Category Archive: Political Science
Comments Off on What Classical Liberals Get Wrong About Political Science
Can there be a classical liberal political science?
To answer that question, it is instructive to examine how classical liberal ideas have developed and what disciplines have shaped the classical liberal tradition most.
And to begin, we must acknowledge that contemporary scholarly classical liberalism has developed in an imbalanced way.
By far the greatest intellectual investment has been in economics.
There are good reasons for this, of course: the understanding of market processes and market ordering that liberal economists have given us is central to an appreciation of the counterintuitive idea that unplanned and decentralized voluntary action can yield beneficial social results.
The insight that the market economy is a spontaneous order has been a crucial one for the development of modern classical liberalism as a whole. And economists, those who study market processes and orders, have a disproportionate tendency to be sympathetic to open and liberal markets. Most of the founders of the Mont Pelerin Society—the organization that shaped the intellectual agenda of postwar classical liberalism—were economists (of one methodological stripe or another).
Somewhere behind economics, in an order I wouldn’t know how to rank, come law and philosophy.
Classical liberal legal scholarship has encompassed both US constitutional law, recovering a sense of the commitment to liberty found in the US Constitution’s protection of rights as well as its structure of federalism and separated powers; and private law, especially in the law-and-economics tradition.
Classical liberal philosophy has taught us a great deal about the meaning and intellectual structure of rights, liberty, and justice, and about the vision of human well-being and flourishing that animates a concern with freedom. And, in a broad way, these streams of research and scholarship in economics, law, and philosophy have complemented and enriched each other, contributing to the emergence of a distinctive kind of classical liberal social theory—the humane studies highlighted in the name of the organization that hosts this website.
In contrast, political science, including the kind of political theory that is done within political science, has been relatively neglected in this ongoing scholarly program. (So has sociology; another topic for another time.)
This is not, as some readers will be tempted to think, because political scientists are sympathetic to “the state” as economists are sympathetic to the market. Political scientists are in routinely in the business of studying things we don’t find attractive: wars, coups, revolutions, genocides, civil wars, authoritarianism, populism, voter ignorance, and institutional dysfunction of all kinds.
Yet the study of those topics through the lens of political science ought to be a key part of a classical liberal social theory.
We don’t have to agree with those who think that markets and civil society are constituted by the state to see that they may be either facilitated or jeopardized by political outcomes. War, civil war, institutional collapse, the rise of authoritarian or totalitarian governments—understanding where these come from and how to inhibit them is a cornerstone of a fully developed account of social orders compatible with human liberty.
And we don’t have to conceptually identify democracy or majoritarianism with liberty in order to think that, as a matter of fact, constitutional democratic governments are a crucial feature of free societies. It follows that we ought to care about how they work, and where they come from.
But the current classical liberal interpretation of political science is lacking.
All too often, classical liberal social theorists (who, in other domains, are well aware that social outcomes can be the product of human action without being the product of human design) treat political outcomes as being a matter of other people’s bad will and bad decisions. But political orders are complex emergent phenomena, as much as other orders in human society. Building a stable government that protects and facilitates individual liberty, involves more than a group of people with the correct beliefs about rights theory agreeing to do good things rather than bad things.
In other words, too many classical liberals who understand complexity in other social arenas become decisionists when they think about politics: all we need from governing institutions, they assert, is for people to make good decisions rather than bad ones.
They fall into this fallacy partly because they identify good government from a classical liberal perspective with mere inaction: all our rulers need to do is to stay their hand. Whatever the truth (and it’s a partial truth, as Hayek knew) of laissez faire as a description of good policy, it is no truth as an answer to the underlying organization of violence, coercion, and rule. A political order that can engage in and commit to the right kind of inaction, in the right ways and at the right times, is a rare accomplishment, and we still know too little about how to get it and how to keep it.
Over the course of these posts in coming weeks and months, I will identify some obstacles that have prevented the development of a classical liberal political science and political theory that can fit within the broad development of the humane studies. (Spoiler alert: Lockean social contract theory and public choice theory, while they’ve both taught us valuable things, have become in important ways intellectual obstacles to overcome.) And I’ll try to draw on what political scientists and theorists have learned, offering some thoughts about what needs to be incorporated within the developing liberal social theory of the humane studies.
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Does history repeat itself? Dan Carlin, the “political Martian,” says history can’t teach us what to do next, but it can teach us who we are. Watch the full interview here.
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The new idea on the Left today isn’t so much Marxism as Welfarism. That’s how Prof. Brandon Turner explains today’s politics. Full video on Facebook
Comments Off on Did Trump’s attack on Syria violate the Constitution?
Donald Trump’s decision to bomb an airfield in Syria, along with his hints about overthrowing Bashar al-Assad, have led many to wonder: doesn’t Trump need authorization from Congress before acting? The answer, like many in politics, is yes and no.
A quick scan of the Constitution will tell you that Congress has the power to Declare War as well as the power to issue “Letters of Marque and Reprisals.” For those not up on 18th century lingo, those Letters provide the bearer with the power to capture an enemy who has left the country (typically by ship). It legalizes actions that would otherwise be considered piracy.
The president, in turn, has the power to act unilaterally in emergencies. We know this from Madison’s famous decision to change Congress’s power from “make” to “declare” war so presidents would be able to “repel sudden attacks.”
