Separation of Marriage and State
Michael Kinsley says, in characteristically eloquent fashion, what libertarians like David Boaz have been saying for years.
Wednesday, July 02, 2003
Don’t Call Me Baby
I’m baffled by the opposition of some libertarians, most notably Radley Balko, to the national Don’t Call Registry.
Libertarianism does not mean opposition to any and all forms of government regulation. It means opposition to regulations that do not serve a relatively narrow set of goals, usually defined to include the protection of property rights. As Julian correctly observes, the Don’t Call Registry is the telecom equivalent of a “no trespassing” or “no soliciting” sign on your front lawn. Notice that the law in question does not issue a blanket prohibition of all phone solicitation, only solicitation of people who have specifically asked not to be solicited. The “no soliciting” sign analogy could not be more apropos.
But Radley takes a federalist position, arguing that even if such regulations are justified, they are not within the proper purview of the federal government. Again, Julian anticipates me, by noting that the much-abused Commerce Clause seems to apply pretty directly here: “The Congress shall have the power … to regulate commerce … among the several states.” It is true, as Radley indicates, that the Commerce Clause has been grossly abused. But the primary abuse has been justified by allowing federal regulation not just of the commerce itself, but of anything that might by any stretch of the imagination or tenuous chain of causality even *affect* interstate commerce. (This allowed the federal government to desegregate Ollie’s barbecue, a restaurant in Alabama, on the risible grounds that Ollie’s purchased ketchup and other food products from out of state.)
Radley would limit the Commerce Clause to an “original intent” notion, under which the clause could only be used to facilitate rather than impede commerce. I’m not convinced that was the only intent of the founders, but I won’t try to get in their heads. Instead, I’ll rely on the plain meaning of the text buttressed by the following point: Radley’s interpretation would mean that some forms of property rights could not be enforced by *any* level of government except by the mutual agreement of the states. For instance, no form of trespass that crossed state lines – such as the dumping of garbage into a waterway that deposits the refuse on the property of owners in another state – could be prosecuted, unless the state in which the polluters lived agreed to allow such prosecution. (And maybe not even then, since an agreement between states to “restrain commerce” might also run afoul of Radley’s interpretation.)
Now apply this to the case of telemarketers. While some states (like California) have implemented state-level do-not-call lists, they cannot enforce those lists on other states. The same problem, incidentally, applies to self-enforcement through the use of caller-ID: most of the telemarketers who call me do so from outside the identification area, typically from another state. And as one commenter astutely observed in Radley’s comments box, if one state – say, Mississippi – decided to position itself as the “Telemarketer State,” there’s not much the rest of us could do. This is unquestionably a matter of interstate commerce, well within the language of the Commerce Clause.
Some opponents of the registry (read the comments sections on Radley’s and Julian’s posts) seem to think the correct libertarian response to telemarketers is to rely on class-action lawsuits. But why? It’s true that common law is often a superior institution to legislation, but not always, and there is nothing in the libertarian credo that says property rights can only be enforced one way. Some entitlements are enforced via property rules – that is, direct prohibitions of any violation. Examples include the laws against murder, rape, and auto theft. Other entitlements are enforced via liability rules – that is, forced compensation of the owners for damage caused by the violators. Examples include medical malpractice and auto collisions. I don’t think either enforcement mechanism is inherently better or more libertarian than the other; which is better depends on the type of violation we’re talking about. But if I were forced to choose which enforcement approach was more libertarian, I would have to go with property rules, because such rules don’t put someone other than the property owner (bureaucrats or judges or juries) in the position of deciding the dollar value of the entitlement after the fact. Instead, property rules give entitlement owners the ability to prevent any unapproved entry, and thus to set their own prices for allowing invasions. And notably, the Do-Not-Call registry creates a property rule instead of a liability rule.
There might be some good economic reasons for thinking a liability rule would be the preferred (i.e., more efficient) regime in the case of telemarketers, but none of the libertarian opponents of the law have (to my knowledge) made such an argument yet. As an opening salvo, I’d point out that class-action lawsuits are incredibly slow, expensive, and burdensome on the courts. Still, I’m open to considering the possibility that the Do-Not-Call Registry is not the very best solution to the telemarketer problem. But if your position is that the registry is somehow anti-freedom and un-libertarian at its core, I’m just not buying.
Segregated Education, 21st Century Style
Number of Historically Black Colleges and Universities in America: 103
Number of Women's Colleges in America: 80
Number of Men's Colleges in America: 3
Two questions spring to mind: (1) Is the dearth of Men's Colleges due solely to a lack of demand? (2) Is it appropriate for the federal government to support single-race institutions in this day and age?
