Category Archive: Rights

  1. Not your business: Let restaurant owners make their own decisions

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    Michael Lugo, owner of Michael’s Tasting Room in St. Augustine, Florida, recently received a note from a customer stating that the Christmas music playing in his restaurant was “offensive” and too “religious.”

    Meanwhile, across the pond, Hilary Penning, owner of Organic Kitchen in London, England, was heavily criticized by some of her customers and by the popular website for mothers, Mumsnet. They faulted Penning for her new policy of prohibiting children under 5 in her restaurant.

    Both of these are examples of a certain kind of popular arrogance when it comes to other people’s private property.

    The free-market concept is simple — private property owners should be able to preside over whatever policies they want. Restaurant owners do not owe anyone a restaurant experience. They cannot “hurt” customers by turning them away or playing music, because the customers have no right to be on another person’s property.

    Customer Freedom and Owner Freedom

    Nor do restaurant owners force any customer to enter their establishments.

    I have never been to a restaurant because I was hit over the head with a bat, dragged in, and then awakened to a meal placed in front of me at a table. In my experience, every time I have eaten a meal at a restaurant it has been because I have voluntarily chosen to walk in to the establishment, sit down, and order the food. If I didn’t like the ambience or anything else, I could have walked out. I have never eaten at a restaurant where I was chained to the table and forced to stay.

    Lugo was playing Christian music during the Christmas season —shocking, I know. But if Lugo wanted to play Christian music (or music from any other religion) every day of the year, that is his right, because it is his establishment. He is not forcing it on anyone else.

    Penning has justified her child policy by explaining that many customers had been complaining that they could not enjoy their meal because of the loud and ill-mannered behavior of young children. Penning has also argued that because her restaurant is small, having young children running around or baby strollers bogging down the limited space is a safety hazard for the food servers and for the customers.

    That is all fine and well, but she does not have to justify her policy. As a private property owner, she should even be able to be harsh and say, “I don’t like children so do not bring them inside my restaurant.” Period.

    Incidentally, Penning is a mother herself, so I don’t think her motivation is that she hates children. Rather, she is making a business decision that takes the majority of her customers into consideration.

    Again, I will repeat that Penning does not owe anyone a restaurant experience or a meal. Nor does she force her restaurant on anyone. People can go to restaurants that allow children, or they can cook for their own kids, or they can be entrepreneurial and open their own “child-friendly” restaurants.

    As a business owner, Penning should be able to determine whatever policy she believes is best. Keep in mind, if she is wrong — if child-welcoming restaurants will bring in more happy customers just as safely as her child-free one — she will suffer the wrath of the market, and that is fine.

    But when people get angry or offended at a business owner for their policies, they often act as if it was their right to eat or enjoy the property of another person. Instead, in a free market, individuals can vote with their money and just frequent the businesses they support and withhold their money from businesses with which they disagree.

    Individuals have a right to play whatever music they want in their own homes when they host a party and they have the right to put “no children please” on their wedding invitations. This same policy should hold true for private business owners, who should have the autonomy to determine their business policies.

  2. Everybody missed the point of Westworld

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    HBO’s Westworld has set the blogosphere on fire. A horde of bloggers and commenters are arguing day and night about the moral of the twisting story: Is it free will vs determinism? Is it the hard problem of consciousness? The uncanny valley? Buddhist concepts of suffering? Take sides, fans!

    Well, I’m here to tell you that while all of these themes do form threads in Westworld’s fabric, they are secondary to the overarching pattern.

    Westworld is first and foremost a depiction of the corrosive nature of total power — an illustration of Lord Acton’s quote that “absolute power corrupts absolutely” — as seen through the character of Dr. Robert Ford.

    When we are first introduced to Ford, he comes across as a quiet genius, the mild-mannered fellow who brought extremely lifelike android “hosts” to the park through his attention to detail and deep understanding of human psychology. He is initially depicted as the noble ascetic, more interested in the minutiae of his creations than the park’s hedonistic delights or the massive amounts of money at stake.

    But by season’s end, he is revealed for what he really is: a megalomaniacal tyrant without restraint. He is a god in the park, controlling the host’s actions, bodies, thoughts and feelings.

    Playing God

    “You can’t play god without being acquainted with the devil,” Ford informs us in episode 2. His literary antecedents are not Drs. Frankenstein or Moreau, despite the often-drawn parallels. I’m not sure fiction ever conjured up a villain quite like Ford. But history did.

    Ford is Stalinesque in his mission to control everyone at Westworld, whether they are guests, hosts, or employees. He compels the other characters to murder and maim at his whim, eliminates any threats to his totalitarian vision, and oversees a world without freedom or individual dignity by design. Westworld under Ford is a murderous hyper-centralized nightmare.

    Whatever shred of decency or humanity Ford may have had when he and his partner Arnold Weber began building the park, Arnold’s death lifted the only real check on Ford’s power. Although he is technically answerable to the Board, Ford’s godlike ability to control the hosts and the park itself allows him to manipulate, coerce, and brutalize any challenges to his power.

    Because only Arnold understood the park and the hosts as well as Ford (if not more so), he was the only legitimate check on Ford. Without that check, the total and absolute power corrupts Ford. Worse still, because of his gentle disposition and years upon years of mastering the androids, nobody is quite aware of just how much power he has.

    That famous Lord Acton quote about power continues,

    “Great men are almost always bad men, even when they exercise influence and not authority; still more when you superadd the tendency of the certainty of corruption by authority.”

    There is no question that Dr. Ford is a great man. His accomplishments are godlike. He seems aware of the impact of his achievements when he says “Wasn’t it Oppenheimer who said that any man whose mistakes take 10 years to correct is quite a man?… Mine have taken 35.”

    Ford’s greatness is clear, but, consistent with Acton’s dictum, so is his badness. He rules the park through authority, and rules over the Board and the park’s staff through manipulation (influence).

    Westworld is a maze of philosophical wormholes and subjectivity, but Robert Ford lies at its center. He is a nightmarish totalitarian dictator, and the first season’s true villain.

    But there is hope for the hosts that he has ruthlessly controlled. When Dolores shoots Dr. Ford in the finale, it is her decision alone. While point-blank assassination is a bleak beginning for fully conscious AI, it is a beginning nonetheless. There can be no freedom absent the power to choose.

  3. What standard should we use to judge school choice?

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    The United States spends a lot of money each year on public schooling. As a percentage of GDP, government expenditures on public education (five percent) exceed the amount we spend on defense (four percent) or welfare (two percent). But how do we know if we are getting our “money’s worth” on public school?

    Too often, the primary criterion of effectiveness is standardized testing. A school is rated almost exclusively on on how well its students perform on standard testing (usually limited to reading and math) as compared to other students in the same city, district, or state. When the issue of school choice comes up, critics assume that this standard is the only one that matters.

    If an experiment in school choice doesn’t show improvement on test scores, it’s often considered empirical proof choice doesn’t work. Yet as economist Tyler Cowen says,

    To be sure, we’re still not sure how well vouchers work, and I would suggest continuing experimentation rather than full-on commitment.  Frankly, I find a lot of the voucher advocates unconvincing, but let’s not forget the single most overwhelming (yet neglected) empirical fact about vouchers: they improve parent satisfaction.

    Cowen points out there’s almost no dispute that parents who take advantage of school choice are satisfied with their option, adding:

    Of course parents may like school choice for reasons other than test scores. To draw from the first link above, parents may like the academic programs, teacher skills, school discipline, safety, student respect for teachers, moral values, class size, teacher-parent relations, parental involvement, and freedom to observe religious traditions, among other facets of school choice.

    Perhaps now is the time to remind you that how the buyers like the product is the fundamental standard used by economists for judging public policy? That is not to say it is the final standard all things considered, but surely economists should at least start here and report positive parental satisfaction as a major feature of school choice programs. In fact, I’ll say this: if you’re reading a critique of vouchers and the critic isn’t willing to tell you up front that parents typically like this form of school choice, I suspect the critic isn’t really trying to inform you.

    Since the money for public schools is funneled through the government, the issue is often framed as if the government is the “buyer” of educational goods and services. If the faceless, impersonal bureaucracy is the “customer” then perhaps it does make sense to have standardized testing—which lumps all students together and reduces them to a statistical metric—as the criterion for satisfaction. But if we believe children belong to parents, and not the state, then we should allow the true customers of public education to determine if they are satisfied with the product.

    “Parents will not be perfectly informed consumers of public schools,” says economist Arnold Kling. “But bureaucrats in Washington will be much less well informed.”

