Citizenship, political legitimacy, and substantive due process

The Cato Institute, along with the Pacific Legal Foundation, has submitted an amicus brief in McDonald v. Chicago the U.S. Supreme Court case that will determine whether the 2nd Amendment applies to state and local governments.

The brief is an interesting read. The authors (including Timothy Sandefur, one of my favorite libertarians) have explained the issues in a way even a non-lawyer like myself could easily follow. Along with Sandefur's multi-part series on the Slaughter-house Cases, it should be required reading for all American libertarians.

If McDonald overturns Slaughter-house, it could be one of the most pro-individual liberty SCOTUS decisions in a long time (even if you include Heller and Lawrence!)

One of the issues Sandefur, Levy, Hopper, and Shapiro grapple with in their brief is the relationship, if any, between different components of the first section of the 14th Amendment. These sections include: A. The citizenship clause; B. The privileges or immunities clause; and C. The due process clause.

A.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

As the brief makes clear, and as people on this very blog have pointed out to me, the citizenship clause does more than establish the citizenship of former slaves. Rather, it establishes a new kind of federal citizenship. One might even argue that it merely reiterates and formally recognizes federal citizenship, rather than creating it ex nihilo.

Thus, the citizenship clause made all persons "born or naturalized in the United States" citizens of both the U.S. and of, e.g. Kansas, Illinois, or whatever. This dual citizenship gives the federal government certain responsibilities toward U.S. citizens, regardless of what state they happen to reside in.

This is something to keep in mind when considering pseudo-libertarians like Ron Paul, who wish to abolish the citizenship clause: do we really want citizenship -- both state and federal -- to be entirely a creature of legislative fiat, to be revoked on the basis of majority will?

Certainly, I can see why Stormfront and the other white supremacists who supported Paul might be fans of the idea!

In any event, the brief establishes that its understanding of the citizenship clause is well-supported historically, and in accord with the intentions of the framers of the 14th Amendment. I won't replicate that analysis here.

B.

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

If there is such a thing as federal citizenship, what does it amount to? What does it require of both state and federal governments? The privileges or immunities clause is supposed to tell us. Sadly, on its own, it doesn't tell us very much.

The framers of the 14th Amendment could have spelled out what's on the list, but they didn't. The brief quotes Charles Sumner (my new hero), and others, to justify an expansive reading of the clause that goes beyond the narrow interpretation it was given in the Slaughter-House Cases.

However, I have a separate, complimentary point to make: why didn't the framers of the 14th Amendment spell out the list of privileges/immunities it supposedly protects? Why did they leave the clause vague and abstract?

With regard to the 14th Amendment, I believe we are in the same position we are in when it comes to the 8th's prohibition of "cruel and unusual punishment." The authors of the Bill of Rights could have given us a list of cruel punishments -- thumbscrews, I suppose -- or even explicitly dated the understanding of cruelty underlying the amendment, e.g. "punishments now considered cruel and unusual shall not be used."

They didn't do these things. Instead, as Ronald Dworkin has claimed, the authors of the Bill of Rights set down general principles, which may have implications Framers themselves might not have forseen.

If this analysis is applied to the privileges or immunities clause, and it is interpreted as a principle, rather than an eternally fixed, itemized list, the connection between the citizenship clause and the privileges or immunities clause becomes clear: taken together, they reiterates a principle of political legitimacy, one which was explicitly recognized in the Declaration of Independence.

This principle of legitimacy specifies what all governments must do, as a matter of moral law, in order to maintain the allegiance of their citizens. To maintain their moral legitimacy, the federal government must ensure that the rights of its citizens are not violated, whether by other citizens or by other (i.e. state) governments.

A less expansive interpretation of the privileges or immunities clause seems impossible to me: if the federal government failed to response when a foreign government violated the rights of its citizens, especially on American soil, it would be derilect in its duties, and this would undermine its legitimacy. Why does it matter if the rights-violating government is not, say, Iran, but Kansas? To maintain its legitimacy, the federal government must respond.

Thus, given that the citizenship clause did establish a federal form of citizenship, there is an obvious answer as to what the privileges or immunities of U.S. citizens are: they're the same rights and entitlements the federal government must observe, as a matter of both moral and constitutional law.

Indeed, I am not sure how one can avoid this somewhat moralized reading of the privileges or immunities clause (or, for that matter, the due process clause).

C.

"...nor shall any state deprive any person of life, liberty, or property, without due process of law..."

I've always thought that the idea of substantive due process, by which the courts have applied parts of the Bill of Rights to the states, has done at least some of the job the privileges or immunities clause was supposed to do. The brief argues, fairly persuasively, that while there is some overlap, substantive due process is and was a less radical doctrine, with deeper roots in English common law.

My moralized reading of both clauses bears this out, actually. While one might deny the legitimacy of (for example) the English monarchy, it is virtually impossible to deny that a functioning legal system existed in England, and that laws were being made. Thus, the presence of a legal system and the presence of a legitimate political authority can, I think, come apart: you can at least have the former without the latter.

However, unless you're a very shallow kind of legal positivist, you will believe that there is at least a connection between morality and law, such that not everything that gets enacted necessarily counts as a law. Deeply unjust laws, we might say, echoing Augustine, are not really laws at all.

At the same time, an absence of deeply unjust laws in a particular legal system may not be enough to establish the legitimacy of a particular government or state. The bar for political legitimacy is, arguably, quite a bit higher, and I believe the Declaration bears out this line of thought.

Thus, substantive due process recognizes that there are moral limits on what can even count as a valid law. And no one -- even non-citizens -- ought to be deprived of their liberty in the absence of a valid law. In contrast, political legitimacy requires more of governments; more than that, the requirements target the government's treatment of citizens, not persons more generally.

In fact, the wording in the 14th Amendment bears this out: while the due process clause mentions "persons", the privileges or immunities clause mentions "citizens."

I believe this is an additional reason, aside from textual and historical evidence, to think of the two clauses as overlapping, and even related, but not identical (for example, it is probably true that a state which repeatedly denies its citizens of liberty without due process of law also loses its legitimacy.)

All things considered, I deeply enjoyed this brief. The above is simply a non-legal scholar's attempt to get at a conceptual distinction between the two clauses of the 14th Amendment, one which can be grounded in fairly intuitive moral considerations.

All government is basically the same

"Not only does magisterial power exist because of evil, but it exists by evil. Violence is employed to maintain it, and all violence involves criminality. Soldiers, policemen, and jailers; swords, batons, and fetters are instruments for inflicting pain; and all inflection of pain is in the abstract wrong. The state employs evil weapons to subjugate evil and is alike contaminated by the objects with which it deals and the means by which it works. Morality cannot recognize it, for morality, being simply a statement of the perfect law, can give no countenance to anything growing out of, and living by, breaches of that law. Wherefore, legislative authority can never be ethical - must always be conventional merely."

Herbert Spencer, "The Right to Ignore the State", taken from Social Statistics, Chapter XIX

Wow, I love that Spencer quotation. Politics is violence, all the way down. It has no special authority. It is nothing more than a clenched fist, always directed at someone. Over time, only the targets of that fist have changed, but never the nature of the threat itself.

"Do this, or perish." That is politics, seen clearly. Politicians compete to see which of their favored groups will benefit from the violent apparatus of the state. When a politician defeats another in an election, this just indicates that a new portion of society will be sacrificed for the benefit of others.

And nothing more. Nothing more. There is no mythology that can disguise the terror of law, the smacking of the fist on flesh, the blood and slaughter promised to those who resist further.

As I've argued in the past, modernity has managed to economize the violence, so that more can be done with less. But this process has nothing to do with morality; rather, violence is expensive, and outright violence threatens to expose government for the gang of brigands that it is.

The frown of the police officer. The hint of a tax audit. People fall into line. They are terrorized into submission. They have seen what happens to those who resist, if only dimly, in dreams. Or they have been convinced that those who disobey the law are bad men.

I do not encourage people to obey the law. I have no argument, certainly none based in morality, that concludes "And that is why you should obey the law." But, for their continued health, I cannot encourage people to disobey it. That in itself reveals the truth of politics: obey or perish.

