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I was never persuaded by Aristotle’s argument that happiness is the highest good (because it is the only thing that humans seek for its own sake rather than for any other end). The reason I never accepted it is that it is either circular (happiness gets defined as whatever it is you seek for its own sake) or obviously wrong (we sometimes do things for the benefit of others).

On the other hand, Kant’s argument that the only thing that is good without qualification is a good will has always seemed extremely persuasive to me and founded upon a deep, virtually universal moral intuition. If I pursue my own happiness at the expense of what I know to be right, any happiness I thereby win is not a blessing but a curse. We root for the “bad guys” not to profit from their wrongdoing. Further, we judge the rightness or wrongness of actions by the state of someone’s will. If I accidentally save someone falling from a burning house while I am engaged in trying to rob it, my “action” is not praiseworthy: there was no intent to do good. On the other hand, if I try to do the right thing, but the facts later turn out to show that I was mistaken, my actions may be regrettable but not blameworthy. For instance, if I see a man accost a child roughly and interpose myself thinking to stop an aggression, I am not to blame for my action even if it turns out the man was trying to stop a child who’d committed a serious theft, so long as, if I had known the truth, I would have acted differently.

But surely, good intentions are not enough! If I know that my actions will cause harm, but do them anyway under the guise that my intentions are good, my actions are still wrong. Politicians do this all the time, in raising subsidies or the minimum wage or in creating monopolies or in innumerable other ways. So reckless or negligent disregard for the consequences of one’s actions is blameworthy. But you don’t really have good intentions if you are reckless or negligent! A well-intentioned person will try to figure out what is best to do, and then act on that understanding.

So it’s settled: the only good thing is a good will. But wait: there’s another problem. What if I act on a moral principle that is false but which I sincerely believe to be true? Am I acting wrongly if I vote for drug prohibition on the grounds that hard paternalism is sometimes morally justified? Am I acting wrongly if, wrongly believing that hard paternalism is morally justified, I nevertheless vote against drug prohibition? It seems that Kant’s answers must be “no” and “yes,” respectively. And I agree: under some circumstances, it is morally wrong for a sincere paternalist to vote against drug prohibition, even though drug prohibition is, in the final analysis, morally wrong. Whaaa…?

This was the hardest part of Kant’s philosophy (or Adam Smith’s too, actually) for my intro political philosophy students at Buffalo to swallow. And it may be hard for you too, dear reader. Can we make sense of it in such a way that does not lead to absurd conclusions like, “It would be morally wrong for Hitler not to have commanded the Holocaust”?

Reading Jerry Gaus’ Order of Public Reason has helped me to sort out this difficult problem. (He’s drawing heavily on P.F. Strawson here, whose work I had not previously read.) From page 253:

The reasons you have must be accessible to you, and as a real rational agent in a world in which cognitive activity has significant costs, rationality does not demand one keep on with the quest to discover less and less accessible reasons. . . [E]xpert advice and the growth of social knowledge allows increasingly sophisticated and complex conclusions to be accessible as reasons to all with simply an adequate amount of deliberation. Think about all the reasons to believe and act that one has after twenty minutes on WebMD.

To have a reason to act in a certain way requires that reason to be cognitively accessible to you. You are not to blame for failing to act on very subtle reasons that only specialists could know and of which you are justifiably unaware. Then there’s this on page 254:

[T]he practice of morality is not an elite practice such as physics or moral philosophy, but a basic human practice in which all adults who have grasped the Principle of Moral Autonomy are competent. We cannot ascribe to moral agents reason to accept infinite utility calculations, the noumenal self, or the original position. These may be elements of philosophical theories that explain or further justify people’s moral reasons, and the philosophers who advocate them may argue that they are in some way the upshot of what normal moral agents do believe, but they are the result of specialist constructions based on long deliberations, and even their teaching is difficult.

Again, having the wrong moral theory is not blameworthy. Ordinary people can be expected only to act according to their good-faith understandings of their moral duties, having done a “respectable (more…)

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Martin Luther King, Jr’s “Letter from Birmingham City Jail” remains one of my all-time favorite works of 20th century political philosophy. The moral foundation of the letter is essentially Lockean and Kantian. Those of you who have not yet read it are doing yourselves a disservice by not doing so now. Favorite passage:

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. . .

We have waited for more than 340 years for our constitutional and God given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, “Wait.” But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: “Daddy, why do white people treat colored people so mean?”; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger,” your middle name becomes “boy” (however old you are) and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodiness”–then you will understand why we find it difficult to wait. . . [T]here are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

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In the third and final part of my series summarizing my working paper, “Designing a Constitutional Right of Secession” (here are parts one and two), I examine the legitimate objections we can raise to a right to secede. Some of these other scholars have previously mooted, while others are apparently original. Regardless, I will argue that all of these arguments merely establish reasons to qualify the right to secede, rather than to abolish it altogether.

Strategic Demarcation of Territory

When secessionists can determine the territory subject to a referendum, they can include as much territory as they feel confident getting away with, while still winning a referendum. They may include territory dominated by opponents of secession, so long as the rest of the people living in the seceding unit can outvote them.

One way of dealing with this problem is to allow recursive secession: territories that oppose secession can themselves secede from the seceding state. Indeed, that may be a good idea, although it poses some risks: the central government could use recursive secession as an excuse to attack a secessionist state, and there will always be controversies about where boundaries should lie. What if secessionists don’t permit recursive secession? Simply banning secession altogether wouldn’t make sense as a response, since that would violate the rights of the many to safeguard the rights of the few.

A better solution is to limit the right of secession to top-tier geographical subunits of the state. Now, there are some problems with this solution as well. First, administrative boundaries may be morally arbitrary, just like
interstate boundaries. Second, relying on administrative boundaries to set the limits of regions that enjoy the right to secede gives central governments an incentive to manipulate administrative boundaries to dilute potential secessionist challenges. Third, allowing regions to secede along existing administrative boundaries may trap significant minorities within the new state. These are all very real problems, as Yugoslavia’s attempted recursive secessions demonstrate. The secession of Croatia trapped Serbs, and the secession of Bosnia trapped both Croats and Serbs. The Badinter Commission denied these groups a recursive right of secession, and therefore they saw their only option as war combined with ethnic cleansing to alter ethnic balances.

So the administrative-boundaries solution works best if there’s a good procedure for letting people decide to which region they will belong. There should be an easy way for people to secede by referendum and set up new administrative regions. It should also be easy to hold referendums in small areas on moving from one region to another. Had Yugoslavia followed these principles, Serb-majority areas of Croatia and Bosnia would not have been part of Croatia and Bosnia, respectively, at all, and there would have been no reason for war.

Even when there are no good procedures for making sure administrative boundaries line up with what people on the ground want, it is better to make existing regions the subjects of a legal right to secede than to allow secessionists or the central government to redefine the scope of the territory subject to secession without the agreement of the other side.

Irredentism

Irredentism refers to movements seeking to take territory from one state and give it to another. Irredentism needs to be regarded more skeptically than secessionism, because irredentism has often been a cause of war among states, including both world wars. Regional irredentists often instigate violence to try to draw in their “parent” state.

Legalizing irredentism by plebiscite would encourage states to meddle in each other’s domestic politics in hopes of boundary revisions. Instead, irredentism can usually be alleviated with generous autonomy, as has occurred in Aaland and South Tyrol. Where irredentism cannot be satis ed with autonomy, such as where the irredentist group is a minority in the disputed region (e.g., Northern Ireland), then a solution will be more difficult, and the states involved may not wish to rule out completely a future transfer of sovereignty. In most cases where a secessionist movement has irredentist potential (e.g., Nagorno-Karabakh), it is reasonable to impose a conditions on a right to independence that the new state will never be allowed to join its ethnic-kin state, that the new state will be demilitarized, and so forth.

Vague Referendum Questions

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In my last post on this topic, I argued for a right of unilateral secession on the grounds that: 1) legalizing secession would reduce the risk of violence on net, and 2) codifying a plebiscitary, unilateral right to secede would reduce uncertainty without any compensating disadvantages. In this post, I consider some common objections in the literature to a liberal right to secede and show why they do not overturn the case for a legal right of unilateral secession to be accomplished through democratic plebiscite.

1. Rights-Violating Secessionists

Counting heads is probably not the best way to determine the relative legitimacies of governments. If a region gets 51% of the voters to approve secession, but then the 51% decide to persecute the 49% minority, then secession would cause a net loss in freedom or human rights. Under these conditions, secession should be restricted.

In the abstract, the case for restraining rights-violating secessions is plausible, but it is unworkable institutionally. A legal provision allowing the central government to veto secession if the secessionists are likely to violate rights would suffer from the “biased referee” problem. Central governments will be tempted to use the provision as an excuse to ban all secessions. Similarly, secessionists will always claim to be liberal if they are required to do so, but that does not mean practices will not change once they achieve independence.

Some scholars have argued that the potential for rights violations by secessionists justifies a higher threshold in the referendum on independence (say, 55% rather than 50%+1). There are two problems with this argument: 1) the correlation between secessionists’ likelihood of violating rights and ability to get widespread support in a referendum is probably weak, and 2) this suggestion assumes that secessionists are more likely to violate rights than governments. If governments are more likely to violate rights, then a higher threshold will tend to prevent more morally desirable secessions than the morally objectionable ones it prevents.

In cases such as the U.S. Civil War, in which the central government is sincerely persuaded that a particular secession would be morally disastrous despite, let’s assume, a constitutional provision permitting it, then the government may be morally justified in acting extraconstitutionally to prevent the secession.

2. Nationalist Objections

Nationalists (more…)

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In this three-part series of posts, I will be blogging my new SSRN working paper, “Designing a Constitutional Right of Secession: Applying Normative Principles and Empirical Findings.” The paper defends a right of unilateral secession for any country in which the possibility of secessionist violence is non-negligible, or where central governments are already unwilling to suppress secession militarily.

In this post, I will explain the basic argument in favor of a right of unilateral secession, that is, a justiciable right of a region to secede by plebiscite without a right of veto for other parts of the country or for the central government. I argue for a moral duty on a government to implement a constitutional or legal right to secede, not for a fundamental, abstract, moral right to secede. The difference is important because real-world politics often makes it impossible to satisfy everyone’s moral rights. The case presented in the paper is for legally recognizing a right to secede even when secession would violate some individuals’ rights. Moreover, the argument is about domestic legal guarantees for secession, not international institutions. It may be desirable for a government to recognize a unilateral right of secession even when it is undesirable for international institutions to intervene to enforce such a right.

In the next post, I will address arguments against a legal right of unilateral secession that fail. In the final post, I will explain how a right of unilateral secession should be qualified and structured in a country’s constitution.

To make the argument, I start with a set of normative assumptions and a set of empirical findings. The normative assumptions are intended to be general enough that they can be widely endorsed by people of widely differing moral and political perspectives, who nevertheless share some basic commitments. I then consider how different “secession regimes” — that is, legal approaches regulating secession — can satisfy these principles, bearing empirical findings in mind.

Here are the normative assumptions, ordered lexically so that higher principles take precedence over lower ones:

  1. Maximize physical integrity rights for all. The range of potentially permissible secession regimes is limited to those that can plausibly satisfy this principle. Physical integrity rights include individual rights against extrajudicial killing and physical assault, torture, and illegal detention.
  2. Maximize other basic liberties for all. Among those regimes that can satisfy the first principle, only those that also satisfy the second principle are potentially permissible. Political philosophers disagree on what counts as “basic liberties” that any minimally just regime must satisfy. At the very least, these liberties include wide guarantees for freedom of speech, thought, conscience, association, and equality before the law. John Rawls (1999, pp. 197-9) argues that the “fair value of equal political liberty,” a right to security of personal property, and the right to free choice of an occupation or profession count as fundamental liberties. “Free-market fairness” advocate John Tomasi (2012) also includes the right to security of productive property and the right to own a business. And so on. To the extent that there is disagreement about what counts as a basic liberty, there may be disagreement about the range of potentially permissible secession regimes.
  3. Follow the principle of Pareto optimality. For any two regimes A and B and any two sets of citizens X and Y, if the consequences of the two regimes are such that X prefer one regime to the other, while Y are at least indifferent between the two regimes, then select the regime that X prefer. This principle rules out secession regimes that make some people worse off without making anyone better off, relative to some alternative regime.
  4. Satisfy all other moral principles. Differing moral foundations yield different moral principles. I avoid making claims about moral foundations, but these foundational views may yield further principles limiting the range of permissible secession regimes. Differing views on the nature and importance of distributive justice and economic growth can justify marginally different views on the appropriate secession regime.

