Wednesday, August 31, 2005

Science, Evolution, Religion, and Liberty

Excerpts of a long post at Liberty Corner II:

If a man will begin with certainties, he shall end in doubts, but if he will be content to begin with doubts, he shall end in certainties.
Francis Bacon (1561–1626),
British philosopher, essayist, statesman.
The Advancement of Learning, bk. 1, ch. 5, sct. 8 (1605).

Science begins with doubts -- questions about the workings of the world around us -- and moves bit by bit toward greater certainty, without ever reaching complete certainty. Philosophy and religion begin with certainties -- a priori explanations about the workings of the world -- and end in doubts because the world cannot be explained by pure faith or pure reason. But philosophy and religion can tell us how to live life morally, whereas science can only help us live life more comfortably, if that is what we wish to do.

Scientists -- when they are being scientists -- begin with questions (doubts), which lead them to make observations, and from those observations they derive theories about the workings of the universe or some aspect of it. Those theories can then be tested to see if they have predictive power, and revised when they are found wanting, that is, when new observations (facts) cast doubt on their validity. Scientific facts may sometimes be beyond doubt (e.g., the temperature at which water freezes under specified conditions), but scientific theories -- which are generalizations from facts -- are never beyond doubt. Or they never should be. . . .

Einstein stands as a paragon among scientists: unwilling to run with the herd, unwilling to "follow any fad or popular direction," as Smolin puts it elsewhere in the essay quoted above. Now we seem to have herds of so-called scientists who cling to certain theories because those theories are popular and dominant. They may be great scientists -- or hacks -- who have come to a certain worldview and are loathe to abandon it, or they may be followers of renowned scientists who lack the imagination to see alternative explanations of phenomena. Whatever the case, a "scientist" who insists on the truth of his worldview has abandoned science for something that might as well be called religion or philosophy.

In the case of global warming, we've seen the herd instinct at work for many years. It has become an article of faith among academic and government scientists not only that global warming is due mainly to human activity but also that it is "bad." . . .

Now we come to evolution. I have written elsewhere about the tendency of evolutionary biologists (and their hangers-on at places like The Panda's Thumb) to act like priests of a secular religion. . . .

[T]he scientific consensus seems to be that any scientist who even entertains intelligent design (ID) as a supplementary explanation of the development of life forms has somehow become a non-scientist. . . .

I think it really boils down to this: Anti-ID scientists cannot prove that ID is unscientific; pro-ID scientists cannot prove that ID is anything more than a convenient explantion for currently unexplained phenomena. It's the scientific (or non-scientific) version of a Mexican standoff. . . .

It is impossible to eliminate any explanation of the origin of life or the development of life forms, as long as that explanation doesn't conflict with facts. Similarly, it is impossible to eliminate any explanation of the origin of the universe, as long as that explanation doesn't conflict with facts. Staunch evolutionists -- those who resist Creationism, intelligent design, or any other unfalsifiable or unfalsified explanation for the origin of the universe, the origin of life, or the development of life forms -- are merely invoking their preferred worldview -- not facts.

The best that science can do, under any foreseeable circumstances, is to investigate how life developed from the point in the known history of the universe at which there is evidence of life. But many (perhaps most) evolutionists and their hangers-on aren't content to pursue that scientific agenda. . . .

Scientific elites and their hangers-on, like paternalists of all kinds, would like to tell us how to live our lives -- for our own good, of course -- because they think they have the answers, or can find them. (They would be benign technocrats, of course, unlike their counterparts in the old USSR.) And when they are thwarted, they get in a snit and issue manifestos.

But, as I said at the outset, science isn't about how to live morally, it's about how to live life more comfortably, if that is what we wish to do. To know how to live life morally we must turn to a philosophy that promotes liberty, and we must not reject the moral code of the Judeo-Christian tradition, in which one finds much support for liberty.

I'm very much for science, properly understood, which is the increase of knowledge. I'm very much against the misuse of science by scientists (and others) who invoke it to advance an extra-scientific agenda. Science, properly done, begins with doubts and ends in certainties, but those certainties extend only to the realm of observable, documented facts. Science has no claim to superiority over philosophy or religion in the extra-factual realm of morality.

I close by paraphrasing my son's comment about my post on "Religion and Liberty":
The basis of liberty is extra-scientific; thus the need for non-scientific moral institutions.


Tuesday, August 30, 2005

A Footnote . . .

. . . to the preceding post, in which I quote at length from a recent article by Charles Murray, co-author of The Bell Curve (1994). In the article, Murray reviews the evidence about race and IQ and concludes
that we know two facts beyond much doubt. First, the conventional environmental explanation of the black-white difference [in IQ] is inadequate. Poverty, bad schools, and racism, which seem such obvious culprits, do not explain it. Insofar as the environment is the cause, it is not the sort of environment we know how to change, and we have tried every practical remedy that anyone has been able to think of. Second, regardless of one’s reading of the competing arguments, we are left with an IQ difference that has, at best, narrowed by only a few points over the last century. I can find nothing in the history of this difference, or in what we have learned about its causes over the last ten years, to suggest that any faster change is in our future.
I want to emphasize this point:
Insofar as the environment is the cause, it is not the sort of environment we know how to change, and we have tried every practical remedy that anyone has been able to think of.
That's entirely consistent with what has been said by Thomas Sowell (a noted black scholar of conservative-libertarian persuasion), both in his commentary on The Bell Curve and in his recent writings about race and culture. Here's what Sowell said about The Bell Curve soon after its publication:
Whatever innate potential various groups may have, what they actually do will be done within some particular culture. That intractable reality cannot be circumvented by devising "culture-free" tests, for such tests would also be purpose-free in a world where there is no culture-free society.

Perhaps the strongest evidence against a genetic basis for intergroup differences in IQ is that the average level of mental test performance has changed very significantly for whole populations over time and, moreover, particular ethnic groups within the population have changed their relative positions during a period when there was very little intermarriage to change the genetic makeup of these groups.

While The Bell Curve cites the work of James R. Flynn, who found substantial increases in mental test performances from one generation to the next in a number of countries around the world, the authors seem not to acknowledge the devastating implications of that finding for the genetic theory of intergroup differences. . . .

Even before Professor Flynn's studies, mental test results from American soldiers tested in World War II showed that their performances on these tests were higher than the performances of American soldiers in World War I by the equivalent of about 12 IQ points. Perhaps the most dramatic changes were those in the mental test performances of Jews in the United States. The results of World War I mental tests conducted among American soldiers born in Russia--the great majority of whom were Jews--showed such low scores as to cause Carl Brigham, creator of the Scholastic Aptitude Test, to declare that these results "disprove the popular belief that the Jew is highly intelligent." Within a decade, however, Jews in the United States were scoring above the national average on mental tests, and the data in The Bell Curve indicate that they are now far above the national average in IQ.

. . . For Jews, it is clear that later tests showed radically different results--during an era when there was very little intermarriage to change the genetic makeup of American Jews.

