Category Archive: Political Science
Comments Off on Was Marbury v. Madison a judicial power grab?
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.
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.
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.
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, ever–shifting 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.
Comments Off on Individual liberty for a diverse society: Public reason liberalism
Public reason liberalism is an important approach to social and political philosophy that has two main tenets. We could summarize these tenets as
- 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.
- “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?
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.
Comments Off on The free society is an open society
“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.
Comments Off on What America needs most right now is more economic freedom.
The capitalist engine is first and last an engine of mass production which unavoidably also means production for the masses. . . . It is the cheap cloth, the cheap cotton and rayon fabric, boots, motorcars and so on that are the typical achievements of capitalist production, and not as a rule improvements that would mean much to the rich man. Queen Elizabeth owned silk stockings. The capitalist achievement does not typically consist in providing more silk stockings for queens but in bringing them within reach of factory girls.
Global poverty is radically declining, but most people don’t know it. In 1990, 1.9 billion people — 37 percent of the world’s population, at that time — lived on less than $1.90 per day. This is known as “abject poverty.” Today, fewer than a billion people live in abject poverty — less than 10 percent of the world’s population. It’s a startling and unprecedented decline.
When we extend our view further into history, it seems even more miraculous. Economist Brad Delong estimates world GDP per capita, and he finds that most humans, for most of their history, have lived on the equivalent of $100 per year — or less. It’s not until the seventeenth century that this number changes much at all and not until the twentieth century that growth really accelerates.
We can see the impact of this growth in new inventions and innovations that have made us dramatically better off, and, as wealth grows, those new goods and services become available to ordinary people, like you and me. In 1820, 94 percent of the globe lived in a state of abject poverty; not only are we much richer these days, but we are spending our wealth in ways that would have been literally inconceivable then. Delong estimates that 75 percent of world expenditure today is for goods and services that did not even exist as recently as 1800.
We take for granted the things that are readily available to us — things that our ancestors could not have dreamed of, like indoor plumbing, ovens, and flu shots. In 1800, it was very likely that contracting the flu could kill you; today, that is exceedingly less likely, even in the developing world. The reason is that global trade has unleashed the skills and talents of ordinary people, and when that happens, we have incentives to solve problems. As we solve our biggest problems, we make lifesaving innovations, and we make them cheaper, better, and increasingly accessible to even the poorest among us.
Yet when you present this data, people are shocked. A recent study revealed that 70 percent of British citizens think the world is getting worse, and only five percent of Americans know that global poverty has halved in the past twenty years.
This is concerning: our view of the world informs the kind of policies we will demand as voters. If we believe that the world has been made worse (or at least no better) by the decline of protectionism and the surge in global trade over the past four decades, we might agitate for policies that reduce trade and commerce. But given the facts about global poverty and inequality, we ought to advocate greater economic freedom.
Economic freedom means that people are free to trade with others for what they need and want; that entrepreneurs are free to open businesses without overly burdensome regulations, bribes, or corruption; that the national currency is stable and keeps its value; that the burden of government is small relative to the size of the economy; and that property rights and the rule of law prevail.
Economic freedom is the reason for the astounding acceleration of human progress and the rapid march out of poverty. Charity alone cannot substitute for real growth, and neither can government. If human flourishing is our goal, then we must concern ourselves with the type of political and economic systems that govern our daily choices. We must return to a society where economic freedom is championed.
Just two decades ago, the US was a world leader in economic freedom, but that has been waning and, with it, the freedom to live our own lives and the prosperity that comes from that. In 2000, the US ranked second in the world in economic freedom — at the top and prospering, with lots of opportunities for everyday Americans. Today, we rank sixteenth, and we’re still falling. As we lose the necessary institutional arrangements for a free society, our ability to both contribute to and experience flourishing is diminishing.
America is at a crossroads. For over two centuries, it has been a beacon of freedom and hope, representing a society in which anyone can use their gifts and talents to serve others. It has been a leader for other nations across the globe that aspire to emulate its progress. We can upend this losing streak and make advances toward greater personal freedom to live, work, and trade as we desire, or we can continue the decline and watch our growth vanish with it. The stakes are high, and we all must be at the center of the argument for greater freedom, because lives and futures hang in the balance. We live in amazing times globally, and we must fight to keep that progress moving forward in the US.