I consider the principle of “no forced association” under this last heading. Libertarians, for example, often claim that governments may rule only with the literal consent of each individual under their rule. (Nozick famously disagrees.) Real-world politics always requires some individuals to be coerced. Prohibiting secession coerces some people into supporting a government to which they do not consent. But allowing secession also allows secessionists to coerce the anti-secessionists in their midst. It may be ideal for governments to rule only on the basis of unanimous consent — a question outside the scope of this paper — but in practice, they do coerce nonconsenters. So we have to figure out legal rules for secession in the world as it exists. I argue that the consent principle yields only a weak presumption in favor of allowing secession whenever a majority in the seceding region votes for it. Presumably allowing secession under such conditions will reduce the number of nonconsenters. But it won’t necessarily minimize the number of non-consenters or the number and severity of rights violations, as we shall see.

The generalizable empirical findings about secessionism are as follows: (more…)

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Belief in freedom of the will has many beneficial consequences. Lab experiments have shown that people reading deterministic, anti-free will statements are more likely subsequently to cheat in their own favor. Researchers have even identified some of the chemical processes in the brain associated with diminished belief in free will:

Since the publication of these findings, a number of studies have documented additional anti-social behaviors resulting from discouraging a belief in free will. For example, Baumeister and colleagues demonstrated that discouraging a belief in free will leads to less helping, more aggression, more mindless conformity, less feeling of guilt, less learning of moral lessons from one’s misdeeds, and less counterfactual thinking about how one might have behaved better.

Other studies have begun to reveal the mechanisms underpinning these behavioral effects. For example, Rigoni and colleagues found that discouraging a belief in free will reduces a specific signal of the brain’s electrical activity (the “readiness potential,” as measured by electroencephalography) known to be associated with the preparation of intentional action. In recent studies conducted in my laboratory, we found that discouraging a belief in free will can reduce people’s belief in their capacity to effectively engage in mental control.

Philosophers have long debated whether moral responsibility requires a belief in freedom of the will. The case in favor holds that “ought implies can.” We only have the obligation to do things that it is under our power to do. Therefore, if it is not under our power to acbrain_regionst otherwise, we cannot have any obligation to do so. Apparently, this view is widespread.

Belief in free will may also have desirable political externalities. Determinist pragmatist John Dewey claimed that bad, old liberalism (what we here at Pileus would consider the good kind) was based on a misguided metaphysics of free will plus outdated social and economic models:

Insistence upon a metaphysical freedom of will is generally at its most strident pitch with those who despise knowledge of matters-of-fact. They pay for their contempt by halting and confined action. Glorification of freedom in general at the expensive of positive abilities in particular has often characterized the official creed of historic liberalism. Its outward sign is the separation of politics and law from economics. Much of what is called the “individualism” of the early nineteenth century has in truth little to do with the nature of individuals. It goes back to a metaphysics which held that harmony between man and nature can be taken for granted, if once certain artificial restrictions upon man are removed. Hence it neglected the necessity of studying and regulating industrial conditions so that a nominal freedom can be made an actuality. Find a man who believes that all men need is freedom from oppressive legal and political measures, and you have found a man who, unless he is merely obstinately maintaining his own private privileges, carries at the back of his head some heritage of the metaphysical doctrine of free-will, plus an optimistic confidence in natural harmony.

Source: John Dewey on Education, ed. Reginald D. Archambault (U of Chicago P), pp. 82-83

What a classic statement of turn-of-the-last-century pragmatist progressivism! What confidence in the ability of “politics and law” to “regulat[e] industrial conditions,” and in the obsolescence of “historic” traditions and beliefs!

Something of this view persists in modern-day progressivism as well. John Rawls’ difference principle, which is typically taken to justify a redistributive state, is based on the notion that no one deserves what she earns in the market, since differential skills, talents, work ethic, and even moral character are all unearned and therefore “arbitrary from a moral point of view.” We can throw all the outcomes of those characteristics into a big social pot and then reason about what to do with that pot.

Law professor John Pfaff makes a similar argument in defense of the PPACA:

Likely part of our opposition to viewing health care as a social good stems from the deep-seated libertarianism that runs through much of our political discourse. (It seems fair to say that even the American left is more libertarian than its European counterparts.) We view our money as our own (“I built it!”), and so if someone wants to take it—to, say, provide insurance for the less well-off—the justification burden is high. But there are two problems with that argument, one general and one perhaps more specific to health care issues.

More generally, our liberatarianism is likely tied to our perceptions that our economy is a meritocracy. Of course, we grossly overstate the degree of intergenerational mobility (the “American Dream” is more alive in Sweden than here), but there is an even deeper problem with the libertarian/meritocratic perspective: to a perhaps-disturbing degree, meritocracies reward generic lotteries.

In our economy, smart people rise to the top, but those smart people didn’t earn their intelligence, they were born with it. And to the extent that it was nurtured and cultured, that is due to their parents (since the returns on education are greatest when we are quite young, and thus before we are making many decisions on our own). And that work ethic? Again, significantly genetic and parental.

It’s true: you really didn’t build it, or at least not all of it. Which isn’t to argue for some sort of completely-leveling socialist state. Incentives are important, and those who take risks need rewards to compensate them. But once we realize that meritocracies are largely genetic and birth-parent lotteries, the moral claim on wealth becomes a bit weaker on the margin, and the moral argument for taking care of the less-lucky-in-birth becomes stronger.

But what happens to people who believe that everything about them, down to their own work ethic and their moral character, is unearned? According to psychology experiments, they slack off. They lie, cheat, and steal. And they vote for big government.

By contrast, conscientiousness, which depends on a strong belief in one’s own efficacy, correlates strongly with academic and economic success. I can’t help but wonder whether this might be an omitted variable driving an observed correlation between income and voting behavior, controlling for education, in Western democracies. Higher-income people are more economically liberal in the “historic” sense. I doubt that is due to selfishness so much as a belief that everyone can do better by trying harder. That belief drives both classical liberalism and success in life.

So the question is: Is freedom of the will a noble lie? I argue that it’s not. (more…)

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You have to admire the sheer gall of a man who defends compulsory national service on libertarian grounds. Pascal-Emmanuel Gobry does so in this month’s Cato Unbound. What really got my attention was this bit:

Libertarians think it’s legitimate for the state to use violence to take people’s money. If you don’t think taxation is legitimate, you are an anarchist, not a libertarian.

Well, military service is a form of in-kind taxation. Money is time. That’s what it is. When I buy a loaf of bread, I exchange a little bit of my time for a little bit of the baker’s time.

Perhaps it’s only legitimate for the state to take our time in the form of money and not in its original form, but we know that it’s not true.

Oh really?! When libertarianism really emerged as a distinct political force in the 1970s, it was thought that libertarianism excluded taxation that was not consented to (so homeowners’ association fees would be fine, for instance). The Libertarian Party platform long called for the abolition of taxation (and may still). Indeed, Robert Nozick argued that taxation is wrong for the same reason that slavery (“compulsory service”) is wrong. (Not, note, that taxation is morally equivalent to slavery or a species of slavery.) Gobry seems to accept Nozick’s claim that if slavery is always wrong, taxation is also always wrong, but by denying the consequent, is able to deny the antecedent.

But the bottom line is that you don’t have to be an anarchist to think that non-consented-to taxation is always impermissible.

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A moral dilemma from the popular TV show “Breaking Bad” illustrates a critique Amartya Sen made of Robert Nozick’s Anarchy, State, and Utopia and the reason why the refutation fails. In On Ethics and Economics, Sen makes the following critique of Nozick’s libertarian philosophy (heavily paraphrased because the book has yet to be unpacked, and Google Books was no help):

Suppose A knew that C was about to murder D, but needed a car to try to stop the murder. B is nearby in a car. On Nozick’s theory, it would be permissible for A to try to stop the murder without violating anyone else’s rights, but impermissible for A to to try to stop the murder by commandeering B’s car.

Sen seems to think that Nozick’s view is incoherent or at least implausible. Nozick’s theory forbids minor rights violations to prevent major ones. Of course, the theory is incoherent only if one adopts the premise that whatever is morally good must be maximized, a premise that Sen leaves implicit. Sen’s critique suggests a “consequentialism of rights”: always act so as to minimize the number of rights violations.

But the central plot twist of the “Breaking 312px-JesseshootsgaleBad” series shows us why consequentialism of rights is less plausible than a strict deontological view. In this plot twist (writing vaguely to avoid spoilers), the two main characters of the show murder an innocent man because: 1) (more…)

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If you read enough political philosophy, at some point you wonder whether there really is anything new under the sun. On the heels of Edward Snowden’s wonderful and astonishing leaks, we get this:

U.S. Rep. Peter King, chairman of the House Homeland Security Committee’s Subcommittee on Counterterrorism and Intelligence, called Snowden “a defector” who should be turned over to the United States with an eye toward harsh prosecution.

“This person is dangerous to the country,” King said on CNN’s “Starting Point” on Monday.

While Snowden has not yet been charged with a crime, the Justice Department said Sunday night that it had begun a preliminary investigation into what it called “the unauthorized disclosure of classified information by an individual with authorized access.”

I could not read this without recalling John Locke’s words in defense of revolution (casting out of the government) in the Second Discourse. Locke responds to those who insist on the immorality, the injustice, perhaps even the violation of natural law involved in rebellion. First, Locke’s justification for revolution:

Sec. 222. The reason why men enter into society, is the preservation of their property; and the end why they choose and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power to destroy that which every one designs to secure, by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavor to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavor to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who. have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society. What I have said here, concerning the legislative in general, holds true also concerning the supreme executor, who having a double trust put in him, both to have a part in the legislative, and the supreme execution of the law, acts against both, when he goes about to set up his own arbitrary will as the law of the society.

Then, Locke responds to the objection that this rationale is a justification for trivial incidence of revolution:

Sec. 226. …this doctrine of a power in the people of providing for their safety a-new, by a new legislative, when their legislators have acted contrary to their trust, by invading their property, is the best fence against rebellion, and the probablest means to hinder it: for rebellion being an opposition, not to persons, but authority, which is founded only in the constitutions and laws of the government; those, whoever they be, who by force break through, and by force justify their violation of them, are truly and properly rebels: for when men, by entering into society and civil-government, have excluded force, and introduced laws for the preservation of property, peace, and unity amongst themselves, those who set up force again in opposition to the laws, do rebellare, that is, bring back again the state of war, and are properly rebels: which they who are in power, (by the pretense they have to authority, the temptation of force they have in their hands, and the flattery of those about them) being likeliest to do; the properest way to prevent the evil, is to show them the danger and injustice of it, who are under the greatest temptation to run into it.

Locke is claiming, in effect, that it is not those who rise up in response to despotic government that are guilty of injustice, but those who use their authority to violate the trust of the governed. It does seem likely that Snowden violated some laws here, but King and his ilk are ignoring the prior question, whether in the conduct of its work the executive branch is guilty of the first violations of our fundamental law, the Constitution. It is certainly possible the answer to that is negative, but there can be no doubt that is the right question to ask, and that without an answer to it there is no moral judgment to be made about Snowden’s conduct.

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Looking through the freedom index data over time, it can look like a depressing series of new laws and restrictions on people’s lives. Now, freedom has increased at the state level on certain issues (local gun bans overturned, sodomy laws overturned, medical marijuana laws passed, eminent domain reforms enacted, same-sex partnerships spreading). But there are ever more areas in which state governments find new ways to intervene: E-Verify mandates (which are likely coming to the entire country soon), smoking bans, online gambling bans, salvia bans, DNA databases for arrestees (recently upheld by the U.S. Supreme Court), trans-fat bans, and ever-more occupations coming under the license Raj.

Libertarians often look at this endless march of new regulations and dourly quote Thomas Jefferson, “The natural progress of things is for liberty to yield and government to gain ground.” Yet what this ignores is the explosion in the unregulated areas of human life. Ever-lengthening statute books do not necessarily mean more restrictions on what people are actually doing.

Advocates of positive freedom have always celebrated technological change as liberating. More options mean more choices mean more freedom. Traditional libertarians don’t often seem to want to think this way, probably because they think of negative freedom as more important: i.e., the absence of restrictions on peaceful choices. I agree with them there: positive freedom is desirable but not at the expense of negative freedom.

I am arguing here that technological change enhances negative freedom, even if the number of laws and formal restrictions remains constant. How is this possible? Most importantly, technological change opens up new domains of human endeavor that have yet to be regulated. Secondarily, certain technological changes can disrupt government regulation. Finally, crowded agendas mean that governments stop enforcing certain laws, which leads to new social expectations about what laws will be enforced.