My own research of twenty years ago showed that the IQs of both Italian-Americans and Polish-Americans also rose substantially over a period of decades. Unfortunately, there are many statistical problems with these particular data, growing out of the conditions under which they were collected. However, while my data could never be used to compare the IQs of Polish and Italian children, whose IQ scores came from different schools, nevertheless the close similarity of their general patterns of IQ scores rising over time seems indicative--especially since it follows the rising patterns found among Jews and among American soldiers in general between the two world wars, as well as rising IQ scores in other countries around the world. . . .
Herrnstein and Murray openly acknowledge such rises in IQ and christen them "the Flynn effect," in honor of Professor Flynn who discovered it. But they seem not to see how crucially it undermines the case for a genetic explanation of interracial IQ differences. They say:

The national averages have in fact changed by amounts that are comparable to the fifteen or so IQ points separating blacks and whites in America. To put it another way, on the average, whites today differ from whites, say, two generations ago as much as whites today differ from blacks today. Given their size and speed, the shifts in time necessarily have been due more to changes in the environment than to changes in the genes.

While this open presentation of evidence against the genetic basis of interracial IQ differences is admirable, the failure to draw the logical inference seems puzzling. Blacks today are just as racially different from whites of two generations ago as they are from whites today. Yet the data suggest that the number of questions that blacks answer correctly on IQ tests today is very similar to the number answered correctly by past generations of whites. If race A differs from race B in IQ, and two generations of race A differ from each other by the same amount, where is the logic in suggesting that the IQ differences are even partly racial? . . .

. . . When any factor differs as much from Al to A2 as it does from A2 to B2, why should one conclude that this factor is due to the difference between A in general and B in general? That possibility is not precluded by the evidence, but neither does the evidence point in that direction.(2.)

In footnote 2 Sowell concedes that "rising IQs over time do not refute the belief that races differ in IQ for genetic reasons, though it ought to at least raise a question about that belief."

But let us continue with Sowell's main theme, which is that persistent inter-racial differences in IQ can be attributed to persistent cultural differences. Writing recently in OpinionJournal, Sowell paraphrases his essay "Black Rednecks and White Liberals," from the eponymous book. Here's some of what he has to say:

There have always been large disparities, even within the native black population of the U.S. Those blacks whose ancestors were "free persons of color" in 1850 have fared far better in income, occupation, and family stability than those blacks whose ancestors were freed in the next decade by Abraham Lincoln.

What is not nearly as widely known is that there were also very large disparities within the white population of the pre-Civil War South and the white population of the Northern states. Although Southern whites were only about one-third of the white population of the U.S., an absolute majority of all the illiterate whites in the country were in the South.

The North had four times as many schools as the South, attended by more than four times as many students. Children in Massachusetts spent more than twice as many years in school as children in Virginia. Such disparities obviously produce other disparities. Northern newspapers had more than four times the circulation of Southern newspapers. Only 8% of the patents issued in 1851 went to Southerners. Even though agriculture was the principal economic activity of the antebellum South at the time, the vast majority of the patents for agricultural inventions went to Northerners. Even the cotton gin was invented by a Northerner.

Disparities between Southern whites and Northern whites extended across the board from rates of violence to rates of illegitimacy. American writers from both the antebellum South and the North commented on the great differences between the white people in the two regions. So did famed French visitor Alexis de Tocqueville.

None of these disparities can be attributed to either race or racism. Many contemporary observers attributed these differences to the existence of slavery in the South, as many in later times would likewise attribute both the difference between Northern and Southern whites, and between blacks and whites nationwide, to slavery. But slavery doesn't stand up under scrutiny of historical facts any better than race or racism as explanations of North-South differences or black-white differences. The people who settled in the South came from different regions of Britain than the people who settled in the North--and they differed as radically on the other side of the Atlantic as they did here--that is, before they had ever seen a black slave.

Slavery also cannot explain the difference between American blacks and West Indian blacks living in the United States because the ancestors of both were enslaved. When race, racism, and slavery all fail the empirical test, what is left?

Culture is left.

The culture of the people who were called "rednecks" and "crackers" before they ever got on the boats to cross the Atlantic was a culture that produced far lower levels of intellectual and economic achievement, as well as far higher levels of violence and sexual promiscuity. That culture had its own way of talking, not only in the pronunciation of particular words but also in a loud, dramatic style of oratory with vivid imagery, repetitive phrases and repetitive cadences.

Although that style originated on the other side of the Atlantic in centuries past, it became for generations the style of both religious oratory and political oratory among Southern whites and among Southern blacks--not only in the South but in the Northern ghettos in which Southern blacks settled. It was a style used by Southern white politicians in the era of Jim Crow and later by black civil rights leaders fighting Jim Crow. Martin Luther King's famous speech at the Lincoln Memorial in 1963 was a classic example of that style.

While a third of the white population of the U.S. lived within the redneck culture, more than 90% of the black population did. Although that culture eroded away over the generations, it did so at different rates in different places and among different people. It eroded away much faster in Britain than in the U.S. and somewhat faster among Southern whites than among Southern blacks, who had fewer opportunities for education or for the rewards that came with escape from that counterproductive culture.

Nevertheless the process took a long time. As late as the First World War, white soldiers from Georgia, Arkansas, Kentucky and Mississippi scored lower on mental tests than black soldiers from Ohio, Illinois, New York and Pennsylvania. Again, neither race nor racism can explain that--and neither can slavery.

The redneck culture proved to be a major handicap for both whites and blacks who absorbed it. Today, the last remnants of that culture can still be found in the worst of the black ghettos, whether in the North or the South, for the ghettos of the North were settled by blacks from the South. The counterproductive and self-destructive culture of black rednecks in today's ghettos is regarded by many as the only "authentic" black culture--and, for that reason, something not to be tampered with. Their talk, their attitudes, and their behavior are regarded as sacrosanct.

The people who take this view may think of themselves as friends of blacks. But they are the kinds of friends who can do more harm than enemies.

If East Asians and Azhkenazic Jews could rise to the top of the IQ charts, as they have, why can't blacks rise too? Sowell would answer that they could rise, if only they would break the bonds of the "black redneck" culture, which hinders so many of them. The law cannot break those bonds, for, as Sowell argues, the law only reinforces those bonds by making blacks dependent on the affirmative action, welfare programs, and other "white liberal" contrivances.

If culture is the enemy of black advancement, the only way blacks can advance is to abandon the culture that many of them have transported from inner cities to suburbia, where they encounter white culture in many places, including public schools. There, the cultural divide becomes obvious in the phenomemon known as "acting white," the subject of an article by Harvard economist Roland G. Fryer Jr. and graduate student Paul Torelli, "An Empirical Analysis of 'Acting White'." The Washington Post's Richard Morin summarizes:

As commonly understood, acting white is a pejorative term used to describe black students who engage in behaviors viewed as characteristic of whites, such as making good grades, reading books or having an interest in the fine arts.

The phenomenon is one reason some social thinkers give to help explain at least a portion of the persistent black-white achievement gap in school and in later life. Popularity-conscious young blacks, afraid of being seen as acting white, steer clear of behaviors that could pay dividends in the future, including doing well in school. . . .

No one can change such attitudes but blacks themselves.

If "black redneck" culture is the cause of the inter-racial gap in IQ, and if blacks choose to perpetuate the "black redneck" culture, then the perpetuation of the IQ gap might as well be genetic. For, it will be the result of blacks' self-imposed servitude to the forces of ignorance.

