Thursday, August 28, 2008

Unintended Consequences, Intent, and Philosophy

In the context of discussing the causes and effects of income inequality, Will Wilkinson has a post up (which Megan McArdle picked up in turn) regarding the willingness of partisans and, really, most people to claim or imply that the unintended consequences of an opponent's policy preference are in fact the primary goals of that opponent.

Wilkinson writes:

I feel like there is an unarticulated doing/allowing issue floating around in the background in this debate. Say the U.S. Congress cuts top tax rates. Is this politics causing higher inequality? Or is this evidence of relative indifference about allowing higher inequality? The left has the tendency to characterize every policy that might allow income inequality to rise as one intended specifically to have this result. This is a lot like the right’s characterizing, say, workplace safety regulation as a specific attempt to stymie the growth of small business. In each case, those opposed to a policy see its side-effects as more salient than the primary effects intended by those who favor it. Imputations of bad faith — “you’re really after the side-effect and your stated intention is garnish for malice” — are never far behind.

Wilkinson is of course 100% correct about this, and this is something that can be observed in just about any political debate these days (and, perhaps, since the beginning of time).

In the context of discussion of income inequality, there is a tendency amongst some of those on the "Right" of the economic policy spectrum to view income inequality as a healthy sign of a level playing field demonstrating the existence of a strong meritocracy. Meanwhile, there is a tendency on the "Left" of the economic policy spectrum to view income inequality as proof of the opposite - far from demonstrating a meritocracy, significant (and growing) income inequality is proof of a self-perpetuating cycle in which those who are provided with greater opportunities due to their parents' economic well-being succeed and those who are unfortunate enough to be born in poor areas do not participate in economic growth. Thus, the Left will perceive policies that will inevitably have the effect of allowing the already-successful to retain more of their wealth as being intended to further entrench this self-perpetuating cycle. The Right on the other hand will perceive policies that will inevitably interfere with the operation of business as being intended to undermine the meritocracy.

But isn't there a third way of looking at this, though (and one which I suspect is probably closer to the truth)? Specifically, can't income inequality be, at the same time, both a sign of a healthy meritocracy and a sign of a self-perpetuating cycle? In that case, the result is that the "playing field" is level enough for many people to have social mobility, but not for other groups of people. That then raises the issue of how one maintains the social mobility for the former group while still seeking to obtain it for the latter group. I would argue that the answer to this lies in the idea that the factors that would make the playing field "level" are different for each group.

I am willing to concede that, in some/many circumstances, wealth redistribution may be what is required to give someone a realistic opportunity of participating in the "meritocracy." However, in other cases, wealth redistribution may actually reduce one's opportunity of participating in the "meritocracy" because of the various disincentives it provides (i.e., it can and at least in some - though by no means all, and probably not even most - cases does foster laziness amongst recipients while disincentivizing work beyond a certain amount by potential upper bracket-earners).

How one would go about solving this dilemma is probably far beyond any human's capability. Unfortunately, politicians and ideologues on all sides seem to think they have the answer. Some conservatives and libertarians, for instance, often believe that the answer lies in part in school choice because they figure that equal access to education is the ultimate leveler of the playing field and that school choice would provide such equal access. Liberals/Progressives on the other hand often tend to believe that the answer lies in providing stronger safety nets such as welfare benefits, minimum wages, etc.

The problem is that any of these proposals is, by necessity, a one-size-fits-all approach that will, as is the case with any policy, have unintended consequences as a result. So although each approach will almost certainly benefit some unknown number of deserving individuals, it will also almost certainly hurt an unknown number of others who do not deserve that hurt*. Moreover, because of the complexity of the economy, there is both no way of knowing whether any of these approaches will do more good than harm and no way of definitively proving whether any approach actually succeeded once implemented.

Ultimately, whether you think a particular policy is likely to have net positive/negative effects is probably entirely a function of one's political philosophy since there is no real way to demonstrate these effects conclusively. Personally, I think this is a particularly strong argument for libertarianism since I think that, without any real proof of whether a policy will be a net good or a net bad, one should err on the side of liberty and freedom. BUT, I can also see how this could be a particularly strong argument for Burkean conservatism (one should err on the side of tradition and existing norms which are the result of millenia of accumulated knowledge) and for modern Progressivism (one should err on the side of change when large numbers of people are hurting under the existing system).

*Politicians and policy advocates will almost always claim that the number of those benefited is, in fact, known and is equal to the number of people who are expected to receive the outlays of the policy. They will also imply that the policy will have no unintended negative consequences. This is poppycock, since, as I said, these policies are one-size-fits-all approaches to problems that have myriad causes (and in some cases may not even be problems at all).

(cross-posted as a comment at Megan McArdle's post)

Tuesday, August 26, 2008

Defending Originalism (Long)

Daniel Koffler, a blogger at The Art of the Possible approvingly links to a Richard Posner article at The New Republic critical of decision in the landmark Second Amendment case District of Columbia v Heller. As Koffler has also criticized originalism (also here), this presents a good opportunity to provide rebuttal to both of their positions. Please note that when I use the term "originalism", I will refer to "original meaning originalism" (interpreting the text based on the meanings as understood at the time of ratification). Any other "originalism", like "original intent" originalism, will be referred to by name.

I will not comment on Posner's article, as Ed Whelan cover much of the same ground I would (save for one major disagreement at the every end of the second point he makes...). I had anticipated to comment, but as I read Koffler's criticisms of originalism, I found that some of the criticisms I had reserved for Posner would apply here as well. In addition, as Koffler attempted a lengthy criticism on originalism, I thought it would present an opportunity to rebut his arguments.