To understand the first point, it is important to recognize that human life is finite. Therefore, (more…)

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Over at BHL, my friend Andrew Cohen has responded to my post earlier this week making a skeptical case against the normative credentials of the idea of “social justice.” Andrew thinks that part anyway of the problem with my skeptical argument is that is framed in terms of rights. He believes that “harms” are “more basic” than rights, and that if we recast the story in terms of harms, we get a plausible normative account of where exactly social justice (more specifically, moral injustice) comes to be. I had framed that question in terms of supervenience, which is the idea that somehow moral (or more generally normative) properties come to be because of or in virtue of underlying non-normative (natural) properties. Most moral philosophers accept that as an analytical framework, because (i) it seems to be the way we think about normative properties, and (ii) it is neutral between at least a wide variety of theories about what the normative properties we should care about are, and what they supervene upon. I don’t think Andrew is rejecting that bit of analytic framework: he is thinking it works better if we look at “harms” as being the base (the “subvening” class of natural properties). Andrew has a book coming out explicating this sort of framework, and I haven’t read it. No doubt some at least of what I have to say here Andrew has counterarguments for in his book. My point will be that what we have on the table now neither solves the present problem (making normative sense of social justice) nor is an advance in providing analytical tools. Let me take the second, more general, point first.

First, I agree with Andrew that rights are not the most basic normative (moral) concept. But I don’t think that matters here. We’re after an understanding of justice or injustice, and rights-talk can usefully be used as a shorthand for the moral status that is violated or abused or what have you when injustice occurs. (And I’m fine with Andrew’s suggestion that it may be more useful to get a grip on injustice than on justice.) We can differ on what rights we have, and on why we have the rights we have, but still agree that injustice occurs when rights are violated. That anyway is the tradition I think most BHL’ers have been working in (indeed most liberal political philosophers, in the inclusive sense of “liberal”), and the one I work in. I don’t think it is one Andrew offers any alternative to, as I will argue.

Here’s the problem, and it is not a new one. The notion of “harm” is under pressure from both the normative and the non-normative side. That is, we want to use the term in such a way that harms are bad, but we also want to use it to capture certain kinds of natural fact about the world, such as when for example I hit your arm with my running chain saw. Since attaching normative properties to natural properties is in some sense the very problem I think we face in thinking about “social justice,” this might be a virtue for thinking in terms of harms. In fact I think it is not, because rather than providing a careful analysis of how this “attachment” takes place, harms-talk often equivocates between the two uses. Andrew does this in his post.

Harms, he says, are not just hurts. Although he doesn’t define “hurts,” what he goes on to say about harms suggests that we could think of hurts as “setbacks to interests.” That’s fine, provided we have a (more basic) account of interests. I doubt we can do things this way, but set that aside. The point is that hurts, so understood, have no import for (in)justice. That’s because setbacks to interests, though in most cases disagreeable to those whose interests they are, don’t necessarily represent moral wrongs. I can apply to a job I really like, and which it would be in my interest to get, and be in dandy shape until you — better educated, more experienced, a better candidate in every way — apply for the job as well, and get it. You have set back my interests in doing so, and so have hurt me. But (barring some further story) you have not wronged me, and there is no injustice involved. So hurts are not what we are interested in.

To move past this point, Andrew specifies that what we are interested in is wrongful hurts, wrongful setbacks to interests. That’s what harms are. They are wrongful, hence normative.  (So, strictly speaking, “wrongful harms” should be redundant, on Andrew’s view. I think it is telling that he finds himself using that locution anyway.) But now we need an account of when harms are wrongful, and when not. Harms are not, after all, normatively basic: they are dependent on an account of when setbacks to interests are wrongful, and when they are not. It is worth considering what J.S. Mill does when he runs into this problem, in trying to establish his “Harm Principle” as a basic principle for understanding when social intervention in individual action is permissible and when not. As many observers have noted, this strategy cannot possibly make harms basic, because many (including the harms to “disappointed competitors,” as in my example above) do not trigger the Harm Principle. That is to say, they don’t carry the normative significance that the relevant harms do. Nor do harms resulting from the “inseparable” effects of the “unfavorable judgment of others” (Ch. V), nor harms that are not “direct and in the first instance” (Ch. I), and so on. Mill finds himself using the language of “rights” to pick out which harms count: it is those that violate rights! (Ch. V).

I don’t mean to saddle Andrew with Mill’s problems, but he faces the same challenge: which harms are wrongful? When Andrew tells us what that criterion is, I will say: fine. Let’s say that people have rights to not being harmed in those wrongful ways, and we are right back where we began. Where is the injustice that doesn’t occur by individuals to individuals — the harm (following Andrew) that we need the notion of “social justice” to capture?

Notice that we cannot answer simply by identifying people whose interests have been set back. Doing so is identifying hurts, but not yet harms. To show the harms necessary for injustice, we have to show that these hurts are wrongful. If we are successful, at the end we will have an account of wrongfulness that cannot be set out in terms of hurts (since it is a criterion for when hurts become harms). So the recourse to hurts and harms is a superstructure, not a foundation. I doubt it offers much to moral theory, but as I say I haven’t read Andrew’s book, so Andrew very likely offers interesting ways to address these concerns.

In any event, the problem for the case at hand —making normative sense of “social injustice” — is that the structure Andrew is providing will face a challenge: show how there is a wrongful hurt that isn’t a hurt imposed by an individual, on an individual. Perhaps his book will do this, but we don’t have an indication yet of how he can do so. As his commenters have pointed out, Andrew’s example (of a receiver of a stolen iPhone) doesn’t work. There is no question that there is wronging occurring here, and that it counts as injustice. (At least I am not inclined to quarrel with the example in this way.) But just for that reason, we don’t need “social justice” to identify the wrong: we get everything we need with plain old injustice. At least, Andrew has not shown that this is not so. Moreover, this is far from the kind of case that “social justice” is trotted out to cover: the kinds of cases that, for instance, Kevin hoped to explain with the idea that “social justice” is an emergent property. So I don’t see that we make any progress on the problem by focusing on hurts or harms.

Addendum: one other point about Andrew’s argument. He says this:

The reason is simply that groups are nothing more than collections of individuals, so if something supervenes on group G, it supervenes on the collection of individuals that make up group G.

The first clause is amenable to moral individualism, on one reading. The fact that these individuals may be collected into a group in general would not change the moral standing, entitlement, or obligations of those individuals, if moral individualism is true. But the second clause (following “so”) can be true only on a reading of the first that is not compatible with moral individualism. The question is whether the subvening base of the moral properties (in this case, justice or injustice) is the individuals in the collection, or the collection itself. These can have importantly different properties. The House of Representatives is a collection of individuals. That collection has the authority to pass laws that none of its members do. The individuals are entitled to cast votes in their respective states, but the collection is not. Thinking that all the properties of the collection are just the properties of its members is a classic informal fallacy. I think the normative purport of “social justice” depends on that fallacy, and this is an indication of how easy it is for even a good philosopher to commit it. On moral individualism, only individuals, not the collections to which they belong, subvene normative properties. That’s why there is a normative problem with “social justice.”

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I have great respect and (in many cases) affection for my friends at Bleeding Hearts Libertarians. But I am not a bleeding heart libertarian, and from the outset I have resisted its siren song, mostly over its endorsement of “social justice” as a moral and/or political ideal. Unlike Hayek, I do not think the concept is incoherent. But I think Hayek has a point, and my resistance to the concept I think tracks at least some of Hayek’s motivation. But that resistance is normative, rather than conceptual. Recent exchanges on BHL have helped me clarify my thinking about the point that concerns me.

Kevin Vallier posted this week on the topic, responding to challenges from David Friedman as to the cogency of the concept. The discussion that follows Kevin’s post is excellent, and I am highly sympathetic to many of those resisting Kevin’s analysis. However, I would mount an objection slightly different than those on offer there.

Start with a point of agreement. Kevin says,

I take it that the term “social justice” can be used to cover individual rights-violations. For instance, if John rapes Reba, he has committed a grave injustice, one that could be called a social injustice. However, this is not the conceptual home of the concept of social injustice.

He is surely right about this. Individual rights-violations are, by their nature, unjust. Since they are transactions between two individuals, they are also social, and we can, if we like, uselessly append “social” to our description of actions as unjust. If that is all “social injustice” means, there would be no quarrel here. As Kevin suggests, we need to look elsewhere for its “conceptual home.”

Kevin thinks that “conceptual home” is in the class of emergent properties. Here is his central claim:

Social injustice is an emergent property of certain kinds of social, moral and political practices. Let’s illustrate with the familiar example of institutional racism. I take it that an institution is racist insofar as it reliably outputs states of affairs where a racial group fails to receive its due based solely on the racial properties of its members. Thus, even if no one in the institution is racist, they participate in practices that result, say, in blacks having fewer opportunities than whites simply because they are black. In other words, the institutional rules operate such that unequal outcomes are caused primarily by racial differences, even if no one person is acting in a racist fashion. Institutional racism is a paradigmatic case of social injustice. It is an emergent property of a social institution that commits an injustice without any individual acting in an unjust fashion.

Emergent properties are an important class of properties, but Kevin’s proposal is unusual in deploying the concept in this way. Why? He is proposing that a normative property — social injustice — is emergent from non-normative properties (perhaps the distribution of “opportunities,” however those are measured). And this is curious. The typical deployment of the notion of emergent properties would, I think, involve the emergence of non-normative (let’s call them “natural”) properties from other natural properties. Many of the spontaneous orders we see in both natural and social science are of this sort. The structure of crystals is an emergent property in the sense that crystals have that structure because of other physical properties they have. Language-use is a property that humans have in virtue of various neurological and other biological properties we have. And so on. Nothing to see here. Emergence of normative properties from other normative properties is also, I’d think, unproblematic. That would be, for example, the liberal analysis of slavery. We see the large scale pattern of injustice as caused by an assortment of unjust individual attitudes, beliefs, and courses of conduct. Again, nothing to see here.

But the proposal that normative properties might emerge somehow from natural properties oughtn’t to be dismissed simply because it is unusual. If you work much with normative concepts, you become accustomed to the idea that things work differently when you are contending with reasons, norms, and the like rather than causes. If the world is a causal order, and it has normative properties, then somehow we have to end up with normative properties emerging from natural ones. The form of emergence that moral and other philosophers typically deploy is supervenience. Normative properties like goodness, rightness, and so on supervene on natural properties, in the sense (some sense; different theories give different accounts of this relation) that the normative properties occur somehow because the natural properties occur. If you are a hedonist, for example, you think that badness supervenes on pain, goodness on pleasure. Something (an act, a state of affairs) has the property of badness precisely because it also has the property of being painful.

And this gets us to what is interesting. Remember that, if the concept of social justice is going to be at all interesting, it cannot simply be redescribing the sort of injustice that occurs when individuals violate the rights of others. What does the social injustice supervene on? The crucial point is: whatever the answer to that question, it is not a property of individuals.

Is that a problem? I’m not sure. I am inclined to think that the essence of individualism at the heart of liberalism is a kind of moral individualism — the idea, roughly, that all sources of value, obligations, and so on are individuals. Does Kevin believe that? Here’s what he says:

I can’t speak for my co-bloggers, but from my vantage point libertarians all too often ignore social injustices because of their sometimes flat footed (dare I say “cartoon”?) moral individualism. I’m a moral individualist in the sense that I think injustices can only be done to individuals, families or to voluntary associations. In a real sense, I don’t think injustices can be committed against “Americans” or “blacks” understood as groups defined independently of their members. So traditional libertarians are right that emphasize that the idea of social justice can sometimes be deployed in inappropriately collectivist ways.

But social injustices can be committed independently of human design. That’s a significant claim that departs from many threads of libertarian thought popular today. And my view on the matter is one of the reasons I joined the blog.

How does the moral individualism Kevin endorses differ from “cartoon” moral individualism? I’m not sure.  Is it an aberration that in a previous paragraph he spoke of “a racial group failing to receive its due”? I think it is not an aberration, but a natural slide invited and made possible by adversion to social justice.

I believe (and I think Kevin believes) that groups are per se not due anything. There are certainly moral and political positions (positions worth engaging) that disagree. But these are certainly not within either the classical liberal or libertarian tradition, and they require a rejection of the moral individualism that I think is worth endorsing, and to which Kevin is paying lip service. And the issue here isn’t the defensibility of such a claim, but whether or not those committed to libertarian ideals and principles should embrace or reject the use of the concept of social justice.

Is this then just an unfortunate slip? The problem is, without the thought that the normative property (the social injustice) supervenes on facts about groups, rather than individuals, there is no injustice here to be found. And that’s just where the BHL’ers would like to be able to find injustice. It’s tempting to revert to the idea that the individuals in the groups in question suffer, say, from a deprivation of opportunities. But either those deprivations are by individuals, to individuals, in a way that violates the rights of the injured parties, or those are not. If they are, then we have plain old injustice, without a need to appeal to “social justice.” And if they aren’t, then it’s hard to see where the moral complaint is, nor what individuals are “committing” the social injustice. Here the view Kevin is proposing is trying to have it both ways. Skeptics about social justice think that is endemic to the concept.

