The Freespace Posts

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

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

The attentive and determined reader who slogs through this page will note that Sandefur didn’t thank me for guest-blogging at Freespace. It is my view that Sandefur regretted having asked me to guest-blog because of my less-than-pure view of rights — which I take to be social constructs, not timeless entities — and my candid (and negative) take on the general intelligence of blacks. (For more on that, see “Race and Reason: The Achievement Gap — Causes and Implications.”)

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November 29, 2004

This week

Thanks to John Lanius for fantastic guest blogging. Be sure to check out his regular blog at TexasBestGrok.

Incidentally, the X-3 is one of the ugliest planes ever.

This week’s guest blogger is Thomas Anger, who regularly blogs at Liberty Corner. Here are more details about him. Welcome, Mr. Anger.

Posted by on November 29, 2004 at 12:09 AM | Permalink

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November 29, 2004

What Realignment?

My thanks to Timothy Sandefur for inviting me to guest-blog at Freespace. This is my ice-breaking post.

Several of the blogs that I follow have commented on a recent Washington Post article by John F. Harris, “Was Nov. 2 Realignment — Or a Tilt?” Harris opens by saying this:

By any measure, President Bush and his fellow Republicans had a good night on Nov. 2. The question now is whether the election results set the GOP up for a good decade — or more.

Harris then goes on to cite various experts, but only one whose views seem to be grounded in historical fact:

Yale political scientist David R. Mayhew two years ago wrote a book calling the entire notion of realignments a fiction, at least at the presidential level. In the 15 presidential elections since World War II, he noted, the incumbent party has kept power eight times and lost it seven times. “You can’t get any closer to a coin toss than this,” he said. “At the presidential level, the traits of the candidates are so important that they blot out party identification.”

Mayhew is on to something, but his perspective is too short. Let’s go back to 1868, the year of the first presidential election following the Civil War. That span of 136 years covers 35 presidential elections and three more-or-less distinct eras of dominance by one party or the other. Here’s the big picture:

In the first era, Republicans dominated presidential politics from 1868 through 1928, winning 11 of 15 elections.  The GOP might have made it 13 of 15 had Theodore Roosevelt’s “Bull Moose” candidacy of 1912 not enabled the election (and re-election) of Woodrow Wilson. Following the Wilsonian interregnum, the Republican era resumed resoundingly in 1920, when the GOP “realigned” itself with its pre-Theodore Roosevelt theme of limited government.

The brief era of Democratic dominance began in 1932 and barely survived the 1948 election. Franklin D. Roosevelt’s victory in 1932 had everything to do with the Great Depression and nothing to do with political philosophy. FDR wasn’t offering “big government” in 1932, he was merely offering a fresh face. Southern Democrats continued to be Democrats and many Northern Republicans simply switched sides out of despair.  This second era ended as abruptly as it had begun, with the Dixiecrat rebellion of 1948, which nearly cost Harry Truman the election.

And so the third era — a new Republican era — began with Eisenhower’s victory in 1952. That victory — built on Ike’s popularity and Southern Democrats’ repugnance for the national party’s stance on civil rights —  marked the beginning of a long realignment in presidential politics. That realignment didn’t end until the 1980s. Since then, Republicans and Democrats have been fighting border skirmishes over personalities and the issues of the day, just as they have in the past.

But there is no doubt that we are still in a Republican era. Republican control of Congress is as secure as it has been since the 1920s, as is Republican control of State governments. The current Republican era will end — if and when it does — in the aftermath of an economic, social, or military trauma whose nature and timing are unpredictable.

Will the continuation of the current Republican era be good or bad for the cause of libertarianism? Republicans, for the most part, seem to have given up on “limited government” for the sake of winning elections.  Now, the GOP is the party of “relatively limited government.” But the alternative — a return to Democratic dominance — is probably worse. What’s a libertarian to do?

I’ll end this post with that question.

Posted by Thomas Anger on November 29, 2004 | Permalink

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November 29, 2004

Realignment tactics

I like Mr. Anger’s question about what a libertarian to do in light of the Republican Party’s purge of its Goldwater elements. It seems to me in retrospect that the notion of libertarians being part of the conservative coalition is a massive accident. “Fusionism,” as promulgated in In Defense of Freedom, for example, seems to be built on a major misunderstanding of libertarianism, if not of conservatism. As I argued just the other day, libertarianism is a variety of liberalism. Its primary concern is with the liberation of the individual. Conservatism, properly understood—I mean, real, honest to god conservatism of the Russell Kirk, Richard Weaver, Robert Nisbet variety—is nothing like this. It is about the stability of society. Ken Masugi’s comment today that the Raich case represents a “clash of conservatisms” is typical of this misunderstanding. Social conservatives—who, again, I think are real conservatives—believe in the Drug War because their primary political concern is the health of “Society” (which they abstract into a sort of God, with rights valid against individuals). But libertarians are opposed to the Drug War because their primary political concern is the freedom of individuals. The surface issue of drug policy is just a cover for a profound difference over essential elements of political philosophy.

Libertarianism began dating the Republican Party because of Barry Goldwater. His opposition to government programs, and defense individual freedom upset the genuine conservatives within the Republican Party (whom we loosely call Rockefeller Republicans). And as long as the Goldwater element was ascendant in the Republican Party, as with Ronald Reagan, we felt more or less at home, although we were irked by the inclusion of the Kirkian platitudes in the speeches.

Now that Dole and the Bushes have almost perfected the elimination of the Goldwater faction of the GOP—to such a degree that party members ridicule Goldwater’s latter-day defense of gay rights as though it was evidence of senility—there is an ever-diminishing role for us in that party. Some large libertarian segments, most notably Reason magazine, have simply given up on the right wing, and are overtly courting the left, hoping that social issues will draw the left into greater embrace of economic freedom. I’m really not sure whether that strategy will work—I think the left is as resolutely hostile to individualism as the conservatives are—but do we really have anything to lose? “Libertarian” has become an epithet within the controlling faction of the Republican Party. I for one am sick of it, and were it not for the war, as I’ve said, I would have voted Democrat this year. And I suspect at least some leftists will be drawn to our side if we tell our story right: if we show that the liberation of previously oppressed people must include economic liberty.

But in the end, I can’t say. As Washington said, “If to please the people, we offer what we ourselves disapprove, how can we afterward defend our work? Let us raise a standard to which the wise and the honest can repair; the event is in the hand of God!”

Posted by on November 29, 2004 at 05:19 PM | Permalink

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November 30, 2004

Who Defines Reality?

On reading Timothy Sandefur’s recent posts about creationism vs. evolution (here and here), I’m prompted to ask who is the “we” who decides what to teach? Toward the end of the post linked second above, Mr. Sandefur says this about the teaching of evolution:

I believe that all men are created equal, and that they deserve to be treated like responsible adults—which means, confronted with the reality, and charged with the obligation to recognize it, or evade it and bear the consequences….

Who defines reality, and who decides to confront us with it? The state?

Posted by Thomas Anger on November 30, 2004 | Permalink

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November 30, 2004

Defining? No, teaching

Mr. Anger’s question is more rhetorical than substantive. Reality is not “defined” by some entity standing outside of it and determining its contents; it simply is. It is discovered, and observed, by all of us—some more skillfully and carefully than others. These people can choose to confront us with that reality. I believe that respect for people as thinking beings requires them to do so at least sometimes (this is one reason for blogging). Obviously you have no right to intrude on a person’s seclusion, and force them to confront something they don’t want to—just as you have no right to break into their seclusion and force them to do anything they don’t want to do. So obviously no, the state does not confront us in that sense. I have repeatedly stated my opposition to government-run education, so much so that I don’t think I need to do so again.

(However, the state clearly has the right to confront us with reality in some situations. For instance, if a parent believes that blood transfusions violate the will of God, and therefore refuses to get a blood transfusion for his ailing child, the state may legitimately require that the child receive a blood transfusion. If a parent believes that sexual molestation or other abuse of a child is the will of God, the state has the right to stop that. The state also has the right to say that a person cannot simply evade responsibility for torts by refusing to believe they exist. So yes, the state does have the right to confront us with reality as a side effect of its pursuits of other legitimate goals.)

My post, however, assumes that we have a government school system in place. My question is, if it is okay for people to wander around believing whatever makes them feel good, then why not abandon the attempt to teach them evolution at all (even in private schools)? Moreover, my point remains even if we abolish government schools. It is a scientist’s professional obligation—as well, I think, as an obligation of honor—to confront people with reality. Again, that does not mean intruding on their privacy, obviously. But a scientist who sits idly by while nonsense is propagated, is betraying something essential about his profession and about his mind. The same, of course, is true of lawyers, and to put it in a lawyerly way,  if we are going to educate, then it is incumbent upon us to educate people reasonably—not to do so negligently. And it is negligent to tell people that they can believe in fairy tales.

I might turn Mr. Anger’s rhetoric back on him, to make my real point clearer: Who defines the myth that we are going to allow people to believe, so as to soothe their fragile little hearts? And who decides to propagate it? The state? That, at least, is what many ID proponents believe.

Posted by on November 30, 2004 at 01:20 PM | Permalink

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November 30, 2004

Reality and Government Schools

In my previous post here I commented on two of Timothy Sandefur’s posts (here and here) about creationism vs. evolution. I closed my post by asking: “Who defines reality, and who decides to confront us with it? The state?” Mr. Sandefur responds thusly:

…Reality is not “defined” by some entity standing outside of it and determining its contents; it simply is. It is discovered, and observed, by all of us—some more skillfully and carefully than others….

