Category Archive: Government

  1. Was Marbury v. Madison a judicial power grab?

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    On February 24, 1803, the Supreme Court handed down one of its best known and most consequential decisions in Marbury v. Madison. It is often described as the case in which the Court created “judicial review”: the duty of courts to test the constitutionality of government actions and to strike them down when they fail. The decision is also profoundly misunderstood, shrouded by a myth that has confused generations of law students: the myth of judicial usurpation.

    Although judicial review is generally regarded as valid today, the notion that it was invented in Marbury has long been used to cast doubt upon its legitimacy. Marbury has been characterized by some scholars as a judicial power-grab; its 124th anniversary is as good a time as any to dispel this myth. But understanding Marbury is also key to understanding what is required of judges who are charged with enforcing the Constitution today — and appreciating the extent to which the judiciary has in recent years abdicated its constitutional duty.

    The Case

    To say that the context of Marbury v. Madison was politically charged would be a serious understatement. The election of 1800 remains one of the closest and most acrimonious presidential contests in American history. “Federalist” supporters of the incumbent administration, headed by President John Adams, painted their “Republican” opponents as threats to ordered liberty; Republicans described the Federalist-dominated government as a “reign of witches” and accused Federalist leaders of seeking to establish a monarchy.

    The Republicans ultimately prevailed — but Thomas Jefferson and his running mate, Aaron Burr, received an equal number of votes from Republican electors, throwing the election to a Federalist-dominated House. When the smoke cleared, Jefferson was chosen as the third president of the United States.

    But on February 13, 1801, a lame-duck Federalist Congress, determined to keep the judiciary in Federalist hands, passed the Judiciary Act of 1801, which created dozens of new federal circuit judges and justices of the peace — to be appointed by President Adams, before Jefferson could be sworn in on March 4. Importantly, the Act also conferred original jurisdiction on the Supreme Court to issue writs of mandamus to “persons holding office” under federal law — that is, to order executive officials to take (or refrain from taking) particular actions.

    On March 3, Adams signed, and the Senate confirmed, dozens of appointments, which led to the delivery of the “midnight commissions” — dispatched to new judges on the night before Jefferson’s inauguration — a task assigned to outgoing Secretary of State and incoming Chief Justice John Marshall. But, in what would prove a fateful omission, Marshall failed to deliver the commission of one William Marbury, who was to serve as justice of the peace for the District of Columbia.

    When Jefferson took office on March 4, 1801, he discovered a sheaf of undelivered commissions and promptly ordered them withheld. Marbury sought a writ of mandamus from the Supreme Court to compel Jefferson’s Secretary of State, James Madison, to deliver Marbury’s commission. The case was set for argument the following term, and it was destined to become a landmark of American jurisprudence.

    The Decision

    Ultimately, the Supreme Court held that Marbury did indeed have a right to his commission, which had been duly signed by the president and confirmed by the Senate, but the section of the Judiciary Act that authorized the Court to issue the writ of mandamus Marbury sought was itself unconstitutional.

    Chief Justice Marshall evaluated the law independently, without deference to Congress or the president, seeking to determine whether the law was calculated to achieve a constitutionally proper end of government. He ultimately concluded that it was not — that Article III of the Constitution did not allow Congress to give the Supreme Court original jurisdiction over mandamus actions.

    He described the Court’s decision to set aside the statute as following from the judicial “duty” to “say what the law is” and to “expound and interpret” the law in applying it to “particular cases.” It was, wrote Marshall, “the very essence of judicial duty” to determine which of two “conflicting rules” — that set forth in the Judiciary Act and that set forth in the Constitution — “governs the case.” A statute that is not authorized by the Constitution was “not law,” and thus, it did not “constitute a rule as operative as if it was a law.”

    In the centuries since Marbury, gallons of scholarly ink have been spilt arguing that Marshall used the case to usurp a novel, constitutionally unauthorized power for the Court. If Marbury was indeed a lawless decision, it would cast doubt on the idea that courts have a duty to exercise independent judgment about the law, as well as the authority to invalidate unconstitutional acts by other branches of government.

    In fact, Marbury was neither novel nor lawless. As Philip Hamburger has shown, Marshall affirmed and discharged a well-understood judicial duty, with hundreds of years of Anglo-American jurisprudence behind it — a duty that was directly incorporated into the Constitution through Article III’s grant of “the judicial power” to the Supreme Court. At its core, the office of judging is one of independent judgment in accordance with the law of the land, without deference to extra-legal beliefs or desires, whether those of the judge, government officials, or members of the public. Long before Marbury, judges had been exercising independent judgment and voiding government enactments that were contrary to the law of the land.

    The Upshot

    If Marbury appears remarkable today, this may be because the careful, impartial, and independent judgment exercised by Marshall has been largely replaced by judicial deference to the legislative and executive branches.

    Following the Court’s decisions in Chevron v. NRDC (1984) and Auer v. Robbins (1994), judges are supposed to presume that executive agencies’ interpretations of the law and scope of their own powers are correct — essentially abdicating the duty, in Marshall’s words, to “expound and interpret” the law in applying it to “particular cases.”

    When it comes to reviewing the constitutionality of statutes, the situation is no better. The default standard of constitutional review — the so-called “rational-basis test” — has been described by the Court in terms that would (if taken literally) make a successful constitutional challenge logically impossible. No one could refute every conceivable basis which might support [the government’s actions],” however unmoored from reality that basis might be. Under this standard, judges are even required to help the government by inventing theoretical justifications for the law, abandoning the impartiality that is essential to independent judgment and due process of law.

    In general, only a few constitutional rights, which the Court has declared to be “fundamental,” based on some hazy, evershifting criteria, still trigger meaningful judicial engagement to review the facts and the constitutionality of the government’s means and ends. Doctrines of judicial deference to the executive and legislature have facilitated the systematic abdication of the judicial duty to “say what the law is.”

    Remembering the real Marbury can help both judges and citizens to grasp the core duty that the Constitution imposes upon the judiciary and to understand what judges must do in order to fulfill it. The judiciary is a co-equal branch of government, and it serves as the last line of legal defense for individuals who stand to be deprived of what is rightfully theirs by unconstitutional exercises of legislative and executive power.

    Judges must adopt a posture in constitutional cases that enables them to “guard the Constitution and the rights of individuals” — in fact, not merely in political theory. Marshall’s opinion in Marbury provided a vivid example of the judicial engagement required of all those who draw their power from Article III — a standard to which judges today would do well to return.

  2. Cutting legal immigration won’t help low-skilled American workers

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    Senators Tom Cotton (R-AR) and David Perdue (R-GA) recently introduced the Reforming American Immigration for Strong Employment (RAISE) Act.  If it were to become law, RAISE would cut legal immigration by 50 percent over the next ten years by reducing green cards for family members of U.S. citizens and lawful permanent residents, slashing refugees, and eliminating the diversity visa lottery.  These goals are in line with President Trump’s stated objective to cut legal immigration in most categories.

    The RAISE Act’s goal is to increase wages for lower-skilled Americans by reducing the supply of lower-skilled immigrants.  Their press release argues that the “generation-long influx of low-skilled labor has been a major factor in the downward pressure on the wages of working Americans, with the wages of recent immigrants hardest hit.”  Under such a worldview, only a drastic reduction in green cards and the supply or workers can raise American wages – and it’s not crazy.

    The National Academy of Sciences’ (NAS) exhaustive literature summary on the economic effects of immigration concluded that: “When measured over a period of 10 years or more, the impact of immigration on the wages of native-born workers overall is very small.  To the extent that negative impacts occur, they are most likely to be found for prior immigrants or native-born workers who have not completed high school—who are often the closest substitutes for immigrant workers with low skills.”  Although the effect is small, RAISE seeks to take advantage of the finding in the academic literature by inferring that if an increase in the supply of workers slightly lowers some wages then a decrease in that same supply will do the opposite.