It’s worth noting that in Rawls’ hands the problem has to be located in a different place. I can’t see that Rawls ever locates the injustice of social injustice in properties of groups. (Though groups figure into the specification of the remedy, in the form of the Difference Principle, I take this to be a feature of the solution to the problem, not part of the formulation of the normatively problematic state of affairs — the social injustice — itself.) In that sense, Rawls’ moral individualism is intact. To get to social injustice, as I understand him Rawls has to build the social properties at issue into the obligations of justice we have as individuals. That is, part of what it is for us to treat each other justly, as individuals, is on his view to establish and sustain social institutions with the properties called for by principles of justice. That way of conceiving of social justice has its own problems, not for this post (which is already too long as it is). Is it compatible with thinking that social injustice is an emergent property (to return to Kevin’s basic proposal). Perhaps. But if so the emergence is a 5th wheel: all the work in generating the social injustice is done by individuals failing, in effect, to act justly in establishing institutional arrangements that satisfy the principles of justice. I am skeptical that we do have obligations of justice of the sort that this interpretation of Rawls requires. One reason for doing so is that (like Nozick) I suspect that these obligations of justice are incompatible with obligations of justice I am much more confident we have toward each other (such as obligations generated by desert). That’s why I think there is something deeply problematic about the Rawlsian conception of social justice. Those reservations are not alleviated by recourse to thinking that social justice (or injustice) is somehow emergent.

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I love Brad DeLong’s academic work. He’s way smarter than me and, more importantly, clearly works much much harder than I do. And he tackles interesting questions. But every time I check his blog, I get an awful “Everyone in the world is evil or stupid or both except Brad and a few of his friends” vibe.

I’d not been there for a while, but switching to The Old Reader (for now) from Google Reader messed up my RSS habits. And so, there I was, looking at Brad DeLong saying that Steven Landsburg is the stupidest man alive and that “the University of Rochester has a big problem” - presumably Landsburg’s continued employment there.

What was the cause? A piece at Gawker taking great offence at a thought experiment Landsburg proposed. I’ll link Gawker at the end so you’re not tempted to read it before reading the original Landsburg piece.

In grad school, we had a lot of fun with thought experiments of this sort. The classic one is Nozick’s experience machine. Step into the machine and you’ll experience a simulated life much better than the one you’d otherwise live; moreover, you’ll never remember that you’re actually in the machine. If you stay out of the machine, there has to be something that matters more to you than experienced utility.

Tyler Cowen liked to ask a variant on it in our Economics & Philosophy class: World B is identical to World A, as far as you are ever able to observe, but in World B, your wife has been cheating on you for years and you never ever knew it, nor will you ever know it. The worlds are identical except for the unknown-to-you fact of your wife’s infidelity. Are you worse off in World B? If so, clearly state exactly how, and make that consistent with other things you believe about utility.

So, what was Landsburg’s offensive thought experiment? Recall that the rules of thought experiment club are that you don’t add in auxiliary assumptions but stick to what’s stated in the thought experiment. Landsburg asked a series of three questions, then wanted to know why our answers to 1 and 2 might differ from our answer to 3. Here they are.

Farnsworth McCrankypants just hates the idea that someone, somewhere might be looking at pornography. It’s not that he thinks porn causes bad behavior; it’s just the idea of other people’s viewing habits that causes him deep psychic distress. Ought Farnsworth’s preferences be weighed in the balance when we make public policy? In other words, is the psychic harm to Farnsworth an argument for discouraging pornography through, say, taxation or regulation?

That’s scenario 1. Most economists just ignore that psychic harm – the world’s essentially impossible to evaluate when we add this kind of thing in. Further, Farnsworth could pay other people not to watch pornography if he really cared about it that much. But we could assume that away to stick within the proper confines of the thought experiment: say transactions costs prevent it. Is pyschic harm of this sort admissible in the utilitarian calculus? Here’s scenario 2:

Granola McMustardseed just hates the idea that someone, somewhere might be altering the natural state of a wilderness area. It’s not that Granola ever plans to visit that area or to derive any other direct benefits from it; it’s just the idea of wilderness desecration that causes her deep psychic distress. Ought Granola’s preferences be weighed in the balance when we make public policy? In other words, is the psychic harm to Granola an argument for discouraging, say, oil drilling in Alaska, either through taxes or regulation?

Actually, policy does weigh Granola’s concerns. It’s counted as existence value over and above option value or use value. Sound analyses don’t put much weight on it, but it does sometimes count. If I get existence value from thinking heroic Randian thoughts about oil derricks and man’s mastery of nature, that gets ignored in the cost-benefit analysis for some reason. But, again, all these kinds of pyschic distress are treated pretty dismissively in economics. And now the third and controversial question:

Let’s suppose that you, or I, or someone we love, or someone we care about from afar, is raped while unconscious in a way that causes no direct physical harm — no injury, no pregnancy, no disease transmission. (Note: The Steubenville rape victim, according to all the accounts I’ve read, was not even aware that she’d been sexually assaulted until she learned about it from the Internet some days later.) Despite the lack of physical damage, we are shocked, appalled and horrified at the thought of being treated in this way, and suffer deep trauma as a result. Ought the law discourage such acts of rape? Should they be illegal?

If we take this as a parallel thought experiment, the only trauma here allowable is the psychic distress, which we otherwise typically ignore.

It is a hard question and so a good one. All our intuitions tell us to condemn the third scenario while dismissing the psychic harms in the first two. But if we stick within the confines of the thought experiment, it’s hard to distinguish the cases. We can say the psychic harm is worse in the third case, and it would be in the real world, but it’s not hard to have a thought experiment Granola McMustardseed who gets more psychic harm from oil drilling than from being in Scenario 3. Or a Scenario 3 victim who never learns that it happened – a case pretty close to Cowen’s World A vs World B.

I don’t have any great answer other than that when we step away from the thought experiment and into the real world, a rule allowing Scenario 3 that imposes psychic harm no greater than that imposed in Scenarios 1 & 2 would also necessarily allow much much greater harm because we cannot set rules only allowing Scenario 3. But that’s a cop-out, because even if we could do it in the real world, I’d still want it banned – in the same way that I think I’m worse off in Cowen’s World B and that I wouldn’t want to step into Nozick’s machine. My maximand isn’t just experienced utility.

Meanwhile, Gawker turns it into a story about how Landsburg thinks rape is OK and DeLong signs onto their interpretation. The contrast between the quality of comments at Landsburg’s post and DeLong’s is interesting too… Landsburg’s commenters wrestle with a difficult thought experiment; DeLong’s want Landsburg fired.

[cross-posted to Offsetting Behaviour]

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The Supreme Court yesterday decided to take up a new affirmative action case from the University of Michigan, along with the case from the University of Texas they are already considering. I don’t know what the Supreme Court will decide, or what it ought to decide on the basis of constitutional text and judicial precedent (although the appeals court’s logic in upholding Michigan’s program seems wildly tortured to me), but libertarians do not necessarily oppose state-sponsored affirmative action. Yes, that’s right: even state-sponsored racial discrimination can be justified for libertarians.

Now, affirmative action is generally not a big issue for libertarians. I’ve never heard a libertarian spontaneously bring up affirmative action as an important area of government overreach. It certainly doesn’t exercise libertarians the way the drug war, perverse economic regulations, protectionism, failed foreign wars, and even Bloomberg’s soda ban do. Nevertheless, my impression is that most libertarians oppose all state-sponsored discrimination on the basis of ascriptive criteria (race, gender, religion, etc.), except where necessarily related to the legitimate task or purpose the government is undertaking.

But deontological libertarians also believe in restorative or restitutive justice. And it cannot be denied that governments in the United States have historically harshly discriminated against African-Americans. For libertarians, those governments are morally required to compensate the victims of their injustice. For that reason, libertarians support financial “reparations” for victims of segregation.

But what about broader programs like those in university admissions that are intended to benefit all blacks? The last Jim Crow laws and practices were forcibly stamped out in the 1960s, almost 50 years ago. Does that mean that blacks born after the days of legally mandated segregation deserve no compensation? Not at all. Descendants of those discriminated against still carry some of the burdens of that discrimination. As generations pass, identifying the present-day victims of past injustice becomes more difficult and, eventually, impossible. Reparations for slavery would be difficult to implement justly; reparations for dispossession of Native Americans even more so. But within one or two generations, we can still identify victims and come up with plausible measures of the compensation they deserve. By analogy, I can’t imagine that any libertarian would say that the family of someone murdered by police don’t deserve any compensation, even though they were not the “first-order” victims of injustice. They still suffered injustice.

But don’t racial preference programs benefit all members of a racial minority group, whether or not they are descended from victims of gross, systematic, state-sponsored injustice? For instance, an immigrant from Africa could benefit from Michigan’s affirmative-action admissions policy. Here there are two points to make. (more…)

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On Sarah Conly’s book, Against Autonomy: Justifying Coercive Paternalism (must quote the whole thing):

Human beings are irrational. As Sarah Conly writes, “The truth is that we don’t reason very well, and in many cases there is no justification for leaving us to struggle with our own inabilities and to suffer the consequences” (pg. 1).

Fortunately, however, while human beings don’t reason well, government officials do. This is because they are able to be more objective than we are. Again, Conly explains this very well: “Since we do better at estimating efficacy when we are in a relatively objective position, government, insofar as those in it are not the ones who are at present tempted by the rewards of the poor decision, can help us do better to reach our own, individual goals better than we would do if left to our own devices” (pg. 10).

And indeed, our history proves Conly’s claim, as objective government officials have acted with the reason and balance of experts who are not tempted by direct involvement in the questions being decided: the Sedition Act of 1798, which led to the imprisonment of newspaper editors who criticized government. Indian removal. The Fugitive Slave Act. The Dred Scott decision. The Wounded Knee massacre. Plessy v. Ferguson. Jim Crow laws. The firebombing of Tokyo. The mass internment of Japanese-Americans. The secret bombing of Cambodia. Drone attacks on Pakistani wedding parties. Indefinite military detention. The wisdom of government is virtually infinite, and has created a world of steady progress. When we act individually, we are irrational and reckless. When government officials act upon the human society from which they ascended, they do better to help us all reach our proper goals.

Indeed, this is but a partial list, as it omits the deep wisdom of, say, the European state. In Europe, too, government officials acting from relatively objective positions have been able to create clear examples of rational progress. Like miles of trenches cloaked in poison gas, say, or a uniquely efficient rail system in Poland.

For some final, powerful examples of Conly’s argument at work in the real world, just read the very first sentence of her book, which explains the problems a paternalistic government could help us to solve: “We are too fat, we are too much in debt, and we save too little for the future.”

See? Too much debt! No savings for the future!

We individuals and societies are reckless, but government would never behave like that.

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Matt Zwolinski of Bleeding Heart Libertarians has written an excellent series of posts on the libertarian justification of property rights. Here‘s the latest.

The first and most important thing to note about both Locke and Nozick’s arguments is that, unlike utilitarian arguments, they are individualistic rather than collectivistic in nature. For the utilitarian, all that matters in justifying an action (or an institution like property rights) is its effect on overall well-being. On the utilitarian view, then, property rights are justified if the overall benefits they produce are greater than the overall harms they produce, regardless of how those benefits and harms are distributed among different individuals.

For Locke and Nozick, on the other hand, property rights are only justified if they benefit (or at least do not harm) each and every individual. Now, this probably seems like an extremely tough argumentative hurdle for the defender of property to clear. Could it really be the case that each and every individual is better off under a system of private property rights than he would have been without one?

The answer is, or can be, yes. Almost everyone today is vastly better off, and freer, because of the system of private property rights. In those rare, possibly pathological cases in which a person is worse off due to the system of property rights, the Lockean justification of property rights provides a rationale for some kind of “re”distribution as a matter of justice, a point that Matt notes at the end but defers to a future essay. In the event, this is one area where I tend to agree with BHL’ers: there should be a basic income of sort to replace the welfare state, which would probably have to be set at a few thousand dollars a year in the present-day United States in order to ensure that literally everyone is better off due to the private property system, despite its coercive nature.

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Over at Bleeding Heart Libertarians, there have been some interesting posts recently on moralized and non-moralized conceptions of freedom. Jason Brennan says defining liberty to mean only negative liberty is “linguistic revisionism” without philosophic import. He then makes the case that bleeding-heart libertarianism (or Rawlsianism or various other non-traditionally-libertarian conceptions of property rights) does not necessarily violate the “non-aggression axiom.” Finally, he argues against moralized conceptions of freedom. I agree with the first two posts but not the last one.

It’s true that people use “freedom” to mean different things. Hobbes infamously defined it as the absence of physical constraint. Jason prefers something like “ability to realize one’s ends.” Both of these definitions are non-moralized. As Jason makes clear, positive liberty is not only not good by definition, it is not always good. My freedom to swing my fist into your nose unprovoked does not deserve respect — but it’s still freedom, in this non-moralized sense.

Now, Jason is absolutely right that nothing substantive turns on how we define our terms. He’s also right that simply defining freedom as justice (that which is, in the final analysis, right) abuses ordinary language and is tautological. On the other hand, I will note a tension between the claim that positive liberty is not always good and this claim:

The thing that Marxists and others mean by “positive liberty” is valuable and worth promoting. One of the best arguments for classical liberal institutions is that as a matter of fact they do a good job getting people positive liberty.

