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May 31, 2005

what's up in Oregon?

Don Herzog: May 31, 2005

The University of Oregon has published a draft of a Five Year Diversity Plan.  I don't teach there.  I've never even been there.  So maybe I'm not entitled to a view.  And maybe it's just bureaucratic gobbledygook and nothing much will come of it even if it's formally adopted.  Maybe.  But the thing turns my stomach.

I'm no opponent of diversity:  I discussed the politicization of universities and intellectual diversity here.  And I'm no opponent of affirmative action, either.  But both "diversity" and "affirmative action" admit sharply different interpretations.  And I am a fierce opponent of what the University of Oregon apparently has in mind.  To their inadvertently hilarious echo of Soviet five-year planning, I shall have to respond with fratricidal leftist infighting.

I'll start here:

The UO predicts a long-term future that rises above constraints to recognize, respect and ensure diversity, including the ethnic makeup of the freshman class, the racial and gender balance of tenured faculty, accessibility for the disabled, and the range of perspectives shared in campus classrooms around issues of sexual orientation, gender identity, religious differences and other characteristics that make up the campus community.

Oh, I'm all in favor of making campus facilities readily accessible for the disabled.  (Notice, please, that there is no way to get a handle on whether enforced spending on ramps and the like counts as illicit redistribution or equality of opportunity without deciding whether the disabled properly are entitled to them, or whether architecture not so equipped counts as discriminatory or the unremarkable, benign status quo.)  And you know, I kinda like respect, too.  But I read this statement as sliding past those sentiments into dangerous terrain.  Let's distinguish two approaches to equality here.  One:  we should publicly affirm the worth of all kinds of differences.  Two:  we should be blind to such differences, or treat them as private.  I wouldn't rule out the first strategy wholesale, but my sympathies run strongly to the second.  When I grade my students, I ignore whether they're male or female, white or black or Asian or Hispanic, straight or gay, wealthy or poor, Republican or Democrat, and so on.

In fact here at the law school we have a regime imposing blindness:  when I receive the final exams, all they have on them is code numbers.  I don't get the names matching the numbers until I've filed provisional grades.  (Provisional because I'm allowed to adjust the grades for class participation.  But no one in his right mind would defend adjusting grades to reward students for good looks, or devout religiosity, or left- or right-wing views, or racial or ethnic background, or anything of the sort.)  I could happily live without endless campus sessions in sensitivity and diversity and the like.  Even in response to ugly racist incidents, let alone everyday boorishness, they're offensive, probably counterproductive too.  I think Oregon means to embrace more of them.

And then numbers, targets, why if it weren't such a charged category they might as well just say quotas and be done with it.  The Plan proposes "a goal of doubling the current representation of students in each of the four federally recognized underrepresented groups," in part by adding 800 scholarships apparently reserved for minorities — and in part by increasing "the number of Math and English classes offered by the Office of Multicultural Academic Support."  Apparently that Office sets aside spaces in smaller classes for minority students.  It looks blatantly illegal to me.  But whether I'm right or wrong about that, it's offensive.  You bet, plenty of undergraduates are woefully unprepared for college.  Plenty of them are white, too.

What does doubling the current minority numbers mean?  AP reports that the University now has 2,706 nonwhite students in its population of 20,339.  (The Census Bureau reports that Oregon was 87% white in 2000.)  The Plan pays homage to the Supreme Court's approval of "critical mass" in Grutter.  But critical mass isn't a quantitative concept, and I'd love to see a jot of evidence that Oregon needs over 25% of its student body to be minority in order, for instance, to get past the expectation that there is "a minority point of view."  Or a jot of evidence that Oregon is entitled to use these numerical targets to overcome its own past history of de jure discrimination.

And the Plan sets its baleful sights on faculty hiring and promotion.  Yes, gang, time for more quotas:  "Under-represented faculty will be recruited, hired and tenured at rates reflecting national trends among our university peers."  The Oregon Students of Color Coalition just gave Zero Awards to the five departments on campus with "no tenure-track faculty of color."  I quite like this kind of student politicking and publicity.  But what follows?  You might wonder if there's some kind of invidious discrimination going on, for the same reason that labor law permits the use of statistics to try to help support a finding of a "pattern or practice of discrimination."  But the numbers can't themselves establish discrimination.  They couldn't even if the students had added the numbers about how many minority candidates are in the pool of candidates.  What matters is that hiring procedures are fair, not that minorities gain faculty positions at "rates reflecting national trends."

The Plan has more to say about faculty.  Tenure and pay should be based in part on "demonstrable commitment to cultural competency."  And the university shall

Require that all requests for new tenure-track searches include an explanation of how the new hire furthers the unit’s long-term hiring plan (and therefore meets some aspect of the University’s affirmative action, equity or diversity goals).  If a unit believes that a particular hire, by its nature, cannot address these priorities, it needs to provide a rationale for such a claim.

I won't bother spelling out what's repulsive about these proposals.  I suspect only the authors of the Plan, locked in endless committee meetings, could have failed to notice.  But I wouldn't be insistently dour.  AP adds that the faculty is unhappy with the draft Plan.  And the student newspaper has reservations, too, if not the kind I do.  "Sometimes you just have to shake your head in slack-jawed wonder at what's going on in the name of 'celebrating' diversity on our campuses," commented a columnist in Portland's Oregonian.  Amen to that.  Disasters like this Oregon plan don't make life easy for those of us who are sane and favor diversity.