    It might seem odd then that RAISE doesn’t target employment-based green cards but that category is for highly skilled workers while the categories this bill would cut are more likely to allow in lower-skilled workers who have fairly high labor force participation rates.  I’ve rebutted Senator Cotton’s poor economic arguments for immigration restrictions before but recent research is even more compelling.

    A recent paper by economists Michael Clemens, Ethan Lewis, and Hannah Postel seems tailor-made to test what would happen if a bill like the RAISE Act were to become law.  The paper studies the effectiveness of an immigration policy “designed to raise domestic wages and employment by reducing the total size of the workforce.”  The U.S. government’s 1964 termination of the Bracero program for Mexican farm workers provides a natural experiment for their paper which is comparable to what would happen if RAISE becomes law.  Senators Cotton and Perdue will be disappointed to discover that this new research found that ending lower-skilled migration for farm workers had little measurable effect on the labor market for Americans who worked in those occupations.

    Figure 1

    Figure 1 from their paper compares the quarterly average real farm wages by states where Braceros made up more than 20 percent of their seasonal agricultural labor (black line), states where Braceros were fewer than 20 percent of the workforce (gray line), and states where there were no Braceros at or very negligible numbers (dashed line).  Clemens et al write that “[t]he figure shows that pre- and post-exclusion trends in real farm wages are similar in high exposure states and low-exposure states.  It also shows that wages in both of those groups rose more slowly after bracero exclusion than wages in states with no exposure to exclusion.”

    How can that be the case, shouldn’t a leftward shift in labor supply increase wages?  Not necessarily as farmers had other options not usually contemplated by those who only think about the supply and demand for labor in isolation.  Instead of hiring more American workers or raising their wages, farmers turned to machines and altered the crops they planted to take account of the new dearth of workers.  Instead of planting crops that required labor-intensive harvesting or care, they planted other crops that required many fewer workers.  Farmers turned to machines like tomato pickers and changed methods for planting and harvesting other crops to take account of the newer wages they would have faced had they stuck with the Bracero-era farm techniques.

    The farmer’s actions in response to Bracero’s cancellation were economically inefficient and presumably raised the costs of production relative to their employment of legal workers under the Bracero program.  But since the Bracero program wasn’t available anymore, using more machines and changing techniques were still the cheapest options available.  Those options did not include hiring more Americans or raising their wages.  The detailed empirical work in this paper considers many other possibilities but convincingly answers them, such as pointing out that nearly all of the Braceros went home instead of staying on illegally and that the flow illegal Mexican farm workers did not pick up immediately.

    The similarities between the end of the Bracero program and the RAISE Act are enough to make this new research a compelling reason to reject the RAISE Act out of hand.  The Bracero program allowed in half a million workers a year before it was eliminated which is about the same number of green cards that RAISE would cut.  Bracero workers were lower-skilled and many of those that would be cut by RAISE are also low-skilled.  Braceros were concentrated in some states and not others just like the new immigrants who would not be allowed under RAISE.

    The ending of the Bracero program was a policy shift very similar to that proposed by the RAISE Act.  Ending Bracero didn’t raise wages for American farm workers and we shouldn’t expect the RAISE Act to do the same for other low-skilled Americans who are suffering for myriad reasons that have nothing to do with immigration.  Senators Cotton and Perdue may intend to raise the wages of lower-skilled Americans, but their bill is more likely to line the coffers of firms that manufacture machines that can substitute for them.

    This piece was originally published at Cato at Liberty.

  3. Why requiring Muslim visitors to register with Homeland Security is unjust

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    Throughout the presidential campaign, there was much talk of a Muslim registry. Fortunately, that seems to have fallen by the wayside since the election, and the Trump administration has been consistent, thus far, in denying it will pursue one. Still, we should remain vigilant about it because something similar is still on the table: a revived NSEERS program. And that program is unjust.

    Active between 2002 and 2011, the National Security Entry-Exit Registration System (NSEERS) required foreign visitors from 24 Muslim countries and North Korea, regardless of religious affiliation, to register with the Department of Homeland Security (DHS) when they entered the country. These visitors were also required to check in to a DHS facility on a yearly basis thereafter and to inform DHS if they moved or had a change in employment. Citizens, green card holders, and visitors from other countries (including other Muslim-majority countries) were not included.

    NSEERS could easily be revived and, given the anti-Muslim tenor of the new administration, a reinvigorated system might require temporary visitors from any Muslim country to register with DHS.

    What should we say, then, about an attempt to revive NSEERS? Consider a thought experiment:

    Imagine I invite you into my home. We sit, have a meal, talk, and enjoy each other’s company. You ask for the restroom, and I point you to it. You leave my eyesight to use the restroom and I relax, awaiting your return. I relax because I invited you in and trust that you will not be doing anything untoward.

    Now imagine that instead of relaxing and staying in my seat, I stand and follow you to the bathroom, listening at the door. In this scenario, something unacceptable is happening.

    Now imagine that you travelled far to visit and are spending the week with me. I give you the spare key so that you are not limited by my schedule, but I insist that you call me every two hours. In this case, too, something is unacceptable.

    In the second short visit, it would be reasonable for you to say, “I appreciate your hospitality, but following me to the bathroom is disturbing. I will leave now.” In the longer visit, it would be reasonable for you to say, “I appreciate your hospitality, but having to call you every two hours makes it less worthwhile. I will go to a hotel.” In both of these cases, we treat our visitors like they are criminals — which is to say, we treat them disrespectfully. We might do better to not invite them at all.

    The analogue here should be clear: if we are going to allow visitors in the US, we should not treat them with contempt. We should assume they are peaceful. If we have good reason to think they are not, we should not let them in at all. Accepting guests into one’s home, one’s place of business, or one’s country requires treating them with respect.

    If US citizens want to have foreigners in the country, those foreigners must be treated with respect — and requiring that they check in with DHS on regular intervals is not treating them with respect. There are things a legitimate government cannot do. It cannot imprison innocent people or those that it deems subversive because they disagree with its policies. It cannot bomb areas of the country where residents disapprove of its actions. In short, it must show proper respect for its citizens. And showing proper respect for its citizens requires showing proper respect for their visitors.  Plausibly, we do this with the US-VISIT program (now the Office of Biometric Identity Management Identification Services), which is also more efficient while inviting less descrimination. There is, thus, no reason to even consider the disrespectful behavior of a revived NSEERS.

    Of course, it is possible that limiting visits to the US to those from non-Muslim countries is needed to protect Americans. If that were the case, I suspect the majority of US citizens would be in favor of limiting those visits — not just continuing visits by some that are then disrespectfully monitored. But that is a different issue altogether — and one for which we have no evidence. Once we have determined that a visitor may safely cross the border into our country, we should treat them like we would treat a houseguest. With respect.

  4. Is taxation theft?

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    I like a good meme as much as the next person. And when that meme expresses a libertarian principle, all the better. That said, I have my doubts about the “taxation is theft” meme making the rounds on my Facebook feed.

    The idea that taxation is morally equivalent to theft goes at least as far back as 19th century philosopher, lawyer, entrepreneur, and historically unrivaled beard wearer Lysander Spooner:

    The government, like a highwayman, says to a man: Your money, or your life. And many, if not most, taxes are paid under the compulsion of that threat. The government does not, indeed, waylay a man in a lonely place, spring upon him from the road side, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account.

