A Fusionist Libertarian

Citizenship, political legitimacy, and substantive due process

2009-12-01T10:16:00.001-08:00

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

2009-07-12T15:58:00.000-07:00

"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

2009-07-12T14:41:00.001-07:00

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

2009-05-08T20:05:00.001-07:00

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

2009-05-04T23:28:00.000-07:00

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

2009-04-26T21:54:00.000-07:00

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

2009-04-22T10:09:00.000-07:00

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

2009-04-22T09:14:00.000-07:00

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

2009-04-20T14:59:00.000-07:00

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

2009-04-18T16:01:00.000-07:00

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?

2009-04-17T18:49:00.000-07:00

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

2009-04-16T15:08:00.000-07:00

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"

2009-04-16T14:31:00.001-07:00

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"

2009-04-15T11:28:00.000-07:00

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

2009-04-14T15:41:00.000-07:00

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

2009-04-14T14:45:00.000-07:00

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

2009-04-13T13:11:00.000-07:00

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

2009-04-09T13:10:00.000-07:00

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

2009-04-09T10:25:00.000-07:00

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

2009-04-07T15:13:00.000-07:00

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

2009-04-06T18:16:00.000-07:00

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

2009-04-05T16:11:00.000-07:00

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

2009-04-04T09:13:00.000-07:00

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"?

2009-04-03T14:46:00.000-07:00

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.

Iowa court makes right decision

2009-04-03T12:21:00.000-07:00

Today, the Iowa Supreme Court struck down that state's ban on same-sex marriage.

From what I can tell, the ruling was made on equal protection grounds:

“We have a constitutional duty to ensure equal protection of the law,” the Iowa justices wrote in their opinion. “If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.”

As I wrote some place in the past, the argument in favor of same-sex marriage through equal protection is fairly simple. The law gives some people the right to marry the consenting adult partner of their choice. Unless there is some "exceedingly persuasive justification" against it, everyone should have that right. There is no reason to restrict the right only to those who wish to marry someone of the opposite sex.

Simple. Conservative arguments against gay marriage often rely on dubious assumptions about the consequences that would follow from the legal recognition of same-sex marriage. For example, it has been argued that the legal recognition of same-sex marriage will somehow incentivize hetereosexuals against getting married -- despite the tax and other social benefits that go along with marriage.

These arguments are so transparent, it is no wonder the Iowa decision was unanimous.

There are other conservative arguments that could be called "formalist." These arguments rest on the assumption that marriage is and always has been defined in a certain way, and that -- for some reason -- the law ought to track that definition, to the exclusion of all other considerations.

These are silly arguments, for several reasons. One reason is that it is not clear how the person making the argument thinks normative content can and should be derived solely from a dictionary definition. I'm not claiming that a commonly accepted definition of a term should _never_ inform the law. But it is hardly the only consideration that matters.

Another formalist argument involves denying that same-sex couples have unequal rights, since they have exactly the same right to marry as opposite-sex couples: that is, they can marry someone of the opposite sex.

This argument piggy backs on the first. There is no way to rebut it directly -- not because it is that powerful of an argument, but because it is barely an argument at all. Marriage has certain essential features. We rely on these features when we distinguish "good" marriages from "bad" ones. A loveless show marriage, for example, qualifies as a "bad" marriage (or, better: it is a bad example of a marriage.)

Why is this? Well, we tend to think that the presence of a loving, committed relationship is an important, if not essential, feature of marriage. Same-sex relationships can exhibit this feature. That value -- which can be present in same-sex relationships to the same degree as opposite-sex ones -- is important, and the law ought to recognize it without prejudice.

But notice, the value -- which we can call the essential value of marriage -- depends in no way on the people in the relationship being of the opposite sex. When the law restricts marriage to opposite-sex couples, it is not protecting the value of marriage; instead, it is diminishing it, because it is placing what is an inessential part of the value of marriage -- the opposite sex part -- on the same level as a feature that is part of the essential value of marriage.

What is important is that we recognize committed, loving relationships; not that we recognize committed, loving relationships between people who happen to be of the opposite sex.

This is a good day for Iowa.

Why Kant is more Libertarian than Locke

2009-03-31T13:21:00.000-07:00

This is all a work in progress.

Broadly, justification usually focuses on the giving of reasons. The belief that p is justified if and only if there is sufficient reason to believe that p. Similarly, political justification typically involves advancing reasons to support (a) certain aspects of the political, e.g. instititions or policy proposals, or (b) the political order as a whole.

In epistemology, "justification" is what separates mere belief from knowledge (Gettier type issues shall be set aside, for the moment.) Political justification is what separates right political action from the mere exercise of force. If a given law is justified, then the government is entitled to enforce that law. Whether citizens are morally obligated to obey a justified law is something I doubt, but we can distinguish -- surely -- between a law that meets certain moral criteria, or that is intended to promote a just end, and the raw force the mugger uses to subdue his victim.

(Some libertarians are unwilling to make this distinction. But I think they do make it regardless: Take two possible worlds, both containing governments. In World 1, the government uses its power to educate citizens who could not otherwise afford an education. In World 2, the government uses its power to kill minorities. Obviously, there is something better about World 1, even if neither world is morally ideal. This shows we can distinguish between morally better and worse uses of government power.)

Justification depends on the existence of reasons. A common theme in liberal thought is that those who exercise political power must offer reasons to those against whom that power is to be exercised. These must not only be valid reasons (as justification always requires) but reasons that the subjects of political power will recognize as valid reasons.

Thus, liberal political justification proceeds from a restricted set of reasons. Not every valid reason will be recognized as such by the subjects of political power. Reasonable people can disagree about what counts as a valid reason. This restriction on reasons, rather than weakening the liberal view, gives it its strength and character, at least according to some. The laws liberals tend to worry about the most -- laws infringing on religious worship, freedom of expression, association, and so on -- are exactly the kinds of laws that can only be justified by moving outside the restricted set of reasons. Or so the argument will go.

Liberal justification, by restricting the reason set, limits what government can justifiably do. This limit carves out a domain in which individuals can govern their own lives according to the reasons they accept as valid. When government steps into that domain, it steps into it without warrant, as its justification will be unacceptable at least to those whose lives are subject to such interference.

It should be clear from this sketch that liberal justification puts limits on government precisely through its universalist aspirations. It is because the political order has to be justified to each and every person subject to its power that the result is a drastically limited government. Why this is a requirement of political justification is something of an open question.

The most direct route to this requirement, in my opinion, is through the second version of Kant's categorical imperative: we fail to treat others as ends in themselves if we exercise force against them without seeking justification; and this justification must be addressed to each and every person, since each has dignity that cannot be sacrificed in the pursuit of other ends.

Without such justification, the law simply treats some as means to the ends of others.

In my view, there is a line between Locke and Kant on this issue. For Locke, political justification requires the free consent of the governed. For Kant, political justification requires the rational consent of the governed. Since, for Kant, rational consent is always free (reason being the free part of us, the self-in-itself), one might think that there is complete convergence between the two thinkers. This is not so, for one reason: for Locke, consent can and probably will be motivated by many factors. An inept, intolerant government will fail to get the consent of the governed because it will fail to serve the interests of the governed. Government must actually serve the interests of all to be justified.

Kant accepts a dichotomy between interests and reason. But because reason by its nature demands freedom, it is the fact -- and only the fact -- that a government supports freedom that can establish rational consent. An unfree government that was very good at serving the interests of the governed might gain actual consent, but it would never gain rational consent. Reason seeks the freedom to govern itself; nothing less than this -- no matter how efficient, or good-promoting -- will be rationally acceptable.

The dignity of the person requires that the political order be justified to each and every subject. But, for each and every subject, reason speaks with one voice: more freedom rather than less.

On this point, I think Kant is more libertarian than Locke. Kant's view can explain why it is wrong to sacrifice liberty for greater welfare, for example. Locke's view allows for greater restrictions on liberty as long as they are, in some sense, Pareto-improvements on a freer baseline. Granted, there are some restrictions on what we can consent to, derived from natural law. But there is much space between the moral baseline and totalitarianism for government to restrict freedom. Kant's view doesn't have that problem because, for him, the moral baseline is identical with the moral ideal: freedom.

Kant's view also begins to allow us to rank liberties. The most vital liberties will be those most closely connected to the development and maintenance of free, autonomous reason. Freedom of speech and conscience will rank very high on such a list.

U.S. government to bring back slavery

2009-03-27T12:16:00.000-07:00

Ah, hell.

...To begin with, the legislation threatens the voluntary nature of Americorps by calling for consideration of "a workable, fair, and reasonable mandatory service requirement for all able young people." It anticipates the possibility of requiring "all individuals in the United States" to perform such service -- including elementary school students.

The bill also summons up unsettling memories of World War II-era paramilitary groups by saying the new program should "combine the best practices of civilian service with the best aspects of military service," while establishing "campuses" that serve as "operational headquarters," complete with "superintendents" and "uniforms" for all participants. It allows for the elimination of all age restrictions in order to involve Americans at all stages of life. And it calls for creation of "a permanent cadre" in a "National Community Civilian Corps."

This was what worried me the most about an Obama presidency: forced service to the state. And uniforms? UNIFORMS!? I have an idea: the uniforms can have a giant O on the chest and "volunteers" can wear armbands emblazoned with words like "hope" and "change".

Different versions of the bill have passed the House and Senate. They need to be reconciled before the final version goes to Obama for signing. And he's said he'll sign it; indeed, it's not unfair to say that this plan is his idea.

It's kind of ironic that a black guy is poised to bring back slavery. But shouldn't he move to repeal the 13th Amendment first?

Maybe he could get some help from Ron Paul with that.

H/T: Sandefur

Stupid arguments from pro-choicers

2009-03-27T10:17:00.000-07:00

William Saletan has another thoughtful piece on the morality of abortion in Slate. Key quotation:

So why do I keep bringing up abortion as a moral problem? Because it is a moral problem. It's the destruction of a developing human being. For that reason, the less we do it, the better. When I say abortion is bad, I'm not saying it's necessarily worse than bringing a child into the world in lousy circumstances. I'm saying it's worse than avoiding unintended pregnancy in the first place. That's why I keep pushing contraception. If you cause an unintended pregnancy and an abortion because you didn't want to wear a condom, you should be ashamed.

Of course, Saletan is not arguing that abortion ought to be illegal. We don't (and couldn't) ban all actions with bad-making features. Oftentimes, this is because passing a law banning the action would have even worse results, or because enforcing the law would involve the violation of fundamental deontic constraints (e.g. rights.)

At most, that an action has a bad-making feature is a pro tanto reason against performing that action. It is not -- or so I would claim -- even a pro tanto reason for making the action illegal (I would distinguish between bad-making features and wrong-making features. An action has wrong-making features if, for example, it would violate another's rights. Not every action with bad-making features has wrong-making features, and probably vice versa.)

However, I agree with Saletan that in most cases the fact that an action would destroy a developing human being is a reason against performing that action. It is also a reason, a moral reason, to avoid creating a situation in which the destruction of a developing human being will be a likely consequence. When such reasons are ignored -- as in Saletan's example of a person who doesn't take reasonable precautions against conception before having sex -- shame is a fitting first-person attitude to have.

So much for Saletan's argument. Looking at the forum section on his article and around the blogosphere, I see pro-choice individuals (of which Saletan is one) respond in several ways. I will deal with each response in turn.

1. Because he is a not a woman, what Saletan thinks doesn't matter.
This is an incredibly silly response, but let's unpack it a little bit. If the pro tanto reason I identified above exists, then all Saletan is doing is pointing out that exists. In that case, his gender/sex doesn't matter: there is a reason and that's that. If the pro tanto reason does not exist, then Saletan is wrong. But he would be just as wrong if he were not a man. Thus, in either case, Saletan's gender/sex is irrelevant.

I should add, this particular response -- frequently seen from pro-choicers -- is pernicious in another way. What motivates it is an argument like this: Abortion is about pregnancy. Men can't get pregnant. Therefore, men can have nothing to say about abortion.

Aside from its status as a crude ad hominem, the argument, by parity of reasoning, would exclude infertile women from saying anything about abortion. It also denies the fact that men, pro-choice or not, have a stake in the debate. After all, they have mothers, sisters, etc. Since men presumably care what happens to their female family members, laws pertaining to abortion have an indirect impact.

2. Saletan is helping out the religious right
A sound argument is a sound argument. A valid argument with true premises is an example of good reasoning, whether it is being uttered by Adolf Hitler or Barack Obama. And an invalid argument is a bad one -- again, regardless of who is speaking.

I almost feel ridiculous even addressing this kind of point, except I've encountered it personally: I will follow the arguments where they lead. If your ideological opponents take solace (warranted or not) from my reasoning, then attack my reasoning. If you can't, then you have bigger things to worry about than the feigned comfort of your "enemies."

3. Moral approbation interferes with a person's autonomy
Less one argument than a whole cluster of them. A more dogmatic libertarian than myself would just say: you're wrong, because only physical force/violence can violate a person's autonomy.

I don't want to take that route. My own position is that autonomy can be undermined in a number of ways, including the case in which one person exercises violence against another. But I don't think moral approbation interferes with autonomy much, if at all. When I say, "What you are doing is morally wrong," what I am saying is that I believe there are good reasons against performing some action.

If I am right, then you should listen to me. If you do listen to me -- after reflecting on my argument, etc -- then you've exercised your autonomy, in the fullest sense of the term. Autonomy isn't just a matter of acting on the first desire to pop into your head (otherwise, the heroin addict is the exemplar of autonomy.) Rather, autonomy requires judgment. Judgment requires a reflection on reasons. Bringing reasons to a person's attention isn't undermining her autonomy, but facilitating it.

If I'm wrong, then you shouldn't listen to me. But by finding the error in my reasoning, you're better off than you were before. Again, your autonomy hasn't been undermined.

Of course, all of this is contingent on the idea that there really are reasons that apply to people, independently of their own preferences. Someone who denies the existence of such reasons -- moral reasons -- won't comprehend much of what I've written. At the same time, I would wonder how such a person could even begin to criticize laws, e.g. with regard to abortion, as "good" or "bad" without falling back, tacitly, on the idea of moral reasons; and, more broadly, on the idea of moral truth.

There are some other pro-choice themes I'd like to address, but I'm running out of time for today. The fact is, I am pro-choice, but I get so very, very tired of people offering stupid (non-)arguments for conclusions I already endorse.

On the Liberal Narrative

2009-03-01T20:43:00.000-08:00

The title sounds pretentious, but the topic is relatively mundane: why are some so quick to believe the worst about their ideological opponents?

Here's an example of what I mean. Benjamin Edelman of Harvard Business School publishes a study tracking pornography consumption in the United States. According to the study, people living in "red states" buy about the same amount of porn as people living in "blue states." Sometimes more. The state with the most porn subscriptions is Utah, probably one of the reddest of the red states.

New Scientist published an article discussing Edelman's study. The headline?

Porn in the USA: Conservatives are biggest consumers

I don't have the evidence to blame Edelman for that headline, although his remarks as quoted in the article suggest he endorses it. But it's a stupid headline, which the study itself does not support.

The study does not show that conservatives purchase more porn than liberals. What it does show is that people who live in "red states" purchase at least as much porn as those who live in "blue states." But we don't know anything about the people who are actually purchasing the porn. Nothing at all. Read it again: not. a. thing.

It could be that liberals who live in "red states" are buying all the porn, because living in red states leaves them feeling sexually frustrated. It could be that conservatives in blue states are buying porn because living around liberals has a corrupting influence on their sexual mores. The data supports either hypothesis as well as it supports the hypothesis that conservatives consume porn at higher rates than liberals do.

My wonderful stats prof from the last year of my undergraduate career should use this article, if not the study itself, as an example of blatant misuse of statistics.

This blog post knocks down the New Scientist article better than I ever could. Here's another idiotic article that could use the same treatment.

So our example thus far is a terrible article that draws unsupported conclusions from a Edelman's study.

Here's example 2...

Actually, where do I start? See here, here, here, and especially here, here and here. I found those links by doing a Google search of blogs, using the keywords "conservative" and "porn", limiting results to the last month or so. There are plenty more to choose from. Almost everyone uses the study as evidence of conservative "hypocrisy." Jezebel, for example:

Conservative hypocrisy is no surprise: anyone who has watched the Republican party fight off allegations of bathroom sexual encounters, child molestation, and prostitutes has witnessed the "Do As I Say, Not As I Do" philosophy that seems to sweep through the right-wing on a regular basis.

At Huffington Post, people opine in the comments about conservative hypocrisy, and is further evidence of the repressive attitudes of conservatives. "Phoenix Woman" at the well-known liberal blog Firedoglake headlines her post: "Word from the Porn Belt: Do as I Say, Not as I Do"

I could go on, but I won't. There are two things to observe in these examples:

The New Scientist headline is accepted completely uncritically. This is pretty strange since liberals often claim to be great at the whole "critical thinking thing", and only a little bit of that is needed to blow holes in the article.
Once accepted, it is taken as evidence of conservative hypocrisy.

Both these observations deserve further examination.

Why did liberals accept the headline so completely? The answer seems simple: they accepted it because it provided further evidence for what they already believe about conservatives, e.g. that they're all sexually repressed hypocrites.

When a study claimed to show that conservatives were more generous than liberals with their money, liberals were very quick to contest both the findings and the methods of that study. Why? Because it went against the narrative. According to the narrative, conservatives are: (a) evil, (b) stupid, (c) sexually repressed, and, above all, (d) hypocritical. The New Scientist piece provided confirmation of all of these traits.

In other words, when something confirms a person's narrative, he's more likely to accept it uncritically than if it sharply diverges from the narrative.

I've argued elsewhere that, insofar as liberals tend to espouse moral relativism, the hypocrisy charge is really the only one they can make against conservatives. After all, you can't claim conservatives have false moral beliefs unless you're prepared to admit that there is such a thing as true moral beliefs.

This makes finding evidence for the hypocrisy charge vital: it's the only item in the moral toolkit of the typical liberal.

At the same time, the hypocrisy charge doesn't stick unless you believe that conservatives don't really hold the moral beliefs they claim to hold. Otherwise, one could explain inconsistency between belief and action through weakness of will (something liberals tend not to believe in, anyway, but conservatives certainly do.)

Thus, to prove the conservative is a hypocrite, you have to believe more than this:
1. Conservative says he believes believes pornography is wrong.
2. Conservative still consumes pornography.

You also have to believe:
3. Conservative doesn't really believe what he says he believes.

As a matter of fact, liberals typically do not stop there. They will attribute all sorts of motives and mental states to their ideological opponents. Here are some common examples:

"What anti-abortion conservatives really want is to make women their property. That's why they oppose abortion."

