-Darwinism, also has an information problem.

Mutations, or copying errors in the DNA, are analogous to copying errors in digital code, and they supposedly provide the grist for natural selection. But, Meyer said: “What we know from all codes and languages is that when specificity of sequence is a condition of function, random changes degrade function much faster than they come up with something new.”…

The problem is comparable to opening a big combination lock. He asked the audience to imagine a bike lock with ten dials and ten digits per dial. Such a lock would have 10 billion possibilities with only one that works. But the protein alphabet has 20 possibilities at each site, and the average protein has about 300 amino acids in sequence….

Remember: Not just any old jumble of amino acids makes a protein. Chimps typing at keyboards will have to type for a very long time before they get an error-free, meaningful sentence of 150 characters. “We have a small needle in a huge haystack.” Neo-Darwinism has not solved this problem, Meyer said. “There’s a mathematical rigor to this which has not been a part of the so-called evolution-creation debate.”…

“[L]eading U.S. biologists, including evolutionary biologists, are saying we need a new theory of evolution,” Meyer said. Many increasingly criticize Darwinism, even if they don’t accept design. One is the cell biologist James Shapiro of the University of Chicago. His new book is Evolution: A View From the 21st Century. He’s “looking for a new evolutionary theory.” David Depew (Iowa) and Bruce Weber (Cal State) recently wrote in Biological Theory that Darwinism “can no longer serve as a general framework for evolutionary theory.” Such criticisms have mounted in the technical literature. (Tom Bethell, “Intelligent Design at the University Club,” American Spectator, May 2012)

And this:

[I]t is startling to realize that the entire brief for demoting human beings, and organisms in general, to meaningless scraps of molecular machinery — a demotion that fuels the long-running science-religion wars and that, as “shocking” revelation, supposedly stands on a par with Copernicus’s heliocentric proposal — rests on the vague conjunction of two scarcely creditable concepts: the randomness of mutations and the fitness of organisms. And, strangely, this shocking revelation has been sold to us in the context of a descriptive biological literature that, from the molecular level on up, remains almost nothing buta documentation of the meaningfully organized, goal-directed stories of living creatures.

Here, then, is what the advocates of evolutionary mindlessness and meaninglessness would have us overlook. We must overlook, first of all, the fact that organisms are masterful participants in, and revisers of, their own genomes, taking a leading position in the most intricate, subtle, and intentional genomic “dance” one could possibly imagine. And then we must overlook the way the organism responds intelligently, and in accord with its own purposes, to whatever it encounters in its environment, including the environment of its own body, and including what we may prefer to view as “accidents.” Then, too, we are asked to ignore not only the living, reproducing creatures whose intensely directed lives provide the only basis we have ever known for the dynamic processes of evolution, but also all the meaning of the larger environment in which these creatures participate — an environment compounded of all the infinitely complex ecological interactions that play out in significant balances, imbalances, competition, cooperation, symbioses, and all the rest, yielding the marvelously varied and interwoven living communities we find in savannah and rainforest, desert and meadow, stream and ocean, mountain and valley. And then, finally, we must be sure to pay no heed to the fact that the fitness, against which we have assumed our notion of randomness could be defined, is one of the most obscure, ill-formed concepts in all of science.

Overlooking all this, we are supposed to see — somewhere — blind, mindless, random, purposeless automatisms at the ultimate explanatory root of all genetic variation leading to evolutionary change. (Stephen L. Talbott, “Evolution and the Illusion of Randomness,” The New Atlantis, Fall 2011)

My point is not to suggest that that the writers are correct in their conjectures. Rather, the force of their conjectures shows that supposedly “settled” science is (a) always far from settled (on big questions, at least) and (b) necessarily incomplete because it can never reach ultimate truths.

Trayvon, George, and Barack

Recent revelations about the case of Trayvon Martin and George Zimmerman suggest the following:

Martin was acting suspiciously and smelled of marijuana.

Zimmerman was rightly concerned about Martin’s behavior, given the history of break-ins in Zimmerman’s neighborhood.

Martin attacked Zimmerman, had him on the ground, was punching his face, and had broken his nose.

Zimmerman shot Martin in self-defense.

Whether the encounter was “ultimately avoidable,” as a police report asserts, is beside the point. Zimmerman acted in self-defense, and the case against him should be dismissed. The special prosecutor should be admonished by the court for having succumbed to media and mob pressure in bringing a charge of second-degree murder against Zimmerman.

What we have here is the same old story: Black “victim”–>media frenzy to blame whites (or a “white Hispanic”), without benefit of all relevant facts–>facts exonerate whites. To paraphrase Shakespeare: The first thing we should do after the revolution is kill all the pundits (along with the lawyers).

Obama famously said, “”If I had a son, he would look like Trayvon.” Given the thuggish similarity between Trayvon and Obama (small sample here), it is more accurate to say that if Obama had a son, he would be like Trayvon.

Creepy People

Exhibit A is Richard Thaler, a self-proclaimed libertarian who is nothing of the kind. Thaler defends the individual mandate that is at the heart of Obamacare (by implication, at least), when he attacks the “slippery slope” argument against it. Annon Simon nails Thaler:

Richard Thaler’s NYT piece from a few days ago, Slippery-Slope Logic, Applied to Health Care, takes conservatives to task for relying on a “slippery slope” fallacy to argue that Obamacare’s individual mandate should be invalidated. Thaler believes that the hypothetical broccoli mandate — used by opponents of Obamacare to show that upholding the mandate would require the Court to acknowledge congressional authority to do all sorts of other things — would never be adopted by Congress or upheld by a federal court. This simplistic view of the Obamacare litigation obscures legitimate concerns over the amount of power that the Obama administration is claiming for the federal government. It also ignores the way creative judges can use previous cases as building blocks to justify outcomes that were perhaps unimaginable when those building blocks were initially formed….

[N]ot all slippery-slope claims are fallacious. The Supreme Court’s decisions are often informed by precedent, and, as every law student learned when studying the Court’s privacy cases, a decision today could be used by a judge ten years from now to justify outcomes no one had in mind.

In 1965, the Supreme Court in Griswold v. Connecticut, referencing penumbras and emanations, recognized a right to privacy in marriage that mandated striking down an anti-contraception law.

Seven years later, in Eisenstadt v. Baird, this right expanded to individual privacy, because after all, a marriage is made of individuals, and “[i]f the right of privacy means anything, it is the right of the individual . . . to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

By 1973 in Roe v. Wade, this precedent, which had started out as a right recognized in marriage, had mutated into a right to abortion that no one could really trace to any specific textual provision in the Constitution. Slippery slope anyone?

This also happened in Lawrence v. Texas in 2003, where the Supreme Court struck down an anti-sodomy law. The Court explained that the case did not involve gay marriage, and Justice O’Connor’s concurrence went further, distinguishing gay marriage from the case at hand. Despite those pronouncements, later decisions enshrining gay marriage as a constitutionally protected right have relied upon Lawrence. For instance, Goodridge v. Department of Public Health (Mass. 2003) cited Lawrence 9 times, Varnum v. Brien (Iowa 2009) cited Lawrence 4 times, and Perry v. Brown (N.D. Cal, 2010) cited Lawrence 9 times.

However the Court ultimately rules, there is no question that this case will serve as a major inflection point in our nation’s debate about the size and scope of the federal government. I hope it serves to clarify the limits on congressional power, and not as another stepping stone on the path away from limited, constitutional government. (“The Supreme Court’s Slippery Slope,” National Review Online, May 17, 2012)

Simon could have mentioned Wickard v. Filburn (1942), in which the Supreme Court brought purely private, intrastate activity within the reach of Congress’s power to regulate interstate commerce. The downward slope from Wickard v. Filburn to today’s intrusive regulatory regime has been been not merely slippery but precipitous.

Then there is Brian Leiter, some of whose statist musings I have addressed in the past. It seems that Leiter has taken to defending the idiotic Elizabeth Warren for her convenient adoption of a Native American identity. Todd Zywicki tears a new one for Leiter:

I was out of town most of last week and I wasn’t planning on blogging any more on the increasingly bizarre saga of Elizabeth Warren’s claim to Native American ancestry, which as of the current moment appears to be entirely unsubstantiated. But I was surprised to see Brian Leiter’s post doubling-down in his defense of Warren–and calling me a “Stalinist” to boot (although I confess it is not clear why or how he is using that term). So I hope you will indulge me while I respond.