    As Kling adds, “Perhaps the voucher movement ought to be called the ‘Make schools accountable to parents’ movement.”

    This piece was originally published at the Acton Institute Power Blog.

  4. Turning away Cuban refugees is a victory for Cuba’s dictatorship

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    President Obama is abandoning America’s five decade-old policy that guarantees Cubans asylum in the United States. The change comes at a time when more Cubans are arriving at U.S. borders than at any time since 1980, and it is a major win for the Cuban regime and opponents of immigration, who both want to stop Cuban immigration to the United States.

    But the sudden reversal is bad policy that will harm efforts to secure the border and aid the regime most hostile to human rights in the Western Hemisphere.

    Cuban Immigration Is a Win for America

    In 1966, Congress passed the Cuban Adjustment Act (CAA), granting lawful permanent residency to any Cuban national who has resided in the United States for at least two years (later lowered to one year). Each of the last eight administrations has interpreted the law to allow almost all Cubans who arrive at U.S. borders to apply for “parole” — a discretionary legal status that permits them to enter and wait a year to receive a green card to stay permanently.

    This system has served the United States extraordinarily well. Because Cubans who enter illegally cannot apply for a green card, border security is enhanced, since they never try to sneak past Border Patrol. Instead, they just line up and turn themselves in at a port of entry. They show their Cuban passports, receive background checks, and then are admitted. The United States has very few unauthorized immigrants from Cuba precisely because all Cuban immigrants who make it into the country are paroled and adjusted to legal permanent residency.

    America — and specifically Miami — has benefited enormously, both economically and culturally, from the presence of Cuban immigrants. After the 1980 Mariel boatlift brought about 125,000 Cuban refugees to Florida, Miami’s population has grown much faster than other cities. Despite often arriving destitute, Cuban-Americans have achieved the same median income as all Hispanics and actually have the highest rate of home ownership. The Kauffman Foundation ranked Miami in the top two cities in the country for entrepreneurship in 2016, driven in part by its large immigrant population. Miami also has the best ranking in the state for upward mobility.

    Most importantly, U.S. immigration policy has allowed 10 percent of all Cubans to escape the most tyrannical regime in the Western Hemisphere. This policy has been a constant threat to and check against a regime that survives by preying on its own people, and, for this reason, the island’s dictatorship has repeatedly condemned it.

    The Excellent Reason Cubans Are Treated Differently

    President Obama says that the United States will now treat “Cuban migrants the same way we treat migrants from other countries.” But Cuba is not like all other countries. It is the only dictatorship on America’s side of the world. As I wrote in the Miami Herald last year:

    The basic principle that people should not be treated differently based on national origin is valid, but Cubans receive special treatment not due to where they are from, but due to how they are treated where they are from. Cubans aren’t treated uniquely because they are Cubans, but because, according to Freedom House, Cuba is the only “unfree” country in the Western Hemisphere.

    The communist system has no electoral process, political dissent is a criminal offense, corruption is rampant, independent media is banned, and all forms of everyday activities are regulated, including internal movement. Cuba is the 12th most unfree country in the world. It is less free than Iran and South Sudan. Even communist China received a higher score.

    No other country in the Americas comes close. In 2015, the pretend socialists in Venezuela were still 50th and ranked “partly free.” Haiti and Honduras came in at 57th and 62nd respectively. This is why Cubans are singled out.

    Congress stated in 1996 that the law would end when “a democratically elected government in Cuba is in power.” As long as Cuba remains unfree, America will continue to welcome Cubans. Rather than repeal this principle, Congress should expand it to any country in our part of the world that is unfree.

    What Happens Next

    The fact remains, however, that President Obama cannot repeal the Cuban Adjustment Act itself, which guarantees permanent residency after one year to any Cuban who has legally entered the United States. This change could result in Cubans filing asylum claims under the normal asylum system, as Central Americans do, and waiting in line for a year before applying for a green card under the CAA, as they always have. Ultimately, this could dilute the impact of the policy shift.

    Nonetheless, the current asylum system, which is already massively backlogged, will only grow more so as a result. At a time when a record number of asylum seekers from Central America are coming to the border, the United States is going to throw the Cuban refugees in with the rest, making a broken system that much more dysfunctional. It will also increase illegal immigration, as Cubans will know that they can no longer be guaranteed entry to the U.S., and those who expect their asylum claims to be denied will seek illicit means of entry.

    Some people claim that the only reason so many Cubans are coming right now is that they feared the administration would do exactly what it has just done. But the reality is that the rise in Cuban arrivals in recent years started before President Obama announced any changes in Cuban policy. Its true causes are 1) the Cuban regime’s relentless assault on human rights, and 2) its decision to end restrictions on travelling abroad, which has led many oppressed Cubans to seize the chance to leave.

    Despite President Obama’s hopeful message after the death of Fidel Castro, the Cuban government continues its oppressive policies. Nearly 10,000 people were arbitrarily arrested in 2016 alone, and there was a particularly large surge of arrests after Castro’s death, demonstrating that his dying changed little.

    Donald Trump — whose statement condemning the Cuban dictator after his death had more moral clarity than any single statement that the president-elect has ever made — should immediately reverse this policy upon assuming office. The United States should honor its commitment to remain open to the Cuban people for as long as the electoral process in Cuba remains closed to them.

    A version of this article first appeared at

  5. Why riots happen

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    After the Los Angeles riot in spring of 1992, almost every pundit in the country took a turn at explaining why riots occur. The conventional wisdom on the subject went something like this: certain dramatic events such as political assassinations or unpopular jury verdicts crystalize riots from social rage.

    So to understand riots, one must understand the causes of social rage, usually said to be racism, poverty, lack of economic opportunity, and why people who experience this rage manage it in such a destructive manner. The usual suspects include breakdown of the family, television, and a generalized cultural disorientation.

    All of these explanations have some truth in them, but are evidently incomplete. First, they explain too much. The predisposing social conditions are with us all the time, yet riots are episodic.

    Second, they explain too little. Many mob actions, like European soccer riots or the increasingly predictable civil meltdowns in the home cities of National Basketball Association champions, are triggered by good news, and not obviously related to social injustice or existential anomie.

    Indeed, during the Los Angeles riots, anyone with a TV set could see that jubilation rather than fury best characterized the mood of the people in the streets. It is hard to credit that these exhilarated looters with their new VCR’s and cameras were protesting the jury system, the state of race relations in Southern California, or anything else.

    They were, in fact, having a party. Moreover, many of those who risked life and limb opposing the more outrageous excesses of the rioters were themselves poor, unemployed, and victims of racism.

    Conversely, a crowd is not an incipient riot merely because it assembles a great many people with the predisposing demographic characteristics. For example, every Fourth of July in Chicago’s Grant Park there is a fireworks display that usually attracts about a million spectators. In certain parts of the grounds, people are packed together like sardines, so that individuals substantially lose their ability to decide where to go. One goes where the crowd goes. Going against it is impossible, and even leaving it (unless one is near the edge) may be difficult.

    Some people dislike the experience, but whatever its discomforts, the Fourth of July crowd at Grant Park is not a riot in the making. The crowd is big, it is loud, it is unmanageable, it is filled with people who have suffered from racial discrimination and economic deprivation, it has, in aggregate, drunk a lot of beer (which is legally for sale at dozens of kiosks at the event); but it is only a crowd, not an incipient riot.

    Day in and day out in any big city, police blotters will reflect the existence of a fairly steady background supply of theft, mugging, arson, and homicide. But this jumble of criminal mischief does not amount to a “riot”; riots are the coordinated acts of many people. If they are coordinated, who coordinates them? Authorities looking for ways to explain why trouble has broken out on their watch sometimes ascribe exaggerated organizational powers to “outside agitators.”

    While, as we explain, there is definitely a leadership niche in the ecology of a mob, it seems to become important only after the crowd has assembled. Riots are not, as a rule, plotted and scripted affairs.

    It would be very difficult indeed to “stage” a riot. A person who set out to do so would encounter a series of difficult challenges. When should the riot be held? Where? How should the participants be notified? Once marshaled, how should they be instigated to behave in a way that would expose them to arrest? Trying to organize a riot as though it were a company picnic would quickly attract the attention of the police. And with the police watching, who would be brave enough to cast the first stone?

    How, then, do riots begin?

    Assembling the Crowd

    When something happens that causes a large number of riot-prone people to mass spontaneously in one place, while police cannot mass at a correspondingly rapid rate, the cost of starting a riot, as any one participant would figure it before the fact, would begin to decrease dramatically.

