Author Archives: Kelse Hillery

The IRS Makes a Star Trek Parody

The result? Exactly what you’d expect. Nick Gillespie at Reason excoriates the waste of taxpayer money. As for me, I’d rather see tax money going here—where we can all get a laugh at the IRS’s expense—than see it spent on bombs or drones.

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A Little Supreme Court Skepticism?

Today, my Facebook feed is all gay marriage, all the time. But while college kids sanctify their progressiveness by uploading pictures of equal signs, it looks like the Supreme Court is treating the issue with a little more skepticism.

Justice Alito (“the Burkean justice“) asks, “You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean . . . we do not have the ability to see the future.” It looks like some of the others are at least open to throwing the case out for lack of standing. (Ironically, such a “setback” would only happen because the petulant Governor Brown refused to defend Prop. 8 in court!) Dismissing for standing would leave the lower court ruling against Prop. 8 in place, but would stop short of imposing the Court’s definition of marriage on the rest of the country.

The New York TimesAdam Liptak writes that the justices are partially motivated by fear of creating a new Roe v. Wade, which, rather than settling cultural disputes, only exacerbates them. According to Liptak, even Justice Ginsburg has her qualms:

Justice Ruth Bader Ginsburg, a liberal and a champion of women’s rights, has long harbored doubts about the ruling.

“It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year at Columbia Law School.

I have no basis to predict how a pro-gay-marriage ruling would compare to Roe. And predicting rulings on controversial cases is generally a loser’s game. Months from now, all of today’s armchair speculation might look incredibly naive.

But, at the very least, it’s nice to see the justices expressing a little more skepticism against pushing the entire country in their preferred cultural direction. Why, after all, do Alabama and California need to have the same marriage laws? And why should Anthony Kennedy be the one to decide that?

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Northerners Against the Civil War

As a libertarian from Massachusetts—an opponent of aggressive war and a supporter of peaceful secession—I take a kind of ambivalent view of my state’s history. I certainly support the South’s right to secede from the Union and condemn the brutality that northern troops inflicted . . . but it’s still hard to side with people who found slavery morally acceptable. The standard line that “the South was wrong about slavery but right about everything else” is a little weak. Being wrong about slavery is to make a pretty huge mistake. It isn’t quite the same as being wrong about mandatory seat belt laws. Even though Massachusetts tends to always side with the statists, at least it didn’t make that mistake.

So I’m very excited to see this new movie (with a screenplay by Bill Kauffman, no less!) about Yankee opposition to the Civil War.

At least in the book version, the hero of the story is not an abolitionist. Still, it’s nice to see a portrayal of the Civil War that admits that other people wanted peace besides slaveholding southerners. There’s a whole forgotten tradition of Yankee libertarianism—perhaps best exemplified by the abolitionist Boston lawyer Lysander Spooner—that supported both the right to secede and the slaves’ rights to emancipation. After all, both derive from the uniquely libertarian right to private property.

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Libertarian Blind Spots on Gay Marriage

Some spokesmen for a group called “Young Conservatives for the Freedom to Marry” have an op-ed in The Daily Caller making the libertarian case for gay marriage. They write:

As conservatives and libertarians, the three of us believe that we’d all be better served if government extricated itself from the business of marriage altogether, leaving it as a private contractual matter. Government is already big and intrusive enough, and too invested in telling ordinary Americans what is right and wrong. And as Senator Rand Paul said last week, getting government out of marriage would also take away the time-worn opposition talking point about efforts to “redefine marriage.”

However, for the time being, getting the government out of marriage is not a realistic possibility, especially given the many legal issues tied to marriage today. The next best thing, then, is for the government to act equitably in its involvement in marriage, and that means allowing all committed couples the freedom to marry and to have their marriages recognized by all levels of government.

This is an argument you often see on the libertarian left. I wonder, though: is there any other issue where libertarians would say that the cure for a government entitlement is to expand and federalize it, so that it involves more people?

You would never hear a libertarian say, “I believe that we should end foreign aid. But until we end it, it’s only fair that each country gets an equal share.” Most people would realize that, far from ending foreign aid, a program of “aid equality” would just increase the demand for it.

So why is gay marriage any different? If it is “unrealistic” to imagine the government leaving the marriage business today, won’t it be even less realistic when millions more people are entitled to federal marriage benefits?

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Nullification Comes to Cornell

I’ve written an article for the Cornell Daily Sun‘s law student column, defending state nullification. I argue that the people of the states—and not the Supreme Court—must to be the final decider of federal law. This is quite the minority position in law school, which, for various reasons, teaches everyone to think of federal litigation as the only way to solve contested constitutional issues.

You can read it here.

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Rand Paul on Lochner

During the middle of his epic filibuster last week, Rand Paul made a very unexpected reference to the 1905 Supreme Court case, Lochner v. New York. (Randy Barnett has the full transcript here.)

Lochner is a case that all law students are taught to hate. It involved a New York law that limited the amount of hours that a bake shop employee could legally work. Later revisionist scholarship has shown that the law was actually a piece self-serving special interest legislation, backed by the unions that represented established bake shop employees, who feared new immigrant competitors. The immigrant bakers tended to work long hours in order to catch up with and displace their established competitors.

But regardless, Lochner has earned the hatred of the legal mainstream because the Supreme Court ultimately invalidated the law, holding that the Due Process Clause of the Fourteenth Amendment protected workers’ freedom to contract with their employees for whatever terms they wanted. By limiting the amount of hours they could work, New York violated the workers’ “liberty of contract.” It wasn’t until the New Deal that the so-called “Lochner era,” in which the Court would strike down these kinds of economic regulations on “liberty of contract” grounds, was actually reversed.

It is pretty impressive that Rand Paul could speak extemporaneously (and accurately) on Lochner, hours into his filibuster. Even more impressive are his references to the extremely obscure  Buchanan v. Warley case: another Lochner-era decision, where the Supreme Court struck down a segregationist law prohibiting people in majority white neighborhoods from selling their homes to black buyers (and vice versa). Obviously, this law also interfered with the liberty of contract—legal scholar David Mayer believes that, if it had been allowed to stand, it could have ushered in a South Africa-style apartheid system in America.

I certainly support liberty of contract too, and I want desperately to be able to applaud the Lochner era. After all, as Paul stated, the liberty that the Supreme Court protected wasn’t just about economic freedom, narrowly defined. The justices understood it to refer to a broader liberty to live your life free of legislative interference, unless there was some overriding reason for the government to step in. (David Bernstein and David Mayer have explained this in more detail in two excellent books.) If the Court still protected individual liberty the way they did in the Lochner era, it is hard to believe that it would stand for drone bombings of American citizens. As it is, however, Lochner‘s concern for actual rights has given way to the mushy Mathews v. Eldridge case, where life, liberty, and property are just personal “interests” that can always be tossed aside without a prior hearing if the government has a good enough reason to do so. Unsurprisingly, Mathews is one of the first cases cited in the Obama administration’s notorious drone memo.

But, while the Lochner justices’ hearts were in the right place, the era is best considered a tactical mistake—kind of like YAL endorsing Ted Cruz or Murray Rothbard going hippie.

For one thing, much of the Lochner era’s advances came from overturning state—rather than federal—laws. In the short term, it is certainly nice to see obnoxious state regulations get knocked down. But in knocking them down, the Lochner Court really just transferred power from local communities to the central government, treating the federal government as the ultimate source of power.

At the time, that might not have been so bad, given that the federal government was relatively laissez-faire. But when the old laissez-faire was replaced by Hoover and FDR’s statism, the central government could only face resistance from weakened and emasculated states. By focusing on immediate gains, the Lochner justices undermined the states’ power to fight bigger threats to liberty later on.

Second, the whole premise of “rehabilitating Lochner” assumes the Supreme Court as the proper arbiter of all constitutional issues. I’ve commented before on Murray Rothbard’s anecdote about the eighteenth-century “Burgundy Circle,” which also tried to impose top-down reform and failed miserably—the Burgundy Circle is, I think, a great cautionary tale for contemporary libertarian centralists. Over-reliance on the Supreme Court places our faith in a group of people who don’t necessarily have any personal interest in promoting liberty. And even if they did, there are only nine of them, which means that small changes in personnel could lead to huge reversals of earlier gains. The Lochner era famously ended when a single justice, Owen Roberts, switched allegiance from liberty of contract to the New Deal. Even if we work as hard as we can to revive Lochner, a similar switch—our even something as banal as Clarence Thomas forgetting to look both ways before crossing the street—could prove our undoing.