Once Congress has provided presidents with authorization, they have the power as commander-in-chief to conduct military operations. Congress can maintain discipline through the “power of the purse” — containing presidential adventurism by closing up the purse strings.
Presidents at War
That’s the theory. But that’s not how it has worked in practice. In fact, Congress has issued only 5 declarations of war over the entire course of US history. And yet presidents have deployed the military more than 300 times.
Thomas Jefferson sent the American navy to the Mediterranean to fight the Barbary Pirates without prior congressional approval. James Polk marched the army up to the border with Mexico, all but daring the Mexicans on the other side to shoot. William McKinley and Theodore Roosevelt treated the American military like a “civilizing force,” sending it to the Caribbean and the Pacific to display America’s increasing might and open new markets for American products.
Executive power only expanded from that point on. WWI and WWII put enormous power in the hands of the executive to act unilaterally. By the time Truman became president, his predecessors had carved out a large enough space for unilateralism that he started and conducted the Korean War without ever receiving congressional approval.
After the “Imperial Presidencies” of Lyndon Johnson and Richard Nixon, Congress passed the War Powers Resolution, meant to hold executives more accountable. But, while presidents will acknowledge that resolution’s existence, they never acknowledge its constitutionality.
By the time George W. Bush became president, he had decades of precedent providing him with good reason to assume he could initiate military operations without congressional approval. And yet, after 9/11 Bush sought a congressional Authorization for the Use of Military Force (AUMF) to pursue terrorists and those who provide them sanctuary. He sought another AUMF in 2002 for military operations against Iraq.
This leads to a puzzle: Presidents in the 21st century know they can initiate operations unilaterally. Members of Congress know they can sit on the sidelines. For the most part, presidents get the glory if it goes well and Congress wags their fingers if it goes poorly. Presidents know that Congress is likely to abdicate responsibility, so when they want to take military action they avoid wasting the political capital needed to court the legislative body effectively.
In fact, for at least 100 years, there have been only two sorts of circumstances in which presidents have sought, and Congress has provided, congressional approval for military action:
- Direct Attacks on American People or Territory
This occurred for all of the declared wars as well as for the 2001 AUMF that followed 9/11.
- Vital US Interests at Stake
George H.W. Bush made this claim to Congress to receive authorization for the first war in Iraq. George W. Bush claimed Saddam Hussein still had WMDs in 2002, leading Congress to provide him with the authority to initiate hostilities if he deemed it necessary. Since WWII, Congress has only issued an AUMF 8 times.
Even when there is a pressing humanitarian crisis, like those in Kosovo, Sudan, or Syria, Congress has shown extreme reluctance to stand behind the president and provide authorization to use military force. It is a safe assumption that if there isn’t a clear US interest; clear public support; a clear exit strategy, or a fearful population, Congress tends to allow presidents the power to sink or swim on their own.
This is problematic for any constitutional system. It also facilitates reactive and poorly thought-out policy. Looking back on policy decisions over the last hundred years, we can see a cyclical pattern in which presidential adventurism leads to a period of relative isolation, during which time enemies (broadly understood) regroup and attack, leading to another round of presidential adventurism.
Congressional buy-in isn’t a magic bullet: Congress has contributed to plenty of mistakes. It does, however, force a president to deliberate about decisions and provide more clarity about the military objectives. This process is vital for producing better policy outcomes, fewer errors and more responsibility for the vagaries of war.
Without an attack on the United States or a clear US interest, however, Congress has proven unwilling to perform their constitutional duty. What happens if Congress doesn’t challenge the president? Without that check on executive power, presidents have long understood they have the authority — thanks to their constitutional powers and deference in the military to civilian control — to initiate nearly any operation, of any size, anywhere in the world.
The problem comes out most clearly in a quote from Congressman Jack Kingston from 2014. He accidentally told the truth when discussing the congressional decision to avoid giving Obama an AUMF. “A lot of people would like to stay on the sideline and say, ‘Just bomb the place and tell us about it later’… We like the path we’re on now. We can denounce it if it goes bad, and praise it if it goes well and ask what took him so long.’”
Congressional deference doesn’t impede presidential adventurism. It facilitates it.
Decisions about how to spend American treasure and spill American blood comes from one end of Pennsylvania avenue while the other looks on. For better or worse, it is likely that America’s military decisions in Syria will fall entirely on Trump’s shoulders.
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Self-described radical Dan Carlin tells Dave Rubin why political labels suck. We’re all liberals, and we’re all mixed up. Watch the full interview
Comments Off on Is Judicial Review Undemocratic?
America just got a civics lesson from a U.S. Senator on the role of the Supreme Court. In his opening statement during the nomination hearing of Neil Gorsuch, Senator Ben Sasse explained the proper (albeit uncommonly-realized) role of a Supreme Court justice. According to Sasse, the Supreme Court, when it appropriately exercises the power of judicial review, defends the long-term will of the people. Sasse is right, and those who wish to defend limited government and the will of the people in the United States should be passionate both about defending judicial review and also about limiting judicial review within proper constitutional bounds.
Defending Judicial Review
Why isn’t judicial review undemocratic? Why is it alright for the elected representatives of the American people (i.e. Congress) to pass a law only to have it “struck down” by a panel of unelected, dour ivy-leaguers in black robes (i.e. the Supreme Court)?
