The Fall (and Eventual Rise) of the Conservative Intellectual

(via Memeorandum)



For all the problems libertarians should and do have with David Brooks (who is as unlibertarian a conservative as they come), the fact is that he is a gifted writer who makes a sincere attempt at intellectual honesty capable of getting well beyond standard political talking points. His column yesterday is typical of that intellectual honesty and, I think, describes one of the GOP's central problems right now to a "T." It's tough to pick one quote that does the whole piece justice, but this quote fairly well sums up his point:

But over the past few decades, the Republican Party has driven away people who live in cities, in highly educated regions and on the coasts. This expulsion has had many causes. But the big one is this: Republican political tacticians decided to mobilize their coalition with a form of social class warfare. Democrats kept nominating coastal pointy-heads like Michael Dukakis so Republicans attacked coastal pointy-heads. Over the past 15 years, the same argument has been heard from a thousand politicians and a hundred television and talk-radio jocks. The nation is divided between the wholesome Joe Sixpacks in the heartland and the oversophisticated, overeducated, oversecularized denizens of the coasts. What had been a disdain for liberal intellectuals slipped into a disdain for the educated class as a whole.

As a result, says Brooks, the GOP has completely alienated the educated classes through a form of class warfare at the same time as its economic policy views have alienated large segments of the working class. In a thoughtful response that thoroughly supplements Brooks' piece, publius at ObsidianWings writes that the real problem that has pushed intellectuals away is the GOP's "nasty embrace of social views that [intellectuals] find stupid and repellent."



I think they're both right. But more importantly, I think they both put in perspective not only how the coalition of the Right is withering away, but also (perhaps inadvertently) provide some useful insight into how the coalition of the Right will be restructured in the aftermath of this election. What little intellectual infrastructure the GOP had was a combination of Burkean conservatives like Buckley or Kirk, libertarianish economists, and neoconservative intellectuals. Of course, coastal intellectuals don't translate into votes in the Southeast and Middle America - former Dem strongholds that didn't start moving to the GOP until the 60s. And so entered the rise of religious-based conservatism, which was - at least initially - relatively compatible with the GOP intellectual elite on the leading issues of the time. Of course, issues change, and eventually that compatibility began to crack, a topic on which I've written extensively before. Since the (inherently anti-intellectual) religious-based conservatism most easily translated into votes, it was only natural that appeals to it would become increasingly central to any electoral strategy. But as the GOP philosophy became less coherent, the party was forced to turn to something that would allow religious conservatives to ignore the incompatibility while still maintaining enough of their other positions to keep the other philosophical strains in the fold: fear (and yes, the Dems are no less willing to deploy fear as an electoral strategy when it suits their purposes - they just deploy it on different issues). The problem, however, was that there are a lot of unintended consequences when you deploy fear as an electoral strategy - most notably, as publius says, the religious conservatives (and really movement conservatives as a whole) became the brooms from the Sorcerer's Apprentice. The increasingly heated rhetoric coming from these stoked flames inevitably took on a hateful and anti-intellectual tone, causing conservatives of the more Burkean and neo-conservative variety, including Brooks himself, to become increasingly lukewarm in their support of the GOP. The more libertarian intellectuals have increasingly left the GOP coalition entirely.

However, that is not to say that GOP intellectualism is permanently dead, replaced by a purely theocratic vision of the world. Neo-conservatives and Burkeans have largely remained within the fold even as they have been less vocal in their partisanship. Their problem with the party, I suspect, is more a problem with tactics than philosophy - neo-conservatism as a philosophy plays particularly well with others, and Burkean conservatives largely agree with many of the prescriptions of the more theorcratically-inclined, if not their tactics and rhetoric. Instead, these intellectuals have begun to push for something akin to a new type of "movement conservatism" that more properly reflects the current makeup of the GOP coalition and can help the party's standing with the working class.

With libertarians leaving the party in droves, the remaining GOP opinion-makers are increasingly free to abandon free market rhetoric; put another way, they have become smaller and thus have to please fewer groups. The result? National Greatness Conservatism and so-called Sam's Club Republicans, two worldviews that are 1. intellectually honest; 2. capable of appealing to the GOP base; 3. capable of eventually bringing in groups not currently in the GOP coalition; 4. are currently quite compatible with each other; and 5. are completely incompatible with any version of libertarianism.

In many ways, the reason I was unsurprised by - and correctly predicted - the success of McCain and Huckabee in the primaries was that they each represented one of these (coherent) worldviews, allowing them to appear "authentic" and "sincere," traits that are required to get votes from thoughtful voters. Romney, who tried to represent each leg of the Coalition's so-called "stool," including libertarians, came across as insincere and robotic and, as a result, completely untrustworthy. But Romney was always going to garner a lot of support from the GOP "base" because his worldview was identical to theirs, defined not by a coherent philosophy but rather by the GOP's Frankenstein's Monster philosophy that was simply a bizarre mish-mosh of various strains of conservatism, libertarianism, and religion.*

So, if McCain actually does represent a coherent philosophy that is capable of both keeping the GOP coalition mostly intact and appealing to other groups, why is he getting beaten so badly by Obama? Several reasons: 1. The fundamentals in this election are really, really bad for any Republican; 2. Although he has largely succeeded in keeping movement conservatives in the fold, this has come at a price of having to sound an awful lot like Romney at times, not to mention doubling-down on fear tactics; 3. New political movements take time to gain steam, especially when they are taking the place of a movement that has fallen into disrepute; 4. He made a really bad choice on his running mate.