Koffler, by using a construct of "Scalia Original Meaning", suggests that Scalia makes it up as he goes and engages in pseudo-sophistication under the guise of originalism while employing the same methods of interpretation used by living constitutionalists. Furthermore, things get a little more complicated because while some of the criticisms of Scalia or judges in general being ideologically biased have merit (Randy Barnett has argued that Scalia is not an originalist at all), it does not necessarily follow that Heller can not be justified on originalist grounds. Part of what I will need to do is, as best I can, separate the claims that can be made against Scalia's jurisprudence and focus only on originalism qua originalism.

Koffler's critique of originalism is very long and covers a lot of ground, but I will attempt to focus on three main criticisms: i) interpreting the Constitution according to its original meaning requires, in practice, the same leaps of faith employed by non-originalists to interpret text and meaning; ii) even if the original meaning of the Second Amendment were known, the right to own a handgun for self defense cannot be reconciled to the text; and iii) (2 parts) originalism is doomed to failure if we recognize that the text of the Ninth Amendment protects unenumerated rights and that Heller is radically damaging to libertarian readings of the Constitution.

Koffler attempts to decipher Scalia's interpretive method and argues that what Scalia is really doing is getting whatever meaning he wants out of the text. I disagree. The relevant portion of Scalia's opinion that comes under scrutiny is the following:

In interpreting this text, we are guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’ United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

From this, Koffler proposes a three-pronged approach to Scalia's interpretive method:

First, cast backwards to the temporal setting in which the expression was introduced into the law...but go no further than back than that. Second, determine the context of usage based on what, in present-day language, appears by a principle of parsimony to be the most salient context without consideration of any historical factors that might have shifted the saliences of alternate contexts. Third, ...keep up the exclusion of all historical or other information extraneous to the selected context and determine the ordinary and/or normal meaning at the time of the adoption of the expression into law in the context selected as salient by present-day semantic considerations, by evaluating all usage in the context selected in the second step and deleting all technical or otherwise specialized usages...

In my opinion, the only part of Koffler's three-part analysis that squarely reconciles to the Scalia quote above is Part 1 because Part 1 is the only part that deals with constitutional interpretation (i.e. determining the linguistic meaning of the text). What Part 2 and Part 3 represent, collectively, is constitutional construction, or the application of vague or indeterminate text in order to create legal rules pursuant to the meaning of that document, and nothing in Scalia's quote addresses construction. The distinction between interpretation and construction is crucial and is a key component of originalism. Randy Barnett, a noted originalist and author of Restoring the Lost Constituiton, in a recent post at The Volokh Conspiracy, writes (my emphasis added):

In my view, where the (original) meaning of the Constitution is vague, we should select constructions that are consistent with that meaning and that enhance whatever it is that makes a constitution legitimate. Because people operate with different implicit conceptions of legitimacy (e.g. consent, justice, democracy, etc.) there is marked disagreement about how to do construction. Of utmost importance is that, depending on their theory of legitimacy, originalists who are committed to respecting the original public meaning of the Constitution can still differ on how they think construction should be done and, even if they agree about this, they may differ in the wisdom of different constructions. But when these disagreements arise, it is very useful to know what it is we are disagreeing about: not the meaning of the Constitution, but how to put that meaning into effect.

Koffler, in describing Step 2, is not describing interpretation. Rather, he is describing constitutional construction, and he is doing so in a way that is wholly incompatible with constitutional construction in an orignalism framework.

Step 2 has no business whatsoever being included in a procedure for determining the original meaning of an expression. By applying contemporary considerations of the relative saliences of candidate contexts and having selected one and excluding all others from further work in the application of the semantic theory, one is applying a filter to the expression under consideration that cuts its ties to its original context. The derived context step 2 establishes is in fact roughly the way we would project an expression from an earlier period into the present and then try to make an inductive guess about its meaning — in other words, if we see the law as a body of doctrines that evolve along with language and with history, such that what is important about a legal expression is what it most plausibly means under contemporary lights, then step 2 is the way to go.

I am in complete agreement with his first sentence, but the rest of the paragraph is troublesome. Here, I believe he is not only confusing interpretation with construction, but also suggesting that going outside the text at all in any circumstances amounts to living constitutionalism. Yes, an originalist would apply the relevant facts and circumstances to a given case or controversy if text is vague and/or indeterminate. Yes, there is no one agreed-upon method that this sort of evaluation could be carried out which, admittedly, may lead to a possibility of conflicting conclusions (although I do not believe this to be the case for Heller). However, 1) original "context" is not important because it is "original meaning" is (to me, others may disagree) legitimate and therefore binding; 2) we are not "projecting an expression" in order to "make an inductive guess" about its meaning. We can ascertain the meaning of "commerce" or "necessary and proper" or "the right to bear arms". What we are doing is creating a rule of construction that respects the meaning or the underlying text and enhances legitimacy; and 3) although constitutional rules may be applied to situations that the Framers themselves never anticipated, it does not follow that originalists agree that the meaning of the text has somehow changed.

Koffler argues that, even if we did draw out the original meaning of the Second Amendment (although this has been determined), it would not apply to handguns:

If Scalia were indeed drawing out the original meanings of Constitutional provisions, incidentally, then he would conclude that the “arms” to which the 2nd Amendment refers would include in its domain things like muskets, old-timey artillery, sabers, etc., and definitely not Glocks. If the interpretation were loosened of literal constraints, it would open up to include military grade weapons along with handguns. The clear context in which the right to bear arms is embedded in the Constitution is as a check on tyranny — i.e., so that citizens could arm themselves and overthrow the government — and as armaments in a militia. In each case, the context ensures that military-grade weapons will be among those to which citizens have a right. If the scope of “arms” is broadened to include contemporary arms and not just the weapons of the colonial period, then the true spirit of Scalian originalism would find a Constitutional right to own AK-47s, rockets, tanks, F-14s, etc. Scalia of course rejects such an interpretation.