Unlike Rand Paul, I can only muster at most one cheer for Lochner. The mainstream hatred for it stems mostly from an unwarranted hatred for libertarianism in general. But, as a libertarian, I see more hope in empowering individuals and local communities to check the central government than I do in convincing the central government to check itself.

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The Enigma of Rand Paul

Ben hopes that Rand Paul’s filibuster yesterday can turn civil liberties and checks and balances into bipartisan issues.

I hope so too—and I think there’s some reason for hope—but I’m still extremely skeptical. While lots of people are “standing with Rand,” the support isn’t nearly as universal as one might hope.

Among liberals, the MSNBC host Lawrence O’Donnell called the filibuster “rambling madness,” while Dave Weigel at Slate breezily writes it off as silly “paranoia.” Nancy Pelosi claims that “life is too short” to care about it—though for many future drone victims, life would be much longer if Pelosi cared a little more.

Likewise, if you read the comments sections of the various Slate and Huffington Post articles on the filibuster, you will find a shocking amount of virulently anti-Rand, pro-drone comments, presumably from regular, middle class, non-pundit voters who would have been up in arms if Bush ever claimed the right to target American citizens like Obama does. The vitriol hit a particularly horrifying note when one HuffPo commenter—jocrin—fantasized about Obama sending a drone to murder Rand Paul in the middle of his speech. Checks and balances, indeed.

And of course, the other side is nearly as bad. It is very hard to imagine people like Ted Cruz opposing drone strikes if it were a President Romney ordering them. Anyone who can remember back to last week might recall the Tea Party’s hyperbolic attacks on Chuck Hagel, for Hagel daring to suggest that the Iraq War was anything less than sunshine and roses. Lest we also forget, Rand Paul did not carry himself well through the Hagel hearings, though he ultimately did the right thing.

It’s possible to take these claims of hypocrisy too far. Many of the HuffPo commenters tend to focus myopically on such Tea Party hypocrisy—a tactic that looks a lot like a coping mechanism to avoid the uncomfortable question of whether their own president is pursuing policies that they should, consistently, oppose. Just because some people are hypocritical doesn’t mean we should oppose them when they do good things. But it does mean that we shouldn’t take what they say at face value.

Still, the powers of partisanship notwithstanding, it seems safe to say that Rand Paul has never been more popular than he is today. Principled liberals like the ACLU, Code Pink, and even Van Jones have expressed their support. Van Jones went so far as to call him a “hero.”

Maybe this will be a lesson to Rand that he can garner more support by standing against war and supporting civil liberties than from endorsing Mitt Romney or pledging war on behalf of Israel. He can never please the Obamaphile hordes who have sworn allegiance to their leader, right or wrong. But maybe he will realize that his cultural base lies more with the younger generation of antiwar civil libertarians than with the Fox News-watching septuagenarians that he has hitherto courted.

We will have to wait and see. Like all else with Rand Paul, his filibuster was an enigma.

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Donald Livingston at the South Carolina State House

My college honors thesis advisor, Donald Livingston, recently testified at the South Carolina House Judiciary Subcommittee in favor of state nullification. Tom Woods has the full text of his remarks.

Dr. Livingston is a brilliant paleo-libertarian philosopher who first got me to realize that decentralism and freedom go together. In college, I profiled him for the Young Americans for Liberty.

One South Carolina Democratic congressman complains that Dr. Livingston’s testimony “insults the institution we serve” and continues, “I fundamentally reject his vision for our country.”  Of course, Livingston’s vision is about empowering local communities, not bureaucrats. I’m it sure it would threaten this congressman’s way of life. For that alone, he deserves our acclaim.

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A Conservatism the Cool Kids Will Like

Being a conservative academic can be tough and thankless. On college campuses, all the accolades will go to the Left. When you apply for teaching positions, you have to hide your own convictions just to get the job. If you do get the job (remember that F.A. Hayek won the Nobel Prize but couldn’t get tenure at the University of Chicago), your peers won’t really respect you, or they’ll only grant you the grudging respect of an outsider who doesn’t belong. Intelligent media outlets like the New York Times and NPR will feed your colleagues an endless stream of tidbits on just how dumb people like you really are, and how superior they all are in comparison.

Given the culture we live in, it’s understandable that a lot of conservatives will start longing for the praise that their liberal friends receive, but which is always denied to them. It’s a process that anyone who’s spent any time around conservative students and academics has seen countless times. You realize that you can’t win any praise by pushing conservative ideas, so instead you push liberal ideas from a so-called conservative perspective. People like Bruce Bartlett, David Frum, and Sam Tanenhaus have turned it into an art form.

Ann Coulter recently made a lot of waves by calling libertarians “pussies” for doing essentially the same thing. Libertarians like to focus on their support for gay marriage and legalized pot, which earns them a few pats on the head from liberals. But at the same time they downplay their positions on things like economics and employment discrimination, which would invoke liberal hostility. She’s right to call this cowardly. Drug legalization is certainly important, but so are free markets—and focusing on one and not the other is just a cheap way to court praise and avoid confrontation.

Joe Ptak’s recent string of posts on this blog represents a perfect example of the cloying conservative begging for praise.

Most recently, he tells us that conservatives must accept gay marriage, because, in his words, it isn’t as bad as “some radical left wing gay orgy.” Okaaay. They should also oppose the March for Life because—gasp!—it is “ideological.” And if they object to the massacre of peaceful Branch Davidians at Waco, well, then they’re just a bunch of “tin-foil hat wearing oddballs” who “ignore or deny the fluidity and tension of the temporal that is at the heart of a historical understanding of politics.” (I’ll admit I’ve heard the tin foil part before, but the second part . . . well, that’s a new one.) Rather than attacking the modern state, conservatives are also supposed to “touch the ‘why’ of power.” (I don’t know what that means, or even what a “why” feels like. I just know that touching one doesn’t seem overly important, especially if it takes away from real opportunities to delegitimize the state.)

Oh, and, beyond all that, conservatives should also vote for Barack Obama, because, hey, he decided not to build a Death Star.

Of course, though all of these positions are justified from an allegedly conservative perspective, they all reach conclusions that perfectly align with the Democratic Party platform.

In this kind of “conservatism,” the liberal is the one who makes history; the conservative just lives in it. So, if the world that the liberals made empowers the government to massacre peaceful separatist groups, so be it. Conservatives will just make sure the liberals don’t go too far. (Joe writes: “It’s our thing to keep the society from becoming overwhelmed by its baser instincts.”) But of course, with every successive change, the definition of “going too far” expands. Twenty years from now, we can expect Joe to support “radical left wing gay orgies” as being preferable to pedophiliac orgies.

Here, the liberal is the rock star who passes through town impregnating groupies and trashing hotel rooms. The conservative is the meek lawyer who stops by the next day to settle accounts and smooth over hard feelings. But never does the conservative question that preventing destruction in the first place is a worthy goal. Nor does he question the justice of a world that leaves only destruction in its wake.

No: “Theirs not to reason why/Theirs but to do and die.” After all, to call social destruction “unjust” would be radical or ideological or . . . something.

Maybe Michael Oakeshott or Peter Viereck would recognize this as conservatism, but—as Joe asked of the Waco massacre—why should we care? If your version of conservatism just so happens to justify everything the Left does, then what’s the point of even calling it “conservatism” at all? Does it really matter if you like Burke’s epistemology if you also vote for Barack Obama and make peace with the modern state? Why not just drop the pretense and call yourself a liberal?

It’s always respectable to stand up and fight for your principles. So conservatives should be willing to accept the Left’s ire if that’s what sticking to your principles leads to. But to constantly tailor your positions just to fit in with the popular kids—that’s just a middle school morality that should be totally rejected.

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The Immortal Murray Rothbard

Murray Rothbard would have been 87 tomorrow. He has been dead for 18 years, and yet he is more popular and more widely-read now than he ever was in life, especially among the young.