On the other hand, I laud Marc Emery for selling illegal seeds to Americans. I laud the tax cheats for depriving their masters of income. I laud the man who hordes ammunition. Who refuses to register his guns. I laud the Canadian who still speaks freely, who ignores Jennifer Lynch and her squad of censors. I laud the pornographers who skirt obscenity laws. The smokers who ignore the signs.

The Iranian students who fight, even now, against a tyranny that is at bottom only more blatant in its need to use violence to gain obedience than ours.

I praise contempt for the law. I praise the small number of people who refuse the census takers, who skip jury duty, who don't bother to vote. Who smoke pot on the steps of city hall.

And I laugh at the people who are satisfied with the revealed truth of democracy. The people who would die of malnutrition if the mob got to vote on something as simple as what they should eat each day. The people who take politics seriously, as if voting were a sacrament and Joe Biden a priest.

Finally, I give credit to the lobbyists and bureaucrats, who have figured out how to make a living without doing anything productive themselves. Who work the levers of the machinery to their own benefit, squeezing blood from their competitors and the innocent with equal fervor.

May you all hang someday.

Sarah Palin is an idiot

You know, I predicted that Palin would be McCain's VP pick on my radio show, before anyone else was talking about her.

At the time, I was even a little excited about the pick. She seemed different, interesting, a game-changer.

Then she opened her mouth.

She reads all newspapers and magazines! She doesn't know enough to even bluff about the Bush Doctrine. The only Supreme Court case she could name was Roe v. Wade (at least Bush Jr. mentioned Dred Scott once or twice.) I probably know about foreign policy than she does. Her resignation speech was a rambling mess.

Most of the people commenting on Peggy Noonan's excellent column about Palin only point out Joe Biden also says stupid things. Fair enough. You don't need to convince me that there's a double standard out there that works against conservatives and people on the right more generally.

Sure, the media was mean to her. It's almost always mean to conservatives, or anyone perceived to be on the "right." You deal with that by being smarter than everyone else. By having the truth on your side. By never, ever making a mistake.

When I was on my internship in Washington, D.C., I published an op-ed in the Washington Times. Not very prestigious, but I was pleased. In preparation for submission, I gave it to one of the women I worked for so she could edit it. As a wannabe academic, popular writing is still difficult for me.

The woman (we'll call her L) liked the op-ed. But she also asked: did you triple check everything in this piece? Are all your ducks in a row? Check again!

After extensive experience in Washington, L gave me some advice: conservatives (and libertarians, by implication) have to be better. If a liberal makes a mistake, other liberals are likely to make excuses for him or her. If a conservative makes a mistake, it will be given the worst possible interpretation. Errors of fact get turned into outright lies. Poor phrasing becomes evidence of malign intent. And so on.

The solution is not to whine about the media or the left-wing establishment, as Palin has done. The solution is not to make mistakes in the first place. Make your arguments, make them clear, with accurate premises and impeccable logic, and you reduce the risk of misinterpretation.

I kind of wish someone had given Palin that advice.

But, personally, I don't think Palin's only problem is the media. I think she's genuinely stupid, and too stupid to even know how to feign intelligence when the situation calls for it. Too stupid to know how ignorant she is. Too stupid see the benefit of cracking a textbook.

I've met the type before. People like Palin are usually between 17-22 years old. When they arrive at college, they think they know everything, or at least more than they need to know. When it comes to studying, they avoid it, and rely on charm to placate their instructors and their parents. This rarely works over the long run.

I have no idea how Palin made it this far without growing up, like Peter Pan in a pair of stiletto heels. The Republicans need to ditch her and find an adult to lead their party out of Nevernever land.

Liberalism and Violence

Lately -- probably since the release of the torture memos -- I've become fascinated with the relationship between violence and liberalism.

Politics is violence. No question. There is violence in liberalism, but it is kept within certain boundaries. Beyond those boundaries, the law cannot cross. Liberal regimes use violence in respectful ways - at the limit, on the basis of reasons all citizens would accept, if such reasons were presented to them.

In this way, liberalism is taken to be not just superior, but uniquely superior to any other form of politics. Every other form of politics involves subordination: the king commands and his inferiors obey. The king need not offer any reasons to his subjects; they obey merely because he tells them to obey. The king does not respect his subjects and nor do they respect him. They fear him, and so they obey. Perhaps, in some sense, the king even fears them, which keeps his edicts within certain bounds.

Liberalism is different. In the ideal form of liberal politics, citizens interact with each other respectfully, as moral equals. Within the political sphere, no one tells another what to do without providing reasons both will accept. The subordination of one will to another is replaced with the rule of public reason. Fear of the Other is replaced with respect for the wisdom of the consensus.

(By the way, I think a good case can be made that Rawls' later work - exemplifying this vision - is much closer to Rousseau than to Kant.)

This is the liberal ideal. And it is a noble thing. But it is a manqué. I don't just mean that it is unobtainable - although this is certainly true. I mean that it is not and cannot be what it claims to be. Liberalism is not a fake (maybe); it's a never-was, wrapped in a set of plausible concerns that lend the ideal itself an air of credibility.

To explain, let us return to violence. Where is the violence in the liberal ideal? It is no where and everywhere at once.

The king exudes violence. In the very interesting cover of the first edition of Hobbes' Leviathan, the sovereign carries a sword in one hand - his right - and the scepter in the other. In Leviathan, all are subordinate to the sovereign - which is what the term means after all - but they are in fact subordinate to the sword.

For Hobbes, who carries the sword is less important than that there is someone who is carrying it.

The sovereign's awesome power to inflict violence makes not only society possible, but justice itself. "Justice therefore, that is to say, keeping of covenant, is a rule of reason, by which we are forbidden to do any thing destructive to our life; and consequently a law of nature," he writes, before going on to say that,"covenants, without the sword, are but words and of no strength to secure a man at all."

In other words, justice, absent the sword, is a manqué. Violence -- overwhelming, incredible violence -- is what makes justice real, instead of a never-was.

As I understand it, the liberal ideal promises to take us beyond the Hobbesian vision. Justice, to the liberal, is formed by the strictures of public reason. It is unjust to coerce someone on the basis of reasons he could not accept. What makes justice possible for the liberal -- here I take Rawls as the exemplar -- is not violence, but our capacity to respect others even when we completely disagree with them about matters of morality.

And this is why the liberal ideal is also a manqué. Out of respect for others, we try to meet them on common ground, making our case for the use of violence on the basis of reasons they themselves will accept. But if we are successful, then violence is unnecessary: they will be convinced, and comply without the sword! If we are unsuccessful, then - compatible with the ideal - we will not use violence against them.

Thus, while the Hobbesian vision starts and ends with violence, the liberal ideal never allows violence to enter the picture.

So while liberalism starts out life as a theory about the proper and respectful use of violence, the ideal cannot sustain itself: there can be no respectful use of violence, and hence nothing like a liberal politics. Liberal politics is a never-was. A manqué.

So why haven't liberals followed this line of reasoning to its conclusion and become libertarians? Good question!

Here is how forming policies around a manqué, a never-was, pays off. To return to the king, there is never any question about his ability or right to inflict violence. Hobbes didn't invent the idea of the sovereign; he only gave him secular clothing (and what clothing: take a look at the cover illustration again if you haven't seen it before.)

The relationship between the sovereign and his subjects is impeccably honest. He will kill them if they disobey. They obey.

But imagine a weakening sovereign, one whose sword is rusting and falling apart. Hobbes was very clear about what a sovereign should think of himself once he finds himself in this position: look out! If you're too old to swing the sword, you shouldn't be sovereign in the first place.

This decaying sovereign, terrified of being displaced, comes up with a new scheme: liberalism. "Citizens," he declares, "why must there be so much violence in our relationship? Why can't we relate to each other as equals?"

The citizens-cum-subjects respond: "Give us a break. We can't respect you while we're subordinates. Put down the sword and we'll talk."

However, the sovereign is too clever for such a ploy. Instead of putting the sword away, he addresses the citizens thusly: "If I give up the sword, there will be chaos. But I'll make you a deal. Bring me the people you hate the most. The ones you despise. The blacks. The queers. The foreigners. Bring them to me and I will slay them before you, every year without exception. If I do this, will you let me keep the sword?"