First, let me say again what I expressed at the outset–I have known from highly-credible sources for a decade that in the past Warren identified herself as a Native American in order to put herself in a position to benefit from hiring preferences (I am certain that Brian knows this now too). She was quite outspoken about it at times in the past and, as her current defenses have suggested, she believed that she was entitled to claim it. So there would have been no reason for her to not identify as such and in fact she was apparently quite unapologetic about it at the time….

Second, Brian seems to believe for some reason that the issue here is whether Warren actually benefited from a hiring preference. Of course it is not (as my post makes eminently clear). The issue I raised is whether Warren made assertions as part of the law school hiring process in order to put herself in a position to benefit from a hiring preference for which she had no foundation….

Third, regardless of why she did it, Warren herself actually had no verifiable basis for her self-identification as Native American. At the very least her initial claim was grossly reckless and with no objective foundation–it appears that she herself has never had any foundation for the claim beyond “family lore” and her “high cheekbones.”… Now it turns out that the New England Historical Genealogical Society, which had been the source for the widely-reported claim that she might be 1/32 Cherokee, has rescinded its earlier conclusion and now says “We have no proof that Elizabeth Warren’s great great great grandmother O.C. Sarah Smith either is or is not of Cherokee descent.” The story adds, “Their announcement came in the wake of an official report from an Oklahoma county clerk that said a document purporting to prove Warren’s Cherokee roots — her great great great grandmother’s marriage license application — does not exist.” A Cherokee genealogist has similarly stated that she can find no evidence to support Warren’s claim. At this point her claim appears to be entirely unsupported as an objective matter and it appears that she herself had no basis for it originally.

Fourth, Brian’s post also states the obvious–that there is plenty of bad blood between Elizabeth and myself. But, of course, the only reason that this issue is interesting and relevant today is because Warren is running for the U.S. Senate and is the most prominent law professor in America at this moment.

So, I guess I’ll conclude by asking the obvious question: if a very prominent conservative law professor (say, for example, John Yoo) had misrepresented himself throughout his professorial career in the manner that Elizabeth Warren has would Brian still consider it to be “the non-issue du jour“? Really?

I’m not sure what a “Stalinist” is. But I would think that ignoring a prominent person’s misdeeds just because you like her politics, and attacking the messenger instead, just might fit the bill. (“New England Genealogical Historical Society Rescinds Conclusion that Elizabeth Warren Might Be Cherokee,” The Volokh Conspiracy, May 17, 2012)

For another insight into Leiter’s character, read this and weep not for him.

Tea Party Sell-Outs

Business as usual in Washington:

This week the Club for Growth released a study of votes cast in 2011 by the 87 Republicans elected to the House in November 2010. The Club found that “In many cases, the rhetoric of the so-called “Tea Party” freshmen simply didn’t match their records.” Particularly disconcerting is the fact that so many GOP newcomers cast votes against spending cuts.

The study comes on the heels of three telling votes taken last week in the House that should have been slam-dunks for members who possess the slightest regard for limited government and free markets. Alas, only 26 of the 87 members of the “Tea Party class” voted to defund both the Economic Development Administration and the president’s new Advanced Manufacturing Technology Consortia program (see my previous discussion of these votes here) and against reauthorizing the Export-Import Bank (see my colleague Sallie James’s excoriation of that vote here).

I assembled the following table, which shows how each of the 87 freshman voted. The 26 who voted for liberty in all three cases are highlighted. Only 49 percent voted to defund the EDA. Only 56 percent voted to defund a new corporate welfare program requested by the Obama administration. And only a dismal 44 percent voted against reauthorizing “Boeing’s bank.” That’s pathetic. (Tad DeHaven, “Freshman Republicans Switch from Tea to Kool-Aid,” Cato@Liberty, May 17, 2012)

Lesson: Never trust a politician who seeks a position of power, unless that person earns trust by divesting the position of power.

PCness

Just a few of the recent outbreaks of PCness that enraged me:

“Michigan Mayor Calls Pro-Lifers ‘Forces of Darkness’” (reported by LifeNews.com on May 11, 2012)

“US Class Suspended for Its View on Islam” (reported by CourierMail.com.au, May 11, 2012)

“House Democrats Politicize Trayvon Martin” (posted at Powerline, May 8, 2012)

“Chronicle of Higher Education Fires Blogger for Questioning Seriousness of Black Studies Depts.” (posted at Reason.com/hit & run, May 8, 2012)

Technocracy, Externalities, and Statism

From a review of Robert Frank’s The Darwin Economy:

In many ways, economics is the discipline best suited to the technocratic mindset. This has nothing to do with its traditional subject matter. It is not about debating how to produce goods and services or how to distribute them. Instead, it relates to how economics has emerged as an approach that distances itself from democratic politics and provides little room for human agency.

Anyone who has done a high-school course in economics is likely to have learned the basics of its technocratic approach from the start. Students have long been taught that economics is a ‘positive science’ – one based on facts rather than values. Politicians are entitled to their preferences, so the argument went, but economists are supposed to give them impartial advice based on an objective examination of the facts.

More recently this approach has been taken even further. The supposedly objective role of the technocrat-economist has become supreme, while the role of politics has been sidelined….

The starting point of The Darwin Economy is what economists call the collective action problem: the divergence between individual and collective interests. A simple example is a fishermen fishing in a lake. For each individual, it might be rational to catch as many fish as possible, but if all fishermen follow the same path the lake will eventually be empty. It is therefore deemed necessary to find ways to negotiate this tension between individual and group interests.

Those who have followed the discussion of behavioural economics will recognise that this is an alternative way of viewing humans as irrational. Behavioural economists focus on individuals behaving in supposedly irrational ways. For example, they argue that people often do not invest enough to secure themselves a reasonable pension. For Frank, in contrast, individuals may behave rationally but the net result of group behaviour can still be irrational….

…From Frank’s premises, any activity considered harmful by experts could be deemed illegitimate and subjected to punitive measures….

…[I]t is … wrong to assume that there is no more scope for economic growth to be beneficial. Even in the West, there is a long way to go before scarcity is limited. This is not just a question of individuals having as many consumer goods as they desire – although that has a role. It also means having the resources to provide as many airports, art galleries, hospitals, power stations, roads, schools, universities and other facilities as are needed. There is still ample scope for absolute improvements in living standards…. (Daniel Ben-ami, “Delving into the Mind of the Technocrat,” The Spiked Review of Books, February 2012)

There is much to disagree with in the review, but the quoted material is right on. It leads me to quote myself:

…[L]ife is full of externalities — positive and negative. They often emanate from the same event, and cannot be separated. State action that attempts to undo negative externalities usually results in the negation or curtailment of positive ones. In terms of the preceding example, state action often is aimed at forcing the attractive woman to be less attractive, thus depriving quietly appreciative men of a positive externality, rather than penalizing the crude man if his actions cross the line from mere rudeness to assault.

The main argument against externalities is that they somehow result in something other than a “social optimum.” This argument is pure, economistic hokum. It rests on the unsupportable belief in a social-welfare function, which requires the balancing (by an omniscient being, I suppose) of the happiness and unhappiness that results from every action that affects another person, either directly or indirectly….

A believer in externalities might respond by saying that they are of “economic” importance only as they are imposed on bystanders as a spillover from economic transactions, as in the case of emissions from a power plant that can cause lung damage in susceptible persons. Such a reply is of a kind that only an omniscient being could make with impunity. What privileges an economistic thinker to say that the line of demarcation between relevant and irrelevant acts should be drawn in a certain place? The authors of campus speech codes evidently prefer to draw the line in such a way as to penalize the behavior of the crude man in the above example. Who is the economistic thinker to say that the authors of campus speech codes have it wrong? And who is the legalistic thinker to say that speech should be regulated by deferring to the “feelings” that it arouses in persons who may hear or read it?

Despite the intricacies that I have sketched, negative externalities are singled out for attention and rectification, to the detriment of social and economic intercourse. Remove the negative externalities of electric-power generation and you make more costly (and even inaccessible) a (perhaps the) key factor in America’s economic growth in the past century. Try to limit the supposed negative externality of human activity known as “greenhouse gases” and you limit the ability of humans to cope with that externality (if it exists) through invention, innovation, and entrepreneurship. Limit the supposed negative externality of “offensive” speech and you quickly limit the range of ideas that may be expressed in political discourse. Limit the supposed externalities of suburban sprawl and you, in effect, sentence people to suffer the crime, filth, crowding, contentiousness, heat-island effects, and other externalities of urban living.

The real problem is not externalities but economistic and legalistic reactions to them….