Tuesday, July 01, 2003
Neither Economics Nor Astrology
Readers who would be interested in a short, sharply critical introduction to the thinking of uber-Communitarian Amitai Etzioni can go here.
Economics and Astrology?
One thing I find interesting about the blog world is the way people talk about the field of economics. This is a recent blog by Amitai Etzioni:
There has never been another science quite like economics, other than maybe astrology. In no other science could one get away with the kinds of statements that economists make on a dialy basis. For instance, following the announcement of the new tax cut, economists said it would lead to increased stock prices, in turn, making people feel richer, which would then prompt them to buy more goods, thus, giving a boost to the economy. This is all based on "common sense," but they haven't shown us a shred of evidence. Nothing along the lines of "the last four times taxes were cut (by an average of ___), stock prices rose by ___, and purchasing increased by ___. In effect, the data on the so-called "wealth effect" is very mixed. Sometimes people feel flush, sometimes they don't.Now, Etzioni is a serious advocate of a serious political position - although one I disagree with. What I find fascinating is that he is willing to dismiss economists and economics using arguments that not even he would take seriously.
THE SAME HOLDS TRUE FOR NUMEROUS OTHER STATEMENTS BY ECONOMISTS. Even a simple statement such as "when prices go up, people buy less" is not based on hard evidence. Indeed, if people see signs of coming inflation in price increases, they will buy more. Moreover, there are some goods, i.e. "luxury goods," such as premium vodka that people buy more of as they become more costly. A serious and honest science would take it from here: Under what conditions the hypothesis holds, and under what conditions it does not. But, that requires empirical research rather than pontificating and mathematical masturbation.
I agree that the “quote” he gave about tax cuts probably isn't right, but so what? In an issue as partisan as this, I imagine that every conceivable reason for and against tax cuts has been made by someone. Picking one, probably politically driven, statement as a measure of economics as a discipline is just not being serious. As to the rest of his comments: (a) There is a lot of empirical work about demand, (b) of course intertemporal decisions are taken into account, and (c) the phenomena of luxury goods is understood (although hardly a major topic). This is all stuff people know about.
My point is not about getting a specific argument wrong – if that were it I suppose I could write him and provide an economist’s take on the issue. What makes this interesting for me is that I think it illustrates a certain blog phenomena: blogs are the written equivalent of casual conversation. And in casual conversations, what you truly think slips out when you are not paying attention. A number of people seem to have no idea what economics actually says yet are quite comfortable in dismissing it anyway. While they would never say these things “in print”, we get a glimpse into their thought processes when they blog.
Monday, June 30, 2003
The Old College Try
Okay, I’ll take up Mike’s challenge: I’m willing to say the Electoral College is more justifiable than affirmative action.
First, let’s observe the different character of the rights or interests in involved. The Electoral College is a set of rules governing the translation of individual votes into electoral outcomes, much like the rules of suffrage (citizens can vote, while recent immigrants generally can’t), rules determining how many votes are enough to count (first-past-the-post versus proportional representation), and the rules determining how much strength of preferences will be taken into account (plurality winner, instant run-off, Borda count, etc.). They are *procedural* rules.
Now, I don’t mean to diminish the importance of procedural rules, but we should always keep in mind that they are *utilitarian* devices for the operation of a government. No one has a fundamental human right to participate in the governing of other human beings. “Democracy” is an ideal that classical liberals, at least, have always recognized as subordinate to more important ideals like liberty and human welfare; we support democratic regimes because we believe they are more likely to yield good results in terms of more basic ideals, not because democracy is inherently valuable. And that is why we can sometimes change the rules of democracy, such as by limiting the franchise, imposing term limits, constitutionally barring certain kinds of action favored by the majority, and so on. There is no Platonic form of democracy to which all real democracies must try to adhere.
Affirmative action, on the other hand, is not simply a matter of the procedural rules used for the election of a government; it is about the substantive policy choices made by that government with respect to individuals. Will that government be allowed to discriminate against individuals on the basis of skin color, or will it instead be bound to treat individuals equally?
Second, let’s recall the historical origin of the Electoral College. The justification of the EC was the same as the justification of the Senate, in which seats are apportioned at two per state instead of by population (and note that all of Mike’s arguments below could be applied with equal or greater force to the Senate). The federal government was not intended to be a direct representative of the people, but instead a representative of the individual States, which were the direct representatives of separate groups of people. In other words, the EC is just one more aspect of our federalist system of government.