And so it was agreed. And there was even a great deal of new found respect between the sovereign and (most of) his citizen-subjects. They did share common ground after all! The sovereign got to keep the sword, and he pointed it mostly at those in the hated groups, the minorities who could not rally a coalition of other indifferent or hostile citizens to defend them against the sovereign's violence.

They called it liberal democracy -- and it was good.

If anyone protested the "special" treatment he got at the hands of the king and his mob, he was denounced as unreasonable: "Surely, you can't reject the wisdom of the consensus," it was said. "After all, things are much better than they used to be when the king would just inflict violence on whoever he liked."

There was much tut-tutting about how the new system was uniquely superior to whatever had come before. Much less violence, always inflicted in the name of the king and his citizens. Violence that became laws codifying the new relationship between people and state, a relationship of equals, united in hatred and fear.

Violence made respectful, because it was the instantiation - albeit impure - of a genuine ideal. But mixed with violence, the manqué merely provides cover for the yearly slaughter. After all, no one really expected violence to leave politics. What they wanted - and what they got - was less violence, comfortable living, and their consciences cleaned in the abattoir of the "reasonable overlapping consensus."

The Problem With Property

Mike Brock put up this great post on the Shotgun and I wanted to take the opportunity to jot down a few more thoughts here.

Formally, property isn't all that difficult to understand. If X is A's property, then A has the right to exclude others from using X, where "using" is defined as broadly as possible.

"Exclusion" entails something like this: if X is A's property, then it is morally permissible for A to use violence to stop B from using X. While violence isn't normally permissible, the fact that X is A's property gives him the right to inflict violence on those who encroach on X.

Again, this is all very formal. The details of property -- not to mention property law -- go beyond my pay grade. However, there are probably only two ways to think about property and property rights, if one's moral view accepts them at all.

What should we think about property as "the right to exclude, using deadly force if necessary"?

Here's the first view: property rights are an extension of personal rights. Each of us comes equipped with a moral force field around our bodies. If another person enters this field without our permission, we are permitted to use violence to protect ourselves. The moral force field around our bodies is what prohibits others from (say) harvesting our organs without our consent.

On this view, there are certain actions we can take with respect to the stuff in the world that extends the force field around that stuff. Enveloped, our stuff gains the same level of moral protection as our own bodies; which means, basically, we can use violence to protect it, make use of it as we like, and so on.

Because the force field around our bodies is seamless, holding unconditionally, our property rights are absolute. There is only one field and it imposes the same moral requirements whether one is talking about body or land.

How we extend the force field is something of a "black box." I don't think the Lockean labor mixing story can be made coherent. The mere exertion of calories, as when one moves a stone across a field, seems insufficient to wrap both the stone and the field within the moral force field. "Purposeful labor" might work better - but maybe not.

In any event, I wish to leave the black box unexamined in order to turn to another way of thinking about property rights.

On this story, there is a gap between self-ownership and stuff-ownership. Think of it this way: the moral force field around the body can still be extended to cover stuff, but it loses a little bit of its punch once it is extended in this way. While it gives a person the right to exclude others from her body 100% of the time, perhaps it only gives her the right to exclude others from her stuff 99% of the time.

In short, the force field is weakened once it leaves its natural starting point in the body. Perhaps the more it is extended, the weaker it gets. At the limit, perhaps it dissipates entirely. Perhaps no one's force field is powerful enough to encompass an entire planet, or an ocean.

I think a good intuitive case can be made for a gap between self-ownership and stuff-ownership. Here is a case I presented in the comments at the Western Standard to try to demonstrate the idea (I cleaned it up a bit):

You buy all the land around Sally's house, which - to take the metaphor - means now there is a moral force field around her house. But let's make it a literal bubble: You put up walls of plastic stretching into the sky, all around Sally's house.

Given the right to exclude, Sally is obligated not to try to break through those walls. It would be morally wrong for her to cross over your land in an attempt to get food or water.

But of course you haven't coerced Sally, haven't done anything unjust to her from a libertarian point of view. At the same time, your actions have effectively crippled her autonomy.

So the question: suppose we accept that there is no divide between self-ownership and stuff-ownership. It's one force field and it applies to both you and to the stuff you've labored on (or something like that.) This means that when Sally cuts through the plastic, she's done violence to you. This means -- I'm assuming -- that you would be fully justified in shooting her in the head as she tries to make her escape. After all, she just tried to break into your property with a blow torch!

Intuitively, was it permissible to shoot her?

Now assume that there is a divide between self-ownership and stuff-ownership, one that works out in this way: self-ownership is absolute. No one can use your kidneys without your consent. But stuff-ownership is not absolute. Every once in a while, when it's necessary to give someone any shot at all of living an autonomous life, the stuff force field can be bent, manipulated a little.

In this case, if you refuse to ease your force field to accomplish some moral goal or protect certain values, Sally does nothing wrong when she ignores the field, and you are not justified in shooting her. Rather, you've committed murder, because you used violence in a way that, under the circumstances, was not permissible.

Of course, "bent and manipulated a little" is extremely vague. One might think that I'm just waxing utilitarian about property rights. But I don't think that's quite it. I don't support taking Jones' property and handing it to Smith just because Smith would enjoy it better. That's what a utilitarian might support.

My thought is different: we adjust your property rights for the sake of Sally's liberty, but we adjust them as little as possible. I never said you had to let her live on your land: you just have to let her escape, without shooting her as she crosses your property.

So what does that mean? It means, I think, that property rights should be subordinated to liberty - or autonomy, if you prefer. But some property rights are necessary if one is to have the space to develop and grow into an autonomous individual.

My quibble is not with property as such so much as it is with the first vision of property I presented, one that takes the form of an unconditional right to exclude. We don't need to think of property in that way, and most people don't. Libertarians who cleave too tightly to property in that sense are doing themselves and the movement a disservice.

Torture and the Coalition of the Living

The Volokh Conspiracy - truly one of the most interesting and informative blogs in the 'sphere -- published the results of a recent poll.

• 77 percent of voters say they have "followed news reports about the release of government memos about the Bush administration’s interrogation of terrorism suspects" either "Very closely" or "somewhat closely."

• 42 percent of voters believe America tortured terrorist detainees; 37 percent disagree.

• 58 percent of voters oppose further investigation of the Bush Administration's treatment of terrorist detainees.

• 58 percent of voters believe the recent release of memos describing interrogation techniques "endangers the national security of the United States."

I also found this question particularly interesting.

Some people say that there is a natural tension between protecting individual rights and national security. In the United States today, does our legal system worry too much about protecting individual rights, too much about protecting national security, or is the balance about right?

37% Legal system worries too much about protecting individual rights

21% Legal system worries too much about protecting national security

33% Balance is about right

This is interesting stuff, and it confirms some of the attitudes I've seen in Americans, both students and otherwise. I'd be curious as to what the results would be if that last question were asked of Canadians. The comment thread at Volokh is, as usual, good reading.

Now, what can we say? Lately, I've been considering the following kind of argument: democratic citizenship has a certain logic to it that will almost always eventuate in the torture of foreigners. The only question is whether the torture will be done in the shadows or whether it will be done under the obscuring aegis of the legal bureaucracy.

This is not to say that non-democratic states will never torture, nor even that they'll never torture foreigners. It is to say simply that democratic citizenship, as such, makes torture rational as a response to perceived threats to the political community. A monarch tortures for pleasure, or because he is simply insane. A democracy tortures for the most pedastrian, economic reasons. That is what I mean when I say the logic of democratic citizenship implies the torture of foreigners.

My argument for this position is not complicated. In brief, to gain power in a democracy, one needs to build a coalition around a set of common interests. Shorn of its romantic trappings, the candidate in a democracy makes his coalition a deal: support me, and you'll get X, Y, and Z. The candidate who can build the biggest coalition will probably win.

Now, one of the largest coalitions a politician can call on is the coalition of people who do not wish to die in terrorist attacks. Call this the coalition of the living. As a practical matter, this coalition includes virtually everyone. But it doesn't include non-citizens, for the very simple reason that they can't vote. Given the choice, a politician in a democracy will choose to kill foreigners before he risks losing the support of this very large coalition.