Before we get to the answer, a brief refresher in American civics: American constitutionalism as understood by the framers of the U.S. Constitution requires that the “will of the people” exists not in any single law passed by Congress but only in the fundamental law that is the U.S. Constitution. It is the Constitution that embodies the long-term will of the people.
The Constitution established an essentially-popular government, but the problem with all popular governments is the constant tendency of majorities to oppress minorities, particularly during temporary periods of political passion. The framers therefore institutionalized certain checks against the temporary ambition of the majority through such features as the bicameral legislature (Article I, Sec. 2-3) and the executive veto (Article I, Sec. 7), while respecting the popular foundation of American political authority in the form of an original ratification of the U.S. Constitution in the people of the several states (Article VII) and of regular revisions to the fundamental law through amendments to the U.S. Constitution when a supermajority agrees to it (Article V).
So, the Constitution, taken as a whole, represents the will of the people bound by certain constraints to prevent tyranny of the majority. Any action of a congressman, president, or Supreme Court justice at odds with the U.S. Constitution therefore is at odds with the will of the people. We have a word for that: unconstitutional.
What shall we say then of judicial review? If Congress passes an unconstitutional law, that law cannot in any true sense represent the will of the people, especially if it were to represent only some temporary spasm of political desire on the part of a majority of the country. This, in any case, was Alexander Hamilton’s argument in Federalist 78. According to Hamilton, when Congress passes a law that it had no authority to pass, it effectively “enable[s] the representatives of the people to substitute their will to that of their constituents.” When this happens, the Supreme Court may lawfully act as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” In this way, Hamilton explains the essentially-democratic nature of the practice of judicial review: “If there should happen to be an irreconcilable variance” between the Constitution and a law of Congress, “that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
Rather than being undemocratic, judicial review, rightly understood and rightly exercised, defends the long-term will of the people. As Sasse explained during the Gorsuch hearing, “When Congress passes an unconstitutional law, it is in fact the Congress that is violating the long-term will of the people, for the judiciary is there to assert the will of the people as embodied in our shared Constitution over and against that unconstitutional but perhaps temporarily popular law.”
The Limits of Judicial Review
While judicial review rightly-understood constitutes an essential feature of the American political system, unrestrained judicial review constitutes a dangerous deviation from democratic principles. Hamilton explains in Federalist 78 that judicial review does not “suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both.” When the U.S. Supreme court strikes down laws of Congress that are not in “irreconcilable variance” with the U.S. Constitution, the Supreme Court effectively substitutes its own will for the long-term will of the people as embodied in the U.S. Constitution as the final measure according to which all laws are judged.
To be clear, this renders the American polity an oligarchy instead of a democratic republic, and it is no better than Congress passing laws that it has no authority to pass. Both constitute an attempt by our governors to substitute their own will for the long-term will of the people as embodied in the Constitution. In fact, Madison and Hamilton were clear in the Federalist Papers that although all three departments of government play a role in the interpretation of the U.S. Constitution (interpretations which receive institutional force in powers such as the legislative power of Congress and the executive power of the president), the “people themselves…can alone declare its true meaning and enforce its observance” through such things as elections and, of course, through amendments to the U.S. Constitution. The point is that the Supreme Court does not, any more than the president or Congress, provide a final interpretation of the Constitution for which there can never be an appeal. If that were the case, “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
So, is judicial review undemocratic? No! Rightly understood, judicial review is an essential bulwark of American liberty. But wrongly understood, judicial review is an abuse of court power, an abuse made more dangerous by many Americans’ lack of awareness of the importance of the American people – not the legislature, the court, or the president’s legal counsel – being the final judge of the meaning of the Constitution, which is itself the will of the people.
 These were Lincoln’s words in his First Inaugural Address when he was responding to the Supreme Court’s decision in Dred Scott v. Sandford (1857) in which the court held the Missouri Compromise of 1820 to be unconstitutional because it violated an alleged constitutional right of people to own other human beings as property that was protected under the 5th Amendment.
 The United States Supreme Court has, at various points, asserted, either implicitly or explicitly, that its constitutional interpretation, rather the Constitution itself, is the supreme law of the land. One example of an explicit assertion to this effect occurred in Cooper v. Aaron (1958); for a discussion of this as a problem, see Edwin Meese, III, “The Law of the Constitution,” Tulane Law Review, Vol. 61: 979-990.
Comments Off on How to stop politicians from gerrymandering
Elected officials are regularly tempted to exercise their power in ways that benefit themselves and their friends at the public expense. A good example is gerrymandering, the practice of drawing district lines to help ensure a desired result in future elections. Both parties do it, and the practice dates far back in history.
Gerrymandering often results in strangely shaped political districts in which it is very difficult for voters to unseat incumbent politicians.
In a classic single-party gerrymander, the party in power packs opposition voters densely into as few districts as possible, thus enabling its own voters to lead by a comfortable margin in a maximum of districts. When a legislature is under split party control, the theme is often bipartisan connivance: you protect your incumbents and we’ll protect ours. Third-party and independent voters, as is so common in our system, have no one looking out for their interests.