Or: "What free market conservatives really want is for the poor to suffer and starve."

The problem is that (3) (or any of the other attributed beliefs) is very hard to prove. How do you show that a person is lying about her moral beliefs, and not just suffering from weakness of will when she doesn't act on them? The very fact that this is vital part of the liberal narrative virtually requires the manufacture of evidence, or the uncritical acceptance of inconclusive statistics. It requires the use of deceptive non sequiturs, moving from (1) and (2) to the desired conclusion without noting the gap in the argument.

I will say: conservatives have their own narrative, and hence exhibit similar traits. More on that later...

A Puzzle About Rights?

2009-03-01T17:21:00.000-08:00

The only legitimate function of government is the protection of rights. I take this as a central tenet of most libertarian thought.

Person A's rights establish moral limits on the ways others can treat her. Rights do this by establishing duties -- to say that A has a right to phi is to say other agents have a duty not to stop A from phi-ing.

I will assume that if Person B has a duty to phi, then he has a reason to phi. Indeed, I will assume he has a special kind of reason to phi: a moral reason. Moral reasons, as I understand them, have categorical force. If an agent has a moral reason to phi, that reason applies unconditionally, regardless of whatever else is true about the agent.

Other reasons do not have categorical force. My reason to eat this peach ceases to exist if I no longer desire to eat the peach. My reason to stop smoking would cease to exist if I discovered that, through some quirk of genetics, smoking was actually beneficial to my health.

The duties that correspond to rights have categorical force. Person B has a reason (his duty) to respect the rights of person A, even if Person B would very much like to violate A's rights (e.g. to steal his stuff.)

There is much that is overlooked in this analysis, but it will suffice to make my point. Consider two possible worlds:

World 1: Anarcho-capitalism. People make use of private protection agencies to protect their rights. This process is imperfect, and rights are violated quite often.

World 2: Minimal state. The state claims a monopoly on the retaliatory use of physical force. It enforces that monopoly quite harshly. Independents who pursue vendettas against suspected murderers are dealt with in a harsh manner. However, the state is fairly good at its job, and rights-violations do not often occur.

I will assume that anarcho-capitalists will hold that when the state persecuted independents in World 2, it is violating their rights. The state has no legitimate claim to its monopoly.

The first question is: which world gets closer to the libertarian ideal, whatever it is?

The second question requires some setup.

Suppose you find yourself in charge of the state in World 2. You come to accept the anarcho capitalist argument that it is a violation of individual rights to forbid would-be independents who would like to start up their own protection agencies from doing so. Thus, you consider abandoning this restriction, and moving toward World 1.

However, you know more rights violations will occur in World 1. You also know that in World 1, you won't be the one violating anyone's rights. Your hands will be clean, so to speak.

Should you move from World 2 to World 1? If rights have categorical force, then perhaps you should: after all, your sincere desire that no one's rights ever be violated cannot justify violating anyone's rights. However, there is something strange, in libertarian terms, about deliberately creating a world in which you know rights are more likely to be violated.

One might argue that since, other things equal, your rights are more likely to be violated in World 1 than in World 2, it would be rational to resist the move from 2 to 1. But this only shows that it is not always rational to respect the rights of others.

Thus, the puzzle remains: should you irrationally move your society toward World 1, so that you no longer have to violate anyone's rights, or rationally maintain the status quo in which you, personally, have to violate the rights of a few?

Libertarianism and liberalism: what's the disagreement?

2009-02-23T21:10:00.000-08:00

Will Wilkinson's blog has been great reading lately. Check out this post.

Wilkinson distinguishes between "big-government libertarianism" and "limited-government liberalism." Here is what I take to be the essence of the distinction:

So, “limited-goverment liberalism” starts with liberalism and then argues that libertarianish policies and institutions will best secure liberal aims. “Big government libertarianism” starts with traditional minimal state libertarianism, but moderates it to make marginally more libertarian policy politically feasible.

As he suggests, the only plausible way of interpreting "big-government libertarianism" is a form of non-ideal theory. Libertarians would like the state to look like X. Unfortunately, until everyone becomes a libertarian, the closest they can get is X*. We know what X looks like: it's either anarcho-capitalism (in which case, X is "non-existent"), or the night-watchman state of minarchism.

X*, of course, is something less ideal than either of these things, but an improvement over the status quo. We can imagine it is a state with a limited social safety net, flatter, lower taxes, and so on. Wilkinson's own example of the kind of government program you might find in X* is mandatory retirement savings accounts.

The important point to keep in mind is that X* is less than ideal; it is still unjust, and there is still a weighty moral reason (even an obligation?) on citizens to move their state toward X.

In contrast, the limited-government liberal "start[s] from a fairly typical liberal account of the state and it’s [sic] aims." However, unlike the typical liberal, the limited-government liberal believes that X* (or something like it) is the best way to meet those aims.

In practice, then, the limited-government liberal and the big-government libertarian may converge to a large degree in terms of their policy recommendations. What they do not converge on is the purpose for those policies, nor the moral status of a society in which those policies will be enacted. To the libertarian, X* remains unjust. To the liberal, X* is just, to the extent the policies actually obtain their aims.

This seems like an intractable disagreement. Fortunately, this disagreement should only have bite in X*, where libertarians will support a move to X, and limited-government liberals will resist.

Except, it isn't like that. Libertarians are likely to be unsatisfied with Wilkinson's proposal. Why? My explanation is this: In contrast to many other "isms", libertarians are generally very aware of their most basic moral principles. Consequently, they're very interested in the basic moral principles of those who aren't libertarians. A political "ism" should be judged in terms of its foundational moral principles, and not in terms of the upshot those principles have when applied to policy. At least, I think that's the idea.

To take an example, Wilkinson's liberalism accepts -- even demands -- some level of taxation, if its aims are to be achieved. Now, for most (all?) libertarians, taxation is unjust; this follows from the basic principles of libertarianism, as they are commonly espoused ("axiom" of non-aggression, etc.) Wilkinson's basic moral principles, whatever they are, allow some kind of taxation.

But no longer is this just a disagreement about policy. Rather, it's a disagreement about justice. And Wilkinson's conception of justice endorses injustice from the libertarian point of view (though not from mine!) That makes him not only wrong, but -- in some sense -- a proponent of injustice.

I mean, it's not hard to imagine what someone from Lew Rockwell Institute would say to Wilkinson's proposals.

Thus, we may have to decide between competing conceptions of justice. Famously, John Rawls didn't think there would be that much disagreement about justice in contemporary liberal democracies. That seems a bit implausible.

Instead, I've argued here that arguments about justice cannot be conducted in a vacuum -- that, in the end, we can't just talk about what's right, but also what is good. The risk is that once we say something as simple as "It is bad when children starve through the incompetence of their parents," we at least open the door to the possibility that, just perhaps, something ought to be done to prevent this bad outcome from occurring.

Even if that means some minimal form of taxation.

Libertarianism: Through thick and thin

2008-12-01T09:30:00.000-08:00

For some time now, I've been doing most of my blogging at the Western Standard. However, this debate between Timothy Sandefur, Jason Kuznicki, and Todd Seavey piqued my interest.

The debate is strictly intra-libertarian, which is why I decided to give it attention here rather than at the WS's blog. For a while now, some libertarians -- including my friend, Peter Jaworski -- have defended a "thin" version of libertarianism. In this debate, Seavey is the representative "thin" libertarian. Sandefur and Kuznicki both criticize the thin view, in somewhat different ways.

My perspective on the debate is a bit odd, because I used to be a thin libertarian. Now I'm unsure about thin libertarianism, for many of the reasons Sandefur identifies.

First, some general remarks about the relationship between politics and morality.

1.
Politics always proceeds from some more basic moral ideas. For example, if X is good, and ought to be promoted, then (it might follow) the state ought to promote X. As Jeremy Waldron puts it, "Catholics...have a particular conception of the good, and for many that conception issues in a particular vision of law and justice, expounded (say) in the jurisprudence of Thomas Aquinas. Muslims proclaim a comprehensive religious vision, and this generates for them a particular vision of the well-ordered society."

On this model, politics are "tied to" or "generated" by particular conceptions of the good. When it comes to justifying one's vision of the political order -- and liberalism, in particular -- Ronald Dworkin calls the strategy of linking morality and politics the strategy of continuity.

The advantage of the strategy of continuity is that one's arguments about the good do most of the heavy lifting. If one can make the case that X ought to be promoted, or that X is the way people ought to live, etc., then the appropriate political order just sort of falls out as an implication of the argument. In addition, one does not need to motivate people to adopt this political vision; the motivation springs from prior moral argument about the good.

The problem with the strategy of continuity -- as Rawls saw -- is that it does not seem that disagreements about the good are always resolvable through rational argument. Instead, "reasonable disagreement" reigns: you say people ought to value this, I say people ought to value that, and that's where the argument stops, with neither of us being unreasonable for our insistence on one conception of the good over the other. Or so people who reject the continuity strategy will say.

The alternative to the strategy of continuity is discontinuity. One sharply distinguishes between conceptions of the good and politics. On this model, according to Waldron, "Particular theories of justice are not seen as tied to or generated by particular conceptions of the good. Instead, they stand apart from competing religious and philosophical conceptions. They present themselves as solutions to the various problems which disagreement about the good generates in society." Emphasis added.

According to the first strategy, every conception of the good comes with a companion conception of justice, a particular vision of what the ideal city/state would look like. According to the second strategy, one attempts to form a conception of justice that is independent of any particular conception of the good. A conception of justice with this form can be called a strictly political conception of justice.

People who have different ideas about the good will tend to disagree about politics. Therefore, to gain the consensus of all reasonable people, a conception of justice must be formulated as a separate "module", one that does not depend for its justification on any particular conception of the good. This is the essence of the discontinuity strategy, and it gets its best showing in contractarian theories like that of Rawls and Jan Narveson (although I know from personal experience the latter would not much like to be grouped in with Rawls.)

If justice is a module, distinct from any single conception of the good, where does its content come from? How do we know what justice demands? Here there are different answers. Rawls thinks the content of justice can be generated by working out the implications of certain basic ideas he thinks are already floating around in the culture of liberal democratic societies. These include the idea that citizens are free and equal, that society is a fair system of cooperation, and so on.

Whether he is right or wrong about this, one thing is clear: if this is where justice comes from, its scope is very limited. We cannot say our conception of justice is true, only that it is reasonable. And, even then, it is only reasonable for people like us, who already accept the basic ideas. Rawls explicitly disavows any attempt to link those basic ideas to a more comprehensive moral theory, like those found in the work of Immanual Kant and John Stuart Mill.

Another way to generate a "discontinuous" conception of justice is Narveson's way. For him, the content of interpersonal morality is the system of rules people would agree to, if they started from a Hobbesian state-of-nature that was devoid of moral constraints. What's interesting about Narveson's proposal is that he thinks the rules people would agree to are libertarian in character: don't worsen others; otherwise, do what you want. What makes his argument an example of discontinuity is that this basic moral rule is not an extension of any particular conception of the good. It is the right rule -- he thinks -- because anyone would accept it, almost regardless of his/her conception of the good.

2.
Narveson's view is an important jumping off point for us. I would say he is pretty much the "thin" libertarian par excellence. Consider Seavey's claim:

Libertarianism’s chief strength, then, has always been in recognizing the vast gulf between, on one hand, myriad, never-ending social complaints (along with the conflicting social philosophies built around them) and, on the other hand, the minuscule and tightly constrained range of things that rise (or, if you prefer, fall) to the level of political/legal complaints.

Continuity, to recall, doesn't really see a vast gulf between what ought/ought not to be promoted (simplicter) and what the state ought to promote/not promote. However, discontinuity -- whether in Rawls or Narveson -- does see the gulf. People reasonably disagree about what ought to be promoted. Hence, from the mere fact that X ought to be promoted (even if it is a fact), it does not follow that the state ought to promote X (Jaworski calls this the "ought/state" gap; I like that.)

Libertarianism, understood in the thin sense, is an example of discontinuity. Libertarianism must rise above conflicting "social philosophies." Its prohibitions must be based on different (firmer?) ground. Libertarian property rights, one must argue, can and must be detached from any particular conception of the good, and defended in terms acceptable to many different reasonable views about the good.

Seavey sells his argument a little short by claiming that the Taliban (to take an example) merely have a preference that people live one way rather than another. Rather, I would say that the Taliban have a deep, very comprehensive view about the way people ought to live, about what ought to be promoted. The fact that other people strongly disagree with their conception of the good is a reason to seek a political conception that depends neither on the Taliban's conception of the good, nor on a Millian conception of the good that emphasizes experiments in living.

My own view is that, taken to the logical extreme, discontinuity will almost always end up at something libertarian-like. On this, I think Narveson is correct: if what's important is identifying the norms all would agree to in a suitably circumscribed baseline situation (finding the appropriate baseline is a problem in itself, let me tell you), then the set of norms meeting this description will be small, and mostly "negative" in character: a list of "thou shalt nots", rather than "thou shalts."

One can be a libertarian without being a thin libertarian; but it certainly seems easier to be a thin libertarian.

3.
So what's the problem with thin libertarianism? The issues Kuznicki identifies are practical in nature (and not in a derogatory way.)

The problem I see here is that thin libertarianism...wouldn’t last very long. A thin libertarian state inhabited by sufficiently prejudiced people would all but instantaneously transform itself into an extension of their prejudices. Prejudiced people with full negative rights won’t just sit around muttering curses on their chosen outgroups. They will agitate for instantiating prejudice in law. If they are determined enough, they will eventually succeed. Thus, thin libertarianism is possibly very thin indeed.

I think Kuznicki is right about this. Rawls' own theory has a similar problem: once you've detached political norms from most of morality, what incentive do people have to uphold the political norms? To some extent, Rawls can handle this problem, because he thinks that, in private, different groups will be able to reconcile their various conceptions of the good to his favored conception of justice. The only groups that can't or won't be able to do this will be those with unreasonable conceptions of the good, to whom we don't have to justify ourselves anyway.

I still don't see why this should be, unless one defines the reasonable in a very question-begging way. Thin libertarians are in even bigger trouble: what motivation would a racist majority have to respect the absolute right of self-ownership of minorities? Why would they not work to chip away at it, in whatever way possible?

The worries about thin libertarianism are quite similar to the worries that drove me to a pro-14th Amendment libertarian view (a la Randy Barnett) and away from the "states's rights" libertarianism espoused by Ron Paul and people at Lew Rockwell. Racist factions at a local level, possessing plenary police power, would easily be able to pass laws stripping minorities of rights and dignity.

Rights will not be continually protected unless people agree that rights matter. But one cannot explain why rights matter without delving into the deeper moral issues discontinuity bids us avoid. This is why thin libertarianism fails.

Madison's Federalist 10 is very instructive here.

4.
Sandefur's objections to thin libertarianism are a bit more theoretical in nature. He argues that thin libertarianism -- and likely any "merely" political conception of justice -- is disingenuous. "Every attempt to create a "value free" politics fails, usually by showing that at bottom there is some normative conception about how people ought to live."

I think he's right about this. In any event, I've read a lot of stuff from liberals who defend the view in a discontinuous way, and always, always there's a deeper, more controversial moral view at work (typically, a kantian one.) Kant emphasized the overriding importance of autonomy, arguing (basically) that to fail to respect a person's autonomy was to fail to respect him as a human being.

While this kind of kantian reasoning does seem to prohibit the state from making strongly paternalistic laws, it does not -- or, at least, many believe it does not -- prohibit the state from subsidizing education, to take an example. But the point, as Michael Sandel would say, is that the kantian view is an extremely controversial one. If one's political view is an application of kantian principles, this does not show that the view is wrong; it does, however, belie the suggestion that one is getting beyond moral disagreement.

On the contrary: when one advocates kant-inspired liberalism, one is immediately mired in philosophical debate, much of it as resistant to rational resolution as the disagreements about the good these liberals claim to want to avoid.

Sandefur is also correct that one cannot treat rights as "primary moral principles." At times, Nozick seems to do this (at other times, he just takes a kantian position.) This is not just because the motivation to adhere to rights has to come from somewhere. It's also because -- and this is my point, not Sandefur's, though maybe he'd agree with it -- the application, scope, and shape of rights is always somewhat indeterminate.

Must every state protect free speech at least to the extent guaranteed by the 1st Amendment? In fact, that's a trick question: the 1st Amendment is, in some sense, indeterminate. The Founders could not have foreseen the Internet; yet "freedom of speech and the press" clearly extends to the Internet. Why?

Well, here, I think Ronald Dworkin is on to something. "Freedom of speech" is an abstract principle. Its content can be filled in once one understands that it is linked to a particular conception of the good. If "freedom", broadly construed, is important because the good life is the autonomous life, then we know just how wide the scope of that principle is.

Suppression of speech inhibits participation in the good life, because it threatens autonomy. Suppression of speech on the Internet also (and for similar reasons) inhibits participation in the good life. By the way, this isn't inconsistent with original intent jurisprudence, because, as Dworkin suggests, the Founders could and probably did intend to lay down abstract principles, at least in places.

5. Conclusion:
"Thin" libertarianism has one attractive feature thick, comprehensive libertarianism cannot match: it makes the promise of transcending reasonable disagreement about the good. But it may not be able to fulfill that promise.

At the same time, I'm reluctant to say thicker libertarianism, based on a view of the good that emphasizes autonomy, can do it, either. Autonomy is a slippery idea. Joseph Raz's version of liberalism is firmly based on a plausible interpretation of the concept, but it's not exactly libertarian in its details.

One might say: that's because Raz's conception of autonomy is too robust, too thick. We need a thinner version, like the one Rasmussen and Den Uyl present (they call it self-directedness.) For example, a thin version of autonomy might identify infringments of autonomy with acts of violence, such that the only way one can interfere with another's autonomy is if one uses violence against him or her.

That conception of autonomy would be very thin, and very congenial to libertarianism. But now the argument can now be turned back on the thick libertarian: why should we accept the thin version of autonomy? The argument simply can't be that a thin version of autonomy is more widely accepted than a thicker version. After all, that wasn't enough of a reason to accept thin libertarianism!

My concern is that a thick version of autonomy, like the one Raz espouses, will almost always lead away from a libertarian politics. Thicker versions of the concept of autonomy might imply that a very poor black person who can't get a job in a racist community is lacking autonomy.

And I'm not sure this is wrong; but if we've already accepted that the state ought to treat what will/won't promote autonomy as a reason to act, then we will also be quickly led to accept that maybe the state ought to help this person out in various ways (incidentally, Rasmussen et al. do not respond all that well to this objection in their book.)