Recommended reading: Race and Intelligence (a Wikipedia article with many links to sources and opposing views)

Related posts: Affirmative Action and Race (a collection of links)

Saturday, August 27, 2005

After the Bell Curve

Charles Murray, writing in Commentary, reviews what has been learned about gender, race, and IQ since the publication of his (and the late Richard Herrnstein's) The Bell Curve eleven years ago. Why is he writing now?

The Lawrence Summers affair last January made me rethink my silence. The president of Harvard University offered a few mild, speculative, off-the-record remarks about innate differences between men and women in their aptitude for high-level science and mathematics, and was treated by Harvard’s faculty as if he were a crank. The typical news story portrayed the idea of innate sex differences as a renegade position that reputable scholars rejected.

It was depressingly familiar. In the autumn of 1994, I had watched with dismay as The Bell Curve’s scientifically unremarkable statements about black IQ were successfully labeled as racist pseudoscience. At the opening of 2005, I watched as some scientifically unremarkable statements about male-female differences were successfully labeled as sexist pseudoscience.

His target:

[S]pecific [social] policies based on premises that conflict with scientific truths about human beings tend not to work. Often they do harm.

One such premise is that the distribution of innate abilities and propensities is the same across different groups. . . . The assumption of no innate differences among groups suffuses American social policy. That assumption is wrong.

When the outcomes that these policies are supposed to produce fail to occur, with one group falling short, the fault for the discrepancy has been assigned to society. It continues to be assumed that better programs, better regulations, or the right court decisions can make the differences go away. That assumption is also wrong.

About gender:
[F]or reasons embedded in the biochemistry and neurophysiology of being female, many women with the cognitive skills for achievement at the highest level also have something else they want to do in life: have a baby. In the arts and sciences, forty is the mean age at which peak accomplishment occurs, preceded by years of intense effort mastering the discipline in question.20 These are precisely the years during which most women must bear children if they are to bear them at all. . . .

[W]omen with careers were four-and-a-half times more likely than men to say they preferred to work fewer than 40 hours per week. The men placed greater importance on “being successful in my line of work” and “inventing or creating something that will have an impact,” while the women found greater value in “having strong friendships,” “living close to parents and relatives,” and “having a meaningful spiritual life.” As the authors concluded, “these men and women appear to have constructed satisfying and meaningful lives that took somewhat different forms.”23 The different forms, which directly influence the likelihood that men will dominate at the extreme levels of achievement, are consistent with a constellation of differences between men and women that have biological roots.

I have omitted perhaps the most obvious reason why men and women differ at the highest levels of accomplishment: men take more risks, are more competitive, and are more aggressive than women.24 The word “testosterone” may come to mind, and appropriately. Much technical literature documents the hormonal basis of personality differences that bear on sex differences in extreme and venturesome effort, and hence in extremes of accomplishment—and that bear as well on the male propensity to produce an overwhelming proportion of the world’s crime and approximately 100 percent of its wars. But this is just one more of the ways in which science is demonstrating that men and women are really and truly different, a fact so obvious that only intellectuals could ever have thought otherwise.

As for race, Murray reviews the evidence at length and concludes
that we know two facts beyond much doubt. First, the conventional environmental explanation of the black-white difference [in IQ] is inadequate. Poverty, bad schools, and racism, which seem such obvious culprits, do not explain it. Insofar as the environment is the cause, it is not the sort of environment we know how to change, and we have tried every practical remedy that anyone has been able to think of. Second, regardless of one’s reading of the competing arguments, we are left with an IQ difference that has, at best, narrowed by only a few points over the last century. I can find nothing in the history of this difference, or in what we have learned about its causes over the last ten years, to suggest that any faster change is in our future.
The implications:

Elites throughout the West are living a lie, basing the futures of their societies on the assumption that all groups of people are equal in all respects. Lie is a strong word, but justified. It is a lie because so many elite politicians who profess to believe it in public do not believe it in private. It is a lie because so many elite scholars choose to ignore what is already known and choose not to inquire into what they suspect. We enable ourselves to continue to live the lie by establishing a taboo against discussion of group differences. . . .

The taboo arises from an admirable idealism about human equality. If it did no harm, or if the harm it did were minor, there would be no need to write about it. But taboos have consequences. . . .

How much damage has the taboo done to the education of children? Christina Hoff Sommers has argued that willed blindness to the different developmental patterns of boys and girls has led many educators to see boys as aberrational and girls as the norm, with pervasive damage to the way our elementary and secondary schools are run.78 . . .

How much damage has the taboo done to our understanding of America’s social problems? The part played by sexism in creating the ratio of males to females on mathematics faculties is not the ratio we observe but what remains after adjustment for male-female differences in high-end mathematical ability. The part played by racism in creating different outcomes in black and white poverty, crime, and illegitimacy is not the raw disparity we observe but what remains after controlling for group characteristics. . . .

Even to begin listing the topics that could be enriched by an inquiry into the nature of group differences is to reveal how stifled today’s conversation is. Besides liberating that conversation, an open and undefensive discussion would puncture the irrational fear of the male-female and black-white differences I have surveyed here. We would be free to talk about other sexual and racial differences as well, many of which favor women and blacks, and none of which is large enough to frighten anyone who looks at them dispassionately. . . .

The law should not prevent individuals from doing their best. Reverse discrimination -- which is the law -- pushes some people toward pursuits for which they are not best suited and it pushes other people away from pursuits for which they are best suited. In sum, reverse discrimination prevents individuals from doing their best. That's bad social policy. But we mustn't talk about it.

Related posts:

Affirmative Action and Race (a collection of links)
I Missed This One (08/12/04)
A Century of Progress? (01/30/05)
Feminist Balderdash (02/19/05)

A Values-Free Government?

Barry Lynn, executive director of Americans United for the Separation of Church and State, is quoted in an L.A. Times article* as saying, "We are not to turn the Holy Scriptures of any group into public policy." That says a lot about the depth of religiosity to be found in an organization like Americans United, which is to the defense of religion as the American Civil Liberties Union is to the defense of liberty.

Now, I wouldn't expect Americans United to endorse the first four of the Ten Commandments, which are about God, or even numbers 5 (honor parents), 7 (eschew adultery), 9 (don't lie), or 10 (don't covet others' possessions). But you'd think that even Americans United would be in favor of laws that forbid (if not punish) murder (number 6) and outright theft (number 8). I guess not.

Related post: Religion and Liberty (with links to many other related posts)
* Reguires a free subscription. Or get an e-mail ID and password at, then search for "Grooming Politicians for Christ" (the title of the article).

Friday, August 26, 2005

Fuel for Thought

The charts below come from Chart of the Day. Ignore the rather strained effort to correlate spikes in the indices with recessions; focus on the fact that things have been "worse" and the world hasn't come to an end.

Then ask yourself if there's any reason believe that market forces will allow the real price of a particular item to rise indefinitely. The correct answer: of course not. Substitutes will become available at attractive prices, without government subsidiization of those substitutes. And people will buy the substitutes.