Some other strategic political purposes can be served by gerrymandering: Weak incumbents can be spared scrutiny of their performance by assigning
them tracts that fall short of being coherent political communities,
perhaps combined slivers of multiple metropolitan areas with little in common. It’s expensive and time-consuming for a challenger to campaign or advertise against an incumbent in such a district. Party bosses can also punish their own party’s lawmakers for being too independent-minded by drawing them unfavorable districts.
The process feeds apathy. Residents who have not even figured out which district they are in are less likely to keep track of how well their representative is serving their interests.
The Constitutional Background
Our Constitution puts states in charge of apportioning their own legislatures, while dividing the corresponding power as to congressional districts between them and Congress. The Supreme Court’s one-person-one-vote rulings require equal or nearly so population in districts within a state. The Voting Rights Act of 1965, following the Equal Protection Clause, bans districting done for a racially discriminatory purpose, which adds a sometimes-complex overlay of requirements.
Although the Supreme Court has been urged to ban politically motivated gerrymandering, it has thus far declined to do so. Its rationale: it could identify no principled and objective standard to apply that would not draw it into a multitude of complicated local disputes.
Fortunately, ideas for reforming gerrymandering are many. They fall into two main categories:
- Rules on who is responsible for drawing district lines
- Rules directing the shape or extent of districts
Who should draw the lines?
One of the ideas that recurs most frequently is to make the process bipartisan, or at least avoid empaneling a majority of loyalists from a single party. The second largest party thus winds up in a negotiating position, perhaps with one or more neutrals or tie-breaking votes in between.
A newer trend, which has caught on especially in Western states in recent years, is to entrust redistricting to a more fully independent commission of citizens not holding office. Elected officials themselves, their families, and political pros are frequently excluded.
In a category of its own is the system used in Iowa (as well as many countries outside the U.S.). It assigns redistricting to the same nonpartisan civil service staff that provides legislative services such as bill analysis at the capitol. Although Iowa’s system is often praised for its fair results, it may owe some of that success to features of the local political scene not replicated everywhere. For example, Iowa has a fairly even party balance and a legislative staff whose nonpartisan bona fides are accepted by lawmakers of both parties.
Under any of these systems, the law can go further by prescribing the powerful step of “blinding” the line-drawers to politics – that is, directing them not to consider such factors as current party registration, past voting records, or the residence of any individual, such as an incumbent.
What should districts look like?
The most essential task in reform is to provide clear and objective rules for governing how districts are drawn. The three most widely accepted standards are as follows:
All parts of a district should touch. Although this seems obvious, careful language helps prevent such tricks as circuitous connections over water.
Intuition tells us the difference between a district shaped like a turtle and one shaped like a tapeworm. But trusting to intuition is not necessary: at least two mathematical measures of compactness are widely employed. Colorado’s constitution prescribes the “total-perimeter test”: “Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible.” Other states use a “radius” or “length/width” test.
Where possible, districts should respect the boundaries of smaller political subdivisions, such as counties and towns. One convenient measure of congruence is the number of county or town splits in a plan, with lower numbers ordinarily better.
Other criteria are sometimes prescribed, but if too many are introduced, and if the commission is given latitude to balance among them, then a dangerous degree of discretion is reintroduced into the process.
The Role of Technology
Technologically, gerrymandering is a bit of an arms race. Politicians with access to so-called big data can now efficiently sort voters down to precincts, city blocks, and even buildings. That is why the problem will get worse absent correction. Yet quantitative methods hold out hope for the reform side as well, and not only by providing objective, replicable measures of goals like compactness.
Geographic information systems (GIS) methods now allow members of the public using inexpensive software to analyze the full data set behind a map. In several states, that has meant members of the public could offer maps of their own or make well-informed critiques of legislators’ proposed maps. In one triumph for citizen data use, the Pennsylvania Supreme Court invalidated a map drawn by lawmakers as clearly inferior to a map that had been submitted independently by an Allentown piano teacher.
Redistricting reform makes sense as a safeguard against the entrenchment and insulation of a permanent political class. Voters should choose legislators, not the other way around.
 (Article I, Section 4 of the Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”)
Comments Off on How would Neil Gorsuch rule on One Person One Vote?
Judge Neil Gorsuch may soon join the Supreme Court, taking the seat formerly held by Justice Antonin Scalia, whose judicial philosophy he has praised as a model for his own. If so, Gorsuch will have an opportunity that Justice Antonin Scalia was deprived of by his untimely death: to help shape the future of the Court’s “One Person, One Vote” (OPOV) doctrine.
The origins of OPOV
First, a brief history of this doctrine’s origin. In the early 1960s, many states had legislative districts with widely varying population sizes. As population growth shifted from rural to urban areas, many states simply refused to redraw the district boundaries that they had used since the turn of the century, resulting in some urban districts with populations 40 times greater than rural districts. These imbalances meant that urban voters had proportionately less opportunity to influence the legislature with their votes.
Though the Supreme Court had declined for many years to wade into the “political thicket” of redistricting, it finally changed its mind in 1962. In a series of four cases decided between 1962 and 1964, the Court quickly struck down the use of unequal districts in the election of governors, U.S. Representatives, and state legislators.