Paul Lyons, a radically leftist historian who chronicled his experience teaching a class on American conservatism, had this to say about Rothbard:

[W]e began a lively, focused discussion . . . about the different takes on libertarianism by Frank Meyer and Murray Rothbard. Rothbard’s principled libertarianism, castigated as libertine by Meyer, is attractive to many of my students, including some of the liberals, because his style is modest and direct and his argument seems consistent—any state intervention is coercive, from taxation to the military draft, from censorship to drug laws. Meyer, on the other hand, argues that liberty must be a means but not an end, that it must serve the good, the quest for virtue. Rothbard unashamedly counters that libertarianism isn’t concerned with “what a person does with his or her life,” which he sees as “vital and important but . . . simply irrelevant to libertarianism.” The class came alive in our discussion of Rothbard’s notion that given the mix of good and evil in all humans, that with limited government [sic?---Rothbard was an anarchist and viewed "limited government" as an impossibility] “bad men can do least harm.” (Emphases added.)

When I first graduated from college, I worked for a while at the Leadership Institute, and spent my time helping out libertarian and conservative college activists in Georgia and South Carolina. College-age libertarians, whether citified Atlanta hipsters or rural, traditionalist, paleos, would always light up whenever I mentioned Rothbard. I spent many hours discussing and debating his brand of pure, untarnished libertarianism.

But though more people read Rothbard than ever before, this popularity is not itself surprising. As Justin Raimondo writes:

Young people were drawn to Rothbard, and he received them gladly, generously ladling out great dollops of his time and hospitality while still managing a rate of high-quality literary output that would be hard to beat. The reason for this magnetism was, first of all, his passion, and not only for justice but for good conversation, good laughs, good food, and a good time. Exuberant, vociferous, his laughter easily heard above the din, Rothbard was welcomed by the young because he was, in at least one important sense, one of them. Like Lord Acton, Rothbard grew more radical as he grew older, and this, combined with his intractably bourgeois tastes and mode of living, so distinctly old culture, charmed the young. He appealed to the best in them: to their idealism, their fearlessness, and their sense of life’s unlimited possibilities. Rothbard was a man who knew what Bourne touted as the “secret of life,” which is “that this fine youthful spirit shall never be lost. Out of the turbulences of youth should come this fine precipitate—a sane, strong, aggressive spirit of daring and doing. . . . To keep one’s reactions warm and true is to have found the secret of perpetual youth, and perpetual youth is salvation.” (Emphases added.)

May his spirit live on and his ideas never die!

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Human Rights: True and False

At the American Conservative, Paul Gottfried takes on “human rights” talk. He writes:

I am arguing against the use of human rights bombast whenever some individual, institution, or state wishes to express a political preference or a program of social reconstruction. Just make your arguments and let the listener decide. Further, I don’t object to listening to moral arguments against societies that do horrible things. Mention what the leaders of these societies do and then leave it to others to decide whether your indictment is correct. Saying that what you deplore violates human rights fills space with noise without contributing anything substantive to human knowledge. . . .

There are sharp and even growing differences in our society about fundamental behavioral questions, and appeals to supposedly universal rights language will not likely heal these divisions. Significantly, both those who favor and those who oppose the right to abort a fetus shower us equally with human-rights rhetoric. That practice settles nothing of importance, except for allowing the speakers to feel good about their cause and about themselves for upholding it.

I’m inclined to agree. “Human rights” (and “natural rights” more generally) have become what Ayn Rand would call anti-concepts; they are attempts to win people over by ill-defined and contentless appeals to emotion.

Here at Cornell, for instance, we get bombarded with a litany of human rights appeals. But it is hard to figure out what a “human right” actually means—unless “human rights” are just whatever the left-wing zeitgeist decrees, which, in all honesty, they probably are.

Thus, there is no absolute right to property, but there is a right to “dignity” (whatever that is). There’s a right to a minimum wage, but no right to work below that wage if you’re willing. There’s a right to smoke pot, but probably not to snort cocaine, and definitely not to own a gun, though yes to owning a knife . . . probably. In constitutional law, you have no right to grow wheat above government-specified allotments but you have the absolute right to be free from non-sectarian high school graduation prayers. Of course, abortion and gay marriage are clear human rights. What you do with your own body is nobody’s business but your own, unless you’re using your body to eat food, drink soda, smoke cigarettes, or to not insure your own health. None of those are rights, silly; they can all be regulated. All nations have an absolute right to self-determination and to form their own governments—unless you live in the American South, in which case even suggesting this right makes you are a dangerous extremist. If, like the Libyans or the Iraqis, you have a government that isn’t human-rightsy enough, then the UN has the right to authorize an invasion to replace it with one better suited to human rights. And if you don’t know what “better suited to human rights” means, please read this paragraph all over again. Clear enough now?

Of course, the people who believe this stuff have their own rationalizations for it. Around law school you hear that “economic” rights are unimportant and therefore properly regulable, whereas “social” or “dignitary” rights go to the essence of a person’s being and can never be justly infringed upon. In other words: whether you’re able to earn a living at the profession of your choice is just an “economic” right undeserving of real protection, so the government can put up as many regulatory obstacles to it as it wants. But when it comes to sodomy, the slightest infringement would undermine your very personhood. This befuddles those of us who ever venture outside the campus grounds. After all, “what do you do for a living?” is one of the most common questions that people hear each day. Questions about sodomy . . . not so much. How does sodomy impact your personhood in a way that your job doesn’t?

Professor Gottfried is therefore right to call out “human rights” for the self-serving nonsense it is. Unfortunately, however, the point is lost on many libertarians, just as it is on leftists. The comments on Gottfried’s article are filled with hyperbolic libertarian claims to that effect. Many cite the Declaration of Independence—these rights are inalienable, and that’s that.

But if “human rights talk” is sloppy thinking when leftists do it, then it is sloppy thinking when we do it too. Just stating that you have a God-given right to life, liberty, and property doesn’t make it so. We need to be prepared to ask “why?” and to come up with a justification for why life, liberty, and property are rights worth protecting.

If we do that, I think we will find that rights come about because they satisfy some higher end. They are social contrivances—tools to make life better.

In other words, if people value life and happiness, then they will need to find some social structure that furthers those goals. Because all worldly goods are scarce, people need to find some way to divide up ownership to them. Because people live and flourish better when property is secure, we want to protect their property against invasion. We say that the first person to find a piece of unowned property and put it to use becomes its owner, and that thereafter any trading with the property must be founded on every affected person’s consent, because to say otherwise would be to introduce strife and violence into society. And on and on—the nature of reality determines the necessary social structure.

But that doesn’t mean that rights can be changed at will. Even though they’re instrumental, they all depend on external realities, like the existence of economic scarcity, that are fixed and unchanging, and that we can expect to last as long as the universe itself. Theft (or taxation) will always be bad, because it violates these prerequisites for social life and peace.

Something like this is what Randy Barnett meant when he spoke of natural law theory and utilitarianism existing in “creative tension” within libertarian thought. Indeed, the first chapter of Barnett’s The Structure of Liberty presents what I consider to be one of the best formulations of natural law theory that I’ve read, mainly because it grounds it in practical reality with an eye always to promoting beneficial outcomes. It is no surprise, then, that Henry Hazlitt’s The Foundations of Morality comes from a utilitarian (or, as Hazlitt would say, “utilist”) perspective, but ends up justifying the same kinds of rights that Barnett and I support. I’ve also recently discovered the Aristotelian Henry Veatch, who similarly grounded natural law in a highly practical “practice of living.” And of course, there’s Murray Rothbard. Rothbard is often portrayed as the kind of purely abstract, “do right though the heavens may fall” kind of guy. But his historical and economic writings, as well as his essays on current events, show that he had a deep understanding of how his theories played out in the real world. Indeed, in Egalitarianism as a Revolt against Nature, he specifically writes that if something “does not work in practice, then it is a bad theory.” He had nothing in common with the people who just toss the label “human right” onto anything that sounds nice.

The nuances of Barnett, Hazlitt, Veatch, and even Rothbard are not appreciated by lots of modern libertarians. Of course, we can’t expect a mass movement to read a lot of dry philosophy. But to the extent that we want to bring people into libertarian philosophy, it is probably much easier to convince them that libertarianism would leave society better off than it is to convince them that any other theory violates the “rights of man.”

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The Sip that Rocked the World

I didn’t watch the State of the Union last night. When I’m in the mood to watch a show about nothing, I just watch reruns of Seinfeld. But apparently a lot of people did watch it, because, when I logged into Facebook today, everyone was abuzz.