You might ask: don't politicians sometimes kill their own citizens too? Of course. And they will do this as long as it can be done economically: that is, as long as they can retain effective control over a large enough coalition to maintain their power. Thus, despised minorities can be sacrified, beecause the rest of the coalition truly doesn't care about their welfare, nor does it see their sacrifice as a risk to its own interests.

But I think that there is such a thing as democratic citizenship. Citizens are motivated to care about other citizens, at least to some degree. So there is always some disadvantage to sacrificing citizens. To a much, much lesser extent, this is also true of foreigners. For example, some Americans care about some Canadians. Some Americans know that their own interests are entertwined -- to some extent -- with the interests of those in other nations. But these ties are, relatively speaking, weak. Given the right amount of stress, they can break, and -- under the right circumstances -- the coalition can demand that they be broken, for its own safety.

Note that I am not making a moral judgment of the politician who chooses to sacrifice foreigners for the safety of those in his coalition. If you accept democracy, you should think that this is what politicians ought to do. The president of the United States is morally obligated to serve American citizens -- not foreigners. This logic, endemic to the notion of democratic citizenship, is what makes torture rational in a democracy.

The monarch, to return to the example, may torture for fun, or because he is insane. But he is certainly not morally obligated to torture, for the simple reason that he has fewer, weaker obligations to his subjects. On the other hand, the monarch can uphold transcendent moral principles, and declare, without winking, that he will not torture foreigners.

In a democracy, only Barack Obama's impressive charisma allows him to say such a thing, and even then, I think most of us are well aware of the wink (the poll results seem to indicate that.) Torture is how democratic politicians live up to the legitimate expectations of their citizens.

Citizenship makes you a member of a club, in some cases a very elite one. It places you under the protection of the state. For all that libertarians criticize the state and its disingenious representatives, they should also admit that, at least in some cases, for citizens of the right skin color, the state takes its obligations very seriously. It will protect its citizens, even if this involves shackling, drowning, and flaying foreigners.

Don't get me wrong: the absolute monarch may also recognize such obligations. But their basis is not the same. In a democracy, the state owes citizens because (in some sense) the citizens give up some of their autonomy. The obligation is based on reciprocity, not in divine edict. And, in our age, this makes the ruler of a democracy take that obligation even more seriously than he might otherwise. In the United States, a nation founded on the morality of exchange and consent, we should not be surprised to find that the torturers take their obligations very seriously indeed.

Thus, the logic of democratic citizenship makes the torture of foreigners a rational response to perceived threats. If you doubt this, consider the following thought experiment I stole shamelessly from the comment thread at the Volokh Conspiracy:

Imagine a terrorist attack takes place sometime in the not-to-distant future. A bioweapon attack. Tens of thousands of American citizens die. For whatever reason -- and, really, they don't need a reason -- many citizens come to believe that the government could have prevented the attack, if only it had not taken the torture of foreigners off the table as an interrogation option.

What is their response? They would believe, I think, that the government had not upheld its end of the social contract. The state would have failed to follow through on the implicit deal it makes to each and every citizen: give up your autonomy, and I'll protect you. Feeling this way, there is hardly any reason at all for the citizens not to reassert that autonomy, in whatever way they deem necessary, up to and including the termination of all the politicians who failed to do their jobs.

I make no moral judgments about the outcome of this scenario, but I trust we all can see that it is one politicians would like to avoid.

Torture, then, is never really off the table. And no one really believes it is. But it makes some feel better to think that it won't be used. For the basest of economic reasons, it can be kept to the shadows, where it is likely to be used even more efficiently, without threatening the consciences of those in the coalition of the living.

Torture and the "Morality" of Efficiency

Modernity (or post-modernity, if you prefer) is afflicted with two kinds of moral disease. Here they are:

1. An unreflective moral subjectivism, which denies the very existence of moral reasons.
2. An all-encompassing instrumentalism about reasons: the only reason to perform (or not perform) some action is because doing/not doing so will bring about certain states-of-affairs.

Combined, these two diseases cause symptoms much worse than either would cause on its own. By denying the existence of moral reasons -- that is, reasons that apply unconditionally, regardless of interests and desires -- modernity has the task of explaining all of morality in terms of those same desires, interests, and preferences. And by wholeheartedly embracing instrumentalism, morality is reduced to nothing more than a preference-satisfying mechanism.

When (1) and (2) are combined, the result is a morality that affirms that the only states-of-affairs that matter are states in which preferences are satisfied. Morality is merely a means to efficient preference satisfaction.

Except, the problem is, doing the right thing is often rather inconsistent with satisfying peoples' preferences.

Consider, again, torture.

According to the New York Times, President Obama's own intelligence director has claimed that

the harsh interrogation techniques banned by the White House did produce significant information that helped the nation in its struggle with terrorists...“High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country,” Adm. Dennis C. Blair, the intelligence director, wrote in a memo to his staff last Thursday.

Torture can work? That is -- to put it in terms moderns will easily understand -- torture can sometimes help to satisfy the preferences of the majority of Americans who would like to not die in a terrorist attack? Uh oh!

(And remember, in a democracy, the preferences of citizens count for more than the preferences of non-citizens. At least according to democrats.)

Heh, apparently, the Obama administration deleted Blair's assessment of the effectiveness of torture from the version of his memo released last Thursday. And no wonder! Doing so allowed a legion of morally afflicted left-wingers to control the media with the message that torture never, ever works. Which is why we shouldn't use it.

And if it did work, oh leftist intellectuals? Then what?

What else did Obama delete? This line:

“I like to think I would not have approved those methods in the past,” he wrote, “but I do not fault those who made the decisions at that time, and I will absolutely defend those who carried out the interrogations within the orders they were given.”

Egads, the good admiral is sympathizing with the torturers! We can't let that one out!

To be fair, Admiral Blair clarified these statements recently:

“The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means,” Admiral Blair said in a written statement issued last night. “The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

Hm, well good! All things considered, in this instance, torture was ineffective at satisfying the preferences of Americans. Torture was less efficient than other means the CIA could have used to acquire the same information.

Melissa McEwan, the feminist enfant terrible behind Shakesville seems to think this clarification should put the whole "torture question" to rest.

Implicit in [Blair's] statement is the admission that we turned to torture before exhausting every other conceivable strategy for extracting information from detainees, and, if I had to guess, we likely tried nothing else before going straight to torture. Our policy appears to have been based on every interrogator treating every detainee as if there's a bomb about to go off in the middle of Times Square.

Maybe. Obviously, treating every detainee as if he had the disarm code to a nuke hidden in Times Square is an inefficient use of resources. McEwan may be too afflicted with the modern moral malaise, though. If treating every detainee this way is inefficient, how about treating only some of them that way? Or only one?

Someone tell me: what's the appropriate balance? Too much torture, done too openly, hurts the world's image of America, and that's bad (because it detracts from the preferences of Americans.) So scale back on the torture. Brush it under the rug. Have it done in the shadows -- and for God's sake, stop writing memos about it!

But notice what McEwan doesn't say: that it's always intrinsically wrong to torture. Quoting Matt Damon (heh, what a charmer that guy is), the most she's willing to say is this:

'If a guy knows where a dirty bomb is hidden that's going to go off in a Marriott, put me in a room with him and I'll find out. But don't codify that. Just let me break the law'."

That's right. Don't bring the torture into the open. Do it, when the circumstances require it (which means: when it will be an efficient use of resources), but DEAR LORD DON'T LET THE GOVERNMENT TELL ME ABOUT IT.

What a cowardly response. If it's wrong, it's wrong. Legalizing it might make it more likely that torture will be used, or more likely that it will be used inefficiently (although Alan Derschowitz disagrees, and he's smarter than McEwan and at least as liberal.) But, to the modern, that's just something else to be thrown into the preference-satisfaction calculus. It's not wrong to make torture legal because torture is morally wrong. To the afflicted modern, it's only wrong to make torture legal because it might mean that torture will be used inefficiently, and that the preferences of Americans will not be as satisfied as well as they could be.

Monstrous. Morality matters. But it can only matter if we expel the two cancerous tumors eating away at its foundations, this rampant subjectivism and instrumentalism. The future of liberalism depends on this.