Nowhere in Koffler's construction of the word "arms" does he mention "weapons" or "pistols", either of which could have easily been constructed from the word "arms" and would certainly apply to Glocks. To do so would not be living constitutionalism, it would be a simple construction that not only ties to the original meaning of the word arms but also is a "legitimacy-enhancing" feature because of the construction, by permitting handgun ownership for self defense, does not infringe upon one's own natural right to self defense, a common law right predating the Constitution. The "literal constraints" are nothing more than vaguaries and limitations of a text that was written 200 years ago.

Suggesting that originalism would suggest that we have to allow a constitutional right to own a F-14, tanks, rockets, etc. implies a belief that rights are absolute and beyond the reach of the legislators, ignoring "appropriate" state police powers that regulate rightful conduct and prohibit wrongful conduct. Given the public health/safety concerns and the negative externalities associated with high explosives, bans on possessing those types of weapons are not unreasonable. There are probably a couple more reasons as well, but this brief explanation ought to suffice. I think originalist constitutional construction could lead us to these conclusions as well although I will not provide an example.

I am thrilled to see Koffler spend as much time as he does discussing the Ninth Amendment. I am pleased that he recognizes the importance of unenumerated rights as individual rights (some Ninth Amendment scholarship focuses on collective or majoritarian rights) and that arguments that rights do not exist on the basis that they are unenumerated is a non-starter (he uses privacy as his example). Such commentary is welcome and would make a great many libertarians pleased, even moreso if the discussion entailed the Privileges of Immunities Clause of the 14th Amendment.

That said, he seems to disparage originalism (no pun intended) on Ninth Amendment grounds:

So-called originalists loathe the concept because it creates a platform for reading elements into the Constitution that could have had no place in its original composition (like the “umbral” right, if you will, to use birth control, which follows from the penumbral right to privacy). But the problem for the originalist position — and the reason, I argue, it is ultimately untenable — is that the 9th Amendment is in the Constitution, and can’t just be read out of it without vitiating originalism.

Understandably, if one were to take Robert Bork's "inkblot" comment and associate it with originalism (his was in the context, if I recall, of original intent originalism), then it could lead someone to suggest what he says to be the case. However, originalism, especially understood by classical liberals and libertarians, makes the best case for protecting unenumerated rights both under the Ninth Amendment and the Privileges or Immunities Clause of the 14th Amendment. Randy Barnett goes into great length to argue this case in Restoring the Lost Constitution. If one does not have the text on hand, there are journal articles available at SSRN that addresss both of these parts of the Constituiton (9th here and 14th here).

If he is serious about the Ninth Amendment (and therefore serious about the Privileges or Immunities Clause of the 14th Amendment), then he should reconsider his argument that Heller is "radically damaging" to libertarian readings of the Constituiton and apply that argument to Griswold v Connecticut, which, in my view, is a legal abomination. Heller is a Second Amendment case where the majority protected an individual liberty against an overly intrusive government. That is very libertarian and refreshing to see someone finally recognize that the Second Amendment really does mean what it says it means. The Ninth Amendment was virtually read out of the Constitution decades ago (and was not the basis for the majority opinion in Griswold) so there is nothing Heller could have done that had already been done.

Why Griswold? Prior to 1937, the Court, under the Due Process Clause of the Fourteenth Amendment, did protect unenumerated rights, mainly economic liberties under what was known as "freedom of contract". Basically, the Court viewed that the terms in which contracts were to be established was a private matter. Therefore, maximum hours laws, minimum wage laws, laws preventing yellow dog contracts, etc. were struck down by the Supreme Court. Admittedly, these were (are) controversial cases (i.e. Lochner v New York) that draw ire from today's liberals and conservatives. There were also two key privacy-related cases involving education that were decided under the Due Process Clause of the 14th Amendment (Meyer v Nebraska and Pierce v Society of Sisters).

This changed dramatically in 1937 when the Supreme Court virtually repudiated this jurisprudence in West Coast Hotel v Parrish (upholding a minimum wage law) and further signifying the death knell in U.S. v Carolene Products in 1938 where, in a footnote (Footnote Four), the two-tiered system of rights we have today was basically established. In short, in practice, any potential violation of an enumerated right gets heightened scrutiny and unenumerated rights are left to the whims of democratic majorities. This is, obviously, very unlibertarian, but more importantly, it ignores significant portions of the text (like the Ninth Amendment).

Justice Douglas' Griswold opinion does two things: 1) it specifically repudiates the pre-1937 Due Process jurisprudence that can protect those rights not enumerated in the Constitution by employing a presumption of liberty and putting the burden on government to justify its action (under modern jurisprudence, the burden rests on the individual). Meyer v Nebraska would be a great precedent for Griswold; and 2) his "penumbras" are an attempt to suggest privacy as an enumerated right by suggesting that privacy has substantive protections in several of the enumerated rights in the Bill of Rights. Justice Goldberg's concurring opinion mentions the Ninth Amendment (and recognizes the protection of unenumerated rights) but the majority opinion does not. The fact that those "penumbras" may exist in the Ninth Amendment, as Koffler suggests, plays no role here because the majority opinion does not cite it.

Both Koffler and I agree with the substantive outcomes of both Heller and Griswold but take opposite positions on whether or not each case was well-reasoned. Yet, despite our disagreements, I am pleased by Koffler's attention to the Ninth Amendment and the protection of unenumerated liberties. That said, I am uncertain as to how far Koffler would be willing to take his argument. He speaks of being "plausible" under the Ninth Amendment without defining what "plausible" is (would he, for example, argue the federal minimum wage law unconstitutional under freedom of contract? Would he repudiate West Coast Hotel v Parrish?). Furthermore, how does view on the Ninth Amendment reconcile with the rest of the text (specifically Article I, Section VIII and the Tenth Amendment)?

I make these points largely in part because I do not know or presume to know Koffler's positions on these matters, but it also flows from my general skepticism towards advocates of "privacy rights" (mainly on the Left), who hold a very limited (if not perverse) view of what privacy really is. If he's interested, he is more than welcome to share them.