All right, then, who decides which of us is the more skillful and careful observer of reality? It shouldn’t be the state. (I believe that Mr. Sandefur and I are firmly agreed on that point.) But, we do have government-run schools, and they do dominate education in the United States. Perforce, it is those schools, in their vast inadequacy, that decide what to teach as “reality.”

I share Mr. Sandefur’s concern that proponents of  “intelligent design” would use the state to compel the teaching of ID as an alternative to evolution. But government schools that teach evolution are also the schools that teach a lot of things that skillful observers like Mr. Sandefur and I do not recognize as truth — things that might be wrapped up in the phrase “government as ultimate problem-solver.”

Now, I do not mean to suggest that government schools might just as well go for broke and teach more untruth by adding ID to their curricula. What I mean to suggest is that government schools already teach — and have long taught — ideas that are far more subversive of liberty and the pursuit of happiness than ID.

It’s annoying to think that “creationism” is widely believed, and it’s galling to think that it might be taught in public schools. But I find that far less threatening than the widespread belief in government as ultimate problem-solver. That is why, given the limited amount of time I have for blogging, I tend to shoot at the left and ignore the right.

Posted by Thomas Anger on November 30, 2004 | Permalink

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November 30, 2004

Teaching myths

Mr. Anger has a point. Consider, for instance, socialism. Socialism is as flawed an economic theory as creationism is a biological theory. It no more deserves to be taught as if it were true than creationism does. Yet, obviously, there are many people who think otherwise, just as there are many people who think that creationism is true, and that it should be taught. If the government is going to teach, then that means these folks will be disappointed. And if they are disappointed, then they would be just as willing to command that the government schools not teach classical liberalism, since in these folks’ minds, classical liberalism is as flawed as creationists believe evolution to be. Government schooling—like all government redistributionary schemes—is subject to the public choice effect.

That’s a good argument against the existence of government schools, not against insisting that schools (whatever their form) teach things that are true as true, and teach things that are false as false. It is certainly true that “government schools already teach—and have long taught—ideas that are far more subversive of liberty and the pursuit of happiness than ID.” But that doesn’t mean that we may throw up our hands and say “well, fine, teachers can tell kids whatever they want.” No, they can’t. A school that teaches kids socialism and never mentions the price problem, for example, is committing exactly the same wrong as a school that teaches kids that evolution isn’t true.

But, again, my point isn’t about the content of the material taught in the classroom. It’s about the real purpose of evolution in the classroom. The real purpose of evolution, like the real purpose of physics or anything else, really, is to inculcate in students the habit of thinking rationally and demanding reasons for believing things. That is far more important than the actual substance of the things a student learns, and forgets, and can look up in an almanac after he graduates. It’s the habit of mind that’s important. Carl Sagan puts it well:

If we teach only the findings and products of science—no matter how useful and even inspiring they may be—without communicating its critical method, how can the average person possibly distinguish science from pseudoscience? Both then are presented as unsupported assertion. In Russia and China, it used to be easy. Authoritative science was what the authorities taught. The distinction between science and pseudoscience was made for you. No perplexities needed to be muddled through. But when profound political changes occurred and strictures on free thought were loosened, a host of confident or charismatic claims—espeically those that told us what we wanted to hear—gained a vast following. Every notion, however improbable, became authoritative….

It is enormously easier to present in an appealing way the wisdom distilled from centuries of patient and collective interrogation of Nature than to detail the messy distillation apparatus. The method of science, as stodgy and grumpy as it may seem, is far more important than the findings of science.

Carl Sagan, The Demon-Haunted World: Science As A Candle in The Dark 21-22 (1996).

Posted by on November 30, 2004 at 11:15 PM | Permalink

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December 01, 2004

Does the Constitution Allow This?

The First Amendment says that “Congress shall make no law…abridging the freedom of speech, or of the press….” Great stuff. I buy it. But then there’s this, from a story at latimes.com:

On the evening of Oct. 14, a young Marine spokesman near Fallouja appeared on CNN and made a dramatic announcement.

“Troops crossed the line of departure,” 1st Lt. Lyle Gilbert declared, using a common military expression signaling the start of a major campaign. “It’s going to be a long night.” CNN, which had been alerted to expect a major news development, reported that the long-awaited offensive to retake the Iraqi city of Fallouja had begun.

In fact, the Fallouja offensive would not kick off for another three weeks. Gilbert’s carefully worded announcement was an elaborate psychological operation — or “psy-op” — intended to dupe insurgents in Fallouja and allow U.S. commanders to see how guerrillas would react if they believed U.S. troops were entering the city, according to several Pentagon officials.

In the hours after the initial report, CNN’s Pentagon reporters were able to determine that the Fallouja operation had not, in fact, begun.

“As the story developed, we quickly made it clear to our viewers exactly what was going on in and around Fallouja,” CNN spokesman Matthew Furman said.

Officials at the Pentagon and other U.S. national security agencies said the CNN incident was not an isolated feint — the type used throughout history by armies to deceive their enemies — but part of a broad effort underway within the Bush administration to use information to its advantage in the war on terrorism….

Surely the viewers of CNN included our enemies, or persons friendly to them who passed along the information broadcast by CNN.

I know the arguments about undermining the credibility of the news media — and the government — by using the media to broadcast disinformation. But those are just arguments. The fact is that the U.S. is engaged in a legal war against a determined and ruthless enemy, and the use of disinformation is a time-honored tactic of warfare. Why not risk undermining the credibility of the media — to the extent that the media have much credibility left — if it helps to win the war?

Unless CNN’s report and the news story I’ve quoted are part of a disinformation campaign, it seems that media may be undermining the war effort by revealing particular instances of disinformation and giving the enemy hints as to the shape of our disinformation campaign.

That leads to my question: Is there an interpretation of the Constitution that would make it illegal for the media to publish information that compromises military operations?

ADDENDUM: If there is a compelling governmental interest in the regulation of political speech (i.e., campaign-finance “reform”) and a compelling governmental interest in allowing publicly funded universities to pursue “diversity” (a concept that I cannot find in the Constitution), why not a compelling governmental interest in the suppression of media reports that undermine the prosecution of a constitutional war?

I’m being provocative here because I hope to draw out my host and some of his readers on this issue.

Posted by Thomas Anger on December 01, 2004 | Permalink

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December 01, 2004

National security and the First Amendment

In answer to Mr. Anger’s question about the First Amendment, preventing the press from publishing military information that could compromise military success is the quintessential compelling government interest justifying limits on freedom of the press. The most famous case on the issue is New York Times v. United States, 403 U.S. 713 (1971), also known as the “Pentagon Papers case.” There the Supreme Court held that the government could not prevent the publication of military documents on the history of the Vietnam War, which the Nixon Administration said would compromise national security if they were published. The decision was a “per curiam” decision—meaning it was not signed by an individual justice, but issued in the name of the Court. The decision reads, in its entirety:

We granted certiorari…in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy.”

“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York in the New York Times case, 328 F.Supp. 324, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, 446 F.2d 1327, in the Washington Post case held that the Government had not met that burden. We agree.

The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed, 444 F.2d 544, and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.

So ordered.

What does this mean? Well, the Justices then wrote separate concurring and dissenting opinions on the degree to which the Constitution allows government to censor speech that might compromise military operations. The case mostly hinged on the term “prior restraint,” which means, a government action forbidding the publication of material. This is generally considered the most severe form of censorship, and the one the First Amendment was primarily written to prevent. Justices Hugo Black and William Douglas, notoriously First Amendment “absolutists,” (who liked to say “no law means no law,”) argued that the government may never prohibit publication of information, apparently regardless of the military effect of such dissemination. As Erwin Chemerinsky notes, it’s hard to believe their absolutism was really sincere: “one wonders whether even they would allow such restrictions if there were compelling proof of a need to protect national security. For example, if a newspaper during World War II were going to report that America had broken the Nazi code, probably even Black and Douglas would have allowed an injunction to stop that information from being published….” Erwin Chemerinsky, Constitutional Law: Principles And Policies 778 (1997). But hard as it is to believe, I see no reason they would have.

Justice William Brennan’s concurring opinion argued for strict scrutiny of prior restraints, meaning that they would need to be “narrowly tailored to advance a compelling government interest.” That is, he would allow them, but rarely, and only if a judge was convinced of a powerfully good reason for them. Moreover, “[o]ur cases have thus far indicated that such cases may arise only when the Nation ‘is at war.’” New York Times, 403 U.S. at 726 (Brennan, J., concurring). Justices Byron White and Thurgood Marshall argued that courts lacked the statutory power to issue an injunction against the publication of the Pentagon Papers. A good argument, but it doesn’t really say what the First Amendment’s limitations are. Justice John Harlan, Justice Harry Blackmun, and Chief Justice Warren Burger wrote dissents, arguing that the case had been heard so fast that they didn’t really know whether these materials were a threat to national security or not, and that an injunction should at least be granted to allow them to figure that out.

Justice Blackmun wrote that

I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions. First Amendment absolutism has never commanded a majority of this Court…. What is needed here is a weighing, upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent. Such standards are not yet developed. The parties here are in disagreement as to what those standards should be. But even the newspapers concede that there are situations where restraint is in order and is constitutional. Mr. Justice Holmes gave us a suggestion when he said in Schenck, “It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”

Id. at 761 (Blackmun, J., dissenting).

Because the per curiam opinion isn’t very clear on what degree of evidence would justify a prior restraint, and because there was no solid majority of justices supporting Douglas’ and Black’s opinion that prior restraints are entirely forbidden, the New York Times case seems to stand for the proposition that government may censor the publication of information, even in the most extreme manner, but only when there is really, really, really strong reason to believe that the publication of the information would harm the national interest, especially by causing “‘the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate,’ to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners,” id. at 763 (Blackmun, J., dissenting). But, as Chemerinsky notes, “[n]o Supreme Court case has dealt with these issues since the Pentagon Papers case.” Supra at 780. So the answer is, nobody really knows.