The main result of rationalistic thinking — because it yields vote-worthy slogans and empty promises to fix this and that “problem” — is the aggrandizement of the state, to the detriment of civil society.

The fundamental error of rationalists is to believe that “problems” call for collective action, and to identify collective action with state action. They lack the insight and imagination to understand that the social beings whose voluntary, cooperative efforts are responsible for mankind’s vast material progress are perfectly capable of adapting to and solving “problems,” and that the intrusions of the state simply complicate matters, when not making them worse. True collective action is found in voluntary social and economic intercourse, the complex, information-rich content of which rationalists cannot fathom. They are as useless as a blind man who is shouting directions to an Indy 500 driver….

Theodore Dalrymple

If you do not know of Theodore Dalrymple, you should. His book, In Praise of Prejudice: The Necessity of Preconceived Ideas, inspired “On Liberty,” the first post at this blog. Without further ado, I commend these recent items by and about Dalrymple:

“Rotting from the Head Down” (an article by Dalrymple about the social collapse of Britain, City Journal, March 8, 2012)

“Symposium: Why Do Progressives Love Criminals?” (Dalrymple and others, FrontPageMag.com, March 9, 2012)

“Doctors Should Not Vote for Industrial Action,” a strike, in American parlance (a post by Dalrymple, The Social Affairs Unit, March 22, 2012)

The third item ends with this:

The fact is that there has never been, is never, and never will be any industrial action over the manifold failures of the public service to provide what it is supposed to provide. Whoever heard of teachers going on strike because a fifth of our children emerge from 11 years of compulsory education unable to read fluently, despite large increases in expenditure on education?

If the doctors vote for industrial action, they will enter a downward spiral of public mistrust of their motives. They should think twice before doing so.

Amen.

The Higher-Eduction Bubble

The title of a post at The Right Coast tells the tale: “Under 25 College Educated More Unemployed than Non-college Educated for First Time.” As I wrote here,

When I entered college [in 1958], I was among the 28 percent of high-school graduates then attending college. It was evident to me that about half of my college classmates didn’t belong in an institution of higher learning. Despite that, the college-enrollment rate among high-school graduates has since doubled.

(Also see this.)

American taxpayers should be up in arms over the subsidization of an industry that wastes their money on the useless education of masses of indeducable persons. Then there is the fact that taxpayers are forced to subsidize the enemies of liberty who populate university faculties.

The news about unemployment among college grads may hasten the bursting of the higher-ed bubble. It cannot happen too soon.

Race and Reason: The Victims of Affirmative Action

“Race and Reason: The Derbyshire Debacle” was this blog’s first serious venture into the sociology and politics of race in America. This second venture addresses the ways in which the state usurps the liberty and property of white Americans for the benefit of black ones.

It all adds up to gross injustice: placing the blame on the blameless. As I say in “Luck-Egalitarianism and Moral Luck“:

There is a “right” set of life outcomes …, which luck-egalitarians are qualified to choose and evaluate because of their [self-assessed] superior moral character.

Therefore, it is wrong if some persons are worse off than others in terms of the “right” set of outcomes….

Those who are better off (by the selective standards of the luck-egalitarian) owe aid to those who are worse off, even if those who are better off did nothing that made others worse off. The better-off simply do not deserve all that they have because, surely, they must owe much of it to luck.

Thus blameless Americans have been burdened with equal employment opportunity (EEO), about which more below; minority lending preferences, which contributed to the Great Recession by encouraging mortgage loans to low-income borrowers; public-accommodations laws, a.k.a. theft of property rights and denial of freedom of association; the expansion of the welfare state, which led to welfare dependency, broken families, and crime; and the prosecution and persecution of politically incorrect views as “hate crimes” and “inappropriate” expressions of thought.

Of those burdens, I am most familiar with EEO (a.k.a. affirmative action) because I had to contend with its enforcement and consequences in my job as the chief financial and administrative officer of a private, federally funded, research organization. What EEO (affirmative action) means in practice is this: If a member of a “protected” (i.e., favored) identity-group seems to have something like the minimum qualifications for a job, and if that person’s work record and interviews aren’t off-putting, the identity-group person is likely to be hired or promoted ahead of equally or better-qualified whites. Why?

Pressure from government EEO offices, which focus on percentages of identity groups hired and promoted, not on the qualifications of applicants for hiring and promotion.

The ability of those EEO offices to put government agencies and private employers through the pain and expense of extensive audits, backed by the threat of adverse reports to higher ups (in the case of government agencies) and fines and the loss of contracts (in the case of private employers).

The ever-present threat of complaints to the EEOC (or its local counterpart) by rejected identity-group candidates for hiring and promotion. Those complaints can then be followed by costly litigation, settlements, and court judgments.

Boards of directors and senior managers who (a) fear the adverse publicity that can accompany employment-related litigation and (b) push for special treatment of identity groups because they think it’s “the right thing to do.”

Managers down the line who practice reverse discrimination against better-qualified but “unprotected” identity groups, to keep EEO offices and upper management happy.

(UPDATE 08/14/12: See Roger Clegg’s “Big Business Weighs In, Unconvincingly, in Fisher v. Texas” for more in the vein of the last two points.)

Blacks constitute the identity group most likely to seek “protection” under the rubric of EEO. On balance, the (effectively) forced hiring of under-qualified blacks causes significant economic damage — as well as resentment of and condescension toward blacks as “affirmative action hires.”

Universities long ago began to use the term “diversity” in place of “affirmative action.” This euphemistic shift was meant to reduce resentment and condescension toward under-qualified blacks who were (and are) admitted in place of better-qualified whites, and to deflect legal challenges of reverse discrimination by disguising it as an element of a policy of “mixing” for the betterment of social solidarity — or some such bullshit. Many businesses — especially large corporations — have adopted “diversity” as a corporate “value” because doing so reflects the “social responsibility” of boards and top executives.

Reverse discrimination in favor of blacks has victimized millions of Americans, in at least three ways:

The aforementioned combination of resentment and condescension has undoubtedly impeded the advance of racial harmony.

Many whites have suffered the loss of opportunities and income in the workplace — opportunities and income that would have been theirs if blacks were held to the same standards as whites with respect to hiring and promotion.

Many blacks have suffered, in the not-so-long run, because reverse discrimination has set them up for failure.

Victim 1: Social Comity

Reverse discrimination may have fostered harmony — in isolated instances. But, on balance, the country (as represented by the racial composition of public schools) has become more polarized along racial lines than it was in the 1960s and 1970s. Some critics of this phenomenon — which is called resegregation — blame court rulings that have undone much of the forced mixing that ensued from Brown v. Board of Education. But those rulings have only enabled many whites to avoid the mixing that they did not want in the first place. Further, resegregation owes much to “white flight” from old cities to suburbs and then to exurbs. Crime and culture are real and valid reasons for an aversion to mixing — reasons that cosseted politicians, academicians, and corporate executives cannot bring themselves to recognize or avow. America will never be a land of sweet racial harmony — nor will any other country — but more whites would willingly accept blacks as neighbors and classmates, were it not for the resentment and condescension caused by affirmative action.

Victim 2: Low-Income Whites

It is hard to come by good estimates of the cost to whites of pro-black discrimination in the workplace. The best one that I have found is here, where the author says this:

In 1997, because of affirmative action, about $192 billion in income [2.3 percent of GDP] was transferred from whites to preferred minorities. If we perform precisely the same calculation for blacks and Hispanics, we can break down the $192 billion into the amounts gained by each group. We find that $144.3 billion [1.7 percent of GDP] was transferred to blacks and $47.5 billion to Hispanics. Dividing these gains by the respective numbers of black and Hispanic workers, we can compute their average annual income enhancement. In 1997, on average a black was subsidized to the tune of about $9,400; a Hispanic gained an average of about $3,900. The cost of these subsidies was spread over 98,782,000 white workers who suffered an average loss of about $1,900 to pay the bill.

The cascade effect. The net displacement of whites by minorities is not uniformly spread across the quintiles. When high-earning whites are displaced down the employment ladder, they displace other whites downward by exerting pressure on the rung below. The effect is like a cascade. At the bottom there is no rung left. Low IQ whites, who in an affirmative action-free marketplace would be competitive in the $10,000 to $20,000 bracket, now pile up in the lowest-income quintile. Although affirmative action affects every white, the largest number affected are the least intelligent and competitive….

