More on "moral rent-seeking"

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

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

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

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

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

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

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

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

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

Good lord, that's a good smackdown

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

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

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

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

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

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

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

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

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

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

Sandefur gives the perfect reply:

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

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

That would be very, very silly.

Take that, Egnor!

Rent-Seeking and the Culture War

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why "male privilege" probably doesn't matter

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

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

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

More generally, privilege is:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mutatis mutandis for women, of course.

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

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

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

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

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

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

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

So-cons and libertarians: the inalterable divide

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

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

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

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

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

Or:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mark Steyn on polygamy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

McCarthy and Franck on same-sex marriage

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

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

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

I wholeheartedly agree with that!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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