I suppose rape isn't torture, either

Now this is a bad argument. Huffington Post quotes a footnote from one of the recently released torture memos:

"While detainees subject to dietary manipulation are obviously situated differently from individuals who voluntarily engage in commercial weight-loss programs, we note that widely available commercial weight-loss programs in the United States employ diets of 1000 kcal/day for sustain periods of weeks or longer without requiring medical supervision," read the footnote. "While we do not equate commercial weight loss programs and this interrogation technique, the fact that these calorie levels are used in the weight-loss programs, in our view, is instructive in evaluating the medical safety of the interrogation technique."

My God, the CIA needs a paid ethicist on staff. I nominate myself for this role. If the organization does employ an ethicist, and he/she signed off on this travesty of moral reasoning, then he/she needs to be thrown into the sea, preferably with an anchor tied around his/her neck.

Let's explode the argument via analogy. Sex is good, right? Sure! People voluntarily have sex all the time. Sex can even improve your health.

Grant all of the above (not too hard, I know.) So can we draw any conclusions about involuntary sex -- otherwise known as rape -- from these facts about voluntary sex?

No. And starvation, voluntary or otherwise, doesn't exactly have the same unequivocal health benefits as sex. We sometimes allow people to voluntarily starve themselves, of course, even if we don't think it's a good idea. Voluntarily, people treat themselves in stupid ways all the bloody time.

But depriving prisoners of food to get them to talk? Involuntary starvation? It doesn't become right just because some idiots (and a few non-idiots) starve themselves voluntarily. Nor does rape become okay because people have sex voluntarily.

The voluntary part of these behaviors is rather important.

If there is an afterlife, the officials who endorsed these coercive interrogation techniques are going to spend a long time being sodomized by the second version of Kant's categorical imperative.

An example of moral rent-seeking

Egads, this video is ridiculous. But note the use of moral rent-seeking: Group X, social conservatives, has successfully passed laws in the past that make the lives of gay people more difficult. Their attitudes, to some degree, make those lives more difficult.

Group Y's lowered welfare is then used as justification for either maintaining or passing additional laws. This is why social conservatives must be fought, their arguments refuted and destroyed.

Feminism: Caught Between Politics and Morality

Feminism has the distinction of being both a moral position and a political movement. But its adherents have difficulty seeing both (a) that aims conflict, and (b) which should have priority, when they do (inevitably) conflict.

My example starts here, with a "joke." Bitch PhD, a well-known feminist blogger, posted a letter from her boyfriend in which he pokes fun at "teabaggers." The letter ends with the boyfriend calling Ann Coulter a "a pre-op T-girl" and "a pleasant enough fellow."

It is this passage that provoked outrage in the online feminist community. Also, check out the comments on Bitch PhD's original post. Lots of people got upset about (a) using Coulter's appearance to criticize her, and (b) even worse, putting that criticism in a trans-phobic context.

I share the concerns of these feminists, if not the entirety of their politics. At feministe, a blogger wondered "Why is the lefty hatefuck in effigy so exclusively a liberal-dude-on-right-wing-woman phenomenon?"

Well, I'll tell you why, in two parts. The first part is this: when you're doing politics, you inevitably play by politics rules. And the rules of politics, in short, permit the absolute denigration and destruction of an opponent's entire person. That's not my rule; I don't even think it is a good rule, which is one reason I shy away from mainstream politics; but it is still part of the rules.

In the context of politics, one can be evil and dishonest, as long as one is devoting one's energies to the achievement of "noble" ends. One can torture and rationalize that torture, as long as it is for the greater good. That is politics in a nutshell.

The second part of my explanation is as follows: men are socialized to be attack dogs, and in the context of politics this tendency really shines through. At the same time, the misogyny that "good liberal men" are smart enough to hide when they're trying to pick up women on the college campus comes through when they think they have a safe target: a political enemy.

The political rules permit misogyny. Morality -- and basic decency -- do not. Feminism is caught between politics and morality. The foot soldiers of feminism, invariably men, are willing to toss aside the moral aspects of feminism to achieve its political goals (I think of the feminist bloggers as the priestesses of the movement, not pejoratively.) And they're undoubtedly confused that they don't receive a pat on their head for their willingness to go the distance.

Bitch PhD has yet to retract the post, and she probably won't. Now you know why.

The Torture Memos: Indictment of America or Democracy More Generally?

I realize I'm going to get flak for this. Nevertheless, I encourage people to read them. Start with the 18 page memo signed by Jay Bybee, former head of the Justice Department's Office of Legal Counsel (OLC.)

There is much to digest. Andrew Sullivan is only a little hysterical when he calls the Bybee memo "as chilling an artefact as you are ever likely to read in a democratic society."

I haven't finished reading yet. To be honest, I didn't really want to read any more. The memos are disturbing (and the some of the documents housed on the ACLU's website are of poor quality for some reason, making reading even more difficult.)

The memos gave legal support to several interrogation methods the CIA used following 9/11, including waterboarding, the use of insects, sleep deprivation, stress positions, etc. CIA officials wanted to know if these techniques violated the prohibition on torture found in American and international law. Relying on the details provided by the CIA, the memos conclude -- after lengthy, albeit fascinating analysis -- that the interrogation techniques do not violate the law against torture.

Perhaps one of the most interesting and horrible sections of one of the memos is this one, images of which I've shamelessly stolen from Glenn Greenwald.

The footnote at the end of this excerpt reads as follows:

These excerpts are from the May 25, 2005 memo, authored by Steven Bradbury, head of the OLC. In short, the memo acknowledges (a) that the interrogation techniques used by the CIA (nudity, water dousing, sleep deprivation, etc) resemble practices that the U.S. has labeled torture when other countries use them, but (b) that this fact isn't, and needn't be, relevant.

I have a very hard time not interpreting this passage as the acknowledgment that inherently bad acts are permissible when the U.S. does them.

Some on the left who will undoubtedly view these memos as an indictment of the Bush administration, if not the United States in general. But that's insufficient. Any nation, not just the United States, might use coercive interrogation techniques after an event like 9/11. Some of those nations -- China, perhaps -- would not seek out legal advice before or after using them. In such cases, we wouldn't even have memos like these to look back on.

I am not, not saying that this makes torture right. If waterboarding interrogation subjects is wrong, it is wrong when anyone does it. But democracies consult their legal bureaucracies. Other societies torture in secret. The former reality gives rise to the pathetic hypocrisy the torture memos exhibit.

If Canada had its own 9/11, would it engage in torture? Maybe not. Would it allow torture to be used on its behalf? Almost certainly. Have Canadian intelligence agencies benefited from information gained through the use of torture? Probably.

To condemn the U.S. is to condemn politics in general. Clausewitz said that "war is a continuation of politics by other means." Foucault, developing the thought of Thomas Hobbes, has turned that saying on its head: "Politics is a continuation of war by other means." There is some truth to both these sayings, as shown by the American use of torture as an interrogation technique.

Torture, in fact, is the continuation of democratic politics by other means. To rule in a democracy, one must ensure that not too many of one's citizens die through the violence of terrorism. We have legal mechanisms, checks and balances, to curb the violence of the state against its citizens. These parchment barriers serve well enough to ensure that the state's violence breaks most severely against despised minorities, like drug users, and not the average citizen.

They do not -- and, as many of my American students tell me, should not -- protect those outside the polis. If non-citizens must be sacrificed to safeguard the polis, they will inevitably be sacrificed. Torture is the application of the logic of citizenship, taken to a conclusion that makes us squirm and recoil. Nevertheless, most of us do not take it to be a reductio of that logic, or of the state's unlimited capacity to inflict violence in order to achieve "necessary" social ends.

That is, perhaps, a mistake.

U.S President Barack Obama has done a curious thing. In releasing the memos, he also immunized the torturers. His attorney general has said that "officials who used the controversial interrogation tactics would be in the clear if their actions were consistent with the legal advice from the Justice Department under which they were operating at the time."

But, on second thought, this was to be expected: President Obama knows he will undoubtedly need the services of the torturers in the future. Democracy must be defended.

Cross-posted to the Shotgun blog.

A strange question

Is it possible to be a liberal who believes most liberals are idiots?