In sum, low-income whites — who are thought to be strongly anti-black, as a group — have a valid economic reason for their resentment of blacks. Although blacks, on the whole, are not to blame for affirmative action, they are its beneficiaries and they vote in disproportionate numbers for politicians who favor affirmative action and the other programs that are listed in the third paragraph of this post. The attachment of blacks to the tit of the state has not escaped the attention of whites, and a large fraction of them — the political left-academic complex aside — see that attachment as a moral failing.

Victim 3: Aspiring Blacks

Now to the issue of pro-black discrimination in the academy, which is the crux of Fisher v. University of Texas, a case that will be heard later this year by the U.S. Supreme Court. There is much to say about the harm done to whites and Asians in the name of “diversity,” but it has been said often and sometimes to good effect (e.g., Gratz v. Bollinger). The damage done to blacks has received far less attention, and Rick Sander, the main expositor of that harm, is one of a small number of academicians who has had the courage to call attention to it.

I first wrote about Sander seven years ago:

[N]ow comes Richard Sander…. a professor of law at UCLA who has published “A Systematic Analysis of Affirmative Action in American Law Schools[.]” [Samder] is without a doubt a liberal of the modern persuasion and a proponent of diversity. He is nevertheless critical of affirmative action as it is practiced at law schools. Here’s the gist of his analysis, as reported at FindLaw:

The Heavy Weight Placed on Race in Admissions in Virtually All Schools – the Cascade Effect
Professor Sander lays the foundation for his critique by describing the kind of race-based affirmative action that law schools use today. Under the Bakke and Grutter Supreme Court precedents, public (as well as private) law schools are prohibited from making use of quotas, two-track admissions schemes, or fixed points added to the numerical indices of minorities….

Professor Sander argues that, in fact, the Michigan law school program, despite its seeming flexibility and inscrutability, employs race in just as ambitious (critics would say aggressive) a way as did the Michigan undergraduate plan [which the U.S. Supreme Court found unconstitutional in Gratz]….

Moreover, and more important, Sander argues, the way race is used at the Michigan law school is the same way race is used in many if not most law school affirmative action programs. Indeed, Sander says that he has “been unable to find a single law school in the United States whose admissions operate the way Justice O’Connor describes in Grutter” – that is, where race is used as a flexible plus factor that does not effectively dominate over all other diversity criteria. The system of aggressive racial preferences is not, Sander says, confined to the “elite” law schools. Rather, “it is a characteristic of legal education as a whole.”

According to Sander, law school affirmative action across law schools is characterized by a “cascade” effect. As the elite schools “snap up” the blacks who otherwise would have been admitted to and have attended the next tier of schools, that next tier of schools snaps up the blacks who would have otherwise attended the tier below. And so forth.

The Mismatch Effect

This systematic cascade phenomenon is important, because when race is being used so weightily in schools all the way down the ladder, the result is that the African Americans who are admitted to each school under an affirmative action program are significantly less numerically qualified than are their white competitor students at that school, who were admitted outside the affirmative action plan. Sander calls this phenomenon the “mismatch” effect – black beneficiaries of affirmative action are “mismatched” at schools whose non-affirmative action students possess better credentials and skills.

Because of the pronounced mismatch effect that extends down the law school hierarchy, blacks tend to suffer poor grades in law school. According to the data Sander adduces, the median black law student’s GPA at the end of the first year of law school places him at the 7^th or 8^th percentile of his class. Put another way, more than 50% of black law students are in the bottom one-tenth of their law school class (in terms of grades) at the end of the first year.

The Long-Term Costs of the Mismatch Effect – Bar Passage and Job Placement

This poor academic performance in law school, in turn, creates two distinct costs for African Americans. First, Sander argues, the poor grades lead to a very poor bar passage rate. As he points out, “only 45% of black law students in the 1991 cohort completed law school and passed the bar on their first attempt.” That number is far worse than the comparable number for whites.

Sander goes on to argue that many of these blacks with poor grades would have had better grades – and have ended up with a higher chance of passing the bar – if they had been at law schools more commensurate with their academic skills. Sander’s data suggests to him that black students at any law school who have the same law school grades as white students at that school pass the bar in the same percentages. In other words, blacks with good law school grades don’t fail the bar any more than whites with the same grades.

The problem, Sander suggests, is that law schools have “mismatched” blacks in schools where they are unlikely to get good grades. By placing black students in environments where their grades will be higher – less competitive law schools — the system could improve their overall bar pass rate….

From all this, Sander argues that if race-based law school affirmative action were eliminated or reduced, the black bar passage rate would actually go up. According to his calculations, in the absence of preferential admissions, this rate would rise to 74% from the 45% he observed….

If affirmative action were eliminated, most black law students wouldn’t be ousted from law school entirely – they would simply attend law schools that “match” their numerical credentials more tightly. In other words, elimination of affirmative action would simply eliminate the mismatch effect – blacks would simply be attending less competitive and less prestigious schools than they are currently attending. And of those blacks who would be displaced from the bottom of the legal academic system altogether (i.e., those who need affirmative action simply to get into the least competitive schools), many of them today do not end up passing the bar and entering the legal profession in any event….

Sander says that blacks at better schools, but with poor grades, get worse jobs than they would if they were at lesser schools and had better grades. In other words, Sander argues, at all but the most elite schools, grades matter more than the school from which one graduates for black law job applicants. The upside of attending a better school is more than outweighed – in terms of employment options – by the downside of getting weak grades at that school, compared to the better grades that could have been obtained at a less competitive school….

So whether one focuses on passing the bar, or getting a good job, Sander says, there is a case that race-based affirmative action hurts, rather than helps, black law students.

Two years later, I added this:

Gail Heriot of The Right Coast, who is a professor at the University of San Diego School of Law and a commissioner of the U.S. Commission on Civil Rights, pens an update:

No one claims Sander’s findings are the last word on the subject. Although so far his work has held up to scrutiny as least as well as the work of his critics, all fair-minded scholars agree that more research is necessary before the “mismatch thesis” can be definitively accepted or rejected.

Unfortunately, fair-minded scholars are hard to come by when the issue is affirmative action. Some of the same people who argue Sander’s data are inconclusive are now actively trying to prevent him from conducting follow-up research that might yield definitive answers. If racial preferences really are causing more harm than good, these thinly-disguised political operatives don’t want anyone to know.

Take William Kidder, a University of California staff member and co-author of a frequently-cited attack of Sander’s study. When Sander and his ideologically-diverse co-investigators sought bar passage data from the State Bar of California, Kidder passionately argued that access should be denied, because disclosure “risks stigmatizing African American attorneys.” At the same time, the Society of American Law Teachers, which leans so heavily to the left it risks falling over sideways, subtly threatened future litigation against the State Bar. Coincidentally, one of Kidder’s co-authors, University of Michigan law professor David Chambers, is a former SALT president.

Sadly, the State Bar’s Committee of Bar Examiners caved under the pressure. The committee members didn’t formally explain their decision to deny Sander’s request for the non-personally-identifiable data, but the root cause is clear: Over the last forty years, many distinguished citizens–university presidents, judges, philanthropists, and other leaders–have built their reputations on their support for race-based admissions. Ordinary citizens have found secure jobs as part of the resulting diversity bureaucracy. If it’s not working, they too don’t want anyone to know.

The U.S. Commission on Civil Rights hopes that it can persuade the State Bar to reconsider. Its newly-released report on affirmative action in law schools specifically calls for state bar authorities to cooperate with qualified scholars studying the mismatch issue. Its recommendation is thus modest. It doesn’t claim that Sander is right or his critics wrong. It simply seeks to encourage and facilitate important research.

Its deeper purpose is to remind those who support and administer affirmative action polices of something that ought to be obvious: The good intentions of one’s predecessors do not give anyone a permanent moral free ride. Good faith requires a willingness to re-examine the consequences of one’s actions from time to time. Deliberate ignorance is not an option….

Sander doesn’t need to be proven 100% correct for his research to be devastating news for affirmative action supporters. Suppose the consequences of race-based admissions turn out to be simply a wash–neither increasing nor decreasing the number of minority attorneys. In that case, few people would think it worth the costs, not least among them the human cost that results from the failure of the supposed affirmative action beneficiaries to graduate and pass the bar. Under current practices, only 45% of blacks who enter law school pass the bar on their first attempt as opposed to over 78% of whites. Even after multiple tries, only 57% of blacks succeed. The rest are often saddled with student debt, routinely running as high as $160,000, not counting undergraduate debt. The real question therefore is how great an increase in the number of black attorneys is needed to justify this. If it is decreasing the number, it can hardly be defended.