Again, I'm not sure it is a bad idea for the state to help out the truly desperate. But it isn't a very libertarian one. To borrow a clever saying from Kuznicki, there may be no such thing as thick libertarianism, at least once one has augmented it with a plausible, thicker view of autonomy.

Moral accounting and double effect

2008-07-09T21:35:00.001-07:00

First, some necessary clarification: Let us say that an illegitimate government is one that regularly forces those who haven't previously consented to its authority to perform actions not otherwise morally required (e.g. by the rights of others.) I take it as given that, accordng to this definition, all governments are illegitimate (but not necessarily so.)

For example, assume that abolishing slavery was a good thing to do. During the Civil War, abolishing slavery required conscription and other measures libertarians would definitely reject under normal circumstances. Conscription, especially, seems an obvious rights-violation. Any government that practiced conscription would be illegitimate according to the definition just presented.

Suppose that an even more extensive violation of rights was required to abolish slavery in the United States. At what point would we say that the moral cost of abolishing slavery was too high?

In the comments to this post, Stephan Kinsella seems to suggest that the moral cost incurred during the Civil War was too high. Ridding America of slavery was a good thing to do, "aside from the cost and consequences," he writes. These costs include the deaths of half a million people, the aforementioned conscription, and presumably Lincoln's suspension of habeas corpus.

Was the moral cost of abolishing slavery too high? Fortunately, I don't need to answer that question, because just in raising it Kinsella and others have relocated to my turf. I'm perfectly willing to entertain the possibility that the good of abolishing slavery did not outweigh the evil of fighting the Civil War. When an action is known to produce more evil than good, performing that action may be unjustified. Perhaps this is one such case.

But we've already admitted that a government that practices conscription is illegitimate -- but so is each and every other government! No government is legitimate, which means no government may impose obligations on us (e.g. to fight in a war) that we wouldn't have anyway. However, this does not mean that we should necessarily condemn all the actions of governments -- we should, I argue, condemn all and only those that it was reasonable to assume would lead to more evil than good.

In other words, once Kinsella moves away from the illegitimacy of government to the assessment of the moral cost of government action, he's accepted that there is nothing in principle preventing government actions from being morally justified. He just thinks that, in practice (and during the Civil War), government does/did more harm than good.
***
Here is a thought experiment to buttress the point. Suppose one could tell a convincing sociological story about how a simple change in traffic laws would eventually lead all slave owners to voluntarily give up their slaves. Now we've already admitted that no government is legitimate. The government has no more right to set traffic laws than I do. However, I have absolutely no problem with the government changing the traffic laws in this way. In fact, I think it would be wrong for it not to do so, given the fact that it is probably the only institution with the salience necessary to unilaterally alter traffic laws.

Suppose we had good reason to believe that altering traffic laws in the required way would lead to an extra ten or so fatalities a year, at least for the first five years. Does anyone doubt that, even with this added moral cost, it would still not be morally acceptable for the government to change the traffic law?

The thought experiment presents a clear case in which an illegitimate government may act in morally justified ways, just as long as its action produces more good than evil. Really, it's just an application of the doctrine of double effect.

In response to my claim that it's good when the state protects individual rights, Kinsella writes, "Only if it does so without violating others' rights--that is, without any collateral damage, and without taxing or spending others' money. Otherwise, the action taken has both good, and bad, aspects--it's not unambiguously good." Emphasis added. I don't think that anyone is claiming that the Civil War was unambiguously good. But does an act have to be unambiguously good (in all its effects?) before it can be morally justified?

We can make Kinsella's point here even stronger: suppose a really strong man uses my head as a battering ram to break down the door of a thief's home so he can retrieve his stolen property. Assume that it would be a good thing if he got his property back, but it's not a good thing for my head to be used as a battering ram. The strong man's action is not unambiguously good. Can it be justified?

Obviously not, for several reasons: first, the strong man could have used his own shoulder to break down the door. There were other, less costly ways to attain the good end than the way he chose. Second, the moral cost of bashing someone's head in could reasonably outweigh the good of getting the strong man's property back. The strong man's action was not morally justified.

This is why arguments about whether economic forces could have rid the United States of slavery are so important. If the invisible hand had freed the slaves, that would have been a morally costless way of achieving a worthy goal. But if, as Sandefur and I seem to believe, economic forces would not have been enough to lead slave owners to voluntarily free their slaves, then it may have been justified to use other means to do so.

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On Moral Justification and Political Legitimacy

2008-07-09T14:28:00.000-07:00

I'm keen on a distinction A. John Simmons makes (can't remember where at the moment) between moral justification (i.e. of some action) and the legitimacy of an authority (i.e. political authority.) Like any thoroughgoing Lockean, Simmons accepts that we are only under a moral obligation to obey a government if we have consented to that government.

Of course, we all have pre-political obligations. We are all obligated not to intentionally kill others who themselves haven't violated any pre-political obligations. We are all obligated not to use the property of others without permission, and so on.

The question of political legitimacy is whether a government can establish other moral obligations, beyond the pre-political. If the government tells me to do X, and X is not something I'm morally required to do anyway, what conditions must be met if the government's decree is supposed to establish a new moral obligation to do X?

The typical answer here will have something to do with consent. For example, if I have previously consented to do what X tells me to do, and X tells me to do something, then I am obligated to do this. If I've consented to obey the law, then I am morally obligated to obey the law. And so on.

The problem is that most of us haven't expressly consented to obey the government in this way, and accounts of tacit consent are fairly implausible. Thus, it appears that the government lacks the authority required to establish new moral obligations. None of us is morally obligated to obey the law, except when the law forbids us from doing something our pre-political obligations forbid us from doing in the first place.

Simmons position amounts to philosophical anarchism. According to Robert Paul Wolff, what government lacks is the capacity to make binding commands of us -- commands that we would be obligated to obey over and above the pre-political moral requirements we are all subject to anyway. To the extent that a government lacks this capacity, that government is illegitimate.

I'm a philosophical anarchist in this sense. However, while I deny the legitimacy of government, I do hold that particular acts of government can be morally justified. For example, it's a good thing when the government stops one person from inflicting violence on another. It's good that some entity exists to stop people from carrying off my property.

If Superman existed and used his super strength to protect my rights, I would also think that was a good thing, even though I would deny that I had any independent reason to obey Superman's commands to respect the rights of others. To the extent that rights violations would occur without his presence, the world would be a better place with Superman in it

We have to be careful here: it might be that Superman couldn't be trusted to use his power only to defend the rights of others. He could use his power for evil as well as for good. To the extent this is so, we might prefer a world without anyone like Superman. But this would be an "all-things-considered" judgment: we would have to compare the good a Superman might do with the evil he could do, and draw our conclusions that way.

However, this would not change the fact that when Superman (or the state) upholds the rights of citizens, then Superman (and the state) is worthy of praise. But what we would not do is condemn Superman as an evil-doer (or the state as an inherently criminal enterprise) on those occasions in which Superman/the state upheld individual rights.

Now let's look at the dispute between Timothy Sandefur and Stephan Kinsella. In reference to the Civil War, Sandefur argues that "The federal government had the right and the duty to put down the Confederate rebellion." We can set aside, for the moment, Sandefur's claim that Lincoln was duty-bound (under the U.S. Constitution) to stop the South from leaving the Union. I think he's right, but that's not what's at issue here.

The issue, rather, is how we should morally evaluate the actions of the state when it stopped the Confederate rebellion. In judging whether an action is good or not, we need a certain standard. In referring to "the ultimate values of libertarian political philosophy," Sandefur thinks libertarianism does posit such a standard. As I read his argument, Sandefur thinks it was good to quash the rebellion and Kinsella thinks it was not.

As I see it, that standard is liberty. Other things being equal, it's better when people are free than when they are not. Slavery is bad; abolishing slavery made the world a better place.

In his response to Sandefur, Kinsella takes the position that

Under my libertarianism, any pro-slavery legislator in either sorry government--or even any voter who endorsed slavery--is a criminal rights violator. Just because a libertarian does not endorse the USA's unconstitutional, immoral, criminal, unlibertarian, illegal actions does not mean we condone its enemy's actions either, as is plain to anyone with a lick of sense and a drop of honesty.

Let's accept the claim that both the United States was and is engaged in the widespread violation of individual rights. Let's also accept the claim that the Confederate government would also have been engaged in violating those same rights. Further, let's accept the philosophical anarchist's point that neither the Union, nor the Confederacy, was legitimate; neither could impose moral obligations on people apart from the obligations they would have had anyway.

Even accepting all this, as libertarians, why should we not think that it was a good thing that Lincoln acted as he did and rid the United States of slavery? This does not mean Lincoln had legitimate authority: he could not make it the case that slavery should be morally forbidden. But I take it that as libertarians we think that slavery is morally forbidden, and that ridding America of slavery was a good thing to do.

This is especially so if you think, as Sandefur does (and I agree) that economic forces in the United States were insufficient on their own to end slavery. If you think this, then you will be led to think that if someone had not acted, slavery would not have withered away on its own. In other words, in a world without Lincoln (or Superman; or the equivalent) slavery would still exist in the United States. And, I think it follows, that world would be -- in that respect -- a much worse place than the one we presently occupy.

Like Rothbard, Kinsella's position is that any state is inherently a criminal enterprise. This seems to amount to the view that nothing the state does can ever be morally justified. Even if it would be justified for you and I to use force to free our neighbor's slaves, it would not be justified for the U.S. government to forcibly free those slaves (would it even be justified in Kinsella's world for the state to pay slave owners to free their slaves? I doubt it.)

To me, this position seems absurd. Obviously, I can and should evaluate the state's conduct the same way I would evaluate the conduct of anyone else. When the state protects individual rights, that's good. When it doesn't, that's bad. And at no time does the state gain legitimate authority, in the sense the philosophical anarchist describes. But the state did not need any kind of special authority to free the slaves: morality itself provided all the justification the state needed to act in that case.

Some thoughts on what can rightfully be considered a law

2008-06-27T20:42:00.000-07:00

In my previous post, I didn't mean to equivocate between conceptual and substantial normative matters when I discussed what it takes for a "law" to be rightfully considered a law.

"Rightfully considered" is, in the above statement and my previous post, not a reference to the justness of a law, at least not primarily. But consider: Jones and Smith both wash up on a deserted island. Jones is much more physically powerful than Smith and hence Smith is rather afraid of him. This fear increases when Jones begins to articulate rules for Smith to follow: "Every morning, you will wake up at sunrise and gather coconuts for me. If you do not bring back four coconuts, then I will beat you."

Jones is certainly trying to give Smith a command. And suppose Smith, out of fear of being beaten, does acquiesce to Jones' demand. In fact, Smith gets into the habit of obeying Jones so much that Jones does not even have to specify that Smith will be beaten if he doesn't follow his commands.

My intuition about this story is that Jones is not making laws. In the story, he does have all the guns (so to speak) but the situation is lacking certain features that are necessary if genuine laws are to exist. These features might include:

Jones' commands aren't general enough to qualify as laws.
Jones isn't writing them down anywhere.
The only reason Smith is obeying Jones is because he doesn't want to be beaten. Neither Smith nor Jones actually think Jones has any real authority at all.

We can reject the first two features as being irrelevant, with the following caveat: they probably bear on the relevance of the third feature, which is where all the action is.

As for the third feature -- well, think about it. When Jones tells Smith to do something, Smith does it. But he does it only because he thinks he will get beaten if he does not. Jones' pronouncement that Smith ought to do such and such is never enough, on its own, to get Smith to believe that he ought to do such and such. Smith never takes Jones' command that he X as a reason to X.

Now there's a complicated story to be told about how Smith might eventually come to recognize Jones's authority and internalize it in a way that Jones' commands will, on their own, begin to establish reasons for him to act. But until the situation between Jones and Smith reaches the point where Smith begins to recognize Jones' commands as reasons, I do not think we can say that Jones is making law.

We might not want to say that Jones is making law even after such internalization has occurred; but we certainly can't say it before. This is what I mean, first, when I talk about what can rightfully be considered a law. The question is conceptual, in that there seem to be certain necessary conditions that must be met before we can even say that law-making exists in the first place.

Some kind of mutual recognition of one person's ability to establish, through his words alone, reasons for another person to act is probably one of those conditions. If you don't have that, you don't have law. I think Hart described this as seeing the law from the internal viewpoint. The law must be represented internally before we can say it rightly exists.

We need not fill in all the details of how such internalization might occur here. But there is one relevant question: suppose I could give some complicated sociological story (e.g. on this deserted island) about how Smith might come to accept Jones commands from the internal viewpoint. Could I give such a story in a way that would make no reference to the commands Jones was actually making?

In other words, is the continued internalization of law and authority consistent with any set of laws whatsoever? Or is it not the case that some commands cannot be given without inherently undermining the authority of the law-giver? If Jones commands Smith to kill Smith's children, is that consistent with Smith coming to internalize Jones' authority?

If you're a certain kind of moralist, you'll likely think the answer is "no." For example, if you think all agents are born having easy access to certain basic moral truths, then you'll think that those truths -- natural laws, if you like -- put a limit on the kind of authority people can come to accept. If Jones consistently commands that Smith do immoral things, Smith might still do those immoral things, but it will be extremely difficult for him to come to internalize Jones' authority. Smith will constantly face a conflict between his clear knowledge of the moral law and Jones' violation of it.

So here is where the conceptual question of what can rightfully be considered a law connects with the moral question of what the law ought to look like. In short: an egregiously unjust law is (conceptually) no law at all; and bodies that attempt to create such unjust laws undermine their authority.

UPDATE:
Timothy Sandefur's erudite and gracious response to this post and the one before is here. *sigh* There is so much I need to learn.

Some thoughts on the 14th Amendment

2008-06-27T14:45:00.000-07:00

Timothy Sandefur has two great posts on 14th Amendment incorporation here and here. Both are well worth reading, especially if you are a libertarian. I have to admit, when I first taught philosophy of law, I did give my students a version of what Sandefur calls "vulgar incorporation." Partly this was because it was easier to teach that way; partly it was because, at the time, I didn't really understand incorporation myself (and I'm still no expert, as this post will likely indicate.)

Here is the relevant portion of the 14th Amendment:
"No state shall...deprive any person of life, liberty, or property, without due process of law."

The question is: what does due process of law require?

When I was teaching philosophy of law for the first time, I was very much taken with Justice Scalia's criticism (in his book, A Matter of Interpretation) of what is often pejoratively called substantive due process. For Scalia, all that due process of law requires of a state is that if it is going to deprive a person of liberty, it has to go through the right process, i.e. it has to pass a law, give the person who supposedly violated the law a trial, and so on.

As Scalia says (p. 24), "Property can be taken by the state; liberty can be taken; even life can be taken; but not without the process our traditions require -- notably, a validly enacted law and a fair trial." We could call Scalia's interpretation of the Due Process Clause "procedural due process."

This is not an unreasonable way of interpreting the Clause, but it is certainly not the only way to interpret it.

In contrast, the substantive due process interpretation of the Clause requires the states not only adhere to the right process, but also that the laws they pass by way of that process meet additional, more-than-formal requirements. According to the vulgar form of incorporation, these are the requirements set out in (most of) the Bill of Rights.

In other words, the idea is that the term "liberty" in the Due Process Clause of the 14th Amendment includes or incorporates within it at least some of the guarantees set out in the Bill of Rights (like the 1st Amendment), making it possible for these guarantees to be applied not only to federal action, but to state action as well. If California throws someone in jail for expressing a political opinion, federal courts would free him (and strike down California law) on 1st and 14th Amendment grounds.

Cohen v. California (1971) demonstrates this nicely. In his opinion, Justice John Marshall Harlan II wrote that "The state may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense."

As Sandefur notes, the "liberty" guaranteed in the Due Process Clause is not in a one-to-one relationship with the Bill of Rights. When a federal court is assessing the constitutionality of a state law, it is not simply a matter of determining whether, under the Constitution, the federal government would be permitted to make such a law. Things are a little more complex than that (or should be, at least.)

Sandefur writes:

Incorporation, therefore, is not an exact one-to-one ordering of state and federal law; it is an inquiry into whether the state’s action so exceeds the standards of “lawfulness” as to violate the due process of law clause—or whether it deprives a person of the privileges or immunities of citizenship—and that inquiry is guided by reference to the Bill of Rights, among other things, which lay out the standards for determining what constitutes “due process of law.”

First emphasis added. Now it's an important to ask: just what are the standards of "lawfulness"? What criteria must a "law" meet in order to be reasonably called a law? Is it just a matter of the law being written down in the right place?

I bored my students to death, I'm sure, but we did examine legal positivism, especially Austin's relatively crude version of the doctrine. For Austin (basically), a law is just a law if it is backed up by a powerful enough authority. Austin's criteria for "lawfulness" is "enforced-ness."

Thus, if we are legal positivists of this stripe, we will likely find Scalia's interpretation of the Due Process Clause fairly congenial. As long as California could enforce it, the hypothetical California law we are considering would meet the standards for lawfulness, and -- on due process grounds, at least -- the federal court could not object to it.

As I understand Sandefur's position, his claim is that a law must meet other, perhaps moral standards, if it is to be rightly considered a law. The argument seems fairly tight: if California meets the procedural standards for the making of a law, but does not meet these other, substantive standards, then it hasn't made a law at all. Thus, when it puts people in jail on the basis of that "law" it is depriving them of their liberty without due process. It would, in fact, be exercising naked coercion, might without right.

How do we know what the moral standards of lawfulness are? As Sandefur notes, answering this question requires an engagement with political philosophy. Some conservatives (like Scalia) see such an engagement as just an excuse for judges to ignore the law and impose their own views. That's certainly a danger. It's even more of a danger if one does not believe in moral truth at all.

But the important point is that the Framers of the Constitution did seem to believe in moral truth. The 8th Amendment (to take an example of Ronald Dworkin's) seems to lay down an abstract principle, rather than a specific prohibition of certain forms of punishment. We do not, I think, travel far from their vision in thinking that a concern with moral and political philosophy is essential to a proper interpretation of the Constitution.

Link

Individual right to bear arms vindicated: Ron Paul supporters dismayed

2008-06-26T17:50:00.000-07:00

One of the ~~neo-Confederate Ronulan cultists~~ lovely folks at lewrockwell.com is already registering dissatisfaction with the Heller decision.

Why? Because, according to Stephan Kinsella's interpretation of the law, the Second Amendment only forbids the federal government from banning guns (actually, that's inaccurate: the claim is more that the Second Amendment and the entire Bill of Rights are "irrelevant and redundant .")

Well, isn't Washington, D.C. under federal jurisdiction, and doesn't that mean the Second Amendment would apply? Things are not so simple. He cites approvingly Kevinn Gutzman's claim that, " the District of Columbia, insofar as it behaves as a state, is properly treated as a pseudo-state by the Supreme Court."

