A hypothetical Bizarro Institute for Justice

I’ve long been a fan of the Institute for Justice, a libertarian law organization that fights eminent domain, occupational licensing, and other economically unjust government actions. These types of governmental intrusions into the market overwhelmingly harm the poor and powerless. It’s a shame that there’s still so much work for IJ to do and that it’s not common knowledge that a powerful government is the greatest weapon of powerful interests.

However, I wonder to what degree the US legal system can really be saved by poking around the edges. For example, the Commerce Clause is already stretched far beyond its original purpose, and its new interpretation is validated by Supreme Court decision, such that I can hardly see the possibility of successfully scaling it back in my lifetime. I don’t deny that what the IJ does is the morally right thing to do, or that it helps people. I wonder how much attention should be devoted to resisting the tide of government centralization.

This may seem a little ridiculous, and I admit that it is, but what if there were some parallel organization devoted to taking on the worst, most hopeless cases for the express purpose of forcing the courts to lock in the most authoritarian interpretations of federal power? Here’s an example that happened even without this kind of organization:

The Supreme Court has rejected an appeal over a federal law banning felons from having bulletproof vests or body armor.

The 7-2 decision on Monday not to intervene was a reaffirmation of congressional authority over a wide range of commerce.

By refusing to accept the case for review, the justices let stand the conviction of Cedrick Alderman, a Washington state man who was stopped by police in 2005 on suspicion of selling cocaine. Officers then discovered he was wearing a bulletproof vest. That in itself did not violate state law, but because Alderman was an ex-felon — convicted of armed robbery in 1999 — and the vest was manufactured in California, he was convicted under federal law. He was sentenced to 18 months in federal prison.

Nevermind how immoral it is that Alderman could be convicted for something that shouldn’t be a crime. The fact that his body armor was manufactured in another state was grounds for his prosecution under federal law—justified by the Commerce Clause. This power is so extensive that it’s hard to conceive of a reductio ad absurdum. The Obamacare decision finally put some limit on its power, saying essentially that while just about any activity can be covered under the Commerce Clause, inactivity cannot be, but this is hardly comforting when the taxing power granted elsewhere in the Constitution reaches into that forbidden territory anyway.

In my hypothetical scenario, this Bizarro IJ would intentionally take only the cases in which the likely outcome was a resounding defeat for freedoms of every kind. This would very quickly freeze up society’s creative powers. This kind of government could not last, as there would hardly be any wealth to tax, and likely would have to be radically overhauled in one fell swoop rather than limping along by piecemeal adjustments.

This is very similar to the scenario posed in Atlas Shrugged. The big question is at what point the struggle is no longer worth it. Can you think of a cutoff point?

I’ll end this with a pitch for you to donate to the Institute for Justice.


The challenge of libertarianism outside the United States

Something I’ve been thinking about for just over 9 years—since the invasion of Iraq by US-led forces—was how most of the French libertarians I read about supported the invasion. [I make no claims to have conducted an exhaustive review, although I believe that my sample was reasonably representative.] Some US libertarians did as well, although the majority view, and in my opinion the more correctly libertarian view, among US libertarians was opposition to the invasion. While French media had a different general angle on the invasion, the basic facts and common hunches were available on both sides of the ocean. I wondered why on the whole they supported something most US libertarians opposed? Shouldn’t libertarians the world over usually be in agreement on major issues? There were some arguments in favor of the war, so I don’t expect complete unanimity, but why was the ratio of support to opposition not at least vaguely similar to that in the US?

The answer that has always made the most sense to me has two parts. First, the US is the center of world libertarian thought, in part because of the relatively libertarian founding mythology and in part because the majority of libertarian thought these days comes from the US. Though the US is far from a libertarian paradise, the strength of that mythology keeps that image alive here and abroad. Thus, libertarians outside of the US tend to take pro-US positions, or at least give the US the benefit of the doubt.* Second, libertarians are almost always in opposition to the societies they’re in, as they’re always in the minority.

There is a perfect historical analogy here: communists and the USSR many years ago. The default position of the average communist, at least the average Western communist, was to support the USSR because of its history and public ideological commitment. However, in practice the USSR in many cases acted in ways that most governments of any stripe do, and moreover did plenty of things that honest communists thought were terrible and contrary to communism correctly interpreted. (Contrary to communism or not, any reasonable person can agree that a lot of what the Soviet government did was terrible.) But the general tone of communist discourse discouraged speaking too openly about it.

Whether those outlier communists were right is a subject for another day, though you can believe I have an opinion on it. The point here is that the default attachment to the USSR among the overall communist movement hampered their cause. I believe in a lot of ways that the default pro-US attachment of many libertarians worldwide may be hampering theirs. The War, broadly conceived, and the Drug War are both libertarian nightmares, and in many parts of the world where libertarians could be more influential are rightly viewed with suspicion by non-libertarians. In Mexico, for instance, libertarians walk a fine line between supporting things in the abstract like free enterprise and a stable legal climate while the US government backs an undeclared war on their soil.