All of this is to say that I think Brooks' column (and publius' response) correctly diagnoses what has happened to the GOP. But it is also to say that the GOP's decline is not a death - it will rise again, with the once-dominant ideology of Russell Kirk and William F. Buckley subsumed within the ideology of not only Bill Kristol, but also people like Ross Douthat and Brooks himself. Despite publius' hopes, Sarah Palin - who represents the increasingly small segment of Romney-style movement conservatism - will not stay long in the GOP spotlight, at least not in a position of honor. Instead, I think we can expect a GOP in which Mike Huckabee becomes the party sage, delivering the final blow to the last vestiges of libertarianism in the GOP while at the same time stealing ever-more working class (and more importantly, populist-leaning) votes from the Dems. Naturally, this will also make the Dems increasingly less hostile to libertarianism as they trade their least libertarian supporters for libertarianish former Republicans.

*I have written before how adherence to such a "pu-pu platter" philosophy is the inevitable result of becoming overly loyal to a political party, whose policy positions are inherently the result of tradeoffs and logrolling amongst member coalition groups.

UPDATE: More on Brooks' column from Schwenkler, who thinks the current state of the party stems largely from a combination of bad ideas and bad candidates. For the reasons I lay out both above and in the comments to John's post, I respectfully disagree with this explanation without disagreeing that the GOP's main Presidential candidates were astoundingly bad. I just think it was no twist of fate that left the GOP with astoundingly bad candidates like Romney and Giuliani.

We Done All Lost Our Minds!

(Via memeorandum)

Last night, I mentioned to my wife that I thought nationalizatin of the banking industry, at least in the near term, was "highly unlikely." I was wrong. Very, very wrong.

What most disturbs me about this is that, after the last 8 years of warrantless wiretapping and various other abuses of government power through proxy corporations and private enterprises (Blackwater, anyone?), it is many liberals and progressives most loudly supportive of this move (notably, I do not at this moment believe Obama has expressed support for it, and I have noticed several prominent lefty bloggers who appear openly skeptical of it).

Liberals/Progressives ought to rethink their support of nationalizing the banking industry. If we are talking only short-term nationalization, then so be it, as long as there is a clear date by which government dumps its ownership (not that I support even short-term nationalization; I just don't think it would be completely disastrous). But if we are talking about something more long-term, then this creates a severe potential for true corporatism/fascism.

To demonstrate, I simply point out how the warrantless wiretapping program began - the administration approached the phone companies about instituting the program. Those who agreed to do so were rewarded; those who didn't, not so much. Now imagine the danger created when government decides which businesses do and do not get credit, which is so often a necessary requirement for business growth and survival, both large and small. Isn't it rather easy to imagine large corporations getting loans conditioned on their willingness to go along with the ruling administration's "Policy X"? Nationalization of the banking industry, in this sense, allows the ruling administration to do an end run around the Constitution by getting corporations and business to "voluntarily" do things on behalf of the government that the government would otherwise be prohibited from doing itself.

At a minimum, long term nationalization of the banking industry creates a situation that is rife for corruption. Take a look at some of what occurred in South (yes, South) Korea in the 1980s, where, IIRC, only one of the 30 largest corporations refused to play along with the ruling party's demands (for bribes, kickbacks, and IIRC compliance with party policy preferences). That one corporation suddenly found, amongst other things, that it was no longer able to obtain credit.

Perhaps a President Obama would be rather benevolent in his use of these powers afforded by nationalization, and maybe he would try to ensure that his underlings were in fact fair and neutral in making determinations on the issuance of credit. Problem is that: 1. there is no guarantee he will win, 2. we have no idea who will be in power 4 or 8 years from now, and 3. even the most benevolent of leaders will be tempted to use this tremendous power as a way of serving his concept of the "greater good" under the view that the ends justify the means.

Indeed, point 3 is precisely what has been the problem the last 8 years. While I think the Bushies have dramatically overstated the threats we face to national security, I also don't doubt that they believe those threats are real and severe. And therein lies the rub - because they view the "greater good" of national security as so important, however honestly, almost anything done in service of that "greater good" can be justified.

Admittedly, the details of the takeover plan have not been announced yet, and it does not appear that the government will be taking a controlling interest in the banks (as the Fed did with AIG). If the details contain a plan to divest the government of whatever interest it takes in the banks over a period of time (and that plan is complied with) and it does not exercise control over day-to-day decisions on issuance of credit, then perhaps there is not much to worry about. But if the details are otherwise....well, Switzerland is looking better by the day.

(Cross-posted at RCP Cross-Tabs)

A Government Failure. Nothing Else.