Abuzz about what? The president’s escalation of deadly drone strikes? The continued politicization of Sandy Hook as a pretext for more gun control? Questions about when the “mess that Obama inherited” will ever end?

If you think so, then you’ve never met the kinds of people who obsessively follow politics. For most of these people, politics is an all-consuming hobby or a career path, not an opportunity to worry about important moral questions.

So, the buzz focused on something quite different. That is: it turns out that Marco Rubio took a sip of water during his reply speech.

The news was important enough that Politico still kept as its headline well into the evening today.

Politico Rubio

The linked article begins:

Sen. Marco Rubio’s inopportune case of cotton mouth during his State of the Union response may slow his rapidly rising stock, but will likely have no little [sic?] lingering impact on his 2016 prospects, Republican operatives said Wednesday.

Well, that must be a relief for Rubio. According to one of the best-trafficked political websites, the fact that he took a sip of water during a yesterday’s speech should not impact a presidential race 3 years from now. Genius! With analysis like that, I could be writing for Politico, and would be reaching a much wider audience than I do right now.

In case you need more analysis, see also the Atlantic‘s article, “Marco Rubio’s Awkward Drink of Water: A Deconstruction.”

This seems like the time to mention how low the news media have actually fallen. But what’s the point? The Atlantic and Politico are only focusing on what their readers care about. And the fact that this is what their readers are focusing on—on Facebook and elsewhere—tells us all too much about modern political culture.


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Ron Paul and The “Virtue” of Compromise

Our newest blogger, Radagast, begins his commentary at Beyond the GOP with a criticism of Ron Paul. He brings up an important point when he writes:

 [Ron Paul] is neither an ideologue nor a narcissist . . . but his uncompromising commitment to his principles is politically objectionable in my view. . . The “games” of American politics are utterly corrupt and broken, but the game is the game. It is not a concession to choose to play it when you know you can’t win everything. Compromise is not a dirty word – it is a necessary element of a just and enduring order.

First of all, one might reasonably ask: if the game really is “utterly corrupt and broken,” why continue to play it?

But the crux of Radagast’s argument comes later. He asserts that Ron Paul wrongly sticks to “moralism in an imperfect world.” Rather than doing that, Paul supposedly needs to learn from Machiavelli and Bill Clinton—he needs to learn to get his hands dirty to achieve what he wants. According to Radagast, a successful politician needs to adopt morally grayer means to achieve his (good) ends.

The issue of reconciling political means to ends is one that constantly reoccurs, especially in marginalized and relatively powerless groups like our own.

Yet, as in much else, I think the best discussion of the issue comes from Murray Rothbard, who argued that there really is no conflict between the two. Every end requires means to attain it, so the means can only be justified to the extent that the end can—and if an end can’t be justified, then no means can either. Conversely, if a particular means is bad, that can only mean that it is inconsistent with a more important end.

To bring this down to earth: I see nothing wrong with Ron Paul voting for a 1% tax cut, even though I would prefer a 50% or—best of all—100% decrease. My end is to roll back the government until it can drown in a teacup—the quicker we can accomplish that the better. Still, the 1% decrease might just be the best we can get at the moment, so it would be pointless to hold out for more if more were not forthcoming. Here there is no conflict between means and ends; the means are less than we might like, but they are still consistent with the ultimate goal.

On the other hand, Paul would be unjustified if, for instance, he threatened to murder the congressional Democrats unless they agreed to a bigger tax decrease. Murder is even worse than taxes, so by threatening it Paul would be acting inconsistently with another important end. He would also be unjustified if he promised his support for, say, ethanol subsidies in return for tax cuts—the classic “one step forward, two steps back.”


But just because sometimes a half-way measure is the best we can realistically accomplish, that doesn’t mean that compromise is somehow a good in itself. As G.K. Chesterton memorably put it, “Compromise used to mean that half a loaf was better than no bread. Among modern statesmen it really seems to mean that half a loaf is better than a whole loaf.”

It appears that many of Ron Paul’s critics take the “modern statesman’s” approach and value compromise for its own sake. But if they do, then they have little to worry about. Most everyone who doesn’t write for Mother Jones understands that the Republicans are nowhere near adopting laissez-faire purism. Those of us who can remember back to last month might recall how the Republicans ultimately capitulated to tax increases and then agreed to a truce over the debt ceiling. Those of us who follow politics a little more closely might also remember the Ron Paul-endorsed Kerry Bentivolio call himself “not really a Ron Paul person” after he was elected. Or the supposedly “libertarian” senators Ted Cruz and Mike Lee’s attacks on Chuck Hagel’s non-aggressive foreign policy during the recent confirmation hearings. And of course, Rand Paul’s own deviations from his father are well-documented. If anything, the “uncompromising” politicians quickly start compromising once their careers begin. Despite what Radagast might fear, Machiavelli is alive and well in Washington.

By contrast, Ron Paul is so popular because he stands out from the crowd. He doesn’t compromise, while everyone else does. Does anyone really believe that he would have made more of an impact if he conducted his career like Lamar Alexander? Sure, he hasn’t had many political successes, but he did open up a whole generation to libertarian ideals. That’s a huge accomplishment. As for Lamar Alexander . . . well, you can look him up on Wikipedia.

Nevertheless, Radagast is correct that the Right needs to do more than just nay-saying. Ron Paul has done great things, but we need something more if we eventually want to win.

The problem is that most of the solutions offered essentially constitute a surrender of principle—they are inconsistent with ultimate goals. We hear incessantly, for instance, that Republicans need to make their peace with the welfare state or accept mass immigration. But if that’s what it takes to win, then what’s the point of winning? Just being able to say “We won” is small consolation for embracing and ratifying destructive political principles. To take a less dramatic example being willing to “vote trade”—swapping a vote for higher taxes in exchange for spending cuts—is almost as bad. If our ultimate goal is rolling back the government, it is hard to come up with a non-sophistical justification for how higher taxes will accomplish that.

So what then to do?

I’m not exactly sure. But I do see some promising options. For instance, I have written here before about “bleeding heart libertarianism” and about the states’ rights/Tenth Amendment movement. Though the two movements seem very different, they are both strategic, political means of advancing good ends without violating higher principles. They’re both about making libertarian or conservative ideas appeal to a wider array of normal, working people. As such, I think they offer much more promising avenues for change than some fuzzy “compromise.”

They are both incomplete and wouldn’t lead to any kind of victory overnight. But they are still helpful in the long-run by re-branding libertarian goals while staying true to libertarianism. I’m sure there are many other options too. Off the top of my head, opposition to war and support for breaking the state’s intellectual property grants are two other issues where pure libertarianism could be widely popular.

Above all, we just can’t lose sight of principle. I fear that Radagast’s proscriptions would do just that. They would turn the Republican Party into a party of Lamar Alexanders, not a party willing to fight for the principles we share.

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Re: Nullification is Popular

Ben writes that nullification is popular. As well it should be. But while nullification becomes more popular among the masses, it is increasingly mocked and disparaged by the elites—though not always persuasively. The nullification scholar Tom Woods noted this recently on his blog, opining, “[A]s the MSM starts to address nullification, it’s looking like nothing but seventh-grade term papers as far as the eye can see.”

(Also note that, in Woods’s link, though the linked author disparages nullification, fully 10 out of the 11 comments disagree. Talk about a class divide!)

One example that particularly brought the “class” point home for me was this video from the Colbert Report.

Colbert’s guest is a partner at the law firm Skadden, Arps, Slate, Meagher & Flom—famous among law students for literally working a young attorney to death. But while the trendy liberal twenty-somethings who watch Colbert’s show might get a few yucks from the interview, it is hard to understand how it would appeal to anyone else.

For one thing, no one likes to have acceptable opinion dictated by some smarmy big city lawyer—and of course Skadden lawyers are the smarmiest and big-citiest of all.

And then there is the way that the guest simply brushes aside Colbert’s legitimate questions. At one point, he claims that Marbury v. Madison established that only the Supreme Court gets to decide on what federal law means. This itself is a questionable historical interpretation. But Colbert responded with a different, fairly common-sense reply: “The Supreme Court said that the Supreme Court gets to say what’s constitutional. How convenient!” I’m sure this was supposed to be some sort of jab at conservative simplicity, and his guest just laughed it off.