Or must one be a conservative to think this?

A deconstruction of "male privilege"

We start with the following, admittedly vague assumption: "background institutions" tend to fail in ensuring that people get what they deserve. Some people get too much; other people don't get enough. Call this the initial assumption.

(I will not address the question of whether it is the role of these "background institutions" to ensure that people get what they deserve.)

Since background institutions fail to give people what they deserve, and people should get what they deserve, our initial assumption may imply that (a) background institutions should be restructured, or (b) people living under the auspices of these background institutions (that would be all of us) have obligations to "make up" for the deficiencies of the background institutions.

Or, possibly, both (a) and (b). These are the normative implications of our initial assumption.

As I understand it, male privilege (MP) is the idea that men, as a class, get more than what they deserve from background institutions. Furthermore, it is the idea that much of what men get from these institutions comes at the expense of women. In short, men get more than what they deserve, and women get less.

Notice that the idea of MP does not differ terribly from our initial assumption. The difference is that MP is focused on the undeserved advantages of men and the undeserved disadvantages of women. MP may also have similar normative implications: (a) background institutions should be restructured, and (b) Men, in general, may owe obligations to women to make up for the differences in what they get versus what women get.

However, I do not think MP has these unique normative implications. Here is why:

Given the initial assumption, men -- as a class -- can be divided into two groups. In the first group are men who get more than they deserve. In the second group are men who get less than what they deserve. Furthermore, the first group of men can be further subdivided: there are men who get more than they deserve, primarily at the expense of other men. And there are men who get more than they deserve, primarily at the expense of women. MP only has unique normative implications if most men fall into this latter sub-group.

For suppose that most men get less than what they deserve. In this case, most men would not owe any special obligations to anyone. Rather, other people -- both men and women -- would owe obligations to them. Consider, for example, a true patriarchy: the king is in charge and his subjects, men and women, are used merely as means to his ends. In other words, the king exploits everyone.

In this situation, every man but the king would likely get less than he deserves. Only the king would get more than he deserves, and he would get it at the expense of everyone else. The king, I think, owes something to everyone else, men and women.

It might be argued that, even in this situation, men as a class would owe something: after all, one of "their own" is in charge. But this makes no sense. In this example, the king doesn't use his power to benefit men as a class; he merely uses it to benefit himself.

Now suppose there are many kings, all of them men, all of them in a position to exploit everyone else for their own benefit. Each of these kings gets more than what he deserves. Perhaps the kings even get together to coordinate their activities, to maximize their exploitative effectiveness as a class.

Obviously, there is something unjust about this situation. The kings owe us something, because they are getting more than they deserve, and they are getting it at our expense. But do exploited men owe women anything, just because the kings happen to be men? Why?

The example deserves to be continued (pun intended, of course.) Suppose that there is a ruling class, made up of men and women (but still mostly men.) Each person in this class gets more than he or she deserves. Each gets it at the expense of people who aren't in the ruling classes. Perhaps, sometimes, people in the ruling class find ways to exploit each other. For example, a male "king" might find ways to exploit a female "queen." In fact, perhaps this is the rule.

In this case, those in the ruling class get more than they deserve. Men in the ruling class exploit those in the lower class. They also sometimes exploit women in who happen to be in the ruling class. We might even say: on the whole, women are more exploited than men.

Do the men in the lower class owe anything to women? No! The men in the lower class are still getting less than they deserve. The women in the ruling class are getting more than they deserve, even if they are sometimes exploited. Men, except for those in the ruling class, do not have any privilege to speak of: they are, if anything, owed something by those in the ruling class. Men, as a class, owe nothing to women, as a class.

Now I think that this example has reached a point where it can touch the real world. Are there men who get more than they deserve? Absolutely. Are there women who get more than they deserve? Of course (pace some feminists who seem to think this is logically impossible.) The male corporate executive might get more than he deserves. The male worker gets sent to die in wars.

Do men get more than they deserve more often than women? Sure. Probably. But what's the normative significance? Turn back to (a) and (b), and consider the latter first. The men who get more than they deserve owe something to those who get less than they deserve. But "those" include men and women. The obligation on these men is not to women as such but to everyone in the "lower" class. Do women who get more than they deserve owe something to men? Yes, by the same logic.

And so we have deflated the idea of MP: it turns out to be not very important, as it simply reiterates the idea that those who get more than they deserve owe something to those who get less, especially if the former get what they have at the expense of the latter.

Now turn to (a), what we can call the broader normative implication. How should we restructure background institutions? They should be restructured so that they are better able to give people, men and women, what they deserve. This means that some men will get less. It also means some women will get less. What it does not require is that background institutions give women more than men generally, since both fill the roles of the exploited class.

More on "moral rent-seeking"

When group X successfully lobbies the government to pass a law that benefits X at the expense of everyone else, everyone pretty much agrees this is a problem. The behavior is known as rent-seeking.

It is advantageous for X to rent-seek because the costs of lobbying are outweighed by the benefits of getting the law it wants. In general, the benefits to X may be much less than what everyone else loses as a result of the law getting passed. However, because the costs of the law are dispersed widely among those outside X, they may not realize the extent to which they are getting screwed.

Moral rent-seeking, as I see it, differs from this picture in several respects. When X successfully lobbies to have phi-ing banned, this comes primarily at the expense of those who really like to phi. Those who are indifferent to phi-ing may not find their lives very different after the law passes. Those who do like to phi will likely suffer an extremely visible hit to their welfare.

In this way, moral rent-seeking does not benefit as much from the dispersal of costs that hides economic rent-seeking from our notice. But it benefits in another way, because if those who like to phi are in the minority (as they usually are) their costs will escape the notice of everyone else. Few will be immediately moved to protest on their behalf.

Indeed, because the new law only hits the welfare of those in Group Y -- the group that likes to phi -- it may be thought by some that the loss to their welfare is directly a function of phi-ing, and not a function of the law that makes phi-ing more difficult. Culturally, this will have the following effect: those in Group Y will have an even harder time making the case for phi-ing, because it will be easy for X and others to point at their depressed welfare and use that as evidence that phi-ing is a worthless, harmful activity.

This is how moral rent-seeking is able to mask its impact. Rather than dispersing its costs, moral rent-seeking imposes those costs on a narrow minority, whose lower welfare is then used as evidence that the law prohibiting their behavior was justified in the first place.

A tricky situation, indeed! Arguably, the drug war fits this pattern. So, to some extent, do laws making life more difficult for gay people. From this perspective, it looks like Group X has a pretty good racket going: criminalize some behavior most people don't care about, then retroactively justify the prohibition on the basis of facts about Group Y that are at least partially caused by the prohibition itself.

Again, I think the best way to deal with moral rent-seeking is to expose it for the racket it is: first, attack Group X's moral view (it's impossible to avoid this part of the debate.) Show that X's view of the good life is a bad one. Then reveal the value in the lives of those whose behavior has been criminalized, and show how that value is bound up with phi-ing. Show that the lives of the minority have value, too, and that it is unfair to make those lives more difficult just to benefit those with a faulty moral view.

If I'm right, then it follows that it will be impossible to reveal moral rent-seeking for what it is without questioning -- and ultimately undermining -- the moral views of, say, social conservatives. One cannot say: I'm agnostic about your moral view, X, but you can't restrict liberty. Laws restrict liberty in a myriad of ways. The problem arises when the restrictions are designed to benefit one group at the expense of everyone else.

Good lord, that's a good smackdown

Timothy Sandefur, of Panda's Thumb, vs. Michael Egnor of the Discovery Institute.

Sandefur thinks the Constitution prohibits teaching intelligent design in public schools. Egnor disagrees, calling Sandefur "a leader in the Darwinist crusade to censor balanced discussion of evolutionary theory in science classrooms."

Sandefur takes him apart, in the way that, I'm beginning to see, only a lawyer can (check out his response to Alan Keyes!)

Anyway, from what I can tell, the dialogue between Sandefur and Egnor started here.

Clearly not sensing the asymmetry in intellectual firepower, Egnor responded to Sandefur, decrying his "illiberal views."

Fighting words! They'd be fighting words to me, too. Egnor explained himself a bit more, and then Sandefur went after him with both barrels.