Fortunately, there are many places with relatively libertarian policies that non-US libertarians can point to in demonstrating the benefits of low taxation, the rule of law, and protections of justly acquired private property. Let’s highlight those and avoid getting entangled with war, prohibition, and the million and one other anti-libertarian policies you can find in the US. Libertarianism is a global idea.

* I exclude libertarian anarchists from this statement.

Letting bad drivers set the standard

One of the best teachers I’ve ever had at any level was my high school physics teacher. Not only did I love the subject and excel at it, but I really benefited from his teaching style. He explained it to me once; I can’t remember his exact words, but in essence, he taught to the top students. Those are the ones who will need it. The middle students will learn more from trying to keep up, and if they don’t get it all no big deal because they don’t really need to, and the bottom students aren’t going to get it anyway. I know this seems to leave the bottom students by the wayside, but as physics was not strictly a requirement there were actually very few of them, and as I recall he didn’t hold them up from graduating by giving them less than a 70 when they needed it. The appropriateness of this approach is probably debatable in other subjects, but it worked in what was essentially an honors class without the designation.

I think of this now because of how much extra time was added to my drive to work today by two drivers who drove very slowly side-by-side for most of the route. I understand that it’s possible in principle to get ticketed for driving too slowly, but I know of no first- or second-hand accounts of it actually happening. As I’ve written before, I think drivers going too slowly is a bigger problem than drivers speeding. A nice meandering drive in the countryside is one thing, but for day-to-day purposes the point is to get places, which during the day mainly means work. The drivers going too fast—which does not hold other people up—are penalized by the current incentive structure, while the drivers inching along—which I maintain causes most traffic problems—have no negative consequences other than the occasional car horn behind them.

In essence, the current incentive structure aims for the bottom, which if I’m right causes far more problems (including greater air pollution) than keeping traffic moving at a good clip. Moderate speeding is lumped together with truly dangerous driving behavior, when really one can exceed the speed limit safely—which a large percentage of drivers do whenever they can. Penalties should not be applied to moderately faster but otherwise safe driving. I recall when living in Atlanta that everybody routinely drove 20 mph faster than the posted speed limit on the interstate unless it was during rush hour, and that it was mainly the obviously reckless drivers who were ticketed. I understand that in other large cities the police feel that their main concern in situations like this is to keep traffic moving. Clearly it’s a very small percentage of drivers who speed that get into accidents that hamper the flow of traffic. In places like these, the people doing the least to hamper the flow of traffic, the safe speeders, are and should be the model group.

I know that there will always be old people and heavy trucks, and the road is also theirs to use. But their driving behavior becomes a problem with negative externalities when they do it in lanes other than the slow lane. I don’t suggest tickets should be given out for all slow drivers, only for drivers like the one in the large van I was stuck behind today, who could have gotten in the slow lane and let hundreds of cars behind him drive normally. Instead, he drove side-by-side with what I thought was an old lady for half an hour.

Update 2014-06-22: Vox has a great piece on how slow drivers in the left lane are dangerous.

Orwell on Wells on the economic future

One of the classes I’m taking this semester is History of Economic Thought, and in this narrative one of the major sections is the low ebb that belief in individual ability and creativity in economic situations went through in the 1930s. It of course had antecedents from much earlier than that, but the mid-to-late 1930s are perhaps the darkest days for this way of thinking worldwide. At some point right around then all the smart people were for centrally-directed markets of one flavor or another, including such otherwise perceptive critics of collectivism as George Orwell.

A selection from a 1940 essay by Orwell about H.G. Wells is illustrative:

If one looks through nearly any book that he has written in the last forty years one finds the same idea constantly recurring: the supposed antithesis between the man of science who is working towards a planned World State and the reactionary who is trying to restore a disorderly past. In novels, Utopias, essays, films, pamphlets, the antithesis crops up, always more or less the same. On the one side science, order, progress, internationalism, aeroplanes, steel, concrete, hygiene: on the other side war, nationalism, religion, monarchy, peasants, Greek professors, poets, horses. History as he sees it is a series of victories won by the scientific man over the romantic man. Now, he is probably right in assuming that a ‘reasonable,’ planned form of society, with scientists rather than witch-doctors in control, will prevail sooner or later, but that is a different matter from assuming that it is just round the corner. There survives somewhere or other an interesting controversy which took place between Wells and Churchill at the time of the Russian Revolution. Wells accuses Churchill of not really believing his own propaganda about the Bolsheviks being monsters dripping with blood, etc., but of merely fearing that they were going to introduce an era of common sense and scientific control, in which flag-wavers like Churchill himself would have no place. Churchill’s estimate of the Bolsheviks, however, was nearer the mark than Wells’s. The early Bolsheviks may have been angels or demons, according as one chooses to regard them, but at any rate they were not sensible men. They were not introducing a Wellsian Utopia but a Rule of the Saints, which like the English Rule of the Saints, was a military despotism enlivened by witchcraft trials. The same misconception reappears in an inverted form in Wells’s attitude to the Nazis. Hitler is all the war-lords and witch-doctors in history rolled into one. Therefore, argues Wells, he is an absurdity, a ghost from the past, a creature doomed to disappear almost immediately. But unfortunately the equation of science with common sense does not really hold good. The aeroplane, which was looked forward to as a civilising influence but in practice has hardly been used except for dropping bombs, is the symbol of that fact. Modern Germany is far more scientific than England, and far more barbarous. Much of what Wells has imagined and worked for is physically there in Nazi Germany. The order, the planning, the State encouragement of science, the steel, the concrete, the aeroplanes, are all there, but all in the service of ideas appropriate to the Stone Age. Science is fighting on the side of superstition. But obviously it is impossible for Wells to accept this. It would contradict the world-view on which his own works are based. The war-lords and the witch-doctors must fail, the common-sense World State, as seen by a nineteenth-century Liberal whose heart does not leap at the sound of bugles, must triumph. Treachery and defeatism apart, Hitler cannot be a danger. That he should finally win would be an impossible reversal of history, like a Jacobite restoration.

This is essentially the state of the debate at the time: how the central direction of the economy will come into being. There will be ugly spasms of conflict with the old order—which itself tends toward economic centralization—over the kinds of measures and when they will be taken, but for all the debate there is not so much room between Orwell and Wells as between the two of them and a laissez-faire thinker. Friedrich Hayek’s The Road to Serfdom was widely mocked by the intellectual class in Britain when it was published in 1944, although viewed from a historical distance his vision was demonstrably wiser and truer to life than his opponents’.

George Orwell’s various writings are some of my favorites, but in the realm of economics he could have used a lot more guidance.

The best news from the 2012 elections

The most exciting result from the recent elections was the legalization of the licensed sale and use of small amounts of marijuana for persons 21 and over in Colorado and Washington. Colorado’s measure seems to be a little better than Washington’s, but I will not nitpick details here. The overall theme is that liberty and civilization got a big boost.

I’ve written on this theme before, so I’ll be brief here. This is a list of harms caused by Prohibition:

1. It is detrimental, philosophically, to civilization. Your right to control your private sphere of action is a sine qua non of civilization. If the government’s scope of control is commonly believed to include your private activity, very few things will be considered outside its scope.
2. Prohibition has expanded police and prosecutorial powers in uniquely harmful capacity. There is almost nothing that law enforcement officers and prosecutors of all varieties haven’t tried to justify doing based on fighting the Drug War.
3. These expanded police powers are more likely to be used on the more vulnerable elements in society, and this is precisely what we see. The lifelong handicap to one’s job potential by being arrested even for simple possession at age 18 is big, and is bigger the fewer options one already has.
4. It creates and perpetuates massive opportunities for organized crime and violence. When people still demand the product in large numbers a market will function, but since contracts in this market are unofficial and legally unenforceable the consequences will be predictably bad.
5. It diverts billions of dollars annually from productive uses into destructive uses (see #3 and #4).
6. It prevents billions more from being capitalized in productive ways. Lots of people want to drink wine, so a multi-billion dollar legal industry exists to cater to their demands. If marijuana were legal, the market would be organized in a very different and more productive way.
7. It discourages “experiments in democracy” and raises the costs of reform by directing the entire effort at the federal level. I expect more states to follow Colorado and Washington’s lead in fighting back.

I could go on; this is simply a list off the top of my head. Medical marijuana reforms are good as small steps to a more rational and liberty-minded drug policy, but they are more fragile. Though it becomes harder to crack down on individuals for possession, the DEA and local governments can throw a massive wrench into the system simply by targeting dispensaries. In a situation where people can legally grow their own plants, this kind of crackdown becomes exponentially more difficult. Instead of a list of names and addresses, the places they want to bust could be anywhere. Needless to say, I expect these crackdowns to be gradually abandoned.

The federal government will be very concerned about this, as marijuana legally grown and possessed in Colorado and Washington inevitably ends up in other states. It will continue to rely on a ludicrous interpretation of the Commerce Clause as its justification for Prohibition, but despite its best efforts it will be fighting against the tide. I’ve never tried growing a marijuana plant—and I’m not about to start—but from what I gather it is not that difficult. The federal government might as well try to enforce laws against leaving dishes in the sink.