The Court justified these decisions by applying the “Equal Protection” Clause of the Fourteenth Amendment, which guarantees that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Court focused on the fact that those living in districts of unequal size had unequally “weighted” votes. As it explained in one of these cases, Reynolds v. Sims,
an individual’s right to vote for state legislators is unconstitutionally impaired when [that vote’s] weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.
In each of these cases, the Court implicitly assumed that equality of total population in a district and equality of vote weight in that district were inextricably linked. But a new problem soon emerged that showed this was not always the case. Because so many of its residents were military members registered to vote in other states, Hawaii apportioned its districts on the basis of registered Hawaii voters rather than total population. The Supreme Court upheld this scheme in the 1966 case Burns v. Richardson, writing that a state’s decision of how to define “equal” districts “involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.”
This history brings us to last term. In Evenwel v. Abbott, several Texas voters sued because their districts had become proportionately overpopulated with eligible voters, thereby diluting the weight of their individual votes. In other words, their districts had very few children, non-citizens, military members registered to vote elsewhere, and other people who cannot vote. So the total number of voters was large relative to the total population, and thus each voter had less influence on any given election.
Unlike Hawaii in the ‘60s, Texas continued to apportion on the basis of total population, even as this difference in voter population became increasingly pronounced. The question in Evenwel was whether this unequal voter weight violated the Equal Protection Clause.
The Court, by a vote of 8-0, held that it did not. The Court wrote that “the Framers understood that [nonvoting] citizens were nonetheless entitled to representation in government,” and that apportioning on the basis of an equal “share” of a representative (whether one can vote for that representative or not) is permissible under this theory of representation.
The future of OPOV
After Evenwel, what does the future hold for OPOV? In the near term, the Supreme Court will likely have to decide whether the doctrine prevents states not just from creating districts of unequal size, but also of unequal partisan balance. In November of last year, a federal district court struck down a Wisconsin districting plan, on the grounds that partisan “gerrymandering” had given voters of one disfavored party an unequal ability to influence election outcomes, as measured by their greater share of “wasted” votes.
If this or a similar case reaches the high court, how might a Justice Gorsuch approach the issue? His record as a judge provides little direct guidance. Gorsuch’s only election-law ruling was a two-paragraph affirmance, holding that the Equal Protection Clause did not repeal the “Natural Born Citizen” requirement to serve as president, and that a state may ban ineligible candidates from appearing on the presidential ballot.
More relevant is Justice Gorsuch’s judicial philosophy of public-meaning originalism. As Gorsuch explained in his confirmation hearing, this philosophy is not bound to the practices of the drafters of a provision, but rather to the original meaning of the text itself:
The point of originalism … is [to] strive to understand what the words on the page mean.… And so when it comes to equal protection of the law, for example, it matters not a whit that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote.
Thus, an originalist need not disavow OPOV simply because it was not faithfully practiced in 1866. In fact, there is a healthy debate surrounding OPOV among originalists. Some do not think it is required by equal protection, including Justice Clarence Thomas (who concurred in the judgment in Evenwel, writing that “this Court has never provided a sound basis for the one-person, one-vote principle”) and Professor Ilya Somin. Others, like my colleague Ilya Shapiro and myself, agree with the principle and think Evenwel was wrongly decided.
Further, even an originalist who supports OPOV when used to equalize district size might hesitate before equalizing “vote efficiency.” Four justices, including Scalia and Thomas, have previously held that the equal protection clause does not provide “a judicially enforceable limit” on political gerrymandering, and it is unclear whether political science has advanced since then to create a more objective definition of unequal voting power.
These and other questions may soon confront a newly minted Justice Gorsuch. Though Justice Scalia died before his vote in Evenwel could be revealed, his successor will undoubtedly be an important voice shaping One Person, One Vote for many years to come.
Comments Off on Highlights from our Reddit AMA with Professor Lauren Hall
If you missed the Reddit AMA with Professor Lauren Hall last week, fear not! We’ve taken the liberty of compiling some of the highlights for your viewing pleasure. You can check out the whole thing here.
Dr. Hall is associate professor of political science at Rochester Institute of Technology. She is the author of Family and the Politics of Moderation (Baylor University Press, 2014), regular contributor to the Learn Liberty Blog, and has appeared on Learn Liberty in Choice and Change: How to Close the Gender Gap and Bridging the Gender Gap: The Problems with Parental Leave.
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Prof. Brandon Turner says the Trump era is a crucial time for classical liberals to focus on the importance of institutions like the rule of law. Full video on Facebook
Comments Off on Elinor Ostrom, Laurel Thatcher Ulrich, and learning to see the women who have shaped the world
“Well-behaved women seldom make history.” Most recognizable from bumper stickers and coffee mugs, the phrase has become a pop feminist favorite.
You can buy it engraved on 42 different pieces of jewelry on Etsy — possibly even with attribution to the correct author, Laurel Thatcher Ulrich, a professor of history at Harvard University.
Unfortunately, many adopters of the slogan have deeply misunderstood Ulrich’s original intent. The statement has nothing to do with flame-throwing, or civil disobedience, or even defying convention. Rather, when Ulrich penned the phrase, her point was that the importance of the everyday is too often ignored.1 Well-behaved women seldom make the history books, but they should.
True, the record of human civilization is filled with those who forged new paths and defied the expectations of their time. These revolutionary figures are important and rightfully remembered.
