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?

Mark Steyn on polygamy

From her perch, Michelle Goldberg recently tittered that Mark Steyn is "deeply stupid" before basically endorsing one of his most important ideas.

I don't think Steyn is stupid. He's a witty, talented writer. But his recent column in Maclean's perplexes me. I think its central argument can be charitably rendered this way:

1. The legalization of polygamy is undesirable.
2. The legal recognition of same-sex marriage makes the legalization of polygamy more likely, at least in Canada.
Conclusion: Therefore, the legalization of same-sex marriage is undesirable.

It's a valid argument; at least, valid enough for our purposes. It's premise 2 that does most of the work, and that's the premise Steyn argues for most vociferously in his column. The argument for (2) is something like this:

1. There are people in Canada who would very much like for their polygamous relationships to receive legal recognition.
2. The rest of Canada lacks the motivation and moral fortitude to stand up to them. The fact that they were unable or unwilling gay marriage is evidence of this (and it is also a further cause of the decline in motivation.)

Conclusion: The legalization of same-sex marriage shows and at least partially makes it the case that polygamy will receive legal recognition, sooner rather than later.

I think this is the case Steyn is trying to make. A relevant quotation:

Since this magazine and I were ensnared in the “human rights” machinery, I’ve come to regard Canada’s Charter of Rights and Freedoms as—what’s the legal term?—oh, yeah, a worthless piece of crap. The quiet lifers will doubtless coo that, after this one minor retreat, we’ll be able to hold the line. But, to return to the elusive pursuit of “da Canadian value,” if there is a core Canadian value, it’s that there is no line, and nothing to hold. You can hold a gay wedding, you can hold a polygamous marriage, you can hold your child bride’s clitoridectomy party, but you can’t hold the line.

Not bad, as far as it goes. Canadians won't hold the line against polygamy because they're unwilling to hold the moral line against anything.

As someone who has criticized the creepy moral relativism sometimes found in those on the left, I can see his point. If every set of values is just as good as any other, then why bother standing up for any values at all? Traditional Canadian values -- whatever those are -- are no better than the values of an Islamic fundamentalist who believes in polygamy and female genital mutilation. Or, at least, this is the position Steyn thinks Canadians have found themselves in.

But Steyn overstates his case. Traditional Canadian values (tm) can't be better than other values just because tradition favors them. They've got to be better for a reason. To deny this is to fall in the same trap as the leftist who thinks no set of values is better than any other. Both the "traditionalist" and the moral relativist deny reason a role; the traditionalist can't explain why traditional values are superior and the leftist can't explain why any set of values is better than any other.

That's a problem. Because, as a matter of fact, I think the traditionalist and the leftist have a piece of the puzzle. The traditionalist emphasizes values like freedom, rule-of-law, property, etc. The leftist emphasizes the value of critical thought. Indeed, it is the latter that leads the leftist to denigrate the values of the former.

What's needed is a synthesis. We do need to expose traditional values to critical scrutiny. Some traditional values will undoubtedly fall away, or be modified. That is to be expected. But the values that remain will be stronger because we'll be able to rationally defend them.

That's how you "hold the line" in an intelligent way. And it may be -- may be -- that we find the parts of tradition that reflexively condemn polygamy are parts that have to be set aside. If that's so, at least we'll be abandoning that part of tradition for a reason.

McCarthy and Franck on same-sex marriage

Matthew J. Franck, professor and chair of political science at Radford University, has published an interesting article at a blog called Public Discourse. Prior to this, I wasn't familiar with either the blog or the Witherspoon Institute, which hosts it (sorry about that!) but Andy McCarthy of NRO's The Corner linked to it today. McCarthy has a similar article in National Review available here.

Public Discourse is subtitled "Ethics, Law, and the Common Good." On my blog, I've tried to say a little something about all three topics, so I have a feeling I'll be reading and responding to more from Public Discourse in the future.