Monday, August 25, 2008

All Factions Serve Only the Faction's Purpose

Rather than point to George Will's column from yesterday criticizing Sen. Obama's economic rhetoric and writing "what he wrote", instead, a serious quibble. Will writes:

But back to requiring this or that quota of energy from renewable sources. What will that involve? For conservatives, seeing is believing; for liberals, believing is seeing. Obama seems to believe that if a particular outcome is desirable, one can see how to require it. But how does that work? Details to follow, sometime after noon Jan. 20, 2009.

I think I'm supposed to take a less unfavorable opinion of conservatives from this statement. I don't because it need only be reworked to be an equally devastating dismissal of conservative politicians. Like this:

... Conservative politicians seem to believe that if a particular outcome can be required, one can see how to achieve it. But how does that work? Details to follow, sometime after noon Jan. 20, 2009.

I could slip McCain's name into that for a specific example. Maybe let's put Bush in there. Whoever, about whatever. Let's include Joe Biden, now that he's politician most recently thrust into the national equation after being named the Democratic nominee for VP. Or circle back and discuss Obama. It does not matter.

The proper diagnosis is the flaw in politicians. We should probably reason our way to what is fundamental. That flaw is more pronounced in those who believe politicians and permit themselves to be pandered to by our great anti-statesmen. Having resolve is enough. A topic is just something to be tacked on to, and achieved through, resolve. That mindset thinks society demonstrates its resolve through what it requires. The sickness is the same, regardless of the symptom.

I doubt Sen. Obama believes any of his rhetoric about what is achievable for energy goals in the timeframes George Will critiques. I don't doubt that Obama doesn't care. The power to control and push is more important than the destination. It is the destination of the rhetoric.

Conservatives (and liberals) love declaring war on drugs. They believe that if they require compliance to abstinence, then poof, the problem disappears. Results do not matter. Years of prohibition of drugs and alcohol aren't lessons that the approach is ignorant, only that we haven't tried the correct requirement yet. Results related to the claimed objective never matter to politicians, regardless of the topic. Power is the purpose for all politicians.

When dealing with politicians, liberal and conservative are just adjectives the wise use to identify which brand of stupid is loose.

Post Script: The sentiment in this entry's title is probably obvious to anyone reading. I couldn't think of anything better (i.e. less literal). But since someone like George Will seems to have forgotten the point, maybe that's not so bad.

Wednesday, August 20, 2008

Don't Tread on Me

Via A Stitch in Haste

James Hetfield, the lead singer of Metallica determined that there was a problem with vandals on his private property and decides to erect a fence to keep people off of it. Sounds pretty straightforward to me (although not necessarily to MSNBC given the obvious tilt of the headline).

Of course, when the definition of "public use" involves the use of one's land by non-owners of that land, and the "public" thinks that they should have access to that land, things start to get a bit messy and needless controversy arises. I agree with Kip on all points, and for any defender of property rights, this is a no-brainer:

- The property is owned by James Hetfield. It is his and his alone to do with as he wishes so long as it doesn't violate the rights of others.

- It is his right, exclusively, to enter into an agreement that allows people access to his property on terms that he finds acceptable.

- If a municipality is unable to reach an agreement with Hetfield (or any other landowner) on terms regarding an easement (although libertarians would argue this is not a legitimate function of government), private individuals or associations of individuals can reach out to Hetfield and attempt to negotiate an easement at terms Hetfield would accept.

- If these measures fail, then access to the land is not granted.

This isn't the first time Hetfield has been in a situation where his stance towards protecting his own property has drawn criticism. I recall many upset Metallica fans circa 2000 when the band sued Napster.

Situations like this one remind me that the distinction between what is public and what is private is virtually non-existent. Worse, if we follow the tortured logic of the Supreme Court's abominable ruling in Kelo v New London, all a hack bureaucrat needs to do is argue "public use" as "public purpose" and argue a public benefit of keeping the hiking trail open to attempt to take the land via eminent domain. I am not arguing such an event would occur or it would be successful in the event that it would occur. However, the fact Kip or I would even think about eminent domain in this situation speaks volumes about the utter disregard many people have for private property rights.

Inspiration for the post title here.

So bad that a Malkin Award may not be sufficient?

I think so...

Via Andrew Sullivan:

"Regardless of law, marriage has only one definition, and any government that attempts to change it is my mortal enemy. I will act to destroy that government and bring it down, so it can be replaced with a government that will respect and support marriage, and help me raise my children in a society where they will expect to marry in their turn. Biological imperatives trump laws. American government cannot fight against marriage and hope to endure. If the Constitution is defined in such a way as to destroy the privileged position of marriage, it is that insane Constitution, not marriage, that will die." - Orson Scott Card

I find it so comforting that we have people among us who show so much respect for a government that would respect the rights of others by simply leaving them alone that they would want to destroy that government and replace it with the sort of society where he can impose his will on others. Using the word "insane" to describe a Constitution that would protect such rights only reinforces why Madison was concerned about factions. That "insane" Constitution keeps people like Card from using "democratic process" (i.e. unbridled majoritarianism) from violating the rights of others. I'm quite thankful for that, although there is much work to be done.

As a side note, his attempt to elevate marriage over property rights, which he does in his editorial (which I will not link from this blog) is absurd (along with the rest of the piece). Others can have fun using it as a punching bag. At this rate, I may as well be taking lessons on civil liberties from Michelle Malkin.

I don't know if the Malkin Award is appropriate here*. Maybe Andrew should create an Orwell Award for tripe of this sort. If anyone has a better idea, I'm all ears.

Putting lipstick on a pig?