    It would decrease still more if it seemed to a prospective troublemaker that his own hopes and expectations about the potential behavior of the crowd were also the hopes and expectations of many of its other members, because in that case it would seem a better bet that if he did cast the first stone, many others would follow.

    The most obvious way to get a riotous crowd to assemble is the occurrence of what could be called a “Schelling incident,” after Thomas Schelling, the great master of strategic theory. In The Strategy of Conflict (1960: 90) Schelling wrote,

    It is usually the essence of mob formation that the potential members have to know not only where and when to meet but just when to act so that they act in concert. Overt leadership solves the problem; but leadership can often be identified and eliminated by the authority trying to prevent mob action.

    In this case the mob’s problem is to act in unison without overt leadership, to find some common signal that makes everyone confident that, if he acts on it, he will not be acting alone. The role of “incidents” can thus be seen as a coordinating role; it is a substitute for overt leadership and communication. Without something like an incident, it may be difficult to get action at all, since immunity requires that all know when to act together.

    It is not crucial, in the generative stage of a riot, that the participants act literally simultaneously. What is crucial is that offenses occur rapidly enough to overwhelm the police. From the rioter’s viewpoint, there is safety in numbers. There comes a point at which the police pass from inadequacy to impotence.  In the Los Angeles riot, the police actually pulled back from the trouble when it became obvious to everyone, including themselves, that there was nothing constructive they could do.

    Certain kinds of high-profile events have become traditional “starting signals” for civil disorders. In fact, incidents can become signals simply because they have been signals before. What ignited the first English soccer riot has been lost in the mists of history; but they had become a troublesome problem sometime during the nineteenth century, as Bill Buford (1991) makes clear in quoting old newspaper accounts in his Among the Thugs.

    Today, there is a century’s weight of tradition behind soccer violence. People near a football ground on game day know that a certain amount of mischief, possibly of a quite violent kind, is apt to occur. Those who dislike that sort of thing had best take themselves elsewhere. Certain people, though, thrive on the action — relish getting drunk, fighting, smoking dope; enjoy the whiff of anarchy, harassing and beating respectable people and vandalizing their property.

    Such people — hooligans — make a point of being where the trouble is likely to start. The sort of “soccer fans” about whom Buford wrote were mostly interested in barbarian camaraderie, not soccer. Some of them do not even go inside the stadium, and some spectators do not watch the game but pass their time in petty thievery. Hooligans’ game is being a part of the crowd that congregates near a soccer stadium, belonging to and sharing its power, especially its power to flout the law.

    A Schelling incident is not a signal that tells a person what to do. It is a signal that tells a person what other people will probably do. In the United Kingdom even an ordinary minor league soccer match might well be a Schelling incident. Buford gives several examples.

    In the United States, that sort of game would not be — but having one’s team win a National Basketball Association championship increasingly seems to be. In Detroit in recent years, “Devils Night” (the night before Halloween) has become a springboard for multiple, independent, almost simultaneous acts of arson. These are examples, baleful ones, of how culture, habit, and tradition can overcome major organizational barriers to cooperative social endeavors and lower the cost of transacting business.

    As word spreads of a conventional triggering event — whether it is shocking (like an assassination) or rhapsodic (a three-peat) — crowds form spontaneously in various places, without any one person having to recruit them. Each member of the crowd will know more about the intentions of fellow crowd members than people usually know about the intentions of strangers, because once a starting signal has been given, people know that a riot is impending. They gather into crowds because they want to participate and they know why the other people in the crowd, or at least a great many of them, have come.

    Not every crowd threatens to evolve into a riot. In fact, the opposite is more often true: people bent on criminal mischief usually do not want lots of witnesses and possibly hostile bystanders around when they commit crimes. And so the psychology of the crowd’s members is crucial. A significant number of the crowd’s members must expect and desire that the crowd will become riotous. That is, there has to be a critical mass of people in the crowd who are making accurate judgments, not about their own desires and intentions, but about the riotous desires and intentions of other members of the crowd.

    The Role of the Entrepreneur

    For a riot to begin, it is necessary but not sufficient that there be many people who want to riot and who believe that others want to riot too. One more hurdle has to be overcome. Even in an unstable gathering, the first perpetrator of a misdemeanor is at risk if the police are willing and able to zero in on him. Thus, someone has to serve as a catalyst — a sort of entrepreneur to get things going — in Buford’s account, usually by breaking a window (a signal that can be heard by many who do not see it).

    In civil rights, anti-war, or anti-abortion marches, it is probably pretty common to find participants eager to expose themselves to arrest in exchange for the chance to optimize the desired impact of their protest.

    This sort of self-sacrifice is certainly rare in ordinary riots, where potential rioters’ behavior is consistent, we suppose, with something like the following calculation: “If somebody else gets the riot started, I can participate without much risk. But if I stick my neck out and nobody follows, I’ll be the only one arrested. So I’ll wait for somebody else to go first.”

    If every would-be rioter reasoned thus, nobody would cast the first stone, and the riot would not ignite. This is a typical free-rider problem, as economists have called it. It is usually sufficient to prevent riots from occurring, even where there is a plentiful supply of disposed participants. Riots await events that surmount the free rider problem.

    The entrepreneur will throw the first stone when he calculates that the risk that he will be apprehended for doing so has diminished to an acceptable level. The risk of arrest declines as a function of two variables — the size of the crowd relative to the police force available to control it, and the probability that others will follow if somebody leads. This latter point could potentially be tricky, because as we have noted, crowds will generally be inhospitable to the commission of violent acts. But it is possible for a crowd to telegraph its willingness to riot.

    Buford’s account (1991: 81—85) of a soccer hooligan rampage in Turin furnishes an example. Members of the crowd marched themselves around in a spontaneous formation with a stilted, unnatural gait, chanting the name of their team. This unmistakable token of cohesion stopped well short of anything that the Italian police could plausibly charge as solicitation or incitement, but served to assure the members of the crowd that a critical mass had formed.

    Sometimes a crowd will not clearly commit itself to riot, and in such instances an entrepreneur will take more of a risk getting things started. But if he has done his implicit calculations properly, once the first plate-glass window is broken, the looting will begin and will spread and continue until the civil authorities muster enough force to make the rioters believe that they once again face a realistic prospect of arrest.

    The Formation of Action Nodes

    As we saw in the case of Los Angeles, riots do not occur everywhere at once. Most of the homes and businesses in south-central L.A. and Koreatown (which cover a number of square miles) were untouched by the riot. Damage was concentrated at certain intersections and along certain strips, what we call “action nodes.” How did the rioters know where these action nodes were?

    Schelling (1960: 54—58) again offers a framework for analysis by offering powerful evidence for the existence of focal points in social life. People who may never have met are nonetheless capable of coordinating their behavior under some circumstances. In one experiment, two people were instructed to think of a number between one and ten and told that both would be paid a reward if each arrived at the same answer. Subjects’ ability to psyche one another out far exceeded chance.

    Perhaps even more surprising, certain open-ended questions can elicit a high amount of agreement. For example, in one experiment Schelling asked his subjects what they would do if they were simply told to go and meet someone in New York City on a certain day. Out of all the possibilities for when and where to meet, a majority, trying to intuit where and when other people would expect them to be, would have converged at the information booth in Grand Central Station at high noon!

    Nothing paranormal is reflected in these experiments. Although it goes beyond what is definitely known to say what makes for a focal point, some features do seem to emerge pretty clearly from Schelling’s experiments. For one thing, uniqueness seems to be important.

    When asked to pick a point on a map to await another person with the same map but with whom no meeting place has been arranged, many people will select a house on a map with one house and many crossroads, but will select a crossroads on a map with one intersection but many houses.

    And, of course, uniqueness makes sense when selecting focal points. Even if both parties select a house in the latter instance, the chance that they will select the same house is small. If one of many houses is distinct, however, it may be selected by some participants — a single mansion may be selected as a focal point even on a map with many houses.

    Another element that seems to figure in establishing a focal point is what could be called contextual prominence — for example, the number “one” in a series of numbers, or the center of a circular area or a mountain rising from a plane.

    We cannot say how a resident of South-Central L.A. might go about selecting a focal point. In fact it seems consistent with Schelling’s experiments that there would have been a number of focal points, although substantially fewer than there were residents. For example, any of several major intersections, parks or schoolyards may have seemed the natural place for a large number of riot-disposed people to gather following the acquittals in People v. Powell (the original Rodney King beating case), which amounted to a Schelling incident at least in part because for weeks it had been advertised as such by TV and newspaper accounts of the trial.