But if positive liberty is not only not good-by-definition but is also not good-by-inference, then the mere fact that a system tends to promote positive liberty is not a point in that system’s favor. The fact that system X makes it easy for people to swing their fists into other people’s faces whenever they want, thus helping them achieve their ends, is not a point in favor of the justice of system X. Now, the claim might be that swinging fists into people’s faces hurts the positive liberty of those victims, and I agree — but I don’t agree that we can simply sum up positive liberties across people and truthfully say that everyone ought to try to maximize that sum. That’s a controversial moral claim. Indeed, Matt Zwolinski refutes the view strongly here, and even says, “No serious libertarian intellectuals think about libertarianism in terms of maximizing liberty.” I don’t know how this statement squares with what Jason says he and David Schmidtz are arguing about how we ought to evaluate the regime of negative liberty.

Furthermore, I don’t think we can rule out all moralized conceptions of freedom as tautological. People in ordinary language use freedom in a moralized but non-tautological sense all the time. When someone says, “I can say what I want, it’s a free country,” she’s not saying, “It’s a country where I can realize my ends.” She’s saying something like, “In this country, we are not supposed to be subject to the arbitrary domination of others’ wills.” Freedom as non-domination means a great deal to people, arguably more than the mere ability to realize one’s own ends. The reason slavery is so repugnant is not really that it makes the slave unhappy, but that it enshrines an extreme form of inequality and domination. (I’m making a substantive, controversial moral claim here.)

But freedom as non-domination is also not the whole of justice. Marxists like G.A. Cohen arguably accept non-domination just as much as libertarian anarchists like Murray Rothbard. They just disagree about the proper conception of property rights, which also belongs to the domain of justice. Now, if you are persuaded about the libertarian account of property rights, then a Marxist regime imposed without consent looks like unjust domination, un-freedom. Still, even if we read back into “freedom” claims about justice, freedom-as-non-domination is not tautological: it doesn’t simply define freedom as justice. Yet it is a moralized conception of freedom common in everyday discourse.

Update:

Jason Brennan responds by e-mail:

Thanks for posting that. Does this clear up things?

1. I don’t literally mean that positive liberty is always good, but rather that it tends to be good and tends to be worth promoting. Schmidtz and I talk at some length in BHOL about how there’s not clear measure of positive liberty, but that doesn’t mean we can’t make good estimates. If people are living longer, have more options, have more money, have more technology, etc, they will usually have more positive liberty.

2. I prefer to use non-moralized definitions of liberty: Neg lib = absence of obstacles, pos lib = power or capacity. But Schmidtz and I note that in common language, we often mean much more specific ideas when we use the terms “liberty” or “freedom”. If someone says, “X is a free country,” we assume she means they protect a wide range of negative liberties. My raise gave me the freedom to enjoy life, we assume she means positive liberty as capacity/power. And so on.

Schmidtz and I would agree with Matt Z and Nozick that negative rights are side constraints–we shouldn’t have a utilitarianism of rights. But negative and positive liberty are different. Negative liberty first and foremost should be respected, and then promoted. Positive liberty is to be promoted (when it’s good, and if doing so is consistent with our rights).

My response to Jason:

Thanks for the response. It clarifies a great deal. I clearly misread your position on positive freedom. I can’t quarrel with your description of the conceptual landscape below. Substantively, too, we’re not far apart, though I don’t think it’s generally morally impermissible to refrain from promoting the positive liberty of humanity in general (for instance, in order to focus on one’s own life projects).

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Jonathan Haidt is everywhere these days, giving interviews and TED talks, promoting his working papers in the media, writing for the websites yourmorals.org and civilpolitics.org, and publishing The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Pantheon Books, 2012). A moral psychologist by training, Haidt has successfully cleared the jump to public intellectual, now dispensing didactic advice to Americans about what ails their politics. The Righteous Mind reflects those aspirations, not just summing up his own original research on the psychological foundations of political ideology for a general audience, but also shoehorning in some surprising interpretations of moral philosophy and conjuring out of the whole stew some advice for American politicos (and what could be more important than that?).

Did you know that moral philosophers do not believe in intuition? Did you know that David Hume thought that reason was weak and ineffectual against the tide of passions? Did you know that Bentham and Kant were probably on the autism spectrum, and that that fact explains their moral philosophies? Did you know that Kant was a philosophical rationalist, and that philosophical rationalists think that morality is all about justice and fairness? Philosophical rationalists also think that children learn about morality through experience, just like Lawrence Kohlberg, Haidt’s nemesis in moral psychology — and totally not like Hume.(*)

If you did not know these things, which might especially be the case if you are a moral philosopher, Haidt is here to enlighten you. As he helpfully informs us, he took a couple of philosophy courses as an undergraduate, before he realized that it was all bunkum.

Haidt begins (more…)

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One of the regular Pileus bloggers asked me to elaborate on a claim I made briefly in my earlier discussion of BHL. I had said “there is an intra-libertarian debate [that it is useful to have about philosophical justification: is a system of individual rights ultimately justified because it accrues the best results for the poor, or is it justified for some other reason(s), and has the beneficial characteristic of accruing the best results for the poor?” and suggested I thought it was the latter. The idea that the social order can only be justified if it brings about the best results for the worst off, which is a prominent feature of Rawlsian welfare-state liberalism, has been employed as a rationale for classical-liberal non-redistributionist policies. I certanily like the irony that the chief heuristic of redistributionist theory undermines redistributionist institutions. And, as I said in the orginal post, I appreciate the positive outreach effects of noting that free market policies help everyone prosper, especially the poor. But I am hesitant to agree that the Rawslian principle is why we should have free markets. For one thing, I think we should have free markets for the same reason I think we should be free generally. I do not differentiate “civil liberty” and “economic liberty.” The latter is simply the manifestation-in-transactions of the former. Without the freedom to transact, my “freedom to choose” is pretty superficial. Rawls himself argues that we must have a system of equal freedom to choose and believe and think and speak – rights that cannot be trumped by social utility. It is only trading and acquiring rights that he says can be interfered with. But as Nozick demonstrated, you cannot interfere with transactional freedom without simultaneously interfering with freedom of choice. There are not two kinds of liberty, civil and economic, there’s just liberty (although there are of course different contexts in which we talk about liberty). And I think liberty is a necessary component of human flourishing. Humans cannot achieve virtue and happiness by coercion. “Rights” should be understood as a way to secure the possibility of self-directed activity in the social setting. The social order is thus justified if it is one which protects individual rights, and unjustified otherwise. That is the why of classical liberalism. The fact that classical liberalism and free markets help the poor better than redistributive statism is a great thing, both intrinsically and in terms of explaining its virtues to others. But the justification must be something else, something universal. Put it another way: if everyone were wealthy, would individual rights no longer be important? Of course not.

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Judge Napolitano, an eloquent advocate of liberty, is in fine form here, in his discussion of the relevance of natural law theory to immigration. I was especially pleased with his observation that politicians are at most fair-weather friends of natural law: “This view of the natural law is sweet to the heart and pleasing to the ear when politicians praise it at patriotic events, but it is also a bane to them when it restrains their exercise of the coercive powers of the government.” This is correct- the idea of natural rights, moral rights that are not created by governments, is (for them) a convenient rhetorical device, to be discarded as soon as they perceive that it would be more popular to frame an issue in terms of “practical solutions,” “being realistic,” or “the compromises necessary in a democracy.” Politicians and pundits both left and right do this: on positions they favor, it’s wrong for the government to interfere with the exercise of natural rights, but when the subject is something they oppose, positivism rules. Judge Napolitano surprised a “conservative” talk show host recently by invoking natural rights as a trump against nativist sentiment. Specifically, he argues that “Our fundamental human rights are not conditioned or even conditionable on the laws or traditions of the place where our mothers were physically located when we were born. They are not attenuated because our mothers were not in the United States at the moment of our births. Stated differently, we all possess natural rights, no more and no less than any others. All humans have the full panoply of freedom of choice in areas of personal behavior protected from governmental interference by the natural law, no matter where they were born. Americans are not possessed of more natural rights than non-Americans….” He goes on to show why the government has no right to interfere with freedom of movement. (It furthermore has no right to prevent you or me from hiring whomever we want or selling/renting land to them.) Politicians and pundits on the right aren’t comfortable with the language of natural rights when it comes to issues like marriage or immigration. Their counterparts on the left aren’t comfortable with such language when it comes to issues like self-defense or trading. The Judge gets it. I wonder how the national discussion of rights would go if he had the audience of Paul Krugman, Rachel Maddow, Pat Buchanan.

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One of the most significant developments lately in terms of framing libertarianism has been the advent of the “Bleeding-Heart Libertarian” blog. I know most of the contributors personally (and I’m electronically-acquainted with all of them), and there’s not one I don’t respect. Their mission statement says they are “libertarians who believe that addressing the needs of the economically vulnerable by remedying injustice, engaging in benevolence, fostering mutual aid, and encouraging the flourishing of free markets is both practically and morally important.” The reason that’s a great point to make is that often, people who advocate the moral superiority of the free society are accused of not caring about the poor. One response to that is to bite the bullet and say “right: I don’t care about the poor qua poor, I care about all people qua people, and all people’s rights must be protected.” That’s a legitimate stance, but it’s not hard to see why some critics of liberalism find it less than compelling. So it’s helpful to say, as they do, “no, you don’t get it: we do care about the poor – that’s why we advocate free markets and individual liberty.” To be sure, there is an intra-libertarian debate to have about philosophical justification: is a system of individual rights ultimately justified because it accrues the best results for the poor, or is it justified for some other reason(s), and has the beneficial characteristic of accruing the best results for the poor? This is not unlike Socrates’ second refutation of Euthyphro: the pious is loved by the gods, but that’s an attribute, not a definition. As President Clinton (correctly!) put it, it depends on what the meaning of the word “is” is. I think it’s right and important for political philosophers to have that argument (and for the record, I say it’s the latter), but inasmuch as we ultimately want to persuade as many people as we can of the good sense of our position, I think this sort of debate should not overshadow the many ways in which we can show that good sense.

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I got into an argument with a structural engineer the other day. I was saying that it would be really cool if the Navy had something like the Helicarrier used by SHIELD in the Avengers movie. He was trying to say that it “wouldn’t work” for some kind of technical reasons, like there’s no known power source that could make something that big hover and also be on the thing, and that even if we had one, the blast from the turbines would be so powerful that it would destroy any buildings it happened to fly over. But I replied that this was just his opinion. In my opinion, it would be terrific, and these “technical” objections really shouldn’t override how awesome it would be to have a Helicarrier. He kept insisting that, unlike me, he had spent years studying physics and electromagnetism, and that therefore his “opinion” as to what was or wasn’t technically feasible was better justified than mine, and that my aesthetic preferences really didn’t amount to much in the absence of good reasons. I replied that he doesn’t have perfect knowledge, so my opinion should count just as much, and I reiterated how great it would be: it would greatly enhance naval effectiveness and air superiority, plus it would super-cool so we should just do it and make it work. Who’s to say we couldn’t possibly make it work? He kept going back to the theme that I’m not really qualified to say what would work, whereas he actually was an expert on these things. He said he realized it sounded arrogant when he put it that way, which he didn’t intend, but that he did actually have a PhD from Cal Tech, and that he was only bringing it up to help motivate the point that I didn’t have a rational basis for arguing with him about this.

The above anecdote is fictional, of course, yet it’s analogous to the kinds of arguments economists and political philosophers often find themselves in. The word “rights” can’t just mean whatever you want it to mean, and not every conception of rights will be coherent. In a democratic society, everyone is entitled to have their voice heard, but it’s a mistake to infer from this that everything is up for grabs, that Locke and Marx (or Keynes and Hayek) are “just different opinions.”

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“Imagine that a Wall Street billionaire is passing a bag lady on the street. She begs for a dollar. Should the billionaire give it to her? It’s just plain obvious that the bag lady would benefit more from the dollar than the billionaire. The donation would detract from his happiness less than it would add to hers. Therefore, interpersonal comparisons of utility are possible, and these comparisons ground our eleemosynary duties.”

So runs a familiar thought experiment beloved of utilitarians and consequentialists about property (like Rawlsians). Indeed, to deny that interpersonal comparisons of utility are ever possible seems willfully obtuse. Moreover, to deny that there are any eleemosynary duties is heartless and wrong. What I wish to challenge here is the idea that interpersonal comparisons of utility ground those duties.

Just as the original scenario resorts to the intuition pump, I shall do the same. This scenario is likewise intended to illustrate clear differences in utility across persons.