"You may be sane, Don" — relax, I know some of you would never concede that much — "but now you see what diversity and affirmative action lead to."  Sorry, I don't buy slippery slope arguments.  (Compare:  "no one should be allowed to freely buy and sell things, because next thing you know baby-selling will replace adoption queues.  Or we'll have chattel slavery.  Or Bill Gates will buy the right to be president from the next victor.")  Actually, there's one slippery slope argument I do buy:  never make slippery slope arguments, because once you start making them, you'll become incapable of drawing any sensible distinctions and your brain will turn to mush.  If you think affirmative action has to mean quotas or numerical targets on race, try this.  Other things equal, applicants to universities are more likely to win admission if their files include strong, detailed letters of recommendation.  Those letters are a "plus" factor, in the immortal language of Bakke.  But it would be crazy to infer that universities have quotas or targets for how many of their students should have glowing recommendations.

Regardless, those of us who favor affirmative action and diversity need to be loud and clear in denouncing travesties like the Oregon plan.  So please, consider it well and truly denounced by this academic leftist.

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May 27, 2005

So You Want to Live in a Free Society (1): What Hayek Saw

Anderson on Political Economy, Anderson on Taxes, Elizabeth Anderson: May 27, 2005

So far in my posts on taxation and political economy, I've mainly been making negative arguments--that this or that case against taxation to support social insurance doesn't work.  It's time now to start building a positive case for social insurance and the taxation needed to support it.  Most of you have heard arguments for social insurance based on ideas such as equality and compassion for the less fortunate.  For many, such arguments cut little ice because they view the system being defended as incompatible with freedom.  Ok, then, let's take freedom as our starting point and foundational value.  Suppose you want to live in a free society--one in which everyone is free.  What institutions, what types of distributive rules, what kinds of constraints on coercive action, what sort of property regime, should you support?  Over this new series of posts, I'm going to lay out my view of what's needed to have a free society.

This first post in the series is dedicated to F. A. Hayek, who had a deep insight into what's needed.  In Law, Legislation, and Liberty, vol. 2, Hayek argued that, for a society to secure the liberty of all, its distributive rules cannot aim at achieving some pre-established pattern of distribution based on individual need, desert, or merit.  Instead, they should be purely procedural in form.  Set up a system of fair, impersonal rules governing our interactions and applicable to all, let people choose freely from among the opportunities generated by acting within the constraints of the rules, and whatever distributions of goods result from following the rules will be just.

Hayek likened the procedural rules constitutive of a free society to the rules of a game:

namely a game partly of skill and partly of chance. . . . It proceeds, like all games, according to rules guiding the actions of individual participants whose aims, skills, and knowledge are different, with the consequence that the outcome will be unpredictable and that there will regularly be winners and losers.  And while, as in a game, we are right in insisting that it be fair and that nobody cheat, it would be nonsensical to demand that the results for the different players be just.  They will of necessity be determined partly by skill and partly by luck.  Some of the circumstances which make the services of a person more or less valuable to his fellows, or which may make it desirable that he change the direction of his efforts, are not of human design or foreseeable by men. (Law, Legislation, and Liberty, vol. 2: The Mirage of Social Justice, p. 71)

In this passage, Hayek denies that the concept of justice can even apply to the outcomes of procedurally fair rules, for two reasons.  One is that, because luck is inevitably involved in the outcomes of actions following fair procedures, the outcomes can't be relied upon to track individual merit or desert.  The other is that the concept of justice can apply only to things that are deliberately willed, but the outcomes of free individual interactions within procedurally fair rules are unintended consequences of everyone's behavior.  I think Hayek was mistaken on the latter point of usage.  When we say that the winner of a contest won it "fair and square," we imply that justice would be served by awarding the prize to her, so it is just that she receive it.  This is just a verbal quibble, however.  The key point, on which Hayek was correct, is that the just outcome can't be determined ex ante, before people have played the game.

Why ought a society, to be free, distribute goods according to purely procedural rules?  First, consider the  leading alternative:  what would a society be like if it tried to distribute goods according to some notion of individual merit or desert?  Given that the outcomes of free exchanges inveitably include some element of chance, to adjust the outcomes so that they reflect some prior notion of merit or desert would require that the state look over everyone's shoulders to see how they are using their liberties.  If, in the state's judgment, an individual used her liberties poorly or irresponsibly, then she is responsible for whatever disadvantages come her way and society will not compensate her for them.  But if the state judges that her disadvantages were the result of mere luck, which is undeserved, then society will compensate her.  There are of course other ways to draw the line between deserved and undeserved outcomes--indeed, too many ways, which put people into endless disputation over which way is the right way. (A look at recent literature on egalitarianism, full of disputation about how to draw the line between luck and desert, confirms this.) But all of the ways of drawing the line and redistributing goods accordingly require the state to make and enforce intrusive judgments about how people are using their freedom.  People can't be free under such a system, where the state is monitoring their choices and passing moral judgment on them, with attendant material consequences.  This is the ultimate busybody state.