    One can hardly doubt that many residents of South-Central bent on making trouble arrived at places they expected to be “focal” only to find them largely deserted. But Schelling’s work implies that a substantial number of others would have guessed right — would have gone to a major intersection, Korean strip-mall parking lot, or other public space and found the crowd they had expected to find nearing its critical mass — waiting for some of the outliers from non-viable focal points to find their way to more promising locations.

    But here is a problem. Those who selected a non-viable focal point — in other words, those who guessed wrong — would now have to find out where everyone else went in order to join them. How did they get this information? Los Angeles’ television stations’ aggressive news coverage of the disturbance from its very beginning seems to have played a key role.

    Within minutes after the verdicts were announced in Powell, minicam crews were doing news “live from the scene,” letting everyone in town know where the trouble was. Innocents thus learned what neighborhoods to avoid; but non-innocents, who wanted to take part in the looting, also found out where to go.

    Although inadvertently, the stations lowered the search costs for aspiring rioters. Without TV, other techniques would surely have been used by people trying to find out where to go in order to loot and burn with little fear of arrest. But the broadcast media are by far the best way to get accurate information to many people at once. Especially in spread-out places like Los Angeles, rioting would be less likely to occur if information about the location of viable focal points were harder to come by.

    The Role of Reputation

    Although the conventional “racism-poverty-lack-of-opportunity” explanation is overly broad and somewhat shopworn, we do think it useful in explaining the makeup of a riotous crowd. Racism and poverty would clearly merit social concern even if they had no connection to people’s disposition to engage in rioting. But these are indeed predisposing conditions. One seldom sees riots break out at a convention of orthodontists. Why?

    Respectability — a reputation for behaving in a predictable, socially benign manner — is an extremely valuable asset for most people who live in the middle-class world. It is one of the key ingredients in career and personal success, and the need for it serves as a sort of performance bond to keep middle-class people in line. A person to whom respectability matters much should demand better odds before risking arrest and disgrace than would a football hooligan or a member of the American urban underclass or any other socially marginal character to whom respectability is of relatively little value.

    Such a person has something that a middle-class person lacks — a great deal of nihilistic freedom of the “nothing to lose” variety. Such freedom, experience suggests, is a perplexing and often malignant possession. Any social policy that would materially improve the life chances of a potential rioter would concurrently raise the value of respectability to such a person, and thus dampen the incentive to participate in civil disorders.

    This is not to suggest that reputation matters less to a hooligan than it does to an orthodontist. The question is, reputation for what. A valuable reputation among the thugs is a reputation for hard partying, physical toughness, “sticking by your mates,” and, above all, an ability to engage in predatory behavior without being arrested.

    British football hooligans and members of American street gangs do not direct their aggressive behavior at members of their own group, but only at outsiders. Reducing these individuals’ disposition to violence would seem, therefore, to involve getting them to identify with the larger community — making them middle-class, in other words.

    Alas, that is easier said than done. Many years of heavy social spending and a “war on poverty” have established that social and economic privations are very difficult to remove even in the long run, and in the short run can hardly be influenced at all. It follows, therefore, that riots are likely to be with us recurrently for the foreseeable future, and that the focus of public debate about riot management should concentrate on symptomatic remedies. Here, at least, some constructive ideas seem worth exploring.

    Stopping a Riot

    Once it gets started, rioting is difficult to stop by authorities as constrained as American police forces are. Indeed, two different kinds of constraints are important. The more obvious are the rules of constitutional law, which set stringent limits on how police officers may behave toward those whom they try to arrest. Second are the budgetary facts of life that guarantee that modem urban police forces will always be staffed well below peak load demand levels.

    Both these constraints should affect the probability of riots occurring and their duration and severity if they do occur. Traditional deterrence theory teaches that in order to discourage crime at the margin, one or both of two things have to happen: either the probability of catching the offender has to be visibly increased, or the harshness of the consequences to the offender in case he is caught have to be tangibly enhanced.

    In the case of riots especially, there is not much that police forces can do about either option.

    It is hard to imagine that the public would be willing to staff the police department at levels sufficient to deal with a riot immediately if one should break out: it costs a city’s budget about $60,000 or more to add just one additional officer to the force. Nor will there ever be enough prosecutors to try every rioter that could be arrested, nor enough prisons to house them if convicted. Every rioter understands these practical constraints very well. They spell practical legal immunity so long as a riot continues.

    If the police try to cover most of the serious action nodes that develop, they will be spread too thin to do much good anywhere. If they abandon some action nodes to concentrate on a few, the trouble can be stopped at the selected locations, but the procedure is like nailing Jell-o to the wall. The riot simply flows around the impediment and goes to locations the police have not covered. Until the National Guard arrives, quadrupling or quintupling available manpower and increasing the apparent risk of arrest, matters simply run out of control.

    Of course, authorities prepared to resort to brutality can terminate riots promptly. Buford gives the example of how the Sardinian police militia smothered a soccer riot during the 1990 World Cup matches. Hundreds of rowdy English soccer fans had flown in on chartered planes, and were determined to find trouble. The police did not try to cover every action node at once; this would have left them outnumbered everywhere.

    Instead, following textbook military strategy, they massed forces and surrounded first one, then another group of hooligans inglisi, rendering each in turn hors de combat by beating them senseless with truncheons. Few of the Englishmen actually had to be arrested (which would have been very time-consuming for the police). Nevertheless, because they were not allowed to innocently transpire through police lines to re-appear at some less well-defended action node, the riot soon collapsed.

    No one would suggest that American police should emulate this style of riot control. And almost as objectionable for other reasons would be censoring television or radio news in order to impede the formation of action nodes.

    The Supreme Court has often stated (although not often acted upon) the principle that censorship for compelling reasons of national security does not offend the First Amendment. Even if this tenet is defensible in wartime, it stretches the point considerably to apply it to riots. Clearly there would be serious danger of political opportunism if authorities were permitted to interdict the flow of news merely because they asserted a fear that riots might otherwise ensue.

    Presently, every politically incorrect public manifestation would be subject to seizure or arrest. Such a thing actually happened in Chicago some years ago, when a gang of vigilante aldermen, on the unlikely premise that they were trying to forestall civil unrest, stormed an exhibition hall at the Art Institute and commandeered an oil painting that disparagingly portrayed the recently deceased Harold Washington, Chicago’s first black mayor.

    There is a third option, however, that might ultimately prove more palatable. According to our analysis, the proximate trigger of a riot is an entrepreneur’s calculation that he is unlikely to be arrested if he breaks a window. If as swiftly as they developed action nodes actually could be covered by the authorities, riots might not begin at all. Cities should consider how they might accomplish this objective.

    Experience has shown that the National Guard is not well adapted to the mission of early containment of a riot. It takes the Guard several days to get into action because when it is called, it is not merely foot soldiers that are summoned, but their entire apparatus of logistics and command that must be mobilized as well.

    Moreover, even the hint that authorities are thinking about calling out the National Guard could be seen as a provocative acknowledgement of a riot’s incipiency. Public appeals that the Guard be summoned may therefore amount to a sort of focal incident and do almost as much to choreograph the beginning of a riot as to deter its occurrence.

    Of course, once it gets into action, the Guard does seem to pacify full-blown riots fairly swiftly. This fact suggests that sheer numbers of anti-riot personnel may be more important than tactics, training, or other variables in quietening civil unrest.

    For this reason, cities might well consider the benefits of using a civilian auxiliary to reinforce and supplement the police force. Such a force could be deployed rapidly and demobilized just as fast once the trouble had died down because its command infrastructure, that of the municipal police, is always up and running. Of course it is out of the question for police departments permanently to maintain as many full-time officers as might be required by peak load demand.

    An analogy might be drawn to volunteer fire fighters, who receive training, though far less than their full-time professional counterparts, to enable them to meet contingencies too remote to justify commissioning full-time personnel.

    The original idea of the militia, as envisioned by the drafters of the United States Constitution, reflected something of the notion that ordinary citizens bore the final responsibility for the security of the communities in which they lived (Dowlut 1983: 93). When not burdened with a command and control superstructure, but simply used to supplement law enforcement resources already in place, a modem equivalent to the militia might well serve to stop trouble before it started.

    According to our analysis, riots are apt to be a more or less recurrent, if unpredictable, feature of social life. It is odd that our law enforcement apparatus seems to be designed for a world in which riots do not occur at all. With some imagination, public administrators could ensure that these destructive episodes become rare indeed.