Sander has returned to the fray, with more evidence about “mismatch” — this time about “scientific mismatch.” His three posts on the subject, at The Volokh Conspiracy, merit extensive excerpting. In his first post, he writes:

As some readers will recall, a little more than seven years ago I published an analysis of law school affirmative action in the Stanford Law Review. The article was the first to present detailed data on the operation and effects of racial preferences in law schools (focusing on blacks)….

The article generated intense interest, debate, and criticism, though even most critics conceded that I had gotten the facts right. Several well-known empirical scholars in law schools published essays that purported to disprove the mismatch hypothesis. For awhile, many defenders of affirmative action seemed to assume that the article would inevitably provoke a crisis in legal academia, and while attempting to seize the moral high ground in the debate, they attracted even more publicity to the article.

After several months, however, it became clear there would be no widespread calls, among either law students or law faculty, for further inquiry and reform, and things died down. Those unhappy with the “mismatch” article – and that included the vast majority of law school and university administrators – decided the best strategy was to (a) ignore the issue and (b) use their best efforts to prevent the further release of data such as I had used in the original article. There was another, smaller burst of attention when I published a follow-up article about affirmative action in law firms, and its similar tendency to boomerang on the intended beneficiaries; but otherwise, public debate about mismatch faded away.

It is about to come back.

Over the past few years, there has been a steadily growing stream of empirical research on affirmative action, much of it taking up the mismatch question. Some social scientists, like Peter Arcidiacono at Duke University and Frederick Smyth at the University of Virginia, were interested in this subject and producing valuable research well before my Stanford article appeared. Others, like Doug Williams at Sewanee University or Robert Zelnick at Boston University, were intrigued by some of the issues that arose out of the public mismatch debate and the questions raised in the debate. Still others have been attracted by the “natural experiments” in affirmative action created by the bans on racial preferences adopted in half-a-dozen states. I have worked closely with Jane Yakowitz (soon to join the law faculty at the University of Arizona) and public-spirited lawyers to pry loose data relevant for studying affirmative action.

Cumulatively, these scholars have produced a remarkable body of research (some of which can be found here) on the workings and effects of affirmative action. And the Supreme Court’s decision (by granting cert to Fisher v. University of Texas) to revisit the subject of racial admissions preferences in higher education will undoubtedly fuel interest in this work.

This is from Sander’s second post:

Some of the most significant recent work on affirmative action concerns a phenomenon called “science mismatch”. The idea behind science mismatch is very intuitive: if you are a high school senior interested in becoming, for example, a chemist, you may seriously harm your chances of success by attending a school where most of the other would-be chemists have stronger academic preparation than you do. Professors will tend to pitch their class at the median student, not you; and if you struggle or fall behind in the first semester of inorganic chemistry, you will be in even worse shape in the second semester, and in very serious trouble when you hit organic chemistry. You are likely to get bad grades and to either transfer out of chemistry or fail to graduate altogether….

Duke economists Peter Arcidiacono, Esteban Aucejo, and Ken Spenner last year completed a study that looked at a number of ways that differences in admissions standards at Duke affected academic outcomes. In one of many useful analyses they did, they found that 54% of black men at Duke who, as freshmen, had been interested in STEM fields or economics, had switched out of those fields before graduation; the comparative rate for white men was 8%. Importantly, they found that “these cross-race differences in switching patterns can be fully explained by differences in academic background.” In other words, preferences – not race – was the culprit.

In research conducted by FTC economist Marc Luppino and me, using data from the University of California, we have found important peer effects and mismatch effects that affect students of all races; our results show that one’s chances of completing a science degree fall sharply, at a given level of academic preparation, as one attends more and more elite schools within the UC system. At Berkeley, there is a seven-fold difference in STEM degree completion between students with high and low pre-college credentials.

As is always the case with affirmative action, ironies abound. Although young blacks are about one-seventh as likely as young whites to eventually earn a Ph.D. in STEM fields, academically strong blacks in high school are more likely than similar whites to aspire to science careers. And although a U.S. Civil Rights Commission report in 2010 documented the “science mismatch” phenomenon in some detail, President Obama’s new initiative to improve the nation’s production of scientists neither recognizes nor addresses mismatch….

Science mismatch is, of course, relevant to the general affirmative action debate in showing that preferences can boomerang on their intended beneficiaries. But it also has a special relevance to Fisher v. University of Texas. The university’s main announced purpose in reintroducing racial preferences in 2004 was to increase “classroom” diversity. The university contended that, even though over a fifth of its undergraduates were black or Hispanic, many classrooms had no underrepresented minorities. It sought to use direct (and very large) racial preferences to increase campus URM numbers and thus increase the number of URMs in classes that lacked them. But science mismatch shows that this strategy, too, can be self-defeating. The larger a university’s preferences, the more likely it is that preferenced students will have trouble competing in STEM fields and other majors that are demanding and grade sternly. These students will tend to drop out of the tough fields and congregate in comparatively less demanding ones. Large preferences, in other words, can increase racial segregation across majors and courses within a university, and thus hurt classroom diversity.

And this is from Sander’s third post:

[In the previous post] I discussed a body of research – all of it uncontroverted – that documents a serious flaw in affirmative action programs pursued by elite colleges. Students who receive large preferences and arrive on campus hoping to major in STEM fields (e.g., Science, Technology, Engineering and Math) tend to migrate out of those fields at very high rates, or, if they remain in those fields, often either fail to graduate or graduate with very low GPAs. There is thus a strong tension between receiving a large admissions preference to a more elite school, and one’s ability to pursue a STEM career.

Is it possible for contemporary American universities to engage constructively with this type of research? Recent events at Duke University suggest not.

The Duke study … (by economists Peter Arcidiacono and Esteban Aucejo, and by sociologist Ken Spenner, all of Duke) was motivated by an important question: do students who receive large admissions preferences “catch up” with their peers over their college years? This ties into an important premise of many preference programs – i.e., that the rich resources of an elite university will help to phase out prior preparation gaps between students of different races. Aggregate data at Duke suggested that the GPA gap across racial groups was, indeed, narrowing as college progressed, from over half-a-point black/white GPA gap in the first semester, to less than three-tenths of a point by the eighth semester.

Using data gathered by the university, Arcidiacono et al found that this narrowing was illusory. Courses taken by juniors and seniors were graded very leniently, and, more importantly, students who had bad grades in their freshmen year migrated in large numbers from STEM fields and economics to other majors, which generally had easier grading. When one adjusted for these effects, the relative achievement level of different groups was unchanged over the course of college. Thus, there was no silver lining to offset the science mismatch effect.

Importantly, the authors found that these patterns had nothing to do with race, but rather with a student’s level of academic preparation upon entry into Duke. White legacies admitted with large preferences showed the same patterns as blacks admitted with large preferences.

The paper offered no policy recommendations; like a large body of Arcidiacono’s earlier research on other social and educational issues, it simply presented intriguing results researched and analyzed in a conceptually clear and empirically careful way.

In mid-January 2012, the Chronicle of Higher Education ran a story on the article. Although the reporter, Peter Schmidt, was characteristically fair in summarizing the article’s findings, once the news reached Duke, the reaction was extreme. The Black Student Alliance denounced the research and staged a protest, suggesting that the research was actually an attack on black students and that data they had provided to the university had been misused. Seventeen black alumni wrote an open letter attacking the research as “misguided scholarship” whose results and methodology were “both flawed and incorrect”, though they provided no specifics. “We cannot sit idly by and allow this slander to be (mis)labeled as truth.” Duke faculty got into the act as well, sending angry, indignant emails to the authors and to the economics department.

The President of Duke, Richard Brodhead, finally weighed in on the controversy on March 22nd, at the Annual Meeting of University Faculty. He said he had decided to devote his talk to the issue of race in part because of the controversy generated by the study. He extolled the university’s progress in moving from exclusionary policies in the 1950s and before, to today having among the highest proportion of enrolled blacks of any elite university. He then went on:

“With respect to this January’s controversy I would say the following. I hope all members of this community recognize that it is not the proper function of the university to block expression from its faculty or enforce a correct view. Universities live through free and open debate; when someone thinks someone else has come to an erroneous conclusion, the remedy is to criticize it and offer a better account. On the other hand, I can see why students took offense at what was reported of a professor’s work. Generalizations about academic choices by racial category can renew the primal insult of the world we are trying to leave behind – the implication that persons can be known through a group identity that associates them with inferior powers. A further insult was that the paper had been included in an amicus brief submitted by opponents of affirmative action urging the Supreme Court to hear [Fisher v. University of Texas]….”