    At first glance, Spooner’s analogy between the government and the highwayman seems compelling. Both demand that you hand over the contents of your wallet under the threat of force. Even if the highwayman uses your money for a noble purpose like charity, the fact remains that he stole that money.

    So, is taxation theft? I’m not convinced. To start, notice that Spooner is assuming the person under threat doesn’t owe the money to the highwayman. If you “dined-and-dashed” at the highwayman’s cafe and he’s come to collect the bill, the interaction starts looking less like a robbery. This means that if you want to argue that taxation is theft, you’ll need to show that taxpayers aren’t obligated to pay their taxes. And that’s going to take some work.

    For instance, it could be the case that you’re only entitled to your post-tax income because the protection of a tax-funded state is a precondition of your possessing income in the first place. According to this argument, if it weren’t for government services like the police and the military, you’d be unable to earn a living, enforce your property rights, and accumulate wealth. Thus, you can’t complain when the IRS takes a chunk of your paycheck so that the state can do its job.

    Another view holds that taxation is justified as a way of ensuring the justness of the very system that distributes wealth and income. For instance, why is Elon Musk entitled to millions of dollars while others have so much less? On John Rawls’s theory of distributive justice, Musk may justifiably take home more money only if doing so works to the benefit of the poor, say, by increasing the tax revenue used to fund anti-poverty programs. So if Musk’s income weren’t taxed to help the poor, he wouldn’t have a moral claim on that income in the first place.

    Even on a straightforwardly libertarian theory of property, it’s not clear that real-world taxation is theft. Consider Robert Nozick’s view that (roughly) you are entitled to the property that you take from the unowned commons (so long as you don’t make others worse off) and to the property that has been voluntarily transferred to you in the form of wages, gifts, sales, and so on.

    The trouble is, the real-world distribution of property has been thoroughly contaminated by injustice. Historical injustices like slavery and Jim Crow influenced the present-day distribution of wealth. If you trace the history of your wealth back far enough, you’ll undoubtedly find that it’s been affected by injustice. Contemporary policies like immigration restrictions, trade restrictions, and occupational licensing also violate Nozick’s rules for acquiring property. So the real-world distribution of wealth and income is very different from a libertarian-approved distribution of wealth and income. Even within a libertarian framework, then, we have reason to doubt that we’re morally entitled to our current wealth and income.

    Of course, taxation might be bad for other reasons. For instance, there is evidence that your tax dollars aren’t spent very efficiently. And, taxation can slow economic growth, a result that’s bad for everyone, including the poor. But saying that taxation is unwise is different than saying taxation is theft.

  5. Individual liberty for a diverse society: Public reason liberalism

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    Public reason liberalism is an important approach to social and political philosophy that has two main tenets. We could summarize these tenets as

    1. Laws and institutions must be justified from the point of view of the people who are expected to obey them — and those people have diverse beliefs.
    2. “Liberal” laws and institutions are the ones most likely to be justified to all those diverse people. Indeed, liberal institutions may even be unique in having such justification in modern, deeply diverse societies.

    I will explain each of these tenets in turn.

    Justification and Diversity

    The basic context for the notion of public justification is the recognition that even well-informed people of good will have very different religious, moral, and philosophic views. In light of this diversity of views, public reason theorists hold that certain shared institutions, such as coercive political institutions or systems of social-moral rules, must be justified to each person.

    If we are to respect each other, have a fair system of cooperation between free and equal people, or realize other fundamental values, then our institutions must be justified to the diverse members of society. When there is adequate justification for each person, we say that the institution is publicly justified or supported by public reason.

    Shared vs. Convergent Reasons

    Now, there are different ways in which such public justification may be achieved. Some theorists emphasize (or exclusively permit) the use of “shared” reasons. This means finding some core values that each member has and then discerning what institutions may be justified by appeal to those alone.

    Other theorists emphasize the use of “convergent reasons,” in which different people’s diverse beliefs and values lead to a common point. How does that differ from the “shared” approach?

    Let’s use an everyday example: for a Friday night meal with friends, using shared reasons may lead us to get a pizza (because everyone likes pizza). Convergent reasons may lead us to go to a restaurant where I like the sandwiches and you like the soups. In that case, we may not like any of the same foods, but our interests “converge” in going to the same restaurant that lets us get the different foods we do like.

    Through either of these forms of reasoning, we can share a meal we can all agree on, rather than some of us having to just live with the choice imposed by others.

    That’s the big idea of the public reason in “public reason liberalism.” But what does the liberalism part mean?

    Liberalism

    By “liberalism,” here, I mean institutions incorporating individual liberties such as those regarding religion, association, speech, bodily integrity, and personal property, as well as political institutions characterized by democratic procedures, the rule of law, limited powers, and systems of checks and balances.

    Liberal institutions entrench individual liberties, giving them a very high, if not absolute, priority when in conflict with other concerns. So, for instance, freedom of speech is restricted only in rare and special circumstances.

    Consider the institutions of freedom of religion and the separation of church and state. No institution that politically imposed one particular religion on a group of diverse people could be publicly justified. But freedom of religion could be supported by all persons as something at least acceptable, even if not optimal, from their own perspective. This freedom provides for each person a valuable system of peaceful coexistence in which she can at least pursue her values to a significant degree and promote those values to others.

    Moreover, different perspectives may provide convergent reasons for this set of liberal institutions. Atheists may want the separation of church and state so that the state does not promote (what they take to be) false views. Members of various religions may support the separation in order to insulate churches and mosques and so on from the corrupting influence of politics.

    In general, public reason liberals argue, the liberal system of personal liberties and limited government ensures for each person a sphere of action in which they can pursue their own values and conceptions of the good life.

    Of course, theorists within public reason liberalism argue about exactly which institutional features are necessary or would be publicly justified. And there is particular disagreement among theorists with regard to systems of private property rights, economic planning and regulation, and the provision of health and educational services.

    Despite these disputes, public reason liberals share an embrace of the core liberal institutions, and remain focused on the search for institutions that can be justified to all in light of our deep and enduring diversity.

  6. Was Obamacare truly evil, or just a missed opportunity?

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    I was mildly opposed to Obamacare, but mostly because I thought it was a missed opportunity to reform health care. I was bemused to see very strident opposition to the program on the right, with some pretty hyperbolic language about socialized medicine and the end of freedom. (Language I don’t recall with Bush’s massive increase in government involvement in healthcare.)

    In recent weeks I’ve seen a number of conservatives argue that the GOP would be making a mistake to simply repeal Obamacare. But why? If it’s such a horrible program, won’t Americans be much better off without it? So just repeal the program, and then later try to work on sensible reforms. That’s not my view, but it’s the view I’d expect from the people who told us that Obamacare was horrible.

    One counterargument is that some people have grown to rely on Obamacare. But if that’s an argument against repeal, then it’s also an argument against any policy changes in any area of governance. All policy changes create winners and losers. Lots of people who made investment decisions based on the current tax code, will be hurt if the GOP lowers rates and closes loopholes. Should we not do tax reform? (See David Henderson’s excellent post discussing this issue.) At most, I would think you’d want to add a three-year grace period for those who were currently insured under Obamacare, to give them time to find suitable alternatives. But if the program is horrible, then get rid of it.

    But those are not the arguments I’m seeing. A typical example was recently published in the National Review, a very conservative intellectual publication. The article suggests that Obamacare should be replaced with a new program . . . which sounds almost exactly like Obamacare! Now just to be clear, it’s not identical, but the similarities are so strong that it makes me wonder what all the fuss was about. Why did conservatives view Obamacare as a disaster, if they wish to replace it with such a similar program?