Of course, not any random set of procedural rules will enhance freedom.  Distributing all income according to a lottery, for instance, would be an instance of pure procedural justice.  But that would be a crazy system to implement.  What is needed is a set of rules that leave people free to offer mutually advantageous exchanges, so as to systematically give people incentives to behave in ways that overall enhance the liberty and opportunities of everyone else.  Markets play an indispensable role in this, because prices signal to people where their productive efforts will be most valued by other people.  In contrast with a command economy, individuals in a market system are free to take or leave any particular opportunity open to them, free to respond to or ignore any particular bargain or incentive offered to them.  Moreover, market prices reflect the aggregate result of everyone's free decision to demand this or that, rather than some bureaucrat's notion of what they ought to be consuming.  These are two extremely important ways in which a system of procedural justice based on voluntary market exchange secures everyone's freedom.  However, the most important way in which reliance on markets enhances everyone's freedom concerns the dynamic effects of market competition in a private property regime in producing ever-expanding opportunities.  I'll postpone to a later post an explanation of this, which I believe gives us the core freedom-based argument for private property.

A market system does not preclude all consideration of individual deserts.  Importantly, when people violate the rules of a free society, we enter the realm of retributive justice.  Here, we do know ex ante what the just results of a trial should be:  namely, that all and only those guilty of violating the rules be punished (or, in a civil trial, compensate those they have harmed).  The quality of a person's intentions--whether they did something intentionally, or unwittingly--matter here.  But as long as people are abiding by the rules, the state takes no interest in their individual deserts.  Consideration of individual deserts may also play a role in local distributions--say, within a firm.  Employers often voluntarily implement merit-based pay structures, for example.  But in a market system, that one's rewards reflected one's merits relative to the other employees in one's firm is no guarantee that one's rewards reflect one's merits globally--that is, relative to employees of other firms.  For the size of the total compensation pie available to any given firm to divide among its employees is typically determined by chance factors--for example, an unanticipated shortage of some input, or sudden surge in demand for a product--independent of anyone's merit.

It might be thought that a system of pure procedural justice must place no constraints on possible outcomes for individuals, lest the constraints intefere with individual liberty.  So pure procedural justice must permit catastrophe to befall the unlucky.  Robert Nozick famously argued for this position in Anarchy, State, and Utopia (1977), encapsulated in his slogan that "liberty upsets patterns."  This is the main reason (concern for individual deserts aside) that many egalitarians have objected to letting free markets determine distributions.  But there is nothing in the idea of pure procedural justice, nor in the liberty it secures--to freely choose any of the opportunities generated by spontaneous interactions within the constraints of the rules--that precludes placing constraints on the outcomes.

To see this, we can pursue Hayek's analogy of markets with games by looking at the rules of some actual games.  Games provide the paradigm of pure procedural justice, because there is no notion ex ante of who should be the winner, the same rules apply to all, and the rules are designed to be fair to all, in the sense of giving everyone a basically equal ex ante chance to win, supposing they play with equal skill.  (Sometimes unavoidable asymmetries in a game give a slight advantage to a particular player--for instance, the one who gets the first move.  But the rules of games are typically designed to prevent this advantage from being decisive, lest the game be boring for lack of uncertaintly about the outcome; and access to that advantage is itself typically allocated by a fair procedure, such as a coin toss or roll of the dice.)

The game of Monopoly illustrates a system of pure procedural justice that matches Nozick's ideal of unconstrained outcomes.  In Monopoly, each player's objective is to drive all of the other players into bankruptcy, and to end up owning all of the property in play.  Monopoly is a game that does not constrain how low people can go, or how high they can go, within its rules.

Milton Bradley's game of Life illustrates a system of pure procedural justice with constrained outcomes.  In the game of Life, each player's objective is to retire with the most money.  Although wealth inequality is inherent to the game of Life, it constrains the outcomes in three ways.  First, nobody goes bankrupt; everyone retires with something.  (I suppose it's technically possible to retire with a negative net worth, but I've never seen it happen.  I suspect that that the rules are designed so as to virtually preclude this possibility.)  Second, in the course of the game, players collect "Life tiles," which give them windfalls.  When the draw pile of Life tiles runs out, a player who lands on a "Life space" gets to take a Life tile from any opponent.  Strategically rational players will take their tiles from the richest opponent.  Thus, the game of Life contains a redistributive element that in practice constrains how wealthy the richest player will get.  Third, once people acquire assets (a house or a car), they can protect them by buying insurance.  Insurance is a device that constrains middling outcomes by means of a ratchet--that is, it protects people who have already acquired some assets from losing them.

The game of Life illustrates how a system of pure procedural justice can consistently constrain outcomes at the bottom, at the top, and in the middle.  It can even implement these constraints by way of redistributions from the top to those below.  I don't pretend to have offered an argument that we should prefer a system that implements such constraints.  I just want to point out that there is nothing in the idea of pure procedural justice, even one based on granting free markets a large role in determining distributions, that precludes setting constraints on possible outcomes.

Robert Nozick famously objected to John Rawls' egalitarian Theory of Justice that it was a "pattern-based" theory of justice that, because it identified just distributions independently of how people play by the rules, is incompatible with a free society.  He was wrong.  Rawls, the leading egalitarian theorist of the 20th century, in fact endorsed a system of pure procedural justice that insisted on constraining the top and bottom outcomes of a market-based "property-owning democracy."  As he made clear in the revised edition of his book, the idea of a "property-owning democracy" is to use devices such as progressive taxation and rules promoting competition so as "to disperse the ownership of wealth and capital, and thus to prevent a small part of society from controlling the economy and indirectly political life itself" (Theory of Justice, rev. ed., xiv-xv; thanks to Amit Ron for drawing this passage to my attention).  (By the way, Rawls on these pages contrasted his preferred system of "property-owning democracy" with a "welfare state," which aims to protect the unlucky from the worst misfortunes.  The goal of a property- owning democracy is rather to secure the material conditions for democracy, in part against the threat of plutocracy.  I'm not arguing for Rawls' position here; just highlighting the fact that egalitarians have more than one reason for constraining market outcomes.  A concern for protecting the material conditions of democracy and equal citizenship is utterly distinct from compassion for the less fortunate.)