Imagine that you have been fairly well-off. Two formerly well-off friends of yours have, however, fallen on hard times. They have lost their jobs and run through their savings. They have sold their houses, moved into cramped, run-down apartments, and are generally living a hand-to-mouth existence in which they lack some of the “primary goods” needed for a decent life, such as the ability to save for the future. One friend bewails his condition constantly; he is clearly deeply unhappy due to his financial circumstances (but not suicidal). The other friend seems to accept his lot with relative cheerfulness; while he regards his financial circumstances, which are just as bad as those of the other friend, as a serious difficulty, he maintains an optimistic view on life and on the whole is not terribly unhappy.

Which of these friends is more deserving of your support, or are they equally deserving? For the utilitarian, the answer is clear: the unhappier friend deserves more financial assistance, as financial assistance will do more to raise his spirits. But is that the right answer? Intuitively, it is not. Intuitively, the second friend deserves as much support as the first, and we might even be more favorably disposed to aid the second friend — while we pity the first, we admire the resilience of the second and want to see that character trait rewarded.

Is there any principle beside the principle of utility that our intuition would support? I suggest (more…)

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Here are the essay questions from the final exam I gave in “Introduction to Political Philosophy” last semester. How would you answer these questions?

3.1
Rights to Property
Answer one of these questions.
1. What is John Rawls’ “difference principle,” and how does he defend it?
What are its implications for the welfare state? Is the argument persuasive?
Why or why not?
2. Robert Nozick criticizes “patterned” principles of justice in holdings, like
Rawls’, on the grounds that they authorize unjust redistribution of wealth.
Why do patterned principles authorize redistribution? Why is redistribu-
tion unjust? Are those arguments persuasive? Why or why not?

3.2
Evaluating Moral Arguments
Answer one of these questions.
1. Evaluate the soundness of the following argument. “1. It is morally imper-
missible to take away anyone’s life, health, liberty, or possessions without
her clear consent. 2. Governments take away people’s possessions (taxa-
tion) and liberty (imprisonment) in certain circumstances. 3. Therefore,
governments must obtain the clear consent of every person they govern.
4. Virtually no government on earth has obtained the clear consent of ev-
eryone they govern. 5. Therefore, virtually all governments systematically
violate the rights of their subjects.”

2. Evaluate the soundness of the following argument. “1. It is morally
impermissible to allow someone to die when one could save that person
without sacrificing anything of comparable moral significance. 2. The
consumption of luxury goods is not of comparable moral significance to
human life. 3. Therefore, if one can save another person’s life merely
by transferring money that one would otherwise have used to purchase
luxury goods, one is morally bound to do so (i.e., it would be morally
impermissible not to). 4. Today, people in the rich world have surplus
money that they spend on luxuries, money that we know could save lives in
the poor world. 5. Therefore, people in the rich world are morally bound
to transfer money that would otherwise be spent on luxuries to people in
the poor world who would otherwise die.”

Notably, only one person who answered 3.2.1 thought the argument was sound, and only a small number of students who answered 3.2.2 thought this argument was sound. Both arguments are valid.

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Left-libertarians are dismayed at the support most libertarians and classical liberals have been giving to right-to-work laws, which withdraw recognition from clauses in collective bargaining contracts that require all employees in a workplace to pay agency fees to the union that represents that workplace. Many libertarians have supported right-to-work laws on the grounds that they “balance the playing field” somewhat or undo some of the harm caused by the National Labor Relations Act (or “Wagner Act”), which requires employers to bargain collectively with a union that achieves majority support in an organization election. But left-libertarians aren’t buying that as a rationale for laws that withdraw recognition from a particular type of private contract.

Quoth J.D. Tuccille:

[T]he distortions in human life caused by intrusive laws always raise the temptation to patch over the problems with additional legislation. That additional legislation is likely to lead to more problems … That’s why we’re always better off dumping bad laws than trying to “fix” them in a spiraling game of spackle-the-law books.

And here is Gary Chartier:

Right-to-work proponents argue that the laws they favor only help to level the playing field created by government action—by reining in special privileges granted to unions under existing labor law.

But those laws actually presuppose the restrictions inherent in that framework, while extending them further. One goal of the NLRA and later federal laws was to reduce conflict—-and in effect reduce workers’ choices—-by ensuring that just one union, moderate enough to win majority support (and therefore moderate enough to be cooperative with employers), would operate in a given workplace, while suppressing more radical unions and labor actions.

And finally here is Sheldon Richman, quoting Percy Greaves:

“Two wrongs never make a right. The economic answer is to repeal the bad intervention and not try to counterbalance it with another bad intervention. Such moves only provide the politicians with greater power over the entire economy.” In other words, the end doesn’t justify the means.

Is the “two wrongs don’t make a right” analogy persuasive here? First, let’s specify that we are looking at right-to-work laws for private-sector workers. RTW laws for public-sector workers could be viewed simply as the government’s tying its hands with respect to its own future collective bargaining negotiations, something that few would deny they have a moral right to do. Second, let’s all agree that the purpose of collective bargaining is, above all, to establish a monopoly of labor with respect to a particular employer. The union uses its bargaining power to negotiate higher wages and benefits than they could receive on a competitive labor market. That this is the primary purpose of unions, especially in the post-Wagner Act era, isn’t disputed by mainstream labor economists (see Mancur Olson’s Logic of Collective Action, among many others). Third, let’s agree as libertarians that the Wagner Act is unjust, that it wrongly forces employers to negotiate with a union and wrongly forces employees to be represented by a union even if they do not consent to such representation. Of course, non-libertarian liberals can and do disagree with this proposition.

Now, let’s consider an inflammatory analogy to the Wagner Act. Imagine that the government decides to give its official stamp of approval to Mafia protection contracts reached with shopkeepers (call it the “National Mob-Small Business Relations Act” (NMSBRA)). So long as the Mafia follows certain procedures in strongarming shop owners into agreeing to their demands, the courts will enforce contracts reached under duress. To libertarians, left and right, there is not much fundamentally morally different between the Wagner Act and the NMSBRA.

Now, suppose some of these mob protection contracts contain exclusive-supplier clauses. They state that the hapless storeowner not only must pay off the mob, but must use only mob-approved suppliers. In response, some states pass “right-to-supply” laws, which forbid the enforcement of mob protection contracts’ exclusive-supplier clauses, while leaving the basic structure of the NMSBRA intact.

Do right-to-supply laws take away freedom? After all, they interfere with “private contracts,” and it is possible, though unlikely, that some shopkeepers would want to sign exclusive-supplier contracts with the Mafia even in the absence of any threat of coercion.(*)

But surely, refusing to enforce a particular, exploitative provision of an extorted “contract” does not in any tangible sense infringe on freedom and, in fact, enhances it. By the logic of left-libertarian opponents of right-to-work, if the government ever adopted something like the NMSBRA, then “right-to-supply” laws ameliorating the oppression should be resisted as intrusions into supposed “freedom of contract.” This position reminds me of purist opponents of legal medical marijuana on the grounds that only fully legal marijuana is worth supporting.

Now, I don’t want to imply that mob protection contracts are in fact morally equivalent to union shop contracts. I am merely arguing that they are analogous. Sometimes an “extreme” analogy can help us better understand the moral principles behind our judgments. In this case, I see no intuitively appealing moral principle that could equally condemn right-to-work laws and the Wagner Act, as left-libertarians wish.

But there’s more. (more…)

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FreeMarketFairnessBook
In Free Market Fairness, political philosopher John Tomasi sets forth a new research program in normative political theory that he calls “market democracy.” Market democracy triangulates orthodox libertarianism and social-democratic, egalitarian liberalism and, Tomasi hopes, provides a principled moral grounding for a moderate classical liberalism that has room for both a modest welfare state and a vigorous, competitive, free-market economy. Tomasi’s book is innovative — and, I should note, more readable than most contemporary political philosophy. The arguments he develops here pose important challenges to both “left” (social democrats) and “right” (traditional libertarians), and so it should be widely read.

The book is most effective in making the case that “justice as fairness” and a robust concern for basic economic liberties are not necessarily contradictory. At the same time, the book’s sketch of market democracy–and more specifically, “free market fairness,” the justificatory edifice for market democracy that Tomasi endorses–leaves many details unexplored and is unlikely on its own to persuade traditional libertarians and Rawlsian/egalitarian liberals to abandon their long-held commitments. Tomasi views the book’s purpose as an ice-breaker, opening up new waters for exploration, and it should be read in that light, not as a comprehensive treatise.

I. Approach

Tomasi directs most of his arguments toward left-liberals, not libertarians. He aims to persuade them of two things: a) that some economic liberties are fundamental rights that every just society must guarantee to all; b) that at the level of ideal theory, market democratic regimes (he identifies two ideal types, “democratic limited government” and “democratic laissez faire”) are on a level with Rawls’ egalitarian regimes (“liberal socialism” and “property-owning democracy”) when it comes to their capacity to realize legitimate, egalitarian social goals, such as the maximization of the wealth of the representative poorest worker. Tomasi does not claim anything so facile as, “The free market is the best way to realize Rawlsian objectives.” Rather, Tomasi argues that Rawlsian objectives are flawed insofar as they ignore fundamental rights to own property and engage in exchange that are critical to authorship of one’s own life plan. Further, once we have sussed out the true requirements of justice as fairness, we find that free-market regimes can be designed plausibly so as to aim at meeting those requirements.

Tomasi also claims not to be merely splitting the difference between orthodox libertarianism a la Nozick or Rothbard and Rawlsian egalitarian liberalism (xix). On the question of methodology, Tomasi comes down firmly on the side of Rawls. (more…)

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Imagine two countries, each the size of the U.S. In one of them, the average tax rate is 1% (of income) lower than the other, but unlike the other it randomly selects ten innocent individuals for execution each year (perhaps ritual human sacrifice!). Assuming personal income of $12 trillion like the United States, the lower tax rate in this country allows for more freedom worth $120 billion a year, by our method. If the statistical value of a life is $7 million, however, the execution policy only costs $70 million a year in freedom. Thus, not only is the human-sacrifice state with a slightly lower tax rate “freer” by this crude metric, but it is not even close.

Which is truly the freer country, assuming they are exactly alike in all other respects? And by how much?

The first paragraph above comes from the forthcoming third edition of Freedom in the 50 States: Index of Personal and Economic Freedom.

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A recently published paper by Ravi Iyer and coauthors on the “libertarian personality” has been getting a great deal of attention. To recap the findings,

Compared to self-identified liberals and conservatives, libertarians showed 1) stronger endorsement of individual liberty as their foremost guiding principle, and weaker endorsement of all other moral principles; 2) a relatively cerebral as opposed to emotional cognitive style; and 3) lower interdependence and social relatedness. As predicted by intuitionist theories concerning the origins of moral reasoning, libertarian values showed convergent relationships with libertarian emotional dispositions and social preferences.

Like conservatives, libertarians apparently tend to have little truck with moral values like compassion, while like liberals, they tend to despise values like loyalty. The only thing that matters to them, allegedly, is freedom. Furthermore, libertarians are cold utilitarians: in the “trolley problem,” they show themselves more willing than liberals and conservatives to kill an innocent person to save a larger number of people. In addition, the authors find that “libertarians were the only group to report valuing pragmatic, non-moral traits more than moral traits. Libertarians may hesitate to view traits that engender obligations to others (e.g. loyal, generous, sympathetic) as important parts of who they are because such traits imply being altruistic.”

Put it all together, and libertarians sound like a distasteful bunch. Indeed, “distasteful” is putting it rather too weakly. Libertarians look to be amoral.

Now, Ilya Somin has some trenchant criticisms of the study, which we should bear in mind. Still, if the study is unbiased — and I wouldn’t be surprised if some of the findings did hold in the population of self-identified libertarians, it points to some serious problems in how libertarianism, at least popular libertarianism, conceives of itself.

As we never tire of noting here at Pileus, (more…)

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At Bleeding Heart Libertarians, Kevin Vallier has an interesting piece on the failure of “Enlightenment libertarianism” and the case for “post-Enlightenment libertarianism.” While I agree fully with Dr. Vallier’s critique of libertarian dogmatism in the Randian and Rothbardian modes, I have considerably more difficulty with the public-reason liberalism he associates with “post-Enlightenment” thinking.

You can’t prove a complete political or moral philosophy apodictically from self-evident axioms. That much is obvious. Somewhere along the way, you are going to have to make contestable assumptions. What Rand, Rothbard, and deductivist dogmatists of all stripes forget is a basic Humean (Enlightenment thinker!) humility about what reason is really good for. Reason helps us check whether arguments are valid, following inevitably from their premises, and whether premises are more or less likely to be true, by matching them against our observations of the external world or our internal moral compass (intuition). But any set of statements that is self-evidently or necessarily true is not going to have much substantive import or be widely applicable to the world we experience. The role of moral and political philosophy should therefore be to make clear the assumptions on which different normative judgments must rest and to assess the plausibility of those assumptions. Like any other political philosophy, libertarianism rests on contestable assumptions — ones I happen to regard as fairly plausible, but contestable nevertheless.