    As I said, before the election I was to the left of the conservative movement, opposed to Obamacare but viewing some of the opposition as rather hysterical. Now I’ve shifted to a position to the right of the conservative movement, I favor radical changes in health care:

    1. Elimination of all tax subsidies, such as the deductibility of health insurance costs.
    2. Radical deregulation, including no barriers to market entry, no quality regulations, open borders for doctors, abolishing the FDA, no barriers on the type of insurance that can be offered.
    3. Government healthcare would be provided at the lowest cost possible, even if it meant flying Medicaid patients to Thailand. (It probably would not after open borders for doctors, and no barriers to entry.)

    I do favor some role for the government. One idea for overcoming the free rider problem is mandatory health saving accounts and catastrophic insurance. (The alternative is letting people who choose not to be insured simply die when they are sick. Even if that’s the right policy, society is not willing to adopt it—so health savings accounts seem like a good second best policy.)

    In addition to health savings accounts and catastrophic insurance, there could be some sort of government subsidy for the needy. That might be government run clinics and hospitals, that offer bare bones service, as in Singapore, or subsidies for the purchase of HSAs and catastrophic insurance, for low income people. Singapore’s government spends only a tiny fraction of what our government spends on health care, but it has universal coverage and the world’s second longest life expectancy.

    If people don’t like catastrophic insurance, they would be free to buy ordinary insurance, instead of HSAs. But there would be no government subsidy.

    The GOP could do these radical changes, which but they would be highly controversial. As a result, they’ll probably end up with something similar to Obamacare, but called Trumpcare.

    This piece was originally published at Econlog.

  7. The free society is an open society

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    He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither…” — Declaration of Independence

    “Mister Gorbachev, tear down this wall.” — Ronald Reagan, June 12, 1987


    In my previous essays between the election and the inauguration, I discussed how we got here, and how we didn’t, as well as what’s distinctively worrying about the new style of politics. In the first week of the new administration, it’s worth noting that we saw an outpouring of an identity-based politics of protest against rising illiberalism and misogyny, an extraordinary level of public untruth repeated by a spokesman who showed signs of not believing what he was saying but being forced into it, and the continued surrender of Republican elites to the new order.

    I’m going to return to those themes in future posts; but given that the new administration is now in power, and it’s time to interrupt analyses of how and why, with discussions of what it is doing.

    The populist authoritarianism that is rising across developed countries, the United States very much included, is characterized by a zeal to harden borders. Trade and migration are, between them, the great villains of the modern populist imagination, surpassing even domestic dissent. And, unsurprisingly, the first week of Donald Trump’s presidency included sharp blows against both the gradually liberalizing international trade order that the United States has led since World War II, and the freedom of human beings to move from place to place in the world. The chaos of the administration’s cruel and poorly-planned action against border-crossing by those born in seven Muslim countries is emerging as the defining act of these early days. For an earlier generation of conservatives, a militarized wall on an international boundary symbolized the evils of Communism and Soviet domination in eastern Europe. Now, such a wall will be the symbol of the Trump era as a whole. The administration is moving astonishingly quickly to make the United States a closed society.

    Walls work in both directions—they keep people in, as well as out. The administration’s decision to suspend reentry for lawful residents who were abroad at the time of the order tells non-citizens in the United States—permanent residents, long-since admitted refugees or those granted asylum, spouses and students and H1-B visa holders doing highly skilled work that the country needs—that they travel outside the United States at risk of not being allowed to return. Even the eventual decision to allow permanent residents to re-enter on a case-by-case basis was presented as an exercise of agency discretion, not a disavowal of the tactic. The word of the United States isn’t good anymore—“permanent” resident now means something much less than that, and refugee status once granted might be revoked with no notice. Henceforth, peaceful, law-abiding residents will be much more afraid to leave the country. The barriers to letting people in thus act as a kind of cage to keep people in. Caged people aren’t free.

    I wrote in Rationalism, Pluralism, and Freedom that “The core of liberal ideas includes religious toleration and freedom […], the rule of law, and especially the control by law of the executive’s security apparatus through habeas corpus, procedural rights, and prohibitions on torture and extrajudicial executions, imprisonment, or dispossession[…], and the desirability of commerce and international trade.” (p. 87)

    Not only have all three elements of this core come under assault in Trump’s first week in office—they have come under assault specifically in association with his war on migrants: religious discrimination in migration, extrajudicial detention being carried in airports as we speak, and the idea of a 20% tariff wall on goods to pay for the physical border wall.

    Notwithstanding some current talking points, the new immigration restrictions are religiously discriminatory in both intent and effect. Rudy Giuliani has openly acknowledged that this was the policy crafted in order to get as close as possible to the ban on Muslim immigration Trump called for on the campaign trail, while maybe being able to legally get away with it. And the combination of the identification of seven overwhelmingly-Muslim countries as the source of the supposed security threat (though zero nationals of those countries—zero—have killed anyone in an act of terrorism on U.S. soil) with special exemptions for Christians from those countries turns the new restrictions into exactly what Giuliani’s account leads us to expect: a religiously-exclusionary act with a veneer of a security excuse.

    As Dylan Matthews argues, the liberal political theorist Judith Shklar’s essay “The Liberalism of Fear” helps us to see the centrality of resisting cruelty and lawless state violence to the liberal vision of the free society. (My first book aimed to apply Shklar’s insights to the political treatment of ethnic and cultural minorities; its title was a direct reference to the essay.) Until the end-of-week Muslim ban and abandonment of refugees, I would have said that the great horror of Trump’s first week was the mooted possibility of reopening black site prisons and his enthusiasm about torture—an enthusiasm he says he’ll reluctantly hold in check in deference to the views of some of his top appointees, though it’s hard to imagine his “deference” to these subordinates lasting forever.

    But the developing war on immigrants puts us squarely into liberalism-of-fear terrain now. Coercive border control is an especially central location for those fearful rule-of-law concerns. It routinely involves indefinite detention without legal counsel or trial. While intelligence agencies all too often exercise state violence without legal oversight, for those charged with border control it is a constant. This weekend, legal residents of the United States were prevented from boarding their planes home, or on arrival in the U.S., were physically detained without counsel or legal process.

    While at this writing the situation remains unclear, there are reports that even after judicial rulings against aspects of the new policy, border patrol agents were refusing to recognize court orders. Trump advisor Stephen Miller seemed to adopt an especially strong attitude of disregard for judicial oversight, maintaining that a court order neither “impedes or prevents the implementation of the president’s executive order which remains in full, complete and total effect.” And even before the Muslim ban was announced, the new executive orders on border control significantly expanded the arbitrary authority of immigration control officers to decide whom to deport, and insisted on a huge increase in those undocumented migrants—including asylum-seekers—who would be kept in indefinite detention. (Dara Lind at Vox, author of that latter piece, has been providing especially important and valuable coverage of these issues.)

    For four months, all refugee admissions will be suspended, from everywhere in the world, abandoning many to the repression and war from which they are fleeing. The refugee suspension has perhaps gotten the least attention in the U.S., as it lacks some easily-understood and high-profile features of the Muslim ban: both the religious discrimination and the exclusion from reentry of people who have already lived here.

    But it is no less cruel. People whose claim for refuge has already been judged valid, people who have already been “vetted” as posing no security risk, people fleeing war zones and repression from anywhere in the world, now find themselves locked out. This keeps refugee camps that much fuller, leaving that much less space for new people also fleeing. It further encourages very dangerous alternatives, such as families entrusting themselves to smugglers or to risky self-help in boats or on foot. Locking refugees out is a violation of international law; more to the point, it is monstrous, and renders the U.S. a kind of jailer for people at risk, keeping them locked in where they are now.