However, most people are not Galileo, risking their lives to challenge church and state in their quest for truth. Most people, instead, make their mark by offering contributions on a more modest scale. They produce, innovate, cooperate, and govern within their homes and neighborhoods, and through membership in communities forged both geographically and through shared interests.
I want to be very clear here that the everyday-ness of most contributions to the world applies equally to men and women. I beg of you, do not read into this argument any implication that women are better suited to contribute in domestic or communal ways.
However, to the extent the focus of history has been on the grand feats of statesmen and scholars, the historical exclusion of women from formal political and educational systems has diminished the record of their impact on the world. A failure to recognize the importance of social history, including that of enterprise and political organization at the local level, has often gone hand in hand with a failure to recognize women’s contributions.
Elinor Ostrom, like Ulrich, made significant contributions by engaging in scholarship that took seriously the importance of people’s day-to-day actions. Throughout her career, Ostrom studied how it is that people find ways to solve problems within their own communities, even when those problems are considered theoretically insoluble without a great statesman swooping in and forcing people to get along.
Through archival history, ethnographic fieldwork, and a carefully selected mélange of other statistical and social scientific methods, she studied the role of communities in police services, water conservation, natural resource management, and a variety of other contexts in which individual actors are often considered helpless in the face of how many others could choose to free-ride on their efforts.
What she found over decades of research was that conventional, non-revolutionary, everyday folks are perfectly capable of coming up with solutions to what other economists and political scientists claimed should have been cripplingly complex social problems. Even classic collective-action problems, like securing mutual commitment to a program of water conservation, are often successfully resolved by voluntary negotiation among individuals. Her book Governing the Commons investigates instances of such local resolution taking place across the world and through history.
For these contributions, Ostrom was awarded the Nobel Prize in Economics (officially called the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel), in a joint prize with Oliver Williamson in 2009. She remains the only woman to have won the Nobel Prize in Economics.
The framework that Ostrom used throughout this research emphasized the importance of understanding the rules-in-use in any given social context, as distinct from the rules as formally articulated. It’s the rules that people actually enforce that matter, not what people just say the rules are. What this means is that the formal record is often an unreliable indicator of the actual conditions within which people live, and the constraints that they face when attempting to accomplish their goals. This is why fieldwork has been such an integral component of Ostrom’s research.
Through this emphasis on fieldwork and rules-in-use, Ostrom’s work — like Ulrich’s — highlights the importance of the everyday, well-behaved approach to making a difference in the world. The everyday is where local norms are created, and where local governance takes place. In part because of Ostrom’s contributions, the significant impact that local practices have on other levels of political and social organization is increasingly being recognized and grappled with by social scientists.
I would be remiss if I didn’t conclude by noting that, like other women in history, there were several points in Ostrom’s life where her potential was dismissed because of her gender. Her pursuit of a doctoral degree was in defiance of her family’s wishes. The economics department at UCLA refused her graduate admission, and many of the political science faculty were upset when she and three other women were admitted to their doctoral program.2 Her initial appointment at Indiana University-Bloomington might not have gone through had it not been for the fact that she and her husband, esteemed political scientist Vincent Ostrom, came as a package deal.
Learn More: Jayme Lemke: Feminism is about choice.
Both Ulrich and Ostrom demonstrate that when we fail to account for women’s contributions — whether or not they are well-behaved — we risk ignoring significant forces determining the shape of the world.
1Ulrich, Laurel Thatcher. 1976. “Vertuous Women Found: New England Ministerial Literature, 1668-1735.” American Quarterly 28 (1): 20–40. Available at https://dash.harvard.edu/bitstream/handle/1/14123819/Vertuous%20Women%20Found.pdf?sequence=1
2Herzberg, Roberta, and Barbara Allen. 2012. “Elinor Ostrom (1933–2012).” Public Choice 153 (3–4): 263–68. See also this Big Think Interview: https://www.youtube.com/watch?v=N8CXgBSQhcA.
Comments Off on Fashion design and copyright
Should fashion designs be eligible for copyrights? When I listen to people talk about this issue, many of the same interesting arguments come up. These people know about designer knockoffs and feel that something is not quite fair about them. Yet they also view copyists as moving innovation along in the fashion world. Copying releases new fashions from the small circles of their origins to the wider marketplace; it translates designs from abstract experimentation on the catwalk to concrete wearability on the sidewalk. Copying thus plays a vital market role in fashion. And so, in my admittedly small and biased sample, a typical conversation about fashion copyright invariably trends toward a reluctant opposition.
The issue arises because after a century of relegating fashion designs to the wilderness of intellectual property law, Washington seems poised to begin domesticating the fashion industry. With Sen. Chuck Schumer (D-N.Y.) as lead sponsor, the Innovative Design Protection and Piracy Prevention Act (S.3278) was introduced last August. Design protection bills have been introduced routinely since the 1970s. Yet only in recent years has the cause gained significant legislative momentum. Since 2005 about a dozen precursors to the current bill have been introduced in the House and Senate. A slate of hearings has harvested the views of academics, designers, and celebrity witnesses. The current bill—pruned by numerous drafts and political-legal deals, plus a detailed review by the U.S. Copyright Office—was a honed legislative compromise designed to win majorities in both chambers in a postelection congressional logrolling frenzy.