All of this rests on the premise that it is possible to simply use marijuana and not abuse it, a distinction the federal government does not make. If these reforms lead to massive social chaos and millions of lost or wasted lives, my optimism will have been misplaced. But I hardly think these fears are even worthy of consideration. Besides, marijuana is already consumed all across country, and many (most?) Americans have tried it at some point in their lives without losing their minds and fortunes. There are costs and benefits to everything, true, but one could hardly argue that alcohol should be legal while marijuana is not, nor could one argue that alcohol prohibition is a sane policy.

Viewed from many years in the future, I think these initiatives will be seen as marking a major turning point in the advance of liberty. In the short term, perhaps near-future crackdowns by the Obama administration will open at least some peoples’ eyes to the mistaken belief that the Democratic Party really cares about civil liberties and may help some people of good intentions break free from the false consciousness that has kept them there.

The impending Republican divide

[Note: I am not a Republican, but I am not a Democrat either. I’m attempting to be as objective as possible here.]

One of the most consistent threads in post-election analysis has been that the Republican Party failed to reach out to Hispanic voters, thereby losing most of their votes and in consequence being weakened in the presidential election. As Hispanics are expected to grow as a percentage of voters, this does not bode well for the future of the Republican Party.

There are two errors implicit in this line of reasoning, and they stem from the same sloppy thinking. The Republican Party and Hispanic voters are not homogeneous groups. There are a number of analytically useful subgroups within them.

The more obvious error
“Hispanic” is an extraordinarily broad category and for U.S. political purposes covers a source population of hundreds of millions. The U.S. government defines it: ‘The term “Hispanic” refers to persons who trace their origin or descent to Mexico, Puerto Rico, Cuba, Central and South America, and other Spanish cultures.’ I need hardly point out that people from such a broad range of cultures may have divergent viewpoints on politics, to say nothing of the ordinary religious, socioeconomic, and regional breakdowns within each culture.

Beyond that, as a greater percentage of the population becomes Hispanic, a greater percentage of Hispanics will likely vote Republican. That is, as immigrants assimilate into American culture—and the existing American gene pool—they begin to vote more like the Americans who were already there. (There are parts of the United States that have been Hispanic-dominated since before these parts were in the United States, but I am given to understand that immigration is the driving force behind the growth of the Hispanic population overall.) In 50 years, a person with three ethnic Norwegian grandparents and one Mexican grandparent will be Hispanic by the government definition but may have little interest in self-identifying that way or voting for candidates more preferred by recent Dominican immigrants.

I find this point interesting, but for present purposes the discussion so far has been a warm up to the next point.

The less obvious error
As a whole, yes, we can argue that the Republican Party did not give sufficient attention to Hispanic voters during the 2012 campaign from the perspective of Republican strategists trying only to garner the numbers necessary to win. However, the Republican Party comprises many different entities and interests. To say that it simply failed to give enough attention to the Hispanic vote ignores the reality of its composition.

For many Republicans, this lack of effort to attract Hispanic votes was not omission but commission. The South* is the dominant region in the Republican Party, and it seems to me that a critical mass of Southern Republicans express a lingering cultural-historical racism by being consciously hostile to expanding their outreach to Hispanics. Please note that I am not saying all Southern Republicans are racist, or even that most are. I would not make those statements because I don’t believe they’re true. All it takes is a critical mass that, consciously or unconsciously, takes an “us vs. them” view seriously enough to change the tone for the national Republican Party. This group is small but is influential beyond its size because of the deep-rooted cultural nature of this viewpoint. Politics is epiphenomenal to culture.

We can take racial integration in the 1950s and 1960s as an example. Granted, the percentage of actual racists was higher then, but it’s still illustrative of the general lines I’m thinking on. Some whites supported integration, and many may not themselves have been racist but simply went along with the racist status quo. The people most fiercely opposed to integration were the most vociferous and organized. The U.S. in general and the South in particular has made a lot of progress on this front, but enough of a remnant persists, even if not explicitly based on race, that the Republican Party’s hands are largely tied on this issue.

I assume that the Republican Party leadership hopes to win a presidential race sometime ever again, and like all political calculations there are very few or no principles they aren’t willing to compromise. Thus, decreasing the influence of the South in the Republican Party should be the number one goal of national-level Republican Party strategists between now and the 2016 primary season. This is where the title of this post comes from: there will be a power struggle between the South and everybody else, or at least there will be if their strategists are clear-sighted enough.

Once the influence of this subgroup of a subgroup of the Republican Party is diminished enough, there will be little or no resistance to reaching out to more Hispanics. Granted, some parts of the platform will need to evolve, but this kind of evolution is the natural course of politics. Unless the Republican Party goes into a long-term or permanent decline, this is what will have to happen.

* I am using this term in David Hackett Fischer’s cultural sense. It corresponds roughly to the darker red areas on this map of the Cotton Belt.