Thus, if D.C. must be treated like a state, then the federal Supreme Court can't overturn a gun ban on Second Amendment grounds, since, as noted, the Amendment (and the entire Bill of Rights) is only supposed to apply to the federal government. QED.

The Cato Institute's Tom Palmer called this line of reasoning "just plain dumb," but, anyway, that's the argument. It's the reason why not everyone is celebrating in Lincoln-hating land today. Stephan Kinsella and others are worried that the 2nd Amendment will be applied against the states through the 14th Amendment, and that highly restrictive state gun laws in places like Chicago will be struck down next.

Let me put that point more concisely: some of Ron Paul's supporters are dismayed by today's Supreme Court decision because they think it might be used in the future to prevent a democratic mob from trampling on an individual's rights. But Ron Paul himself thinks it's just fine for such mobs to restrict a person's liberty, just so long as the mob and the individual reside in the same state.

And people wonder why I refuse to call them libertarians.

Cross-posted at the Western Standard's Shotgun blog.

Show trial in British Columbia

2008-06-03T14:36:00.001-07:00

Ok, it's not really a trial (if only!) It's the second day of the British Human Rights tribunal's hearing into whether a prominent Canadian magazine (Maclean's) violated the B.C. Human Rights Act, exposing Muslims to hatred and contempt.

What did Maclean's do? It published an excerpt from Mark Steyn's book, America Alone. Steyn argues that a) increasing Muslim birthrates and immigration from the Middle East, combined with b) the West's own unwillingness to assert its values, and c) the flaws of the expansive welfare state, are going to lead to increasingly "Islamified" societies in Europe (and Canada, presumably.) As societies become more Islamic, they will become less liberal. So goes the argument, anyway.

I'm not as sure about Steyn's thesis as I once was. His thesis seems to depend on the idea that, at its core, liberalism is hollow -- that it could not be defended, even if liberals wanted to defend it. Either that, or he assumes that arguments are impotent to change belief, so that no one can be argued into becoming more liberal.

Either way, I have qualms. And I'm telling you about them right now, on this blog. But a few law students in Toronto decided they didn't want argue with Steyn's claims. Instead, they went to Canada's peculiar institution of human rights commissions/tribunals and made multiple complaints against Maclean's for publishing the excerpts from Steyn's book.

The gist of the complaint is that by publishing those excerpts, Maclean's unlawfully exposed Muslims to hatred and contempt. You can see the relevant portion of the B.C. Human Rights Act here.

The Human Rights Tribunal (HRT) in British Columbia started hearings yesterday. The whole thing is an absolute, incredible farce. There are no clear standards of evidence in the B.C. HRT. The three person panel overseeing the hearing (and no, they're not judges, none of 'em) is admitting blog posts and blog comments as evidence of the harmful impact of the Maclean's piece.

In other words: if some evil cretins used this blog post as inspiration for a series of hateful posts about Muslims (on Stormfront, perhaps), I could be held responsible for that.

Truth is not a defense against a hate speech complaint in Canada. Nor, apparently, is intent. All that matters is if a panel of bureaucrats ascertains that the speech in question is likely to expose someone else to hatred or contempt in virtue of their membership in a protected group.

Khuruum Awan, one of the law students who brought the complaint, seems to be making things up as he goes along. Maclean's lawyer is grilling him, fortunately, but it's not clear to me any of this will matter much in the long run. If the HRT can't find a way to dismiss the complaint on technical grounds, how can Maclean's not be found guilty, under the wording of the B.C. Human Rights Act?

Ezra Levant, facing a human rights complaint of his own, is in B.C. live blogging the show trial here.

Mainstream media is hardly giving the matter any coverage at all. Canadians don't care. They're worried that if they stand up for free speech they will be labeled as racists or American-lovers or something like that. Cowards.

Hacking the library

2008-05-21T13:10:00.000-07:00

I'm working on a Python script to look up basic information about books using a Library of Congress call number. The purpose of this script is to make my life easier. What I'm wondering is if there is a simple database out there my script could rely on to turn the LC numbers into book data. The actual Library of Congress Online Catalog might work, but it seems very slow. In brief, what I need is a database that has the following characteristics:

It has to be relatively easy for my script to access. Straightforward HTTP requests, hopefully. The data has to arrive in a format that is easy to work with.
It has to be reliable. I'm going to be using it a lot, so it has to be online most of the time.
It has to be fast. As mentioned, the L of C's online catalog is probably too slow for my needs.

Oh yeah, and it has to be free, too. But there's got to be something out there, right? I was thinking maybe I should just use a college library's server to do my dirty work. BGSU's server is kind of clunky and the output it generates will be difficult for my script to process properly. At the end of the day, I may end up using it, but it would be nice to find something better.

I realize this post has nothing to do with politics or the law. Or philosophy. But I DO have other interests!

On the California gay marriage decision

2008-05-20T21:45:00.000-07:00

Lots of people are talking about the decision of the Supreme Court of California to strike down a statewide ban on gay marriage. For a favorable assessment from a libertarian perspective, please check out this post from Kip Esquire's blog. For a typical, ham-fisted conservative reaction, Jeff Jacoby's op ed in the Boston Globe is illustrative.

Jacoby's piece provides three reasons for Californians to vote for a proposed constitutional amendment that would "override" the Court's decision. Here are the three reasons:

First, it's not the business of judges to make public policy.

This is the standard attack on so-called "activist judges", and, more broadly, on judicial review. But it is wrong to say that the judges in this case passed public policy. What they did was rule that an existing policy was inconsistent with California's state constitution. A constitution is, in some sense, a collection of policies, ones that are supposed to have authority over all the other policies the state passes. Rather than making policy, the court simply acknowledged the supremacy of existing policy -- the constitution itself.

"Reasonable men and women," Jacoby writes, "can disagree on whether same-sex unions should be granted legal recognition, or whether such recognition should rise to the level of marriage." But the question is whether the protections built into the California constitution already do mandate the legal recognition of same sex marriage. Perhaps reasonable people can disagree on that, too -- but that would require those reasonable people to actually engage the arguments the Court put forward.

Either restricting marriages to opposite sex partners violates the provisions of California's constitution, or it does not. The court ruled that the restriction is unconstitutional, as it is supposed to do. Contrary to Jacoby's position, the fact that the court did its job is no justification at all for voters in California to alter their constitution in the manner for which he is arguing.

Jacoby also makes the familiar claim that the same reasoning supporting the legal recognition of same sex marriages also probably supports the recognition of polygamous or incestuous unions. He might be right here. I think maybe, yeah, autonomy-based arguments for same sex marriage might also provide support at least to polygamous unions.

However, contrary Jacoby (and virtually every other conservative commentator) this fact does not represent a reductio ad absurdum of the autonomy-based arguments. We might end up accepting polygamy; on the other hand, there might be weighty reasons not to accept polygamy that weight against the value of people's autonomy. But I don't think those reasons apply to the case of same sex marriage.

Which brings us to Jacoby's third point. "Society has a vested interest in promoting only traditional marriage." As usual, society's interest in promoting heterosexual marriage has something to do with its interest in ensuring new citizens are produced. "The essential function of marriage is to unite male and female," he tells us. "That is the only kind of union that can produce new life, and therefore the only kind of union in which society has a survival stake."

For various reasons, I want to put the argument in schematic form. It goes something like this:

Step 1: Society can only continue to exist if a significant number of its members reproduce. Call this the sufficient reproduction condition.
Step 2: The institution of traditional, heterosexual only marriage, while not a necessary requirement of the sufficient reproduction condition, does facilitate its fulfillment. A society in which traditional marriage is practiced and widely endorsed will, other things equal, better meet the sufficient reproduction condition than it would otherwise.
Step 3: So one function of traditional marriage is to ensure that the sufficient reproduction condition is met.
Step 4: If marriage is not restricted to heterosexual couples, then, somehow, the institution will not be able to fulfill this function.
Conclusion: thus, extending marriage to same sex couples threatens society by making it harder to meet the sufficient reproduction condition.

In a weak, nearly tautological sense, I think there's probably something to the sufficient reproduction condition. And let's throw conservatives a bone: it's probably not enough for a society to just produce a sufficient number of new people; the vast majority of those new people must be brought up under certain conditions, taught certain things, etc. if the society is to survive.

Maybe the institution of marriage is a way for society to better meet the sufficient reproduction condition. Still, the most significant flaw in the argument occurs in step 4. In order for step 4 to work, the proponent of the argument has to say something like the following: if marriage is extended to same sex unions, then heterosexuals will be less likely to marry (oh, and, for whatever reason, same sex couples will not be able to pick up their reproductive slack.)

This claim just seems obviously, incredibly false. Why would heterosexuals stop marrying each other just because gays can start marrying each other? It makes no sense.

But suppose that there is something to the claim: if gays can marry, heterosexuals will choose not to do so. So what? If the lack of heterosexual unions puts society in peril, then one would think the burden would be on heterosexuals to keep -- you know, uniting with each other. It's not like gay marriages make it impossible for heterosexuals to marry. The proper conclusion of Jacoby's argument is not what he thinks it is: instead, the right conclusion to draw is that heterosexuals have a duty, not only to marry, but to produce lots of kids.

In my next post, I plan to explain why libertarians should be fans of same sex marriage, and equal treatment under the law more generally. But that will have to wait for a while.

Barack Obama and John Rawls

2008-04-18T20:17:00.001-07:00

I didn't see the recent debate between Barack Obama and Hillary Clinton, but I came across the transcript here. At one point, the debate turns to the economy, specifically the capital gains tax. Obama favors raising the capital gains tax. However, as the moderator points out, each time the rate has been lowered (first by Bill Clinton, then by George W. Bush) the revenues the government have collected from the tax have gone up. Given this, why does Obama want to raise it at all?

Obama's response is interesting:

OBAMA: Well, Charlie, what I've said is that I would look at raising the capital gains tax for purposes of fairness.

We saw an article today which showed that the top 50 hedge fund managers made $29 billion last year -- $29 billion for 50 individuals. And part of what has happened is that those who are able to work the stock market and amass huge fortunes on capital gains are paying a lower tax rate than their secretaries. That's not fair.

And what I want is not oppressive taxation. I want businesses to thrive, and I want people to be rewarded for their success. But what I also want to make sure is that our tax system is fair and that we are able to finance health care for Americans who currently don't have it and that we're able to invest in our infrastructure and invest in our schools.

And you can't do that for free.

Some bloggers have taken Obama's statement to mean that he thinks "fairness" is always more important than growing the economy or increasing government revenue. This is an absurd interpretation of Obama's remarks.

Let's look at it this way: let's assume that cutting the capital gains tax down to 12 percent would make at least one person better off and nobody worse off. To use some jargon, cutting the tax down to 12 percent would be a Pareto improvement, relative to the status quo.

To some, if we can show that a policy is a Pareto improvement, that is all that needs to be said on behalf on that policy. Ideally, all policies should lead to Pareto improvements. Indeed, the aim is to reach Pareto efficiency, a state in which no further Pareto improvements can be made -- in which nobody can be made better off without making someone else worse off.

I do not think that is all there is to say. Consider a policy, P, that is a Pareto improvement. It makes at least one person better off and nobody worse off. However, this policy, P, was written on behalf of a certain lobbyist group. The one person that P will make better off is the lobbyist himself. It won't make anyone else worse off, at least compared to the status quo, but it won't exactly benefit them, either. We might say: the large benefit the lobbyist will receive from P will translate into smaller benefits for everyone else. Or maybe P simply allocates some "windfall" to the lobbyist that was not previously allocated to anyone.

The point is that P, while a Pareto improvement, is also unfair to the rest of us. Consider an alternative to P, policy Q. Q is also a Pareto improvement over the status quo. But the people who will benefit from Q are those who, prior to Q, were the worst off in society, according to some measure (and I admit, figuring out who the worst off are is difficult if not impossible.) I would argue that on fairness grounds, Q is better than P.

Obama, I think, is familiar with John Rawls' work A Theory of Justice. Consider three policies, each representing a Pareto improvement over the status quo:

Policy P: only benefits the wealthy person who lobbied for the policy in the first place.
Policy U: maximizes the welfare of society taken as a whole.
Policy Q: maximizes the welfare of the least advantaged, the worst off in the society.

The jury is still out on whether Rawls adequately makes the case for Q, the policy his own theory would likely favor, over U, the policy a utilitarian would favor. But consider this: neither P, nor U, nor Q can be policies that would (say) bring the economy to a screeching halt or reduce government revenues to zero or anything like that. This is because we've only "allowed in the door" policies that are a Pareto improvement over the status quo, and any policy that would destroy the economy cannot represent a Pareto improvement.

Thus, Obama and Rawls both reject "oppressive taxation", because such policies are, in the end, of no benefit to anyone. But among the policies that are Pareto improvements over the status quo, a choice must be made. Cutting the capital gains tax may make at least one person better off and nobody worse off; but so might leaving the tax where it is. The difference would be who will benefit from the policy. Obama seems to think that question matters, and so do I.

But there need not be an absolute trade off between economic efficiency and fairness: rather, the idea is to fairly allocate the benefits that come from having an efficient economy, without compromising the efficiency of the economy in the process.

I tend to think shrinking the government drastically would actually represent a huge move toward Pareto efficiency. Everyone, including lobbyists, would be better off if government had less power over the economy. In fact, there is a case to be made that it is precisely the worst off in society who would benefit the most from reducing the power of government. While Rawls would never have interpreted himself in this way, we can, in conjunction with the insights of public choice economics, make a pretty good case for libertarian economic reforms on Rawlsian grounds.

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Just saw this on a Fark thread... it's funny :-)

2008-03-08T15:49:00.001-08:00

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My review of Goldberg's "Liberal Fascism"

2008-03-05T16:05:00.000-08:00

Up on the Western Standard now is a review I wrote of Jonah Goldberg's book Liberal Fascism. I'm pretty happy with the piece, which is based not only on the book but on a radio interview my friends and I did with Goldberg.

By the way, Goldberg was a very good guest. The interview with him might be the best one Political Animals has ever done.

Here is a link to the audio of the interview.

And now for something a little different..

2008-02-29T11:03:00.000-08:00

Back on the Western Standard:

'Please listen to RP before we find a "made in china" code bar on the neck of every Americans.'

50 years in the future...

We didn't listen to his message of liberty and limited government.

We didn't build a wall to keep the brown people out.

We spit on the gold standard.

Now China and the Bildebergs own America. The forces of the one world government round up every American they can find, bringing them to the Wal-Mart, where cybernetic "greeters" implant them with chips and tattoo "Made in China" on their necks.

Everyone is the property of the government. The Supreme Court of the United States forces all the states to provide abortions free of charge to the lesbian couples whose marriages it forced the states to recognize five years before.

Oh! If only we had listened to Ron Paul! If only we had abolished the 14th Amendment and the income tax. None of this would have happened. Without the support of the government, Wal-mart would be a little mom and pop operation, and some other, more virtuous capitalist enterprise would have taken its place.

Without the 14th Amendment, state legislatures would NEVER violate the privileges and immunities of their citizens. As everyone now knows, only the federal government is capable of being irrational (which means: evil; which means: anti-life; which means: A is not A.)

But instead of listening to Ron Paul, we allowed him to lose his seat in Congress. After that, he disappeared, and no one ever saw him again, except...

40 years ago, a cadre of Ron Paul acolytes living in Silicon Valley invented the Real Freedom Train, a time machine that could send Ron Paul, and only Ron Paul, into the future. For you see, just before their execution, Lew Rockwell and Hans Herman Hoppe were able to send a message back to our time, warning us of the future to come.

And the acolytes -- these plucky "Ronulans" -- listened, using the power of rationality to construct a machine that is now the only hope of our salvation. They will send Ron Paul into the future, where his message of limited government and individual liberty will finally be welcomed.

Wal-Mart's days are numbered! The Bildebergs had better pack up their bags and run away! Once Ron Paul is in charge and taxes are abolished, all corporations will be small and nice to people, and they will never, ever import products from China.

***
Click here to find see what this is all about. :)

Ok, now I have to post this.

2008-02-23T12:37:00.001-08:00

But, damn it, someone IS wrong on the Internet (and it's probably a Ron Paul supporter!)

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Ban On Sex Toys Overturned; Ron Paul dismayed.

2008-02-14T11:43:00.001-08:00

...but not in time for Valentine's Day, unfortunately.

The 5th U.S. Circuit Court of Appeals cited Lawrence v. Texas in its ruling. Here's a nice quote:

"Just as in Lawrence, the state here wants to use its laws to enforce a public moral code by restricting private intimate conduct," the appeals judges wrote. "The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the state is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification after Lawrence."

This is excellent news, and implies Lawrence is as significant as Randy Barnett suggested. A libertarian revolution is truly in the works, and it's flying in the teeth of Ron Paul's failing "rEVOLution" -- a movement that would have stripped federal courts of the power to strike down oppressive laws like the one in Texas.

Good for the court. Too bad for Ron Paul. The individual's right to live her life as she sees fit trumps the "liberty" of the mob to tell her what to do in the privacy of her own home.

Since Ron Paul is all about amending the Constitution to fight the hordes of pregnant brown women streaming over the Mexican border, why hasn't be proposed an amendment explicitly saying that the Bill of Rights applies to the states as much as to the federal government?

Think what that would do to ensure freedom of the individual. Think about what an amendment enshrining Barnett's "presumption in favor of liberty" into law would do.

As a libertarian, I'm glad Ron Paul's bid for the Republican nomination is circling the drain.

Hat tip: A Stitch in Haste

Huckabee on Abortion

2008-02-13T20:45:00.001-08:00

Ok, we've bashed around Ron Paul long enough. It's time to say a few words about Mike Huckabee, specifically on the issue of abortion. I quote from this article:

"It's the logic of the Civil War," Huckabee said Sunday, comparing abortion rights to slavery. "If morality is the point here, and if it's right or wrong, not just a political question, then you can't have 50 different versions of what's right and what's wrong...For those of us for whom this is a moral question, you can't simply have 50 different versions of what's right.

I give Huckabee credit here: as far as abortion prohibition goes, he's not taking the road of the sly and cowardly Dr. Paul. Paul, as you should remember, just tried to change the legal definition of person so that it would also include zygotes, while simultaneously claiming he was leaving the abortion issue for each state to decide (ignoring the ramifications of the Equal Protection clause of the 14th Amendment.)

Nope. Mike Huckabee is all for biting the bullet Ronald Dworkin fired in one of his books (I forget which one), in which he claimed that, if anti-abortion folk really believe abortion is murder, why don't they also believe it should be banned across the country?