Both McCarthy and Professor Franck worry about "judicial tyranny", of which the recent Iowa same-sex marriage decision is taken to be a good example. McCarthy cites Federalist 10, Madison's discussion of faction -- something I've referred to many times throughout my blog. After recounting Madison's worries about factionalism, McCarthy adds, "A society’s capacity to manage faction determines whether it lives or dies."

I wholeheartedly agree with that!

To McCarthy, when the Iowa Supreme Court "imposed" same-sex marriage on the state, it not only stepped outside its constitutional bounds, but -- more problematic -- it "short circuited" the usual process through which a society manages its various factions ("short circuit" is my term, not his, but I think it captures his worries.) An illustrative quotation:

Leftists would supplant politics, the untidy, bumptious business by which the people control their own destiny, with “the rule of law.” With that clever euphemism, they bank on our reverence for the ideal of ordered liberty, hoping we’ll never catch on to the fact that we’re to be ruled not by law but by lawyers — predominantly, progressives trained to regard the law not as a predetermined code to ensure social order but as an evolving tool to promote social change.

When judges act to resolve controversies and disagreements (as they did in Roe and its follow up cases) they basically tell factions to "stand down." As I understand McCarthy, he believes judges have neither the legal nor the moral authority to do this. Legally, faction is managed through federalism. Morally, it is the responsibility of the community itself to resolve factional disputes.

I'm going to (mostly) set the legal issues aside, as the law is not my area of expertise. However, I do think McCarthy overstates his case: judges strike down laws when they conflict with more authoritative laws, e.g. with the constitution. A statute can conflict with the constitution in at least one of two ways. First, it can conflict directly: the constitution says "no laws forbidding X" and the legislature makes a law that forbids X.

More interestingly is the case of indirect conflict. Suppose the constitution prohibits the legislature from making laws that prohibit X-like actions, where "X-like" stands in for some property various and diverse acts. Actions that are X-like shall not be prohibited. There can very easily be a dispute about whether a given action is X-like enough to fall under the principle. But I don't think a court necessarily does wrong if it decides a certain action, Y, is X-like enough to fall under the principle. Such a decision is not wholly a matter of subjective opinion.

For example, if the legislature okays waterboarding as a means of punishment, a court will have to decide if waterboarding falls under the category of punishments the 8th Amendment prohibits. Is waterboarding murderers cruel? I think this question can be answered in an objective way. And I think courts should have a role in deciding if waterboarding is X-like enough to fall afoul of the 8th Amendment.

To turn to moral issues, I don't think McCarthy has successfully made the case that it's especially important that the community itself resolve its factional issues. For one thing, I'm not even sure this is possible, except in trivial cases. For recall that the community just is a collection of factions -- at least, that's what I take away from Madison. There is nothing like a social mind, standing above and apart from the factions, to which the responsibility for managing faction can be assigned.

Factions have to resolve their conflicts on their own. But what would motivate them to do this? Faction X wants one thing and faction Y wants another. The two things cannot both obtain at the same time. If the factions go to war in the public square, one faction will lose. Each faction knows this, so each faction tries to find enough common ground with other factions to win the battle.

Voila, political parties! But political parties don't resolve factional conflict: they simply postpone it, in the best of cases. In the worst of cases, political parties lock factions into a cycle of political warfare that drains the resources of not only the involved factions but lots of innocent bystanders who would simply like to get on with their lives. Politicians realize the gains to be made from patronizing well-organized factions. Factions lobby for more control of the government. It's a zero sum game that should satisfy no one.

When politicians and factions get in bed together, the rest of us lose. Why should rent-seeking be any more admirable here than it is in economic matters?

In places, McCarthy sounds almost like a left-wing deliberative democratic, who believes that factional conflict can have a transformative effect on factions, moderating their views and making it easier for them to find common ground. Whatever the other merits of this argument, it seems too optimistic for a conservative to endorse. And I doubt Madison would've endorsed it.

Factions have almost no reason to moderate their views, except insofar as this is necessary to gain the support of nearby factions. But the rational rule is to moderate as little as possible, because too much moderation threatens to dissolve the faction itself. Factions want to get their way more than they want to pursue common ground with other factions.