I suspect that the very high standard of proof that seems to be required by the Pentagon Papers case would not be met if the government tried to stop CNN from informing our enemies that the Fallujah offensive was not really starting. For one thing, the Pentagon Papers case seems to allow censorship only if the press is going to report information, like, say, troop movements, that the government has tried to keep secret, and which will result in harm to our military. In the CNN situation, though, the government would be attempting to stop the media from reporting the fact that there aren’t American troops in the field—that is, it would be trying to get CNN to participate in the promulgation of false information. As far as tactics are concerned, that may be the same thing, but as far as the Pentagon Papers case is concerned, I don’t think it is. The publication of the information by CNN would not directly result in the deaths of American soldiers (theoretically). So I doubt the First Amendment would allow the government to prohibit CNN from publishing this information.

Incidentally, in the foregoing, I’ve assumed that we the current war is a declared war, which I do believe. Someone who thinks not might think the government would have an even harder time justifying such censorship of CNN.

Posted by on December 01, 2004 at 05:37 PM | Permalink

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December 01, 2004

Affirmative Action: A Modest Proposal

Recent posts by Alex Tabarrok at Marginal Revolution discuss a study that reveals the effects of nature and nurture on income. (Tabarrok’s original post is here. He has posted some clarifying remarks here.) The study shows that the income of a Korean orphan who was adopted in the U.S. between 1970 and 1980, through a process of random selection, is about the same regardless of the income of the adoptive parents. On the other hand, the income of the biological children of the same parents is highly correlated with the parents’ income; that is, low -income parents tend to produce low-income children, whereas high-income parents tend to produce high-income children. The obvious implication of these findings is that intelligence (and hence income) is a heritable trait, one that remains differentiated along racial lines (a consistent but controversial finding discussed here, for example). Thus the findings give further evidence, if any were needed, that affirmative action policies — whether government-prescribed or voluntarily adopted — tend to undermine the quality of workplaces and educational institutions. (I am speaking here of the quality of effort and thought, not the value of workers and students as human beings.)

The premise of affirmative action finds expression in a 1986 speech to the Second Circuit Judicial Conference by Justice Thurgood Marshall, where he

urged Americans to “face the simple fact that there are groups in every community which are daily paying the cost of the history of American injustice. The argument against affirmative action is… an argument in favor of leaving that cost to lie where it falls. Our fundamental sense of fairness, particularly as it is embodied in the guarantee of equal protection under the laws, requires us,” Marshall said, “to make an effort to see that those costs are shared equitably while we continue to work for the eradication of the consequences of discrimination. Otherwise,” Marshall concluded, “we must admit to ourselves that so long as the lingering effects of inequality are with us, the burden will [unfairly] be borne by those who are least able to pay.” [From “Looking Ahead: The Future of Affirmative Acton after Grutter and Gratz,” by Professor Susan Low Bloch, Georgetown University Law Center.]

In sum, affirmative action is a way of exacting reparations from white Americans for the sins of their slave-owning, discriminating forbears — even though most of those forbears didn’t own slaves and many of them didn’t practice discrimination. Those reparations come at a cost, aside from the resentment toward the beneficiaries of affirmative action and doubt about their qualifications for a particular job or place in a student body. As I wrote here:

Because of affirmative action — and legal actions brought and threatened under its rubric — employers do not always fill every job with the person best qualified for the job. The result is that the economy produces less than it would in the absence of affirmative action….

[A]ffirmative action reduces GDP by about 2 percent. That’s not a trivial amount. In fact, it’s just about what the federal government spends on all civilian agencies and their activities — including affirmative action….

Moreover, that effect is compounded to the extent that affirmative action reduces the quality of education at universities, which it surely must do. But let us work with 2 percent of GDP, which comes to about $240 billion a year, or more than $6,000 a year for every black American.

Thus my modest proposal to improve the quality of education and the productivity of the workforce: End affirmative action and give every black American an annual voucher for, say, $5,000 (adjusted annually for inflation). The vouchers could be redeemed for educational expenses (tuition, materials, books, room and board, and mandatory fees). Recipients who didn’t need or want their vouchers could sell them to others (presumably at a discount), give them away, or bequeath them for use by later generations. The vouchers would be issued for a limited time (perhaps the 25 years envisioned by Justice O’Connor in Grutter), but they would never expire.

That settles affirmative action, reparations, and school vouchers (for blacks), at a stroke. If only I could solve the Social Security mess as easily.

Posted by Thomas Anger on December 01, 2004 | Permalink

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December 02, 2004

Nonsense and Sense about Social Security

E.J. Dionne Jr., writing in The Washington Post on November 30, opined that

…President Bush carries a heavy burden in trying to sell the country on his plan to carve private accounts out of Social Security. Bush has been pushing privatization since he first ran for the presidency in 2000. But he keeps changing his explanation of how the program will be paid for and what its effect on the deficit will be….

Dionne goes on in that vein throughout his column, using what seems to be a discrepancy between what Bush said four years ago and what he and his aides are saying now to play “gotcha.” Worse than that, however, Dionne — who is a Washington insider of sorts — spends much of his column spreading confusion about Social Security; for example:

The big cost of privatization comes from allowing individuals to keep a share of the Social Security taxes they now pay into the system and use it for private investment accounts. This reduces the amount of money available to pay current beneficiaries. Since Bush has promised the retired and those near retirement that their benefits won’t be cut, he needs to find cash somewhere. The only options are to raid the rest of the budget, to raise taxes or to borrow big time….

[During the 2000 presidential campaign] Gore…challenged Bush on his numbers. “He has promised a trillion dollars out of the Social Security trust fund for young working adults to invest and save on their own, but he’s promised seniors that their Social Security benefits will not be cut and he’s promised the same trillion dollars to them,” Gore said at that third presidential debate. “Which one of those promises will you keep and which will you break, Governor?”

…Bush is about to offer an easy answer to Gore’s challenge: More borrowing….

…Last week The Post’s Jonathan Weisman reported that Republicans were considering moving the costs of social security reform “off-budget” so that, on paper at least, they wouldn’t inflate the deficit. And Joshua B. Bolten, the director of the White House’s Office of Management and Budget, let the cat out of the bag over the weekend in an interview with Richard W. Stevenson of the New York Times. “The president does support personal accounts, which need not add over all to the cost of the program but could in the short run require additional borrowing to finance the transition,” Bolten said. “I believe there’s a strong case that this approach not only makes sense as a matter of savings policy, but is also fiscally prudent.”

A huge new borrowing — “from hundreds of billions to trillions of dollars over a decade,” as Stevenson notes — is suddenly “fiscally prudent” in the administration’s eyes….

Dionne betrays such stupendous misunderstanding of the issue that the only way to deal with his ignorance is to explain the whole megillah, step-by-step:

1. The cost of Social Security is the cost of the benefits paid out, not the payroll taxes or borrowing required to finance those benefits. There are two basic issues: how much to pay in benefits and how to finance those benefits.

2. Assuming, for the moment, that benefits will be paid to future retirees (today’s workers) in accordance with the present formula for computing benefits — which today’s workers believe is a “promise” they have been made — something must “give” when payroll taxes no longer cover benefits, beginning in 2018.*

3. No matter how you slice it, someone will pay for those future benefits. The question is: who and when? There are three conventional ways to do it:

  • Raise future workers’ payroll taxes by enough to cover benefits.
  • Borrow enough to cover benefits, thus shifting the immediate burden from future workers to willing lenders, who are also the “future generations” that “bear the burden” of the debt. The cost of borrowing (i.e., interest) raises the cost of the program a bit, but interest is also income to those who lend money to the government. In other words, borrowing — on balance — doesn’t create a burden, it merely shifts it, voluntarily.**
  • Raise taxes and borrow, in combination.

4. There’s an “unconventional” way to deal with the looming deficit in Social Security: invest payroll taxes in real assets (i.e., stocks, corporate bonds, mortgages). Why? Because money invested in real assets yields a real return that’s far higher than the “return” today’s workers will receive on their payroll taxes. (See, for example, figure 2 in this paper.) There are three ways to “privatize” Social Security by investing in real assets:

  • Abolish Social Security and make individuals responsible for their retirement (perhaps with a minimal “safety net” funded by general taxation).
  • Let the government do it, through a “blind trust” run by an independent agency.
  • Let individuals do it, through mandatory private accounts.

5. I assume that the first option is off the table, for now, even though Social Security (like so many other government programs and activities) is unconstitutional. Given the large sums of money involved, the second and third options would yield about the same result, on average.  I’ll continue by outlining the third option, which is the proposal that has drawn the ire of E.J. Dionne and so many other anti-privatization leftists.

6. Workers would invest some (or all) of their payroll taxes in real assets (private accounts). Those same workers would agree to receive lower Social Security benefits when they retire. (The precise tradeoff would depend on the age at which a worker opens a private account and how much the worker has already paid into Social Security. Workers who are over a certain age — say 50 or 55 — when privatization begins wouldn’t be allowed to drop out, but would receive the Social Security benefits they expect to receive.) That leads to a series of questions and answers:

  • Q: What happens when the shift of payroll taxes to private accounts results in a deficit, that is, when payroll tax receipts are less than benefit payments? A: The government borrows to make up the difference. (See the discussion of borrowing in point 3 and the second footnote, below.)
  • Q: What happens to the money invested in private accounts? A: It would belong to the workers who invested it. They’d receive smaller payments from “regular” Social Security, but those smaller payments would be more than made up by the income they’d receive from their private accounts.
  • Q: When does it all end? A: It would depend on how much workers are allowed to invest in private accounts and how much those private accounts earn. If workers were allowed to invest all of their payroll taxes in private accounts, and if all workers elected to do so, Social Security — as we know it — would wither away. Every worker would have his or her own source of retirement income. That income come from earnings on real assets, not from taxes paid by those who are then working. And that income would exceed what the retiree would have received in Social Security benefits — even for private accounts invested “safely” in high-grade corporate bonds or mortgage-backed securities.