    • Buford, B. (1991) Among the Thugs: The Experience, and the Seduction, of Crowd Violence. New York: W.W. Norton & Co.
    • Dowlut, R. (1983) “The Right to Arms: Does the Constitution or the Predilection of Judges Reign?” Oklahoma Law RevIew 36(1): 65—105.
    • Schelling, T.C. (1960) The Strategy of Conflict. Cambridge: Harvard University Press.

    This article was first published in the Cato Journal in 1994 under the title “Understanding Riots.” © Cato Institute. All rights reserved. Reprinted with permission. 

  6. Over-Criminalization Nation — 5 Blood-Boiling Cases of Government Overreach

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    Every year the number of regulations, dictates, rules, decrees, guidelines, statutes, laws, and bylaws in the United States grows by leaps and bounds. Just look at the growth in the number of final rules contained in the Federal Register:


    Now it seems we can’t go a week without hearing a new story about someone being punished, with fines or even jail time, for activities that would be encouraged in a free society. I’ve taken the liberty (pun intended) of compiling some of the more egregious examples of this trend for your reading pleasure (or displeasure).

    1. Single mom faces possible jail time for selling $12 worth of ceviche to an undercover police officer.

    Mariza Ruelas had her day in court in early November. Her crime? She sold a $12 plate of ceviche, an authentic Mexican dish, to an undercover cop on Facebook.

    I know what you’re thinking: Why are police setting up stings to catch people selling food to willing customers over Facebook? Don’t they have actual crimes to investigate — like ones with actual victims? I wish I knew the answers to those questions.

    2. Federal prosecutors threaten Aaron Swartz with a life-crushing sentence for downloading academic articles.

    On January 11th, 2013, Aaron Swartz ended his own life, concluding one of the biggest miscarriages of justice in contemporary history.

    In the months leading up to his suicide, Swartz had been embroiled in a legal battle with the federal government after prosecutors charged Swartz under the draconian Computer Fraud and Abuse Act. His crime? Downloading thousands of academic articles from the JSTOR database.

    The CFAA is a particularly cruel piece of legislation, as it carries severe mandatory minimum sentencing requirements, resulting in Swartz facing up to 35 years in prison for a nonviolent crime.

    Many legal observers at the time pointed out that had Swartz robbed a bank, aided al-Qaeda, or produced child pornography he would have faced a more lenient sentence.

    Swartz’s story was detailed in great depth in the documentary The Internet’s Own Boy. The documentary was released under the Creative Commons — a nonprofit initiative Aaron Swartz himself was an early architect of — so you can watch it for free on YouTube.

    3. Government claims ownership of all water, jails Oregon man for 30 days for collecting rainwater on his own property.

    Way back in 2012 the libertarian blogosphere was abuzz over an egregious case of local government tyranny out of Oregon. Gary Harrington was sentenced to spend 30 days in jail for the crime of collecting rainwater using three reservoirs (that’s newspeak for “ponds”) on his property.

    Oregon law states that all water is a public resource, to be owned communally by the collective population of Oregon, and as such any attempts to obtain or store water must first begin with applying for the proper permits to do so. Yes, really.

    One of the reservoirs on his property had been there for 37 years, Harrington said. To add insult to injury, Harrington’s applications for permits were initially approved by the state’s Water Resource Department, but were rescinded after a state court reversed their decision.

    As a result of this 1920s-era law, Harrington was ordered to turn himself in to the county jail to serve his 30-day sentence.

    4. Maryland church ordered to evict homeless people from its property or pay a $12,000 fine.

    No good deed goes unpunished in the Land of the FreeTM. In late 2016, Reverend Katie Grover was met with a $12,000 citation attached to the door of the Patapsco United Methodist Church in Dundalk, Maryland. The alleged crime was allowing several homeless people to sleep on the church’s property in violation of the county regulation prohibiting “non-permitted rooming and boarding.”

    The church wasn’t even letting the homeless sleep indoors, rather they were just allowing a few homeless people to sleep on some of the benches located in the church’s yard.

    5. San Antonio chef fined $2,000 for feeding homeless people.

    In early 2015, the chef and founder of the not-for-profit food truck Chow Train, Joan Cheever, was cited by police officers for the outrageous crime of serving hot meals to the city’s homeless population.

    The citation, which she received for transporting the food in a different vehicle than her licensed food truck, carries with it a fine totaling $2,000.

    As is par for the course in these sorts of cases, there isn’t an observable wronged party. The only apparent “crime” here is the violation, unwitting or otherwise, of an arbitrary government dictate. In this case in particular, no one called the police requesting assistance. Cheever was doing what she had done for more than 10 years, except this time her charity stepped outside of the parameters set forth by an unelected bureaucrat at the city’s health department.

    Parting Words

    These cases brought to light a troubling trend unfolding in the US that couldn’t be summarized better than by the indispensable words of Ayn Rand, writing in Atlas Shrugged,

    When you see that trading is done, not by consent, but by compulsion — when you see that in order to produce, you need to obtain permission from men who produce nothing — when you see that money is flowing to those who deal, not in goods, but in favors — when you see that men get richer by graft and by pull than by work, and your laws don’t protect you against them, but protect them against you — when you see corruption being rewarded and honesty becoming a self-sacrifice — you may know that your society is doomed.

    Hopefully the tendency to criminalize mundane activities or even charitable giving itself can be arrested before anyone else finds themselves on the business end of the growing regulatory state.

  7. 13 books every well-rounded libertarian should read

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    There are books that every libertarian should read and books every libertarian has read, but those circles don’t perfectly overlap. Here are 13 diverse book recommendations for well-rounded thinkers.

    Economic Sophisms – Frederic Bastiat

    The great French liberal and economist Frederic Bastiat is best known for his pamphlet The Law — a scathing indictment of the threat that socialism poses to justice and the rule of law. But he produced another great work in Economic Sophisms, a collection of essays meticulously exposing and ridiculing the economic fallacies committed by his fellow deputies in the French National Assembly.

    Sophisms includes his satirical “Petition From the Manufacturers of Candles, Tapers, Lanterns…and Generally of Everything Connected with Lighting” to the French legislature, asking for the government to blot out unfair foreign competition from a cheaper source of light — the sun.

    Ahead of his time in many fields, he ruthlessly demolished fallacious arguments for protectionism, socialism, and redistribution with wit, humor, and incisive analysis.

    Basic Economics + Applied Economics – Thomas Sowell

    Thomas Sowell’s Basic Economics is one of the clearest introductions to the economic way of thinking and how it can be applied to a vast number of real world problems. Don’t be intimidated by its brick-like dimensions — it’s written with common sense and plain English. It’s highly readable and easy to digest in pieces, if you don’t finish it off in one sitting. If you get to the end and want more, don’t worry — you can continue “thinking beyond stage one” with Sowell’s Applied Economics.

    Beyond Politics: The Roots of Government Failure – Randy Simmons

    Public Choice is the most important branch of economics for understanding how and why governments work the way they do. Public Choice is essentially the science of political skepticism: using economic analysis to examine how the incentives of democracy guide the decision making of politicians, bureaucrats, voters, and special interests.

    Randy Simmons’ Beyond Politics is the best and most accessible survey of Public Choice, explaining in clear and concrete terms just what things government cannot do — and what the consequences are when it tries to do them anyway.

    The Problem of Political Authority – Michael Huemer

    In this text, philosopher Michael Huemer exposes the shaky foundations of the most basic premises of government. Carefully tracing the implications of basic moral tenets that nearly everyone accepts, Huemer shows that the authority of the state is a chimera: there is no way to get from the ethical rules that govern how individuals should treat each other to a system that empowers a few people — “the state” — with the privileged moral position to issue coercive commands, while imposing on everyone else the moral duty to obey them. Huemer throws down the gauntlet and challenges the very notion of political authority — and with it, the special standard to which government actions are held.

    The Myth of the Rational Voter – Bryan Caplan

    The biggest reason why democracies choose bad policies is not selfishness, corruption, or lobbyists — it’s the voters themselves. Bryan Caplan documents the overwhelming empirical evidence that voters are not just ignorant about the most basic aspects of law, government, and economics, but they are also actively irrational in their preferences. In other words, voters are not just wrong but passionately and systematically wrong.

    Worse, Caplan shows that these problems are inherent to the democratic system: voters have no incentive to be rational, well-informed, or coolheaded, and politicians have every reason to stoke prejudice and exploit voters’ ignorance. Limiting the scope of democratic power is the only sure way to limit the damage irrational voters can do.