    In treating peaceful civilian migration the way states treat invading armies, coercive border control always involves a deeply suspect kind of lawless violence. These aren’t permanent features of political life. The system of passports and visas as required for international movement and migration is surprisingly recent. Open, document-less borders within Europe were closed as an emergency measure during World War I; the generalized world system of passports wasn’t imposed until 1920. The passport as a document was much older, but mainly offered protection to local subjects traveling abroad. It could confirm one’s identity, but was not normally a requirement for crossing frontiers.

    The liberal understanding of free societies and politics grew in part out of life in commercial medieval European cities—cities whose walls were to keep out armies, not civilians (or goods, as the cities were entirely dependent on trade). In the famous legal principle that governed those cities, “city air makes you free;” one who lived in such a city for a year and a day gained the freedom of city life against the oppression of the feudal countryside. The cities were proud of this, and grew by it.

    After enjoying open borders for half of its history, the U.S. has had a deeply unhappy series of experiences with border control. The first federal regulation on entry was a racist restriction on Chinese migrants, the second a similar de facto regulation of those from Japan. There have been recurring restrictions on the grounds of political beliefs. During the middle decades of the 20th century when U.S. immigration was most severely limited, Franklin Roosevelt turned away Jewish refugees fleeing Hitler on the grounds that they might include German spies—an approach that is all but indistinguishable from the contemporary conflation of those fleeing war and persecution in majority-Muslim countries with radical Islamist terrorists. (Many of those turned away then died in the Holocaust; and many of those turned away now may die in their home countries’ civil wars or despotic regimes.) And the long effort to prevent migration across the southern border has seen a constant expansion of intrusive police power, and an extension of border control authority deep into the territory of the United States, putting a majority of the American population in regions where border agents wield extra-Constitutional powers.

    Many people have gradually come to acknowledge the failure of a drug war focused on militarized border interdiction, and the cost in subjecting Americans to a domestic militarized police force trying to suppress supply of drugs for which there is demand. Such policies finally turned much of northern Mexico into a near-war-zone, with wealthy and violent drug cartels enjoying the profits of U.S. prohibition. (This is, of course, not unrelated to many Mexicans’ attempt to flee into the U.S.)

    We should expect no different from a war on immigration. A wall can’t stop the operation of supply and demand, whether for labor or for safe refuge; it can only enrich the illegal smugglers who learn how to defeat it. And hunting migrants peacefully living inside the U.S. requires constant invasion of everyone’s privacy and liberty, not just that of the migrants themselves. Every relationship from the workplace to the classroom to marriage is subject to regulation and prohibition: you may not employ, or teach, or marry whom you wish. But they’re also all subject to policing: who are your students? Have you checked your employees’ papers? Are you really married to your spouse?

    Far too many people seem to believe that the system of walls, cages, and lawless state action can be safely aimed only outward—against strangers, against those with no claim on the United States—and that the shift toward populist authoritarian nationalism at the border can be cordoned off from domestic liberty. Even if it were right (which it’s absolutely not), to disregard the cost to those strangers’ liberty—to lock them in their countries of origin, however tyrannical, violent, or impoverished they may be—that’s not how it works. A society can’t close itself off and remain free.

    This piece was originally published at Niskanen Center.

  8. 3 Oscar films for the radical individualist

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    Films are stories, stories have heroes, and heroism is almost by definition a celebration of the individual. Great films codify and reflect our greatest values back to us. Even antiheroes are instructive about their personal goals and flaws.

    But this year’s Oscar nominations offer up a few films with especially strong individualist themes.

    For an in-depth look at the individualist philosophy, one could do worse than Eric Foner’s even-handed overview, “Radical Individualism in America.” But, tl;dr, individualism places an emphasis on the rights of the individual and the pursuit of his or her happiness, rather than the prerogatives of collectives or states, as the core to a just and liberal society.

    Silence

    oscars. academy awards, silence,

    Martin Scorsese’s Silence, nominated for best cinematography, stars Andrew Garfield as a 17th-century Jesuit priest, Alessandro Valignano. He travels to Japan to rescue his mentor (Liam Neeson), a missionary. At that time, Christianity was illegal in imperial Japan, and anyone caught practicing the religion could be subjected to torture until they renounced their faith.

    Scorsese subjects us to multiple scenes of Japanese Christians put through torture to renounce their faith, with a mostly helpless Valignano doing his best to maintain the community’s morale. Ultimately, he is forced to watch five of his disciples brutally tortured until he personally renounces his own faith. He spends the rest of his days in Japan as an apostate priest, sadly sorting through foreign imports for any forbidden Christian iconography.

    The freedom to practice the religion of one’s choosing is essential to a free society. Leave aside for a moment the immorality of torturing people because of their faith. Even if it weren’t wrong, it is nearly impossible to force someone to change their core beliefs. The viewer assumes Valignano has been broken by the torture he endured, but the last image we see is his dead hand clutching a contraband cross.

    Silence is an excellent, if difficult-to-watch, exploration of an individual pitted against the most extreme hostility of a larger collective.

    Hacksaw Ridge

    oscars, academy awards, hacksaw ridge

    Ayn Rand would have been proud of Andrew Garfield’s acting choices in 2016, because he stars in this next film as well — in fact, this performance has earned Garfield a nomination for best actor. Hacksaw Ridge is based on the true story of Corporal Desmond Doss, who was the first conscientious objector to receive the Medal of Honor.

    Doss, a hardline pacifist, volunteers for military medical service at the outbreak of the Second World War. Although he undergoes, and excels at, the harsh training of boot camp, he refuses to touch weaponry or train on Saturday (the sabbath day for Seventh Day Adventists). His peers and superiors ostracize him, even going so far as to have him discharged for psychiatric reasons. He endures a savage beating, but refuses to identify his assailants.

    His refusal to handle weaponry as an enlisted soldier leads to his being arrested for insubordination. While in a jail cell, his fiancée begs him to plead guilty so he can be released, but Doss won’t compromise. He is ultimately vindicated and goes on to serve heroically as a medic in the Battle of Okinawa.

    Much like Silence, Hacksaw Ridge digs deep into the concept of religious freedom. But the religious part isn’t really the point so much as the freedom part. The liberty of the mind is a core individualist value. Thomas Paine once put it succinctly: “My own mind is my own church.” The liberal society is strong in large part because different people believe, and argue for, different ideas. Societal change is impossible without competing views butting heads.

    La La Land

    oscars, la la land, academy awards

    La La Land has a massive total of 14 Oscar nominations this year. The film is at once a throwback to the golden era of musicals and a reinvigoration of the genre.

    It’s wildly unlike the above films in tone. But it is also a fierce defense of individualism. Sebastian (Ryan Gosling) and Mia (Emma Stone) both have big dreams. Mia wants to be an actress, and Sebastian wants to open a jazz club, in part so that he can protect the heritage of a genre that he thinks is growing corrupted by the pervasiveness of pop music.

    Like a lot of individualists, they’re both incredibly headstrong. Sebastian loses gig work because he constantly goes off preapproved set lists in favor of jazz improv. Mia is all-in on pursuing a dream career, one that results in failure for just about everyone who tries. But being headstrong is only half the story: they acknowledge their stubbornness and accept the consequences.

    Rebellion against societal norms carries costs for these types. They full well know it, and rebel anyway. In an earlier era, before the word was ruined, we called this romanticism.

    The claim that La La Land is about radical individualism may seem like a stretch, but it’s encoded deep within the film. For instance, Sebastian and Mia go on a date that involves first watching, and then recreating a scene from one of the great films about individuals confronting societal pressures, Rebel Without a Cause.