But what about “public reason” methodology — does that allow us a way out of the limitations inherent to intuition and deduction? As Dr. Vallier puts it: “The post-Enlightenment view still aspires to show that our diverse reasoning can lead us to converge on public principles that protect human freedom, but its aspirations are chastened. The fact of reasonable pluralism explains why many liberals have become public reason liberals, because treating others as free and equal requires admitting that the free use of practical reason leads in many different directions.”

As someone who occasionally reads contemporary political philosophy but is far from an expert, my novice’s take is that public-reason liberalism does not give us much purchase on controversial moral questions in Western societies. To the extent that public-reason philosophers are merely making modus vivendi, Augsburg-style arguments for liberalism, those arguments are potentially valuable as far as they go, but they cannot go far. Of course, public-reason theorists don’t think they are making mere modus vivendi arguments. But the more they diverge from mere modus vivendi argument (which has to be guided by empirical research, I might add), the more they tread into controversial moral territory of the “bad, old Enlightenment” rationality.

Take Rawls’ Political Liberalism for example. It’s been over a decade since I’ve read it, but I recall finding it far less persuasive than A Theory of Justice. Rawls, you change your methodology radically and just happen to end up reaching almost exactly the same conclusions (albeit with less scope for liberty)? Come on! There seem to be numerous controversial moral assumptions sneaked into his argument despite the overt concern for overlapping consensus among moral communities that radically disagree. Rawls’ theory of justice couldn’t even find overlapping consensus among the members of his own department.

So it seems to me we are stuck with the bad, old way of reasoning because there is no alternative. But certainly a little humility and open-mindedness are in order.

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Jason Brennan touts the case against voting on the Princeton University Press blog:

There’s nothing morally wrong with being ignorant about politics, or with forming your political beliefs though an irrational thought processes—so long as you don’t vote. As soon as you step in the voting booth, you acquire a duty to know what you’re doing. It’s fine to be ignorant, misinformed, or irrational about politics, so long as you don’t impose your political preferences upon others using the coercive power of government.

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Matt Zwolinski and John Tomasi have a thought-provoking piece entitled, “A Bleeding Heart History of Libertarianism,” in the latest Cato Unbound. They criticize postwar libertarians (specifically mentioning Mises, Rand, and Rothbard) for seeing property rights as absolute and, in their view, regarding the welfare of the working poor as irrelevant to moral justifications for capitalism:

In the remainder of this essay, we will discuss one particular way that neoclassical liberalism has a better grounding in the libertarian intellectual tradition than the libertarianism of Mises, Rand, and Rothbard. It is not the only contrast, but one of the clearest and most important differences between these two schools of libertarian thought has to do with the proper nature of concern for, and obligation to, the working poor. On this issue, the neoclassical liberal position is that the fate of the class who labor at the lowest end of the pay scale under capitalism is an essential element in the moral justification of that system. And this position, we will argue, has a far more solid grounding in the libertarian intellectual tradition than the justificatory indifference to which the postwar libertarians are committed.

They go on to cite John Locke, Adam Smith, and Herbert Spencer (yes, Spencer!) as classical liberals who would be more sympathetic to the neoclassical-liberal project of justifying markets partly on the basis of their consequences for the welfare of the least well off. However, they also argue, plausibly, that Rand and Rothbard in particular were not indifferent to the fate of the poor, simply that they viewed the coincidence of respect for individual property rights and a better life for all as a happy fortuity. (Mises was more of a consequentialist and perhaps after all a comfortable fit within neoclassical liberalism.)

I would stress that (more…)

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Political libertarians are a motley lot in terms of their moral philosophies. There are three dominant strands – utilitarians like Milton Friedman, deontologists like Robert Nozick, and teleologists like Ayn Rand – but I’ve also met egoists, postmodernists, and Rawls-style egalitarian consequentialists. In debates over moral foundations, Randians often ally themselves with the deontologists in support of “natural rights” (a bit of a misnomer, as deontologists prefer not to locate the source of rights in “nature” but in reason).

Critical Review editor Jeffrey Friedman, a utilitarian, used to say that rights libertarians are more dogmatic than utilitarians on questions of social science. He was extremely skeptical of the line of argument, commonly found in Rothbard, that libertarian policy X is justified on the grounds of both liberty and utility. What are the chances that the world just happens to line up in such a way that perfect justice and liberty also maximize social welfare in every instance? He calls himself a “post-libertarian” in part because he believes that the empirical evidence is unsettled as to the frontiers of the proper (i.e., utility-maximizing) roles of government. And he believes that it is a mark in favor of utilitarianism as a moral philosophy that rights libertarians are extremely reluctant to admit that any of their policy conclusions might not maximize social welfare.

Now, I would make several points in response. First, (more…)

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I agreed with the first half of Jessica Flanigan’s essay on “A Feminist Libertarian Dilemma,” but then nearly choked on my invisible coffee when I read this:

Bleeding heart libertarianism doesn’t rule out public policies that help women with families succeed in the workforce, like affordable public childcare, subsidized family leave, elder care, or a universal basic income.

So how exactly does bleeding-heart libertarianism differ from mushy-pated, Swedish-style social democracy?

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Few in power find it convenient to notice inconsistencies in their own conduct. Alas, but President Madison was no exception. Federalism and decentralization exist precisely because free constitutions should not depend on the good graces of those in office, but on the checks necessary to harry them back under the law.

Seeking the financial means to carry on his war, Madison did not appreciate New England’s opposition to his measures or her refusal to lend. As the enemy bore down from the north at various points along the Canadian border, Madison attempted to impose conditions on the New England militias, not trusting them, as he did the other states, to staff and command their own forces.

In these efforts, the fourth president was roundly rebuffed by the governors and legislatures of Massachusetts, Rhode Island and Connecticut. They correctly pointed out that the Constitution reserved to each state the right of officering her state militias: The president could certainly call those units into service according to the constitutional powers that authorized Congress to declare war, but he could not reorganize those units without a state’s permission. Unable to get his way, Madison refused to mobilize New England’s forces and subsequently refused to pay any expenses for her defense.

Governor Caleb Strong of Massachusetts organized and raised his own force of some 10,000 men at a cost of 1 million dollars, which was a considerable sum in that day. Facing such staggering costs and outraged by what they considered to be the unconstitutional and dangerous manner in which their region had been treated, the New England states elected to protest in the same spirit as they had done against the embargo, but this time they went a step further: Coordinated state action.

Under the inspiration of Harrison Gray Otis and Theodore Dwight (the brother of Timothy Dwight of Yale), Connecticut, Rhode Island, Massachusetts, and several counties of New Hampshire and Vermont sent representatives to meet in Hartford Connecticut between December 15, 1814 and January 4, 1815. There they formed a list of grievances and a call for constitutional amendments, concluding with a threat to organize another convention should these proposals not be taken up by the other states in the Union.

The men who attended this gathering tried to moderate the more extreme elements calling for secession and outright resistance to the national government (see Justin Winsor, Narrative and Critical History of America, vol. VII, Houghton Mifflin, 1888, p. 321 and notes) but the prospect of a convention sent shivers through the administration. It is not difficult to see why.

In “A Short Account of the Hartford Convention to which is Added an Attested Copy of the Secret Journal of that Body” (1823), Theodore Lyman, noted that Massachusetts was quite open about her aims, and “the sense of her citizens was at that time well known, and in relation to the Hartford Convention, she adopted without delay that course of conduct, of which an eminent example had been given less than half a century before, and which, in this juncture of affairs, was especially judicious, from the vast magnitude of the subject and occasion.” (p.8) That example was Madison’s own call at the end of the Annapolis Convention for the convention that followed in Philadelphia, which of course ultimately put an end to the Articles of Confederation.

When the Hartford Convention got down to business on its second day, it considered, according to the Attested Copy of the Secret Journal, the two constitutional grounds of New England’s grievances just mentioned: “The [unconstitutional] powers claimed by the executive of the United States, to determine, conclusively, in respect to calling out the militia of the States into the service of the United States; and the dividing the United States into military districts with an officer of the army in each thereof, with discretionary authority from the executive of the United States, to call for the militia to be under the command of such officer.”

The second grievance followed immediately after: “The refusal of the executive of the United States to supply, or pay the militia of certain States…on the grounds of their not having been called out under the authority of the United States, or not having been…put under the command of the commander over the military district.” These two grievances then formed the basis of the final and more damning constitutional conclusion that the national government had failed to meet its obligation as stated in the preamble “to provide for the common defense.”

In their protest the members stood on solid textual grounds. It was true that Section Eight of the First Article gave Congress the power “To provide for organizing, arming, and disciplining, the Militia, and for governing such part of them as may be employed in the Service of the United States,” but it specifically reserved “to the states respectively the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

Did this “prescribed” discipline give Madison the right to reorganize the New England militias? It might have, but only if Congress had specifically formed such a policy, and had done so equally for all parts of the Union. The fact that President Madison asserted this as a matter of executive authority, and the fact that he applied that policy unequally to some of the states and not to all of them, violated both the spirit and the letter of the fundamental law. With these arguments before them, the delegates proposed their Constitutional remedies.

They called for consideration on the part of the states for amendments that would permit the state legislatures “some arrangement whereby the States may be enable[d] to retain a portion of the taxes levied by Congress, for purposes of self defence (sic), and for reimbursement of expenses already incurred, on account of the United States.” They then proceeded to request further consideration be given to certain other constitutional issues: To restrict Congress’ power to declare war; to restrain its power “to make new States, and admit them into this Union; to limit Congress’ power to impose embargoes and restrict commerce; to prohibit a president from the same state serving two consecutive terms; and finally, and perhaps most ominously of all, to eliminate the 3/5ths provisions of the Constitution “respecting slave representation, and slave taxation.”

This last provision underscored a growing cultural and political divide already evident between the northern and southern states. New Englanders had always felt aggrieved to some degree by the so-called 3/5ths compromises in the Philadelphia Convention. Already by this time, they saw it as a principal driver of western expansion, and the Southern states made little bones about their desire to move the peculiar institution westward, and to form an alliance with that region in opposition to New England.

Thus the Hartford delegates sought restrictions on admitting new states as well as the elimination of the South’s use of slaves in calculating her population numbers. It is interesting to note that at this point in time, the South’s rising star, J. C. Calhoun of South Carolina, was a strong nationalist defender of the War of 1812 and a proponent of a new national bank so that the general government could more easily finance such military ventures in the future. The irony of ironies is that this situation was about to change yet again.

As reported by Theodore Dwight, the Secretary of the Hartford Convention, in his later history of that meeting, the timing of the delegates’ report to Washington could not have been worse. It arrived just as news from England of the War’s end came along with the report of Andrew Jackson’s victory in New Orleans. While the war had not gone so well for America in general, the popular sense created by this juncture produced a patriotic fervor that was ill disposed to consider of the resolves of the Hartford delegates.

The commission attempted to quietly retire back to New England, but the popular reaction, especially among Madison’s Republican Party was to revile its proceedings as radical secessionism, and the reputation of that convention has labored under such a misapprehension ever since.

Far from secessionism, however, the Hartford Convention presented yet another means of interposition through coordinated state action, and to the degree that such coordination gathered more sustained attention (even if in the negative) from the other states, to that degree it succeeded. With the war’s end, Hartford’s issues became moot, but one could easily imagine what might have developed had the exigencies of war persisted.

The next stage of development in the ideas of interposition, however, would raise the stake higher, actually attempting what Jefferson had contemplated in the Kentucky Resolves: Nullification. Interestingly, the author of this approach was our leading nationalist of the 1810s. Calhoun had been a student of Theodore Dwight’s brother about a decade earlier at Yale. Timothy Dwight shared his brothers’ attachment to the reserved rights and powers of the states. Calhoun had resisted such thinking as his student, but when the issue of tariffs touched his own state’s interests in the next decade, he began to avail himself of Dwight’s understanding, coming to a deeper appreciation of the need to constitutionally restrain centralized power, but he did so with an interesting and novel twist that would have a profound impact on the popular perception of state’s rights.

And Calhoun’s solution would prove perhaps the most difficult and cumbersome of all…

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I do not recognize the Locke or classical liberalism some critics of each claim to find. A good example is a recent post by Patrick Deneen, in which he claims to find the joint roots of “individualism” and “statism” in classical liberal thought, drawing at least in part on Locke’s work. The mashup of ideas Daneen attributes to Locke and classical liberals seems absolutely foreign to my understanding of both, certainly of any plausible form of classical liberalism, but Deneen is hardly the first to offer such a mashup. It’s worth considering just how deeply wrong it is.