Ron Paul ducks the bullet, but Mike Huckabee has shown he's willing to embrace it. Enthusiastic about it, even. Huckabee thinks that states should have no choice but to ban abortion. According to Huckabee, Massachusetts, California, and other liberal enclaves should have the same abortion policy as Mississippi, Arkansas, and Alabama.

Over at Lew Rockwell's blog, the neo-Confederate jackals are suggesting Huckabee probably couldn't explain the concept of federalism without the aid of a dictionary. And they're wrong, as usual.

Here's a little hint for them: federalism doesn't mean every state gets to decide each and every policy issue on its own. If that were so, then each state would be a separate, sovereign nation. Perhaps that's the world Lew Rockwell and friends want, since they're such big fans of southern secession and all.

Federalism leaves some decisions up to the states, and puts others under the authority of the federal government. This is all set out in a fairly short document known as the Constitution of the United States of America.

But, as Huckabee would admit, you can't just pass the buck to the Constitution. You have to ask the further question, which decisions in particular should be left up to states to decide, and which ones should rest with the federal government? By what criteria should we decide?

Now some decisions just can't be made effectively at a state level, for all the reasons that came to light during the time of the Articles of Confederation. There are good, practical reasons to put certain decisions under the control of the federal government, rather than leaving them for each state to decide separately. You can find a series of arguments concerning which decisions should be left for the federal government to decide and why in a handy-dandy series of articles we now know as the Federalist Papers. The articles were written by these guys, James Madison and Alexander Hamilton. With some help from their pal John Jay.

In any event, practicality isn't the only reason to delegate authority over some issue to the federal government. The United States would not cease to function if a few states stopped women from voting, or allowed the enslavement of blacks. Practicality is not the only (or even the most important) reason to support the 13th and 19th Amendments. Prohibiting slavery and enshrining universal suffrage is also a matter of justice.

Huckabee is a great communicator, but his argument in the above quotation is unsubtle. It's not the case that every issue involving right and wrong must be settled at the federal level. Sometimes it might be better to allow state legislatures to decide wrongly, but freely, then to impose the morally best policy on all of the states.

But issues of justice can't be left up to the states. One might think that it is simply not permissible to allow certain states to enact truly unjust policy, and there is no question that abortion opponents consider the legalization of abortion deeply, deeply unjust. On issues of justice, one might believe, it is simply not possible to "let a thousand flowers bloom." It was wrong to even allow other states to allow their citizens to keep other human beings as slaves. It was unjust.

So I think Huckabee is right: if abortion is the killing of a person, if it is an issue of justice, then it is simply immoral to allow the practice to continue anywhere within the United States. And I think Ron Paul is incoherent to hold both that abortion is the killing of a person and that states should be able to decide whether to allow the practice to continue or not.

If Ron Paul believes what he says about abortion, then he ought to bite the same bullet as Huckabee, and "states' rights" be damned.

Of course, one could deny that abortion is the killing of a person in the relevant sense -- that it is not, in fact, an issue of justice. And one could hold, further, that ensuring the autonomy of women is an issue of justice. If this is what one believes, then one should support neither Mike Huckabee or Ron Paul. But the neo-Confederates are wrong to suggest that Huckabee's anti-abortion policy shows that he is ignorant about federalism.

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The Great Ron Paul Bait-n-Switch

2008-02-11T10:19:00.001-08:00

So Ron Paul is scaling back his campaign. What's he going to do with all his money?

Well, 30 million dollars will practically guarantee he keeps his Congressional seat, probably in perpetuity, or however long his life lasts (I know, I know, the rEVOLution is eternal.)

And before anyone suggests that he can't use money donated to one campaign to benefit another, check out this. He can't transfer any money while he's actively seeking two offices simultaneously, but once he gives up on his Republican nomination campaign, no laws prohibit him from using the money to secure his seat in the House of Representatives.

Kind of ingenious, actually. Not that I'm accusing him of, you know, planning this from the start.

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Beating a dead horse

2008-02-07T20:19:00.001-08:00

From the Smoking Gun comes the case of Christopher Holder, 19, arrested in Florida for using the word "motherfucker."

Actually, he was charged with disorderly conduct. Or, as the sheriff's report put it (and how does the Smoking Gun get those, anyway?):

"As a result of Holder's loud profanity outraging Amy Churchill's sense of public decency and affecting the peace and quiet of Churchill and her children, Holder was taken into custody for disorderly conduct."

I don't really think people should be arrested for offending Amy Churchill's sense of public decency, whatever that means. That's because of this little thing I believe in called "freedom of speech." And, unlike Ron Paul, I don't think states should have the "right" to squelch that freedom, just to protect the delicate sensibilities of Ms. Churchill and her two moppets (ages five and fourteen, according to TSG.)

Check here to learn from Dr. Paul what the First Amendment really means:

The First amendment acts as a simple check on federal power, ensuring that the federal government has no jurisdiction or authority whatsoever over religious issues. The phony "incorporation" doctrine, dreamed up by activist judges to pervert the plain meaning of the Constitution, was used once again by a federal court to assume jurisdiction over a case that constitutionally was none of its business.

Yes, damn that pesky doctrine of incorporation! Why should federal courts have the power to ensure state governments respect the inalienable rights of their citizens?

Similarly, the mythical separation of church and state doctrine has no historical or constitutional basis.

Oops. I didn't mean to quote that part. But can you really blame me? Do all the atheists and other secularists supporting Ron Paul (the ones who are left) know he doesn't believe in the separation of church and state? I mean, neither does Mike Huckabee, but at least his supporters are aware of that fact (indeed, that's probably why they're voting for him.)

Anyway, if you think Florida should have the right to arrest its citizens for using bad words, you should support Ron Paul. If you are not an idiot or a fascist, you should support... well, yourself, maybe.

Or instead of voting, make a sandwich for a homeless person. You'll do more good that way.

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What I've Been Doing Lately

2008-02-07T14:53:00.001-08:00

Sorry for the light posting. Lately, I've been posting under my real name at the Western Standard's Shotgun blog. The WS has also published two of my articles, which I'll link to below:

Big City, Big Government (on government waste in Canada)

A New Declaration of Independence (a comparison of the Lakota secessionist movement in the United States to the drive for aboriginal self-government in Canada)

Unfortunately, one has to register to read either of these articles, but registration is free. Also, the Shotgun blog is home to some great discussion from a libertarian-conservative kind of perspective. Sometimes, I think I might be its most left-wing author. Weird, no?

Response to Comments

2008-02-06T09:37:00.000-08:00

Since I don't usually have dissenting commenters, I've decided to address their counter-arguments in a separate post. This isn't meant to be an attack on anyone -- on the contrary, I love dissent, and wish there was more of it around here. I thank those who left replies for their thoughtfulness and civility.

Anonymous at 10:57 pm says:

Not all of us are like Rockwell. I fully agree with Ron Paul that Fox and all the other networks have a right to do what they're doing because they are private companies. But it doesn't mean I have to watch them nor buy the products of their sponsors.

Granted. And that's the way libertarians ought to respond, which is what makes the statist revenge fantasies I've come across (not to mention the "hit list" referred to here) hard to explain.

Anonymous at 11:12 pm says:

The belief that politics should be local is why I do support a stronger
State. You have far more chance of managing your government the closer they are to your environment and needs...The Federal government is now a nation unto itself, it's the Hollywood of politics and it gets bigger, dumber and less in touch with local realities every single year. [Emphasis added.]

Let's grant the truth of the emphasized passage. It really is the case that I have a better chance of getting laws passed that impose my preferences at a more local level than at the federal level. And this is supposed to be a good thing? Is this the kind of freedom Ron Paul supporters are concerned about -- the freedom to tell people (usually those in the minority) what to do?

I dunno... as a libertarian, I've never been really interested in having that kind of freedom. You know, because I don't really believe in enforcing my preferences on others via the law. But I guess that makes me a war-mongering cosmotarian, or whatever term Lew Rockwell is using these days.

Tam at 12:00 am says:

[Ron Paul] is basically a Constitional Libertarian. meaning while he believes in liberty, he also believes in a strict interpration of the Constitution.

In your photo example, just as the Constitution does not allow the federal government to ban the display of such phots, it also doesn't get the fe gov the right to force the states to not ban such it.

There are two issues here: the first is the extent to which "constitutional libertarianism" is a consistent position. The second is the credibility of Ron Paul's supposed strict interpretation of the Constitution.

First, let's define a "small c" constitutional libertarian as a libertarian who a) believes in strong rights to life, liberty, and propery, and who b) thinks a strong, written constitution is one of the best means of guaranteeing those rights, as a matter of institutional fact. Now, a libertarian like this will have grounds to criticize a document like the Canadian Charter of Rights and Freedoms, which, in its very first section, subjects the rights it recognizes to "reasonable limits." Such a libertarian will also criticize the Charter for the absence of any recognition of property rights.

To a constitutional libertarian (CL), the Charter is defective. It should be altered in a way that will expand people's liberties: Section 1 should be abolished; property rights should be added. And at no stage will the CL be willing to accept the constitution just as it is. At all times, he will want to adjust it in ways that will increase liberty, and decrease the amount of control government (any government) exercises over peoples' lives.

Ron Paul also wants to change the American Constitution in various ways. Unfortunately, it is unclear that all of his changes would actually increase liberty, instead of simply increasing state police power. For example, Ron Paul is not interested in adding to the Constitution some kind of explicit recognition that the First, Second, Fourth, and Fifth Amendments restrict the power of state governments just as they restrict the power of the federal government.

A good question to ask yourself is why a so-called Constitutional libertarian would not be interested in modifying the Constitution in this way, since doing so would increase individual liberty, while decreasing government power at all levels.

Second, Ron Paul calls himself a constitutionalist, but he seems to pick and choose the parts of the Constitution he's willing to accept. Note, there's nothing wrong with such selectivity. What is wrong is failing to recognize that one is being selective, all while berating other people for being selective in other ways. That's simply hypocrisy.

What does Ron Paul's interpretation of the Constitution seem to leave out? Primarily, the Fourteenth Amendment. But the doctrine of substantive due process, which is derived from that Amendment, culminating in the Lawrence decision is great from a libertarian point of view.

I've written a lot on this already. What I can't understand is why an American "libertarian constitutionalist" would reject the Fourteenth Amendment. It would be like a Canadian LC wholeheartedly accepting Section 1 of the Charter.

Anonymous at 6:40 am says:

What would be the difference between the government having the power to censor the aforementioned photo and the state having the power? I don't want a born again Christian from Alabama telling me what i can and can't see (hence the dislike of a sprawling federal government).

But this is a false dichotomy. It is not the case that if state governments do not have the power to violate the First Amendment than necessarily the federal government will have that power. Maybe nobody should have that power. That's essentially what the Supreme Court decided in Cohen v. California, and their ruling was based on the First and Fourteenth Amendments

I'm a libertarian: I don't think anybody should be able to limit your freedom of speech, whether the mob in a state legislature supports that limitation or not. I agree with the Supreme Court's decision in Cohen v. California. Do Ron Paul supporters wish that case had been decided differently?

On The Contradictions and Revenge Fantasies of Ron Paul's Supporters

2008-02-05T22:21:00.001-08:00

Over at A Stitch In Haste, Kip Esq. has some thoughtful observations about the following:

VIRGINIA BEACH, Va. — Police confiscated two display photos of scantily clad men and a woman from an Abercrombie & Fitch store and cited the manager on a misdemeanor obscenity charge, authorities said.
...
City code makes it a crime to display "obscene materials in a business that is open to juveniles," Bernstein said.

Call this exhibit #1. As Kip points out, the offending posters, one of which you can see below, do not remotely qualify as obscene according to the Supreme Court's interpretation of the Constitution.

However, as Kip also points out, according to Ron Paul's interpretation of the Constitution, the local or state government would be well within their rights to ban stores from using photos like this one.

Which brings us to exhibit #2. This is only one example of the kind of thing we're going to see from Ron Paul supporters as the "good doctor's" campaign slides into the abyss: revenge fantasies, especially against the media, the source of all their troubles (or so they seem to believe.)

"TommyzDad", a "Senior Member" over at the RonPaulForums, asks, "What kind of 'payback' would you like to see extracted from the MSM when Dr. Paul wins the House?" I will reproduce the first reply to his question in its entirety. Interestingly enough, the poster's user name is "Rockwell":

Immediately suspend their license for 90 days and freeze all assets from sale or transfer.

Hold public hearings to allow for any complaint from the citizenry, investigate. Issue subpoenas and take depositions from all executives to respond to charges. If found in violation of FCC laws revoke licenses and suspend all rights to future broadcasting on public airways of any responsible parties. Forfeiture and siezure of all property, equpiment, assets of those networks found to be in violation and sell off such property with funds to be used for the general welfare.

Rewrite FCC guidelines to prohibit the use of public airwaves by any organization with more than X employees, or more than X assets. Mandatory non-profit status and salary/compensation caps.

I'm sure I could think of others, that's a good start.

Now, the last time I saw a revenge fantasy like this, it was on the Democratic Underground forum, and it was from some lefty venting his spleen at the insurance industry.

But these are Ron Paul supporters. They're supposed to reject the idea that the FCC should be allowed to regulate the news broadcasts while it seizes the property of those who fail to comply with its edicts. That's the revenge fantasy of a fascist, not a libertarian.

Moreover, it's unlikely Ron Paul would support expanding the power of the FCC to make the fantasy possible. I wonder if "Rockwell" knows that.

Which brings our two exhibits together. Do Ron Paul supporters even know what the good doctor really stands for? Do they know that, under Paul's interpretation of the Constitution, states could prohibit the display of photographs as mild as the one displayed above? That, on his interpretation, the California law that led Paul Robert Cohen to be prosecuted for wearing a "Fuck the Draft" jacket is a perfectly legitimate exercise of state police power?

I bet they don't. Or maybe they just don't care. But a general ignorance of the ramifications of Ron Paul's anti-federalist (but hardly pro-liberty) ideology would explain their failure to realize that it would drastically expand state police power, while explicitly limiting the federal government's power to enact the kind of revenge fantasy cited above.

Or, like I said, maybe they don't care about consistency. Or liberty. And that would make Ron Paul's acolytes no different, essentially, from the supporters of Hillary Clinton and John McCain.

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Ron Paul or Ritalin?

2008-02-05T19:18:00.001-08:00

From the Daily Paul comes this post from, "ILUVRON2008", the father of a young Ron Paul supporter:

My 13 YO Son Just Turned on CNN & FLIPPED OUT! Yelling WHATS WRONG with these people! They are ruining the country for US!!

He was very upset when he turned the TV on and started watching the results. When he said US, he meant his age group, and said "I dont understand why the American people were so DUMB. Why dont they understand that Ron Paul is our only hope! They are ruining this for us when we grow up. Now we will have to move to another country!" He said as he banged his fist on the kitchen table.

I had to encourage him because I have literally never saw him so upset.

Christ, Mr. ILUVRON, your son sounds like he has an anger management problem. You should assure him that if Ron Paul loses you will move to a happier place, like Canada, where he can receive free psychiatric treatment for his condition.

Or you could stop shoving Dr. Paul down his throat all the time, Mr. ILUVRON. Because I'm sure he didn't get the idea that the failure to elect Ron Paul will mean the end of the United States from his own brain. You sound like one of the parents described here.

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The Tortoise

2008-01-30T14:24:00.000-08:00

"We all remember the story of the tortoise and the hare. Ron Paul, steady, hardworking, consistent, and principled, keeps going...Ahead of us is one of the great men of American history, speaking truth to power. We can be slackers, or we can try to emulate greatness. For any real American, there is only one choice: the Revolution."

-- Lew Rockwell

Mark Steyn on the HRCs

2008-01-19T07:37:00.000-08:00

In Macleans magazine, Mark Steyn has this column, in which he summarizes some of the most egregious facts about Canada's HRC system. Here are a few excerpts covering things I'm pretty sure I haven't mentioned before, but that make me just as angry as all the other stuff I have talked about.

These commissions were supposedly intended to investigate discrimination in housing and the like, but then came the very poorly drafted Section XIII, which makes it a crime to communicate anything electronically "likely to expose a person or persons to hatred or contempt."

As Steyn points out, Canadian courts have tended to interpret "likely" in Section XIII of the Canadian Human Rights Act very broadly. HRCs have ruled that everything from comments on an Internet message board, to a letter-to-the-editor, to telephone recordings can qualify as hate speech under this law.

You might wonder: how in the world does a law like Section XIII get on the books? How in a civilized country does it stay on the books, and not get struck down for being unconstitutional? The answer lies in the Canada's Charter of Rights and Freedoms, the first section of which says:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In Canada (Human Rights Commission) v. Taylor (1990), Canada's Supreme Court decided that, while Section XIII does limit freedom of expression, that limitation is justified according to Section 1. The case involved an anti-semitic telephone message service; one could call a certain number and hear a recording of racist filth. Why one would wish to do this, I have no idea, and apparently, neither did the Court. It ruled against Taylor and shut the service down.

In the Keegstra case (also 1990), the constitutionality of a criminal prohibition on hate speech (Section 319 of the criminal code) was directly challenged. Again, the Supreme Court upheld the law in question on Section 1 grounds. Unlike Section XIII, violating Section 319 can result in real jail time (two years, as I recall) instead of civil penalties. At the same time, the court system and not the HRCs enforces 319, which means that those who violate Section 319 can expect at least a modicum of due process.

Sorry for the extended legal discussion. But for those who uphold free speech, while both Section XIII and Section 319 are problematic, Section 1 of the Charter is the real source of difficulty, since it provides legal justification for both.

Steyn doesn't directly confront the problem with Section 1, although I can guess how he feels about it (what's the point of having a constitution if in its first lines it says the government can ignore the document if it feels like it?) Instead, Steyn attacks the way Canada's human rights commissions have enforced Section XIII:

Who has availed themselves of the "human rights" protected by Section XIII? In its entire history, over half of all cases have been brought by a sole "complainant," one Richard Warman. Indeed, Mr. Warman has been a plaintiff on every single Section XIII case before the federal "human rights" star chamber since 2002 — and he's won every one.

And guess what Richard Warman used to do for a living: he was an investigator -- an inquisitor -- for the federal HRC.

This fact probably needs no further elucidation. But think about it: as far as laws go, Section XIII is inherently vague. How it gets defined at any time will have a lot to do with how it's being used, or how the appropriate people and institutions are trying to use it. The HRCs used to investigate discrimination in housing and employment. Now its "investigators" go around hunting for hatred on the Internet (sometimes producing it themselves.)