    Sebastian and Mia clearly love each other, but they ultimately decide not to compromise on their dreams. This is neither right nor wrong, but it does come with consequences. They could either have each other, or have their respective dreams realized. Call it the “pursuit of happiness,” even though the film’s ending is wicked sad.

    Here’s to the Individualists

    There is something to be said for the risk-taker, the visionary, the rebel. Ayn Rand, in “The Soul of an Individualist,” phrased it memorably:

    The great creators — the thinkers, the artists, the scientists, the inventors — stood alone against the men of their time. Every great new thought was opposed. Every great new invention was denounced. But … they fought, they suffered, and they paid. But they won.

    This is perhaps even more true for the great heroes of film than it is for the great heroes of history, although “winning” is often more like getting a seat at Valhalla than actual victory.

    Great stories almost always emphasize the worth and moral dignity of the individual. This does not mean groups don’t matter, or that one should descend into solipsism. Individualism matters because you only get one life to live, and nobody is in a better place to make the most of it than you.

  9. What you should know about the Non-Aggression Principle

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    You’ve heard libertarians talking about it. You’ve seen the dank memes. But what exactly is the non-aggression principle? What does it do? And why does it get talked about so much?

    In this post, I’ll try to explain.

    There are many historical antecedents to the NAP, but libertarians usually trace its current formulation to Murray Rothbard, who put it as follows:

    The fundamental axiom of libertarian theory is that no one may threaten or commit violence (“aggress”) against another man’s person or property. Violence may be employed only against the man who commits such violence; that is, only defensively against the aggressive violence of another.

    In short, no violence may be employed against a nonaggressor. Here is the fundamental rule from which can be deduced the entire corpus of libertarian theory.

    The nonaggression principle is sometimes (and confusingly) called an axiom, a practice which Rothbard also began. If we use the standard meaning of the word “axiom,” the NAP is no such thing: an axiom is a statement that is self-evidently true or that cannot reasonably be denied. An example of a philosophical axiom might be something like “I am aware of phenomena” or “modus ponens is a valid form of reasoning.”

    The NAP requires more argument than these. Although it may be foundational to libertarian theory – and thus axiomatic in a weaker sense of the term — the NAP clearly does not prove itself; just as clearly, reasonable people can and do deny it. Crucially, the NAP depends on the existence of a definition of aggression; if this definition of aggression is to encompass assaults not committed directly on the body, then the NAP also depends on a valid theory of property ownership. Neither of these is self-evident. Both are contentious topics in political theory about which libertarians offer a specific set of answers, but not everyone will agree with us.

    Note that we can’t use the NAP to establish that property may be justly held. Nor can we use it to establish the validity of a particular pattern of property ownership among many — that would be circular: ownership rights cannot acquire the condition of justice simply by asserting that their violation would be unjust.

    And yet property claims must derive from something; they seem all but inescapable. Claims about property are found even among animals. The earliest known forms of writing are tallies that were apparently used to keep track of possessions. Contrary to what some on the left may say, no human society appears ever to have been entirely without property.

    Indeed, even a wholly communist society would run on the assertion that the whole of the people is the collective owner of all property. By no means does communism lack property claims: on the contrary, its claims in this area are almost impossibly rigid and ubiquitous. How well such a society could instantiate these claims (and what results may come of trying) are different questions entirely. What matters is that even communist societies make claims about property constantly.

    If property claims are an inevitable feature of human society, as seems likely, then we cannot escape the question of what status these claims will have, whether collectively or in particular. We must ask not so much whether property is justified, but rather what its extent should be, which objects should be subject to property claims, and which entities within society should be the rightful possessors of what goods, and for what reasons.

    John Locke’s theory of property, which has frequently been invoked by classical liberals, holds that property began as a grant of the entire world, from God, to all of humanity in common. Property became private, Locke held, because property existed from the beginning to satisfy human needs, and because private property was apt to satisfy those needs more effectively. Individuals improve private property, a step which they tend not to take with a commons, and thus private property is more apt to the purpose for which property exists in any form.

    For those not satisfied by the Lockean account — myself included — David Hume offered a justification for private property that rests on its effects upon human beings:

    Who sees not, for instance, that whatever is produced or improved by a man’s art or industry ought, for ever, to be secured to him, in order to give encouragement to such useful habits and accomplishments? That the property ought also to descend to children and relations, for the same useful purpose? That it may be alienated by consent, in order to beget that commerce and intercourse, which is so beneficial to human society? And that all contracts and promises ought carefully to be fulfilled, in order to secure mutual trust and confidence, by which the general interest of mankind is so much promoted?

    Examine the writers on the laws of nature; and you will always find, that, whatever principles they set out with, they are sure to terminate here at last, and to assign, as the ultimate reason for every rule which they establish, the convenience and necessities of mankind.

    Emphasis added. Societies in which property is privately held will cultivate useful habits and accomplishments in their members: property conduces to virtue. (Hume’s argument here is sometimes taken for a rejection of natural law altogether, but I do not agree. Although it relies on no supernatural justifications, observations about the nature of mankind may indeed form the basis for a type of natural law theory.)

    We might add to Hume the further observation that where property is held in common, individuals will often endeavor to live by the labor of others, using the common property as a means to their own ends. The efforts expended in pursuing this strategy, however, are not productive; they do not add to the stock of goods that humanity has at its disposal. In this sense, they represent wasted effort, and the waste is encouraged by the system of common property itself. Similarly, when property is not held in common, but when its tenure is doubtful or insecure, individuals will not exercise the industry needed to improve it for the long term, and this too impoverishes humanity in general.

    None of these considerations are likely to be terribly problematic to someone who has grown up in a society where private property predominates. We are used to the usefulness of property.

    But there is something about the NAP that is nonetheless politically important, because it serves as an indictment of much government action that is otherwise held to be morally acceptable. The NAP reminds us that theories of property in many of their most common and seemingly inoffensive formulations stand deeply at odds with the justifications for government action that are held by (perhaps) the vast majority of citizens in the modern world. That this vast majority simultaneously holds to something like a Lockean or a Humean conception of private property ought to trouble them enormously: such a conception may call into question the propriety of the state itself.

    As Rothbard put it, “The problem is not so much in arriving at [the NAP] as in fearlessly and consistently pursuing its numerous and often astounding implications.” This task has always been the work of the libertarian movement, and it has indeed brought us to some astounding implications, including the idea that taxation is tantamount to theft.

    Almost everyone has some theory of property, even if it’s a badly considered one. And almost everyone has a theory of what government ought to do. Pointing out that these theories are usually in conflict with one another is an important move, above all when government is apt to justify itself by arguing that it preserves property rights. Thus, the NAP’s importance is not that it founds a theory of property, but rather that it points out a conflict: considered as classes, theories of property and theories of government usually don’t get along too well. Actions that deprive individuals of property without their consent stand as exceptions to the rule of private property, a rule which most of us generally endorse. And yet “actions that deprive individuals of private property without their consent” are precisely what make governments function.

    Forcing people to confront this conflict in their intuitions isn’t trivial work by any means. Resolutions to the conflict may vary, but libertarians can almost be defined as those who refuse to grant special exemptions to the government when private property is at stake. It may be that particular government actions can be justified, but doing so will require a careful revision of our deeper ideas about private property. This sort of revision is almost never actually undertaken by the proponents of state action, and when it is undertaken, it is seldom to the satisfaction of libertarians. Even without fully adopting the libertarian program, others may do well to consider more carefully these conflicting intuitions.

  10. Baristas with BAs: The result of central planning for schools

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    In Kentucky, says scholar Caleb Brown, it’s easy to find a barista who has a bachelor’s degree, but manufacturing companies can’t find the machinists they desperately need — whose pay would start at $60,000–$80,000 a year.