But what’s so wrong with what Colbert said? Stephen Colbert, after all, has been making headlines denouncing big money super-PACs. So if some private corporation like State Farm Insurance claimed the right to boss everyone else around, wouldn’t Colbert be one of the first people to mock them for naked self-aggrandizement?

Finally, Colbert closes by proposing a constitutional amendment to reestablish nullification. His guest smugly replies that people can try that, but then it will just be up to the Supreme Court to decide how to interpret it. That is: try self-government if you want, but it will be up to five Harvard-graduated justices to decide if you get away with it. He adds that he can recommend a few lawyers to help them with their Supreme Court litigation—just remember, Skadden lawyers don’t come cheap!

With enemies like that, who needs friends? Is there any doubt that people out in the hinterlands who stumble upon Colbert’s show would find these statements revolting?

Everyone likes to talk about how Republicans need to appeal more to the working class. Isn’t this a good place to start? Siding with local communities against smug lawyers? With self-government against rule by shifting Court majorities? The Republicans could do a lot worse.

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Tom Tancredo Passes the Blunt

Tom Tancredo promised to publicly smoke pot if Colorado’s legalization initiative passed. But now, after the initiative did indeed pass, he’s backing out, supposedly because his wife and grandkids were so outrageds-TOM-TANCREDO-MARIJUANA-large

All of which brings up the question: why do Tancredo’s wife and grandkids care if he smokes pot?

More to the point: why is strident opposition to marijuana a conservative value? Most conservatives wouldn’t care if Tancredo drank a beer in public—what’s so different about pot? Aristotle argued—and lots of conservatives agree—that the key to life is moderation. Tom Tancredo is 67 and has never smoked pot before—surely one joint every 67 years is the height of moderation. At this rate, he won’t have another hit until the year 2080! So where does this total and irrevocable opposition to a harmless pastime come from?

Which brings up a second point: even if conservatives have to hate pot, why hate it so much more than other bad things?

Isn’t promise-breaking morally worse than taking a puff of marijuana? After all, if people habitually renege on their promises, society would crumble. But on the other hand, society can tolerate a relatively high degree of pot smoking. And then there’s the issue of a public figure signaling to the public that he doesn’t take his own commitments seriously. Can anyone imagine Edmund Burke or James Madison publicly promising something—even something as relatively unimportant as this—and then backing out when their wives complained?tancredo-rastafarian

Maybe this just goes to show that the Tancredos have a weird relationship. (As one Politico commenter crudely summed up: “Some times the snatch is better than the stash.”) But I think that the Tancredo family’s intransigence is evidence of a systemic conservative opposition to pot. (Seen in, for example, Sean Hannity’s “Christian conservative” claim* that drug legalization promotes “the moral destruction of a human soul.”) And that conservative opposition just doesn’t seem to have any substantive justification, beyond a knee-jerk support for the status quo, or some vague belief that only liberal hippies smoke pot.

* I’ve never been impressed by Sean Hannity’s intellect. But the linked video is especially cringeworthy, as Hannity repeatedly insinuates that supporting legalization means that you also support government-provided drugs andgm medical care. How he discovered that link is anyone’s guess—though his interviewee, Gary Johnson, never really disavows it.

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NAACP, Soda Bans, and the Confusion of Rod Dreher

Rod Dreher opposes Mayor Bloomberg’s New York soda ban. But, in a post at the American Conservative, Dreher is outraged that the NAACP thinks of the ban as a “civil rights issue.”

That is, the NAACP points out that the ban would disparately harm minority convenience-store owners—and to Dreher, this makes them “prostitutes” in the pocket of the Big Beverage Industry.

Now, I’m not in the habit of siding with the NAACP, but I find it impossible to share Dreher’s outrage. In fact, I think that what the NAACP is doing here is downright admirable.

One of the best political developments over the last year or so has been the rise of a group of left-wing libertarian intellectuals (often called “bleeding heart libertarians,” centered around this site). A big part of their philosophy comes from applying liberal insights to generate libertarian conclusions. For instance, in the great new book Free Market Fairness, the philosopher John Tomasi applies Rawlsian principles to support free markets, arguing that, if we really believe—as Rawls did—that societies should be judged by how well they benefit their least well-off members, then free markets are much better than the quasi-socialist welfare states that Rawls actually supported. Free markets lead to higher economic standards of living for the poor, but also—by reducing the scope of the state in the individual’s life—they allow people the ability to be themselves, to choose a meaningful life free of restrictive regulations and bureaucratization, and ultimately to foster “a special form of self-esteem that comes when people recognize themselves as central causes of the particular lives they are living” (p. 61).

I don’t consider myself part of the libertarian left, but I do find them intellectually interesting. More importantly, by focusing on how libertarianism benefits the poor and downtrodden, they’re introducing free-market ideals to a whole group of people who might not find Ayn Rand or Murray Rothbard appealing.

And this seems to be just what the NAACP is doing.

If its true that the soda regulations disproportionately hurt relatively poor minority store owners, why not highlight that fact? For most people, it’s good evidence that there’s something wrong with the regulations. Maybe not conclusive evidence—but why give up an argument that lots of people will find appealing and that might turn them against the ban?

Just because the NAACP is made up of crazy liberals? Or because we don’t want to look all lame and politically correct? Dreher seems to believe something like that. But it would be a shame if we let dislike of liberals get in the way of promising avenues for attacking the regulatory state.

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Robert Nisbet on Abortion

The forty-year anniversary of Roe v. Wade was on Tuesday. With all the cliched left-right posturing that the abortion controversy engendered, it is instructive to read the great conservative sociologist Robert Nisbet’s thoughts on the subject. Nisbet was one of the leading conservative intellectuals of the last century and most famously argued that the decline of traditional community was responsible for the rise of paternalistic statism.

But on abortion, he defied the left-right cliches, and took a decidedly pro-choice position:

The contemporary preoccupation with abortion has its roots in the late nineteenth century, a period of many moral preoccupations and of causes to advance them. Although abortion had been a sin in the Christian church from early on, it had taken its place with a large number of other sins. Now, however, abortion became the centerpiece of a moralistic crusade. So did a good many other matters, including alcohol, tobacco, premarital sex, masturbation, meat eating, narcotics, Sunday saloon openings, and Sunday baseball. . . Never have so many laws been passed, first by the states, then the federal government, prohibiting so many actions which for thousands of years had generally been held to fall under family authority. It can be fairly argued that the present infirm state of the family in Western society is the consequence as much of moralistic laws assertedly designed to protect individual members of the family from one evil or another as it is of anything else. Current efforts to prohibit abortion categorically and absolutely might be viewed in this light. It is not so much the “woman’s right to choose” that is being assaulted as it is the ethic of family and its legitimate domain.

Nisbet attacks Roe v. Wade as the centralized government interfering with local communities, but continues:

[In the abortion crusades, on both sides, f]orces of total good are arrayed against total evil, the sure sign of a dogma encased in the struggle for absolute power. . . . But repugnant as this whole spectacle is, it does not present the danger to the social fabric and to individual liberty that is posed by the ranks of the aggressive antiabortionists. In denying the right of the woman or her family to terminate pregnancy, these soldiers of righteousness strike at the very heart of both family and individual rights.

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In Defense of the Libertines

Lots of people, including people on this blog, distinguish between “libertarianism” and “libertinism.” The former, they say, can be okay, as long as it is undergirded by conservative principles. The latter, however, is almost always denounced.

So it was a refreshing change of pace when I came across this interview with Thaddeus Russell, a libertarianish author who recently published a book defending (among others) prostitutes, hard-drinkers, juvenile delinquents, gangsters, rowdy immigrants, and the gay counterculture as fundamental to freedom. I’m a little skeptical of his argument—at the very least, I think it is a bit more productive, from the perspective of promoting liberty, to try to understand boring, bourgeois economic law than it is to celebrate dancing (which Russell does around the 4:30 mark).

But Russell’s perspective is a unique and interesting one. At least, it may indicate that the frequent condemnations of “libertinism” are overstated. After all, if the libertines aren’t hurting anyone, and if they accept a libertarian political philosophy, then what good does it do to condemn them?