Obviously, it's in his interest (and the HRCs' interest, more broadly) for Section XIII to have the broadest definition possible. On one end, the HRC's investigators manufacture hatred by trolling the Internet. On the other, they broaden the definition of Section XIII so that more and more expression now counts as hateful. In both cases, the HRC and its inquisitors benefit, and freedom is caught in the pincher.

Can anyone see a problem here? And not just a problem, but an inevitable one. If a non-Muslim can complain about anti-Muslim posts on Free Dominion, then a former HRC investigator, who knows the system better than anyone, can and will complain about anything and everything he can. The HRC mandate and its interpretation of Section XIII will expand.

And free speech -- ha, what's that, but a merely American idea -- will suffer, wither, and die. Meanwhile, idiot Canadians will accept the inevitable, not with regret, but with the self-satisfied grin my old professors had on their faces while they were congratulating themselves on not being Americans.

My Piece on Ezra Levant in the Toledo Blade

2008-01-19T06:22:00.000-08:00

As promised, here is the link to my piece in the Toledo Blade. They titled it "Free Speech Is Not Merely an American Idea." Pretty good, no?

The HRC inquisitor who said "Freedom of speech is an American concept, so I don't give it any value" is named Dean Steacy. When he's not dismissing basic human rights, Mr. Steacy can be found on Stormfront, one of the most popular "white nationalist" online communities.

Is Mr. Steacy a white nationalist himself -- a mole working to bring down all the good work of the HRC? No. Mr. Steacy is a high ranking inquisitor with the HRC, and trolling on white nationalist message boards is apparently part of his self-defined job description.

This admission came up in another HRC investigation, this one against a popular right-wing Canadian message board called "Free Dominion" (think Free Republic, but Canadian.) Free Dominion got in trouble because of some hateful, anti-Islamic comments a few users had posted. A woman complained (not a Muslim, as I recall) and Dean Steacy jumped into action.

For your viewing pleasure, I reproduce the part of the legal document containing Mr. Steacy's interesting answers to a number of questions Free Dominion's lawyer asked.

So Jadewarr is Dean Steacy in disguise, logging on to Stormfront to chase down insolent hate mongers. To say that "Jadewarr is not a person" is disingenuous at best. It would be like me saying "'Fusionist Libertarian' is not a person. It's just an account I use while blogging."

Mr. Steacy's attempt to catch hate mongers in their acts of hate mongering reminds me of the way the police pretend to be 13 year old girls in order to catch pedophiles. The only different is that the police are looking for people who hurt children; Dean Steacy is looking for people who say and think naughty things.

Sure, we can talk about police entrapment and the like. But at least the police are subject to the kind of legal scrutiny able to reveal whether or not entrapment has actually taken place. That's all part of due process. The police are obliged to follow it, but is one of the HRCs top inquisitors?

Well, take a look at this next snippet and decide for yourself.

You can practically hear Mr. Steacy's exasperated sigh: "I told you, I'm the investigator! That means I get to decide how to investigate!"

The only question I have is whether Mr. Steacy birthed Jadewarr on his home computer, and if he was mostly unclothed at the time. Did this method of "investigation" receive any scrutiny at all, from anyone? Are there rules or at least guidelines for pursuing suspected hate mongers across cyberspace, or does he just make those up as he goes along? He is the investigator, after all. Better not try to tell him how he should investigate.

I get the feeling Dean Steacy thinks suppressing hate speech is a Very Important Job. Too important for something like Due Process to get in the way. The legal nebula the Canadian HRCs occupy makes it easy for their inquisitors to lose sight of important legal principles, and, in any event, few Canadians are really interested in holding them to those principles in the first place.

Better to just go along, and let people like Dean Steacy pursue the nasty hate mongers than to mildly protest and end up looking like one of the hate mongers yourself. Perhaps someday Canadians will change and become more willing to stand up for their rights -- become more like Americans, I mean.

Yeah, I know: that's never going to happen. Time to get back to work, but I sure hope Jadewarr doesn't read this blog post.

Via Mark Steyn. Steyn was the source of yet another human rights complaint (three, actually) in Canada after an excerpt from his book was published in a national news magazine. I haven't posted on the case yet, but it's just as significant as Ezra Levant's.

The Rockwell-Rothbard Race War

2008-01-16T14:09:00.000-08:00

Via the East Coast Libertarian, as well as my friend Peter Jaworski, comes this Reason piece, a compilation and analysis of the mounting evidence that Lew Rockwell was Ron Paul's racist ghostwriter, written by Julian Sanchez.

Check it out. Like ECL, I await the spittle-laced rants from Rockwell and his cabal against Tom Palmer and just about anyone else who bucks the party line.

For me, here are the two, semi-new points from Sanchez's article:

Even if Ron Paul knew absolutely nothing about the racist filth being put out in his name, its publication still made him a lot of money. That's another strike against Dr. Paul.
Lew Rockwell and Murray Rothbard are/were assholes.

Ok, so that last one isn't even a semi-new point. But the Reason article further illustrates the extent of Rockwell's (and Rothbard's) depravity. Here's what I'm talking about:

During the period when the most incendiary [newsletter] items appeared—roughly 1989 to 1994—Rockwell and the prominent libertarian theorist Murray Rothbard championed an open strategy of exploiting racial and class resentment to build a coalition with populist "paleoconservatives," producing a flurry of articles and manifestos whose racially charged talking points and vocabulary mirrored the controversial Paul newsletters

With regard to Rothbard's contribution to this nasty "strategy" Timothy Wirkman Virkkala writes:

I knew what Rockwell and Rothbard believed regarding strategy. They believed in hate. Rothbard famously believed that you had to stir up hate against the state. He came to believe that you should stir up hatred against the underclass. That’s how you had to appeal to the middle-class Christians would turn on the old conservatism.

Now, look, contrary to the implication of Lew Rockwell's recent ~~droppings~~ musings, I don't love the state. Before I'd finished my internship at Citizens Against Government Waste this summer, I'd already decided on my life's goal -- the one thing that would make my life complete and give me the greatest satisfaction.

That goal is to put a politician in prison. Or maybe a bunch of them. Democrat, Republican, it doesn't really matter. That's how much I hold the state in contempt (I wouldn't say I hate it: how can you hate something so incompetent, so blithely unself-conscious about its own failings? Wouldn't that be like hating the dog for leaving ~~Lew Rockwell~~ turds on your carpet?)

So I don't like the state. But I'm also not an idiot (or evil.) That's why I would never think stirring up racial animosity is the right way to go about reducing the power of the government.

Think about it: if the white middle-class thinks the black lower-class is a bunch of animals ready to riot unless/until they get get their welfare checks (as one of Ron's newsletters opined), they're not going to say, "Oh yeah, better cut off the checks, then." No. They're going to say, "Damn it, we need to hire some more police officers!" Because if you're the kind of racist moron who thinks black people are aggressive and criminal by nature -- and, worse, lots and lots of them live and work all around you -- then you're going to want the state to protect you from them. And that means you're going to be willing to give the state more power.

Why this escaped Rothbard and Rockwell, I have no idea. Not to Godwin twice in as many days, but didn't these buffoons remember how Hitler used popular antisemitism as an excuse to grab more power? Libertarianism requires that we be able to trust each other.

As everyone knows, or should know, trust is a crucial component of the market's efficiency. The more you and I can trust each other, the less we have to rely on expensive enforcement mechanisms that diminish the overall benefit of the trades we make with one another. If I didn't trust most people to be reasonable and honest with me, most of the time, I would simply not be a libertarian. I can't afford to install a ten foot high wall around my apartment, complete with machine-guns, out of fear that the black folk are going to carry off my girlfriend and my computer.

Besides, my landlord would frown on the machine-guns. In any event, if I didn't have trust and faith in the typical person, I sure would want more of those big guns in the hands of the police, and boy, wouldn't that increase taxes. Maybe I'd want cameras installed on every corner. Hell, maybe I'd just empower the state (but just for a while, naturally) to finally, uh, deal with all those scary and swarthy people smart guys like Lew Rockwell always tell me to fear.

But I'm not an asshole. Or evil. Or an idiot. Which one of these is Lew Rockwell?

Incidentally, I've never cared for Murray Rothbard's libertarianism, which basically elevates a controversial (and inherently vague) moral principle to the status of a physical law. Instead, I've drawn inspiration from the contractarian libertarianism of my old mentor Jan Narveson.

Yes, it has problems, but Narveson's theory is focused like a laser on the importance of trust in every day life. This is a theme libertarians should return to again and again: who do you trust, really? Your neighbor or the government? But, unless you live in Beverly Hills, it's a lot harder to trust your neighbors when you're convinced that a good number of them are violent animals ready to riot when the welfare check is late in coming.

Lew Rockwell Enlightens Us About Libertarians...

2008-01-15T08:54:00.001-08:00

Hidden in this post by Rockwell on his blog is this pithy revelation about all non-Paul-supporting libertarians, in a post entitled "The Liberal-Neocon-Cosmotarian Problem With Ron Paul":

The anti-Paulians love the state, especially the warfare state. They want perpetual war in the Middle East, and the approbation of the regime. Thus their hate of Ron Paul. Of course the hatred of these types is another medal on Ron Paul's chest.

And, yes, this is in a post where Rockwell favorably refers to Dennis Perrin's HuffPo piece "The Liberal's Ron Paul Problem."

But Rockwell explicitly extends Perrin's "diagnosis" to cover not just liberals, but "neocons and self-described cosmopolitan libertarians." Then he turns around and broadens the next to seemingly include anyone who is against Ron Paul.

So if you don't support Ron Paul, you love the state? If you oppose Ron Paul, that means you want to kill everyone in the Middle East? That's the argument now?

Hm. He might have a point. It's a well known fact that Hitler didn't support Ron Paul and he wanted to kill LOTS of people!

A Note on Libertarianism, Federalism, and the Constitution

2008-01-14T17:22:00.000-08:00

This is just to reiterate a message I've kept up constantly in this blog.

The 10th Amendment to the U.S. Constitution reads as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

When you read this well known passage, think of the following term in conjunction with it: "police power." According to Wikipedia, police power is the power of the state to regulate power, especially for reasons of morality and public welfare. From a libertarian perspective, the state's police power should be a necessary evil at best.

The 10th Amendment implies, first, that the federal government does not have any kind of general police power. The only powers it has are those specific ones enumerated in the rest of the Constitution.

But notice, the Amendment does not say the states have unlimited police power, either. Certainly, that possibility is compatible with the 10th Amendment, but not as strongly as some seem to think. After all, the Amendment says the powers are reserved to the states or to the people.

So state legislatures have broader powers to regulate life than the federal government, but not unlimited power. Some powers are reserved to the people. "The people" can't reasonably be read as simply a reference to a democratic majority, either. After all, the Amendment already refers to "the majority" in each state. Who else do the powers reserved "to the states" belong to, but to the democratic legislatures in each of those states?

Unless the 10th Amendment is stupidly redundant, states do not have unlimited police power. But where is the line drawn? Just what does the federal Constitution have to say about what states do to their citizens? This question and others like it show how weak and incomplete a strictly originalist interpretation of the Constitution really is.

According to the Supreme Court (in Lawrence v. Texas), Democratic majorities do not have the power to impose a single moral vision on all of the citizens of a given state. Thus, one of the main justifications for the use of a state's police power is removed. The state's dominion to regulate the lives of its citizens is diminished.

State... power... diminished. Power left to... individuals. Sounds pretty good and libertarian, right?

In the end, the question of how much police power should the states have? has an easy answer for libertarians. The right answer always is: as little as possible. Individuals should have power, not the states or the federal government.

I don't mind saying that my interpretation of the Constitution is driven at least in part by the value I place on individual liberty. At the same time, Randy Barnett argues that my interpretation, or something like it, can be well supported by a more originalist reading of the document. And I also agree with Justice Kennedy's eloquent opinion in Lawrence:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Kennedy's opinion echoes Ronald Dworkin's distinction between semantic-originalism and expectation-originalism: the Framers were not always aware of the implications of the principles they placed in the Constitution. They expected them to have certain implications (the death penalty is not cruel or unusual), but we may discover additional or even contrary implications (the death penalty is in fact cruel and unusual.)

The meaning of the word "cruel" need not change from one generation to the next. What may change is the discovery (based, for example, on advancements in psychology and other sciences, as well as advances in moral philosophy) that a practice that was formerly accepted actually fits within the category of the cruel.

How does this fit in with the Constitutional limits of state police power? It means that a justification for a use of police power thought to be sufficient may in fact turn out to be inadequate to justify limiting individual liberty to the extent that use requires. It means that one can be a Constitutionalist while simultaneously holding that the Constitution itself imposes drastic limits on the use of state police power.

It means one can be a libertarian and love the Constitution at the same time.

But this is not the Ron Paul approach to the Constitution. Ron Paul's approach reserves to each state an almost unlimited police power -- power to prohibit gay sex, abortion, and birth control; to bring the Ten Commandments into court rooms; to mandate segregation in buses and schools.

This is not, and never has been, a libertarian agenda. This is tyranny, but on a small scale. On a scale some Ron Paul supporters are comfortable with, living blue state lives, far away from the places in which state legislatures would use their expanded police power most effectively, if and when Ron Paul gave them the green light to do so.

That is why I have never supported Ron Paul, whether he is a racist or not. I have deeper, moral objections to his agenda. If that means his libertarian posse will put me on their hit list along with Tom Palmer and David Boaz, so be it.

I will still be right and they will still be wrong.

The Mental Gymnastics of Some Ron Paul Supporters

2008-01-14T00:29:00.000-08:00

Click here to see how some Ron Paul supporters are reacting to the racist newsletter fiasco. As the blog suggests, it's a good example of how the human mind adapts to believing in lies.

However, I don't think Ron Paul supporters have a monopoly on this kind of self-deception. Fans of just about any political candidate -- or any other celebrity, for that matter -- will scamper through mental hoops in order to maintain purity in their beliefs.

What's ironic is that Ron Paul supporters tend to believe they are so very different from the supporters of Obama, Hillary, or Huckabee. More intelligent. More patriotic. Better at interpreting the Constitution.

In fact, they're pretty much this woman I once overheard talking about how much she just loved Michael Jackson. And she just couldn't believe the lies circling about him: that he was a pedophile; that he'd paid off children and their families; that his personal life was deeply, deeply bizarre.

It didn't matter to this woman. She wouldn't even entertain the possibility. Why not? Well, she really loved his music, and how could a man who made such beautiful music possibly be a pedophile?

But it happens. Humans are corrupt. Moreover, the greatest demonstration of the corruption is the extent to which they're willing to deny it.

Fascism, Canadian-Style: Now In Op-Ed Form

2008-01-13T20:23:00.001-08:00

Just heard from the Toledo Blade: they're going to publish a version of my op-ed. I'll post a link once it goes up.

A Question

2008-01-12T23:23:00.001-08:00

For something I'm writing at this very moment...

In his response to the inquisition, does Ezra Levant sound more like T. Jefferson or T. Paine?

Fascism, Canadian Style, Part 2

2008-01-12T23:03:00.000-08:00

In light of the inquisition against Ezra Levant, I am reposting an op-ed I wrote that never got published (to be honest, I didn't push it that hard.) Once again, it seems timely. Funny how that's been happening more often of late. Some of the facts need to be updated, or downgraded, since none of the changes are very positive. For example, Free Dominion recently had to move its servers out of the countries to escape its legal troubles.

U.S. Moves In An Ominous, Canadian Direction
By: Terrence C. Watson

The case of Stanislav Shmulevich, the 23-year-old who now faces two felony charges for putting the Quran in a toilet at a New York university, shows that the United States is sliding in an ominous, Canadian direction when it comes to freedom of expression.

Why a Canadian direction? As a Canadian citizen interning at a nonprofit organization in Washington, D.C., I’ve learned that Americans have generally positive, if vague feelings about their neighbor to the north. But Scott Brockie and Chris Kempling discovered just how much their freedom is limited in their home country. I’m in the United States now at least in part because of the way they were treated. But what happened in Canada is beginning to repeat itself in the land of the free and the home of the brave.

In 2000, Brockie, owner of a small printing shop in Toronto, was fined thousands of dollars after he refused to print material for the Canadian Gay and Lesbian Archives (GLA) that conflicted with his religious beliefs. So far, Canadian courts have upheld the ruling. Matt Hughs, GLA’s board president, has said that Brockie’s refusal left the plaintiff in the case feeling “humiliated” and “demoralized.” The board of inquiry convened to hear the case claimed, “It is reasonable to limit Brockie's freedom of religion in order to prevent the very real harm to members of the lesbian and gay community.”

Brockie’s case is hardly unique. In 2002, Kempling, a teacher from British Columbia, was suspended from his job without pay for writing letters to a newspaper criticizing the way homosexuality was being taught in schools. He took the school board to court and appealed his suspension, but in 2005 the court ruled against him.

As recently as July 2006, Free Dominion, a Canadian Internet forum, was served with a complaint similar to the one Brockie received. A woman who is not even Muslim complained to the government about the forum allowing posts critical of Islam. In response to the complaint, the Canadian human rights commission might fine the owners of the website, or even shut it down.

In Canada, we’ve gone from “Your rights stop where my nose begins,” to “Your rights stop whenever my feelings might be hurt.” The result has been a disaster for freedom of expression. And if you think this couldn’t happen in the United States, think again: it’s already happening.

In October and November of 2006, Stanislav Shmulevich put copies of the Quran – neither of which belonged to him – in a toilet at Pace University in New York, where he is a student. Now he faces serious jail time for these acts of vandalism. If the case had been handled internally, Pace might have expelled him for his actions. However, under pressure from the Council on American-Islamic Relations (CAIR), the police have charged him with a hate crime.

Even after Pace University responded to the Quran-in-the-toilet incidents, CAIR apparently urged the involvement of New York’s hate crimes unit. Like Brockie and the owners of Free Dominion, Shmulevich will be punished merely for the expression of opinions that might hurt people’s feelings.

Thomas Jefferson, author of the Declaration of Independence, once wrote, “It does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.” Putting a holy book in a toilet – or posting insulting comments on a website; or refusing to print literature with which one disagrees; or writing a letter to the editor – these actions, however tasteless, violate no one’s rights.

Canada is still waiting for its Thomas Jefferson, which is perhaps why the country’s move to quash the freedoms of its citizens has encountered so little resistance. But America must hold on to the vision of great men like Jefferson and the other Founders, and not follow its northerly neighbor’s dark descent. Americans must reject the felony prosecution of Shmulevich and not limit freedom of expression solely to protect the all-too-tender feelings of others.

Fascism, Canadian Style

2008-01-12T22:18:00.000-08:00

You, the left, made this happen. You, from Marx, to Marcuse; from your corruption of the noble term "liberal", to your whole notion of "reactionary peoples", to your campus speech codes, to your hate speech laws: you are making -- have made this -- will make this happen.