Hayek saw what Nozick failed to see: that Rawls' egalitarianism, while it contrained possible outcomes at the top and bottom, is in fact a system of pure procedural justice.  It was not a "pattern-based" theory, and hence not subject to Nozick's objection that a free society will invariably upset patterns.  Here's what Hayek said about Rawls' Theory of Justice:

the differences between us seemed more verbal than substantial.  Though the first impression of readers may be different, Rawls' statement which I quote later . . . seems to me to show that we agree on what is to me the essential point [that distributive justice in a free society must take a purely procedural form].  Indeed . . . it appears to me that Rawls has been widely misunderstood on this central issue (L, L, L vol. 2, xiii).

Widely misunderstood, not least by Nozick.  Hayek continued his observations on Rawls as follows:

there unquestionably also exists a genuine problem of justice in connection with the deliberate design of political institutions, the problem to which Professor John Rawls has recently devoted an important book. . . . I have no basic quarrel with an author who, before he proceeds to that problem, acknowledges that the task of selecting specific systems or distributions of desired things as just must be "abandoned as mistaken in principle, and it is, in any case, not capable of a definite answer.  Rather, the principles of justice define the crucial constraints which institutions and joint activities must satisfy if persons engaging in them are to have no complaints against them.  If these constraints are satisfied, the resulting distribution, whatever it is, may be accepted as just (or at least not unjust)." This is more or less what I have been trying to argue in this chapter. (L, L, L, p. 100, quoting Rawls, "Constitutional Liberty and the Concept of Justice," Nomos IV: Justice (New York, 1963), p. 102)

It's worth noting that Hayek's preferred system of pure procedural justice, while it differed from Rawls' in rejecting constraints on the top outcomes, did, unlike Nozick's system, insist on constraining the worst outcomes for individuals.  He supported state action to abolish poverty in the sense of deprivation relative to objective needs (as opposed to relative to what others have) (L, L, L, vol. 2, p. 139).

I want to stress again that I'm not arguing for Rawls' system.  It isn't, in fact, my preferred system.  What I've argued for is the following:

1. Hayek was right to insist that the rules of distributive justice for a free society must take a purely procedural form.

2. Free market exchanges among private property owners play an indispensable and central role in any system of pure procedural justice that aims to secure and increase freedom for all.

3. A system of pure procedural justice in a system of private property and free exchange is consistent with rules that constrain outcomes at the top, at the bottom, and in the middle of distributions, and that implements those constrains by means of redistributive mechanisms.


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blast from the past (three)

Don Herzog: May 27, 2005

Hannah More told a friend how she came to write it.

As soon as I came to Bath, our dear Bishop of London came to me with a dismal countenance, and told me that I should repent it on my death-bed, if I, who knew so much of the habits and sentiments of the lower order of people, did not write some little thing tending to open their eyes under their present wild impressions of liberty and equality.  It must be something level to their apprehensions, or it would be of no use.  In an evil hour, against my will and my judgment, on one sick day, I scribbled a little pamphlet called "Village Politics, by Will Chip;" and the very next morning after I had first conceived the idea, I sent it off to Rivington, changing my bookseller, in order the more surely to escape detection.  It is as vulgar as heart can wish; but it is only designed for the most vulgar class of readers.  I heartily hope I shall not be discovered; as it is a sort of writing repugnant to my nature; though indeed it is rather a question of peace than of politics.

Village Politics came out months after Paley's Reasons for Contentment — and was far more successful.  (I've linked to a transcript from the 1832 edition of More's works; it varies a fair amount from the 1793 edition I'll be quoting from, but you'll get the gist.  More also supervised the publication of the Cheap Repository Tracts, some of which are here.)  It had a much larger circulation, and it too was reprinted decades later in at least one conservative newspaper.  You should read More's pamphlet, too — but no, I do not think you're in the most vulgar class of readers.  Conservatives don't talk that way any more, and I daresay that they don't think that way, either.  But they used to, not as an embarrassing or accidental slip but as defiant principle:  they argued that democracy would mean the end of civilization, that ordinary subjects should defer to the authorities, that the idea of treating the lower orders as dignified equals and letting them vote was pernicious, even lethal.  There's another wrinkle about those conservatives who cling to tradition, but I'll leave that one to you to puzzle over.

Anyway, More's little pamphlet stages a dialogue between Jack Anvil, a blacksmith, and Tom Hod, a mason.  Tom has clearly just read Tom Paine's Rights of Man, that firebrand celebration of democratic radicalism that heaps abuse on aristocracy (the "no-ability"), monarchy ("something going much out of fashion, falling into ridicule, and rejected in some countries, both as unnecessary and expensive"), and Edmund Burke ("A greater absurdity cannot present itself to the understanding of man than what Mr. Burke offers to his readers").  Radicals circulated hundreds of thousands of copies of Paine's incendiary work.  And Hannah More's Tom is overheated.  It takes the wise hand of Jack Anvil to cool him off.

Jack urges the fundamental goodness of the English constitution:  "a glorious building it is, though there may be a trifling fault or two."  The local aristocrat is a fountain of paternal benevolence and the needy poor can rely on public support.  Equality is unnatural, "nonsensical," and would never last.  "I'm stronger than thou; and Standish, the Exciseman, is a better scholar; so we should not remain equal a minute."  And Jack echoes Paley's wisdom:  "Instead of indulging discontent, because another is richer than I am (for envy is at the bottom of your equality works) I read my bible, go to church, and think of a treasure in Heaven."