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The NRA Was Right About Obama

The NRA’s new ad about Obama’s children has been getting a lot of attention. Unfortunately, most of the criticism—e.g., on whether it is good form to talk about the president’s children or whether it is in fact true that Sasha and Malia’s school employs armed guards—misses the important point. That is: whether we’re turning into a society with one set of laws for the well-connected and another set for everyone else.

At first blush, the critics’ complaints have some plausibility. If we assume that the NRA is talking about armed school guards (and not the Secret Service, which is unclear from the ad), then even if the Obama girls get protection and public school students do not, maybe that isn’t a problem, from a conservative or libertarian perspective. After all, Sasha and Malia go to a private school, so their protection is provided voluntarily on the free market, whereas public school protection can only come about through taxation. (As an aside, I wish the NRA would stop talking about public police in schools. Focusing on that instead of private ownership certainly weakens their argument.)

Moreover—and perhaps more importantly—critics complain that the Obama girls need more protection because they are at greater risk. The president’s daughters are a natural target for attacks in a way that a mechanic or a philosophy professor’s daughters are not.

But just because the Obama girls are at more risk than others doesn’t mean that others are at no risk. And how those others decide to deal with their varying levels of risk will depend on their own individual circumstances.

For instance, it makes sense for the Obamas to have a highly-trained contingent of Secret Servicemen surrounding them 24/7. But for a convenience store owner in the ghetto, it might only make sense to have a single gun on hand (and preferably a more powerful one than any attackers would likely use). Even if the store owner had the means to hire a private Secret Service, he might very well consider doing so to be an exorbitant waste of money, given the limited nature of the risk he faces.

In short, people can judge the risks they face themselves, and then decide what preventive measures are appropriate. Some might only need a small handgun; others, 24/7 armed protection. Each decision is just an individualized response to one’s own circumstances.

Obama doesn’t seem to oppose private businesses employing armed guards, or taxpayer-funded Secret Service protection. But he does have a problem with forms of private, individual gun ownership—and as Politico reports, for one of the first times in his presidency, “he is willing to burn political capital” to restrict it.

But all that means is that he is willing to regulate away the forms of protection that the poor and middle classes would use, while leaving intact only those forms that the rich (or powerful politicians likely to be the target of some attack) can afford. At best, this means that poorer people will have to drastically increase the money they spend on protection services (which would leave them much less money for everything else). At worst—and which is more likely—it means that they would be forced to do without, or be pushed into the black market for guns.

The NRA says that this makes Obama an “elitist hypocrite.” Well, it isn’t necessarily hypocritical to believe that only you and people like you deserve protection. But it is certainly dishonorable. Allowing the free market to work for the rich and stymying it when it would help the poor is just as bad as any other government intervention. And even though the ad unfortunately focuses on the NRA’s questionable proposal of bringing police into public schools, it is clear that Obama’s general gun policies would indeed disparately harm the poor.

So, the critics miss the point when they say that Sasha and Malia get their security from the free market. The issue not that these two get protection—they deserve security, just like everyone else. The real issue is that, if Obama had his way, other, less fortunate children will be effectively barred from protection. Eventually, you might have to be a millionaire who can afford a fancy private school—or maybe even a president who gets free bodyguards—before you can adequately protect your children.

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. . . Then Why Be Conservative?

In his defense of conservatism and radical change (below), Edmund Babbitt writes:

[C]onservatism is cautious about attempts to reform political society and generally favors limited and incremental rather than drastic and immediate change. . .  Nevertheless, conservatives recognize that uneasiness about change does not translate into adamant and unqualified opposition to all attempts at improvement—even radical ones. . . .

In order to avoid the assumption that the present period possesses a monopoly on wisdom, conservatism tries to consider all the evidence presented by human history.  As a result, conservatives may reject a significant trend which has developed in a given political society over years and decades as inconsistent with the concrete evidence found throughout the vast experience of history.  Thus, the demand for a significant change is not necessarily inconsistent with conservatism.  It may be conservative to reject a major development within a tradition and it may be profoundly anti-conservative to support the status quo.  The ultimate determination of whether an action is conservative depends on the basis for accepting or rejecting a policy and not on whether the acceptance or rejection constitutes opposition to or support for change. (Emphasis added.)

This seems like an uncontroversial definition of conservatism. Still, all it really amounts to is the claim that conservatives are cautious and skeptical about sweeping change, and will evaluate each proposed change rationally and on its merits.

But, who doesn’t believe that? No one really supports immoderate, ill-thought-out change just for its own sake. You can be a radical rationalist and also believe that you should proceed cautiously in practical affairs. For instance, the medieval Scholastics were steeped in their own tradition and come across as humble, moderate folk. But the meat of their philosophy was based on rational deduction from self-evident facts of nature, and had nothing to do with what we would today call “conservatism.”

At best, then, it seems that conservatism is a warning bell, telling us to think twice before we try something new. But if that is true, then I see no reason to accept “conservatism” as a philosophy in the first place. You could just be a careful communist or a cautious libertarian, or whatever else. That is, you can keep the rationalist substance of your philosophy and just adopt the conservatives’ spirit of not going overboard.

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Ted Cruz’s Neoconservative Boilerplate

When Ted Cruz ran for the Senate, he got the endorsements of Ron and Rand Paul and the Paul-inspired Young Americans for Liberty.

Compared to Ron Paul, Secretary of Defense nominee Chuck Hagel’s foreign policy is a pretty boring, if sensible enough, centrism.

But now, in a USA Today op-ed, Senator Cruz denounces Hagel’s foreign policy as “out of the mainstream” and states that “I expect to oppose his nomination for several reasons.”

What are these reasons?

For one, Hagel “views Israel not as our friend but as a nuisance.” The only evidence that Cruz offers to support this claim is that Hagel “refused to sign a letter urging the president to express solidarity with Israel and condemn the Palestinian campaign of violence.” The horror! In Cruz’s eyes, Hagel committed the cardinal sin of believing that Palestinians may have legitimate grievances and that an age-old cultural can’t be boiled down in terms of good and evil.

Just as bad, according to Cruz, Hagel opposes classifying a branch of the Iranian military as a terrorist organization and—you better sit down for this one—“has advocated direct, comprehensive negotiations with Iran’s government, along with Hamas, Hezbollah and Syria.”

Cruz then churns out some Bush-era boilerplate: “Iran is rapidly pursuing nuclear weapons capacity. The surest way to avoid military conflict is to have a strong and credible defense; weakness and appeasement only invite military aggression.”

Even if we assume (however improbably) that a poor backwater like Iran could ever pose a serious threat of “military aggression,” I’ve seen no reason to believe that Chuck Hagel would oppose a “strong and credible defense” against it.

“Defense” is defined as “resistance against attack; protection.” It does not mean sanctions, provocations, or threats of war against other countries, all of which better fit the definition of “aggression.” These kinds of acts, which Cruz apparently supports, are not resistance against some external force; they are the very aggressive, external force that he denounces.

Cruz aptly ends his op-ed by writing: “We can and should do better.” To which I can only add: listen up, Young Americans for Liberty! If Cruz opposes Hagel this much, what would he do if a real, Ron Paul-style anti-interventionist came forward? We don’t gain anything from having another war hawk in the Senate, even if he is good on economic policy.

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The Perils of Top-Down Reform

Being both a law student and a libertarian, I often wonder what I can do to advance libertarian ideals once I start practicing law. And, broadly, I see two basic methods for libertarian legal reform.

The first is the “top down” approach of Randy Barnett and the Institute for Justice, which tries to persuade judges to come to libertarian decisions through “public-interest” litigation. Such was the strategy in the Obamacare case—with mixed results. The second is the “bottom up” approach of groups like the Tenth Amendment Center, which tries to convince the masses to adopt libertarian ideals through education and grassroots activism. Of course, from a lawyer’s perspective, only the top-down method offers the chance for respectable legal work. The bottom-up method relies on activism skills that no one needs an expensive law degree to work at. Moreover, convincing a majority of five highly educated Supreme Court justices of the correctness of certain abstract principles is a much more tangible and achievable goal than swaying some amorphous “mass” of uninterested Schmoes to libertarian ideals.

But Murray Rothbard offers an interesting cautionary tale against the top-down approach in the first volume of his massive Austrian Perspective on the History of Economic Thought (which I’ve been working my way through this winter break). During the reign of the autocratic and mercantilistic French King Louis XIV, a group of laissez-faire scholars (“the Burgundy Circle”) hoped to bring freedom to France by tutoring Louis’s grandson and would-be successor to the throne, the Duke of Burgundy, in the ways of laissez-faire. Once he became King, the Circle expected that the Duke would repeal his grandfather’s authoritarian policies.