Professor Steven Horwitz's "An Open Letter to My Friends on the Left" is a must read. An excerpt:

Consider instead that the problems of this mess were caused by the very kinds of government regulation that you now propose. Consider instead that effects of the profit motive that you decry depend upon the incentives that institutions, regulations, and policies create, which in this case led profit-seekers to do great damage. Consider instead that the regulations that may have been the cause were supported by, as they have often been throughout US history, the very firms being regulated, mostly because they worked to said firms' benefit, even as they screwed the rest of us. Consider all of this as you ask for more of the same in the name of fixing the problem. And finally, consider why you would ever imagine that those with wealth and power wouldn't rig a new regulatory process in their favor.

Long story short, what we are seeing in the credit markets is a government failure, not a market failure. The same people who want us to embrace "government as coolness", who, not uncoincidentally, are naive in their opinion that a belief in free markets comes from some knee-jerk response to government, seem to think that this problem was caused by deregulation. Maybe Horwitz's piece will at least sway liberal bloggers, who may ultimately disagree on the cure to this issue, to back off on their position on the cause because it is, I believe, incorrect. Also, a change of heart, not that I expect it, would go a long way to strengthening the possibility of the sort of left-libertarian alliance Mark tends to favor.

For more on how those subject to regulations end of being able to rig the game in their favor, I strongly recommend this post by Mark or this post over at the Amateur Economist (the Baptist and Bootleggers Dilemma).

Note: It doesn't necessarily mean that we oppose regulation (most libertarians support certain forms of regulation), but rent seekers make us very skeptical towards regulation, as it should be determined whether such regulations serve a valid public purpose (health, safety, welfare, etc.) or seek to prop up some favored interest group at the expense of others (i.e. labor unions). Most of us would support the former and deplore the latter. It's hardly a reflexive knee-jerk reaction to regulation.

Ron Paul's free-thinking followers receive their orders.

Allow me to begin with a statement of fact: Rep. Ron Paul is not a libertarian. He is a registered Libertarian, an aspect of his political career rendered moot by his policy stances. I could join the Justice League, complete with membership card, but that won't make me a superhero. Merit alone determines credibility. While I stop short of endorsing any libertarian purity test, if Rep. Paul is a libertarian superhero, his power is the ability to tie trash bags really, really fast. Perhaps useful while substantially improving nothing. He is on the fringe, with minimal credibility.

With that stated, Rep. Paul announced his endorsement in the presidential race. He supports Constitution Party candidate Chuck Baldwin. The Constitution Party's platform is ridiculous, including such anti-liberty stupidity like this nugget on drug abuse:

The Constitution Party will uphold the right of states and localities to restrict access to drugs and to enforce such restrictions. We support legislation to stop the flow of illegal drugs into these United States from foreign sources. As a matter of self-defense, retaliatory policies including embargoes, sanctions, and tariffs, should be considered.

Drugs should be legal, although I don't personally care. Legalize every drug tomorrow and my cumulative lifetime intake will continue at zero. So, don't get distracted by the drug issue.

The important point is the mention of state and local rights. This is, at best, a poorly-written talking point. No government has any rights. Governments have powers granted to them by rights-possessing people. This matters. As Rep. Paul shows with his blather on issues like same-sex marriage, he is not interested in promoting liberty by limiting government. He is interested in promoting government by limiting liberty, as long as the government involved is not the federal government. Local majoritarianism is no improvement on the national variety.

The Constitution Party's platform gets no better for libertarians.

Also, consider the proper analysis of Rep. Paul's decision (link via Hit & Run):

Two weeks ago the Libertarian nominee pulled out of a press conference Ron Paul had called with the four leading third-party candidates (Barr, Baldwin, Nader, McKinney) to highlight their common ground. Barr decided to hold a press conference of his own down the hall. He also sent Paul a snide note — transmitted to Barr’s e-mail list as well — suggesting that Paul ought to replace the hapless Wayne Allyn Root as Barr’s running mate. This ploy could hardly have been more ham-handed: if Barr wanted to appear generous, he should have offered Paul, obviously by far the bigger attraction, his own slot at the top of the Libertarian ticket. Paul would not have accepted, but Barr at least would have received credit from some libertarians (note the small “l”) for making a serious offer.

After the press conference, Paul’s supporters, not to say Paul himself, were furious with Barr. And now, as a result of all of this, Paul is officially giving his blessing to Constitution Party nominee Chuck Baldwin. Here’s Paul’s statement. I don’t think Paul wanted to choose between Baldwin, who faithfully supported Paul’s Republican presidential bid earlier this year, and Barr, the nominee of the party whose ticket Paul had headed in 1988. But Barr’s behavior forced a decision, and the Libertarian Party is the loser for it.

If that educated guess is correct, and I suspect it is, who could reasonably propose that an individual who makes such a petty, unprincipled decision is qualified to represent libertarians, or to be President of the United States? What would he have chosen as his slogan if his revolution had succeeded in earning the Republican nomination, "Maverick Change You Can Believe in from the Next Decider"? I'll pass.

Note: I'm not particularly interested in the Libertarian Party politics, or Bob Barr's place as a libertarian. I've come back to my original skepticism. Bob Barr isn't a libertarian.

More thoughts at A Stitch in Haste and Timothy Sandefur.

Constitution Day Links

I don't know if a "Happy Constitution Day" is appropriate because it only reminds me that modern constitutional law has nothing to do with the Constitution and everything to do with blindly deferring to majorities, but I thought I'd share a few links:

First, the enormous irony of the federal government, by law, training employees about the Constitution can be found in an old blog post over at A Stitch in Haste. There is nothing I can say that wasn't already said in that post.