Brodhead’s remarks neatly stood reality on its head. The university’s policy of giving large preferences based on race had created a large academic preparation gap across racial lines (e.g., an average 150-point SAT gap, on the old 1600-point scale, between blacks and whites) and thus large differences in academic outcomes across racial lines; but careful research on the effect of academic preparation on these outcomes was offensive? Academic freedom was vital to the university’s life, but factually baseless slander against accurate research was understandable? And it was especially “insulting” to use such research in an amicus brief – i.e., a debate about public policy?

(As it happens, I know about the amicus brief mentioned by President Brodhead, because I coauthored the brief with Stuart Taylor. Both of us are, to be sure, critics of affirmative action, but neither of us are “opponents”, as I will discuss in a coming post. We cited Arcidiacono et al’s research in the brief pretty much in the same spirit that I discussed it in Friday’s post.)

Brodhead’s message was pretty clear: we won’t try to fire people who engage in honest research that identifies problems in affirmative action; but we will ostracize them, and thus strongly discourage such research. Other parts of the record suggest that Duke’s substantive response to the controversy will consist of providing additional funding to race-based student groups, and showing greater “sensitivity” to student complaints.

One might be tempted to put this behavior down to a particularly high level of intolerance at Duke or on Brodhead’s part (many Duke officials and faculty, including Brodhead, took political correctness to disgraceful lengths during the “lacrosse” scandal several years ago, when a number of white students were falsely accused of raping a black woman and Duke officials led the invidious attacks against them, even long after the prosecution had been discredited). But all of the facts of this latest episode at Duke, including Brodhead’s behavior, actually capture perfectly the dynamics of affirmative action discussions at all major universities.

Colleges and universities are committed to the mythology that diversity happens merely because they want it and put resources into it, and that all admitted students arrive with all the prerequisites necessary to flourish in any way they choose. Administrators work hard to conceal the actual differences in academic preparation that almost invariably accompany the aggressive use of preferences. Any research that documents the operation and effects of affirmative action therefore violates this “color-blind” mythology and accompanying norms; minority students are upset, correctly realizing that either the research is wrong or that administrators have misled them. In this scenario, administrators invariably resort to the same strategy: dismiss the research without actually lying about it; reassure the students that the researchers are misguided, but that the university can’t actually punish the researchers because of “academic freedom”. Note that in this dynamic, “academic freedom” becomes a device to protect the administration, not the faculty doing the research!…

But leftists — academic and other — cannot abide the truth when it refutes their prejudices. Affirmative action, as it turns out, is harmful to aspiring blacks, and so is the minimum wage, whose main beneficiaries are supposed to be young blacks. Most leftists will deny those facts because their leftist faith is more important to them than the well-being of those whose cause they claim to champion. They have no concern for the well-being of those whom they evidently despise — non-leftist whites, Asians, taxpayers, heterosexuals, legal immigrants, persons of religion, and the many other targets of left-academic scorn.

Bleeding Heart Libertarians = Left-Statists

A welcome to the readers of Jason Brennan’s “We Are Statists in Classical Liberal Clothing.” I have posted a response to Brennan (here). Thank you for visiting this blog.

I have been amused and somewhat bemused by the ongoing verbal war about bleeding-heart libertarians and bleeding-heart libertarianism (both BHL hereinafter). The main point of contention is the love of BHLs for “social justice.” The main battlefields are the April 2012 issue of Cato Unbound* and most of the recent posts at Bleeding Heart Libertarians.

I have assayed BHL elsewhere. Here are relevant excerpts of my earlier assessment:

Matt Zwolinski asks [What Is Bleeding Heart Libertarianism?] in a post at Bleeding Heart Libertarians, and answers it by positing three types of bleeding-heart libertarian:

Contingent BHLs – This group has what might be described as standard right-libertarian views for standard right-libertarian reasons. They believe that the state should more-or-less be constrained to the protection of negative liberty…. However, the fact that a libertarian state is good for the poor and vulnerable does not play an essential justificatory role for this group. Libertarian institutions are justified independently and sufficiently on the basis of rights and/or consequences, and would still be justified even if they were not good for the poor and vulnerable….

Anarchist Left BHLs – …I sometimes have a bit of a hard time pinning this position down. At times, it seems to be little more than right-anarchist-libertarianism combined with some distinctive empirical beliefs about the effects and characteristic functioning of markets and the state. Morally, anarchist Left BHLs seem to have pretty standard libertarian views about self-ownership and the ownership of external property and, like Rothbard but unlike Nozick or Rand, conclude from these premises that all states are morally unjustifiable. What sets them apart from right-Rothbardians seems mainly to be empirical beliefs about the extent to which contemporary capitalism is the product of and dependent on unjust government support, and about the extent to which the poor and working classes would be made especially better off in a stateless society….

Strong BHLs – Finally, there is my own preferred view…. The most important aspect of this view, and the aspect that distinguishes it from both the positions above, is that it holds that libertarian institutions depend in part for their moral justification on the extent to which they serve the interests of the poor and vulnerable….

…Here is how Zwolinski explains [the strong BHL position], in an interview to which he links:

So to see if you kind of qualify as a bleeding heart libertarian in that strong sense, try a thought experiment. Suppose that all the critics of libertarianism were right about the empirical claims that they make: that markets are rife with failures, they tend to cause the rich to get richer and the poor to get poorer, that this leads to the exploitation of workers by capitalists. If all those claims were really true, and libertarians don’t believe that they are, but suppose they were. Would you then still be a hardcore libertarian? If the answer to that is no, then I think you might be a bleeding heart libertarian….

Note the circular reasoning: Libertarian institutions depend in part for their moral justification on the extent to which they serve the interests of the poor and vulnerable, but the libertarian institution of free markets “fails” because one result of free markets is that some persons make less than others, that is, they are necessarily “poor” by the usual, relative measure of “poorness” in the United States.

That most “poor” Americans are vastly better off than the abjectly impoverished denizens of much of Africa seems not to weigh on BHLs, who stand ready to exact “social justice” on behalf of their “poor” countrymen. That another libertarian institution — private charity (both organized and spontaneous) — can and does alleviate poverty (and other sufferings) seems to to missing from what is in fact a summary judgment against libertarianism. Libertarianism — advocacy of voluntary social and economic arrangements — is tainted, in the view of BHLs, if it does not also yield “social justice.”

The tension between liberty and “social justice” is the subject of the recently published Free Market Fairness, written by John Tomasi. According to one review, Tomasi’s thesis is that the proverbial “we”

have been forced … to choose between social justice and economic freedom, often in reductive forms governed by moralistic absolutes. On one side is a frequently “bullying (and morally condescending)” left-liberalism; on the other an often “cold and heartless” libertarianism. It is widely thought, Mr. Tomasi says, that there can be “no common ground” between the two sides. The antagonists enter the fray believing that “when the dust settles, one side will win and the other will lose.”

Mr. Tomasi, a political theorist at Brown University, is unhappy with this stark choice. He confesses that he is attracted to the ideals of both camps. He also observes that much has changed since the 1970s. As we move into a postindustrial, Internet economy, it becomes increasingly clear that people of all income levels value the right to make economic choices. Yet most people also believe in something like social justice, supporting programs that adjust for inequalities.

With “Free Market Fairness,” Mr. Tomasi proposes an alternative to both points of view. He christens it “market democracy,” a mix of economic liberty and social justice that, in his view, supports a morally superior ideal than either the minimal state or welfare-state liberalism. Market democracy is not meant to be a mushy compromise or mere middle way, he says, but a “hybrid” that stands on its own merits.

Mr. Tomasi’s idea of a market democracy breaks with key ideas on both sides of the debate. First, he argues—against the socialist ethic of Rawls—that economic liberty is among the basic rights of individuals, as fundamental as the right to free speech. That is, we value economic liberty not merely for reasons of utility but for the ways in which it enables us to be the authors of our own lives. As Mr. Tomasi eloquently explains: “Restrictions of economic liberty, no matter how lofty the social goal, impose conformity on the life stories that free citizens might otherwise compose.”

Second, market democracy breaks with modern libertarian thinking by taking the claims of social justice seriously. Unlike Hayek, Mr. Tomasi does not believe that social justice is a mere will-o’-the-wisp. Nor does he believe that society is little more than the sum of private transactions. For Mr. Tomasi, society is “a public thing,” and thus all citizens should be able to affirm that its arrangements are fair. “A set of institutions is just,” he writes, reworking Rawls, “only if it works over time to improve the condition of the least well-off citizens.”