    That slice of modern economic life comes from Brown’s Cato podcast conversation with Jim Stergios of Massachusetts’s Pioneer Institute. Listening to it, I realized a problem with government schooling that I had never zeroed in on before. In criticizing government schooling, I have always focused on the failure of government schools to provide as high quality instruction as they would if they had to compete for students in a free market for education. But Brown and Stergios opened my eyes to another problem: government school systems fail to provide different kinds of instruction as appropriate to different kinds of students in different places and times.

    Mr. Stergios’s main concern is the insufficiency of technical and vocational education in America. He states that in Springfield, Massachusetts, for example, there are tens of thousands of jobs available, yet the unemployment rate there is high as compared to the rest of the state. “The mismatch between jobs available and people who are seeking work, in terms of their skills, is enormous.”

    Why? Why doesn’t our education system provide quality vocational and technical training that both businesses and underemployed people could benefit from?

    I blame it on central planning.

    Central Planning

    The failure of the American education system to provide instruction in skills needed in various businesses is just another case of central planning’s failure where free markets would succeed. In America today, schooling for the 88% of students who attend government schools is planned centrally by state departments of education or district boards of education, and central planners, whether of the whole Soviet economy or American “public” education, have neither the knowledge nor the incentives they need to plan well.

    Let’s start with the knowledge. How would state education officials find out what quantities of what kinds of vocational and technical training are appropriate in all the various different regions of a state such as Massachusetts? The podcast mentions “applied engineering” skills such as machining, along with skilled nursing, the knowledge of how to run a restaurant, and basic computer skills.

    We could also mention carpentry, plumbing, HVAC (heating, ventilation and air conditioning), bookkeeping, inventory management, auto maintenance, and dozens of other trades and skills. How would state education officials decide what kinds of training to offer, where, in what quantities, and at what depth?

    They could conceivably poll the businesses in different locales, repeatedly, to try to collect this information and keep it up to date. It would be very difficult for the limited staff of the state department of education assigned to this task to gather and manage the mass of information about dozens of trades and skills, the need for which changes constantly with technology, the business cycle, demographic changes and other factors.

    Even with the best will in the world they could only do a poor job of this. They would face “the knowledge problem of central planning,” the inability of central planners to collect all the information they need to plan well.

    Free Market Education

    But think how it would work in a free market for education. Vocational/technical schools in an area, established by entrepreneurs who perceive, or think they perceive, a demand for such schools, would constantly try to discern the changing demand for different skills and know-how, and try to provide such skills and know-how to students they would recruit for their programs.

    Schools that satisfied a real need, and kept up with necessary changes, would flourish. Those that did not would fail.

    Perhaps a chain of such schools might emerge, adapting the offerings of each particular school in the chain to the needs of the area. Perhaps certain skilled craftsman would set up work-study relationships with high schools in the area, essentially paying students in on-the-job training for the students’ help with their work. Such relationships could also be formal apprenticeships.

    Even now, according to Jim Stergios, businesses come to established vocational and technical schools and offer to invest in the schools in return for the schools’ offering training in the skills they need. Think how much more of that there might be if students (and their parents) could choose what schools they would pay for what instruction.

    Why would high schools in the area agree to such work-study programs? To attract students.

    In a free market for education, no school would be guaranteed a chunk of the taxpayers’ money by the school district, as now. Instead, the parents would get to decide what schools their children attend, and therefore where their tuition money goes. Schools would have to win their customers by offering valuable instruction, and work-study instruction would surely be seen as valuable in areas where businesses need employees with those skills.

    As business conditions in a region changed, the vocational and technical schools and programs would have to change with it or lose money. Those innovators quickest to respond to a new need would be rewarded.

    Think what a world of difference there is between the knowledge that goes into central planning by a government bureaucracy and the knowledge that goes into decentralized planning in a free market. In the one, a few bureaucrats plan based on general, summary knowledge of circumstances in a region as a whole. In the other, many different people plan based on their own detailed knowledge of the particular circumstances of their own time and place.

    In the one, the government apparatus must approve any changes; in the other, the entrepreneurs just act. In the one, mistakes can go uncorrected and opportunities can go unperceived for a long, long time. In the other, mistakes are promptly punished with financial losses while getting it right is rewarded with profits.

    Good Intentions and Good Incentives

    Now what about incentives?

    Surely there are many government education officials who conscientiously wish to do what’s best for the students. But the fact remains that their incentive to do so is weakened by the fact that if they don’t do what is best for the students, they will get paid anyway.

    In government schooling, the tax money flows into the school system almost regardless of how well the school system satisfies actual social wants and needs. So why go to the effort of figuring out what curriculum changes might be valuable in different areas, testing them, rolling them out where parents and students value them (again, how would the bureaucrats really know that when the parents are not paying?), and shutting them down where they don’t really satisfy a public need? A public school system with funding guaranteed by the tax man just does not have to make that effort.

    In practice, according to Jim Stergios, this situation is actually much worse than what I have just described, in which the system makes no effort to discover and implement needed changes. According to Stergios, the system actively resists improvements in vocational and technical education they know — or have good reason to believe — would be valuable. Why? Because if they allowed the changes, the conventional schools would lose funding to the vocational schools, and the conventional schools are powerful enough to resist that.

    Stergios says of Massachusetts that

    Our district school system, the traditional public school system, believes that they own the children and they do not want to share the resources. [They consider it] their money, and so giving further options outside of their current network of schools, the district, is not something they are open to.…

    It’s hard to expand the number of choices in the Vo/Tech area simply because of that sense that the districts own the money. (emphasis added)

    Again, think how different things would be in a free market for education, where the parents own their own tuition money and decide where their children go to school. Then schools would have a strong incentive to find out and offer the kinds of instruction that would attract parents, students, and tuition dollars. And if more vocational and technical instruction would be valuable to society, as I believe it would, it would be offered, because educational entrepreneurs would have a strong personal incentive to offer it.

    Knowledge problems and incentive problems beset central planning of education as of every other sort of good or service. Markets — human freedom to exchange — solve those problems. We should free the market for education.

  11. Will President Trump kill capitalism?

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    For those who believe that capitalism has generated dramatic improvements in US living standards over the past two centuries, the first month of Donald Trump’s presidency has been chilling.

    President Trump appears incapable of understanding that free trade and immigration are crucial engines of growth and prosperity. Relatedly, the president is obsessed with saving American jobs and “putting America first” rather than fostering policies that promote economic efficiency (which is what actually puts America first). During the presidential campaign, then-candidate Trump ruled out reform of Medicare or Social Security, even though these programs threaten to bankrupt the economy absent major overhauls.

    Even worse than his misguided views on specific policies is Trump’s language. He exudes a preference for centralized command and control (“I alone can fix it”) rather than for unfettered competition and the survival of the fittest under true capitalism.

    President Trump shows no patience for the rule of law, instead chafing under the constitutional limits on his authority and disparaging judges, threatening elected leaders, and firing civil servants who challenge the legality of his decisions. This imperialist tendency, if not checked by the courts, Congress, and voters, will shove the US economy even farther down the slippery slope of crony capitalism.

    Double-Edged Swords

    To be fair, Trump has called for dramatic reductions in regulation, which if carried out thoughtfully could significantly boost free markets. Obvious targets include licensing restrictions and other barriers to entry; federal labor-market regulations such as minimum wages, overtime laws, and union protections; and some environmental, health, safety, and financial regulation. Yet “deregulation” can easily morph into protection for crony capitalists unless carried out by true advocates of free markets.

    Sensible reforms to Dodd-Frank, for example, could rightly reduce barriers to entry for small financial institutions. Repealing the entire set of regulations, however, could end up being a “free pass” for larger banks — believing they would get bailed out again in the next crisis — to resume the risky or speculative activity that helped spark the Great Recession.