As the discussion has progressed, the subject has turned from evolution to a wider discussion of Constitutional law. And you know I love that stuff. Sandefur's most recent reply to Egnor's charge that the Constitution prohibits the government from spending money on scientific reseach regarding evolution.

Egnor, referring to him as (no kidding) the Howard Roark-worshiping "atheist legal commentator Timothy Sandefur", asks:

How does an atheist like Mr. Sandefur insulate his personal Creation Myth from scrutiny in public schools, when the Founding Fathers explicitly stated that the rights Mr. Sandefur invokes to censor scrutiny of Darwinism are endowed... by our Creator?

Hm, I wonder! What a predicament! Some of the Founders believed in a Creator. That means you can only invoke the Constitution to address issues of constitutional law if you believe in a Creator. Got it.

Sandefur gives the perfect reply:

There is no irony whatsoever in holding that schools may teach students that America’s founders believed so-and-so, while not actually teaching that so-and-so is true or false. It’s a pretty simple distinction that the good Doctor is either incapable of making or, more likely, wilfully ignoring.

There is a lot more in this recent reply to Egnor, but that was one of my favorite bits. More generally, there is no contradiction in applying the law while disagreeing with some of the beliefs of the lawmakers. Before arguing a case, lawyers don't have to prove they believe everything the writers of the relevant statutes believed.

That would be very, very silly.

Take that, Egnor!

Rent-Seeking and the Culture War

According to a reputable source, rent-seeking refers to:

The expenditure of resources in order to bring about an uncompensated transfer of goods or services from another person or persons to one's self as the result of a “favorable” decision on some public policy...Examples of rent-seeking behavior would include all of the various ways by which individuals or groups lobby government for taxing, spending and regulatory policies that confer financial benefits or other special advantages upon them at the expense of the taxpayers or of consumers or of other groups or individuals with which the beneficiaries may be in economic competition.

As the examples indicate, rent-seeking is often thought of in the context of business, and the influence businesses exercise over public policy. Call rent-seeking of this type economic rent-seeking.

According to a recent study, some 800 companies benefited from a change to the tax code that occurred in 2004. The study compared the amount of money companies spent lobbying for the change with the benefit they received once they obtained it. The results? The legislation "earned companies $220 for every dollar they spent on the issue."

Obviously, rent-seeking can be a very lucrative enterprise!

But I wish to examine rent-seeking in a different context, what I will call moral rent-seeking. This occurs when a group seeks to exercise control over public policy, not economic benefits, but for moral benefits. These benefits accrue to the favored group at the expense of others who do not endorse the moral view of the group standing behind the policy change.

Suppose group X clearly thinks the world would be a better place if people were forbidden to phi. Those in X recognize that those outside their group may like to phi, but because X believes phi-ing is immoral, they don't particularly care about those preferences. Morality, group X claims, discounts the preferences of those who like to phi.

Group X lobbies the government to pass a law against phi-ing. Before group X is coordinated and well-funded, their effort succeeds, and the government passes a law against phi-ing. Group X has now achieved a benefit -- the benefit of living in a world without phi-ing -- at the expense of those who like to phi. Those not in group X have lost something, the freedom to phi, and they have not been compenated for that loss.

To me, the behavior of Group X sounds quite a bit like rent-seeking. Group X was successfully able to capture control of some portion of government power, and used that power to transfer a benefit to itself at the expense of others. The problem is that moral rent-seeking, by nature, doesn't look as objectionable as economic rent-seeking. But it is. And for the same reasons.

Group Y, let us say, is the group of people who really like to phi. Those in Group Y think there is nothing wrong with phi-ing. They do not think everyone should be obligated to phi, but being able to phi is important to their way of life. Losing that freedom is a setback to their interests. That should matter, and it does matter in the case of economic rent-seeking. But moral rent-seeking, by nature, makes it harder to address what has gone wrong between X and Y.

First, what makes this a great example of rent-seeking is that, in some sense, X and Y are in competition -- cultural competition. For those in Y like being able to phi. They wish others would leave them to their phi-ing. Not only do they resent the government telling them they can't phi, but they're not altogether fond of those in Group X, who denounce phi-ing and try to convince others to discriminate against phi-ers.

In the marketplace of ideas, X and Y have different, conflicting moral views. They have an interest (perhaps not an equally strong one) in others coming to adopt at least a portion of their respective views. But Group X is better at lobbying the government. While Y might have won the culture war, it loses the political one.

The main difference between moral rent-seeking and the typical economic variety is that Group X will undoubtedly try to claim that the benefit it seeks is one everyone should appreciate. Unlike corporate lobbyists, Group X is unlikely to freely admit that the sought-after benefit only matters to its own bottom line. This is the difference that makes it more difficult to identify the wrongness of moral rent-seeking.

According to Group X, banning phi will benefit everyone -- especially the children! -- and it will even benefit those in Group Y. This adds a layer of complexity to the issue of moral rent-seeking that separates it from the purely-for-profit rent-seeking that occurs in the economic sphere. It means, on one hand, that moral rent-seeking will typically be harder to identify. It also means that those in Group Y, who no longer have the freedom to phi, will have a harder time making the case for compensation.

After all, why should Y be compensated? They didn't lose anything they shouldn't have had in the first place.

In order to address both concerns, it is vital to attack the substance of the so-called benefit Group X claims to be achieving on our behalf. It means that when Group X calls the act of phi-ing immoral, one has to address that claim, and decisively refute it. It's that claim that excuses X in its rent-seeking activity: because X is doing it for us (or for the children!) it doesn't really count as rent-seeking, and isn't inherently objectionable.

To break the back of X's argument, one must first refute its moral claims. Then one can reveal X for the pack of rent-seeking jackals it really is.

Why "male privilege" probably doesn't matter

I'm not claiming that "male privilege" (MP) does (or does not) exist. My claim is narrower: if MP exists, it has little normative significance. It does not give us reasons to do (or not do) things we had no reason to do (or not do) anyway.

A useful "checklist" of male privileges can be found here. As for a definition, I quote the following from the Feminist 101 FAQ:

Male privilege is a set of privileges that are given to men as a class due to their institutional power in relation to women as a class. While every man experiences privilege differently due to his own individual position in the social hierarchy, every man, by virtue of being read as male by society, benefits from male privilege

More generally, privilege is:

About how society accommodates you. It’s about advantages you have that you think are normal. It’s about you being normal, and others being the deviation from normal. It’s about fate dealing from the bottom of the deck on your behalf.

So, to summarize, male privilege involves a package of benefits men get for being men. They get the package from background institutions that systematically deprive women of the same privileges.

This definition is hopelessly incomplete without saying something about the term "benefit." Benefits come in objective and subjective forms. Person X is benefited objectively when he really is better off, according to the standards that matter, than he was prior to receiving the benefit. Person X is subjectively benefited when he only thinks he is better off after receiving the alleged benefit.

I think what feminists have in mind is objective benefit. Since men receive MP without even being aware of it, the kind of benefit they receive can't be subjective in the sense I defined. It has to be objective (objective benefit can include certain subjective states, insofar as having those subjective states is an objective benefit.)

MP thus involves men benefiting objectively from their status as men. And, furthermore, the benefits must somehow be withheld from women, in virtue of their status as women. Indeed, in the worst case, the benefits men receive must somehow be produced precisely by depriving women of similar benefits.

I think that's enough for the argument. What I'm responding to is the way some feminists seem to use privilege as an all purpose hammer. For example, Amanda Marcotte of Pandagon recently objected to the way some men assert that some women look better without makeup. In the comments, a man said he really didn't see the point of wearing makeup, and was attacked for showing male privilege. When a woman said the same thing, it was pointed out that this was permissible, since when she was saying it, it wasn't a demonstration of privilege.

For simple reasons, this use of the privilege card is pernicious and epistemologically dubious. If a person raises a valid concern -- points to a fact that provides a reason to do or feel a certain way -- then his privileged status doesn't undermine the validity of the concern. As I've said before, a valid argument is a valid argument. If a male makes a valid argument, the validity isn't undermined even if he is privileged viz-a-viz women.

So, in this sense, male privilege doesn't matter: it doesn't turn good arguments into bad ones.