In sum, whether or not Bush is telling the same “story” now that he told four years ago, there is no shell game of the kind suggested by Dionne, and Gore before him. Dionne (and Gore) are simply unable to grasp the notion that by diverting payroll taxes to real investments, with real returns, no one would be made worse off, and many would be better off. They’re hung up on the borrowing that must take place in the initial stage of privatization, and they overlook the return on that borrowing, namely, higher income for future retirees and lower payroll taxes on future workers. And the threat of borrowing, as I have explained, is a bogeyman, which the economically illiterate use to scare the economically illiterate.

__________
* As I’ve explained here, here, and here, the so-called Social Security trust fund, which won’t be exhausted (on paper) until 2042, is just a myth.

** If you’re still bothered by the prospect of borrowing, read my post on “Curing Debt Hysteria in One Easy Lesson.”

Posted by Thomas Anger on December 02, 2004 | Permalink

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December 03, 2004

Race, Intelligence, and Affirmative Action

In “Affirmative Action: A Modest Proposal,” I began by writing about the findings of a study which

shows that the income of a Korean orphan who was adopted in the U.S. between 1970 and 1980, through a process of random selection, is about the same regardless of the income of the adoptive parents. On the other hand, the income of the biological children of the same parents is highly correlated with the parents’ income; that is, low -income parents tend to produce low-income children, whereas high-income parents tend to produce high-income children….

I went on to say this:

…The obvious implication of these findings is that intelligence (and hence income) is a heritable trait, one that remains differentiated along racial lines (a consistent but controversial finding discussed here, for example). Thus the findings give further evidence, if any were needed, that affirmative action policies — whether government-prescribed or voluntarily adopted — tend to undermine the quality of workplaces and educational institutions. (I am speaking here of the quality of effort and thought, not the value of workers and students as human beings.)

A reader objects — sort of. He begins by saying:

[T]here’s a flaw in your guest blogger’s logic. He takes the adoption study as evidence that intelligence is a heritable trait and thus passed through racial lines (fine). He then says since affirmative action rewards racial minorities who may be less qualified (fine), that affirmative action tends to undermine quality of work.

[H]is conclusion may be correct, but is only tenuously related to the first premise. he seems to be saying that, on average, if you give preference to minorities, the quality of work will suffer, because on average minorities are less intelligent….

Let’s stop right there and take things one step at a time. What I said is that intelligence “is a heritable trait, one that remains differentiated along racial lines (a consistent but controversial finding discussed here, for example).” There is less controversy about the persistence of the racial differential and more controversy about race, per se, being the underlying cause of that differential. For a sample of the controversy, go to the linked article and follow the many links in the article. One of those links leads to a statement by Charles Murray, co-author of the infamous The Bell Curve, who says in a footnote:

Intelligence is known to be substantially heritable in human beings as a species, but this does not mean that group differences are also heritable. Despite our explicit treatment of the issue, it is perhaps the single most widespread source of misstatement about The Bell Curve.

How is it that intelligence is “substantially heritable” and yet “group differences” may not be heritable? Here is Professor Richard E. Nisbett of the University of Michigan, a noted opponent of the notion of inherent racial disparity:

Estimates of heritability within a given population tell us nothing about the degree to which differences between populations are genetically determined. The classic example is an experiment in which a random mix of wheat seeds is grown on two different plots of land. Within either plot, the environment is kept uniform, so the height of the different plants is largely or entirely genetically-determined. Yet the average difference between the two plots is still entirely environmental, because the mix of genotypes in each plot is identical….

In other words, there’s a school of thought that a racial group that starts out “behind” because of environmental causes (e.g., nutrition and exposure to education and other experiences that “stretch” the mind) stays behind, even as the average intelligence of all racial groups seems to advance over time (a phenomenon known as the Flynn effect). In any event, inter-racial differences in intelligence seem to be real and persistent, and racially related genetic causes cannot be ruled out. (Again, refer to this article.)

The distribution of those differences does not follow the pattern supposed by the reader, who goes on to say this:

[I]f I understand the studies correctly, they say that each race has members that represent the full spectrum of intelligence, and that it’s only on average that the scores are lower.

I’m not sure that the reader correctly understands the distribution of intelligence and its implications for the labor market. Let’s say there’s a pool of 200 “typical” black applicants and 1,200 “typical” white applicants for a “typical” job that requires an IQ of 100. (I use 200 blacks and 1,200 whites because the 1:6 ratio reflects the relative numbers of blacks and whites in the U.S. I take an IQ of 100 because that’s about the mean for whites, whereas the mean for blacks is about 85.  IQs are assumed to be normally distributed around those means, with a standard deviation of 15 IQ points.)  Now, of the “typical” applicants for this “typical” job, only 32 (16 percent) of the blacks would have an IQ of at least 100, whereas 600 (one-half) of the whites would have an IQ of at least 100. Thus the ratio of qualified blacks to qualified whites would be about 1:19 for the “typical” job.

Bump it up a notch and set the intelligence qualification at an IQ of 115. Then, only 5 (2.5 percent) of the 200 black applicants would qualify, whereas 192 (16 percent) of the 1,200 white applicants would qualify — a ratio of about 1:38. In other words, it gets harder and harder to find qualified blacks as jobs require more intelligence (not to mention specific kinds of education and training). So, it’s irrelevant that there are some blacks at the higher end of the spectrum of intelligence. Why? Because there are proportionately few of them, and fewer still who have the requisite education and training for the kinds of jobs that are associated with high intelligence (e.g., astrophysics, computer engineering, advanced mathematics).

To look at it another way, take 200 randomly selected blacks and 200 randomly selected whites: 100 of the blacks and 168 of the whites would have an IQ of at least 85 (a ratio of 1:1.7); 5 of the blacks and 32 of the whites would have an IQ of at least 115 (a ratio of 1:6.4).

The black-white difference in average intelligence is meaningful, despite what the reader seems to think, because it reflects a significant difference in the distribution of intelligence. University slots and jobs that require at least average (white) intelligence can’t be filled in proportion to the number of blacks in the population, or in proportion to the number of black applicants, without tending to dilute the quality of universities and workplaces. (Again, I am speaking of the quality of effort and thought, not the value of workers and students as human beings.)

That leads me affirmative action, about which the reader says:

Thus [because there are some blacks at the high end of the spectrum of intelligence], affirmative action can be structured in such a way as to give special preference to the higher-achieving members of any minority, who face the difficult task of not being stereotyped by the lower scores of their fellow minorities. I.e., If a white person and a black person have the same or nearly the same qualifications, then you pick the black person.

Yes, as I have just shown, there are blacks at the high end of the spectrum of intelligence, and those blacks are courted assiduously by universities and employers. Why? Because universities and employers are anxious to demonstrate their commitment to affirmative action, diversity, racial equality, or whatever you want to call it. What better way to do that than to admit or hire the “best and brightest” blacks, which is a relatively risk-free proposition for universities and employers. What happens to those blacks who aren’t in the higher reaches of the spectrum of intelligence? Well, that’s where affirmative action, as most Americans know it, kicks in.

Here’s how it seems to work at universities: Blacks get preferential treatment for being black, to the extent that universities can concoct and defend affirmative-action plans that allow them to give preferential treatment. Sometimes a university fails (as in Gratz v. Bollinger), and sometimes it succeeds (as in Grutter v. Bollinger). But if there’s a prevailing tendency among the left-dominated universities of the United States, it’s to allow blacks to meet a lower standard of intelligence, thus displacing some whites who would have made better students and, eventually, better employees. So, at universities, affirmative action isn’t just about “picking the black person” who has “the same or nearly the same qualifications.”

What about affirmative action in the workplace? Here, I speak from long experience. (See my credentials.) Affirmative action, in theory, is supposed to be about hiring and promoting regardless of race, among other attributes. As an example, here’s the Department of Labor’s summary of its guidelines for federal contractors and subcontractors:

Each contracting agency in the Executive Branch of government must include the equal opportunity clause in each of its nonexempt government contracts. The equal opportunity clause requires that the contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin….

It doesn’t say “If a white person and a black person have the same or nearly the same qualifications, then you pick the black person,” as the reader would have it. What it says, in effect, is this: Faced with two equally qualified candidates for hiring or promotion, you can’t discriminate against a black person or a person who belongs to any of the other protected groups. To act in the way that the reader suggests would amount to blatant discrimination in favor of black job candidates over white job candidates, and that’s facially illegal, even though universities sometimes get away with similar discrimination in the name of “diversity.”

Nevertheless, what happens, in practice, is what the reader suggests, and then some: If a black person seems to have something like the minimum qualifications for a job, and if the black person’s work record and interviews aren’t off-putting, the black person is likely to be hired or promoted ahead of equally or better-qualified whites. Why?

  • Pressure from government affirmative-action offices, which focus on percentages of minorities hired and promoted, not on the qualifications of applicants for hiring and promotion.
  • The ability of those affirmative-action 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 minority 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 minorities because they think it’s “the right thing to do.”
  • Managers down the line learn to go along and practice just enough reverse discrimination to keep affirmative-action offices and upper management happy.