Thursday, August 25, 2005

Religion and Liberty

Excerpts of a long post at Liberty Corner II:

Many libertarians -- especially the strident atheists among them -- are quick to say that religious morality is unnecessary because morality -- standards of right and wrong -- can be supplied by other sources: libertarianism, for example. There's something to that, if you can bring yourself to believe that the gospel of Adam Smith, John Stuart Mill, and Friedrich Hayek could attract a much wider audience than its present, minuscule, market share.

For libertarianism to grow and thrive, it must be planted in fertile ground. As Jennifer Roback Morse wrote in "Marriage and the Limits of Contract,"
[l]ibertarians recognize that a free market needs a culture of law-abidingness, promise-keeping, and respect for contracts. . . . A culture full of people who violate their contracts at every possible opportunity cannot be held together by legal institutions, as the experience of post-communist Russia plainly shows.
Neither the state nor the stateless Utopia of anarcho-capitalist dreams can ensure a moral society, that is, one in which there is law-abidingness, promise-keeping, and respect for contracts. Where, then, do we turn for moral education? To the public schools, whose unionized teachers preach the virtues of moral relativism, big government, income redistribution, and non-judgmentalism (lack of personal repsonsibility)? I hardly think so.

That leaves us with religion, especially religion in the Judeo-Christian tradition. . . .

The weakening of Judeo-Christianity in America is owed to enemies within (established religions trying in vain to be "relevant") and to enemies without (Leftists and nihilistic libertarians who seek every opportunity to denigrate religion). . . .

I believe that incessant attacks on religion have helped to push people -- especially young adults -- away from religion, to the detriment of liberty. It's not surprising that modern liberals tend to be anti-religious, for they disdain the tenets of personal responsibility and liberty that are contained in the last six of the Ten Commandments. It is disheartening, however, when libertarians join the anti-religious chorus. They know not what they do when they join the Left in tearing down a bulwark of civil society, without which liberty cannot prevail.

Humans need no education in aggression and meddling; those come to us naturally. But we do need to learn to take responsibility for our actions and to leave others alone -- and we need to learn those things when we are young. Public schools can't foster that learning, nor can a relative handful of libertarians. Parents can do it, if they have the right background for it; that background is to be found in the Judeo-Christian tradition. Most importantly, children can learn for themselves, if they are raised in the Judeo-Christian tradition. . . .

Rather than join the Left in attacking the Judeo-Christian tradition, libertarians ought to accommodate themselves to it and even encourage its acceptance -- for liberty's sake. There is much to gain and -- given the separation of church and state, which most religionists prefer -- almost nothing to lose.


Guilty Until Proven Innocent

Excerpt of an e-mail from the law firm of McGuireWoods ("No Good Deed Goes Unpunished? Seventh Circuit Rules That No Adverse 'Employment' Action is Necessary to Sustain Title VII Retaliation Claims"):
Executive Secretary, Chrissy Washington worked for the Illinois Department of Revenue on a flexible schedule from 7 a.m. to 3 p.m., instead of the standard 9-5 schedule, allowing her to care for her son with Down Syndrome. When some of her duties were reassigned to others, she filed charges with state and federal agencies alleging race discrimination. Subsequently, a senior manager required that she work from 9 to 5, and when she refused, her position was abolished. Washington was assigned to another Executive Secretary post with a different supervisor and was required to apply anew for a flextime schedule, which was refused. Washington maintained that it was her prior discrimination charge that led supervisors to rescind the flextime schedule on which her son depended. . . .

. . . [The Seventh Circuit Court of Appeals] concluded (with a highly entertaining reference to the comic strip Dilbert) that where an employer retaliates for protected activity by exploiting an employee's known vulnerability, such as Washington's reliance on flextime to care for her disabled son, the action can be a material change sufficient to sustain a retaliation claim under Title VII [of the Civil Rights Act of 1964]. The standard for materiality, the court noted, is whether the employer's action has the "potential" to dissuade an employee (and, by logical extension, other employees) from pursuing her rights under Title VII.

Although this opinion does not reflect a uniform view among the jurisdictions on the ultimate issue, it should serve to alert employers to some of the potential problems that can arise from the implementation of flextime schedules and other employee-friendly initiatives. The court clearly says that once these admittedly optional benefits are in place for an employee, their removal can serve as a basis for retaliation claims.

Lesson 1: A benefit, once bestowed, can become an entitlement.

Lesson 2: An employee who has filed an Equal Employment Opportunity (EEO) claim against an employer may became immune to otherwise defensible business decisions by that employer.

As my HR director used to say whenever a disgruntled employee or former employee filed an EEO claim: "We (the company) are guilty until proven innocent." Because that's how the EEO racket works.

Tuesday, August 23, 2005

What Is the "Living Constitution"?

Dahlia Lithwick of Slate inveighs against opponents of the "Living Constitution" without explaining it. Here's Dahlia:
To hear Tom DeLay and his cronies tell it, the only alternative to the interpretive theory of "Originalism" or "strict construction" is to have judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want. Here's Jonah Goldberg on the allure of a dead Constitution: "A 'living Constitution' denies us our voice in this regard because it basically holds that whatever decisions we make—including the 13th, 14th, and 15th Amendments—can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn't take their oath to uphold and defend the Constitution in good faith because they couldn't know what they were swearing to."

Goldberg goes on to quote Justice Antonin Scalia's dissent in the recent Ten Commandments cases: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority, is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that—thumbs up or thumbs down—as their personal preferences dictate."

And here is Todd Gaziano from the Heritage Foundation: "If judges can essentially do whatever they want in the guise of updating the [C]onstitution … making it real for today or choosing whatever silly phrase you want, then we might as well have a completely unwritten Constitution." . . .

A Nexis search for the words "living Constitution" turns up literally dozens of stories by conservatives bashing the premise into a hopeless pulp. But it's hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why.

Is it because the words "living Constitution," like the words "feminist" or "liberal," have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper—a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?

Scalia is right. But let's hear it directly from the Justice:

Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law. . . .

. . . There is no text in the Constitution that you could reinterpret to create a right to abortion. . . . So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. . . .

What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. . . . [I]n fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Then . . . that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.

What are the arguments usually made in favor of the Living Constitution? . . . The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.

This is . . . an anthropomorphism equivalent to what you hear from your stockbroker, when he tells you that the stock market is resting for an assault on the 11,000 level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things. And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again.

My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility. . . .

Some people are in favor of the Living Constitution because they think it always leads to greater freedom — there’s just nothing to lose, the evolving Constitution will always provide greater and greater freedom, more and more rights. Why would you think that? It’s a two-way street. And indeed, under the aegis of the Living Constitution, some freedoms have been taken away.

Recently, last term, we reversed a 15-year-old decision of the Court, which had held that the Confrontation Clause — which couldn’t be clearer, it says, “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witness against him.” But a Living Constitution Court held that all that was necessary to comply with the Confrontation Clause was that the hearsay evidence which is introduced — hearsay evidence means you can’t cross-examine the person who said it because he’s not in the court — the hearsay evidence has to bear indicia of reliability. I’m happy to say that we reversed it last term with the votes of the two originalists on the Court. And the opinion said that the only indicium of reliability that the Confrontation Clause acknowledges is confrontation. You bring the witness in to testify and to be cross-examined. That’s just one example, there are others, of eliminating liberties.