For 22 years, they faithfully tutored him in free-trade thought. The plan was going perfectly . . . until the Duke suddenly died of the measles. He never became king and two decades of painstaking work came to nothing. Rothbard concludes:

The tragic end of the Burgundy Circle illuminates a crucial strategic flaw, not only of the Burgundy Circle, but also of the physiocrats, Turgot, and other laissez-faire thinkers of the later eighteenth century. . . . The idea, in short, was to get into court, influence the corridors of power, and induce the king to adopt libertarian ideas and impose a laissez-faire revolution, so to speak, from the top. If the king could not be persuaded directly, then a new king’s ideas and values would be formed from childhood by liberal preceptors and tutors.

Reliance on the good will of the king, however, suffered from several inherent defects. One, as in the case of the Duke of Burgundy, was the reliance on the existence and good health of one person. A second is a more systemic flaw. Even if one can convince the king that the interests of his subjects require liberty and laissez-faire, the standard argument that his own revenue will increase proportionately to their prosperity is a shaky one. For the king’s revenue might well be maximized, certainly in the short run and even in the long run, by tyrannically sweating his subjects to attain the maximum possible revenue. And relying on the altruism of the monarch is a shaky reed at best. For all these reasons, appealing to a monarch to impose laissez-faire from above can only be a losing strategy. A far better strategy would have been to organize a mass opposition from below among the ruled and exploited masses, an opposition that would have given laissez-faire a far more solid groundwork in adherence by the bulk of the population.

(From Volume I, pp. 266-67. Emphases added.)

Even though monarchism is dead, we can see the same problems in today’s strategy of top-down litigation. Of course, just as the Duke of Burgundy could suddenly and unexpectedly die, so too could Clarence Thomas—and his replacement during the Obama administration would likely lead to the unravelling of even the extremely modest gains in antitrust, gun rights, and the Commerce Clause that libertarians have made over the past decades.

Nor can we really count on libertarianism to appeal to Supreme Court justices, any more than it would to French kings. For one thing, the legal profession (where all the justices got their start) benefits from having a complex and far-reaching administrative state to keep up the demand for lawyers’ services, so we can expect that (present and former) lawyers as a group will be generally more hostile to libertarianism than non-lawyers. There will of course be exceptions, but the group culture will tend to frown on anti-government thought.

Moreover, as many people have noted, Robert Bork’s confirmation fiasco discouraged later presidents from nominating ideological outliers to the Supreme Court. The people who do get nominated may fall on different points on the ideological spectrum, but none of them are really radical, as a libertarian would be. For instance, when the Court had the opportunity to essentially gut the EPA, it declined, in a unanimous Scalia opinion, to do so. And of course, because the justices must be nominated by the president and confirmed by the Senate, the fact that there are virtually no libertarian senators and certainly no libertarian presidents means that it is highly unlikely that a libertarian justice could be selected.

All of which is to say: libertarian lawyers would do well to listen to Rothbard’s story. If litigators want to help the libertarian cause, they might best leave the real work to educators and activists. I don’t really like that conclusion, but I see little way around it.

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5 Arguments We Should Abandon in 2013 (But Probably Won’t)

2012 was a good year for bad arguments. Here’s a list of the five worst arguments of 2012, and what is wrong with them.

1.  Obama won the election fair and square, so now we should let him carry out his mandate.

Most people agree that politics should be about pursuing policies that are likely to improve the conditions of the citizens. Accordingly, if something would make us worse off, then it should be rejected.

But whether something is popular is irrelevant to the question of whether it makes people better off. In fact, many of Obama’s policies (like taxing the rich or forcing insurance companies to cover pre-existing conditions) are likely in the long-run to make the bulk of people at least somewhat worse off. And if you believe that, then you’re not doing anyone any favors by sitting by and letting politicians carry out a destructive mandate unopposed.

Nor is it any answer to say that, in a democracy, the people demonstrated their preference for these policies and so should be able to have them. If it were possible to confine the economic effects of higher taxes and a burdened insurance market strictly to Obama voters, I wouldn’t complain. But, as the Left likes to remind us, no man is an island. Voting for a bad president isn’t like going on a bad diet, where only the person who made the mistake has to suffer the consequences. Rather, when the president pursues destructive policies, everyone suffers, both here and abroad. If we want to mitigate that suffering, the last thing we should want is to let Obama carry out his mandate.

2.  “Epistemic closure” is a serious problem on the Right.

A popular belief among the cognoscenti is that conservatives live in their own little cocoon and refuse to listen to dissenting voices. This may be true for parts of the talk-radio Right, like Rush Limbaugh or Glenn Beck. But I see no reason to believe that the Right on the whole is any more “epistemically closed” than the Left as a whole. Indeed, having spent the last two and a half years at Cornell Law School, I have been surrounded by some of the most highly-educated liberals that I’ve ever met . . . but I’ve never been in a more intellectually-stultifying atmosphere, where there is only one permissible way to think. This belief that only liberalism can be respectable comes from the same close-mindedness that caused Paul Krugman to wonder that, if any independent, unorthodox Republicans do exist, “Why not call them ‘Democrats?’” And it is, from my own experience with academia, a very widespread belief.

So, the key difference between Left-wing and Right-wing epistemic closure is that, whereas the Right-wing variety tends to come from partisan talk show hosts that no one takes seriously anyway, the Left’s comes from its most credentialed intelligentsia—which is where it is least appropriate.

3.  The Sandy Hook shooting changed EVERYTHING.

I have blogged a lot about this. To argue that the Sandy Hook shooting changed everything and that, therefore, we should be more open to gun control makes a lot of implicit assumptions.

At the heart of the “changed everything” argument lies a confusion over the realm of facts versus the realm of theory. Theory gives us a way of understanding the world and allows us to explain why certain facts occur. Facts just exist, and are meaningless without an explanatory theory. For instance, it is a fact that incidences of rape increase alongside incidences of ice cream sales. But we know, as a matter of theory, that the two really don’t affect each other.

Likewise, just because there are loose gun laws doesn’t mean that Sandy Hook happened because of them. We have to rationally weigh the arguments for and against gun control to be able to understand whether the shooting happened because of or in spite of the current laws. But the things that should be driving our understanding of gun control are competing theories, not just the particularly striking facts of this shooting. Unfortunately, many people are so shocked by the Sandy Hook massacre that they are willing to jump to normative conclusions about gun control without really asking whether gun control is actually effective.

4.  Obama inherited this economy from Bush, so we shouldn’t be too hard on him.

The descriptive part of this statement is true. But, so what? Why can only one person be to blame?

If I were shot down outside my house, I would blame the person the person who shot me. But if, when I went to the hospital, the surgeon used unsterile instruments to remove the bullets, so that I became infected and never fully recovered, I would blame both the initial shooter and the blundering surgeon who tried to help me for the full scope of my injuries.

Bush may have started the recession, but Obama has done nothing to make it better. Indeed, many of his policies have probably made it much worse. Depressions need not take a decade to self-correct; if one takes the correct responses to it, as the link argues that President Harding did in 1920, they can quickly disappear and be forgotten. But to try to absolve Obama from blame just because he didn’t cause the recession ignores the fact that decisions that prolong and exacerbate suffering can be just as bad as the initial cause of the suffering itself.

5.  Politicians need to relearn the values of bipartisanship and compromise, like they did in the 1950s.

This is my choice for the worst argument of the year. But it is one you hear repeated everywhere, constantly.

The mid-century was indeed a time of bipartisanship, but it was also a time of intellectual homogeneity. It was a time when conservatism could be written off by a prominent liberal scholar as “irritable mental gestures which seek to resemble ideas” and when there was virtually no outlet for serious libertarian thought, aside from a few low-circulation newsletters. Meanwhile, the “bipartisan” policies were invariably statist ones. The entire mid-20th century can be characterized as a series of unchecked encroachments on a once-free economy while the US cemented its empire overseas. It might be nice to see people working together, but when they’re working together to pursue bad ideas, bipartisanship isn’t so great.