Comments Off on What you should know about the Non-Aggression Principle
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.
Comments Off on Presidents for life and the problem of democracy
What does it mean to have a “real” democracy?
But, technically, Venezuela is a democracy.
In Russia, even term limits did little to diminish Vladimir Putin’s power during the four years that he passed the presidency to Dmitry Medvedev. He exploited the ambiguity in the constitution to stay on as prime minister during that time and sought reelection in 2012 — over huge protests decrying the corrupt electoral process.
But, technically, Russia is still a democracy.
We often associate democracy with rights protections, the separation of powers, the rule of law, and the power of the people to elect their representatives (who handle the rest). It may be surprising to hear that only the last is technically part of democracy, while the other crucial elements of a free society are part of something more specific: a liberal democracy.
Democracy itself is merely a power structure: the people have some form of participation, end of story.
So despite the myriad of problems in regimes like Venezuela’s and Russia’s — poverty, unrest, food shortages, and a volatile economy, to name a few — they are democracies.
Protests alone won’t solve the problem.
Creating a democracy is actually fairly easy. You need a group of people in a society willing to forcefully assert their political rights, a few elites to run the place, and some voting booths.
We see and have seen countless revolutions started with the hope of achieving democratic ends. Keeping it, however, is the real trick.
The Arab Spring started out with grand ambitions, the people shouting “bring down the regime” in a unified voice of opposition to the sclerotic governments all over the Middle East and North Africa. As Robert Gates notes in his autobiography, however, “the history of revolutions is not a happy one. Most often repressive authoritarian governments are swept out, and power ends up in the hands not of moderate reformers but of better-organized and far more ruthless extremists.”
And we saw that play out in all but a few countries. The military now runs Egypt. Libya, Iraq, and Syria all suffer through civil wars and unstable governments. And in many countries, the leaders used excessive force, hoping to punish those who threaten their rule — and providing a chilling example to any future dissenters.
Democracy itself is an incredibly unstable system of government. It is subject to the whims and caprices of the people, who often ask for and sometimes demand changes that fundamentally undermine the system.
Liberal institutions can protect us.
This is why many countries seek to create or maintain liberal democracies. The liberal element contains all of the important protections we tend to associate with the power structure called democracy. That’s where we get the separation of powers, the economic rights, and most importantly the rule of law.
How do these work? The separation of powers provides each of the different branches of government with a certain amount of independence. Undermining this independence is part of maintaining an illiberal democracy. In Egypt, the military has passed laws that diminish or destroy rights. According to Human Rights Watch, “These laws have, among other things, effectively banned protests, legalized emergency police powers, and expanded military court jurisdiction over civilians, leading to the imprisonment of thousands of people.” In Russia, politicians avoid accountability by relying on the corrupt judiciary to prosecute journalists who dare to question government policy.
Then there is the rule of law. The most fundamental element of any free regime is the requirement that the government provide clear laws that apply to everyone — including those in government. While it does not stop all abuses, it does provide an avenue for redressing abuses. While it does not protect every individual equally, it establishes the firm commitment to this ideal.
It is these elements that provide liberal countries with the assurance that their governments will always work for them and when they (inevitably) fall short, there are ways to call the politicians to account.
But liberal institutions are not enough.
Importantly, the rule of law relies on everyone knowing the law and everyone abiding by those laws. And this is one of the fragile elements of a liberal system.
Constitutions merely provide the outline or framework for how the people who run the government should interact and what should happen if they encroach on other branches. It outlines how the people should hold the government accountable and what they can do if the government fails them. There is not an automatic enforcement mechanism for liberal democracy.
A liberal democracy is not a machine that will run itself: it is run by people. The people in government have to act in the way delineated in the Constitution, and the citizens have to hold them accountable. Without the people to enforce the rules created by the Constitution, it is nothing more than words on a page.
So if we want to create and preserve societies that are stable and free — if we want to protect ourselves from strongmen like those that afflict Russia or Egypt — we need everyday citizens to understand and defend the liberal ideal.