Discussing libertarian paternalism, Cass Sunstein and Richard Thaler, in an opinion piece in the Financial Times, write:

In this light, it is not surprising that policy teams for Barack Obama, the US Democratic presidential candidate, and David Cameron, the Conservative party leader, have shown an interest in nudge-like solutions to social problems. In dealing with the credit crisis in the US, Mr Obama favours a policy of disclosure and transparency. His mortgage policy is designed not to preclude choices, but to ensure that consumers have a better sense of what they are getting. In dealing with environmental problems and crime, Mr Cameron seeks to enlist the power of social norms, pricking people's consciences to inspire them to do better. Ideas of this kind suggest the development of an approach we call "libertarian paternalism", by which governments try to move people in good directions without imposing penalties, mandates or bans.

"Libertarian paternalism" has nothing to do with libertarianism and everything to do with paternalism. Speaking of "friendly nudges" where mandates, penalties or bans are not imposed, I think a mortgage policy makes a great example as to why this notion is absurd. Let us assume a policy that, as the authors put it, ensure that the consumers knows what he or she is getting into. Like any regulatory scheme, such a program would require (mandate) lenders disclose certain information to borrowers, require lenders maintain compliance with this and will directly penalize violators via fines. I do not see how it would work any other way. How else is the law enforced? What is also going in is that 1) the policy would impose a cost to lenders in terms of increased compliance costs, and 2) the policy would imposes additional costs to taxpayers with respect to the cost to enforce the new policy. How is forcing everyone, through law, to come along for the ride libertarian? Sunstein and Thaler may want to read Frederic Bastiat.

Furthermore, the so-called libertarian paternalists claim that they aim for policy goals that seek to promote the general welfare without eliminating the freedom of choice. They may claim, as Sunstein and Thaler do, that Obama's mortgage policy is designed not to preclude choices to consumers but it would very likely, as I speculated above, force lenders into regulatory structures that they themselves would rather avoid when given a choice. Shouldn't individuals who are pursuing their own entreprenurial interests in a way that violates the right of no one be allowed to do so as he or she sees fit? Wouldn't the market-friendly solution to a lender that refuses to disclose some of the information a consumer wishes to achieve is for the consumer to do business with a lender who does?

Unless there is something I am missing (I have not read Sunstein and Thaler's paper), libertarian paternalsim seems nothing more than a dressed-up form of liberalism that attempts to address the issues important to libertarians. In other words, they've put lipstick on a pig.

Saturday, August 16, 2008

I'm sure I'm on the No Fly List now.

The original version of this entry is posted at Rolling Doughnut. I think it's relevant here, too. I've trimmed out the meta references.


I flew to Buffalo this morning. Everything was fine until I reached the security checkpoint at Dulles. A TSA employee approached me with a strange device strapped to his arm. Allow me to roughly quote our conversation:

TSA: We're testing a new device that scans for liquid explosives. Do you mind if I scan your bag? It will only take about 20 seconds.

Me: Do I have a choice? Can I say no?

TSA: Yes.

Me: Then I'm saying no.

First things first. I worded my question with the same careful consideration TSA - all law enforcement, really - used to craft theirs. If they could search my bag just because, they would've demanded rather than asked. I've watched enough episodes of Cops to be wise to the game. Anyway, I already knew the answer to my question. But initially playing dumb makes sense because authority has a tendency to get mean after realizing it's been out-smarted. Also, it's more fun.

After I said "no", the TSA employee walked away. I watched as he returned to the security desk rather than moving on to people behind me and began a conversation I could not hear. I knew what it was, though, because our national security-at-all-costs mindset is so predictable. I also saw what happened in front of me. I reached the front of the line and handed my boarding pass and ID to the next TSA employee. He eyed me a moment too long, then looked at my ID. He carried this on for several cycles, apparently trying to stare me into submission. Another TSA employee had also stepped in front of the line and held everything up. Crisis management with manufactured crisis.

The TSA employee with my boarding pass and ID handed them back. I stepped forward and another TSA employee, flanked by two more employees, motioned me aside from the other passengers and away from the metal detectors. The two extraneous individuals stood behind her, one looking over each shoulder. Our conversation:

TSA 1: Sir, is there a reason you refused the scan of your bags when we asked?

Me: Yes. I asked if I had a choice. He said yes. So I said no. I don't see how that gives you a reason to pull me aside now.

TSA 2: You do understand why we do this?

Me: I have rights. I'm exercising them. Are we done?

TSA 1: Yes.

I proceeded through security with no more trouble, which was a nice surprise. Still, the TSA's policy approach to security is clear. Submit. Don't question. Stand up for your rights, or even mere logic, and we will make your life hell, even if it's only in this inconvenience. You don't want another 9/11, do you? But who feels better knowing that the full attention of at least seven TSA employees focused on one man exercising his rights? That's nothing more than security theater.

Update: I just opened my checked bag. Everything had been searched thoroughly and haphazardly, or perhaps maliciously. My toiletries bag was unzipped, a pocket in my suitcase was unzipped, and the car charger case was unzipped. All three were zipped when I finished packing my suitcase this morning. And my clothes were stuffed back in.

Thursday, August 14, 2008

Of Searches and Seizures

Via Instapundit and, oddly enough, TalkLeft comes this story about the increasingly common use of GPS devices to track criminal suspects without a warrant. According to the story, police are in some (unknown and super secret) way attaching GPS devices to vehicles of persons suspected of crimes. Courts have regularly upheld the use of these devices even when no warrant is obtained for their use under the theory that one's actions while driving on a public street are not entitled to a reasonable expectation of privacy.

According to the article, and verified by the arguments made at TalkLeft, it would seem that the primary argument being made by privacy advocates and civil libertarians is that the use of GPS systems and the storage of data collected therefrom is far in excess of any information that could be collected simply by having a police officer tail the suspect. Civil libertarians note that GPS devices permit tracking even when the vehicle is entirely on private property where there is no dispute that a reasonable expectation of privacy exists.