Courts resolve faction in an entirely different way. For whatever reason, the highest courts in the land have a special kind of salience. This allows them to have the transformative effect on factions that factions cannot produce for themselves. Brown v. Board of Education had that kind of transformative impact on American discourse. By authoritatively settling certain highly divisive factional disputes, courts can put a stop to factional warfare and allow factions to devote their energies to goals that don't involve imposing their will on others.

As a libertarian, I'm happy with that outcome.

I'll have to get to Prof. Franck's article later!

Against Democracy

I don't talk a lot about democracy on this blog. Frankly, that's because I do not much care about democracy. Let me explain why.

Ideally, democracy is a way of aggregating preferences. It is a way of combining the preferences of a bunch of people into one group preference: Democrat over Republican, or vice versa.

(There are many theoretical problems that arise when you try to combine preferences this way. While these problems are important, my concerns here are more practical in nature.)

Group preferences are thought to have normative significance, above and beyond the significance of the preferences of an individual. It is supposed to matter that more of the people (who voted) prefer candidate X over candidate Y. The will of the people -- as it is called -- is supposed to tell us something about "the way things ought to be."

Now, I find this way of thinking to be completely absurd; not just wrong, but ridiculously wrong. A person prefers X to Y. This may tell us something about the way things ought to be for his own life. Suppose he prefers to eat peaches over bananas. We might say: then he ought to eat a peach and not a banana. His preference for one alternative over another provides him with reasons to pursue some courses of action over others.

One might think that democracy simply extends this reasoning. Surely, if 60% of the people prefer eating peaches, that ought to have some significance. And it does: it provides sellers of fruit with reasons to stock more peaches than bananas (perhaps.) But ought it to have any significance for the way the other 40% of people live their lives? Not obviously. For the minority has its own preferences, and it ought to pursue them. Why should the minority care that the majority prefers peaches to bananas?

The point I am trying to make is the fact that 60% of people prefer peaches does not make peaches better than bananas, in any objective sense. It does not provide anyone with a reason to eat peaches he did not have before. The will of the majority is normatively impotent.

There are two kinds of responses to the criticism I have raised. One response is that, yes, sometimes, the fact the majorty prefers X over Y does make X better than Y. The other response is that, while majority preference doesn't make X better than Y, it does provide evidence that X is better than Y. I will deal with these responses in order.

1. Does majority preference for X over Y make X better than Y?

Answer: no. One consideration in support of this answer is that X's properties do not change just because 50%+1 find X preferable to Y. If X is truly better than Y, it should have something to do with the nature of X and Y. But majority approval is an exogenous factor with respect to X and Y. If there really is good reason to support X instead of Y, that reason exists independently of majority preference.

Another consideration in support of a negative answer to the question: democracy aggregates preferences. But it says nothing about the basis of those preferences. The democratic process is blind to the reasons why people prefer X over Y. Indeed, in principle, people could prefer X over Y for no reason whatsoever, or for reasons that are (again) exogenous with respect to X and Y.

Bottom line: in itself, the democratic process cannot make X better than Y, if the former isn't already better (and thus, more desirable) than the latter.

2. Does majority preference provide evidence that X is better than Y?

Answer: no. In this context, democrats usually cite Condorcet's jury theorem. But the jury theorem has little application to this issue for several interelated reasons, including:

(a) The jury theorem requires that the people on the jury have a better chance of being right than being wrong. If the reverse is true -- if they're more likely to get it wrong than get it right -- then the theorem works in reverse, and the group as a whole will almost certainly make the wrong decision.

(b) Informational cascades: people don't make up their minds independently of one another in a democracy. Bad information gets spread and the usual methods of filtering it out do not function adequately (more on this below.) For example, in the last election, rumors about Obama being a Muslim were widely spread and believed through email. While this didn't tip the election the other way, it is an instance of bad information poisoning the deliberative process.