Comments Off on America has a bad case of “Whataboutism”
A number of folks I respect have gone full Never Trump, and a few have come out in support of the administration, to varying degrees. But quite a few of “us” have rejected full-on support or opposition, lapsing into what I’ve come to think of as “But What About….?”-ism. This phenomenon was pointed out by Washington Post journalist Radley Balko, who said in January:
Maybe at this point, stuff like pointing and laughing at liberal/media hypocrisy, crowing about political correctness, invoking “Obama/Hillary did it too” arguments, mocking social justice groups who fear Trump—maybe these should no longer be our main priorities. Maybe this is the time to start directing most or all of our energy at the people who actually hold power now, and who are threatening to do some very unlibertarian things with it.
I have to say, this brought me up short. I had just been tweeting or writing something about Obama’s executive order stranding Cubans. And now the Left is fully bent out of shape over Trump enacting policies that are not all that different from Obama’s! Y’all didn’t get upset about Obama (or Bush, or Clinton) issuing all those executive orders. You’re a little late to the party; ha! I win!
But my man Radley Balko ruined all that. Because he’s actually right. The Economist wrote about “whataboutism” in 2008 to describe the long-time Soviet, and later Russian, tactic of answering a criticism of their actions with “Oh, yeah? What about….” and then some observation about the U.S. and its own bad actions in Vietnam, Latin America, or more recently in Iraq. Or, even more recently, in Ferguson, MO.
Notice what Whataboutism does: It changes the subject and tries to establish a moral equivalence: that the actions being criticized are like previous actions not (sufficiently) criticized by the current critic (or even, in the case of Ferguson, MO, perpetrated by the critic). The point of Whataboutism is to impeach the moral authority of the critic. What Whataboutism never does, and cannot do, is evaluate the moral claim that was the actual center of the original point.
So when Never Trump folks bring up
- Donald Trump’s attempts to intimidate or abuse the American press,
- Trump and Steve Bannon calling the press the “opposition party,”
- And the Trump administration imposing a gag order on Federal agencies, especially the EPA.,
My first thought is, “But what about Obama’s record on suppressing whistle-blowers and attempting to control agency communications?” And in a way that’s fair enough, because Obama was extraordinarily aggressive about using the “Espionage Act” against American media and whistleblowers. After complaining about the incursions on free speech, the press, and other basic freedoms for eight years of Obama (and, by the way, eight years of Bush) we may be entitled to a few days of “Whataboutism.”
But we’re done now. It’s time to take things on their merits, without changing the subject or feeling smug about liberal surprise and anguish at losing the election. If you actually support Mr. Trump, then that’s fair enough — you’re entitled. But if you don’t, then stop pretending that opposition mostly involves mocking the new allies who have finally awakened to the dangers of concentrated state power.
Comments Off on Weird election rules: The baseball hall of fame
Hillary Clinton won the popular vote. But Donald Trump won the Electoral College. What would happen if we got rid of the Electoral College? Or if we switched to proportional representation?
It’s hard to predict with certainty how our political elections would look under different rules because the process of determining a president has been effectively unchanged over the last two centuries. Yes, there is considerable benefit to rule consistency. But in an empirical sense, it would be enlightening to have seen America’s voting rules change over time and the impacts of those changes on the process of selecting the president.
But in a broader sense, any variation in election rules — for president, for student body treasurer, or for anything else — allows us to examine the rules’ impact on voting outcomes.
Fortunately for us, there was another election result announced recently that has witnessed some changes in its voting procedure over the years — the annual voting for the Baseball Hall of Fame.
While there’s certainly less at stake with Hall of Fame voting — coercion included — the process can still give us some insight.
Voting for 10
Hall of Fame voting is different from political elections in several ways. First, Hall of Fame voting is not a winner-take-all election. Candidates gain entrance into the Baseball Hall of Fame simply by meeting the criteria of being named on 75% of the ballots cast. And, because each voter can put up to 10 players on their ballot, oftentimes several players get inducted in the same voting cycle. This year, three players were inducted by the vote.
More interestingly, players can appear on the ballot numerous times. In essence, voters are considering the same electoral question over several consecutive voting cycles. If we assume voters to be rational, then a voter’s decision on any particular player should not change across ballots and across years. Interestingly, this doesn’t appear to be the case.
The voting history of retired players for the Hall of Fame is littered with cases of receiving markedly different levels of votes across different years. Jim Rice, inducted into the Hall of Fame in his 15th and final year of eligibility in 2009, received 76.4% of the vote; in 1995, during his 1st year of eligibility, he received 29.8%.