So, I think another example is the right to jury trial. In a series of cases, the Court had seemingly acknowledged that you didn’t have to have trial by jury of the facts that increase your sentence. You can make the increased sentence a “sentencing factor” — you get 30 years for burglary, but if the burglary is committed with a gun, as a sentencing factor the judge can give you another 10 years. And the judge will decide whether you used a gun. And he will decide it, not beyond a reasonable doubt, but whether it’s more likely than not. Well, we held recently, I’m happy to say, that this violates the right to a trial by jury. The Living Constitution would not have produced that result. The Living Constitution, like the legislatures that enacted these laws would have allowed sentencing factors to be determined by the judge because all the Living Constitution assures you is that what will happen is what the majority wants to happen. And that’s not the purpose of constitutional guarantees.

Well, I’ve talked about some of the false virtues of the Living Constitution, let me tell you what I consider its principle vices are. Surely the greatest — you should always begin with principle — its greatest vice is its illegitimacy. The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts — they try to read the two to comport with each other. If they can’t, it’s judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that’s what Marshall says: It’s judges’ work. . . .

. . . If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury — once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.

Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.

. . . What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So, for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, “We’re not yet ready to say that. Stay tuned, in a few years, the time may come, but we’re not yet ready.” And that was a moderate decision, because I think most people would not want — if we had gone, looked into that and created a national right to assisted suicide, that would have been an immoderate and extremist decision.

[W]here we have arrived — [is] at the point of selecting [judges] to write a constitution, rather than [judges] to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority, and they will be selecting justices who will devise a constitution that the majority wants. And that, of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

Give 'em hell, Nino.

You can't always have all the rights you want; there's nothing "natural" about rights. Sometimes you must fight for the rights you want, which, in this post-Revolutionary era, means -- or should mean -- fighting to have the Constitution amended or fighting to have legislatures adopt constitutional laws. As Justice Scalia says so eloquently, the "Living Constitution" isn't about rights, it's about the ability of the majority to impose its will on the minority, without going to the trouble of amending the Constitution or effecting constitutional legislation.

Monday, August 22, 2005

On a Lighter Note . . .

On learning of the impending 75th anniversary of Blondie, I checked Wikipedia to refresh my memory about comic strips that I read in my youth. Listed below are some of the other strips that began before 1950 and which, once upon a time, I read daily or weekly (links courtesy Don Markstein's Toonpedia):

Abbie and Slats (1937-71) -- A soaper on newsprint.
Alley Oop (1932-) -- A caveman out of his time.
Archie (1947-) -- High-school hijinx.
Brenda Starr (1940-) -- About a reporter who never seemed to report anything.
Bringing Up Father (1913-2000) -- Drank more than the father in Father Knows Best.
Buz Sawyer (1943-89) -- Forgettable adventure stuff.
Dick Tracy (1931-) -- B.O. Plenty was a fitting character for this strip.
Donald Duck (1937-?, as the main character in a comic strip) -- Quacking good fun.
Felix the Cat (1923-66) -- Had a lot more energy than Garfield.
Gasoline Alley (1918-) -- A family saga that just won't stop.
Flash Gordon (1934-) -- Loved Dale Arden's outfits.
The Gumps (1917-59) -- Small town doin's.
Henry (1932-) -- The silent kid.
Joe Palooka (1930-84) -- The great white hope, even before Joe Louis came along.
The Katzenjammer Kids (1897-) -- Shtoopid kid stuff.
Li'l Abner (1934-77) -- Worth it to see Daisy Mae.
Little Annie Rooney (1927-66) -- Gloriosky!
The Little King (1931-75) -- Did he inspire the short king in The Wizard of Id?
Little Iodine (1943-86) -- Dennis the Menace could have taken lessons.
Little Lulu (1935-48, as a comic strip) -- Wanna buy some Kleenex?
Little Orphan Annie (1925-74, by that name) -- Daddy Warbucks to the rescue.
Mandrake the Magician (1934-) -- Who knows what evil . . . no, that was The Shadow.
Mark Trail (1946-) -- No jokes about his girlfriend Cherry.
Mary Worth (1938-) -- The comic-strip soap of all time.
Mickey Mouse (1930-?, as a comic strip) -- Squeaky clean.
Moon Mullins (1923-91) -- Low-life with humor.
Mutt and Jeff (1907-82) -- Clean, corny yuks from a bygone age.
Nancy (1933-) -- Sluggo's girlfriend. I read it for yummy Aunt Fritzi Ritz.
Out Our Way (1922-77) -- Americana, from when America was a "real" place.
Our Boarding House (1921-81) -- Starring the original Hoople (Maj. Amos, that is).
The Phantom (1936-) -- The man in tights . . . oops, The Ghost Who Walks.
Pogo (1949-71) -- High irony for campus radicals.
Popeye (1929-) -- World's greatest spinach salesman.
Prince Valiant (1937-) -- Great haircut Val, still looks good after 68 years.
Rex Morgan, M.D. (1948-) -- Finally married his nurse when they were about 80 years old.
Sad Sack (1946-5?) -- Beetle Bailey's older brother.
Smilin' Jack (1933-73) -- ADDED 11/22/07, after suddenly recalling the character Fatstuff,
Jack's Hawaiian friend who was always popping his shirt buttons (usually into the mouths of hungry chickens, so under-nourished from eating buttons instead of bugs that they were unable to grow feathers)....
Smokey Stover (1935-73) -- Notary Sojac and Gravy Ain't Wavy. (You had to be there.)
Snuffy Smith (1934-) -- Got rid of his host Barney Google. Who's next, his nephew Jughead?
Steve Canyon (1947-88) -- How can a guy go wrong with Happy Easter for a sidekick?
Terry and the Pirates (1934-73) -- Dig the Dragon Lady.
They'll Do It Every Time (1929-) -- Wisdom in one panel.
Winnie Winkle (1920-98) -- Early and long-running soaper, with a seriously pre-PC character: Denny Dimwit.

See, I was paying attention. But I must admit that I no longer read any of the strips that are still running.

Where are Superman, Batman, and their ilk? They were only in comic books. That's another post.

Foxhole Rats, Redux

In "Shall We All Hang Separately?" I observed that
those Americans who wish "to provide for the common defence" are forced to share a foxhole with those post-patriots who wish to undermine "the common defence."
I was referring to the "post-patriots" on the American Left who openly side with the so-called insurgents in Iraq. In"Foxhole Rats" I said a bit about the not-quite-enemy in our midst. Now, from Wizbang, I offer you this:

Did you know that back in June of this year a "world tribunal" was held to put the United States and its allies in Iraq on trial for their actions in that country? . . .

You know what one of their findings were? That the terrorist insurgency in Iraq was and is justified in its murder of Iraqi civilians and coalition troops.

It was finding number eleven in the tribunal's "overview of findings:"

11. There is widespread opposition to the occupation. Political, social, and civil resistance through peaceful means is subjected to repression by the occupying forces. It is the occupation and its brutality that has provoked a strong armed resistance and certain acts of desperation. By the principles embodied in the UN Charter and in international law, the popular national resistance to the occupation is legitimate and justified. It deserves the support of people everywhere who care for justice and freedom.