Market democracy recognizes that the question of social justice is a real one but without assuming that ordinary people don’t value economic liberty. Thus Mr. Tomasi believes that health care is a matter of social justice, but he prefers market-based approaches (with a safety net). “In seeking to benefit the least well off,” he says, “we must take care to do so in ways that respect the autonomy and dignity of those citizens.”

But he notes that economic liberty, as a triumphant principle, can lead to repellent results. To take a classic example, a person has no right to sell himself into slavery. Nor, Mr. Tomasi suggests, should the state sit idly by while sectors of society fall into grinding poverty and social dysfunction. The state has an obligation, he argues, to intrude upon laissez-faire arrangements so that “the exercise of responsible self-authorship” is possible.

It isn’t entirely clear how market democracy would function in the policy debates of the moment. Mr. Tomasi’s book is emphatically a work of political theory, not a blueprint for political action, much less a catalog of policy solutions. He does believe though that market democracy offers a way out of our either-or political debate, which at its extremes pits the Tea Party against the Occupy Wall Street movement. Market democracy would make the welfare of the very poor a top concern but would find little justice in mere wealth redistribution….

There is more specificity in Zwolinski and Tomasi’s lead essay for the April 2012 issue of Cato Unbound. Here are some relevant excerpts:

During the Progressive era, [Ludwig von] Mises complained that advocates of the New Liberalism [i.e., modern “liberals”] “arrogate to themselves the exclusive right to call their own program the program of welfare.” Mises regarded this as “a cheap logical trick.” The fact that classical liberals do not rely upon direct, state-based programs to distribute benefits does not mean that they are any less concerned for the poor.[15] Defending his preferred system of economic liberty, Mises wrote: “Any increase in total capital raises the income of capitalists and landowners absolutely and that of workers both absolutely and relatively. . . The interests of entrepreneurs can never diverge from those of consumers.”[16] If capitalism benefits the poor not just in real terms but also relatively to the wealthy, then capitalism is especially beneficial to the poor.

Mises’s critics (and some of his defenders) read Mises as whitewashing an uncompromising system of economic liberty with the idle hope that such a system maximizes productivity. On this reading, it is overall productivity that Mises cared about, and the distributional pattern that results is something about which Mises cared not one jot. However, notice what Mises did not say. He did not say: “The institutions of commercial society generate the greatest aggregate wealth and so, even though such institutions predictably deposit 20 percent of the population in a position of hereditary inferiority, this is A-OK.” Instead, Mises thought capitalist institutions justified, at least in part, because he believed a society-wide system of voluntary exchange will be materially beneficial for all citizens. Inequalities are justified, Mises seems to have argued, at least in part because they work to the material benefit of the least well off.

Indeed, Mises was explicit about the normative role he saw such claims playing within his defense of the free society. Thus: “In seeking to demonstrate the social function and necessity of private ownership of the means of production and of the concomitant inequality in the distribution of income and wealth, we are at the same time providing proof of the moral justification for private property and for the capitalist social order based upon it.”[17] The social function of inequalities—the benefits they provide to all, especially the poor—is an essential element in their moral justification.

It is no surprise, therefore, that when describing man’s role as a member of a (properly) liberal social order, Mises declared that each person “must adjust his conduct to the requirements of social cooperation and look upon his fellow men’s success as an indispensable condition of his own.”[18] Society, according to Mises, is a cooperative venture for mutual gain. In a good and just social order, people look upon the special talents of the fellow citizens not as weapons to be feared but as in some sense a common bounty. Economic competition is a morally praiseworthy form of social cooperation at least in part because it channels the talents of each towards the production of benefits for all….

[F]ree marketers should not be afraid to express a principled concern for the poor, or even to commit themselves to an ideal of social or distributive justice. First, in its philosophically most sophisticated formulations, such as that of left liberal paragon John Rawls, social justice concerns the material condition of the lowest paid workers—not that of idle surfers, coffeehouse Marxists, the unemployable, or even the temporarily unemployed. Second, social justice is not a property of the particular distributions that emerge in a society but of social and economic institutions viewed as integrated wholes. Thus a commitment to social justice in no way commits one to advocating liberty-limiting “corrections” of emergent distributions on an ongoing basis…. [A]s a consequence, a commitment to social justice does not require that one advocate “big state” welfare programs or anything even close. A set of institutions might well satisfy the requirements of social justice without including any state-based “redistributive” apparatus whatsoever.[24] After all, what are these requirements of social justice? According to Rawls, social justice allows for material inequalities, even extremely large and growing inequalities, provided only that the overall system works in a way that is beneficial to the lowest paid workers (that is, if the lowest paid workers in capitalist societies, over time, tend to earn more than the lowest paid workers in any noncapitalist alternative, then capitalist societies are better from the perspective of social justice)….

If that still leaves you puzzled about the relationship between “social justice” and libertarianism, perhaps this later entry by Zwolinski and Tomasi will make it clear:

…[S]ocial justice is a moral standard by which the institutions of a society can be evaluated on the basis of how well they serve the interests of the poor and least advantaged [whatever they might be]. This broad concept can be fleshed out in a number of different ways by different particular conceptions of social justice. And a full conception would say, among other things, what counts as “advantage” (Wealth? Primary goods? Utility?), what the scope of social justice is (The nation? Humankind? All sentient beings?), how this standard of moral evaluation fits alongside others (nobody – not even Rawls – believes that the fate of the poor is the only important criterion for judging the morality of a society’s institutions), and so on. Again, we have not attempted to articulate or defend such a conception here. But it is not as though bleeding heart libertarians have been silent on this issue. For several serious scholarly treatments, see John’s book here, or this essay by Jason Brennan and John Tomasi. And see also the numerous blog posts from Jason (here, here, and here), Kevin Vallier (here and here) and me (here, here, here and here).

Our historical thesis is not that earlier classical liberals endorsed any particular conception of social justice. Indeed, we do not even claim that they were explicitly and self-consciously committed to even the broad concept of social justice. But they did, over and over again, suggest that they saw the fate of the working poor as an important element in assessing the justice of liberal institutions….

One of Zwolinski and Tomasi’s blog partners, Jason Brennan, puts it this way:

…All theorists who advocate social justice believe something like this:

If under favorable conditions, an political-economic regime systematically causes many innocent people, through no fault of their own, to live in poverty, without much opportunity, and without much ability to enjoy their freedom, and if there is some alternative regime that, under those same conditions, would eliminate these problems, this provides a strong presumption in favor of that alternative regime.

If our basic institutions systematically fail to benefit innocent people, or systematically tend to harm them, then it is unreasonable to ask them to observe those institutions. For instance, if through no fault of my own, some property rights regime causes me to starve, and if this isn’t just a result of bad luck but is a systematic effect of that regime, then the rest of you can’t demand I play along with the regime.

In other words, if a regime of liberty has consequences that, in the view of a BHL (or a left-statist), cause “many innocent people, through no fault of their own, to live in poverty,” it is legitimate to curtail the liberties of some so that others might enjoy unearned benefits.

Kevin Vallier, another BHL, puts it this way:

…[S]ocial justice is justice with regard to the arrangement of a society’s basic structure. Let’s take the second term first. Rawls defines a society’s basic structure as follows:

By the basic structure I mean a society’s main political, social, and economic institutions, and how they fit together into one unified system of social cooperation from one generation to the next (PL, 11).

Rawls’s theory in Political Liberalism is meant to apply to modern constitutional democracy, such that the subject of social justice is the structure of the modern constitutional democratic state and the institutions it governs. For Rawls the basic structure is “the first subject of justice” (257). He states again that,

The basic structure is understood as they way in which the major social institutions fit together into one system, and how they assign fundamental rights and duties and shape the division of advantages that arises through social cooperation. Thus the political constitution, the legally recognized forms of property, and the organization of the economic, and the nature of the family, all belong to the basic structure (258).

So the basic structure is one great big social thing and serves as a subject of evaluation. A basic structure is socially unjust when it is not arranged in accord with principles that can be justified to each reasonable comprehensive doctrine (kind of like my discussion of public reason, but not the same)….

But modern constitutional democracy is not a voluntary social order. It is a statist order that is superimposed on and destructive of voluntary social institutions, not only free markets but also the other institutions of civil society: family, church, club, and so on. To suggest that the dictates of constitutional democracy somehow define “social justice” and legitimately override the workings of voluntary social institutions — free markets among them — is either naive or cynical.