Unfortunately, I think the civil libertarians are barking up the wrong tree on this one. To be sure, the concept of the creeping surveillance state is more than a little worrisome and is generally quite un-libertarian, but constitutionally (or at least under now longstanding constitutional precedent) I think the State is on relatively firm ground insofar as it argues that there is no reasonable expectation of privacy on public streets.

But that doesn't mean that this is the only argument against the use of these devices. As Glenn Reynolds notes, the act of placing the tracking device on the vehicle constitutes the tort of trespass to chattels, for which a private citizen would be liable to another private citizen. Unfortunately, simply permitting law enforcement to do things that would be illegal in any other context and holding them to a lower standard of behavior is pretty much par for the course these days.

Still, I think there is an argument to be made that the use of these GPS devices without a warrant constitutes a 4th Amendment violation - just not of the sort suggested by the folks at TalkLeft. The 4th Amendment does not just include a prohibition on warrantless unreasonable searches (generally interpreted to include invasions of privacy in certain circumstances), but also on unreasonable "seizures." Naturally, when we think of a "seizure," the first thing that comes to mind is a situation where the government quite literally uses the force of law to deprive a property owner of ownership. But that's not the full definition of a "seizure," which is as far as I can tell consistently defined as "the taking possession of person or property by legal process." And what, pray tell, is the legal meaning of the word "possession"? "The having, holding, or detention of property in one's power or command; actual seizin or occupancy; ownership, whether rightful or wrongful." In almost any respect, the intentional attaching of an item to another's property without that individual's permission is an act of ownership. Moreover, if the placement of the GPS devices is, in fact, a trespass to chattels (unfortunately not a tort I have much experience with), then it's worth noting that the tort of trespass to chattels is defined to require the "dispossession" of a chattel (aka, physical property other than real estate).

So, assuming this would be a trespass to chattels, the question becomes "Can the government 'dispossess' an individual of that individual's property without a warrant while still complying with the Fourth Amendment's prohibition against unreasonable seizures?"

I'll cop to having done barely any research on this issue, which is outside the strongest areas of my legal knowledge, so if my theory on this turns out to be more or less cockamamie or has been rejected by the SCOTUS already, please let me know.

Wednesday, August 13, 2008

College: A Liberaltarian Take

(via Memeorandum)

If you ask me, I will deny to my grave that I am a "left-libertarian." But that doesn't mean that I think modern liberalism and libertarianism are fully incompatible as prospective coalition partners, as I've pointed out far too many times.

In any event, Charles Murray (of The Bell Curve fame) has a piece today that argues that, "For Most People, College Is A Waste of Time." Murray opens his column thusly:

Imagine that America had no system of post-secondary education, and you were a member of a task force assigned to create one from scratch. One of your colleagues submits this proposal:

"First, we will set up a single goal to represent educational success, which will take four years to achieve no matter what is being taught. We will attach an economic reward to it that seldom has anything to do with what has been learned. We will urge large numbers of people who do not possess adequate ability to try to achieve the goal, wait until they have spent a lot of time and money, and then deny it to them. We will stigmatize everyone who doesn't meet the goal. We will call the goal a "BA.""

You would conclude that your colleague was cruel, not to say insane. But that's the system we have in place."

This gets at a point that I've long tried to make - our current assumption that college is a necessity is an assumption that not only ignores the irrelevance of college to most careers, but also generates enormous entry barriers to those careers for low-income people. Unfortunately, Murray then proposes a solution that is as bad or worse than the problem: certification exams in just about every field, aka, licensing. (Rather than reading me explain all that is wrong with this proposal, just pretend like the standard libertarian diatribe against licensing has been inserted here). But ignoring for the moment Murray's problematic solution, the basic point about the value of a college education (or lack thereof) is one that ought to accord beautifully with standard liberal critiques of capitalism and corporate America, as I point out below.

Unfortunately, in response to Murray's article, one of the folks at the Lefty blog Pandagon goes on a rant about how Murray's diagnosis and solution just reinforce the notion that he is a racist whose sole aim is to privatize education in order to prevent minorities from receiving government grants and loans for the education. Alas, in obsessing over attacking the caricature of Murray, the Pandagon blogger misses how the first part of Murray's argument, pertaining to the lack of value in a college education, accords shockingly well with modern liberal criticisms of corporate America, racism, and classism. As a result, I wrote:

"Murray gets the diagnosis right, but his proposal is far from an improvement. I'm not going to rehash all the problems with his proposal which have been made above, which amount to pointing out the inherent bias in any certification/licensing scheme (something which most libertarians find far worse than employer emphases on BA's).

But on the issue of the value of college, I think he is right in principle, though perhaps wrong in application. The problem is that for the vast majority of people college does little to enhance their career prospects and, for that matter, does little to teach them "how to think." Obviously, people who major or minor in the liberal arts (including the "hard" sciences) learn plenty about how to think critically, but four years of learning how to do so is overkill for most people (hence the reason most people don't
major in the liberal arts). Moreover, as I said, most people do not major or minor in the liberal arts but instead major in more "practical" things - majors that largely didn't exist until relatively recently. This is not good - at best people in these majors learn a percentage of what they would learn by gaining four years of experience in their preferred field. To the extent they do learn some of what they otherwise would have, they are paying a huge amount for it. And guess what? Their future employer gets to reap the benefits without having to pay a red cent, since there is virtually no
premium paid for the college-educated employee in these fields. Indeed, the employer actually gets to save the salary they would have paid the prospective employee to provide the employee with training - in this way, college in these fields amounts to employee-subsidized training. There's probably no better way to demonstrate this fact than to point out that [according to liberal critics] real wages have effectively stagnated during a period where the percentage of people with college degrees has exploded. Frankly, this makes sense as well - as an employer, would you really be willing to pay more money to someone fresh out of college, with no "real world" track record, than you would to someone with four to six years experience who is demonstrably reliable? Probably not.