The most shocking example may be that of Ralph Kiner, who garnered just 1.1% of the vote in 1960 before finally being inducted in 1975 with 75.4%. How can we explain this seemingly inconsistent result — that only 1% of voters judged a career to be Hall of Fame–worthy in one year, while 75% of voters deemed it worthy just 15 years later?
There are several possibilities. Maybe the assumption that Hall of Fame voters are rational is ill-conceived. Indeed, there is a feeling that voters become more sentimental for fringe candidates over time, perhaps even enough to push them over the 75% threshold for induction. And instances of any candidate losing votes over time — Curt Schilling notwithstanding — are rare.
But maybe we can look to voting rules causing these curious outcomes. As previously mentioned, voters are limited to a maximum of ten players on any particular ballot. It could then be the case that voters feel there are more candidates worthy of Hall of Fame consideration than they are able to vote for, and thus must find some way to prioritize some players over others.
There is some evidence for this having an impact. Of the approximately 300 ballots made public from this year’s vote (OneDrive users can access the data here), over half contained the full 10 names. And nearly a third of those with full ballots directly indicated that they would have preferred to vote for more than 10 players.
While a 1%-to-75% shift may be too big to attribute entirely to ballot-crowd-out, it may well be a significant factor in the general upward trend of vote totals for players over the years.
Who Can Vote?
Another culprit for the shifting vote totals is a constant change in population of those who are able to vote. Voting for the Baseball Hall of Fame is run by the Baseball Writers Association of America (BBWAA). Since 1947, BBWAA limited the ability to vote for the Hall of Fame to members of 10 years or more. Once receiving the ability to vote, members held it until death (unless they decided to opt out).
Then, in 2015, the Hall of Fame announced that BBWAA members who had not actively covered the sports within the last 10 years would be ineligible to vote — effectively ending life-long voting.
It is uncertain exactly what the impact of this voting rule change will be in the long run — it’s possible that sentimentality may drop by removing the longest-tenured voters, and the perception of what it means to be a Hall of Famer may change more quickly in aggregate by removing a chunk of the electorate — but the impact on vote totals has already been felt, as this year’s results showed significant gains for several players languishing in the more-than-5%-but-still-well-below-75% range.
Democracy, and voting, have long been known to be imperfect means of aggregating group preferences. Thanks to the Baseball Hall of Fame, however, we can begin to understand the margins by which things tend to get a little weird.
Comments Off on Demystifying Bitcoin
Whether you’re a paranoid libertarian who fears the coming monetary apocalypse or just a regular Joe looking to diversify your portfolio, you may have some interest in learning about Bitcoin. Like something straight out of a Neal Stephenson novel, Bitcoin has cyberpunk sex appeal. It foreshadows a radical change in the social and economic order and is shrouded with a mystique and aura that can be difficult to penetrate. But that’s why I’m here – to demystify Bitcoin for you. You’re welcome.
The Bitcoin protocol was first described in a 2008 paper by Satoshi Nakamoto. “Satoshi Nakamoto” is probably a pseudonym, so it’s not clear whether the protocol was developed by an individual or a group of individuals, and attempts to identify the developer or development team have been unsuccessful. What we do know is how the protocol works. That is, what Bitcoin is.
At the core of the Bitcoin system is the blockchain, a ledger that records the rightful owner of every balance of Bitcoin in existence. When you make a Bitcoin transaction, you effectively announce to the system that you would like to transfer a balance of Bitcoin on the ledger from one owner to another. These transactions are grouped into a block and members on the system then compete to be the first person to confirm that the transactions in the block are legitimate. Once a block is confirmed, the ledger, or blockchain, is updated to reflect the most recent transactions.
Bitcoin owners are not identified by their name or location, but by a string of characters known as a digital address. In other words, bitcoin owners are pseudonymous. You can transfer a balance of Bitcoin from one address to another without revealing your actual identity in the physical world. You only verify that you own the address from which the Bitcoin is being sent.