Fuck you. Fuck you all. Fuck the left. Fuck you, you fascist-loving, molly-coddling, chestless, resentful, soft bigoted, over-mothering, and moreover STUPID left-wing poseurs, incapable of realizing that we -- the classical liberals, the conservatives, the whiggish traditionalists -- that we have more in common with you than the third world primitivists whose sensibilities your kangaroo "courts" claim to protect.

You know: the guys who want us all to live under Sharia law.

Fuck you. Fuck you for your love of bureaucrats. For your gleeful ignorance of economics. Fuck you for demanding that others sacrifice, while you sacrifice nothing. For your bromides about the "common good," which is almost always code for the good of a few.

Fuck you for every time you described vast parts of the United States as "flyover country." For every time you described President Bush as "Chimpy McHaliburton" and reveled in the giggles coming from your left-wing echo chambers.

Fuck you for praising democracy with one breath and then sniffling about popular culture with the next.

At least I'm consistent: I hate both.

Fuck you all. Whether Ezra Levant wins or loses, I'm going to burn a Canadian flag, and I'm going to think of you while I do it. You. The harbingers of the banality of evil. The acolytes and enablers of fascism, Canadian style.

Does Ron Paul really say "Jew world order"?

2008-01-11T17:31:00.000-08:00

Andrew Austin posts the following:

Does Ron Paul really say "Jew world order" here? Someone with much better ears than mine says yes. If he's not saying that, then what?

Megan McArdle on the Ron Paul fallout

2008-01-11T11:30:00.000-08:00

In her Atlantic blog, Megan McArdle asks an important question: will the decline and fall of Ron Paul be good for libertarianism? Her answer is a guarded "yes":

Ron Paul's unfortunate moment, and the outing of Lew Rockwell and Jeff Tucker as the probable authors of the bile, have given libertarians the opportunity to make decisive break with that past--and thankfully, they all seem to be taking it.

As anyone who delves into my blog knows, I distrusted the Ron Paul "Movement" almost from the very start. In part, I'm suspicious of movements of all kinds, but the level of support Ron Paul received from neo-Nazis, neo-Confederates, 9/11 Truthers, and other assorted nuts and "white nationalists" was an additional reason to withhold my support (such as it is.)

Unfortunately, I can't share McArdle's optimism about the libertarian response to this mess. After plowing through countless blogs and reading about a zillion comments, I can divide the responses from Ron Paul supporters to the newsletter fiasco into maybe three or four:

Ron Paul does not believe these things. Just look at his record! And he likes Mises, who was Jewish!
Ron Paul does not believe these things, but even if he did, most of them are true, and y'all know it.
Ron Paul can't be racist. It's impossible for libertarians to be racist!

All of these responses are troublesome and leave no room at all for the people who make them to "move past" Ron Paul into a more thoroughgoing, thoughtful libertarianism.

The third is an a priori appeal to a certain conception of libertarianism that is frankly quite false. Insofar as libertarianism is understood as a political doctrine, it sure is possible for a libertarian to be a racist. There are some more robust, comprehensive versions of libertarianism that incorporate a more substantial ethical core. However, these versions suffer a tension between their free market absolutism and the broader conception of the good such views espouse.

For example, if one believes it is very bad to be a racist, and that all humans are equal in their moral dignity, then one should have to explain why federal law should not be used to prevent some forms of racial discrimination. After all, if it is bad to be a racist in Arkansas, it's equally bad to be a racist in Michigan. In my case, I resolved this dilemma by breaking with free market absolutism in favor of federal civil rights legislation. I think this position is very defensible, both morally and politically.

Most people agree with me: it should be illegal everywhere in the United States for employers to hire solely on the basis of race. Some things are more important than the property rights of business owners. As for the equal dignity of every human, that should be recognized in every state, and not subject to variation as a result of the machinations of the invisible hand or local city councils.

The second response from Ron Paul supporters is a version of the crypto-racism I saw over and over again on white nationalist message boards. These neo-Nazi pin-heads invariably believe that lots of Americans agree with them, but are too afraid to say so. Their biggest worry is not that Ron Paul is a closet racist, but that someone like Kirchick will open the closet door before the good doctor has a chance to wipe out the hated 14th Amendment.

I have little to offer by way of counter-argument here: I'm not going to argue racism with a racists. If you agree 100% with those newsletters, I've got nothing to say to you, and my fondest hope is for you to stab yourself in the heart with the spike on top of one of those old German army helmets from the first world war.

Finally, there are those who simply refuse to believe that Ron Paul could have anything at all to do with the newsletters. That position -- an absolutism in its own right -- no longer appears entirely defensible. The personal details printed in the newsletter push the burden of proof back on to those who hold the most extreme position, i.e. those who say they're completely certain Paul had nothing to do with the newsletters.

This certainty is an enemy of the kind of evolution McArdle is hoping to see. Libertarians should have a natural distrust for politicians -- yes, even for Ron Paul. Trusting Ron Paul when he says he had nothing to do with the newsletters and believing that his personal views must be perfectly aligned with his public ones is a dangerous attitude for one to take toward any politician.

In this particular case, the attitude tethers Ron Paul's own presidential ambitions to libertarianism so well that if the former fails (and it will), then the holder of the attitude is likely to reject the latter as well. The irony is that those who loved Ron Paul the most unreservedly are the least likely to remain libertarians once this is all over and the good doctor has returned to his home in Lake Jackson, Texas.

Libertarianism isn't dead. But it isn't exactly alive, either.

The Ron Paul Survival Report FAQ

2008-01-11T01:05:00.000-08:00

Originally published in late December, the Ron Paul Survival Report's FAQ on Ron Paul and his newsletters has been updated as a result of Kirchick's article.

The FAQ is pretty good, the kind of thing I wish I'd written myself. It's definitely worth a look.

CNN on Ron Paul's newsletters

2008-01-10T21:27:00.000-08:00

CNN is now reporting the Ron Paul newsletter fiasco, and their analysis catches something I missed and haven't heard anywhere else.

In some excerpts, the reader may be led to believe the words are indeed from Paul, a resident of Lake Jackson, Texas. In the "Ron Paul Political Report" from October 1992, the writer describes carjacking as the "hip-hop thing to do among the urban youth who play unsuspecting whites like pianos."
The author then offers advice from others on how to avoid being carjacked, including "an ex-cop I know," and says, "I frankly don't know what to make of such advice, but even in my little town of Lake Jackson, Texas, I've urged everyone in my family to know how to use a gun in self defense. For the animals are coming."

In his response to CNN's report, Eric Dondero, a former aide to Dr. Paul, claims in no uncertain terms that Lew Rockwell was Dr. Paul's ghostwriter, a suggestion that should surprise no one. However, if Rockwell did write the bit I just quoted, he went to a lot of trouble to make it sound like Ron Paul had written it.

Did Rockwell ever live in Lake Jackson, Texas? It almost doesn't matter, because everyone knows that Ron Paul does live there. That's enough to suggest to the casual reader that the words are indeed Dr. Paul's. If Rockwell did write this passage and others, he was completely unconcerned that people would confuse his views for Ron's own.

If Ron Paul knows who wrote this stuff -- and I have a hard time believing he doesn't, or doesn't at least know somebody who would know -- he's got to call that person out, and he has to do it now. It's getting harder and harder to maintain the position that Paul knew nothing about what was being said with these newsletters.

I still don't think Dr. Paul is an all out racist, but he's got some racist friends.

Update:
Sultan Knish brings to light additional personal details from the newsletter. In a lengthy post he claims that Ron Paul is about being the author of at least some of the newsletters.

Here is an interesting passage reproduced from Sultan Knish's blog and the New Republic's initial report:

It was Ron Paul and not Lew Rockwell who ran for president as a Libertarian in 1988. At least two things are going on here: first, in his response to Kirchick's TNR piece, Dr. Paul said, "The quotations in The New Republic article are not mine and do not represent what I believe or have ever believed. I have never uttered such words and denounce such small-minded thoughts."

If Ron Paul did write the above passage from the newsletter, then his official statement is misleading at best, a flat out lie at worst. In addition, in Congress Dr. Paul has expressed his unabashed admiration for Martin Luther King. This passage is frankly inconsistent with that sentiment.

Finally, it's ironic for Ron Paul or for his ghostwriter to quote so authoritatively the words of a man who lead one of the greatest examples of over-reaching federal power at the time when that institution was abusing its power the most egregiously.

This is interesting: John McCain Beats Ron Paul For Anti-War Vote

2008-01-10T08:03:00.000-08:00

Here's John McCain's campaign referencing the CNN's exit polls:

Exit polls found 64 percent of Tuesday's Republican voters still support the conflict — and Romney, whose criticism of Bush's management of the war has been muted, led McCain among those voters. But among the 34 percent who said they disapproved of the war, McCain had a wide advantage over the GOP field — even over Texas Rep. Ron Paul, the sole advocate of a U.S. withdrawal in the Republican field.

John McCain brings credibility to the issue of the war—so much that he, the most ardent advocate of the war—attracts the votes of those who oppose it. That means something in the general election. People who want to see the war through and bring along others who oppose it in order to unite America have a champion in John McCain.

So Republicans who disapprove of the war flocked to John McCain, and not to Ron Paul? How strange!

Update: After giving this statistic some thought, I have a possible explanation for it. I've always thought that Americans -- and Republicans in particular -- do not despise the Iraq war in principle. If the war were going better, they'd be behind it. This means that given the choice between a "resolute" anti-war candidate, like Ron Paul, and someone they thought could actually win the war, they would opt for the latter.

This is why I've been suspicious of polls that show that "80% of Americans are against the war in Iraq," etc. Such polls never distinguish between those who would reject the war even if it were going well and those who reject the war only because they think the United States is losing.

My guess is the first group is much smaller than the second, and that the first is mostly comprised of hard-core leftists, pacifists, and other assorted hippies. Since anti-war absolutists are almost always in the minority, it's unthinkable that the large number of Americans who once supported the war have suddenly all joined this group of people.

Americans will support war, as long as they have confidence they will win.

Two Kinds of Libertarianism?

2008-01-09T13:32:00.000-08:00

In this post on Gays & Lesbians for Ron Paul, Berin Szoka calls Kirchick's TNR article a "smear job" and "refutes" it by way of ad hominem attacks on the author (see, Kirchick thinks the neo-Confederate stance might sometimes be a cover for racism -- amazing how anyone could think that, huh?)

At one point in Szoka's post, he claims to "strike at the root" of Kirchick's problem with Paul. Apparently, Kirchick has described himself as a libertarian. How could a libertarian be against Ron Paul? Szoka wonders. His answer is that Kirchick and the Cato Institute represent one strand of libertarianism, while Ron Paul and Mises represent another. Szoka spins mightily to try to find a way to call both strands of thought "libertarian", and his efforts are revealing:

For some at Cato (though certainly not all) and perhaps for Kirchick, libertarianism is simply about maximizing personal autonomy for the individual on any and every issue.

Yeah, I know. Where did the Cato Institute get the idea that libertarianism is about increasing the liberty of the individual? It's ludicrous, I tell ya!

As for the second strand of libertarianism, Szoka says that, in contrast to the "urbane" libertarian folk at Cato, Ron Paul

is as concerned about the liberties of the individual as he is about the institutional structure that protects liberty. When he describes himself as a "constitutionalist," he is not "speaking in code" to express some kind of bigotry, but to defend the liberalism for which the American Revolution was fought: the restraint and diffusion of power through constitutionally limited government.

Consider these two words "restraint" and "diffusion." These are two very different words, although Szoka runs them together as if they basically mean the same thing. However, the difference between them is exactly what produces the difference between the two strands of libertarianism.

To be restrained is to be blocked from doing something. For example, we can say that the Constitution restrains the government from interfering with the marketplace of idea. Everyone thinks the government should be restrained from doing some things, but, one might say, libertarians have a particularly expansive list of the sort of things they think government shouldn't be able to do.

It may seem that liberty and restraint are opposites, for to be restrained is precisely to lack the liberty to do something. But, as Thomas Hobbes clearly saw, the relationship between the two is more complicated. If none of us are ever restrained, our theoretical liberty (or liberty "in principle") will be very high, but our effective liberty (or liberty "in practice") will likely be very small.

Without rules and social coordination, we'll constantly be blocking each other, getting in each other's way, etc, and our lives will be "solitary, poor, nasty, brutish, and short." So while there is a trade off between restraint and theoretical liberty, it can more than be made up for by an increase in our effective liberty. No, I can't kill whoever I'd like, whenever I'd like, but they can't kill me, either, and, on the whole, laws against murder end up increasing my liberty.

Obviously, too many rules, or the wrong rules, can make my effective liberty evaporate, too. Hobbes was wrong to think that even the worst sovereign is better than anarchy. Thus, the body that makes and enforces the rules has to be restrained as well. Its liberty -- its power -- must also be curtailed, for sake of the liberty of all.

Such is the relationship between liberty and restraint.

Diffusion has a somewhat different meaning. The word literally means to "spread out." When a scent diffuses into the air, it moves from an area of high concentration into an area of lower concentration. The scent itself isn't destroyed in this process, but simply transferred.

Ron Paul and his supporters aren't as interested in restraining government as much as they are interested in diffusing its power. For example, Paul doesn't think the federal government should be able to tell you that you can't have an abortion, but he's fine with state governments doing this. He thinks the federal government's liberty to restrict abortion should be handed over to the states.

But this doesn't make the ability of some to restrain the legitimate behavior of others disappear; rather, it simply transfers it. It doesn't diminish power, but simply places it in other hands, hands that have no more right to that power than the federal government.

Who should have the liberty to tell you what to do with your body? Real libertarians think that only you should have that liberty. All other persons and institutions are under an obligation of restraint.

Szoka second strand of libertarianism is hardly libertarian at all. It's anti-federalist, but not anti-power. It specifically endorses the abuse of the individual, as long as it occurs on a small enough scale. In doing this, as I've said before, it seems to specifically reject the idea of inherent, inalienable, individual rights.

TNR posts excerpts from Ron Paul's newsletter

2008-01-08T16:22:00.000-08:00

Check here for TNR's excerpts of Ron Paul's newsletters. (In the previous post, I may have erroneously suggested that he only attached his name to one.) Also included on the page are links to full pdfs of the newsletters. Hopefully, that will go some way to silencing those accusing The New Republic of making everything up.

A commenter on TNR's website was worried Paul's supporters might try to crash TNR's website. That's a possibility, so I'll reproduce some of the excerpts here:

In a 1992 analysis of the L.A. riots:

Order was only restored in L.A. when it came time for the blacks to pick up their welfare checks three days after rioting began. ... What if the checks had never arrived? No doubt the blacks would have fully privatized the welfare state through continued looting. But they were paid off and the violence subsided.

In a heart-warming bit of nostalgia, a newsletter remarks, "I miss the closet. Homosexuals, not to speak of the rest of society, were far better off when social pressure forced them to hide their activities."

Another newsletter (1990) favorably lists a few recommendations for caring for people with AIDS, including using paper plates and cups and "burning them afterwards." In the same newsletter, a "mob of black demonstrators" is reported demanding a change of name for New York City. "Maybe a name change is in order. Welfaria? Zooville? Rapetown? Dirtburg? Lazyopolis?"

A 1990 newsletter dismisses the "gay political agenda" as "uniformly statist." That same newsletter calls Martin Luther King Jr. a "world class adulterer" and a pedophile ("he also seduced underaged girls and boys.")

Oh yeah: the above mentioned newsletter ends with the following:

"My wife Carol, and our children and grandchildren, join me in wishing you and your family a wonderful Christmas and a Happy New Year. May we start to confound the plans of the Trilateralists..."

So Ron Paul wrote the newsletter's holiday greeting but had no input into anything else in it? Come on! I'm supposed to believe that?

Is Ron Paul a racist? TNR says, Ron Paul is an "Angry White Man"

2008-01-08T15:39:00.000-08:00

Click here for the New Republic's scoop. James Kirchick went and dug up Ron Paul's old newsletters, the ones that hadn't (to my knowledge) come to light yet.

Bottom line: Ron Paul is either a racist or naive and clueless. Either he knew what was being written in his own newsletter and allowed the bigotry to go on, or for years he allowed his name to be put on material with which his supporters still claim he so strenuously disagrees.

It has to be one of those. Either is enough to disqualify him from holding public office.

The response from RP supporters to Kirchick's article is revealing. Here's the first one that caught my eye:

Unfortunately, your information is simply that propaganda that is misleading, inaccurate, and definitely with a political agenda. I am ashamed that I read your entire post. Moreover, you contradict yourself. Van Meses was a jew- so how can Dr. Paul be an anti-Semite.

Gee, I don't know, "Ken." My grandma is uncomfortable with "the gays" but still likes the movies of Carey Grant.

Lots of Paul supporters respond with some variation of, "A-ha! Ron Paul has the powers-that-be running scared in New Hampshire so OF COURSE they choose tonight to reveal this information." As usual, invoking a conspiracy allows the evidence to be ignored.

Those commenters who do address the evidence suggest that it's not fair to attribute the quotations to Ron Paul, since other people also contributed to his newsletters. Fine. But who has the burden of proof? As Kirchick points out, many of the newsletter articles were unsigned, so it's now impossible to attribute authorship. But whose choice was it to allow so many unsigned articles into the newsletter?

Why should we assume that Ron Paul didn't write some or all of the objectionable pieces? Many of Paul's supporters beg the question and assume that he couldn't have written them because, hey, he's such a nice guy. But RP's character is precisely what is at issue.

As for Dr. Paul himself, he recently addressed the New Republic's report, saying:

When I was out of Congress and practicing medicine full-time, a newsletter was published under my name that I did not edit. Several writers contributed to the product. For over a decade, I have publicly taken moral responsibility for not paying closer attention to what went out under my name.

But, as others have pointed out, before Ron Paul offered this explanation for the racist remarks in his newsletter, he used to simply say that the words were taken out of context. But if the hate-filled articles are bad enough to completely disavow now, why weren't they before?

Finally, we should get back to a primary purpose of this blog: understanding the level of support racists show for Ron Paul's campaign. We could construct countless epicycles to explain this phenomenon, but that no longer seems necessary.

Whether or not Ron Paul wrote racist articles, for a long while he allowed people to believe that he either wrote them, or was simply ambivalent about the articles being published under his name. Understandably, racists have taken that as evidence (perhaps not conclusive, but so what?) that Dr. Paul is one of them. He says what they're thinking, or publishes people who do.