Put another way - the current assumption that everyone should have a college degree is an assumption that (1) almost entirely benefits employers, who receive any benefits of the employee's education free of charge, and (2) places extreme financial burdens on future employees in pursuit of obtaining unnecessary qualifications. To be sure, there are still some professions where a liberal arts degree provides a significant benefit (law and research science, for example), and certainly a liberal arts education can be marginally useful in creating a more critical citizenry. But for the vast majority of people, the assumption that they need to incur tens of thousands of dollars in debt while forgoing any meaningful income for four to six years is an assumption that provides little benefit in exchange for tremendous cost.

As I indicated at the top of this post, a critique of our social emphasis on higher education is a critique that can closely agree with many standard liberal critiques of capitalism. To the extent that Progressives/modern liberals seek to defend the assumption that higher education is inherently a desirable thing, the effect of doing so is to defend a state in which employers (aka, "corporate America") receive benefits at no cost to them, but at great cost to the employee. Of course, many Progressives would respond by arguing that costs of higher education should be borne by expanding grant programs and the like. But all that does is shift the costs from the individual student to taxpayers as a whole - "corporate America" still gets its subsidy.

Tuesday, August 12, 2008

The Good Stuff

I've done a "linkfest" style post approximately, well, never. But a combination of an extremely busy few weeks at my paying job and some really, really good posts has left me with no choice but to finally throw out some quick hit links (not that there's anything wrong with that).


John Schwenkler notes the bizarre lack of self-awareness in The National Review's terming Russia's treatment of Georgia as a "war crime in itself."

As noted in my post downblog, the Newshoggers have been on the ball in trying to sort through all the propaganda (on all sides) in the Georgia-Russia battle. BJ Bjornson's post on the claimed end of combat operations is just the latest example, and at least indirectly destroys the notion that Russia is the new Nazi Germany (or, if you will, the new Russia, err, Soviet Union).

Sticking with the (inadvertent) Georgia theme, our friend Kip points out the giant elephant in the room exposed by the longstanding problems in South Ossetia (and, by implication, Abkhazia): the failure of the nation-state model. Kip hits on a particularly critical issue that I've been pondering for a long, long time: "I have no idea what model can, should or will replace Westphalian sovereignty in the mosaic regions of the world. But I do know, as a libertarian and as a member of an insular political minority myself, that whatever "new world order" emerges, it will have to be based, not on ethnicities, religions or languages, nor on rivers, mountains or latitudes. It must be based on legitimacy, built from within and not imposed from without. "

Switching topics (finally) but staying with Kip, we have further proof of John Yoo's complete lack of legal acumen. That this man is now teaching future laws sends shivers down my spine.

Via Jim Henley at Unqualified Offerings, Radley Balko asks readers which American wars were justified (in retrospect). For the most part, I'm with Jim; I tend to think the Revolution was justified, but only to the extent it was a grassroots rebellion against illegitimate authority . I think the Civil War was legitimate, but only because the basis for secession (protection of slavery, emphasis on states' rights over individual rights) was illegitimate - had the South had a legitimate fear of interference with individual rights, secession would have been justified and the ensuing war would not have been. I think the first Gulf War was justified as a matter of international law, and I also think that Bush I appropriately limited the war to liberating Kuwait's sovereignty rather than pursuing a full-scale invasion of Iraq. It's hard not to justify Afghanistan, even if I have serious concerns with the manner in which we have been involved.

What Matters Most...

I've long abandoned any pretense of supporting Obama. But that doesn't mean I still don't think he's a less-bad choice than McCain. As much as Obama has increasingly come to parrot the foreign policy establishment consensus that has held sway in Washington for, well, a really long time, Obama's consensus view is far less dangerous than the reflexive aggression characterized by the last eight years and, yes, Senator McCain. It is the rejection of this reflexive aggression, which adds trillions to the national debt, destroys American credibility and moral standing, and directly destroys untold thousands of lives both at home and abroad, that I view as the single most important issue this fall.

The events of the last week or so related to the conflict in Georgia/South Ossetia, and the responses of the candidates do a good job demonstrating this. To be sure, McCain is now receiving plaudits for immediately blaming Russia when hostilities began in earnest last Friday in a way that not even President Bush was willing to do. But Hilzoy points out why, exactly, those plaudits are entirely undeserved - the bottom line is that at the time McCain's statement was issued, the known facts made clear that both Russia and Georgia were at fault in their own way. Although the facts on the ground have changed and Russia is now clearly going far beyond any sense of a proportional response, this does not change the fact that McCain's statement was simply wrong at the time it was made to the extent that it laid all blame for the situation on Russia.

McCain's response reflects a simplistic world view in which those nations deemed inherently enemies of the US are reflexively blamed in toto for any conflicts, wars, or disagreements. Those deemed allies are reflexively held to be innocent - and not only innocent, but also bastions of liberal virtue and democracy.

Unfortunately, in the case of Georgia, the narrative of the bastion of democracy is far from the truth. This is not to praise the Russians or Putin or Medvedev - only to point out that neither set of players is particularly sympathetic or worth defending on a political level. Yet the knee-jerk reactions of "National Greatness" conservatives again pretends to defend liberal virtue and democracy by defending one group of authoritarians against another simply because the friendly authoritarians like the other authoritarians even less than we do.

And so we get the "National Greatness" crowd (which usually includes McCain) rattling sabers all over again, demanding that we "do something" to aid the Georgians in their fight against the Russians. And let us not forget the longstanding insistence of McCain and others that Georgia be admitted to NATO, no matter whether that would have obligated us to come completely and totally to Georgia's defense this week, as required in any chills me to think what we would have done in such a situation at a time when the US military is already fighting in two armed conflicts.*

The fact is that the simplistic view of good and evil advocated by so many on the political Right results in a situation where all foreign policy follows the dictum "the enemy of my enemy is my friend." While unintended consequences are inevitable in almost anything government does, a foreign policy based on this dictum is a recipe and guarantor for the worst kinds of unintended consequences. It results in needless provocation of enemies or potential enemies; it further destroys American moral standing by propping up autocracies that are barely distinguishable from the enemy autocracies over which we claim moral superiority; it entangles us in foreign adventures that only minimally implicate American interests, if at all; and it ensures the ever-upward increase in military spending (and thus the national debt).