Second, I'm not sure how much male privilege matters, morally speaking. Consider, again, the notion of a "benefit." I can think of think of very few things that qualify as benefits as such. Suppose background institutions were such that men were generally expected to fight in wars, and were the only people accorded the right to vote.

These background institutions would be objectionable. But not because one of their major benefits was only given to men. The institutions would be objectionable because, in this case, women should have the right to help determine the nature of government. If no one had the right to vote, the institutions would be even more objectionable. The fact that certain benefits are given solely to men doesn't make the background institutions objectionable. They're objectionable simply because they're not given to everyone.

Now look at it from the other side. Social institutions don't often give out benefits freely. Benefits always come with strings attached. In my example, a major string is the expectation that men should fight in wars. This imposes a major hardship. By referring to the package of benefits as a "privilege", feminist writers ignore the costs imposed on those who receive the benefits.

Am I saying that every privilege a male receives is offset by a cost? No. That would be ridiculous. Some men -- rich, politically connected -- are better able to shift the costs of their privilege on to others. But so are some women. The ability to shift the costs of privilege is itself a privilege -- I get this. But it makes it very hard to speak of "male privilege" per se, since those who bear the costs of the privilege of others are just as likely to be men as women.

Or, at least, I've never seen any argument that, in general, the costs associated with "male privilege" are shifted exclusively on to women. History doesn't support that contention. Rich men sent poor men to die in wars. They did not -- could not -- shift that cost on to women. The claim that women are generally less privileged viz-a-viz men needs more support. For every so-called privileged man, I can probably show another male who had costs shifted on to his life by other, even more privileged men. And I can probably show women who had costs shifted on to their lives by other women.

Privilege, it seems, is a slippery thing. Rich women were once expected to bear children: definitely a burden. But they had the privilege of shifting some of the costs of that burden on to other women. Meanwhile, poor men were expected and, indeed, legally required to fight in wars. Again, definitely a burden. And there was no one to whom they could shift that burden. Of course, poor men received a package of benefits, too: no question. Did those benefits outweigh their burdens? I have no idea, and no feminist knows either.

And this is why male privilege doesn't matter: for any "male privilege" I can show a male burden that comes as part of the package. Some men can shift that burden on to men or other women, true. But are men, in general, capable of fully sloughing off those burdens on to others? No one has shown that, and it's probably not true. Some men can do so. Others cannot. Some probably bear burdens that wholly outweigh whatever meager benefit they get from society.

Mutatis mutandis for women, of course.

But the idea that men generally receive benefits from society that outweigh whatever burdens society imposes on them is left un-argued for, and probably unarguable.

Finally, there is the problem that no singular, monistic, objective sense of "benefit" can plausibly be defined. To some men, having to fight in wars is probably a benefit, given their temperament, skills, etc. To others, having to fight is a major burden. Are men who enjoy the trials of war more privileged than the men who don't? Are the men who enjoy fulfilling the expectations society places on men more privileged than those who do not?

Perhaps. And that opens another can of worms. Feminists have proceeded as if the notion of "benefit" can be simply defined, and that men simply receive them, passively. But society's expectations can be interpreted as good or bad. If male privilege is supposed to matter, then it must be argued (a) that the benefits men receive viz-a-viz their privilege really are benefits, and not a complicated package deal with burdens attached that outweigh the benefits, and (b) that, when there are burdens attached to the benefits, men in general are able to slough the burdens off on other women.

If either (a) or (b) fail to obtain, then you don't have "male privilege": you just have some story about how society imposes different burdens and benefits on its members, and about how some of those members resent the imposition. Some people appreciate the package. Some people don't. Some people (usually rich) are able to shift some of their burdens on to others. Some people (usually poor) get the shaft.

But that's not as dramatic a story as the one about the eternal Patriarchy, so I can see why feminists avoid it.

But what follows from it? Something like this: people should have to bear the burdens associated with their benefits. And people who want a different deal (a different package of benefits and burdens) should be free to pursue that possibility with other like-minded individuals. This gives us a reason to: (a) not shift the burdens on to others, and (b) not take up a social benefit without being acknowledging the burdens that go along with it.

However, these are things we would have reason to do apart from the existence of male privilege. The general prohibition involves "burden shifting", or, more generally, receiving social benefits without acknowledging the costs. Since both men and women can do this, the reason applies to both.

So-cons and libertarians: the inalterable divide

I've been participating in this discussion over on The Shotgun.

At issue is the degree to which libertarianism and social conservatism are compatible. At this time, I have two answers: (a) in principle, they're not compatible; (b) in practice, they're probably not compatible, under the most plausible assumptions.

Now, to be clear, I think you can be a libertarian and agree with social conservatives about certain deeper matters of morality. For example, you can think potheads and other drug-users live terrible lives.

However, to take up such a position, your deeper moral view has to meet one of two conditions:

(a) When it comes to the state, the right has to trump the good. The state should never violate rights, even if that means sacrificing a lot of value.

Or:

(b) The good cannot be achieved without the right. That is, it's impossible to make the world a better place (with respect to values) by violating peoples' rights.

These conditions are explained as follows: suppose I think potheads tend to lead objectively poor lives. A libertarian has to agree that potheads should be allowed to smoke pot (assumption.) Now, if I think potheads live poor lives -- and, worse, encourage others to live poor lives -- I might think that the law ought to prohibit people from smoking pot. In fact, a lot of social conservatives do believe this.

In principle, to block the move from "X is a poor way to live" to "The state ought to prohibit people from living that way," you have to accept either (a) or (b.) Either you have to believe that a person's right to smoke pot trumps all, including whatever value would be achieved or protected through an anti-pot law. Or you have to believe that you can't actually promote value through the violation of rights.

It's true that there are many ways to get to libertarianism as a principle of political morality. But for your moral view to lead to that principle, it has to accept either (a) or (b.)

Kantians, Objectivists, some social liberals, Lockeans, etc. all accept one or the other. Social conservatives, on the whole, do not.

Yes, you can invent a straw social conservative who does accept one or the other. But then you've given up the contention that social conservatism is, in general, compatible with libertarianism.

My friend Peter Jaworski seems to agree with me, up to a point. He's argued that while social conservatives might not accept libertarianism in principle, they might endorse it in practice.

The so-con is involved in a dangerous liaison with the state. Empower it to take Emery's pot, and it'll be powerful enough to -- to take an example that would have been absurd just 10 years ago -- force churches to perform weddings that they morally object to, or force doctors to choose between either performing abortions or not being doctors at all.

As I understand it, the argument is that so-cons who accept drug prohibition are making a bad bet. They think that they can use the power of the state to achieve certain values. But they're risking the chance that other groups will use that power against them, to diminish those values.

In order to evaluate the argument, we have to know if the bet is really as bad as it is made out to be. And I don't think it is.

Call the option of forgoing the use of the state to achieve one's values "setting aside the hammer." A person sets aside the hammer when he decides not to use the law to force people to live the way he thinks is best. The claim is that, all things considered, it is rational for social conservatives to set aside the hammer, in order to avoid the risk that the hammer will be used against them.

I'll attack the claim from two directions. First, it is only rational to set aside the hammer if you can guarantee that opposing groups will also set down the hammer. This is true even if everyone would be better off if everyone agreed to set aside the hammer. But if I set down the hammer and my ideological opponent does not, I'm in an even worse position than when we were both groping for the hammer.

Second, it is only rational to set aside the hammer if there is really some risk that my ideological opponents will get the chance to use it against me. That is by no means something we can just assume. It is not the case that every interest group has an equal chance of taking possession of the hammer. Social conservatives happen to have a pretty good handle on it right now. Atheists who wish to ban churches (are there any of those?) do not.

The general problem with this argument is that it makes sense only at the point before the hammer is invented/distributed. If we were inventing society from scratch, we might all agree to set aside the hammer permanently. But once some group has control of the hammer, there is little reason for it to set the thing aside.

While some so-cons may come to see that they're making a bad bet, we shouldn't be surprised if most of them don't. And if we, as libertarians, tell them the bet is a bad one, with no redeeming features, then we're lying.

For the fact remains, it's not necessarily a bad bet. Why should powerful factions agree to give up their power?