    Careful reforms to aviation law could make business easier for US airlines, but limiting low-cost foreign carriers from flying to the US under the guise of “protecting American companies” (as many lobbyists have recently argued) would stifle free market competition and consumer choice.

    Similarly, President Trump has expressed sympathy for major tax reform, which could strengthen the economy by eliminating misguided deductions, exemptions, and credits while lowering rates in a revenue neutral way. But tax reform could end up being mainly tax reduction; given the projected path of US entitlement spending, such tax cuts would be a double-edged sword because of their impact on the debt.

    Thus pessimism about capitalism under President Trump is understandable. The president’s views, should they become policy, would likely expand crony capitalism rather than true capitalism.

    The Strength of Capitalism

    Yet history allows a more optimistic outlook. Few presidents have been true friends of capitalism, and many have committed “crimes against capitalism” as bad as or worse than those likely to occur under President Trump.

    Franklin Roosevelt introduced Social Security, tried to fix wages and prices under the NIRA, supported national wage, hours, and union regulation, and even attempted to pack the Supreme Court when it blocked his initiatives. Harry Truman tried to nationalize the steel industry because of a dispute with steel unions over wage increases. Lyndon Johnson created Medicare and Medicaid, Richard Nixon imposed wage and price controls to combat inflation, and George W. Bush endorsed government bailouts of Wall Street banks and auto manufacturers. More broadly, the regulatory state has been growing consistently since the early 1900s and the New Deal.

    Calm reflection, therefore, shows that Trump’s proclivity to interfere with America’s economy has a long, depressing precedent.

    Yet despite centuries under assault, capitalism has more or less survived, and economic prosperity has continued to increase. The country would plausibly be richer with fewer regulations, less redistribution, a saner tax system, and greater openness to trade and immigration. But so far capitalism’s ability to spur innovation and entrepreneurship has outpaced the damage done by bad policies.

    In other words, presidents have been trying to weaken capitalism since the inception of the Republic, and capitalism has withstood the test. This history is no guarantee of future success; autocrats like Hitler, Mussolini, Stalin, and Pol Pot at least temporarily destroyed capitalism in their respective countries. And we may be living in a new regime, where leaders everywhere are hostile towards globalization and economic integration.

    Even so, capitalism—stronger than any border wall or immigration ban—remains a resilient and deeply American system. Trump would be wise not to bet against it.

  12. Donald Trump: The avatar of democracy

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    Many political commentators have accused Donald Trump of “undermining democracy.”

    This accusation appears to stem from Trump’s penchant for uttering obvious falsehoods. Over the past month, Trump has asserted that 3 to 5 million illegal votes were cast in the presidential election, that more people attended his inauguration than Barack Obama’s, that the murder rate in the United States is at its highest level in 47 years, that only 109 people were affected by his travel ban, that the media is not reporting on terrorist attacks, that a failed military raid in Yemen was a success, and that he lost the presidential vote in New Hampshire because thousands of illegal voters were bused in from Massachusetts.

    To the extent that I understand the argument that this behavior undermines democracy, it seems to run something like this. Trump’s assertions are almost entirely divorced from objective reality. By basing policy decisions on such patently false propositions, he is acting in a way that is inconsistent with the functioning of democratic government.

    Now I do not mean to be perverse, but this criticism seems completely wrongheaded to me. There may be many grounds on which to criticize President Trump’s actions, but undermining democracy is not among them. Far from undermining democracy, Trump appears to be perfecting it. I think that in his first month as president, Donald Trump has been the epitome of democracy.

    Allow me to explain.

    In our personal lives, most of us pay close attention to the facts of reality. We look both ways before we cross the street. When we drive, we stop at red lights and refrain from driving 90 miles an hour through residential streets. We consider how much money we make in deciding how much money to spend. We comparison shop, consider the prospects for return before making investments, perform regular maintenance on our cars and homes, and purchase automobile, life, health, and homeowner’s insurance. We don’t just walk up and take other people’s stuff.

    We do this because each of us would personally suffer the consequences of ignoring the facts of reality. Failure to look both ways means that we might be hit by a car. Reckless driving means that we might crash. Profligate spending means that we might go bankrupt. Failure to comparison shop, invest carefully, perform necessary maintenance, and purchase insurance means that we may suffer financial losses. Failure to observe property rights means that we may be punched in the nose.

    In contrast, in our political lives, most of us pay almost no attention to the facts of reality. When we engage in democratic decision making — when we vote — we indulge our imagination and vote for the way we want the world to be.

    We feel compassion for low skilled, low wage workers, so we vote to raise the minimum wage to $15 per hour. We are horrified by mass shootings at schools, so we vote to ban or restrict possession of guns. We are afraid of the effects of narcotics on youth, so we vote to prohibit their use, possession, and sale. We are concerned about the plight of the elderly and the poor, the quality of the public schools, and the readiness of the military, so we vote to increase social security benefits, wage a war on poverty, pass the No Child Left Behind Act, and increase the defense budget.

    Because voting one way rather than another imposes no consequences on us personally, there is little reason to consider the facts of reality when doing so. Thus, we vote to increase the minimum wage without considering the effects such an increase will have on those who run small businesses or whether it will increase unemployment.

    We vote for gun control measures without considering whether criminals or the mentally disturbed will actually be deterred by the need to obtain their guns illegally. We vote for a war on drugs without considering whether doing so will create a black market for drugs and the violent crime associated with the sale of banned substances, despite the nation’s experience with alcohol prohibition. And we vote to spend money on today’s elderly, poor, public schools, and military without considering the effects continual deficit spending will have on economic growth and the well-being of the next generation.

    Democratic decision-making is the realm of institutionalized wishful thinking. For any identified social problem, voters are free to imagine a simple solution for it untethered to the facts of reality. They may then vote for candidates who support their solution and feel good about themselves for doing so. If their preferred candidates win, they then consider the problem solved.

    If, after a while, the problem hasn’t disappeared, that is because of insufficient funding, or inadequate enforcement, or the influence of malign special interests, or the obstructionism of the narrow-minded or bigoted or hyper-partisan members of the opposing party. In a democracy, who wins elections is not determined by what is true. What is true is determined by who wins elections.

    Donald Trump is the apotheosis of democratic magical thinking. Trump has perceived the essence of democracy. He understands that for all practical political purposes, in a democracy, if enough people believe something, then it is true. And this insight has allowed him to sever the cord between political utterance and objective reality in a way his more benighted predecessors could not bring themselves to do.

    Donald Trump understands that in the realm of democratic governance, there are always “alternative facts,” as long as one can get enough people to accept them.

    During the campaign, Trump promised to make the country secure from terrorist attack by banning immigration from Muslim countries. He won the election. Therefore, it is true that the way to make the country secure from terrorist attack is to ban immigration from Muslim countries. A federal judge who denies this truth must be politically motivated.

    During the campaign, Trump promised to end illegal immigration from Mexico by building a wall across the country’s southern border and bring back manufacturing jobs by renegotiating trade agreements and imposing tariffs on goods made overseas. He won the election. Therefore, it is true that the wall will stop illegal immigration and economic protectionism will bring back manufacturing jobs. Those who deny such truths are purveyors of fake news or dishonest members of the media.

    I am opposed to Donald Trump’s policies because I find them to be both illiberal and ineffective. But I do not believe that Trump is undermining democracy. On the contrary, by recognizing that in a democracy the truth is whatever the majority believes it to be, Trump has merely taken democracy to its logical conclusion. Far from undermining democracy, Donald Trump is its avatar.