Second, I came across an old Reason article that was written by Julian Sanchez from around the time when conservatives were enraged by the refusal of the federal courts to hear the Terri Schiavo case despite congressional chest thumping that resulted in that abomination commonly known as Terri's Law. Sanchez presents great arguments akin to those that I have made in the past, linking conservative disdain for the judiciary not to the Framers or to maintaining the fidelity of the document, but to President Franklin Delano Roosevelt.

Last, for my contribution to Constitution Day, here is my take on the empty meaning of "judicial activism"(here). It was one of my last posts at my old blog and one of my favorites.

I'll try to make the best of the day.

As a light-hearted although mildly sarcastic reminder...

I am seeing all sorts of know-nothing types spouting off about greed, I thought it would be a good opportunity to put things in perspective by using one of my favorite YouTube clips:

Here is Milton Friedman giving Phil Donahue a lesson on greed:



I decided to put this up after reading a Bloomberg article that has John McCain pulling a John Edwards:

McCain struck a strongly populist tone, blaming greed and corruption for putting American workers and the economy at risk.

``Too many people on Wall Street have been recklessly wagering instead of making the sound investments we expected of them,'' McCain told a crowd today in Tampa, Florida. ``If I am president, we are not going to tolerate that anymore.''

I hope I am not the only one who sees the arrogance and insolence in these statements. I wasn't aware we were voting for Financial Planner-in Chief.

Why a Left-Libertarian Coalition Is Possible

In a comment to my post yesterday, ECL writes about Libby's advocacy of trust-busting:

She immediately goes for the nuclear option. Let alone the fact that the anti-trust measure should not ever be considered with a free market motive (not only is a government fix to a government-caused problem, it's also an anti-competitive measure used by rent seekers), she does not consider alternatives that could be considered reasonable (maybe) under certain conditions of, say, natural monopoly (i.e. rate regulation) where a genuine public interest is affected (as opposed to what passed off as a public interest in Nebbia v New York).

I generally agree with this critique. However, I think Libby's arguments - even to the extent I disagree - show something important about why a left-libertarian coalition that would replace the longstanding right-libertarian coalition is both possible and likely.** While Libby hardly speaks for the Left as a whole, and is in general one of the more libertarian-friendly liberals around, much of what she writes in her post is fairly typical of many liberals that I know.

So, if I disagree with the arguments and believe the arguments are fairly typical liberal critiques of capitalism, why do I think Libby's post demonstrates the possibility for a left-libertarian coalition? The answer is that the principal underlying her arguments is an essentially libertarian principal - the principal that economic competition is desirable, and that more competition is inherently good.

This is a far cry from the socialism and fetish for central planning that once animated the American Left. In those days, the Left viewed competition as an essentially zero-sum game in which only government intervention could create progress. Libby's post demonstrates that those days, for the most part, are gone. The Left has, by and large (though by no means completely), moved from trying to plan against competition to trying to plan for competition (even if we think those plans will do more harm than good, the fact is that the goal is to enhance private competition). Devotees of Hayek will understand the immense importance of this distinction.

Simply put, the ends of contemporary liberalism/progressivism have in large part been restored to their classically liberal roots, even if we libertarians may think that their preferred means are not particularly consistent with classical liberalism.

I would also add that there is one point Libby makes which libertarians would do well to internalize - and that is the creeping destruction of choice that results from monopolization (particularly where that monopolization occurs as a result of government protectionism). I think Libby is correct in suggesting that this can be as big a threat to liberty as direct government action - one need only look at the warrantless wiretapping program to understand this.

If we accept the dangers inherent in a symbiotic relationship between government and corporate monopolies, then libertarians in large part need to have a shift in priorities. While we can maintain our opposition to the social welfare state, the fact is that the corporate welfare state (including anti-competitive regulations, subsidies, and, notably, the military-industrial complex) must become our biggest priority in the field of economic policy. After all, a welfare recipient doing the government's bidding is a lot less of a threat to liberty than a corporate rent-seeker doing the government's bidding, particularly when that rent-seeker has access to all sorts of records and communications that the government would typically be prohibited from obtaining without a warrant.

In fighting the corporate welfare state, especially to the extent it includes government contracting, I would hope libertarians could all agree that the political Left is a more natural ally than the political Right.

**As always, when I refer to a right-libertarian or left-libertarian coalition, I refer only to libertarians in the broadest sense, with the full recognition that libertarian purists would never align with either coalition.

Big Business, Government, and Coercion - Peas in a Pod

Blogging at AOTP, beloved lefty-blogger Libby Spencer writes that her disagreement with libertarians often boils down to - in her estimation - beliefs in whether a free market exists, rather than whether a free market should exist. Many/most libertarians, of course, would probably point out that their major beef with liberals/Progressives is over the liberal/Progressive assertion that the last 25 years have demonstrated the failure of free markets because free markets have not, in fact, existed. So in this sense, Libby seems to be different from other liberals/Progressives, and in fact in agreement with libertarians.