I believe that it is cynical. The BHL proponents of “social justice” are intelligent and clever persons. They know what they are doing by wrapping their statist agenda in the banner of libertarianism. But their game is given away when one of their number dares, at last, to give operational meaning to “social justice.” I refer to the following utterances by another BHL, Jessica Flanagan:

I support a Universal Basic Income (UBI), and I think that other libertarians ought to as well….

When I say ‘social justice,’ I mean UBI. Below are several arguments for a basic income. I don’t endorse them all, but I’m including them all to show that there are many libertarian paths to this kind of ‘social justice’ conclusion.

First, I think that a UBI is morally required, given the wrong of a state-enforced property system….

Second, the UBI is relatively market friendly.… [W]e ought to support things like childcare and education vouchers, or a UBI for kids. Such a system would help citizens access the services they need without forcing them to sign up with a crappy state program.

Third, consider libertarian types like John Tomasi, Loren Lomasky, and Gerald Gaus, who argue that a UBI makes state power justifiable. Tomasi thinks that impartial institutional designers would first choose to protect important liberties (including economic liberties like contract and ownership) but then they would endorse redistributive policies to benefit society’s worst off within the limits of said liberties.…

Fourth, a UBI can be compatible in principle with ‘hard libertarian’ property rights. Even if you were entitled to your property holdings, you are not entitled to coercive public enforcement of those holdings. Just because we have negative rights doesn’t mean that those rights merit full public accommodation. Once libertarians start demanding that their property is protected and their rights are publicly enforced, we can think of taxes as the public fee for that enforcement. If the public is the guardian of your wealth, who are you to tell your security guard how to spend his paycheck? This isn’t how states work, but it does point to a possible justification for redistribution.

Alternatively, some libertarians believe that a UBI is good because it will promote overall well being….

These arguments for the UBI also explain why libertarianism at its best is aligned with the political left. The world is really unjust in part because states coercively enforce laws that make people really badly off. On this we agree. Sufficiency is on the path to priority or equality, so for a while, BHL’s and leftists can walk the path from here to social justice together.

PS: Matt Zwolinski wrote a great essay on the topic of Classical Liberalism and The Basic Income (see SSRN for a PDF)

Thus Flanagan exposes the truth about BHL: It is left-statist and anti-libertarian. It is nothing more than utilitarianism. That is to say, it is based on the presumptive, pseudo-omniscient belief that resources should be diverted from their owners to other persons, on the ground that those others “deserve” the diverted resources more than the owners of those resources. One among many justifications for this presumption is the pseudo-economic claim that money, for any individual, has diminishing marginal utility. Therefore, those from whom resources are taken suffer little if any loss of utility, whereas those (poorer persons) to whom resources are given gain much utility. This assumes a social-welfare function, which does not exist. It also assumes, wrongly, that the marginal utility of money diminishes as one accumulates more and more of it, which would come as a surprise to Warren Buffet, Bill Gates, oil sheiks, and almost everyone who would love to become wealthier (which is most persons). It makes you wonder why millions of Americans buy lottery tickets every week, if not every day. (For more about utilitarianism and social welfare, see this, this, this, this, and this).

Flanagan, like many other BHLs (and most leftists) evidently believes that the owners of large claims on resources (e.g., “the 1%”) are undeserving of their claims because the “system” is rigged so that “the 1%” (and such-like) become rich and powerful at the expense of the poor and vulnerable. This is patent nonsense because it assumes that there is a possible “perfect” system that is not, in some way, rigged to benefit one set of elites or another.

The relevant questions, which go unanswered by BHLs (and leftists), are these:

Whether the current system of regulated capitalism, when enables some classes of individuals to piggy-back on others, is worse than the attainable alternatives (if there are any).

The extent to which those at the top actually cause deep poverty among those at the bottom.

I submit that because of the legal complexities of regulated capitalism it is impossible to know the extent to which those who benefit from the current system actually deprive others of the “just desserts.” Among the complexities are the many programs that work in favor of the “working poor” — and a vast cohort of sloths. Further, any regime — from libertarian to state-socialist — will generate a “1%.” And it is hard to say that the composition of America’s “1%” would not (for the most part) be the same under a regime of pure, anarchistic libertarianism or ironclad state-socialism. Ability, intelligence, guile, ambition, and ruthlessness rise to the top.

Flanagan’s point about the state’s right to spend its “paycheck” as it pleases is a bogus one. Those libertarians who accept the necessity of the state do so with the proviso that the state’s sole function is to protect property rights and negative rights. The state may spend its “paycheck” only for the purpose of protecting those rights — not for the purpose of spending the “paycheck” as it pleases. A state that goes beyond its remit to perform illegitimate functions does not collect a “paycheck” for its services. It steals.

As for UBI, it arrived on the scene a long time ago, in the form of Social Security, Medicare, Medicaid, EITC, SNAP, AFDC, subsidized housing, subsidized mortgage loans, affirmative action, etc., etc., etc. It is pure naivete to suggest UBI as a politically feasible alternative to those programs, each of which has entrenched constituencies and powerful defenders. UBI would be an addition to the list, not a substitute for it.

Some final words for BHLs: If you know of persons who are poor and vulnerable, help them yourself. Give them your time and effort, give them money, or give money to a charity that actually does something to help. But do not presume to be my conscience, and take your hand out of my pocket.

__________
* Here is a summary of the contributions to the April 2012 issue:

About the Current Issue: Where Next? The Past, Present, and Future of Classical Liberalism

Lead Essay

A Bleeding Heart History of Libertarianism by Matt Zwolinski and John TomasiMatt Zwolinski and John Tomasi propose to refocus the libertarian movement. Although they agree that individual property rights are important, they propose to return libertarianism to its nineteenth-century intellectual roots. They argue that the classical liberals valued property rights for different reasons, perhaps, than we in the movement value them now: Property rights were intended to protect the least well-off workers in society. A “neoclassical liberal” would not advocate a welfare state, but would certainly value social justice; his means of attaining it would be through the institutions of property and contract.

Response Essays

In Praise of Bleeding Heart Absolutism by Roderick T. LongRoderick T. Long criticizes the sharp distinctions drawn by Zwolinski and Tomasi between nineteenth-century classical liberals and the “Unholy Trinity” of Mises, Rand, and Rothbard. He suggests many areas in which the earlier thinkers were not as Zwolinski and Tomasi characterize them, as well as several where Mises, Rand, and Rothbard don’t conform either. Long stresses the importance of class analysis in the thought of nineteenth-century classical liberals and points to its resurrection as a key aspect of Rothbard’s thought in particular. This, he suggests, points the way toward a “bleeding-heart absolutism” – an ideology critical of every form of state power, yet also prioritizing the moral claims of the poorest in society.

Natural Rights + ? by David D. FriedmanDavid Friedman argues that the pre-twentieth century classical liberals were motivated not by a concern for the poor per se, but by utilitarian reasoning. The “working poor” were a large majority of society in their time, and authors like Adam Smith must be read in their historical context. Doing so reveals Smith to be a progenitor of Jeremy Bentham, not John Rawls. Utilitarianism brings problems of its own, of course, but it should not be confused with social justice.

Let’s Reject the Purity Test by Alexander McCobinAlexander McCobin argues that libertarians often engage in unproductive debates about who or what is “more” libertarian. One thing lost in these debates is that, across the wide sweep of intellectual history, significant libertarian figures have usually felt free to draw from a wide array of justifications and policy approaches. Each was a product of a particular historical era, and there is no reason to find fault with any of them simply on that account. To advance liberty, we should think and write about libertarian principles in terms that unbiased observers will find persuasive today.

The Conversation

Some Questions for the Panel by David D. Friedman

Property Absolutism and Social Justice by Matt Zwolinski and John Tomasi

Why “Social” Justice? More Questions for Zwolinski and Tomasi by David D. Friedman

On “Concern for the Poor” by Matt Zwolinski

Best of the Blogs The Editors’ pick of notable blog posts and commentary on this month’s issue.

The Bleeding-Heart Absolutist Strikes Back by Roderick T. Long

Defining Libertarianism by Alexander McCobin

More Libertarian Than Thou by Roderick T. Long

Clarity on How to Justify Economic Systems by David D. Friedman

Some Final Thoughts by Matt Zwolinski

Three Parthian Shots by Roderick T. Long

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Lead Essay

Response Essays

The Conversation

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