. . . .

And guess who was behind this tribunal and these findings? More than a few prominent U.S. anti-war groups, among them:

The Campus Anti-War Network

Code Pink (A group with close ties to Congressional Democrats and Cindy Sheehan)

International A.N.S.W.E.R. (Who's founder is one of Saddam's lawyers)

And a host of others.

These people are actively supporting the enemy, not to mention terrorism. These people are also behind most of the anti-war rallies and protests we hear about in the media. They are the loudest voices in the anti-war movement. Collectively, they garner more attention to the anti-war cause than anyone else.

And, collectively, they are on the other side.

As I wrote in "Foxhole Rats," I'm not equating dissent with disloyalty but I am

equating decades of anti-defense, anti-war, and sometimes pro-enemy rhetoric with a willingness to abandon the common defense.
As the author of the Wizbang post says, in closing:

Reasoned opposition to America's foreign policies decision with regard to the middle east are one thing, but openly supporting the enemy is quite another. And that is, without equivocation, what these people are doing.

Related posts:

Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study) (05/18/04)
The Illogic of Knee-Jerk Privacy Adocates (10/06/04)
Treasonous Blogging? (03/05/05)
Absolutism (03/25/05)
Shall We All Hang Separately? (08/13/05)
Foxhole Rats (08/14/05)
Treasonous Speech? (08/18/05)

Friday, August 19, 2005

Words of Caution for Scientific Dogmatists

Remember the aether? Remember phlogiston? There may be more:

Einsten's general relativity theory superseded Newton's because Newton's was less complete. It now seems that Einstein's theory may need some work.

There may be something to Lamarck's pre-Darwinian theory of evolution.

Global warming probably isn't unique to our time.

I admire science, and scientists who practice science. But I don't admire scientists who adhere to certain dogmas because they are predisposed to those dogmas, or because they neatly fit a preferred worldview.

Judge Roberts and Women

Oh, the hue and cry about Judge John Roberts's writings of 20-plus years ago. In one instance,
he said that a controversial legal theory then in vogue -- of directing employers to pay women the same as men for jobs of "comparable worth" -- was "staggeringly pernicious" and "anti-capitalist."
Well, he was right then, and he would be just as right today if he were to say the same thing. There is no such thing as "comparable worth," a doctrine that would substitute someone's subjective judgment about the "value" of work for the objective judgment of the market about the value of work.

In another instance,
Linda Chavez, then the White House's director of public liaison . . . had proposed entering her deputy, Linda Arey, in a contest sponsored by the Clairol shampoo company to honor women who had changed their lives after age 30. Arey had been a schoolteacher who decided to change careers and went to law school.

In a July 31, 1985, memo, Roberts noted that, as an assistant dean at the University of Richmond law school before she joined the Reagan administration, Arey had "encouraged many former homemakers to enter law school and become lawyers." Roberts said in his memo that he saw no legal objection to her taking part in the Clairol contest. Then he added a personal aside: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide."

That's certainly not dogmatic opposition to the idea of married woment working outside the home, though the likes of Ted Kennedy and NOW (strange bedfellows, indeed) will portray it in that light.

Politically incorrect as it may be to say that encouraging homemakers to work outside the home may not be for the common good, there is reason to think that Roberts was right when he said as much. As I wrote here:
Because estimates of GDP don't capture the value of child-rearing and other aspects of "household production" by stay-at-home mothers, the best way to put 1900 and 2000 on the same footing is to estimate GDP for 2000 at the labor-force participation rates of 1900. The picture then looks quite different: real GDP per capita of $4,300 in 1900, real GDP per capita of $25,300 in 2000 (a reduction of 28 percent), and an annualized growth rate of 1.8 percent, rather than 2.1 percent.

The adjusted rate of growth in GDP per capita still overstates the expansion of prosperity in the twentieth century because it includes government spending, which is demonstrably counterproductive. A further adjustment for the cost of government -- which grew at an annualized rate of 7.5 [percent] during the century (excluding social transfer payments) -- yields these estimates: real GDP per capita of $3,900 in 1900, real GDP per capita of $19,800 in 2000, . . . an annualized growth rate of 1.6 percent. (In Part V of "Practical Libertarianism for Americans," I will [did] estimate how much greater growth we would have enjoyed in the absence of government intervention.)

The twentieth century was a time of great material progress. And we know that there would have been significantly greater progress had the hand of government not been laid so heavily on the economy. But what we don't know is the immeasurable price we have paid -- and will pay -- for the exodus of mothers from the home. We can only name that price: greater incivility, mistrust, fear, property loss, injury, and death.

Most "liberal" programs have unintended negative consequences. The "liberal" effort to encourage mothers to work outside the home has vastly negative consequences. Unintended? Perhaps. But I doubt that many "liberals" would change their agenda, even if they were confronted with the consequences.
Should women be free to work outside the home? Absolutely. They must judge what's best for themselves, in light of their obligations as parents -- if they have such obligations.

Should government be in the business of encouraging women to work outside the home -- perhaps even encouraging the breakup of families -- by spending taxpayer dollars for that purpose? Absolutely not, because such encouragement is a form of paternalism that pushes people in the direction of making decisions that they wouldn't otherwise make -- in this case, decisions that undermine the kind of civil society that makes liberty possible. As Jennifer Roback Morse wrote,
[t]he libertarian approach to caring for the dependent is usually described in terse form as “let families and private charity take care of it, and get the government out of the way.” This position is sometimes ridiculed as unrealistic or attacked as harsh. But the libertarian position, once fully fleshed out, is both humane and realistic.

The libertarian preference for nongovernmental provision of care for dependents is based upon the realization that people take better care of those they know and love than of complete strangers. It is no secret that people take better care of their own stuff than of other people’s. Economists conclude that private property will produce better results than collectivization schemes. But a libertarian preference for stable married-couple families is built upon more than a simple analogy with private property. The ordinary rhythm of the family creates a cycle of dependence and independence that any sensible social order ought to harness rather than resist. . . .

But for this minimal government approach to work, there has to be a family in the first place. The family must sustain itself over the course of the life cycle of its members. If too many members spin off into complete isolation, if too many members are unwilling to cooperate with others, the family will not be able to support itself. A woman trying to raise children without their father is unlikely to contribute much to the care of her parents. In fact, unmarried parents are more likely to need help from their parents than to provide it.

In contrast to the libertarian approach, “progressives” view government provision of social services as the first resort, not the last. Describing marriage as a “privatization scheme” implies that the most desirable way to care for the dependent is for the state to provide care. An appreciation of voluntary cooperation between men and women, young and old, weak and strong, so natural to libertarians and economists, is completely absent from this statist worldview. . . .

Marriage is the socially preferred institution for sexual activity and childrearing in every known human society. The modern claim that there need not be and should not be any social or legal preference among sexual or childrearing contexts is, by definition, the abolition of marriage as an institution. This will be a disaster for the cause of limited government. Disputes that could be settled by custom will have to be settled in court. Support that could be provided by a stable family must be provided by taxpayers. Standards of good conduct that could be enforced informally must be enforced by law.
There I go again, questioning liberal (and sometimes libertarian) orthodoxy.