How do you prove ownership without revealing your identity? To accomplish that, the system relies on public key cryptography. All of that can be a bit confusing, so let’s work through a simple example. Suppose Leah wants to transfer five Bitcoin to Nick. Leah requests that the balance of Bitcoin held at her address on the ledger be reduced by five Bitcoin and that an address owned by Nick be increased by five Bitcoin. Leah doesn’t have to know Nick. She just needs to know his address. On the Bitcoin system, addresses function as public keys – everyone can see them. Leah confirms that she owns her address by generating a digital signature with her private key, which she keeps secret. Anyone else on the system can then use this digital signature to verify that she owns the address, even though they don’t know her private key. That’s the beauty of public key cryptography.
Once the transaction request is made, it’s grouped with other transactions to be processed. Once processed, the public ledger, or blockchain, now reflects that Leah’s address has five fewer Bitcoin and Nick’s address has five more Bitcoin. If Nick then would like to transfer the newly acquired Bitcoin to some other address, he’ll have to generate a new transaction request and use his private key to create a digital signature. That, in a nut shell, is how the Bitcoin system works.
In brief, the Bitcoin system is a public ledger. It denotes who owns each unit of Bitcoin available. Transactions amount to debiting one address and crediting another. And public key cryptography ensures transactions are secure.
Comments Off on Better market-oriented proposals that reduce income inequality
I was initially excited to see that progressive Dean Baker has written a piece on “Eight Market-Oriented Proposals That Reduce Income Inequality” for AEI. It begins promisingly by criticizing overly strict occupational licensing for high-skilled workers. But it then studiously avoids the really big wins. Namely:
1. Immigration. High-skilled immigration reduces conventionally measured inequality by making high-skilled workers more abundant relative to low-skilled workers. And low-skilled immigration drastically reduces properly measured inequality by moving the absolutely poor to First World prosperity. Estimates of the size of this effect are vast.
2. Housing deregulation. Letting developers build more housing in expensive areas of the country directly reduces inequality by making housing more affordable. And it indirectly reduces inequality by making it more affordable to live in high-wage areas of the country. Estimates of the size of this effect are also vast.
To be fair, Baker does discuss occupational licensing as a barrier to high-skilled immigration. But that’s only the tip of the immigration iceberg. And his only “market-oriented proposal” for real estate, bizarrely, is a surtax on vacancy! On the surface, he’s got a decent case:
A vacant property tax can have a similar effect on the real estate market to that of reducing unemployment benefits and other supports on wages.
But this misses the bigger picture: A vacancy tax also reduces the incentive to build housing in the first place, so it’s a lot more like a tax on firing workers than a reduction in unemployment benefits. In the short-run, such a tax saves jobs, but in the long-run, it makes employers nervous about hiring. A vacancy tax, similarly, keeps rental units on the market during bad times, but reduces the long-run payoff for construction. Baker is flatly wrong to say, “Unlike most taxes, all the side effects of this tax are positive.”
Governments around the world willfully create poverty and inequality. I’m glad to see Baker calling attention to these ugly facts. But focusing on relatively minor and not-so-market-oriented examples spreads the false impression that government-sponsored poverty and inequality is but a marginal issue. Alas!
Comments Off on War, diplomacy, and global uncertainty in the Trump era
Do Trump’s cabinet full of generals, his openness to torture, and the “peace through strength” message from the White House all signal that he plans to rely on military power to achieve international objectives? Or do his protectionist policies, his executive order restricting immigration, and his threats to impose tariffs indicate that the US will become more isolationist?
While it’s difficult to determine what will happen in a Trump White House given these ideologically inconsistent policies, we can place them within the broader context of the present world order.
The early 21st century marks a new era of globalization. Today the world enjoys an interconnectedness that is unprecedented in human history. World markets, high-speed communication, mass migration, and remarkable wealth development have benefitted many people, but not all of us, and not equally. Periods of high global economic integration leave behind those whose jobs go to places with cheaper labor. And this integration can also facilitate the concentration of wealth in the hands of the richest individuals.
Presently, we are living through a backlash; in both the United States and Europe there is a rise of nativism and nationalism.
As any history buff could tell you, this period looks ominously similar to the early 20th century, before World War I. At the time, many thought the globalized world could not fall into the destructiveness of war due to the economic costs associated with that folly.
But it only took an individual Serbian nationalist, angered by the imperialism of the Austro-Hungarian Empire, to start one of the most destructive wars in Western history.