"I know what's what, as well as another," says Tom plaintively, "and I'm as fit to govern."  But, with some convenient fibbing about the contemporary franchise, Jack spurns this bid for democratic equality — with a paean to the division of labor.

Jack.  No, Tom, no.  You are indeed as good as another man, seeing you have hands to work, and a soul to be saved.  But are all men fit for all kinds of things?  Solomon says, "How can he be wise, whose talk is of oxen?"  Every one in his way.  I am a better judge of a horseshoe than Sir John:  but he has a deal better notion of state affairs than I; and I can no more do without him, than he can do without me.  And few are so poor but they may get a vote for a parliament-man; and so you see the poor have as much share in the government as they well know how to manage.

Poor Tom gets increasingly wide-eyed as he listens to the parade of French horribles and English excellences.  Jack piles on:  "These poor French fellows used to be the merriest dogs in the world; but since equality come in, I don't believe a Frenchman has ever laughed."  And then Tom is ready for this beautifully crafted antirevolutionary catechism:

Tom.  What then dost thou take French Liberty to be?
Jack.  To murder more men in one night than ever their poor king did in his whole life.
Tom.  And what dost thou take a Democrat to be?
Jack.  One who likes to be governed by a thousand tyrants, and yet can't bear a king;
Tom.  What is Equality?
Jack.  For every man to pull down every one that is above him, till they're all as low as the lowest.
Tom.  What is the new Rights of Man?
.  Battle, murder, and sudden death.
Tom.  What is it to be an enlightened people?
.  To put out the light of the gospel, confound right and wrong, and grope about in pitch darkness.
Tom.  What is Philosophy, that Tim Standish talks so much about?
Jack.  To believe that there's neither God, nor devil, nor heaven, nor hell. To dig up a wicked old fellow's [Voltaire's] rotten bones, whose books, Sir John says, have been the ruin of thousands; and to set his figure up in a church and worship him.

The bishop of London was much pleased with More's performance.  He wrote to her that the royal court vigorously approved and that the Association for Preserving Liberty and Property against Republicans and Levellers would be circulating her pamphlet through the kingdom.  Jonathan Swift, he agreed, couldn't have done better:  "It is a masterpiece of its kind."  Anything to keep those wretched vulgar subjects in their place.

Except they're not there any more.  Now they're proud and dignified citizens.  No thanks to conservatives, who fought bitterly against such modest measures as the Reform Bill of 1832.  (Said one Eton fellow to another on learning of the bill's passage:  "This is the worst crime since the Crucifixion.")  It was Tom Paine, after all, who wanted to strip king and aristocrats of their power.  It was Paine who celebrated democracy.  It was Paine who sketched plans for a progressive income tax, publicly funded retirement benefits ("not of the nature of a charity but of a right"), public education, public housing for the poor, publicly supplied employment for the urban poor, and more.  And all this while celebrating mutual voluntary cooperation and assailing the unjust measures of a bloated goverment!  (In More's dialogue, radical Tom complains that taxes are too high, and conservative Jack defends them.)  No, he wasn't contradicting himself.  Like other modern liberals, he thought the market terrific.  He just wanted the ground rules to be fair.  And yes, you bet, there's plenty of room to wonder how to combine the fair ground rules and the proper realm of the market.  For instance, you might wonder whether desirable ground rules turn out to be so damned expensive that they bring the market to its metaphorically absurd knees.  I wouldn't minimize the importance of those issues.  Here I want only to insist on the differences of principle between More and Paine.

The authorities had had Paine in their sights for some time.  After he published the first part of The Rights of Man, the Earl of Mornington wrote to Lord Grenville,

I wonder you did not hang that scoundrel Paine for his blackguard libel on King, Lords, and Commons.  I suppose the extreme scurrility of the pamphlet, or the villainy of those who wish to disperse it amongst the common people, has carried it through so many editions.  For it appears to me to have no merit whatever; but it may do mischief in ale-houses in England, and still more in whisky-houses in Ireland.  I think it is by far the most treasonable book that ever went unpunished within my knowledge; so, pray, hang the fellow, if you can catch him.

Charged with seditious libel, Paine hightailed it to France and was convicted in absentia at the end of 1792.  Telling the lower orders that the English constitution was absurd?  An unthinkable offense.  So More was dutifully assailing a criminal publication.  No political debates for the lower orders.  Even literacy was suspect — and this in a Protestant kingdom — because those who can read the Bible can also read nefarious political pamphlets.  Before and after Paine was rattling off his wish list, conservatives were fighting strenuously against educating the lower orders.  Here's Lord Kames in 1778:  "Knowledge is a dangerous acquisition to the labouring poor:  the more of it that is possessed by a shepherd, a ploughman, or any drudge, the less satisfaction he will have in labour."  Sneered one pamphleteer in 1826, "we are to have our pots and pans mended, our clothes made, our fields ploughed, and our streets macadamized — by philosophers!  Thrice happy nation, to enjoy blessings such as these!"