As my past forays into the wasteland of neo-Nazism on the net show, the racist denizens understand that most people aren't free to express their hatred openly. Publishing a newsletter full of hate-filled, but unsigned artices is one way around that problem, and they know that. And they know enough to disbelieve or discount Ron Paul's recent public rejection of their views because that's exactly what they would have to do if running for public office.

Update: It looks like Ron Paul is not doing so well in NH. How long until the Ron Paul people blame it on Kirchick's TNR article?

Only Giuliani will save you from the terrorists!

2008-01-03T13:29:00.001-08:00

Take a look at this Giuliani ad:

This reminds me of a similarly bombastic ad Tom Tancredo put out a while back. Check it out:

Also consider the recent Ron Paul ad discussed here. With Tancredo's withdrawal, one is forced to ask: Will all the Republican candidates try to pick up his detritus with ads like these?

Wonkette: Ron Paul Is Incoherent

2008-01-01T21:03:00.000-08:00

Happy New Year!

Over at Wonkette, Jim Newell makes a good point with less nuance than I'd like (but, anyway, that's what they do at Wonkette.) It relates to my last post about Ron Paul's desire to amend the Constitution to end birthright citizenship. I'm not pretending to reconstruct Newell's argument here, but you could say it inspired me to inscribe this more robust critique of the Ron Paul ideology.

In short, I'm going to argue that a) Justice is built into the Constitution; b) Ron Paul and his supporters advocate measures that run directly afoul of it; and c) thus, Ron Paul is not really defending the Constitution.

Prohibition was once constitutional; this did not make it just, or even a very good idea (indeed, most libertarians would think it was both unjust and a very bad idea.) No matter: the justness of a law and its constitutionality are two different things, right? A law is not unconstitutional because it is unjust, and a good law does not become constitutional merely because it is just.

Justice and constitutionality are always two different things. Right?

Wrong.

Amendment 5 of the Constitution reads in part: "...nor shall private property be taken for public use, without just compensation." Amendment 4 reads in part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

Amendment 14 reads in part: "No state shall...deny to any person within its jurisdiction the equal protection of the laws."

There is a thread running through the Constitution and its various amendments that makes it impossible to separate the legal content of the document from its substantive moral content. Amendment 5 only makes sense against a background conception of justice. Amendment 4 only makes sense against a background conception of the reasonable.

Indeed, for men of the Enlightenment, justice and reason were never far apart.

If the above is correct, then, in at least some cases, a law can be unconstitutional because it is unjust, because it egregiously violates the conception of justice built into the Constitution.

Now, to the point; or, more precisely, to a pressing question: what do or should we think of a politician who advocates amending the constitution in a way that would be unjust, in this special sense?

If Ron Paul were advocating the repeal of the 13th Amendment, his proposal would not only be unjust, but it would arguably violate the conception of justice that was built into the Constitution from the very start.

(The fact that the Constitution initially contained limited tolerance for slavery actually supports my point: those measures were added as a compromise, so that southern states would ratify the document. We know that the men who did the most to add their intellectual stamp to the Constitution hated slavery, and it was their sense of justice that was built into the very product of their genius.)

As for Ron Paul, David Duke, et al: they would not be standing up for the Constitution by proposing to violate the conception of justice that has always given the document meaning.

To stand up for the Constitution is to stand up for the morality built into the Constitution. To seek to amend the Constitution in a way that would fly in the face of that morality is to seek to introduce incoherence in the document itself. It is to be fundamentally incoherent.

I am beginning to think that, through accident or design, Ron Paul and many of his supporters are incoherent in just this way.

In this blog, I have consistently claimed that the 14th Amendment embodies an abstract principle of moral equality. This abstract principle grounds the civil rights legislation that Ron Paul rejects. Moreover, the ideal the 14th Amendment represents is itself a logical extension of the Constitution's conception of justice.

Most people are not like Ron Paul; most people don't think horrible injustice takes place when racist landowners and employees are forced to deal with those they hate. Recently, I've met several people on the left who expressed cautious support for Ron Paul. They don't support him any longer after learning of his rejection of civil rights legislation.

The support for Ron Paul, what little there is, is founded on either ignorance (on the part of the left) or wishful thinking (on the part of libertarians who believe/hope that the market alone is capable of producing justice.)

Ron Paul wants to change the Constitution to nullify equal protection; to neuter the branch of the government that obliges the states to adhere to this moral principle; to turn back the clock on the hard-won, gradual understanding of equality that ensures that all people no matter their racial status or state of residence have access to food, shelter, and medicine.

All of this, either by amending the Constitution, or (whenever possible) through federal legislation. All of this, whether he realizes the consequences of his proposals or does not. All of this, to empty out the Constitution, leaving a kenosis of self-serving legal positivism.

Demolishing the morality of the Constitution and uprooting its moral center doesn't make you a defender of the Constitution. Even if your weapon of choice is constitutional amendment.

So, to recap:

1. Ron Paul wants to end birthright citizenship.
2. Doing this would require amending the federal Constitution.
3. Not every proposal becomes constitutional merely because it is added to the constitution; a proposal can be unconstitutional because it violates the conception of justice embodied within the document.
4. Ending birthright citizenship, emaciating the Equal Protection clause, etc. is unjust in just the way specified in (3.)
5. Therefore, Ron Paul's proposal is unconstitutional.

People can quibble with (4.) There's a broader point here: I don't think Ron Paul or most of his libertarian supporters really care about justice. They seem to think the Constitution can be interpreted ex nihilo (certainly, Ron Paul himself seems to believe this, as his comments on the Lawrence decision indicate.)

If Ron Paul and his supporters really don't care about justice, then they don't really care about the Constitution, either. No matter what they say.

Ron Paul: End Student Visas For Foreigners

2007-12-30T18:00:00.000-08:00

According to this ad, Ron Paul would end birthright citizenship and stop granting visas to students from "terrorist nations." Justin Raimondo calls the ad "disgraceful" and "absolutely wrong."

I agree. But ending student visas to ~~brown people~~ those from terrorist nations (like Pakistan? India? Cuba? Iran?) is a message that should resonate with many Americans. It simultaneously pushes two buttons that are very hot right now: first, and most obviously, the terrorism button. Second, and more subtly, the "foreigners are invading America and stealing all the jobs" button.

Now, I know that those who come to the United States on student visas don't usually stay in the country. But do most Americans know that? Or do they instead suspect that the ~~brown people~~ foreigners coming to the U.S. to study are really planning on taking up permanent residence, yanking one more job away from the beleaguered American middle class?

I wonder. There's a case to be made that so-called "fast track" visa programs should be ended, or at least subject to more scrutiny. As I recall, some of the 9/11 hijackers got into the country through such programs. But halting visas to all students from any terrorist nation is extreme, and would not stop terrorists from striking U.S. interests.

It is, however, the kind of position that appeals to bigots and reactionaries. With the withdrawal of Tom Tancredo from the race, maybe Ron Paul was trying to pick up some of his now homeless supporters.

I'm not even going to go into how misguided the idea of ending birthright citizenship is; perhaps Ron Paul would like to repeal all of the 14th Amendment, instead of just the Equal Protection clause?

Ron Paul and the White Nationalists: It Hits The Fan

2007-12-20T11:06:00.000-08:00

Check out this link to a thread on one of the net's premier "white nationalist" message boards. Here is the original post, entitled "Ron Paul Lies About Lack Of Involvement With White Nationalists":

Comrades:

I have kept quiet about the Ron Paul campaign for a while, because I didn't see any need to say anything that would cause any trouble. However, reading the latest release from his campaign spokesman, I am compelled to tell the truth about Ron Paul's extensive involvement in white nationalism.

Both Congressman Paul and his aides regularly meet with members of the Stormfront set, American Renaissance, the Institute for Historic Review, and others at the Tara Thai restaurant in Arlington, Virginia, usually on Wednesdays. This is part of a dinner that was originally organized by Pat Buchanan, Sam Francis and Joe Sobran, and has since been mostly taken over by the Council of Conservative Citizens.

I have attended these dinners, seen Paul and his aides there, and been invited to his offices in Washington to discuss policy.

For his spokesman to call white racialism a "small ideology" and claim white activists are "wasting their money" trying to influence Paul is ridiculous. Paul is a white nationalist of the Stormfront type who has always kept his racial views and his views about world Judaism quiet because of his political position.

I don't know that it is necessarily good for Paul to "expose" this. However, he really is someone with extensive ties to white nationalism and for him to deny that in the belief he will be more respectable by denying it is outrageous -- and I hate seeing people in the press who denounce racialism merely because they think it is not fashionable.

Bill White, Commander
American National Socialist Workers Party

Now, only time will tell if there is any truth to this post. Bill White is the head of the American Nazi party, but maybe that makes him less rather than more credible. As for independent confirmation, Little Green Footballs reports that Ron Paul's campaign has spent money at the Tara Thai restaurant. Also, the Southern Poverty Law center reports that

The Robert A. Taft Club, a group headed by a man with a network of racist connections, has announced that a U.S. congressman, Rep. Ron Paul (R-Texas), will address the group this Thursday at a restaurant in Arlington, Va.

Marcus Epstein, the head of the Robert A. Taft Club, really does have a lot of connections to racist organizations. Dr. Paul really shouldn't give this speech, especially after his recent refusal to return a campaign contribution from another so-called white nationalist. As the American Thinker suggests, if Bill White is lying about him, Ron Paul should sue, and agree to testify under oath.

Anyway, to me, it's the reaction of others on the neo-Nazi message board that's interesting. Here's part of the very first reply to Bill White's post:

if Ron Paul is on our side isn’t this thread harming him? There are a lot more anti-racists that would vote against him than racists that would vote for him. People that agree 100% with Ron Paul would vote against him if they thought he was a racist.

There are quite a few more posts along this line: "Hey, shut your face! Even if Ron Paul believes what we believe, we don't want other people to know that!" This confirms several things I've mentioned previously in my blog: rightly or wrongly, the American nazi crowd believes a Ron Paul presidency will be good for them. Here is another quotation:

While I find this information interesting and intriguing, I have to join the chorus here in asking how the fuck does this help Ron Paul or white nationalism?... Ron Paul is the only candidate that comes close to matching our views in the mainstream political debate...We have to be realistic when it comes to making big political changes. Ron Paul is our first step. Please don't ruin it!

However, one of the most interesting posts, one worthy of followup research, is this pithy affirmation of crypto-fascism:

Assuming this is true, why would you feel compelled to publicize it? Dr. Pierce spoke regularly about having key people at key places inside the gates, ready to flip the switch at the right moment. With this revelation, you might very well have wrecked what little chance Dr. Paul had.

Even the thread moderator chides the original poster only for his timing: "Timing as meant by when we decide to open our mouths. Your opening post is ill timed and because of that, it's hurtful on several different levels."

Here's another edifying quotation:

You want to play dress-up Nazi in your mom's basement or you want to see some actual results? Ron Paul doesn't have to be a WN or whatever. His policies are against the corrupted jews/traitors at the highest levels in government. You want the same go-nowhere, fantasy role-playing Nazi bullshit? Stick with Bill White and his teenage crew. You want results that might not be day of the rope, but something? Ron Paul it is.

I'm not sure, but I think "day of the rope" is part of the neo-Nazi fantasy in which hordes of white people round up hordes of black people and hang them, a sort of "final solution" via the eschatology of the Book of Revelation, if you like. So here's what he's saying: Ron Paul doesn't believe what we believe, but his policies will get us closer to the genocide we're always fantasizing about.

Which is exactly what I've been suggesting the neo-Nazis believe. From the start. And there may be some support for this belief, as my previous post contrasting James Madison with Ron Paul suggests.

There are some substantial pockets of these racist bastards in states as far removed as Michigan and Arkansas. Fortunately, two related forces stop them from exerting (much) influence in their home states. First, the federal Supreme Court. Second, the fact that said political body has stripped states of the authority they would require if the "day of the rope" has any chance of occuring.

Ron Paul wants to demolish both these forces. How can the Nazis not see this as enabling their dark vision?

The Nazi strategy requires secrecy, as they know better than anyone. Well, time to expose the plot.

The Significance of "Blowback"

2007-12-14T15:50:00.001-08:00

From Instapundit comes this piece by Lee Harris, entitled "Reflections on 'Blowback.'" As Harris points out, "blowback" used to refer to negative, unintended consequences following a covert intelligence operation. Now, as used by people like Ron Paul, it seems to refer to the negative, unintended consequences of any aspect of foreign policy.

The point of Harris's piece is simple and broadly correct: when it comes to foreign policy, doing nothing is basically the same as doing something. Suppose the United States decided to never intervene in the goings-on of the rest of the world ever again. As a result of this policy, other nations would probably intervene even more than they do now. For example, China might exert its influence to fill in the void the removal of American power would produce. This, too, could have severe negative consequences for the United States. As Harris argues:

If a policy of disarmament and appeasement turns out to increase the power and prestige of nations ruled by warmongers, this is every bit as much a case of blowback as the defeat that an aggressive nation unexpectedly brings on itself when it precipitately goes to war.

I find Harris's analysis of (one of) the libertarian position(s) spot on as well. In the sphere of domestic affairs, libertarians tend to think that things will handle themselves, and that attempts to interfere with the market will likely produce unintended negative consequences that far outweigh any positive benefits. They're probably right about this.

But the international sphere is unlike the domestic sphere in one crucial, all-important sense: in the domestic sphere, the national government has a monopoly on deciding who will be allowed to make policy within that territory. This will be true even in perfectly libertarian countries. China cannot make policy for the citizens of, say, Arkansas. But this is mainly because the U.S. federal government will stop China from doing so.

In other words, the federal government will stop China from imposing policy F on American citizens, even if (in a perfectly libertarian nation) the federal government itself would not have the power to establish policy F. Having the power to prevent a policy from being established is not necessarily identical with having the power to impose such a policy oneself.

The problem is, in the international sphere, there is no international government to prevent one nation from imposing policies on another. The closest thing the world has is the United States, and people like Ron Paul are all too eager to see that nation abandon its role. Maybe he's right. But abdicating the post of world police will not necessarily prevent blowback. It would simply empower other nations to impose their policies on the citizens of the world, just as other nations would impose their will on the citizens of Arkansas if the federal government withdrew its protection from that state. As Harris observes,

It is simply a myth to believe that only interventionism yields unintended consequence, since doing nothing at all may produce the same unexpected results. If American foreign policy had followed a course of strict non-interventionism, the world would certainly be different from what it is today; but there is no obvious reason to think that it would have been better.

This is another reason to think that a foreign policy of strict non-interventionism is morally dubious. If its moral justification revolves around the cost of blowback to American citizens and interests, then such justification basically places infinite weight on any possible cost (blowback) to Americans, and, consequently, zero weight on any certain cost (blowback) to anyone else in the world.

A moral justification that relies on giving infinite weight to the interests of one group, to the exclusion of all others, is hardly a moral justification at all. Even more so if the justification is invariant to the probabilities involved, so that any risk becomes too much risk. Such justification is not just amoral: it's also highly irrational.

A Question

2007-12-09T01:32:00.000-08:00

Is it libertarian to think that governments ought to be able to prohibit the private, consensual activities of persons in their jurisdictions?

The obvious answer is: no.

Ok.

Is it libertarian to think that state governments ought to be able to prohibit the private, consensual activities of persons in their jurisdictions?

Why should the answer change if we're talking about the government of, say, Alabama?

It shouldn't. But Ron Paul's libertarian supporters seem to believe the answer does change if one is considering government at that level.

I hate agreeing with Chomsky

2007-12-06T16:18:00.000-08:00

Check here for an interview circling the 'net with Noam Chomsky in which he discusses Ron Paul. The interview may not be authentic (I couldn't find an original link.) It sounds like Chomsky to me, though, so I'm going to assume it's genuine until someone proves otherwise.

Besides, it's more interesting to assume the words are Chomsky's, even if it disturbs me to find myself in some agreement with them.

First, I think Chomsky's wrong on the Constitution (he suggests the "individual" reading of the 2nd Amendment is a distortion, etc.) But I agree with him in at least two places.

1.
Chomsky responds to Ron Paul's vehement support for property rights and contracts.

Suppose someone facing starvation accepts a contract with General Electric that requires him to work 12 hours a day locked into a factory with no health-safety regulations, no security, no benefits, etc. And the person accepts it because the alternative is that his children will starve. Fortunately, that form of savagery was overcome by democratic politics long ago.

You know what? Chomsky has a point here: the relationship between individual liberty and private property is strictly contingent. A regime where private property and contracts are always respected will not necessarily be freer (for individuals) than a regime where they are sometimes not respected so that other social goals can be achieved.

As a matter of fact, I think protection of private property has lots of good effects, most of which government could not duplicate even if civil servants were as virtuously motivated as some left wing people seem to think they are. But it is simply not necessarily true that "more private property = more freedom." Taking a few bucks from a billionaire to provide education for poor children enhances the autonomy of those children and limits the freedom of the billionaire only a little.

(Here, some may think I've moved into a utilitarianism of rights. Not so. Or, at least, not with respect to most rights. Property rights are not like most rights; "they can be infringed without being abridged.")

2.
Chomsky also responds to Ron Paul's "non-interventionist" foreign policy.

He is proposing a form of ultranationalism, in which we are concerned solely with our preserving our own wealth and extraordinary advantages, getting out of the UN, rejecting any international prosecution of US criminals (for aggressive war, for example), etc. Apart from being next to meaningless, the idea is morally unacceptable, in my view.

I think I agree with Chomsky here, too. A principled policy of absolute non-interventionism is actually a morally dubious idea, as much as when it is applied to big groups of individuals (states) as it is to the individuals themselves. Consider the individualist version of a policy of non-intervention: I won't spend a jot of my money or my time to help you, no matter what happens to you. It's a complete denial of any idea of common moral community.

Libertarians I know tend to think that all our moral obligations to others are strictly reciprocal: I don't have to do anything for you unless I've made a promise, voluntarily accepted a benefit, etc. This is an impoverished -- and, I think, ultimately implausible -- view of what we owe to others.

3.
What does all of the above mean for politics? I don't know that much about Chomsky's political views, but if he is like most on the left he probably hasn't acknowledged the limits public choice economics places on political policy. Thus, even if I think we do have some kind of ground-level obligation to help those in need, I tend to think that it would be a moral disaster for governments to try to enforce that obligation.

When governments involved, things tend to get screwed up in predictable ways. A government that took it on itself to try to enforce the kind of general obligation I have in mind would quickly wind up using its power for all kinds of immoral (or at least amoral) goals and policies.

Indeed: the more general our obligations to others are, the less involved government should be with forcing us to uphold those obligations. But this doesn't mean government should never do anything at all, especially when the government is not going to go away just because some of us want it to do so.

We should use the government, for whatever it is worth.