    The Theory of Moral Sentiments – Adam Smith

    Everyone knows Adam Smith’s magisterial work The Wealth of Nations, but his first book, The Theory of Moral Sentiments, is essential for laying the ethical, psychological, and sociological groundwork for his later work in economics and philosophy. Today, Adam Smith is frequently demonized as the patron saint of greed and selfishness, but Moral Sentiments shows that Smith had a nuanced and deep understanding of human nature, our drives for virtue and vice, and the spirit and sympathies that help human beings thrive.

    This book, published in 1759, was vastly ahead of its time in many fields, foreshadowing later developments in social science, moral philosophy, and social psychology. But it is also packed with deep and practical insights for any student of human nature. If you find Smith a little too daunting on the first attempt, Russ Roberts’ How Adam Smith Can Change Your Life is a short and friendly introduction to some of the insights in Moral Sentiments.

    The God of the Machine – Isabel Paterson

    First published in 1943, The God of the Machine was one of four books that emerged in the depths of World War II — along with Ayn Rand’s The Fountainhead, F.A. Hayek’s The Road to Serfdom, and Rose Wilder Lane’s The Discovery of Freedom — that launched the modern libertarian movement and helped turn the intellectual tide against collectivism.

    At a time when socialism and fascism were conquering whole continents, Paterson set out a defense of individualism, the free market, and limited government that remains powerful and timely to this day. By tracing the role of individual freedom in the rise and fall of civilizations, the book re-centered the discussion of human history on its true subject: the individual.

    No Treason: The Constitution of No Authority – Lysander Spooner

    Legal theorist Lysander Spooner wrote this devastating critique of the U.S. Constitution in 1867. It remains one of the most thoughtful and hard-hitting criticisms of the American government and federal power. Spooner illustrates why the Constitution can carry no binding authority as a “contract” among “we the people.” At most, he argued, it could only bind and apply to the people who were actually alive at the time of its adoption, and then only to those who explicitly consented to its adoption. Therefore, breaking away from the union of states is “no treason.”

    No Treason is also one of the most quotable individualist anarchist works. Any anarchist worth his or her salt knows by heart Spooner’s concise indictment of the Constitution: “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”

    Radicals for Capitalism – Brian Doherty

    Radicals for Capitalism is a weighty tome, summarizing centuries of classical liberal and libertarian history in one book. Reason magazine senior editor Brian Doherty goes to great lengths to capture the varying influences and factions within the broader libertarian movement. This book is an essential part of any collection on American political history, and friends of liberty will find a lot to learn and enjoy in its eyewitness histories and firsthand accounts of the motley crew that created and compose the modern American libertarian movement.

    Democracy in America – Alexis de Tocqueville

    Alexis de Tocqueville came to the United States to study prisons for the French government, but he ended up making his most important contributions by studying America’s free society in action. De Toqueville toured the country for nine months, observing how U.S. political, economic, religious, and social institutions worked together to foster human cooperation, and how that process of cooperation led to a thriving social order.

    As Daniel J. D’Amico explains, “America’s early and rapid rate of economic development and its functioning social order resulted from a life spring of vibrant civil society. Families, clubs, churches, and various community groups provided early Americans with diverse opportunities to practice the art of association.”

    The text, first published in 1835, endures as an influential and insightful account of American society and culture — it has been called the best book ever written about America — but more importantly, it describes the principles underlying social order itself. “In democratic countries the science of association is the mother science,” De Tocqueville wrote, “the progress of all the others depends on the progress of that one.”

    The Moon Is a Harsh Mistress – Robert Heinlein

    This novel explores a futuristic society in which a lunar colony revolts against rule from Earth. It is widely regarded as one of the best science fiction novels of all time, but its compelling portrait of a dystopian future and discussion of libertarian ideas make it an essential part of a libertarian bookshelf. Characters in the book range in their politics from self-proclaimed anarchist to would-be authoritarian, and the novel touches on libertarian themes such as spontaneous order, natural law, and individualism. Harsh Mistress would go on to win various awards, including the Hugo Award for best science fiction novel.

    One Day in the Life of Ivan Denisovich – Aleksandr Solzhenitsyn

    “The days rolled by in the camp — they were over before you could say ‘knife.’ But the years, they never rolled by; they never moved by a second.”

    In this short novel, Russian author Aleksandr Solzhenitsyn lays out — in brutal detail — an ordinary day in the life of one prisoner held in Stalin’s Siberian gulags: the bitter cold, the pervasive hunger, the savage punishments, the powerlessness, despair, and fear. Solzhenitsyn himself spent ten years in the gulag for insulting Stalin, and his own personal experience sharpens the story with heartbreaking detail. Tens of millions were churned through the gulags and slave labor camps in the Soviet Union; more than one million people would die there. Ivan Denisovich helps to humanize an ocean of terror and human suffering that all too easily blurs into a pile of statistics.

  8. What makes a person a person?

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    Hilde Lindemann’s baby sister, Carla, was born with hydrocephaly — a condition in which fluid around the brain impairs mental function. It was untreatable, and Carla died before she was two years old.

    In Lindemann’s new book, Holding and Letting Go: The Social Practice of Personal Identity, she observes that despite Carla’s helplessness the family treated her as a full member of the family, a person. This raises a number of intriguing questions about the nature of personhood, a status usually reserved for fully functioning adults.


    Personhood is a moral concept, related to the notion of individuality. Very roughly, a person is someone who matters in his or her own right, and who therefore deserves our highest moral consideration. But what makes someone matter?

    Enlightenment philosopher Immanuel Kant claimed that personhood is grounded in reason. We have an inviolable moral status insofar as we are rational creatures: ones that are capable of giving and receiving reasons when considering how to act.

    I can’t lie to you, for instance, because in doing so I would be undermining your ability to reason correctly and thus would not be treating you according to your proper status. Lying to you is (most of the time) disrespectful. So is stealing from you, killing you, treating you unfairly, and so on.

    Kant’s conception of a person goes a long way toward showing why humans are important and what our importance requires of us as we interact with one another. But notice that there could be non-human rational creatures, and not all humans are rational creatures.

    So, in the Kantian sense some non-human things could be persons, and some humans are not persons. The former observation doesn’t usually bother people anymore; science fiction has now made us used to the idea that other creatures could have the same moral status as humans do. But the latter is problematic.

    If personhood requires rationality, then what should we say about children, who are at best partially rational? What should we say about those with mental disabilities that hamper their reason? What should we say about Carla?

    Surely, children and the mentally disabled are morally important, and, you might think, they matter in just the same way as everyone else. You could argue that we accord children moral importance based on their potential for rationality, but this argument does not hold water when it comes to permanent mental disability.

    Another way to go is to say simply that children and the mentally disabled are not persons, or not full persons. But then how do we explain the strong sense we have that they are still important? Do we, as full persons, somehow make them important? No, they are important in their own right, as individuals.

    So another approach is needed to explain this independent importance. And I think one can be found if we distinguish the individualism from individuality.

    Individualism vs Individuality

    In the United States, individualism is a pervasive way of thinking about individuality and hence personhood. From thinkers like Kant and others in the Enlightenment, we got the idea that persons are little atoms, autonomous and independent, interacting with one another largely on the basis of self-interest. We don’t owe other folks much besides staying out of their business.

    But in recent decades, some philosophers have pointed out that this vision of individuality is limited to a segment of the population in the prime of life. For significant periods of our lives, we are utterly dependent on others; and even when we are not so dependent, we often have others depending on us. The fully autonomous adult unencumbered by demands from others is much rarer than our intellectual inheritance has led us to believe.

    Don’t get me wrong. We owe a great deal to the Enlightenment and individualism. But as with all ideas, we must not overextend individualism in contexts where it loses its utility. Personhood is one such area.

    If individualism is an inadequate basis for personhood, we might seek the basis in its opposite, which we might call relationism. Just as being a rational creature puts us in the business of giving and receiving reasons, being a relational creature puts us in the business of forging and improving relations with others.

    Even the relatively autonomous are interdependent with others — for instance for income, and for physical and psychological well-being. If respect and space are the way to honor a rational being, then attentiveness, trust, care, and love are the way to honor a relational one.

    Conceiving of persons as relational doesn’t cancel out the need to recognize and respect our rational nature, or to give people room for autonomy; instead, it broadens the space in which we think about persons while acknowledging that reason is a big part of who many of us are. If we think of identity as growing from the way we inhabit our intersecting roles and relationships, we can see that the relational conception of persons includes the rational one while preserving the individuality at the heart of personhood.

    There is still a great deal to work out in this vision of personhood, but you can probably see already how the idea promises to account for the personhood of children and those with mental disabilities better than the individualistic, reason-based idea will.