The following case, about an employee who was victimized by reverse discrimination, illustrates just about everything I’ve said about the practice of affirmative action in the workplace:

A Federal Aviation Administration employee recently settled an employment discrimination case where he said he was passed over for promotions because of his gender and race.

Michael C. Ryan of Toms River, N.J., who worked at an FAA research and development facility as a GS-14 manager, said that between 1995 and 1997 he was denied eight promotions to GS-15.

After complaining to the FAA, Ryan went to the Equal Employment Opportunity Commission. Nine years later, a formal consent order gives Ryan, a 28-year FAA worker, the managerial and supervisory position he wanted. The order also begins a three-year agencywide policy review intended to reform FAA’s affirmative action policies.

Ryan, a white male, said he was qualified for the promotions he applied for at the William J. Hughes Technical Center in Atlantic City, N.J., but was passed over by people with less experience because he was not a woman or a minority. During the trial, Ryan’s attorney, Hanan Isaacs, argued that four of the seven minority candidates who were promoted were not selected using merit principles, including one person that Ryan trained who had 13 years less seniority.

According to Isaacs, the 22-day trial showed that the candidates were promoted ahead of Ryan so that minority and women promotion quotas could be met. Isaacs said FAA’s 1988 affirmative action plan, which called for “a workforce that looks like America by 2000,” started to go afoul when it compared the racial and gender composition of technical positions to the general population rather than to the minority composition of the comparable workforce.

Isaacs said that an unwritten but well publicized “50-50″ policy” required FAA managers to promote women and minorities at least 50 percent of the time in order to get career and financial incentives. This type of affirmative action has no end-plan and perpetually discriminates against nonminorities, Isaacs argued.

Ryan was offered a settlement a year ago that would have given him back pay – which could total about $100,000 – and the promotion, but Isaacs said Ryan refused because he wanted to see the agency’s policy change.

John G. Larsen, a FAA senior policy analyst, testified during the trial that the agency was not in compliance with the law after 1992 and that its affirmative action program would “almost always come up with the appearance of under-representation.”

Larsen, a 36-year FAA employee, said that after a 1995 Supreme Court ruling which found that preferential treatment based on race almost always is unconstitutional, even when it is intended to benefit minority groups that suffered injustices in the past, the agency’s affirmative action policies became illegal.

He said the FAA refused to conduct a review requested by the Clinton administration following the ruling that would have brought the agency back into compliance with affirmative action laws. “The culture of the agency was one, in my opinion, that did not entertain challenges or disagreement … and nothing changed,” Larsen said.

The agency did not admit liability in the settlement, but did agree to start a three-step comprehensive review of its programs and policies on hiring and promotion to put them into compliance.

A Justice Department spokesman said the department was happy to resolve the nine-year-old case. He said that with the assistance of the court, the department was able to reach a settlement that is fair to both parties and upholds the FAA’s commitment to ensure a workplace free of unlawful discrimination of any form.

That’s the real, illegal, world of affirmative action. And here is the price tag:

Because of affirmative action — and legal actions brought and threatened under its rubric — employers do not always fill every job with the person best qualified for the job. The result is that the economy produces less than it would in the absence of affirmative action….

[A]ffirmative action reduces GDP by about 2 percent. That’s not a trivial amount. In fact, it’s just about what the federal government spends on all civilian agencies and their activities — including affirmative action….

Moreover, that effect is compounded to the extent that affirmative action reduces the quality of education at universities, which it surely must do. But let us work with 2 percent of GDP, which comes to about $240 billion a year, or more than $6,000 a year for every black American….

So, the reader has it about right when he says, in his closing sentence,

It may be true that in practice affirmative action tends to downgrade quality….

But he glosses over the high price we pay for affirmative action, in dollars and divisiveness. And then he closes with this:

…but this [downgrading of quality] doesn’t follow necessarily from the heritability premise, and I find [the guest blogger’s] attempt to use this to bolster his argument inflammatory and intellectually dishonest.

The downgrading of quality — and the price we pay for that — follows directly from the demonstrable premise that affirmative action — as it is practiced — puts race ahead of quality in the selection of students and workers. Putting race first affects quality because of the unequal distribution of intelligence between the races, as intelligence is usually measured. The cause of the unequal distribution of intelligence may be controversial, but as far as I can tell there is no settled science in the matter. The notion of inherent racial differences in intelligence is still on the table, and it carries with it stark implications for the long-term success of blacks in an economy that increasingly demands more intellectual skills and fewer physical skills.

Therefore, it isn’t “intellectually dishonest” to raise the issue of inherent racial differences in intelligence. Nor is it “inflammatory,” except to those who — unlike me — are unwilling to review dispassionately the evidence on all sides of the issue. But dispassion is hard to come by in any discussion of race or affirmative action. That is why I offered my “modest proposal” — which I mean to be taken seriously. It cuts through all the cant and controversy about race, intelligence, and affirmative action. Here it is, again:

…End affirmative action and give every black American an annual voucher for, say, $5,000 (adjusted annually for inflation). The vouchers could be redeemed for educational expenses (tuition, materials, books, room and board, and mandatory fees). Recipients who didn’t need or want their vouchers could sell them to others (presumably at a discount), give them away, or bequeath them for use by later generations. The vouchers would be issued for a limited time (perhaps the 25 years envisioned by Justice O’Connor in Grutter), but they would never expire.

That settles affirmative action, reparations, and school vouchers (for blacks), at a stroke….

Posted by Thomas Anger on December 03, 2004 | Permalink

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December 04, 2004

The State of Nature

Is the “state of nature” literal or metaphorical? I have always thought it metaphorical, but I may have to think again after reading a review by Denis Dutton of Paul H. Rubin’s Darwinian Politics: The Evolutionary Origin of Freedom. Here’s a relevant sample of Dutton’s very long review:

The scene of evolution is the Environment of Evolutionary Adapted-ness, the EEA, essentially the Pleistocene, the whole, long period lasting from 1.6 million years ago up until the shift to the Holocene with the invention of agriculture and large settlements 10,000 years ago. Our present intellectual constitution was achieved by about 50,000 years ago, or 40,000 before the Holocene….It was in the earlier, much longer period that selective pressures created genetically modern humans….

Pleistocene evolution is often associated with the savannahs of East Africa, but human evolution occurred in many places out of Africa — in Europe, Asia, and the Near East. It was going on in the Ice Ages and during interglacial periods. The wide-ranging, hunter-gather species we became did not evolve in a single habitat, but adapted itself to all sorts of environmental extremes….It is all of these forces acting in concert that eventually produced the intensely social, robust, love-making, murderous, convivial, organizing, squabbling, friendly, upright walking, omnivorous, knowledge-seeking, arguing, clubby, raiding-party, language using, versatile species of primate we became: along the way to developing all of this, politics was born.

Rubin begins with that bracing idea that the often-coercive political control placed on human beings since the advent of cities is character­istic only of the Holocene. The human desire for freedom, he argues, is an older, deeper prehistoric adaptation: for most of their existence, human beings have experienced relative freedom from political coer­cion. Many readers will find Rubin’s thesis counterintuitive: we tend to assume that political liberty is a recent development, having appeared for a while with the Greeks, only to be reborn in the eighteenth century, after millennia of despotisms, for the benefit of the modern world. This is a false assumption, a bias produced by the fact that what we know best is recorded history, those 500 generations since the advent of cities and writing.

Our more durable social and political preferences emerged in prehistory, during the 80,000 hunter-gather generations that took us from apes to humans….

…In what follows, I’ll review a few basic components of hunter-gatherer political structures as described by Rubin.

Group size. Hunter-gatherer bands in the EEA were in the range of 25 to 150 individuals: men, women, and children….

This group size for hunting parties remains a persistent unit of organization even in mass societies of millions of people — or, say, industrial firms or college faculties of thousands. It is in fact the default “comfortable” size for human working groups….We can try as a thought experiment to imagine alternative default group sizes: under different conditions….In our actual world, however, hunting with two hundred people would be an organizational challenge, if not a nightmare, as are most working parties of that size: that is why working groups such as company boards, university committees, and fielded soccer, football, and baseball teams tend to be hunting-band size.

Dominance Hierarchies. The formation of hierarchies, common among animals and found in all primates, is another trait universal in human societies. In the EEA, Rubin surmises, social life was generally orga­nized by so-called dominance or pecking-order principles….

Dominance hierarchies of the Pleistocene did not feature strong coercion from the top of the order, what we might term dictatorship, but required cooperation down the line….A desire for freedom, then, for relative personal autonomy within the group, is a powerful Pleistocene adapta­tion pitted against extreme coercive hierarchy….

Envy in a zero-sum society. One difference between a hunter-gatherer mentality and understandings needed today involves the nature of hierarchy itself. Hierarchies in the EEA evolved for a zero-sum resource environment: whatever was available was divided according to power or status. Trading in such circumstances is a zero-sum game: every bit of resource one person or family owns is something another family does not own. This default Pleistocene view of a zero-sum economy dogs our thinking today and results for the modern world in two undesirable features. First, we are prone to envy, to feeling dispossessed or cheated by the mere fact that others own what we do not own….Second, zero-sum thinking….makes it hard for us easily to understand how trade and investment of capital can increase the sum total of wealth available to all. We are therefore not well adapted to make sense of today’s economic system….