(c) Rational ignorance: normally, people have good incentives to filter out bad information. False beliefs can quickly ruin lives and reduce a person's welfare. However, in a democracy, these incentives either don't exist or don't exist to the same degree. If X is inferior to Y, and people choose X over Y, the costs of X will be spread around even to those who didn't choose X over Y. When the costs of making a bad decision are dispersed and transfered in this way, most individuals will have little incentive to gather the information necessary to make the right decision. Taking the steps necessary to filter out bad information would cost more to most individuals than making the wrong decision would, so why would they do it?

(d) Ideological considerations: here I mean ideology in the Marxist sense, i.e. a set of ideas (usually false) promulgated by the ruling classes to keep the hoi polloi under their control. Liberal democracies are not immune to this kind of ideology, and politicians have done a good job instilling in people the ideas necessary to perpetuate their own power. But if the people are voting based on ideological considerations, they aren't voting based on the intrinsic merits of the alternatives. That's another reason to suspect that democratic decision-making provides no evidence for the superiority of one alternative over another.

Incidentally, Jan Narveson wrote a great paper on the role of ideology in liberal democracies...

Thus, I submit: the fact that a majority of voters (not even a majority of "the people") prefer X over Y tells us little or nothing about whether X is better than Y.

3. So what use is democracy? Or: democracy versus liberalism.

Democracy is instrumentally valuable, in that holding an election is one way of preserving liberal institutions. But I do not think this works the way most people seem to. It isn't that, given the choice, the majority will support liberalism over the alternatives. It's that, giving people a choice (or the illusion of choice) keeps them from overturning liberal institutions and imposing their own view of the good on everyone else.

Democracy is like icing on the cake of liberalism. It makes the cake taste better to those who are going to eat it, and prevents them from tossing aside the cake in favor of some less savory alternative.

However, this is a minor benefit, and conditional on the existence of strong institutions to keep the majority in check, e.g. courts, constitutions, etc. I would take liberalism over democracy any day.

And, no, I don't think voting is rational. Make sandwiches for homeless people if you truly desire to make the world a better place.

Secularism and Political Justification

This Newsweek piece caught my eye:

The End of Christian America

The percentage of self-identified Christians has fallen 10 points in the past two decades...the number of Americans who claim no religious affiliation has nearly doubled since 1990, rising from 8 to 15 percent.

Interestingly, the drop in religious affiliation is spread across the U.S. to some degree. While the northwest has always been less religious, the northeast has become "the new stronghold of the religiously unidentified."

That's an odd phrase: how can you have a stronghold of the unidentified? It's kind of like imagining a cabal of people unaffiliated with any other cabal.

Anyway, this is a philosophical blog, so I'm not going to try to explain why the number of self-identified Christians is dropping in the United States. Rather, I want to focus on the significance, especially the significance to liberalism.

John Rawls, some may recall, set out to meet what he saw as one of the most important challenges contemporary liberal democracies now face: liberal societies guarantee freedom of thought and expression. These freedoms lead to great diversity in moral and religious doctrines. How do you keep a society politically unified amidst an ever-expanding, irreconcilable diversity?

Rawls problem, I've become to believe, is quite similar to the same problem Madison tackles in Federalist 10. Madison saw that freedom leads to factionalism. When factions gain political power, they tend to use it to suppress other factions and to advance their own, narrow interests, which quickly becomes destructive to a political community.

It's impossible or at least undesirable to remove the causes of faction and diversity: the very freedoms we want to protect. The only solution is to mitigate their impact. For Madison, this meant setting up institutions that were, by design, highly resistant to the will of the people. For Rawls, this means articulating a freestanding, political conception of justice that everyone can support, despite their deeper disagreements about religion and morality.

I think both solutions are compatible. In the short run, we should support the institutions that tend to thwart the majority, like courts. In the long run, as political philosophers, we should try to find what I've called fixed points in the public culture, and build our ideas upon the edifice they provide. A fixed point is nothing more than some aspect of morality around which one can rally a consensus. Such fixed points are always fixed relative to some public culture, and are rooted in the history of the community.