More at memeorandum.

Also - a quick plug for the crew at Newshoggers, who have done an outstanding job trying to piece together the reality of the Russia-Georgia conflict. They may be slightly too anti-Georgian, but their takes are easily the most nuanced and intellectually honest that I've seen.

*This is not to say I'm against all alliances, or even NATO itself - quite the contrary, for reasons that I may try to explain in a future post. But it is difficult to imagine a worse candidate for inclusion in that alliance than Georgia.

Thursday, August 7, 2008

Should a libertarian vote for a populist?

I had a discussion recently with a friend in which we discussed the possibility of voting for Sen. Obama in the fall. I've been mulling over what he said, which boils down to this: the issue of judicial appointees is important enough that it may be worthwhile to vote against Sen. McCain for Sen. Obama in a state that is in play. If you're in California, for example, there's no reason to bother. Obama will win those electoral votes. Somewhere else, maybe a libertarian could justify the awful bargain.

Somewhere else likely includes Virginia. Over the last few weeks, I've been evaluating my "no way, under no circumstances" position on voting for Obama. Virginia is most definitely in play. Our local and state politics have traditionally been much more Democrat-oriented than our national politics, which is heavily Republican at the Senate and presidential level. (The House is a bit mixed, varying by region.) The local tendency is bleeding into our national tendency because of the large Democratic growth in Northern Virginia.

Then I read stories about Obama's economic pandering, as conveyed in this column by Ruth Marcus on Obama's populism. Among the many examples of egregiousness:

Yes, but what does Obama himself believe? "I think oil companies are amoral. They want to make as much money as they can for their shareholders, which is what corporations do," he says. "The difference is the nature of the kind of outsized profits they make that may have no relationship to their investments or their production. The fact, for example, [that] the shortage of refinery capacity could actually increase their profits so the less they invest the more they make indicates that you are not dealing with someone making widgets out there."

"Outsized profits." Nice, not-so-subtle adjective to describe an amoral, objective goal.

"No relationship to their investments or their production." So, Obama is a trained financial analyst who's spent years learning the oil business? And he's running for Financial Analyst of the United States?

"The less they invest the more they make." Doesn't this suggest that the optimal investment strategy is zero investment? Is that the strategy oil companies pursue?

"Not dealing with someone making widgets." Obama trusts the market. Except this one. It's different. (They always are.) The laws of economics somehow don't apply to it, so he must regulate it. He doesn't want to, but he must. For the people.

I think my friend's strategy is correct. Lose the battle to win the war. But this is a new data point. I see nothing here to convince me that I can vote for Sen. Obama. If his economics are so obviously terrible, why should anyone trust him to not be obviously terrible on judicial nominees, pandering to the politics of the moment rather than a long-standing principle? When we get closer to November, maybe I'll reconsider. Now? No. It's Bob Barr or a vote for myself.

All of this culminates in a continued disbelief that Sen. Obama can be considered good for libertarians. Either he sticks with his populist rhetoric and violates economic rights for four-to-eight years (or more) or he pushes for the policies many libertarians dream that he believes in. Even if the latter occurs, he merely proves that he's a lying politician. I'll stay cynical.

Tuesday, August 5, 2008

The Power of One

Radley Balko yesterday broke the news that the State of Mississippi is removing Steven Hayne from its list of approved medical examiners. Balko has been pursuing Hayne for quite some time, most famously in this magnificent Reason piece, and only Balko has any idea of what he has dedicated to bringing down Hayne's profiteering at the expense of the freedom of who-knows-how-many innocents. While others such as the Innocence Project have certainly done their share of yeoman's work leading to this tremendous (but only initial) victory, Balko perhaps deserves a huge amount of credit for putting this perversion of justice in the public eye. Certainly without his work, it is difficult to see how the local media in Mississippi would have fully pursued this story.

As hopeless as political participation may often seem for libertarians, Balko's work proves that there are ways to make the world a little bit more free that don't involve the ballot box.

Monday, August 4, 2008

That may be so. However...

Kip at A Stitch in Haste, pointing out the Left's penchant for moral authoritarianism, writes:

Does [Ezra] Klein have the intellectual horsepower, I wonder, to realize just how much like a certain other group of majoritarians his argument sounds? His reasoning is utterly indistinguishable from that of the most decrepit anti-gay bigots who seek to ban something a tad more substantive than a fast food restaurant. What a delicious sampling of the faux difference between liberals and conservatives: “power to impose our will on others” … versus “power to impose our will on others.”

This is plain as day to libertarians and there is nothing I disagree with here. Both groups, when their sensibilities are outraged, will seek remedies through government intervention if the opportunity exists to do so.

Unfortuneately, to Kip's question, I'm not sure if the Left will ever get the point, and I think it is more a function of indifference towards the similarity rather than not having the intellectual wherewithall to recognize it.

Anecdotally, when I have engaged in these sorts of discussions with liberals and point these things out, the response that I typically get is a defense of their views under fairness, equality and making things better off for people as a whole, a view they do not have about social conservatives. It seems to boil down to a "mine is better/we know what's best" mentally that dismisses the notion that other "inferior" groups could be similar to them, especially that they believe they are working to move society forward and others are trying to move society backward (it would explain the more juvenile attacks towards libertarians that come from the Left).

Not so anecdotally, one can read Paul Krugman's Conscience of a Liberal and observe much of what I wrote above.