Related posts:

I Missed This One (08/12/04)
A Century of Progress? (01/30/05)
Feminist Balderdash (02/19/05)
Libertarianism, Marriage, and the True Meaning of Family Values (04/06/05)

Thursday, August 18, 2005

Treasonous Speech?

Eugene Volokh considers treason and speech. He offers several candidate First Amendment rules:
  1. Speech is unprotected whenever the speaker knows that it's likely to aid the enemy. . . .

  2. Speech is unprotected whenever the speaker has the purpose of aiding the enemy. . . .

  3. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is paid for such speech. . . .

  4. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is coordinating his speech with the enemy. . . .

  5. Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually employed by the enemy. My friend and fellow lawprof Tom Bell takes this view.

  6. Speech is protected regardless of the speaker's purpose of aiding the enemy or coordination with the enemy. . . .
I addressed Bell's view (Volokh's option 5) several months ago:
If it's treason, it's treason. An unpaid traitor can do just as much harm to the nation as can a paid traitor.

It would be better to do away with the law of treasonous expression altogether than to draw an arbitrary line between paid and unpaid traitors. If a person's treachery goes no further than expressions of hatred for America or sympathy with America's enemies, let that person suffer the consequences in the forum of public opinion.
I prefer Volokh's option 2, an option that Volokh doesn't like because
prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime.
I suppose. But presumably an intention to aid the enemy would have to be proven in a court of law. I doubt very much that an unsubstantiated intention would survive an appeal. Why not give it a try and see how the Supreme Court rules on the issue -- as surely it would be asked to do.

Just to be clear about it, I'm not suggesting charges of treason against those who sympathize with the enemy. The friend of our enemy is not our friend, but neither is he or she necessarily our enemy. Just don't turn your back.

Related posts:

Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study) (05/18/04)
The Illogic of Knee-Jerk Privacy Adocates (10/06/04)
Treasonous Blogging? (03/05/05)
Absolutism (03/25/05)
Shall We All Hang Separately? (08/13/05)
Foxhole Rats (08/14/05)

Silent Killer

The Food and Drug Administration.

Tuesday, August 16, 2005

Another Thought about Libertarian Paternalism

Every individual possesses a complex and unique, but ever-changing, set of tastes and preferences. The individual seeks to strike a balance among those tastes and preferences in a way that, very roughly, maximizes personal satisfaction (utility). The outcome of the balancing act depends on:
  • ability to acquire and evaluate information
  • cost of making and changing decisions
  • constraints of income and wealth (anticipated as well as current)
  • binding commitments from the past that may limit freedom of action (or which may be changed or abrogated at some psychic or pecuniary cost)
  • laws and social norms that may do the same (or which we may choose to flout, at some cost)
Paternalists -- "libertarian" or otherwise -- who claim that they want to improve the lot of their fellow humans, choose to do so in a peculiar way. They seek to further constrain personal choice through the adoption of policies that ignore the complex and evolving tastes and preferences of individuals. Those policies focus, instead, on a particular desideratum, such as wealth-maximization or the "well being" that arises from enjoying certain benefits (e.g., 6 weeks of vacation or "free" child care).

I understand why individuals who are deluded by the allure of a "free lunch" (e.g., a mandatory 6-week vacation) will demand paternalistic schemes. But I am here to tell you the following:
Do not presume to know what makes me happy. Do not seek to impose on me your scheme for maximizing my wealth or well-being. You don't know and can never know what makes me tick. When I was 22 I wasn't interested in accumulating wealth, I was interested in paying my bills. When I turned 24 I became interested in accumulating wealth, but I didn't pursue it vigorously until I turned 38. In the meantime, I wasted some wealth in the pursuit of a dream; out of that pursuit came a lesson in how to run a business. But if I had wanted to convert that lesson into wealth maximization, I wouldn't have chosen to return to the quasi-public sector and, eventually, to retire early. And if I had been forced to take six weeks' vacation a year, I couldn't have retired early.
I'm unique only in that my particular story is unique. We are all unique. None of us deserves paternalism -- "libertarian" or otherwise.

Related posts:

The Rationality Fallacy
Socialist Calculation and the Turing Test (02/12/05)
Libertarian Paternalism (04/24/05)
A Libertarian Paternalist's Dream World (05/23/05)
The Short Answer to Libertarian Paternalism (06/24/05)
Second-Guessing, Paternalism, Parentalism, and Choice (07/13/05)

The Problem with the News Biz

Here it is, in the words of a so-called journalist:
"That's my job. I'm a newsman. That's what I try to do, is make news. And you try to avoid news. That's your job."

CNN anchor Wolf Blitzer, to former president Bill Clinton. Clinton said Blitzer tried to get him to make news by saying the Iraq war was a mistake.
Well, at least he admits that he wants to "make news" rather (pun) than simply report news. Perhaps now he can begin the twelve-step program for recovering scandalmongers:
Step 1 -- Admit to your liberal bias.

Steps 2-11 -- Repeat Step 1 until you've convinced yourself that you really have a liberal bias.

Step 12 -- Get an honest job.

Recent Reading


Garbo Laughs, by Elizabeth Hay
Hay's second novel is not at all like her first (A Student of Weather), except that it, too, is beautifully written and thoroughly engaging.
The Hot Kid, by Elmore Leonard
Leonard changes his venue (from Detroit and Miami to Oklahoma) and his period (from the present to the 1920s and 1930s), but it's the same old Elmore. That is to say, a ripping good read.
Lunch at the Picadilly, by Clyde Edgerton
The "dark side" of Clyde. A rather more realistic view of old people than than one gets in Edgerton's earlier novels (as I remember them).
Case Histories, by Kate Atkinson
A funny, sad tale of interlocking mysteries, with a semi-hapless hero and a great supporting cast. Brits do it best.
Amsterdam, by Ian McEwan
Inferior to McEwan's Atonement, but "inferior" is a relative thing. McEwan is such a good writer that I can still recommend this short romp through London's music and journalistic scenes.
A Desert in Bohemia, by Jill Paton Walsh
A novel of ideas, which also features compelling characters and dramatic tension. Along the way, Walsh -- who may be an idealistic socialist, for all I know -- lays bare the hypocrisy and brutality of state socialism as it was practiced behind the Iron Curtain. Yet another brilliant Brit.
What Was She Thinking? (Notes on a Scandal), by Zoe Heller
A creepy, clinging narrator and a self-centered protagonist. A match made in a sadist's heaven. More brilliant Brit prose.

Monday, August 15, 2005

A Non-Paradox for Libertarians

In "A Paradox for Libertarians" I said:
Some aspects of liberty must be circumscribed in order to preserve most aspects of liberty.
That statement pertains to such matters as freedom of speech (which can't be absolute if society is to defend itself effectively) and the apparent (but debatable) necessity of taxation to defray the cost of defending liberty.