The anticlericalism of Paine and his fellows is another matter.  I can explain why they reacted to "priestcraft" as they did, but I have no sympathy with religion-bashing, nor any sympathy with the claim that atheism is any part of liberalism or democracy.  But let's be clear about the scorecard.  On the fundamentals, Paine won and More lost.  That's why, on the rare occasions I stumble out of the rare books room and glance at today's newspapers, I'm baffled by public rhetoric that reminds me of More.  Don't assure me that we can cling to More's (or Burke's) conservatism and just revise it in a suitably democratic way.  The whole point of the view was to throttle democracy.

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May 24, 2005

History Lessons: Another Way to Think About Secular Humanism

James Oakes: May 24, 2005

When people argue about secular humanism and religion in American history they usually end up throwing quotations at each other.  Jefferson called for a "wall of separation" between church and state, but Washington said he never made a decision without consulting his God, and so forth.  I'll get to what George was saying some other time, but for now I thought I'd approach the topic from a different angle. 

Take a look at these numbers.  In the year 1700, in the thirteen colonies, there was one church for every 598 colonists.  Forty years later there was one church for every 642 colonists.  And by 1780, in the middle of the War for Independence, there was one church for every 807 Americans.  To put the matter simply, over the course of the eighteenth century the number of churches was declining in proportion to the number of Americans.  1780 was the lowpoint.

Here are some more numbers.  In 1730 just under half (48%) of all the titles published in the colonies were religious.  Religious titles dropped to 38 percent in 1760.  The slide continued until it bottomed out in 1775, where a mere 16 % of all the titles published in the colonies were religious

1775.  Hmmmm.  As Joseph Stalin would say, "it was no accident that...."   

By the way, those numbers jerked a bit during the not-so Great Awakening, but they quickly resumed their secular decline.  There were minor variations from place to place as well, but nothing to upset the general pattern.

And its an interesting pattern.  It suggests that over the course of the eighteenth century Americans were becoming more and more.... secular.  From this perspective, the secular humanism of the American Revolution was not some fluky philosophical outburst sandwiched in between the "first" and "second" Great Awakenings. 

And it won't do to shoehorn a lot of theology into the philosophy of the Revolution, either.  Historians have wasted entire careers trying to demonstrate the influence of religion on the American Revolution--and they always fail.  What stands out is the rise of secularism in eighteenth century America, culminating in the Revolution.  It might be that the Revolution itself could not have happened had the secularization of the colonists not taken place first.

I suggest that my fellow historians reverse direction and start asking a completely different question:  How did secular humanism transform the history of religion in colonial America?  Here's an answer suggested by Mark Noll, perhaps our most distinguished historian of American religion, and himself a devout Christian.

The Great Awakening was a failure, in two different senses.  First, Awakeners wanted to stem the decline in religiosity revealed in those numbers above by reimposing strict Calvinism across the board.  It did'nt work.  In fact, it backfired.  It provoked so much public bickering among the clergy that their standing fell further.  And having failied to reimpose Calvinism, it left American Christianity devoid of a philosophical core.  What filled the void?  Two ideas, mainly.

First, Christians rejected the Calvinist idea that the only route to the truth was through God and put in its place the Lockean idea that humans could, through the use of their capacity to reason, arrive at the truth on their own.  This was heresy, but it was as nothing compared to the second idea that Christian ministers started espousing:  Through the exercise of their moral senses, humans could also arrive at morality on their own.  Oh, yes, of course, God gave us reason and a moral sense, but there was no gainsaying what had happened to Christianity in the eighteenth century.  It had been secularized. Infected, some would say, by the principles of the English and Scottish Enlightenments.

If that's the "religion" that shaped the Revolution, the enemies of secular humanism are still not off the hook.  Now for the punchline...

The wave of evangelicalism that swept the United States beginning in the 1790s was not really a "second" Great Awaking at all.  It was not a continuation of the earlier failure.  It was something else.  What, precisely?  Well, nothing "precisely," but a lot of things.  And one of the things that evangelicalism was in the "New Nation," I suggest, was a reactionary assault on the secular humanism of the Revolution. 

It still is.

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Solomon and FAIR

Don Herzog: May 24, 2005

No, no, not the Biblical king's legendary wisdom.  The Supreme Court has granted cert. in a long-festering dispute between the federal government and law schools.  The feds want to ensure that the military can participate in on-campus interviewing of law students for jobs.  The law schools want to stick to their nondiscrimination policy, affirmed by the American Association of Law Schools.  That policy holds in part:

A member school shall pursue a policy of providing its students and graduates with equal opportunity to obtain employment, without discrimination or segregation on the ground of race, color, religion, national origin, sex, age, handicap or disability, or sexual orientation.  A member school shall communicate to each employer to whom it furnishes assistance and facilities for interviewing and other placement functions the school's firm expectation that the employer will observe the principle of equal opportunity.

And, you guessed it, the military's "don't ask, don't tell" policy on gays and lesbians runs afoul of the policy.  Or so the law schools think.  So, as you'll see, they've resisted letting the military interview along with everyone else.

You can read the AALS policy, and much more legal documentation than you want to, here.  Relax, I don't propose to offer an exhaustive analysis of what's at stake.  The case comes bulging with procedural technicalities and doctrinal intricacies.  But besides cluing you in to an intriguing puzzle that might have slipped under your radar, I do want to press one point.  The capsule history to date:

1980s:  acting on their own nondiscrimination policies, some law schools begin to exclude the military from on-campus interviewing.  (Before "don't ask, don't tell," the military of course had more discriminatory policies.)

1990:  the AALS adds sexual orientation to its nondiscrimination policies.