Risk and welfarism. Rubin speculates that in the EEA, resource availability fluctuated unpredictably (owing to weather change, disease, and natural events beyond a group’s control). Skill and hard work could help to meet these threats when they occurred, but individuals still would be “subject to significant variations in income” that could be fatal. Such risks, Rubin argues, predisposed humans to look for ways to insure survival through periods of hardship. An evolved moral prefer­ence for resource sharing is one form of such insurance, one way of handling risk. Societies of families, which is what we were in the EEA, are generally risk-averse….

Such… conservatism goes along with two other impulses. The first is our impulse to share as a form of insurance for lean times. The second, intrinsically connected with envy, is our desire to knock down pecking-order hierarchies, to foil the concentration of too much wealth at the top of the order. The first tendency, part of ancestral altruism, is a source of welfare in the modern state, but so is the second, which inclines us to tax the rich: an impulse toward income redistribution for the poor is a deeply Pleistocene adaptation, according to Rubin.

These preferences produce much tension in modern polity….

Youth, defense, and monogamy. Sports teams gather in stadiums over the world to engage in combat, cheered by their home fans….Despite the odd, wasteful way organized team sport consumes time and resources for very little utility beyond amusement, it is a human universal. This seems less strange, Rubin says, if we consider two aspects of sport: “First, the actions of the players are closely related to what would have been military actions in the evolutionary environment. Running, throwing projectiles (balls), kicking, hitting with clubs (bats, hockey sticks), and knocking down opponents — all of these actions are direct modifications of ancestral actions that would have been related to defense from others or offense against them.” The second aspect gets down to the evolutionary use of strong, aggressive young men: “the lives of our ancestors often de­pended on the strength and prowess of their young males….”

…Young fighters have a place in a general pattern of thinking in the Pleistocene: “human tastes for defense, and sometimes offense, are natural. . . . Pacifism is not a belief that would have been selected for inthe EEA.”…

Untenable libertarianism. Rubin’s summary of the political impulses and preferences of the Pleistocene presents a mixed and contradictory picture. This makes it possible for most political theorists to find inspiration for a favored point of view somewhere in hunter-gatherer psychology. Looking at life in the EEA, fascists and militarists can take heart, and so can Rawlsian egalitarians, Peter Singer socialists, and liberals of either the free-market or welfarist stripe. Still, the big picture for Rubin shows behavioral tendencies that we ignore at our peril. One, for example, is that as practiced in recent U.S. history, affirmative action programs are liable to create social friction and undermine the legitimacy of the state, perhaps outweighing benefits of such programs in the long term….

Before anyone jumps to the conclusion that Rubin is using evolution­ary psychology merely to support his own political predispositions (an antipathy to affirmative action being one of them), we should note what he says about libertarianism. Rubin confesses that libertarianism — the minimal interference by the state in the life of the individual — appeals to him personally: “in a libertarian regime, government would define and protect property rights, enforce contracts, and provide true public goods, but would do nothing else.” That is obviously not what people want, or there would have been more libertarian governments, Rubin says. Libertarianism was not a viable strategy for the EEA. The actions of individuals produce by-products to affect whole communities, and “we have evolved preferences to control these actions.” We are genetically predisposed, it seems, “to interfere in the behavior of others,” even where the behavior has little demonstrable adverse effect on a community….We are fundamentally meddlesome creatures.

Rubin speculates that this impulse to control our fellows, even in matters that have little or no material effect on living standards or resource allocation, is an adaptation designed to increase group solidarity….

Darwinian Politics in its way exemplifies Kant’s famous remark that “from the crooked timber of humanity no truly straight thing can be made.” It is not, to play on Kant’s metaphor, that no beautiful carving or piece of furniture can be produced from twisted wood; it is rather that whatever is finally created will only endure if it takes into account the grain, texture, natural joints, knotholes, strengths and weaknesses of the original material. Social constructionism in politics treats human nature as indefinitely plastic, a kind of fiberboard building material for utopian political theorists. Evolutionary psychology advises that politi­cal architects consider the intrinsic qualities of the wood before they build….

If Dutton correctly interprets Rubin, and if Rubin is on the right track, it’s no wonder that libertarianism seems to succeed only at the margin. For every success (e.g., deregulation of airlines and telephone service, abolition of the draft) there have been many countervailing and costly failures (e.g., Social Security, Medicare, excessive environmentalism, campaign-finance “reform”, affirmative action, gross abuse of the Commerce Clause, and on and on). And that may the best we can hope for. The instincts ingrained in a long-ago state of nature may be far more powerful than libertarian rationality.

Posted by Thomas Anger on December 04, 2004 | Permalink

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December 04, 2004

Libertarianism and Conservatism

Timothy Sandefur said this in a recent post:

…As I argued just the other day, libertarianism is a variety of liberalism. Its primary concern is with the liberation of the individual. Conservatism, properly understood—I mean, real, honest to god conservatism of the Russell Kirk, Richard Weaver, Robert Nisbet variety—is nothing like this. It is about the stability of society….

…Some large libertarian segments, most notably Reason magazine, have simply given up on the right wing, and are overtly courting the left, hoping that social issues will draw the left into greater embrace of economic freedom. I’m really not sure whether that strategy will work—I think the left is as resolutely hostile to individualism as the conservatives are—but do we really have anything to lose?…

I’ve been pondering that question, because I am rather a Hayekian, whereas Mr. Sandefur is an Objectivist. (Libertarianism is a big tent, isn’t it?) I, too, am concerned with the liberation of the individual — but I view a stable society as a necessary condition of liberation. Stability helps to ensure that we keep the liberation we’ve gained as individuals, without sacrificing other values, such as the prosperity we enjoy because of somewhat free markets and the security we enjoy because we remain resolute about fighting criminals and terrorists.

Of course, there is such a thing as too much stability. For example, a society that frowns on actions that do no harm to others (e.g., a white person’s trading with or marrying a black person) and then uses the government to bar and penalize such actions is not conducive to liberty.

But efforts to secure personal liberation can be destabilizing, and even damaging to “liberated” groups, when “liberation” proceeds too swiftly or seems to come at the expense of other groups (e.g., the use of affirmative action to discriminate in favor of blacks, the insistence that marriage between man and woman is “nothing special” compared with homosexual marriage). For, as I said here, “[t]he instincts ingrained in a long-ago state of nature may be far more powerful than libertarian rationality.”

Where does that leave libertarians? Well, it leaves this libertarian rather more sympathetic to conservatives, who are more reliable than leftists about defending life and economic liberty. As I said here:

…Social freedom has advanced markedly in my lifetime, in spite of rearguard efforts by government to legislate “morality.” Government control of economic affairs through taxation and regulation has advanced just as markedly, especially under Democrats.

In sum, libertarians may be repulsed by the moralists who have taken over the Republican Party, but that moralizing, I think, is a lesser threat to liberty than regulation and taxation. For that reason — and because Republicans are more likely than Democrats to defend my life — I’m not ready to give up on the GOP.

When I say “defend my life,” I mean on city streets as well as overseas.

So, yes, in answer to Mr. Sandefur’s question, I think libertarians have a lot to lose by throwing in with leftists. And they probably have nothing to gain that won’t be gained anyway, as society proceeds — in its glacial way — to liberate individuals from the bonds of repressive laws.

Why should libertarians make a Faustian bargain with the left to achieve personal liberation — which, with persistence, will come in due time — when the price of that bargain is further economic enslavement and greater insecurity?

Posted by Thomas Anger on December 04, 2004 | Permalink

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December 05, 2004

No Way Out?

The three branches of the federal government, individually and severally, have been harassing the Constitution since 1789, and raping it since the New Deal. When the legislative and executive branches aren’t conspiring to infuse new meaning into the Constitution, the judicial branch seems to take up the slack. What to do?

Secede and form a more libertarian union? Even if secession were a realistic option, the alternatives are stark: the quasi-theocracy of the Republic of Red or the quasi-socialist paradise of the Republic of Blue. The idea of “taking over” a State, propounded by the Free State Project, seems to be going nowhere. And besides, what’s the good of taking over a State when the central government already has usurped most of the powers of the States and many of the liberties of their citizens?

Nullify disagreeable statutes and court rulings? That’s been tried, but it’s no more likely to succeed than secession. Anyway, nullification is a recipe for legal chaos. It would yield lucrative, lifetime employment for yet another army of lawyers, who would advise individuals and businesses with interests in several States as to their rights and obligations, and who would represent those individuals and businesses in endless litigation.

Strip courts of jurisdiction or invoke the doctrine of departmentalism? Those might be good solutions if courts were the only problem. But jurisdiction stripping and departmentalism, to the extent they’re constitutionally valid, leave us defenseless against legislative and executive fiat. The courts aren’t entirely useless, it’s just that you never when they’re going to stop the rape of the Constitution or join in.

Promote federalism? Well, that’s where the Supreme Court could help the cause of liberty. But to get there, the president must nominate the right judges and the Senate must confirm them. I don’t think that the left is really ready to accept devolution of power to the States (even to Blue States), especially if it seems likely that a federalism-minded Supreme Court would overturn Roe v. Wade.

That’s my list of not-so-serious and serious options for restoring the law to something resembling the meaning of the Constitution. Promoting federalism seems the most promising option, but it requires an unlikely (unholy?) alliance between left and right.

Thoughts, anyone?

Posted by Thomas Anger on December 05, 2004 | Permalink

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December 05, 2004

Rights and Obligations

When it comes to the origin of rights,* I’m with Maxwell Borders, who — in the course of a long, delightful post at Jujitsui Generis — says this in reply to another blogger:

…“Real rights are conferred by political institutions” is not the same as saying “real rights are conferred by a sovereign.” The former expresses the complex relationship in a social contract between agents, their laws, and their government. So, yes, they are both conferred and protected by such institutions, unless you are one of these anarcho-capitalists who lives in a fantasy world where private Team Americas will go off and protect us from the baddies….