For example, in the United States, the wrongness of discrimination against blacks is a highly potent fixed point. It would not have that standing if not for the American experience with slavery, the Civil War, and its aftermath. This is not to say that this point is accepted by everyone; rather, it is a point around which we can rally a consensus. Those who accept the fixed point -- and there are many of them -- find racism so evil that they are motivated to set aside class and racial privilege to support policies justified on the basis of that point.

So we should be careful: I am not claiming that there are no racists in the United States. I am claiming that (a) There are many, many people who do find racism evil, and (b) Those who see racism this way genuinely see racial discrimination as an injustice, so they are motivated to act against the evil even when their own interests are not directly implicated by it.

By this definition, fixed points get around the factionalism problem Madison envisages. They do so by providing enough people with enough motivation to set aside the interests of their relevant faction to do the right thing, or some facsimile of it.

Nothing I've said necessitates that everyone who accepts a fixed point does so for the same reason. Some people have rejected racism because they see it as contrary to the Christian idea that all are equal in the eyes of God. Some reject it because they see it as contrary to a certain version of Kant's categorical imperative, as I do. Some undoubtedly reject it for other reasons.

Fixed points do not require a consensus all the way down. That's the point.

Now, back to the collapse of Christianity in America: we might say, this is the inevitable outcome of the freedom liberal democracies guarantee to their citizens. Monolithic religious groups will splinter into sects and sub-sects. One might think this could lead to the abandonment of fixed points: after all, if those in group X accept that racism is evil because the doctrine of group X says it is evil, what happens when people leave group X? Are we destined to lose all our fixed points, and to stumble into the factionalism that so concerned Madison?

My answer at this time is: no. The funny thing about fixed points is that, by their nature, they can be justified in several different ways. Arguably, even to become a fixed point, a belief has to be broadly compatible with the diversity from which it arises. What will happen as people leave group X is that the things group X condemns that are not fixed points in the wider culture will likely be abandoned. What kind of things do I have in mind?

Well, the condemnation of same-sex marriage is such an issue. No, I'm not claiming that there is a shortage of religious groups now condemning same-sex marriage. Nor am I claiming that same-sex marriage is a fixed point in the sense I've used the term. It's not, although I think its permissibility can be derived from principles of equal protection that are fixed points.

Rather, what I'm claiming is this: same-sex marriage has only recently become a controversial issue. Of course, it would have been controversial, prior to the 20th century. But since the issue wasn't even raised, it never became controversial -- unlike slavery, which was controversial in the United States from the very beginning. The absence of controversy meant no consensus emerged with regard to same-sex marriage one way or the other, and with no consensus there can be no fixed points.

If the absence of fixed points leads to factionalism, then -- with regard to same-sex marriage -- what we have is factionalism. I happen to believe one faction has the better side of the argument. But the religious groups that condemn same-sex marriage are also factions. Their condemnation does not represent a fixed point; it is not justified on the basis of a fixed point. Thus, those who abandon those factions will not likely retain this belief, because it is justified solely in terms of doctrines endogenous to the factions.

Thus, I see the situation like this: if people abandon Christianity, they will retain a belief in issues clustering around certain fixed points. People will not start believing in the permissibility of slavery because their version of Christianity condemned it. They will continue to believe it is impermissible, because the wrongness of slavery is a fixed point. However, they will either stop believing in the wrongness of same-sex marriage, or else be far less motivated to impose this belief on others through law.

Actually, I think something is even more likely than this: same-sex marriage, while not a fixed point itself, is closely aligned with a belief that all are entitled to equal protection of the law. This belief is a fixed point, or close to it. Thus, history really is on the side of same-sex marriage advocates. The war between the factions will be resolved in favor of the side that can best call upon these fixed cultural points to justify itself.

That will be the side in favor of marriage equality. Count on it.

Some sanity in North Dakota

Link

BISMARCK, N.D. (AP) — North Dakota's Senate has rejected legislation to bestow human rights on fertilized human eggs, whether they be in the womb or in a laboratory.