Glen Whitman, writing at Agoraphilia, raises a parallel issue, which I'll state after quoting Whitman.
[T]ake Alex [Tabarrok]’s hypothetical, posed to him (and Robin Hanson) by a philosopher:
Suppose that you had a million children and you could give each of them a better life but only if one of them had a very, very terrible life. Would you do it?
Alex and Robin, both economists, said “yes” without hesitation. But to the philosopher who posed the question, the intuitively correct answer was clearly “no.” Who’s right? Alex suggests that we should simply overcome our gut intuitions and think logically here, and the logical answer is to favor the greatest good. Will [Wilkinson of The Fly Bottle] and Carina [Cilluffo of An Inclination to Criticize] both correctly reply that Alex, too, is relying on intuition – the utilitarian intuition that we can (in some rough-and-ready way) compare satisfaction across persons. So we can never fully escape the appeal to intuition.

But does that observation dispose of the matter? Can we just pick out our favorite intuition and run with it? Alex is still right that our intuitions are inconsistent. One intuition tells us that individuals have personal claims that should never be violated. Fine. But another intuition tells us it’s absurd to impose monstrous losses for miniscule gains. The lifeboat situation is a classic example of where this alternative intuition kicks in. . . .

Moreover, it turns out the intuition that answers “no” to Alex’s hypothetical is highly dependent on the frame of reference. . . .

. . . Take Alex’s original hypothetical, but add in some extra context:
The million children who stand to gain are the starving and oppressed people of an African nation. The one child who stands to lose is the son of the local tyrant.
Feel free to modify the context to explain why the tyrant’s son’s life will suck after his dad is dethroned. With the context filled in, I suspect most who said “no” before will say “yes” now. Why? Because we no longer think the status quo creates any rightful claims to its continuation. . . .
The parallel issue raised by Whitman is this: What if a society's transition from a regulatory-welfare regime to a regime of liberty were to result in losers as well as winners? How could one then justify such a transition? Must the justification rest on an intuitive judgment about the superiority of liberty? Might the prospect of creating losers somehow nullify the promse of creating winners?

I argue here that my justification for libertarianism -- although it is of the consequentialist-utilitarian variety -- rests on a stronger foundation than an intuitive judgment about the superiority of liberty. As I wrote in Part III of "Practical Libertarianism":
The virtue of libertarianism, as I will discuss in Parts IV and V [and its addendum], is not that it must be taken on faith but that, in practice, it yields superior consequences. Superior consequences for whom, you may ask. And I will answer: for all but those who don't wish to play by the rules of libertarianism; that is, for all but predators and parasites.
By predators, I mean those who would take liberty from others, either directly (e.g., through murder and theft) or through the coercive power of the state (e.g., through smoking bans and licensing laws). By parasites, I mean those who seek to advance their self-interest through the coercive power of the state rather than through their own efforts (e.g., through corporate welfare and regulatory protection). There is, of course, a lot of collusion between predators and parasites. (See Bruce Yandle's "Bootleggers and Baptists - The Education of a Regulatory Economist.")

To borrow from Glen Whitman, why should we favor the status quo in order to give privileged status to predators and parasites? I dismiss them out of hand.

The only potential losers worth thinking about are those seemingly honest, hard-working individuals who might be made worse off by a transition to liberty. But who are those individuals? They are the unwitting predators and parasites who do not actively seek privilege but who nevertheless enjoy it as "free riders" on welfare programs, compulsory unionism, minimum-wage and "living wage" laws, reverse discrimination, special tax exemptions and deductions, tariff protection, and on and on. I dismiss them out of hand because, unwitting as they may be, they are predators and parasites who take from others. (I do not dismiss them out of hand as human beings. I dismiss out of hand any claim that they are privileged by the status quo, which is the product of overt predators and parasites.)

What about those individuals who are neither predators nor parasites but who might be worse off in a state of liberty, in spite of their diligent efforts not to be worse off? I submit that there could be no such individuals because anyone who isn't a predator or parasite must, perforce, be a victim of predators and parasites.

A transition to liberty, as it turns out would benefit almost eveyone, including most predators and parasites. I say that because the likely gains from liberty are so great. First, as I said in Part IV of "Practical Libertarianism,"
think of yourself as a business. You are good at producing certain things -- as a family member, friend, co-worker, employee, or employer -- and you know how to go about producing those things. What you don't know, you can learn through education, experience, and the voluntary counsel of family, friends, co-workers, and employers. But you are unique -- no one but you knows your economic and social preferences. If you are left to your own devices you will make the best decisions about how to run the "business" of getting on with your life. When everyone is similarly empowered, a not-so-miraculous thing happens: As each person gets on with the "business" of his or her own of life, each person tends to make choices that others find congenial. As you reward others with what you produce for them, economically and socially, they reward you in return. If they reward you insufficiently, you can give your "business" to those who will reward you more handsomely. But when government meddles in your affairs -- except to protect you from actual harm -- it damages the network of voluntary associations upon which you depend in order to run your "business" most beneficially to yourself and others. The state can protect your ability to run the "business" of your life, but once you let it tell you how to run your life, you compromise your ability to make choices that are right for you.
In sum, when people are deprived of incentives through taxation, regulation, and welfare, they are less able and willing to strive for themselves. And it is self-striving that leads people to do things that are valued by others. Regulation and welfare impose costs where there otherwise would be no costs, and distort the free-market signals that tell people how they can do better for themselves by doing better for others.

Now, I suppose there are some persons who couldn't handle liberty and who would want their lives shaped by others. If that's the way they want to live, fine, just don't use the state to impose restrictions on the way the rest of us run our lives. There's no reason, in a state of liberty, that those who crave direction could not buy it from others. Given the economic gains from liberty (which I'm about to summarize), there would be a booming market in personal agents of various kinds, not to mention vastly improved information sources and decision tools for the rest of us.

In addition to the nonquantifiable psychic benefits of running one's own life, there are quantifiable economic benefits. Here's the bottom line, drawn from Part V and the addendum to Part V of "Practical Libertarianism":
  • In 2004, real GDP (in year 2000 dollars) was about $10.7 trillion.
  • If government had grown no more meddlesome after 1906, real GDP might have been $18.7 trillion.
  • That is, real GDP per American would have been about $63,000 (in year 2000 dollars) instead of $36,000.
  • That's a loss to the average American of more than 40 percent of the income that he or she might have enjoyed, absent the growth of the regulatory-welfare state in the past 100 years.
  • That loss is in addition to the 40-50 percent of current output which government drains from the productive sectors of the economy.
I submit that only predators and inveterate parasites could possibly be worse off were per capita GDP to rise by 75 percent (the increase from $36,000 to $63,000), and were government to exact a toll of only 10 percent (instead of 40-50 percent) on those who produce. Most of the poor would be rich, by today's standards. And those who remain relatively poor or otherwise incapable of meeting their own needs -- because of age, infirmity, and so on -- would reap voluntary charity from their affluent compatriots. There's a bit of a judgment call in that last statement, but just a bit.

To put it another way, a transition to liberty might not instantly make everyone better off economically, but everyone could be better off. That's simply not the case with the regulatory-welfare state, which robs some for the benefit of others, and ends up making almost everyone poorer than they would be in a state of liberty.

Liberty is a win-win proposition for everyone except those who deserve to lose.