If enacted the bill would amend the Copyright Act to provide three years of protection to fashion designs that meet defined standards of originality and novelty. As defined in the bill, a fashion design is the “appearance as a whole of an article of apparel including its ornamentation.” An infringement of a protected design occurs if a copy is found to be “substantially identical in overall appearance” to the protected design, so long as it can be “reasonably inferred [that the copyist] saw or otherwise had knowledge of the protected design.” The bill includes a system of penalties and various provisions to limit collateral consequences like excessive litigation as well as unfair burdens on emerging designers and home sewers. Once the law was in place, fashion would join computer software, vessel hulls, and architectural designs as recent exceptions to the “useful article” rule written into the Copyright Act.
The U.S. apparel industry has essentially always operated in a “low intellectual property equilibrium” (as law professors Kal Raustiala and Chris Sprigman have aptly surmised in their influential study of fashion copyright). Trademark protects certain features in fashion design like brand names, logos, and unique attributes that consumers use to identify designs with a particular brand. The stitched polo player on Ralph Lauren’s shirts is protected, but the overall design of the shirt is not. The plaid pattern made famous in the linings of Burberry’s top coats is protected; the silhouettes of their topcoats are not. As for patents, the process is too slow and its standards of novelty too strict for fashion.
Copyright law has traditionally not protected fashion because a garment is considered a “useful article” that combines a utilitarian purpose (covering the body) with the designer’s creative expression. Still, certain articles like a sculpted brooch or an artistic belt buckle are protected if they are considered works of art that are separable, at least conceptually, from the clothing article itself. And while a two-dimensional sketch is generally protected, the physical rendition of the design as an article of clothing is not. “[A] man’s property is limited by the chattels of his invention,” wrote Judge Learned Hand in an important 1929 case involving dress designs, Cheney Bros. v. Doris Silk. “Others,” he concluded, “may imitate these at their pleasure.”
The case before Judge Hand bore remarkable similarity to the fashion-copying issue before us today. The complainant was a company, Cheney Bros., Inc., whose business model employed constant experiments with dozens of dress patterns simultaneously to discover the designs that would become market trends. Meanwhile the respondent, a company named Doris Silk, would copy the successful dress patterns once they were identified by Cheney’s experiments and then proceed to undercut its prices. Even though Judge Hand’s opinion is full of sympathy with Cheney and he had some degree of impatience with the design copyist, he ultimately could find no refuge for design originators in the law. “To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of it, to set up a monopoly in the plan of its structure, gives the author a power which the Constitution allows only Congress to create.”
Having been spurned by the courts, fashion designers did not initially go to Congress for protection. Instead, the industry organized more effectively and took matters into its own hands. The Fashion Originators Guild of America, a cartel among design originators, lasted from 1932 to 1941. Guild members agreed to boycott retailers who dealt with known copyists. The Guild employed clandestine shoppers trained to spot fakes and a tribunal to determine whether designs were copies. Guild members were fined for conducting business with known copyists. While reportedly successful at achieving its ends, the Guild was dismantled in 1941 by the U.S. Supreme Court, which ruled the boycott in violation of the Sherman Antitrust Act. Since then the fashion world has enjoyed almost no intellectual property protection.
Meanwhile, as one would expect, copying of fashion designs has been rampant and grows faster and more efficient with digital communication and production technologies. Some design copying occurs bilaterally between individual designers. For instance, in 2009 Diane von Furstenberg inadvertently copied protected elements of a men’s jacket designed by two Canadian designers (the dispute was later settled out of court). More commonly, large-scale manufacturers copy the designs of small-scale and artisanal designers, then bring mass quantities of the modified design to market at lower prices. During fashion week or the Oscars, for example, copyists hurriedly beam runway photos to factories around the globe, which translate the images into wearable copies and begin manufacturing tout de suite. Copyists can place finished garments on store racks in a few weeks.
It is this latter, large-scale form of copying that most disturbs design originators. “When things get copied, it’s like somebody coming into my head and robbing, stealing,” designer Maria Cornejo told NPR’s Kaomi Goetz during New York fashion week last September. This reflects the attitude more broadly of the industry’s upper crust of designers, which sometimes vilifies copyists in support of the pending legislation. In 1996 Narciso Rodriguez designed a wedding gown for his friend Carolyn Bessette for her marriage to John F. Kennedy, Jr. The gown was instantly copied and marketed around the world before Rodriguez could commercialize his own design. Fifteen years later the cleanly elegant design is still popular among brides and easy to find online. Testifying before Congress in 2008 Rodriguez pleaded for protection. “They have stolen my DNA,” he said. “We need your help.”
As Judge Hand reminds us, copyright is essentially a form of legal monopoly. As with any restriction of competitive market forces, consumers are made to pay higher prices and enjoy less choice than without monopoly. Copyright also restricts the public domain, diminishing the rate of downstream innovation. So the downside to copyright is higher access costs for two groups.
On the other hand, copyright is intended to encourage creative works since the designers know that their monopoly position will let them capture most of the economic value of their innovation.