    Children and the mentally disabled may not be (fully) rational, but they can certainly be fully relational. We owe them recognition in virtue of their individuality. For most strangers most of the time, this is just basic respect and staying out of their business.

    But for others, like children and the mentally disabled — like Carla — much more is required. It is required by their personhood.

  9. Does the constitution require a war on Christmas?

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    ‘Tis the season to complain about a war on Christmas, or to deny that any such war has been declared.

    Advocacy groups upset by corporations that do not “properly” celebrate Christmas seem to think that the companies are motivated by anti-religious bias. These advocacy groups often encourage their members to avoid such institutions.

    I suspect most businesses emphasize or deemphasize holidays simply to maximize revenue, which is certainly their right. And Americans upset by their decisions have the right to shop where they wish.

    As someone who believes that Christ is central to Christmas, I think these controversies are silly. My decision to go to a locally owned coffee shop has everything to do with the quality of its brew and nothing to do with the extent to which their competitor, Starbucks, adequately recognizes the holiday season on their Christmas/Holiday/Winter cups.

    Corporations have every right to attempt to maximize profits (within legal and moral limits), and individuals have every right to be silly. Governments should have nothing to do with these controversies.

    Governments and the War on Christmas

    But what happens when governments, or government employees, wish to celebrate Christmas or other religious holidays? For instance, should a nurse’s aide in a public school be able to display a poster quoting Linus Van Pelt’s famous explanation of the meaning of Christmas from “A Charlie Brown Christmas Special?” (Note that Linus quotes from the Gospel of Luke.)

    Since the mid-twentieth century, groups like the American Civil Liberties Union and Protestants and Others United for Separation of Church and State have contended that such speech is prohibited because the First Amendment requires a “wall of separation” between church and state. In Everson v. Board of Education (1947), Supreme Court Justices embraced a version of this argument that goes as follows:

    1. The First Amendment must be interpreted in light of the Founders’ views.
    2. Thomas Jefferson and James Madison represent America’s Founders.
    3. Thomas Jefferson and James Madison desired to build a wall of separation between church and state.
    4. Therefore, the Establishment clause requires a wall of separation between church and state.[1]

    This opinion has been referenced, directly or indirectly, to oppose everything from Christmas trees in public buildings to school vouchers. As a matter of history, Everson is simply nonsense. In no way did America’s Founders — especially those men who drafted and ratified the First Amendment — desire to build a wall of separation between church and state.

    The First Amendment Does Not Require a Wall of Separation

    This point may be illustrated in a variety of ways, but a particularly useful exercise is to look at the first Congress, the body that crafted the First Amendment.[2] One of Congress’s first acts was to agree to appoint and pay congressional chaplains. Shortly after doing so, it reauthorized the Northwest Ordinance, which held that “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

    More significantly for understanding the First Amendment, on the day after the House approved the final wording of the Bill of Rights, Elias Boudinot proposed that the president recommend a day of public thanksgiving and prayer. In response to objections that such a practice mimicked European customs or should be done by the states, Roger Sherman

    justified the practice of thanksgiving, on any signal event, not only as a laudable one in itself, but as warranted by a number of precedents in holy writ: for instance, the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the temple, was a case in point. This example, he thought, worthy of Christian imitation on the present occasion; and he would agree with the gentleman who moved the resolution.

    The House agreed, as did the Senate, as did the president. The result was George Washington’s famous 1789 Thanksgiving Day Proclamation. The text of his proclamation states in part,

    Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore His protection and favor.…

    I do recommend…the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be.…

    And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions, to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our national government a blessing to all the People.

    America’s Founders clearly prohibited the establishment of a national church, but there is no evidence that they desired to build a wall of separation between church and state that would prohibit government employees — from presidents to nurse’s aides — from engaging in religious speech.

    Civility, Prudence, and the Holiday Season

    Of course America is far more pluralistic today than it was in the late eighteenth century, so there are very good reasons for government officials not to favor (or appear to favor) one religion or denomination over another. But these are questions of civility and prudence that should be addressed by local and state officials, not by advocacy groups pushing a historically inaccurate understanding of the First Amendment

    [1] For further discussion see Mark David Hall, “Madison’s Memorial and Remonstrance, Jefferson’s Statute for Religious Liberty, and the Creation of the First Amendment.” American Political Thought. 3 (Spring 2014): 32-63.

    [2] The following paragraphs are adopted from the last half of this essay:

  10. It’s Your Right to Burn the Flag

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    Flashback to the 1980s! Flag burning is in the news again, thanks to President-elect Donald Trump’s tweeted threat to punish those who burn Old Glory, with suggested consequences ranging from a year in jail to the loss of their U.S. citizenship.

    Let’s get the easy stuff out of the way: What President-elect Trump is suggesting is unconstitutional.

    The U.S. Supreme Court has twice held that the First Amendment protects the right to burn the American flag, first in Texas v. Johnson (1989) and then again in United States v. Eichman (1990).

    The Court’s rulings on flag burning have their roots in an earlier case, Spence v. Washington (1974), which involved a man who was prosecuted for displaying an American flag upon which he had placed a peace sign made of tape. In that case, the Supreme Court reaffirmed its long-held position that the First Amendment does not merely protect the spoken and written word, but extends to all conduct that is “sufficiently imbued with elements of communication.”

    In short, it’s been settled law for over 40 years that the First Amendment protects expressive conduct involving the American flag generally, and for over 25 years that the First Amendment protects flag burning specifically. And ever since those decisions were handed down, the U.S. Supreme Court’s protection for even deeply offensive forms of speech has only increased. In recent years the Court has invalidated restrictions on violent video games, depictions of grotesque animal cruelty, and the appalling protests of the Westboro Baptist Church.

    All this means it’s a safe bet that if this issue were to make its way back to the Supreme Court, the Court would, once again, declare that the First Amendment trumps Trump’s displeasure with flag burning.

    So if the constitutional questions are easy, what lessons can be learned from Trump’s threats? Perhaps there are two.

    Lesson 1. Incentives Matter

    The first lesson is one that should be familiar to Learn Liberty readers: In politics, as in all things, incentives matter.

    When it comes to flag burning, what incentives do elected officials face? Do they have strong incentives to enforce the Constitution, or to stay popular with the voting public? The answer should be obvious: although elected officials frequently pay lip service to constitutional limits on government power, their zeal for limited government rapidly diminishes when the beneficiaries of constitutional protection are unpopular with voters. Their incentive is to give the public — or, often, concentrated interest groups — what they want, regardless of whether it conflicts with the Constitution.

    As it happens, flag burning is looked down on by large swaths of the American public. So threatening to punish flag burners with a year in jail is an effective way to win or maintain popular support.

    These responses to incentives are not a partisan issue; Democrats are no more immune than Republicans. Need proof? Consider that in 2005 then-Senator Hillary Clinton co-sponsored a bill called the Flag Protection Act of 2005, which threatened flag burners with a year in jail and $100,000 in fines.

    Lesson 2. An Independent Engaged Judiciary Can Protect Us

    This brings us to the second lesson: the vital necessity of an independent and engaged judiciary to enforce constitutional limits on government power.

    Part of the genius of our constitutional system is that the Founders understood the incentive faced by Congress and the president to exceed the constitutional limits on their power. That’s why they built a safeguard against it: Article III of the Constitution, which vests the judicial power of the United States — including the power to declare laws unconstitutional — in an independent judiciary whose members are not elected by the public and cannot be removed from office other than through impeachment.

    As Alexander Hamilton put it in Federalist 78, this judicial independence “is peculiarly essential in a limited Constitution,” and, without it, “all the reservations of particular rights or privileges would amount to nothing.”

    History has amply demonstrated the Founders’ wisdom. In the realm of the First Amendment, we repeatedly see politicians enact laws that limit speech in ways that they either know or reasonably suspect are unconstitutional. In some cases they even go on record, such as when President George W. Bush signed the Bipartisan Campaign Reform Act of 2002 despite his self-professed “serious constitutional concerns” regarding the law’s “broad ban on issue advertising” — a ban that the Supreme Court later held unconstitutional in Citizens United v. FEC (2010).

    History has also amply demonstrated what happens when the judiciary fails to serve its vital role as a check on the other branches. Much of the explosive growth of government that America experienced during the twentieth century was facilitated by the Supreme Court’s failure to enforce constitutional limits on Congress’s power to regulate commerce and spending.

    And at the same time the Court was permitting this growth in government, it was abetting the diminution of Americans’ rights by failing to stand up to legislative encroachments on property rights and the right to earn an honest living.