Where she differs from libertarians, however, is in her belief that the biggest impediment to a free market is corporate monopoly AND that therefore trust-busting (and regulatory control) is a legitimate function of government:

Today many major multinational corporations have an annual revenue that exceeds the GDP of at least 30% of the third world nations. Free market principles can’t exist under these conditions. I hear a lot of talk from libertarians about the coercion of big government when regulatory controls and monopoly busting comes up but I believe corporate coercion is of much greater concern and is the one area of the market that does require government intervention, assuming we can break the stranglehold the corporations already have on our government that has allowed these monopolies to form in the first place. In fact, I see it as an essential first step in breaking the excessive governmental interference in our private lives.

In the comments section, Libby adds:

"[I]sn’t the reason government regulation right now favors corporate interests because the corporations and their lobbyists are the ones writing the regs in order to subvert the free market. It’s a catch-22 and I’m thinking if we break up the conglomerates, they won’t have the economic power to control government policy."

This of course begs for a response from someone with an unnatural fixation on lobbying, corruption, and interest group politics. Someone like, uhh, me.

The first point of disagreement is that I think the latter assertion, which most Americans accept as a truism, does not match up with existing political science, which overwhelmingly shows that economic clout (such as that thrown around in campaign donations) doesn't so much buy control as it buys access. This is a less important point, though, because it's not as relevant and requires an awfully long explanation. Also - regulators are more often than not career bureaucrats who have no need for campaign donations (and there is little evidence to support the idea that they are frequently bribed).

The more important point of disagreement, though, is that I think the evidence shows that as long as you have government regulators, you will have interested parties seeking to influence those regulators. The problem is that the parties interested in a particular set of regulations will almost entirely come from the regulated industry itself (with some exceptions, of course). This fact holds true whether those parties are a handful of large conglomerates or a group of relatively small businesses.

Except in relatively rare circumstances, these parties will be the only group that is both interested enough and organized enough to effectively push for or against a given regulation. Even when a group of particularly interested businesses is not well organized, the prospect of regulatory authority will almost always lead them, or at least a large sub-group of them, to quickly become well organized. This is not difficult, since you are usually talking about only a tiny subset of the population that shares some form of common network, whether it be a trade magazine, distribution network, or whatever. Because regulations typically pertain to a significant portion of the group's livelihood, they will be willing to expend tremendous amounts of time and money to influence the outcome of the regulations.

Meanwhile, to the extent others are interested in the regulations, they are likely to be not only relatively small in number, but also extremely disorganized, as only rarely will they share common lines of communication. Additionally, the regulations will almost never affect them in a way that will have an impact on a substantial portion of their lives. Which means they will be less willing and able to expend time and money on the issue even if they are able to organize.

Importantly, this holds true whether or not the regulated industry is dominated by a handful of large conglomerates. Indeed, the existence of regulatory powers alone can - and I think frequently does - have the effect of encouraging consolidation, collusion, and monopoly rather than competition. The existence of regulatory powers creates a unity of interest amongst potentially regulated businesses - whether that unity is centered on fighting against regulation or, frequently, fighting for regulation that will in some way increase the costs of entry into the industry (which is obviously a deterrent to competition). This unity of interest results in a situation where group members work together against outsiders even as they nominally compete against each other. There are some clear examples of this sort of behavior, perhaps the most infamous being the Realtors' Association. There is even one example I can think of that is far more powerful within its field, and far more relevant to this topic, because there are no constituent businesses within the organization that have more than a few thousand employees - and all but a handful have far less than that.

Meanwhile the group most negatively affected by regulations almost never has the incentive and ability to work for or against a regulation. This group of course consists of those who may in the future wish to become involved in the now-regulated industry. Few, if any, members of this group will get involved in the regulatory process because they, by definition, are not yet involved in the industry, and only rarely will they already have an interest in becoming involved in the industry. Even those who do already have this interest will lack any kind of a network that would allow for the requisite organization and activism.

The result? The regulatory authority (which, I might add, usually consists of people closely linked to the regulated industry) only hears one side of the story. To the extent it hears other sides, those other sides are drowned out by the hue and cry coming from the well-organized industry members, as well as the politicians they have persuaded to intervene on their behalf.

Trust-busting will not solve this problem, though. Instead, it will result in an informal, de facto monopoly that cannot be destroyed without violating the freedom to associate and to petition the government since you would have to prohibit industry members from joining what are essentially trade groups. This de facto monopoly will be worse than a naturally occuring monopoly, which is still usually subject to market forces and can (and often is) still be brought down through normal competition. In many instances, the de facto monopoly will even have more control over government regulation than an actual monopoly because the former example will have the weight of thousands of theoretically independent businesses behind it whereas the the latter will have the weight of only one (admittedly massive) business.

Ultimately, I suspect that monopolies are both created and sustained by government's regulatory authority. To the extent a monopoly could exist in a free market, it would not be nearly so insidious as it is in a regulatory environment where it can use its clout to raise the entry costs of prospective competitors and thereby behave like a true monopoly.