It is true, of course, that the U.S. government is no longer so federalist as it once was, in large part because of the 14th and 17th Amendments. Some people would be willing to do away with federalism entirely, which is at least a consistent position, albeit one I disagree with. But it’s misleading to think of the Electoral College outside that context. I won’t attempt a general justification of federalism here, but I will offer an instructive analogy. Suppose that Canada and the United States concluded a new free-trade treaty, which created a new bi-national committee with the job of resolving disputes about the terms of the treaty. Now, if seats on the committee were apportioned by population, the U.S. would clearly dominate the committee and control all its decisions. And given that fact, Canada would probably reject the treaty creating such a committee – or else demand, as a condition of approving the treaty, an amendment granting Canada equal representation on the committee despite its smaller population. This, I think most would agree, would be a perfectly justifiable exercise of the Canadian government’s obligation to protect its own people’s interests. Well, a similar argument applies to the federalist structure of government within the U.S.: federalist rules are meant to create room for individual States to defend the interests (and rights!) of their citizens, even if they are vastly outnumbered by the citizens of California and New York.
Now try to apply the same argument to affirmative action. To make it work, we must imagine that the nation is actually a federation of races, who have reached a kind of contract to live together. Each race might demand certain concessions in order to conclude the contract, such as side payments and guaranteed seats in the legislature. Now, it might be argued that geographical boundaries are at least as arbitrary as race, so maybe this notion isn’t so far-fetched. And in fact, I understand that Lebanon had a system very much like this for many years. But that is not what happened historically in the U.S., and I think we should be happy about that. There are justifications for local government that don’t apply to race. First, geographic boundaries are clear, whereas the lines between races are fuzzy. Second, you can potentially change where you live, but (Michael Jackson notwithstanding) it’s pretty much impossible to change your race. Third, local governments have better incentives to be responsive to their constituents than do national governments; I don’t think the same incentive argument applies to races relative to the human race as a whole, not least because there is no such thing as race government (the self-appointment of Jesse Jackson, Al Sharpton, and their ilk notwithstanding). Fourth, the very arbitrariness of geographic boundaries can be helpful in fighting off the pernicious notion that some groups are people are better, or more in need of special assistance, than others (the occasional joke about inbred Arkansans notwithstanding). Our understanding that New Yorkers are not fundamentally better than Oklahomans forces us to recognize the instrumental character of federalist rules that seem to treat them differently.
In short, I think treating the Electoral College the same as affirmative action misses out on the specific political goal of that institution: to resist centralized government. Perhaps it doesn’t work terribly well in achieving that goal, but at the very least we should recognize the interest in constraining government as a compelling one. If we condemn the EC (and the Senate!) for failing to represent all individuals equally, perhaps we should also consider granting China votes in the United Nations proportional to its share of the world population.
Logic as Bludgeon, Pillory, or Household Chemical
Despite our transparent pretense about “searching for truth,” we often use logic in political arguments to force our opponents to say things against their will. Read a Socratic dialogue some time—Gorgias is a good one—and you can watch the master himself forcing reluctant and truculent people into rethinking their most basic assumptions by showing them how what they take for granted might lead to conclusions that they abhor. (Plato’s Socrates also abuses this power and his interlocutors often concede points that are highly dubious, but this is an investigation for another post.)
The misapplication of logic commonly manifests itself in the assertion that there must some sort of consistency between one’s position on the death penalty and on abortion. (E.g., the accusation is often erroneously leveled that one who is “pro-life” cannot also be in favor of capital punishment. In what seems to be a race to see who can abuse logic most brutally, it is often counter-charged that those who support the right to an abortion but oppose the death penalty prefer murderers to children.)
But logic can also be a powerful solvent for obscuring epiphenomena, a sort of acid that burns through the sticky patina of arguments informed by self-interest and circumstance, thereby revealing interesting, insightful, counter-intuitive conclusions. Here’s one: it seems to me that no one can be consistent who opposes affirmative action but favors the Electoral College, or vice versa. Affirmative Action, as we have all heard this week, is accused of being a system in which the rules are rigged so that fair competition is subverted for the considerations of a favored class of people. By parallel, the Electoral College is accused of subverting the will of the majority for the interests of a favored class of people in rural, mostly empty states.
Reasoning by analogy, consistency requires a uniform response to both. So it seems to me that the liberal who is in favor of affirmative action but opposed to the Electoral College is treading on thin ice. Ditto for the conservative who decries Affirmative Action but thinks that the Electoral College is swell. In each case the overarching (or is it underlying?) logic of the rules of the game is subject to a glaring exception that, in many but not all cases, changes the outcome.
Now, conservatives might say that the Electoral College is in the Constitution and has the virtue of being an old habit where Affirmative Action doesn’t. And liberals might say that Affirmative Action rectifies a past injustice and improves our society, where the Electoral College doesn’t.
Whatever. I maintain that those arguments are secondary to the fundamental structure of these two institutions. Non-ideologues should seek to align their views on these two seemingly unrelated topics.
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