I would put it just a bit differently: Human beings — having a primordial yearning for rights — form a political institution and adopt a constitution for the purpose of defining and securing those rights, as they define them through bargaining.**  The U.S. Constitution, as amended, therefore amounts to a contract. (It’s an unusual sort of contract, to be sure, in that breaches are hard to remedy and those who inherit it can amend it only by an arduous process.)

A contract that grants rights usually assigns obligations, as well. What obligations does the U.S. Constitution implicitly or explicitly assign to Americans, as citizens? Here’s my list, in no particular order:

  • Obey the law, generally
  • Pay taxes
  • Accept the money of the United States as legal tender
  • Respect patents, copyrights, and other recognized forms of intellectual property
  • Refrain from rebellion and insurrection
  • Serve in the armed forces (if the law requires it)
  • Refrain from committing treason
  • Serve on juries
  • Do not take anyone into slavery or involuntary servitude.

The list doesn’t seem onerous. Then I think about some of the laws we must obey and the burden of taxation we bear. That line of thinking enables me to understand what drove a brave band of men to rebel against British rule, create a new nation, and establish the Constitution — which has been so badly breached.

__________
* I’ve addressed the nature and origin of rights in several posts at Liberty Corner: here, here, here, here, here, and here. (Please overlook the somewhat sloppy treatment of natural rights in the earlier posts.)

** Of course, things don’t always work out as intended. See here, here, and here, for example.

Posted by Thomas Anger on December 05, 2004 | Permalink

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December 05, 2004

Farewell and Thanks

I’ve posted my final post as a guest at Freespace. I’m truly grateful to Timothy Sandefur for inviting me to guest-blog, and for commenting so generously and graciously on several of my offerings.

Being a guest carries with it an obligation to be on one’s best behavior. (That’s the way I was brought up.) In this instance, being on my best behavior meant striving to be substantive, lucid, and provocative. I say “provocative” because the kind of blogging that Mr. Sandefur and I do is meant to promote the clash of ideas. For, the free clash of ideas advances truth — and truth does set us free.

I hope that I have been substantive, lucid, and — above all — provocative. You’ll find plenty more to provoke thought at my home blog: Liberty Corner. Please visit me there.

Posted by Thomas Anger on December 05, 2004 | Permalink

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Sunday, December 05, 2004

An Emerging Left-Right Consensus?

Timothy Sandefur, in his recent response to this post, said:

Now that Dole and the Bushes have almost perfected the elimination of the Goldwater faction of the GOP…there is an ever-diminishing role for us [libertarians] in that party. Some large libertarian segments, most notably Reason magazine, have simply given up on the right wing, and are overtly courting the left, hoping that social issues will draw the left into greater embrace of economic freedom. I’m really not sure whether that strategy will work—I think the left is as resolutely hostile to individualism as the conservatives are—but do we really have anything to lose? “Libertarian” has become an epithet within the controlling faction of the Republican Party. I for one am sick of it, and were it not for the war, as I’ve said, I would have voted Democrat this year. And I suspect at least some leftists will be drawn to our side if we tell our story right: if we show that the liberation of previously oppressed people must include economic liberty….

Perhaps Mr. Sandefur is on to something. Here’s Jonah Goldberg, writing at NRO yesterday:

Federalism! It’s not just for conservatives anymore! That’s right. All of a sudden, liberals have discovered federalism and states’ rights. I discovered this while listening to a recent episode of NPR’s Talk of the Nation, in which host Neal Conan and various callers discussed the idea as if some lab had just invented it….It’s not surprising that liberals would suddenly be interested in federalism, given that a sizable fraction of them think George Bush is an evangelical mullah, determined to convert America to his brand of Christianity. As conservatives have known for decades, federalism is the defense against an offensive federal government….

The problem with the last half-century of public policy is that liberals have abused the moral stature of the civil rights struggle to use the federal government to impose their worldview — not just on racial issues but on any old issue they pleased. But now, all of a sudden, because they can’t have their way at the federal level anymore, the incandescently brilliant logic of federalism has become apparent: Liberals in blue states can live like liberals! Wahoo! (Whereas, according to liberals, conservatives could never have been sincere when they talked about states’ rights; surely, they meant only to “restore Jim Crow” or some such.)

The bad news, alas, is that conservative support for federalism has waned at exactly the moment they could have enshrined the ideal in policy. Just this week, the Bush administration argued against California’s medical-marijuana law. Bush is also moving ahead toward a constitutional prohibition on gay marriage (which many conservatives, including National Review, support). After decades of arguments that Washington should stay out of education, Bush has made it his signature domestic issue.

It’s not that the White House doesn’t have good arguments for its policies. But it is impossible to restore federalism unless you start by allowing states to make decisions you dislike. Otherwise, it’s not federalism, it’s opportunism.

If large numbers of liberals (or leftists, as I prefer) begin to understand that a powerful federal government can do things they don’t like — as well as things they like — those leftists might just get on board with federalism. I imagine there are still enough pro-federalism conservatives out there to forge a formidable, pro-federalism coalition.

Now, federalism isn’t libertarianism, by any means. Some States might have strict gun-control laws and other States might have none at all, for example. But, to the extent that individual States can’t repeal the Bill of Rights and related law, federalism strikes me as a good second-best to the present regime, in which Washington seems willing and able to micro-manage almost all social and economic activity.

As I wrote here:

Libertarian purists argue that government should have almost no power. Libertarian pragmatists argue that government power should be devolved to the lowest practical level. The pragmatists’ case is the better one, given that the urge to regulate social and economic practices is especially strong where people (and votes) are concentrated….

…City dwellers prefer more government because they “need” more; country folk feel less “need” for government because they don’t rub up against each other as much as city dwellers.

Thus the ultimate argument for devolution: Push government functions to the lowest practical level and allow citizens to express their preferences by voting with their feet.

To extend the caricature, those who like guns and oppose abortion can move to Texas, and those who hate guns and approve abortion can move to New York. A typical Austinite (which I am not) might prefer New York’s policies but Austin’s weather. Well, it’s a tough choice, but at least it’s a choice.

ADDENDUM: Jesse Walker, writing at Tech Central Station on November 8 (“The War Between the Statists“) offered this bit of wisdom about federalism:

…The authoritarian conservative wants to maintain the old taboos. The authoritarian liberal wants to introduce some new ones, and he’s had a lot more success. The religious right may despise homosexuality and pornography, but the gay movement is thriving, despite last week’s losses, and porn is more freely available than ever before.

The liberal puritans, by contrast, are riding high in the media and in the courts. For many Americans, the Democrats are the party that hates their guns, cigarettes, and fatty foods (which is worse: to rename a french fry or to take it away?); that wants to impose low speed limits on near-abandoned highways; that wants to tell local schools what they can or can’t teach. There is no party of tolerance in Washington — just a party that wages its crusades in the name of Christ and a party that wages its crusades in the name of Four Out Of Five Experts Agree. Sometimes they manage to work together. I say fie on both.
Since Election Day, a series of satiric proposals for blue-state secession have been floating around the Internet. Here’s an idea for liberals looking for a more realistic political project: Team up with some hard-core conservatives and make a push for states’ rights and local autonomy. If you have to get the government involved in everything under the sun, do it on a level where you’ll have more of a popular consensus. Aim for a world where it won’t matter what Washington has to say about who can marry who and whether they can smoke after sodomy….

Posted by Fritz at 8:25 PM
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December 06, 2004

Anger and Douglas

There are many reasons to object to Mr. Anger’s view that rights are conferred by “political institutions.” One of the primary objections is the circularity of this notion. If rights originate in “a social contract between agents, their laws, and their government,” or from “bargaining” through the “political institution[s]” that the people create “for the purpose of defining…[their] rights,” then what justifies them in doing so? On what grounds do they presume to engage in such bargains, or create the institutions where such bargaining can take place? Pursuing this “bargaining” analogy, consider a stock market. It is legitimately created by people who own assets which they wish to trade. But if rights are not pre-political, on what grounds do the people create the “market” through which they bargain for the creation of rights? Anger, who calls himself a Hobbesian, would probably answer, mere physical force—which reveals the fact that for the Hobbesian, might makes right, and there is simply no getting around that. If Anger acknowledges that he believes that might makes right, that’s fair enough, but then he must accept all the problems that inescapably attend that belief: that is, that in a society where might makes right, Josef Stalin cannot be blamed for failing to provide a marketplace where people might bargain for the “creation” of their rights, because they do not have a right to such a marketplace in the first instance.

Anger insists that believing that rights are created by political institutions is not the same thing as believing that rights are created by sovereigns. (By the way, Don Boudreaux has a great post here pointing out the similarities between that view and creationism.) But while it is true that the former view is more sophisticated, it commits the same wrong: it assumes that morality is whatever the authority says it is: that there is no moral limit on political behavior. And if there is no moral limit on political behavior, and since political behavior is not distinguishable on principle from individual behavior, then there is nothing the state cannot rightfully do. And this is the conclusion that Anger would call libertarian?

In 1858, Abraham Lincoln and Stephen Douglas were debating the issue of the expansion of slavery into the Western territories. Douglas defended a proposition he called “popular sovereignty,” which meant that the white citizens in these territories (Kansas and Nebraska) should be allowed to decide by vote whether to have slavery or not. Lincoln vigorously objected to this, insisting that no majority ever had the right to enslave people. In Lincoln’s view, there were moral limits on what sort of political bargaining the people could engage in—he attacked what he called Douglas’ “‘gur-reat pur-rinciple’ that ‘if one man would enslave another, no third man should object,’ fantastically called ‘Popular Sovereignty.’” In Douglas’ view, such limits were irrelevant, because “the people” did not include blacks. As Lincoln noted,

Judge Douglas frequently, with bitter irony and sarcasm, paraphrases our argument by saying “The white people of Nebraska are good enough to govern themselves, but they are not good enough to govern a few miserable negroes!!”