1994:  Rep. Gerald Solomon (R-NY) proposes an amendment to the annual military appropriations bill requiring the Department of Defense to deny funding to any educational institution that denies military recruiters access.  Solomon declares that he wants to

tell recipients of Federal money at colleges and universities that if you do not like the Armed Forces, if you do not like its policies, that is fine.  That is your First Amendment right.  But do not expect Federal dollars to support your interference with our military recruiters.

Despite objections from DoD itself, the amendment passes.

late 1990s:  Further statutes and regulations expand the scope of the Solomon Amendment.  They threaten to withhold funding to offending units such as law schools not just from DoD, but from other federal agencies as well.  (For a while, they include financial aid for students.)  And they threaten not just offending law schools, but their parent universities, with the loss of DoD funding.  By the way, Congress has carved out an exception for schools with "a longstanding policy of pacifism based on historical religious affiliation," which I think they have every right to do, and which I'm glad they did.

1999:  DoD regulations allow a school to escape the Solomon Amendment sanctions provided that it "presents evidence that the degree of access by military recruiters is at least equal in quality and scope to that afforded to other employers."

For some time, the law schools and the military had a reasonably amiable implicit agreement.  The law schools found some symbolic way to mark their interests in their nondiscrimination policy and the military still had no problems interviewing law students.  The schools, for instance, would put announcements of military interviews in their libraries instead of their placement offices, or they'd put the military's interviewers just off campus or in ROTC ofices instead of at the school.  But this amiable agreement collapsed.

2001:  post 9/11, DoD decides that only precisely identical access to that given other employers will qualify as access "equal in quality and scope."  DoD alerts schools that "in today's military climate," anything less "sends the message that employment in the Armed Forces is less honorable or desirable than employment with other organizations."  So the amiable agreement collapses.  By 2003, every law school has buckled under, rather than risk the loss of millions of federal dollars.

2004:  Congress puts the language of the 1999 DoD regulation in a statute.  Most observers assume Congress wanted to lock DoD into its post-9/11 stance.  But I actually think the agency would still have room to revert to its older interpretation of that language, the one permitting the amiable agreement.  (The general rule under Chevron is that agency interpretations will be upheld unless they're manifestly unreasonable readings of the statute.)

FAIR, or Forum for Academic and Institutional Rights, is a cover for an anonymous group of law schools that have challenged the Solomon Amendment as unconstitutional.  They want to stay anonymous to avoid government reprisals.  Though you might find it curious, the case is centrally about the first amendment.  The law schools want to express their opposition to employers' discrimination against gays.  It is wholly uncontroversial in first amendment law that symbolic actions, from sleeping on the Washington Mall to burning a flag, can qualify as protected speech, and no one here denies that.  So here, those token gestures — where the announcement is posted, where the military conducts their interviewers, and the like — arguably count as speech.  They enabled the law schools to convey their chosen message about employment discrimination.  And the DoD's instrumental interests in talking to students were unimpeded, or at least we now have on the record gushing letters from DoD officials to law schools to that effect.

The law schools also have an argument that requiring them to accord the military identical access would force them to convey a message they don't want to convey:  something of the form, we approve of the military's employment policies.  That reading of the requirement is properly controversial.  But again, it is wholly uncontroversial in first amendment law that the state cannot require you to say something you don't want to say, cannot dragoon private actors to serve as its billboards.  The government may not require students to salute the flag or require drivers to use license plates with political slogans.

Sparing you the procedural complications, I'll just say that FAIR lost in the district court and won in the third circuit.  There are a host of first amendment issues in play, and I'll spare you those, too.  I want to press just one point on the merits.

I've argued that generally, your constitutional rights don't protect you against state actions that happen to burden those rights.  They protect only against state action aimed deliberately at those rights.  And I've suggested that a merit of that stance is that it saves courts from "balancing" various interests.  Here, for instance, it would be lunacy or worse to imagine that courts should decide the matter by asking what they think of discrimination against gays, or how important it is to law schools to oppose that discrimination, how important to the military to preserve the version of it they have under "don't ask, don't tell" and to demand identical access.  It would be lunacy, too, to describe the law schools' policy as "anti-military."  It happens to fall in this instance on the military.  But on its face and as a matter of its actual justification, it's a policy against discriminating against gays.

More generally it would be lunacy to think that a court should try to decide what the right policy is.  The government has made its policy calls, and the law schools have made theirs, and now the courts have to decide whether the government has done something unconstitutional, not whether it has made a sensible policy judgment.  Plenty of crummy policies are perfectly constitutional.  In that abstract way, this problem is just like the conflict unfolding between the Spanish government and the Church.  That one happens to be occasioned by gay marriage, but you miss the point if you think you can figure out who's right just by deciding whether you approve of gay marriage.

Policy firmly aside, then, I think Congress and DoD were within their constitutional rights every step of the way — until late 2001.  (So I'm not buying the bill of goods FAIR sold the third circuit, though I grant that the issues surrounding the spending clause and the doctrine of unconstitutional conditions are tricky.)  When the feds said to the law schools, "sorry, no binders in libraries, no interviewing offices across the street, we have to get the identical treatment other employers do," they were insisting on more than their functional interests in being able to interview law students.  They were insisting that the law schools no longer symbolically affirm their nondiscrimination policies.  Put differently, the feds were saying to the law schools, "you can't say that any more."  I think that's the only plausible interpretation of the 2001 move.  But we don't have to speculate.  Again, DoD told us why they changed the policy:  anything less than identical treatment "sends the message that employment in the Armed Forces is less honorable or desirable than employment with other organizations."  But may the government tell people, under pain of coercion, "don't say what you want to say; say what we want you to say"?  That's a classic loser under first amendment law.