Don't say we didn't warn you...The Frannie Edition

Matt Ygelesias writes:

A broad ideological point while I continue to try to figure out what’s actually going on with the government’s re-acquisition of the GSEs — they say there are no atheists in foxholes, and by the same token there are no free marketeers in a financial crisis. Which reminds us that while we (mostly) use market mechanisms to set the prices of (most) stuff and do so for the very good reason that this encourages people to produce goods and services people want in appropriate quantities, that market activity doesn’t add up to anything like the “free market economy” of popular myth. Market transactions take place within a legal and institutional framework that involves many public choices at many points, choices that can (and are) made in different ways at different times and with different beneficiaries. We mostly don’t notice this stuff either because it operates silently in the background (copyright and patent law, say) or else because the changes tend to be small at any given point (Fed interest rate shifts) but when crisis strikes it leaps into the foreground.

And there’s nothing wrong with that, in principle. Faced with something like the Bear Stearns meltdown, it would be absurd for public officials to step aside and just “let things play out” irrespective of the damage done to the economy merely in order to bring practice into closer alignment with free market rhetoric. But by the same token, an obligation exists to make sure not just that the economy “works” instead of collapsing, or works just for the richest and best connected, but rather works for everyone who’s willing to work hard and contribute constructively to society insofar as he or she is able. At various points in the past, the economy has worked like that. In recent years it has not. We need to make it work like that again. Whether or not the current tendency of the rewards of economic growth to accrue almost exclusively to a small minority is the result of some kind of malfeasance is not, at the end of the day, really relevant. Insofar as it’s the result of shifting structural factors, the correct response is to use public policy to create counter-structures that will rebalance the situation...

Yglesias weak criticisms of advocates of capitalism notwithstanding(1), he boldy suggests that there are no free marketers in a financial crisis. Does the situation with Fannie Mae and Freddie Mac (collectively "Frannie") prove him correct? I would say that the answer to that question is a resounding "No".

Frannie are government sponsored entities that enjoyed competitive advantages that were brought about not through natural market mechanisms but from government: 1) the expectation that the GSE debt was guaranteed by the federal government meant that risk premiums were low and the entities had a lower cost of borrowing compared to other financial insitutions (and a $2.5 billion line of credit from the US Treasury doesn't hurt), and 2) the capital requirements were as a percentage of total assets is less than other financial institutions. Also, common with government programs, Frannie took on a life of their own, greatly deviating from their original purpose of trying to fill gaps in the mortgage markets, mainly with providing affordable loans. Frannie, from these origins, evolved into dominant players in mortgage finance market, holding nearly half of the mortgages in the U.S. Because of the turmoil in the mortgage markets, Frannie, entities that were the creation of the government, evolved into the entities they are today because of the government, enjoyed special anti-competitive privileges because of the government, are coming under the control of the government to prevent an economic catastrophy. In the words of The Cato Institute's Ed Crane, "this is a government failure, pure and simple."

In the face of this abject failure of government, Yglesias boldy makes a case for more government, suggesting that it is appropriate public policy to create counter-balances to mitigate perceived inequalities so that everyone benefits (read: engage in Kip's Law). Does he not realize that Frannie were intended as these sort of "counter-balances" he describes? Does his apparent enjoyment of dismissing supporters of capitalism for engaging in mythological fantasy blind him to the fact that Frannie makes for a great case study for capitalists and opponents of limited government like me to look to those who look to government to create a society in their own image and say "Don't say we didn't warn you..."? Sadly, Yglesias' entire ideological argument either 1) grossly misdiagnoses the problem, or, worse, 2) ignores it because, again, none of this has anything to do with a market failure.

While I am not a fan of government interventionism, I think the federal government's actions in this case were necessary in the short-term (the least worst alternative). I think allowing Frannie to fail (and I think they would have failed had the government not intervened) would have been disastrous (Tyler Cowen lists some reasons why and Paul Krugman's column on deleveraging is a helpful read in this context as well). I don't think I am necessarily violating my own free market principles if 1) I believe, in the big picture, the problem is not the bailout per se but the fact that we reached this point in the first place, and 2) to the extent that the takeover provides an opportunity to eliminate any and all special privileges and reduce the portfolio holdings in order to spread the risk out amongst various market participants and get the government out of this business as opposed to having quasi-public/private entities lingering around so that we get bit in the ass later, I'm all for it.

So, yes, I will gladly trumpet my support for free markets in the face of the Frannie (and frankly, the credit crisis in general) because Frannie was a government-caused abomination and markets had nothing to do with it. So-called "Progressives", it seems would rather continue to do battle with windmills and focus their ire towards the things that did not cause this problem while ignoring the things that actually did. None of this surprises me.

---------------------------------------------


(1) Perhaps it's a personal bias, but I tend to debate liberals who associate "free market" with "unregulated market" absent, as Yglesias puts it, any sort of institutional or legal framework. With the exception of perhaps the libertarians of the more anarcho-capitalist variety, the libertarians I know do not share this view. We accept certain forms of regulations; therefore, the debate is not between something like "no regulations vs. regulations". Rather, the debate involves to what extent markets should be regulated. Here, libertarians (small l) and liberals hold widely divergent views.

I would love to know what free market of "popular myth" Yglesias speaks of, but he, not surprisingly, given his target audience, fails to define it. Also, I fail to see how my wanting to buy cereal at my local grocery store and the local grocery store wanting to sell it to me involves "public" choices and need to involve any beneficiaries outside of those involved in the transaction.