Now that the internet has done a lot to decentralize information away from a few well-connected news sources, it is inevitable that there will be less agreement. But that’s hardly a bad thing. Rather, it’s a function of the fact that hitherto neglected ideologies are suddenly able to reach a much wider audience than ever before. The old guard of the center-left establishment can be expected to complain—no one likes losing a monopoly on ideas. But the rest of us are much better off when people can bicker, argue, and reject the old orthodoxies that defined past generations. The fact that, today, political debates are more likely than ever before to focus on first principles (i.e. on whether taxation is justifiable at all rather than on whether the top marginal rate should be 38% or 41%) is a great opportunity to challenge the old statist orthodoxy and hopefully to replace it with something better.

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America’s Dwindling Crime Problem

The American Conservative just published an anti-gun article by Zach Beauchamp of Think Progress (!). Throughout the article, Beauchamp keeps repeating the figure of “32,000 deaths from gun violence per year.” I guess this is supposed to shock the reader—it certainly seems like a big number. But it would be nice to know how this number compares to years, say, in the 1990s, when there was an assault weapons ban in effect.

For those wanting some context, the Department of Justice’s own Bureau of Justice Statistics (hardly a bunch of partisan gun nuts) publishes data on historic violent crime trends. Granted, their data don’t say anything about gun crimes versus non-gun violent crimes. But they do show that, contrary to Beauchamp’s implications, the murder rate has remained constant through high and low gun-control years.

Perhaps most importantly, they also show that, though the anti-gun Left likes to talk about modern America as if it were the Wild West, your actual likelihood of being the victim of any violent crime is much lower now than it ever has been before. The FBI reports that the decrease in violent crime has only continued since the BJS survey ended. NBC News covered that story earlier this year. (Whether they’re likely to bring it up again after Sandy Hook, however, is anyone’s guess.)

None of this is conclusive evidence against gun control—the anti-gun people could still say that crime would be even lower with more control. But it gives us at least one more reason to believe that crime can be effectively reduced without gun control.

Bureau of Justice Statistics survey:

National Crime Victimization Survey Violent Crime Trends, 1973-2008

Adjusted violent victimization rates
Number of victimizations per 1,000 population age 12 or older
violent crime
 Aggravated  assault Simple
Year Murder Rape Robbery
1973 47.7 0.1 2.5 6.7 12.5 25.9
1974 48.0 0.1 2.6 7.2 12.9 25.3
1975 48.4 0.1 2.4 6.8 11.9 27.2
1976 48.0 0.1 2.2 6.5 12.2 27.0
1977 50.4 0.1 2.3 6.2 12.4 29.4
1978 50.6 0.1 2.6 5.9 12.0 30.0
1979 51.7 0.1 2.8 6.3 12.3 30.3
1980 49.4 0.1 2.5 6.6 11.4 28.8
1981 52.3 0.1 2.5 7.4 12.0 30.3
1982 50.7 0.1 2.1 7.1 11.5 29.8
1983 46.5 0.1 2.1 6.0 9.9 28.3
1984 46.4 0.1 2.5 5.8 10.8 27.2
1985 45.2 0.1 1.9 5.1 10.3 27.9
1986 42.0 0.1 1.7 5.1 9.8 25.3
1987 44.0 0.1 2.0 5.3 10.0 26.7
1988 44.1 0.1 1.7 5.3 10.8 26.3
1989 43.3 0.1 1.8 5.4 10.3 25.8
1990 44.1 0.1 1.7 5.7 9.8 26.9
1991 48.8 0.1 2.2 5.9 9.9 30.6
1992 47.9 0.1 1.8 6.1 11.1 28.9
1993 49.1 0.1 1.6 6.0 12.0 29.4
1994 51.2 0.1 1.4 6.3 11.9 31.5
1995 46.1 0.1 1.2 5.4 9.5 29.9
1996 41.6 0.1 0.9 5.2 8.8 26.6
1997 38.8 0.1 0.9 4.3 8.6 24.9
1998 36.0 0.1 0.9 4.0 7.5 23.5
1999 32.1 0.1 0.9 3.6 6.7 20.8
2000 27.4 0.1 0.6 3.2 5.7 17.8
2001 24.7 0.1 0.6 2.8 5.3 15.9
2002 22.8 0.1 0.7 2.2 4.3 15.5
2003 22.3 0.1 0.5 2.5 4.6 14.6
2004 21.1 0.1 0.4 2.1 4.3 14.2
2005 21.0 0.1 0.5 2.6 4.3 13.5
2007 20.4 0.1 0.6 2.4 3.4 13.9
2008 19.0 0.1 0.5 2.2 3.3 12.9
2009 16.9 1.1b 0.3 2.1 3.2 11.3


To the best of my knowledge, the weird 2009 change in the murder rate comes from using a different reporting method. (See here, p. 2.)

Here are the FBI data:


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Toward the Denationalization of Conversations

Of all the silly abstractions that politicians conjure up, I think that the idea of a “national conversation” is one of the worst. Nations cannot converse; only individual people can. And in the society that we live in, the individual people who will have the media access to lead a national conversation are not the kinds of thoughtful people that we should be looking to for solutions to things like gun violence in the first place. Talking about “national conversations” might make us feel like mature and rational grown ups, but the form that these conversations actually take will invariably be quite immature and irrational.

Ross Douthat, in today’s New York Times, makes this point pretty effectively:

The leading gun control chorister was Michael Bloomberg, and this was fitting, because on a range of issues New York’s mayor has become the de facto spokesman for the self-consciously centrist liberalism of the Acela Corridor elite. Like so many members of that class, Bloomberg combines immense talent with immense provincialism: his view of American politics is basically the famous New Yorker cover showing Manhattan’s West Side overshadowing the world, and his bedrock assumption is that the liberal paternalism with which New York is governed can and should be a model for the nation as a whole.

It’s an assumption that cries out to be challenged by a thoughtful center-right. . . .

But instead of a kind of skepticism and sifting from conservatives, after a week of liberal self-righteousness the spotlight passed instead to … Wayne LaPierre. And no Stephen Colbert parody of conservatism could match the National Rifle Association spokesman’s performance on Friday morning. . . .

Unfortunately for our country, the Bloomberg versus LaPierre contrast is basically all of American politics today. Our society is divided between an ascendant center-left that’s far too confident in its own rigor and righteousness and a conservatism that’s marched into an ideological cul-de-sac and is currently battering its head against the wall.

The entire Obama era has been shaped by this conflict, and not for the good. On issue after issue, debate after debate, there is a near-unified establishment view of what the government should do, and then a furious right-wing reaction to this consensus that offers no real policy alternative at all.

On a similar note, law professor Dave Hoffman argues that “national conversations” themselves actually undermine self-rule:

If a community in, say, Connecticut wanted to ban assault weapon clips (because it made them feel safer – let’s put to one side data on efficacy!), Glenn Reynolds would lead a charge against the liberal fascists. Indeed. Heh. Yes.  If a community in Tennessee wants to arm its teachers (because it makes them feel safer – let’s put to one side data on efficacy!) Josh Marshall and Andrew Sullivan would call them out as conservative fascists.  Or loonies. Or winners of the Moore award.  And we’d all get to pat ourselves on the back, but no one would actually get the benefit that law is supposed to provide, which is the helpful illusion that we’re more civilized than we actually are, and that we’re actually doing something to push back against the tide.

That is: a national conversation about guns and violence, facilitated and sped up by the internet, reduces our ability to try out different versions of the good life, and thus diminishes our capacity live together in peace.

I think this is right, though I tend to believe that the Internet mitigates, rather than aggravates, the problem. At least, thanks to the Internet, we can seek out thoughtful commentators like, say, Eugene Volokh on gun control if we really want to. Good luck finding someone of that caliber on MSNBC, Fox, or any of the other major news outlets. (The New York Times should be commended for hiring high-quality writers like Ross Douthat and, yes, Paul Krugman, but most other news outlets do not.)

Ultimately, I think the problem won’t be solved until conversations are really denationalized. I don’t know how we’ll get there, but we will know we’ve reached the goal when people have the same reaction to the idea of a “national conversation” that they would have today to the idea of a “hemispherical conversation.” The idea that problems should be discussed and solved on a national level not only undermines individual liberty and self-rule (by shifting power from individuals and authentic communities to the national government), but also virtually guarantees that the conversations we do get will be the kinds of conversations that aren’t worth having.

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