If you’re not concerned yet, let’s examine the state of international relations between great powers. Trump has distanced himself from NATO allies, cuddled up to Putin, eliminated the Trans-Pacific Partnership trade agreement, and poked China in the eye by questioning the One China policy. One journalist describes Trump’s attitude toward China as “talk loudly.”
These new stances occur during a period when there is one dominant power — America — and one rising power — China. Political scientist Graham Allison says that, in 12 out of 16 times when there was a dominant and a rising power, those states (or empires) went to war. The 4 times they did not go to war “required huge, painful adjustments in attitudes and actions on the part not just of the challenger but also the challenged.”
Considering Trump’s attitude, limited political experience, and his military build-up, it is unlikely that he will engage in the hard work of fundamentally altering the “attitudes and actions” of the United States. These new factors make Allison’s views all the more concerning. As he puts it,
Based on the current trajectory, war between the United States and China in the decades ahead is not just possible, but much more likely than recognized at the moment… Moreover, current underestimations and misapprehensions of the hazards inherent in the U.S.-China relationship contribute greatly to those hazards. A risk … is that business as usual — not just an unexpected, extraordinary event — can trigger large-scale conflict.
Needless to say, there are growing tensions between China and the United States. This occurs in an administration that wants to cut the State Department budget, which may cause a reduction in diplomatic efforts. Moreover, the new Secretary of State Rex Tillerson demonstrates a lack of diplomatic grace. With this in mind, I would like to leave you with a statement made in 2013 from the new Secretary of Defense, James Mattis: “If you don’t fund the State Department fully, then I need to buy more ammunition ultimately.”
Comments Off on “America First!” and Anti-Social Communitarianism
The problem with communitarianism is that many communitarians make for bad community members. Many of them are “society first, individual second!” to the point of being anti-social. They aren’t the kind of people you’d want to live near.
Look, I get why people like community. I live in a fairly tight-knit community myself. We have little parades and fun runs. Various civics groups throw get-togethers all year long. The PTA works miracles. People know their neighbors. We have block parties. People come out to watch the various dad bands (and even the occasional mom band) play at the pool club. It’s nice.
But “American First!” isn’t just a plea to put America first or to treat our co-nationals as members of a giant community. Rather, it’s quite literally a threat, backed up with violence.
Suppose you have a group of friends in high school. One of your friends starts to hang out with people in a different clique. You don’t like that–you think your friend isn’t taking your friendship seriously. So, you talk among yourselves and come up with a solution: You decide you’ll beat up your friend next time he tries to hang out with the other kids. (Or, alternatively, you decide you’ll let him hang out with the other kinds, but only if he first pays you $3000. Otherwise you’ll beat him up.)
In this case, this doesn’t show that you really are loving, good friends who care a lot about community. Rather, it shows you are contemptible pieces of crap. You’re using anti-social methods to force people to maintain the kind of community you want. No reasonable person would want to be friends with you.
Nothing changes when it comes to how we spend our money rather than whom we befriend:
Random American: “Hmmm. I think I’m going to splurge on an entry-level luxury car. While Cadillac has made great strides over the past seven years, I’m going to go with a BMW 3-series instead of the Caddy ATS.”
America First! Guy: “Are you kidding? Don’t you think you should buy American?”
Random American: “Well, I considered it, but the 3-series better suits my needs and wants. I mean, I believe there is a time and place for charity, but I don’t buy cars out of a sense of charity.”
America First! Guy: “You know what, bub? If you aren’t gonna buy American voluntarily, I’m going to make you do it. This here gun says you better buy that GM car, or otherwise I’m going to take $3000 out of your bank account to spend on whatever I damn well please. And you better hire an American to clean your house. And you better not rent your other house to some Haitian or Dominican. You put America first, or I’ll make you put it first.”
Even if you think Random American should buy a GM car (a questionable claim at best), the America First! guy is a piece of garbage.
If you think American First! justifies economic protectionism, then you aren’t worthy of being in community with anyone. You’re like a teenager who beats up your friends when they find new friends. You’re like a priest who beats up people when they convert to a different sect. You’re like an abusive boyfriend who threatens to beat up his girlfriend when she wants to see other guys. In short: You’re an abusive member of the community. You’ve shown your true colors. The louder you make your threats and the more America is filled with people like you, the less reason I have to care about America or want to put it first.