Anecdotally speaking, if Yglesias wants to think that regulations are the sorts of things we don't notice, I suggest he take a job at a Wall Street firm where he will get to know the people in the legal department and compliance very, very well, even if you never cause one bit of trouble for them. Just saying...

We don't need no stinking great leaders...

When one gets through the self-deprecating humor and sarcasm (especially with his use of stupidity), fellow libertarian Penn Jillette makes some very good points as to why he thinks a great leader, in the sense that it has been currently defined (he looks to a new book written by The Cato Institute's Gene Healy for guidance - one on my reading list for sure) is not what we really need. I enjoyed the message, the humor and the way it has obviously gotten under the skin of certain commenters on that site.

Please read the whole thing but I'll summarize most of the good stuff here:

Everyone I talk to seems to think the president of the United States right now is stupid...

...They all seem to think we need to get a smarter guy in the White House fast, and Bush is so stupid, that task shouldn't be too hard...

...The idea, especially from the Democrats that I know, is, we just get a smarter guy in the White House, and all the problems will go away. We'll have smart speeches, smart high gas prices, smart bad economy, smart war on terrorism, smart war on drugs, smart hurricanes, smart global warming, smart war in Georgia -- smart, smart, smart...

...Obama is a great leader. He can fire people up and get them to do what he wants. He does smart speeches that promise everyone everything they need and make us feel good about our country and how much greater our government could be...

...But I don't think our next president being a great leader is a good thing...

...I'm worried about someone smarter than Bush taking over that tremendous power. Charisma and ambition increase my fear exponentially, and a great leader scares me to death...

...We need someone stupid enough to understand that the president of the United States can't solve many problems without taking away freedom and therefore shouldn't try. The only reason John McCain scares me a little less is because I think he's a little less likely to win. They both promise a government that will watch over us, and I don't like that...

..I don't want anyone as president who promises to take care of me. I may be stupid, but I want a chance to try to be a grown-up and take care of my family. Freedom means the freedom to be stupid, and that's what I want. I don't want anyone to feel my pain or tell me to ask what we can do for our country, or give us all money and take care of us...

...The choice shouldn't be which lesser of two evils should have the enormous power of our modern presidents. The question should be, who would do less as president? Who would leave us alone?...

Jillette's humorous commentary struck a chord with me because this is basically how I view things. My committments are to individual liberty, free markets and, perhaps most relevant to this discussion, limited government. Finding these attributes amongst our friends on either the Democratic or Republican side is difficult if not impossible. I am not interested in fancy speeches. I am not interested in broken campaign promises. I would be perfectly content to have a President that faithfully executed the laws of the United States in accordance with the Supreme Law of the Land. A President smart enough to recognize that there are limitations on what government can and should do and what government cannot and should not do would be satisfactory to me.

Jillette, rightly I think, fears the notion of a "great leader" because of the amount of power at that person's disposal, but let us not forget those who would rally around that leader. James Madison's writings on factions, most notably found in Federalist 10, are no less relevant today than they were over 200 years ago so it is worth quoting passages.

It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community...

...Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency...

...As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves...

...The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good...

...It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole...

I find election year politics painful. Intellectually, it's dull. Worse, having to hear every other minute that I am facing the most important election of my lifetime and, especially one for libertarians, that we better be ready to vote for the lesser of two evils or else be ready for [INSERT FEAR OF DEMOCRATIC/REPUBLICAN PRESIDENCY HERE] at least three times a day wore thin months ago (to the extent I had any patience for it). As far as the lesser of two evils (the last snippet from my quoted passage from Jillette's post), from my standpoint, whether I'm shot in the head at close range with a 9mm pistol or an AK-47 does not change the fact that I am royally screwed. It only determines the size of the hole in my head. That's how I view the nonsense about the lesser of two evils so neither Obama nor McCain gets my support.

The Morality of Relativism

Doing a stint at AOTP, our friend Cernig (of Newshoggers reknown) has a truly beautiful post on the history of what is perjoratively called moral relativism, and what it can teach us about the shared history of classical American political thought ranging from libertarianism to liberalism to Burkean conservatism to anarchism. Cernig's piece comes remarkably close to my own views, and is the very definition of a "Read the Whole Thing" post - especially if you have any interest in restoring the primacy of the classical American political tradition.

Cernig begins:

I did absorb enough moral philosophy to understand that the broad mainstream of modern Western political thought - libertarians, liberals, small-c conservatives and even anarchists - held a rather different conception of moral truth from that of the authoritarian streams - communism, fascism and religious conservativism. For the latter, moral certainty is easy to come by. It is handed down from an Invisible Friend who is never wrong or arrived at intuitively via a faith that they, and they alone, have access to Platonic truths about morality in unalloyed form. For the rest of us, its a bit harder to come by such certainty - we have to actually think about it a
bit.

Cernig goes on to discuss Wittgenstein and two Scots near and dear to libertarianism - Mill and Smith, amongst others. He argues that although as a practical matter the purpose of politics is the legislation of morality, as a normative matter the sole morality that should matter is the Golden Rule ("do unto others....") and its corrollary ("don't allow others to do unto you as you wouldn't do to them"). (See Note 1, below). This is because human knowledge is finite, and morality thus cannot be intuitively known except by reliance on an "Invisible Friend," be it the Bible, a political leader, or an author. Thus, he argues, "moral relativism is the only rational method of moral enquiry, one that doesn’t rely a priori on magical and mysterious access to Invisible Friends, be they deity or platonic form."