Senators voted 29-16 Friday to reject legislation that sought to define as a human being "any organism with the genome of homo sapiens." The "personhood" status would include a developing embryo from the moment of conception, whether inside or outside the womb.

Just to remind everyone, Ron Paul sponsored a bill in Congress to define fetuses as persons under the law, a similar bit of madness that would have had similar ripple effects (except multiplied times fifty, since it would have applied to all the states.)

I'm almost surprised the North Dakota legislation fell flat on its face.

What's a "fusionist libertarian"?

Fusionism was a movement to unify libertarians and social conservatives. Like Will Wilkinson, I believe this alliance mainly grew out of opposition to Communism during the Cold War. Libertarians hate communism. Social conservatives hate communism. That shared dislike provided a motive for libertarians and conservatives to work together during the Cold War, and, to some extent, afterwards.

But the "alliance" was a marriage of convenience. Many libertarians watched with dismay as George W. Bush and the Republicans spent money like drunken sailors. With equal dismay, we have watched as social conservatives continue to support the unending, wasteful, and immoral "war on drugs." We have watched as social conservatives support state laws prohibiting consensual sexual activity between adults in the privacy of the home. We have watched; and we have grown tired.

What is a fusionist libertarian, then, at this time? It's too easy to say "a liberaltarian" -- as if a fusionism from the left would work any better than a fusionism from the right. To some degree, the popular left is infected with a stubborn but inconsistent moral relativism that, at the edges, begins to look like nihilism. Conservatives are many things, but they are not nihilists.

We should not be nihilists, either. In this, I agree with conservatives: morality matters. Sometimes, maybe often, morality should guide the law. Libertarians agree with this sentiment -- wholeheartedly, even. They tend to start from a foundation of individual rights. These rights limit what the state can legitimately do. When the state goes beyond these boundaries, when it interferes in the lives of its citizens, it acts wrongly, and it should be opposed.

But here, again, I agree with conservatives: morality matters. Rights are not the whole of morality. Rights, I have come to see, cannot even be at the foundation of morality. Values are important, too. Laws prohibiting employers from discriminating on the basis of race in their hiring practices violate rights, as libertarians commonly understand them. But I support these laws. Why?

The answer is that I don't see rights as a mysterious, freestanding feature of morality, trumping all other considerations by virtue of their vast, but assumed and unexplained, moral weight. Rights -- or at least some rights -- do not stand in opposition to values. Rather, rights -- properly understood -- provide the conditions for the successful pursuit of value. Their shape and scope is determined, to some extent, by values: a state that protected rights perfectly might be very admirable in that respect, but I would not want to live in it until I knew whether the way those rights were understood and enforced in that society were conducive to the living of a good life.

Values and rights go together. Sometimes, they conflict. Protecting the right of the racist employer to hire only white people conflicts with certain values, makes certain genuine values harder to achieve for blacks (and probably others.) To resolve this conflict, judgment is necessary (what Aristotle referred to as phronesis: don't do morality without it!)

My way of resolving the conflict is as follows: the right of the employer should be limited only to the extent necessary to ensure that blacks and other minorities have a fair shot at living a good life. This does not mean that values should obliterate rights; it does mean that rights, as abstract principles, can and should be adjusted, if it is necessary to give long-oppressed people a shot at living a good life in a racist society.

I know this resolution will not satisfy libertarians who like clear, easy answers to moral problems. So be it. Intellectual conservatives know that such answers are almost always wrong. Again, in this, I am more conservative than libertarian.

So what is it that a fusionist libertarian is trying to fuse? The answer is simple: the right and the good. By what principles does he try to fuse these two moral elements? Through phronesis, judgment informed by experience and a healthy dose of humility. Fusionism, understood in this way, brings that humility, as well as a certain amount of charity toward those with different views. Fusionism makes it possible to understand reasonable disagreement: that those with different moral views are not evil or stupid (or not always.)

Rather, they have brought to bear their own experiences and judgments and are trying to navigate through the world as best they can. As such, those with opposing views deserve a certain amount of respect. The principle of charity is not your enemy here.