One immediate indicator that something has gone seriously wrong is Deneen’s claim that Hobbes is like Locke a founder of “liberal theory.” Hobbes is not a common source of ideas for bodies of political doctrine that lay claim to being “liberal.” There’s a good reason for that: Hobbes maintained explicitly that justice (and thus injustice) are the creations of the state. Without the state, we have no obligations whatsoever to each other, nor is it even possible for us to contract with each other, since without the state there is no credible mechanism of enforcement. Hobbes’ remedy is a Sovereign with absolute and total authority and power to do literally whatever he wishes. Sound like a liberal theory to you? Me neither. So a political theorist who lumps that in with “liberalism” is taking us down the primrose path already.

Things get worse on Locke. Locke (like most great thinkers) said lots of things. Some of it is profoundly insightful, some mistaken, some just best forgotten. What liberals who cite Locke as their inspiration (I would certainly count myself as one) point to is the early sections of The Second Treatise of Government, where Locke squarely and explicitly repudiates not only Hobbes but the entire tradition of seeing some men as born to natural authority over others. This is what we are thinking of:

To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man. A state also of wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that the creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection… (Second Treatise of Government, §4)

This is not, pace the reading Daneen seems intent on foisting onto Locke, a sociological claim. It is not a claim about the forms of life human beings characteristically or often undertake. It is a moral claim. It is the claim that nobody has the natural authority to command or subordinate another human being. Locke explicitly repudiates “lawlessness.” We are under this law of nature in any condition we are in, political or otherwise, on Locke’s view because God has put us there. Liberty is the state of being subject only to reciprocal exercises of authority or command. On Locke’s view, unlike Hobbes’, it has nothing to do with doing what you like or “satisfying your appetites.” (Locke goes out of his way to make this clear, but somehow that too escapes Daneen’s notice.) That is the sense that we are “naturally ungoverned.” With these claims Locke imposes a constraint on what can count as a legitimate state that endures as a significant challenge. Locke thought it was possible that a state could meet it; I myself doubt it, but there is no question that it is exactly the right test. Which social institutions suppose that one person is entitled to exercise non-reciprocal authority over another? Institutions that fail that test are, ipso facto, illegitimate institutions. This is precisely the opposite of the progression to statism that Daneen claims is built upon classical liberal individualism. I think he can maintain that only because he somehow mistakes a moral claim for a sociological one. There is a long tradition of doing so, but you have to have a tin ear for ideas to do so. Certainly you have to ignore not only what Locke says, and what Mill says, but e.g. Adam Smith’s brilliant work on our essentially social natures, to try to make that charge. It certainly can’t be made with a straight face.

The antidote, apparently, is the Aristotelian/Thomistic tradition of community, or some such. I bow to no one in my respect for Aristotle, but his political theory is a particularly mixed bag of the good, the bad, and the ugly. In the same work where he claims that we are political animals, he also insists that women and “barbarians” are “natural slaves,” fit only for subordination. Even polis-born laborers are not fit to be self-governing. I’m not clear on what Aquinas makes of that mess, but there is nothing insightful or enlightening about it. It is a recipe for those who know how our social (and individual) lives should go to command those of us who are not so fortunate.

When I teach this stuff (viz. Aristotle), I say that Aristotle was not so lucky as we are. We have Aristotle and 2500 years of history of politics to learn from, and he did not. He was unable to make a distinction between the political and the social, but we can. The only form of social life he could conceive of was life in the polis — that is, political life. We know that we are capable of all kinds of social life and organization that have nothing to do with politics, and are far the better for it. It’s inexcusable that people still defend the political as though that was the only form our social natures could take. It is even worse that classical liberalism’s critics can’t be troubled to get the ideas right in the first place.

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Andrew Breitbart has posted a video (HT: Phil Arena) showing liberal, pro-income-redistribution students rejecting out of hand the concept of redistributing grade point averages (GPAs) from the best-performing students to those less fortunate, saying things like “It’s not fair” and “I worked for my grades.” Does their position constitute hypocrisy, and does this experiment show that something like the libertarian conception of property rights (“from each as she chooses, to each as she is chosen”) is somehow more “natural” to us humans? One argument might go something like this: Being committed to income redistribution requires being committed to redistribution of grades. Being committed to redistribution of grades is unlikely to be justified. Therefore, being committed to income redistribution is unlikely to be justified.

To put some flesh onto the problem, it’s useful to narrow down possible justifications for redistribution, so I’ll focus on John Rawls’ Difference Principle, which states that all inequalities in a society must work to the advantage of the representative least well off person in that society. In other words, the baseline assumption should be perfect equality, and deviations from equality (in income, wealth, prestige, and anything that might constitute “social bases of self-respect”) have to be justified by their benefit to all. One common objection (see, e.g., Lomasky’s Persons, Rights, and the Moral Community) to Rawls’ Difference Principle is that it would require the more physically attractive or talented to compensate the less attractive or talented. Rawls’ prior Equality Liberty Principle potentially prohibits actual redistribution of body parts, but Rawls is certainly open to redistribution of wealth from those who enjoy psychic benefits from their natural abilities and characteristics to those who are less well off psychically. There is nothing in Rawls’ Difference Principle that limits unjust inequalities to uncompensated financial inequalities.

Breitbart’s experiment seems to me to raise similar concerns. One’s intelligence and hard work may yield financial rewards, but they also yield psychic benefits. Obtaining a high GPA confers prestige, status, and a greater sense of self-esteem. No one “deserves” intelligence or a penchant for hard work, since these are things we’re either born or raised with. So should GPAs be redistributed? One might object on practical grounds. Redistribution of GPAs might discourage student effort (but redistribution of income also discourages worker effort). Redistribution of GPAs might interfere with correct productivity assessments in the marketplace (but so might redistribution of income, since it is always accomplished through a highly complex tax code). Even if these practical objections decide us against redistributing grades, if we are committed to the Difference Principle, we must remain in principle committed to compensating those who earn lower GPAs for their “unfair” disadvantages (perhaps financially). If we find this conclusion absurd, then so must we find the Difference Principle.

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New York was Hamilton’s great project. So closely divided was the state, that at various moments, he despaired of its coming into the union.

At one point the Antifederalists offered a compromise. They would support a conditional ratification dependent on the passage of certain key amendments, including the all important construction of delegated and reserved powers, or what eventually would become the Tenth Amendment. Hamilton wrote Madison for his opinion of the proposed compromise, and the response was unyielding: New York could “not be received on that plan.” It must be, Madison elaborated, “an adoption in toto, and forever.” Hamilton read the letter aloud to the Convention and it is reputed to have steeled the nerves of the Federalists for resistance. Rather than read, “on condition,” New York’s statement of ratification was amended to say, “in confidence.” The statement ran thus:

“Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration, — We, the said delegates, in the name and in the behalf of the people of the state of New York, do, by these presents, assent to and ratify the said Constitution.” (Emphasis added)

In his America’s Constitution, A Biography (2005) p. 38, Ahkil Reed Amar concludes that this wording cinched the case against conditional ratification based upon powers reserved to the people of the states. Amar’s particular aim was to put any idea of legal secession to rest, but he also went on to implicate other forms of interposition as well.

Not so fast.

Amar stopped his reading at a point altogether too convenient for his thesis. Here is what the rest of the paragraph said:

“In full confidence, nevertheless, that, until a convention shall be called and convened for proposing amendments to the said Constitution, the militia of this state will not be continued in service out of this state for a longer term than six weeks, without the consent of the legislature thereof; that the Congress will not make or alter any regulation in this state, respecting the times, places, and manner, of holding elections for senators or representatives, unless the legislature of this state shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that, in those cases, such power will only be exercised until the legislature of this state shall make provision in the premises; that no excise will be imposed on any article of the growth, production, or manufacture of the United States, or any of them, within this state, ardent spirits excepted; and the Congress will not lay direct taxes within this state, but when the moneys arising from the impost and excise shall be insufficient for the public exigencies, nor then, until Congress shall first have made a requisition upon this state to assess, levy, and pay, the amount of such requisition, made agreeably to the census fixed in the said Constitution, in such way and manner as the legislature of this state shall judge best; but that in such case, if the state shall neglect or refuse to pay its proportion, pursuant to such requisition, then the Congress may assess and levy this state’s proportion, together with interest, at the rate of six per centum per annum, from the time at which the same was required to be paid.”

Here the representatives of the people of the state of New York fairly put the new government on notice in no uncertain terms that they reserved certain powers to their own legislature. (more…)

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Among the defenders of the Constitution, a great deal was said about the states as a check to the power of the national government that informed the first ideas about interposition. 

Madison’s contention in Federalist 39 is well-known. Our union was to be “partly federal and partly national.” Among the premier federal attributes were such provisions as the equal representation of the states in the Senate by senators appointed through state legislatures, portions of the Electoral College, portions of the amendment process, and the very means of ratification through conventions of the sovereign peoples of the various states.

This last attribute is often not given the attention that is due to it, but James Madison made this point repeatedly in other venues as well. He noted it in various letters and in the state ratification convention in Virginia. It is a major part of the argument against the notion put forward by his critics that the Constitution would establish a consolidating government.

Here is what Madison’s Publius said: “[T]his assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong. It is to be the assent and ratification of the several states, derived from the supreme authority in each state…the authority of the people themselves. The act, therefore, establishing the constitution, will not be a national, but a federal act.”

This point was repeated again in Virginia’s ratifying convention. The reason was to assure the Constitution’s critics that the sovereign power of the people of the states was not being usurped. If a simple national majority, he reasoned, were all that was required to form the union, then the majority of all the people of America could bind Virginia or Rhode Island even if they had voted in the negative. This was not the case he assured his opponents.

But beyond ratification, did this conception of sovereign power have any other constitutional implications for the states? What exactly is the relationship between the people of the states and the national government? What if there is a dispute between them? This is where Publius becomes more ambiguous, and it is from here that much of the controversy concerning Madison himself originates.

In the same essay, Madison went on to argue that national supremacy meant that a national tribunal must determine the legitimacy of national laws, at least “so long as they are objects of lawful government.” Setting aside for a moment what is meant by “lawful,” he asserted, “It is true, that in controversies relating to the boundary between the two jurisdictions [state and national], the tribunal which is ultimately to decide is to be established under the general government.” This is necessary, he believed in order “to prevent an appeal to the sword, and a dissolution of the compact.” Really?

Where then resides the hoped for check to centralization? Here it rests on the impartiality of the judges of the court, for whom “all the usual and most effectual precautions are taken to secure this impartiality.” The difficulty is that the very contest presumes an illegality. A state would not contest a national act unless it thought the act to be unlawful; that is to say, not permitted by the Constitution. Is it then reasonable to conclude that they will rely upon the judgment of a national court? (more…)

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In general, libertarians oppose laws requiring a physician’s prescription for purchase or dispensing of controlled drugs, on the grounds that these restrictions are paternalistic infringements on an individual’s right to choose for himself or herself. But under what conditions might libertarians support prescription laws?

Libertarian activist Rachel Mills recently asked on Facebook whether baby formula should be available by prescription and for medical reasons only. Given that there is clear evidence for vast benefits from exclusive breastfeeding up to six months, and no medical evidence for any advantage of infant formula over breast milk at any stage of an infant’s life, it would seem that responsible mothers would do everything they could to breastfeed rather than feed formula. In some cases, of course, breastfeeding might not be an option, due to disease, adoption, etc. What’s important here from a libertarian point of view is that there are third-party effects: a mother’s choice to feed formula can harm her baby.

So it’s not obviously crazy for a libertarian to advocate a drastic increase in government regulation of infant formula. On the other hand, before taking any policy position here, we have to consider relevant “sociological facts,” including the fact that mothers generally want what’s best for their babies. Is government regulation really necessary? Breastfeeding is on the rise, although it’s nowhere near where it ought to be (babies should be breastfed up to a year of age and exclusively so up to six months). Also: do we want to set a precedent for invasive government regulation of family life whenever science shows a possible rationale? On balance, I think there is a strong practical (but not “in principle”) case to be made against regulating baby formula in this way.

One area where I do support retaining prescription laws is for the dispensing of antibiotics. Due to overprescription of antibiotics, drug-resistant strains of bacteria have emerged. It is increasingly important to limit the taking of antibiotics to situations in which they are truly necessary. Misuse of antibiotics can be viewed as a violation of rights – an act that potentially fortifies microorganisms that attack others’ bodies.

Otherwise, however, I think the libertarian case against prescription laws is strong. Let customers decide whether to take painkillers – or chemotherapy for that matter. Sane adults will want to take good medical advice into account when making these decisions, and it ought ultimately to be their choice whether or not to do so.

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There’s an interesting new philosophy blog called “Bleeding Heart Libertarians,” featuring an all-star cast of Andrew J. Cohen, Daniel Shapiro, Jacob T. Levy, James Stacey Taylor, Jason F. Brennan, and Matt Zwolinski. Actually, some of the participants reject the term “libertarian”; one of the first posts, by Jason Brennan, is entitled, “Neoclassical Liberalism: How I’m Not a Libertarian.” Provocative stuff – check it out.

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