Well I doubt not that the people of Nebraska are, and will continue to be as good as the average of people elsewhere. I do not say the contrary. What I do say is, that no man is good enough to govern another man, without that other’s consent. I say this is the leading principle—the sheet anchor of American republicanism. Our Declaration of Independence says:

“We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, DERIVING THEIR JUST POWERS FROM THE CONSENT OF THE GOVERNED.”

Now, Anger says that the American Constitution assigns us obligations in addition to “granting” us rights: among these obligations are paying taxes, obeying the military draft, and refrain from rebellion. On what grounds does the Constitution assign these obligations? What moral right does it have to impose these upon us? The mere fact that it exists, apparently—that is, he denies that it is based on pre-political notions, such as equality or consent: he has denied the sheet anchor of American Republicanism. So how is Anger to object when the “political institutions” which create our rights are drawn in such a way as to exclude blacks, or other politically unpopular minorities from the “bargaining” process? Anger has (I hope, unknowingly) adopted the view of Stephen Douglas, which is as far from libertarianism as one can go. True libertarianism reveres the freedom of the individual. Anger, however, has adopted a principle that reveres the freedom of states. It is not neo-libertarian; it is paleo-conservative.

Posted by on December 06, 2004 at 07:59 AM | Permalink

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Wednesday, December 08, 2004

Sandefur and God

Timothy Sandefur, has responded to “Rights and Obligations“) in this post. I will not address Sandefur’s post point-by-point here. Rather, I will address two of Sandefur’s key points, then, in a later post I will state systematically what I believe about rights, government, and governance. I have written dozens of posts about my views on those subjects, but I have never strung my ideas together in a single post, which may explain Sandefur’s apparent misunderstanding of my views.Sandefur opens by saying that “[t]here are many reasons to object to [my] view that rights are conferred by ‘political institutions’.” I have many reasons to object to Sandefur’s mischaracterization of my political philosophy throughout his post, not the least of which is the allegation that I deny that the Constitution “is based on pre-political notions, such as equality or consent.” To the contrary, as I said in the very post that he attacks,

[h]uman beings — having a primordial yearning for rights — form a political institution and adopt a constitution for the purpose of defining and securing those rights, as they define them through bargaining.

He has a problem with the final clause of that sentence, which I’ll come to. For now, I want to set the record straight about my view of the origin of rights. When I agree with Maxwell Borders (whom I was quoting) where he says that “[r]eal rights are conferred by political institutions,” I agree because the operative word is “real” — as opposed “dreamt of” or “hoped for” or “recognized and enforced by common consent within a band of hunter-gatherers, only to be violated by a rival band of hunter-gatherers.” The rights of Americans are not “real” unless they are secured (to the extent practicable) through the police, courts, and armed forces — and sometimes even by Americans acting in their own defense.

Sandefur might object to the sense in which I am using “real.” For, he says that “[r]eality is not ‘defined’ by some entity standing outside of it and determining its contents; it simply is.” Regardless of where rights come from, I don’t think they’re “real” until they’re actually recognized and enforced (realized) — be that by a band of hunter-gatherers that’s able to police itself and repel marauders; be that by the police, courts, and armed forces of the United States of America; or be that by those relatively few Americans who have the wherewithal to defend themselves against direct attacks on their persons and property. If Sandefur means to imply that rights are “real” in a Platonic sense, that is, existing independent of the human mind, then he simply believes in a different kind of god than that of the religionists whose beliefs he rejects. (I apologize if I’m misinterpreting him as badly as he misinterprets me.)

The second point I will address here is Sandefur’s suggestion that my view about the role of political institutions in the realization of rights makes me something other than (less than?) a libertarian:

[H]ow is [he] to object when the “political institutions” which create our rights are drawn in such a way as to exclude blacks, or other politically unpopular minorities from the “bargaining” process? [He] has (I hope, unknowingly) adopted the view of Stephen Douglas, which is as far from libertarianism as one can go. True libertarianism reveres the freedom of the individual. [He], however, has adopted a principle that reveres the freedom of states. It is not neo-libertarian; it is paleo-conservative.

Here, Sandefur conflates the ideal and the real. Libertarianism is an ideal (perhaps a Platonic ideal in Sandefur’s mind). Its tenets can be realized only through political bargaining — whether that’s in a band of hunter-gatherers or in the United States of America — which sometimes takes the extreme form of warfare. The ideal and the real would be identical only in a world in which almost everyone believed and practiced the tenets of libertarianism. (The holdouts could be bribed or coerced into going along.) There is no such world. To believe otherwise is to believe in a vision of human nature that is belied by history and current events. (Hobbesianism is merely a realistic view of the world.)

None of that means acceptance of the status quo by libertarians. Political bargaining led to the recognition of slavery in the original Constitution and left the question of slavery to the States. But political bargaining — in the extreme form of warfare — led to the abolition of slavery. Further political bargaining, led to Brown v. Board of Education, its enforcement, and the Civil Rights Act of 1964, and so on. The end of slavery and the recognition of equal rights for blacks couldn’t have been attained without political bargaining.

Do I want to devolve some power to the States and, thereby, to the people? You bet (as I have discussed here and here). But the power I would devolve wouldn’t include the power to roll back those rights now recognized in the Constitution. Rather, I would devolve legislation, regulation, and taxation to the maximum extent consistent with preserving those rights. (For more about my view of the respective powers and rights of the central government, the States, and the people, read this, this, and this.)

So, you can call me a classical liberal, a libertarian, a neo-libertarian, or Hobbesian libertarian (and I have called myself each of those things at one time or another, in an effort to label my principles) — but I don’t see how anyone can suggest that I might be a paleo-conservative. That would be as off-target as suggesting that Sandefur is a Christian.

Sandefur may choose to comment on this post; that’s his prerogative. But he might want to wait until I’ve systematically exposed my views about rights, government, and governance in the followup post.

Posted by Fritz at 1:40 PM

Saturday, December 11, 2004

A Final Volley

Timothy Sandefur’s latest postin our exchange of views about the origin of rights is helpful because it enables me to pinpoint the source of our apparent disagreement. We have been talking past each other.Sandefur has insisted that “rights are real even when they are not being enforced.” He finally makes clear (to me) that his basis for saying that rests on the proposition of self-ownership. That is, if we own ourselves — and I agree that we do — then our right to be left alone, as long as we leave others alone, arises from within and is not a grant from anyone else — not a family, a Pleistocene hunting party, a tribe, or a formally constituted state.I’ve been taking all of that for granted. I’ve expressed the concept of self-ownership — ineptly, it seems — in my notion of a primordial yearning for rights among humans. Sandefur asks,”Is their “yearning” based on the fact that, as human beings, there are certain things that may be done and not done to them…?” Yes, of course.

What I’ve been talking about in my exchange with Sandefur isn’t whether rights are real, or whence they flow, but how they are given force. There is a difference between having a right and being able to exercise that right. That’s where groups come in, be they families, Pleistocene hunting parties, tribes, or formally constituted states. Even though there are certain things that may not, by right, be done to an individual, the individual may not be able to prevent those things without help from others. And it often takes political bargaining to procure that help. (Politics precedes the state and goes on independently of it, for politics is “the process and method of decision-making for groups of human beings. Although it is generally applied to governments, politics is also observed in all human group interactions….”)

In the extreme case, a multitude of individuals will band together to overthrow a government and to form a nation-state for the purpose of preventing the existing government from oppressing the rights of the multitude. That was the rationale for the American Revolution. It was also the ostensible rationale for the Russian Revolution (among many others of its ilk), and look where that led.

So, I don’t insist — and have never insisted — that the state is the source of rights. All I’ve been trying to say is that the state may (or may not) enable persons to exercise their rights. In the United States, for example, the central government was formed so that Americans could exercise certain rights, but the same government was an accessory to the practice of slavery, for almost 80 years following the end of the Revolutionary War. Then, with Lincoln’s accession to the presidency, the central government not only opposed slavery but fought a war that ended it. The central government also since acted to recognize and enforce rights in other instances (e.g., securing votes for women, securing votes for blacks, and ending the military draft).

Yet that same central government has done much through taxation, legislation, and regulation — especially in the last 70 years — to suppress the free exercise of rights. The big question is how to reverse that suppression, as I discuss here. The two most promising ways, in my view, are through the appointment of Supreme Court justices who are federalists (in the contemporary meaning of the word) and the devolution of power to the States. As I said in my previous post,

the power I would devolve wouldn’t include the power to roll back those rights now recognized in the Constitution. Rather, I would devolve legislation, regulation, and taxation to the maximum extent consistent with preserving those rights.

There’s a lot more to be said about federalism and devolution than I have time to say right now. I’ll save it — and many other things — for the promised post in which I will state systematically what I believe about rights, government, and governance.

In closing, I hope that this post clears up the apparent disagreement between Sandefur and me about the origin of rights and the role of government in securing the free exercise of rights. If it doesn’t, so be it. For, this is my last volley in this exchange, and my last substantive post at this blog, but for the one mentioned above, which I’ll get to in my own good time. I’m taking a break from blogging and from reading blogs — probably a long break, perhaps a permanent one.

Posted by Fritz at 10:26 AM