In short, copyright is a social tradeoff: Some access is sacrificed for more innovation. This is a deeply ingrained concept in American society, as Article I Section 8 of the U.S. Constitution empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Empirically speaking, the tradeoff bears no relevance to the fashion industry. Rather, fashion is well known as a highly competitive and highly innovative market. Design innovation in fashion is vibrant even though design originators enjoy no copyright and copying is widespread. Each fashion cycle unveils a remarkably creative array of novel designs. Entry by new designers is robust, and bold newcomers often move to the cutting edges of innovation. According to the evidence, the creative forces of design originators respond to something deeper than intellectual property protection, perhaps artistic imperative or the quest for fame. As for revenues, design originators have developed indirect mechanisms to lend their reputational capital to perfumes, cosmetics, and accessories, whose high markups afford handsome licensing fees.
To be accurate, the supporters of the legislation do not seek to promote innovation but to achieve what they regard as fairness. Steven Kolb, the executive director of the Council of Fashion Designers of America, summed it up in that NPR report: “Designers invest a lot of time, a lot of resources, a lot of energy into creating their collections. It can take them nine months and billions of dollars. So when they present those collections and somebody can just steal them right off the runway, within seconds, and profit from their work, their energy, their intellectual property—it’s not fair.”
Nonetheless, this competitive and innovative outcome is puzzling because the lack of copyright does not appear to have been significantly costly to the industry. On the contrary, copying helps the fashion industry broaden the scope of its innovations and achieve greater relevance to consumers and society.
As we scratch the surface of the fashion industry and begin to analyze it more closely, we can see why fashion inverts the expected economics of intellectual property. As consumers of fashion (that is, all of us) we show enormous variety in the way each of us views it. We all place different combinations of value on novelty, exclusivity, style, variety, conformity, comfort, and of course money. Some of us are fashion-conscious. Others have mastered that traveling professor look. Probably most of us take fashion more seriously than we would admit. And we all seem to have strong feelings about how much time and money ought to be spent shopping.
Copyists enable the industry to meet the range of consumer preferences by segmenting the market into as many different consumer types as possible. By segmenting choices into different styles and price ranges, copyists let consumers easily identify with fashion, become comfortable with a look, experiment and cross over between segments, or pick and choose from multiple segments at once. Go ahead and splurge on the suit, but bargain hunt for the shirt and tie. Segmenting also lets people with low incomes afford to participate in fashion and have access to tasteful, fashionable looks even on a modest budget. Walmart in fact sells its own apparel lines and began showing at New York’s Fashion Week in 2005. Fast fashion has dramatically expanded the options available to low-income households.
From Catwalk to Sidewalk
At the high end of design the fashion show lets design originators pursue their innovations. Since originators do not need to uphold wearability or marketability as priorities, they have freedom to experiment with materials, silhouettes, color patterns, hem lines, and so forth. This often results in designs that have high degrees of abstraction. This abstraction in turn gives wide berth to originators in exploring and communicating their ideas—their ideological statements on the current state of fashion, its relation to the world, and the designer’s normative claims on how he or she wishes to change the world. Most people don’t take fashion that seriously (myself not included), and many find it difficult to relate to what comes down the catwalk during fashion week.
To go from abstract ideas on the catwalk to fashionable clothing on the sidewalk, however, requires an imitative-adaptive process. As with all fields of creative expression, ideas at a high level of abstraction are initially appreciated by niches of elite expertise and taste. Ordinary consumers may not understand everything on the runway but experts can, and these small circles of virtuosity are the only audience that matters when design originators aim to innovate. To then translate the abstract into the economic trend, downstream innovators analyze, imitate, and reformulate the originals, editing the complexity while retaining the aesthetic. This process of adaptation and imitation transports abstract ideas from elite niches to broad appeal, creating clothes that people can relate to and want to wear.
When design copyists compete to imitate and adapt design originators, they also discover manufacturing and distribution shortcuts that help reduce unit costs. By removing a seam here or there, using less costly fabric, inventing an electronic inventory system, and so forth, fashion copyists reduce their own costs and can offer designs to consumers in even lower-priced market segments. It is only in recent decades that people of even modest purchasing power began to have access to fashionable, tasteful looks. “Queen Elizabeth owned silk stockings,” Joseph Schumpeter famously observed. “The capitalist achievement does not typically consist in providing more silk stockings for queens but in bringing them within the reach of factory girls in return for steadily decreasing amounts of effort.” Similarly, Frédéric Bastiat expressed wonder at the market’s ability to feed Paris without a central plan. The same holds for the spontaneous order of the fashion world. Paris gets clothed as well, good sir.
The public discussion over fashion copyright is well underway. Design originators have a normative head start in that discussion, just as the complaint by Cheney Bros. drew the sympathies of Judge Hand. It is unfortunate that the public discussion treats design copyists as pirates and parasites. We might instead view them as adaptive-imitative entrepreneurs whose innovations serve beneficial economic functions. Copying in fashion is not a mere exercise in copying apparel designs. Copyists translate the abstract into the real, thus moving innovation along in the industry, reducing costs of production, and making fashion relevant to all segments of consumers and society.
As its proponents will tell you, the proposed legislation is not about spurring innovation. Rather, it is about design originators keeping a bigger share of the economic pie that they help create. In our democratic society, the industry can lawfully attempt to steer the machinery of government in directions that enrich itself. It is up to the rest of us to discuss whether easing the competitive market burdens on design originators is worth the costs to downstream innovators and their consumers.