Cernig concludes:

This intellectual framework, arising out of moral relativism and the political theory which logically must follow from it, is the shared heritage of liberals, libertarians, moderate conservatives and even anarchists. We do not, however, share any of that heritage with those who appeal to Invisible Friends of various kinds for their moral authority. They all share an authoritarian outlook arising from their reliance on dogmatic and external unapproachables, whether on hard Left or hard Right, which cannot ever be compatible with our shared theories of liberty, freedom or morality.

Cernig's post is fertile territory for a lot of my own political philosophy.

Most importantly, Cernig's post focuses on the argument that "moral relativism" is the foundation upon which liberty and individual freedoms are based. I think this point is well-taken, particularly considering that humans and the whole of human accumulated knowledge are by definition, finite; however, somewhere in the universe exists an infinite entity, whether that entity be the universe, God, or something else. (See Note 2 below)

Where I struggle, however, is with the use of the term "moral relativism" to describe the humility that accepts the limits of human knowledge in a universe where an infinite entity exists. This may be due to my own discomfort with the way in which it is usually used as a perjorative, but I also think the term "moral relativism" is inaccurate. The point at which Cernig is driving, which is a beautiful point, is that while morality (aka "absolute truth") may in fact exist (and perhaps does exist by definition), it is unknowable with certainty due to the finite nature of human knowledge. Thus, humans can only act morally to the extent of their own frame of reference, and to advance their own happiness (not to be confused with pleasure - the two are not always or even often the same).

But that does not mean we give up the search for absolute truth or morality, unknowable as it may be. Rather our understanding that absolute truth exists but cannot be known with certainty causes us to constantly inquire as to the nature of that absolute truth, constantly seeking it out while simultaneously recognizing that our uncertainty leaves us in no position to order others what to do short of recognizing the Golden Rule and its corrollary, versions of which, to my knowledge, exist in all or nearly all human cultures throughout recorded history.

In this way, so-called "moral relativists" are not "relativists" at all - instead, our morality is entirely formed on the Golden Rule and its corrollary. The difference is that this morality recognizes that truth, to the extent it can be attained, can only be attained through rational inquiry. As such, the Golden Rule is the central morality, as it is necessary to protect and respect rational inquiry and the search for truth (by definition "doing unto others" in a way you would not have "done unto you" acts contrary to one's own, albeit limited, understanding of truth). Far from being "relativists," we seek to act consistently with this one rational and universal moral principle without exception (though, as fallible humans, we no doubt occasionally fail in that task).

Instead, I would posit, those that would seek to impose the will of their "Invisible Friend" on others through the use of government (or other forcible means) are the real relativists. In so doing, these groups must of necessity violate the Golden Rule, which, as I said, is perhaps universally accepted in some form or another. Their justification for violating the Golden Rule in order to impose their personal moral vision on others? The "Invisible Friend" said so. This to me is the very essence of true relativism, one in which any rule is subject to violation as long as some knowable (and therefore finite) entity says so, and in which morality is entirely based on the whims of that knowable (and therefore finite) entity. In such a system, truth and morality exist only to the extent of the source entity - they do not exist independent of the source entity.

This is of course hardly a novel point I am making. Indeed, in addition to Enlightment and post-Enlightenment thinkers, the argument that truth/morality exist independent of an "Invisible Friend" and that basing truth/morality on such an "Invisible Friend" is the truly relativist position dates at least to Socrates.

NOTE 1: My first inclination was to disagree with Cernig's statement that legislation of morality is the purpose of politics, until I realized that this was a positive rather than normative statement. As a matter of practical description, I think Cernig's probably right - as a practical matter, politics is almost entirely about legislating morality (i.e., using the power of government to punish perceived immoral behavior, whether it be through wealth redistribution, criminal punishment, or civil liability, the purpose of politics is to punish the so-called "evil-doers" and reward those deemed "good" by the ruling class). On a normative level, however, Cernig's really arguing that the sole purpose of politics "should" be enforcement of the Golden Rule and its corrollary- i.e., the Golden Rule and its corrollary are the only morality with which government "should" be concerned. On this point, you'd be hard-pressed to find a true libertarian who disagreed (and ultimately, I think most anarchists would also agree, though they would likely point out - with justification - that the very concept of government violates the Golden Rule).

NOTE 2: At the risk of sounding like a stoned physics/astronomy student, I'd point out that perhaps the only thing that is certain is that there exists, somewhere, some infinite entity. Whether that entity is the universe, God, or something entirely else, it is perhaps impossible to conceive of a physical space with defined boundaries that does not exist within some greater physical/spiritual/whatever space. Eventually you have to get to some entity outside of which nothing exists, which therefore lacks any definable boundaries and is therefore, literally, infinite. Once you accept that something infinite exists, than absolute certainty becomes literally impossible since you must always concede that your certainty is based solely on your own finite experience or on the experience of some defined, finite, culture. Thus, the whole of human experience can teach us, literally, only an infinitessimal portion of truth and morality.

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)

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.

I

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.

II

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.

III

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.

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.

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.