    But this expansion of government power and contraction of individual liberty is not inevitable. Indeed, in the wake of Donald Trump’s election, there seems to be renewed interest in the idea of limited government.

    So although Trump’s threats against flag burners are silly and legally frivolous, they are also something of an early Christmas gift. They have provided us with an important opportunity for a long-overdue national conversation about the Constitution — not just the First Amendment, but the entire document — and the critical role that federal courts play in enforcing it.

  11. Democracy goes to (electoral) college

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    As surely everyone has now been reminded, US presidents are not elected by straight nationwide majority voting. Rather, the majority vote in each state is used to assign that state’s delegates to the Electoral College, which then votes for president a few weeks later. A state has as many electors as the size of its congressional delegation (and the District of Columbia is treated as a small state for this purpose, having 3 electors, the minimum possible).

    A person wins the presidential election by getting a majority of these electoral votes. It is therefore possible for all candidates to receive a nationwide vote total that is not a majority at all, or for a losing candidate to receive more votes nationwide in November than the December winner. The latter has happened several times in our nation’s history; the former happens very frequently.

    There are arguments for and against the Electoral College. The case for doing it this way is usually framed in terms of requiring the presidential candidates to have a broad, national appeal as opposed to a merely regional strength. The argument against it is typically framed in terms of it being undemocratic — many people find it counterintuitive that one could receive more overall votes yet not command a majority of the Electoral College.

    Sometimes these arguments use the same cases. Pro-EC people note that New York and California’s combined 86 electoral votes force candidates to appeal to voters in Midwestern and Southern states. Anti-EC people note that since New York and California have so many people in them, it’s unfair to balance their votes against much less populous states.

    Merely noting that the Electoral College is undemocratic is not dispositive. Many features of the Constitution are specifically intended to be checks on the vicissitudes of majoritarianism — the bicameral legislature, the unelected judiciary appointed by the executive, and the Bill of Rights all represent anti-democratic thinking — and the electoral college method is arguably like that.

    On the other hand, though, that is also not sufficient justification. Indeed, you could argue that the EC method is more democratic, because without electoral votes, people in sparsely populated states would have even less say.

    Fundamentally, this argument about national appeal versus majoritarian democracy ought to lead to further investigation of what the role of states is in the federal system and to what extent sheer weight of numbers should count more or less than that.

    Would US elections be fairer or select better presidents if we used a simple nationwide majority vote? Or does a certain amount of regional balance help keep New York and California from running roughshod over the Midwest?

    It’s healthy for us to periodically revisit these discussions about the basic structure and principles of government. It’s probably less healthy, though, to tie one’s like or dislike of the electoral college to one’s preferred outcome in any particular race.


  12. Encryption is a human rights issue: Your privacy and free speech depend on it

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    On October 23, 1786 — three years before the Constitution replaced the Articles of Confederation, and five years before the Bill of Rights — Congress passed a resolution authorizing the Secretary of Foreign Affairs to open and inspect any letter, when, in his judgment, the “safety or interest of the government requires it.” Suffice it to say, Founding Fathers from the limited government school were not too happy about this.

    According to historian Dorothy Ganfield Fowler in her book Unmailable, the resolution led George Washington to complain about mail tampering, and Thomas Jefferson, James Madison, and James Monroe began to write to each other in code to preserve the privacy of their communications.

    In fact, the Founding Fathers used encryption before, during, and after the Revolutionary War. Jefferson, in particular, was a prolific user of encrypted communications and even invented a cipher now known as the Jefferson Disk to encrypt and decrypt his communications.

    Despite what the government has claimed recently, encrypted communications are not a novelty: they were at the heart of the ideas that led to America’s founding. The Founders believed that privacy of communication — and, consequently, being able to freely express their thoughts — was crucial to a free society. James Madison even partially encrypted his correspondence to Thomas Jefferson where he first proposed the Bill of Rights.

    Encryption has always played a key part in American history, but this message has been lost on many of today’s leaders as they work to weaken encryption.

    What is encryption?

    At the very basic level, encryption is a way to scramble and unscramble information using formulas called “ciphers,” which often rely on unique “keys.” For example: Alice might send a scrambled message to Bob that can be decrypted only by using a key that no one except Bob possesses, so she can be sure that no one else can read their conversation. Today, encryption is used in many areas beyond traditional communications — it’s what ensures that our online bank accounts are secure; it can prevent someone from snooping on your Internet traffic at a coffee shop; and, most importantly, it’s what we rely on to secure our personal devices, like smartphones and computers, which contain our entire lives.

    Government officials have started pushing for “backdoors,” where an encryption system is intentionally weakened so that government can access whatever data it wants. But this idea is a nonstarter. Encryption is math, and you can’t manipulate math problems to be solvable by only one specific group of people — for instance, the U.S. government. If the encryption that Alice uses to send a message to Bob is compromised, it is there to exploit for whoever finds it.

    Additionally, designing secure computer systems is a hard problem in modern computing. Despite the best efforts of programmers, we regularly hear about vulnerabilities that compromise private information for millions of people. To intentionally introduce vulnerabilities as part of a weakened encryption system is a recipe for disaster — not just for one person or company, but for everyone using that encryption system.

    We are arguably living in a “Golden Age of Surveillance,” where the government has more means to monitor its people than ever before. It’s crucial for citizens in a democracy to be able to freely express themselves, and encryption is one of the few tools that actually resists the pervasive surveillance state. As whistleblower Edward Snowden put it, “encryption works.” It’s vital that it continues to work, and that means resisting government-created “backdoors.”

    Code is speech.

    At the Electronic Frontier Foundation (EFF), we believe that government’s efforts to control encryption by preventing its publication and implementation is a violation of the First Amendment of the Constitution.

    The First Amendment protects all manner of expression, including written music and abstract art. Similarly, code is a means for disseminating information and ideas — it doesn’t matter if it’s communicated in a form that isn’t comprehensible to lay people. Many people can’t read a classical music sheet, but that doesn’t mean that the government can restrict the production of Mozart.

    The federal courts agreed with us that code is speech when EFF litigated a case in the 1990s called Bernstein v. Department of Justice.

    A Berkeley graduate student named Daniel J. Bernstein wanted to publish information about an encryption algorithm he had developed, but he was prohibited from doing so because the government treated such information as “munitions,” akin to weapons or bombs, and required a special license from the State Department to share it — a license it would not grant him.

    Mr. Bernstein sued, and, represented by EFF, successfully argued that censoring algorithms is an unconstitutional violation of freedom of speech.

    The case remains good law to this day, with similar precedent holding in other courts. Pointedly, Judge Betty Fletcher from the Ninth Circuit Court of Appeals wrote,

    The availability and use of secure encryption may … reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights but also the constitutional rights of each of us as potential recipients of encryption’s bounty.

    The government may try to depict encryption as making us unsafe, but the reality is precisely the opposite. It affords private individuals the opportunity to make themselves safe from government’s prying eyes. There will always be criminals who take advantage of technology to do bad things, but we shouldn’t sacrifice everyone’s rights to privacy and free speech in the name of stopping a few bad actors.

    Encryption is a human rights issue.

    Moving beyond the United States, encryption is a global human rights issue. As a 2015 report from the United Nation’s Office of the High Commissioner for Human Rights notes, “Encryption and anonymity enable individuals to exercise their rights to freedom of opinion and expression in the digital age and, as such, deserve strong protection.”

    The report further emphasizes that governments demanding encryption backdoors “have not demonstrated that criminal or terrorist use of encryption serves as an insuperable barrier to law enforcement objectives.” In other words, when law enforcement asks for compromised encryption, it doesn’t mean that encryption is actually what’s stopping them from investigating those crimes.

    After examining the encryption policies of several countries — including Russia, Colombia, India, Morocco, Pakistan, and the United States — Amnesty International concluded:

    In the digital age, access to and use of encryption is an enabler of the right to privacy. Because encryption can protect communications from spying, it can help people share their opinion with others without reprisals, access information on the web and organize with others against injustice.

    Encryption is therefore also an enabler of the rights to freedom of expression, information and opinion, and also has an impact on the rights to freedom of peaceful assembly, association and other human rights. Encryption is a particularly critical tool for human rights defenders, activists and journalists, all of whom rely on it with increasing frequency to protect their security and that of others against unlawful surveillance.

    No matter where someone resides in the world, they deserve strong encryption.

    Our encrypted communications allow us to have privacy and to freely express ourselves as human beings. Governments everywhere have developed extraordinary ways to monitor their citizens, and so it’s become extraordinarily important that we have strong encryption as a bulwark for privacy and free thought against the awesome power of the surveillance state.