I'm less impressed by the claim that giving the military interviewers identical access qualifies as forced speech.  But I'm fully persuaded by the other side of the claim:  when DoD pushed past the terms of the amiable agreement, they were acting to prevent the schools from conveying their chosen message.  I suppose the government could try to argue that its legitimate functional interests in interviewing law students were actually impeded by the law schools' symbolic figleaves.  But they haven't even attempted that argument.  In their legal pleadings, they've been blithely asserting that "common sense" tells us that it's true.  That won't do.

Again, the reasons to care about this dispute aren't centrally about whether the military or the law schools are right about discrimination against gays.  They're about the ability of the government to push other institutions around even when those institutions are already giving the government what it has a legitimate claim to.  You'll know you're taking constitutional law seriously once you can see the possibility that the law schools have a constitutional right to the amiable agreement even if you think the law schools' policy is inane and even if you adore the military.

Addendum later that day:  You might brush off FAIR's claim in this way:  you might think that the government is entitled to contract or not with whomever it likes, just like any other market actor.  So you might think that if the government chose to react to law school employment discrimination policies by refusing to contract, it would be well within its rights.  Settled caselaw emphatically rejects that view.  In this case, the Court ruled that a new Democratic sheriff could not fire the nonDemocrat employees of the sheriff's office.   In this case, the Court similarly ruled that a new Democratic public defender could not fire the Republican assistant public defenders in the office.  In this case, the Court ruled that a county could not refuse to renew a contract with an at-will employee on the ground that he had been an outspoken critic of the county board of commissioners.  And in this case, the Court ruled that a city could not remove a tower from its list of approved contractors on the ground that he had contributed to the mayor's opponent and put out signs for him.

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May 22, 2005

What is freedom, part 4,782

Mika LaVaque-Manty: May 22, 2005

Here are two examples of how people can exercise cherished freedoms: One, you buy some land in the country — 20 acres, say — and because you don't like snow-mobilers or hunters or hikers or just 'coz, you put up a chain link fence around it and lots of "No trespassing" signs. Two, you love the outdoors and rejoice in the fact that wherever you go, you'll be able to head into the woods without having to worry about fences or "No trespassing" signs, knowing that pretty much everywhere you can pick berries, collect mushrooms or wildflowers, swim in lakes and even camp a night or two.

The former is familiar to everybody in North America. The latter may strike North American readers as not a freedom at all, not least because it conflicts with the former. But it is a real freedom. While my point here is not to adjudicate between the two freedoms or advocate one over the other — they do conflict, but both have their places and uses, as far as I'm concerned — thinking about the two is conceptually helpful: it's one of many reminders that freedom isn't natural, but an institution, and that if one wants to defend one conception over another, one had better have arguments that are attentive to history and context.

That's a trivial point, perhaps, but I find myself needing to make it pretty often.

The second freedom, in case you're wondering, is the so-called Right of Public Access, and it's an ancient Scandinavian institution still alive and well in Sweden, Norway, and Finland. The original Swedish term allemansrätt (allemansrett in Norwegian, jokamiehenoikeus in Finnish) literally means "everyman's right." The basic idea is that it allows everybody — not only citizens —  "free right of access to the land and waterways, and the right to collect natural products such as wild berries and mushrooms, no matter who owns the land."  There are national variations on the legal status of the right and its details. In Sweden, it has been a constitutional right since 1994: "There shall be access for all to the natural environment in accordance with the right of public access" (The Instrument of Government, ch. 2, art. 18). In Norway, its details are in the Outdoor Recreation Act (which explicitly prohibits most barriers and "No trespassing" signs).

Happily, this kind of freedom comes with lots of responsibilities, and most of the detailed statutes and policies list many more "don'ts" than "mays." The Swedish slogan "inte störa, inte förstöra" captures the constraints pretty well: "Do not disturb, do not destroy." It's close to the North American "leave no trace" principle about wilderness behavior, in addition to which you can't disturb other people in nature or at their homes.

It's not surprising that the Right of Public Access hasn't ever quite existed elsewhere in Europe: Scandinavia's low population density has made it possible and in fact probably originally motivated the convention. So my point here is not to argue that it would be a nifty idea worth adopting elsewhere. Counterfactually maybe, or maybe not. (What if Leif Eriksson had stuck around and had occupied the continent with Norsemen, instead of varieties of Brits reeling from their own tragedy of the commons being the primary early occupiers?) But clearly the idea is now a non-starter, here and elsewhere. In North America a quasi-Lockean commitment to the sanctity of property rights is pretty firmly established.

I have no particular interest in arguing against that quasi-Lockean conception of freedom. In fact, I happen to like it pretty well much of the time. My point is primarily theoretical, even if the example I use is from the real world. The example is particularly interesting because it predates state institutions. The Right of Public Access is an institution, all right, but the state — in any meaningful sense of the word — is not its creator. The state eventually comes to protect it and to enshrine it in its laws, but its emergence is organic: it's a convention enforced by mutual understandings and local social pressures before the state emerges (or appears on the scene, as the case was in late medieval Finland). And so what we have as a result is that, in Scandinavia, the very idea of property in the land does not include an unqualified right to prevent others from using it.

You might think this appalling, of course. You might also think you now have an idea why those weird Scandinavians seem so fond of the intrusive welfare state. (There may be a connection, there may not be; it's a seriously difficult historical question lots of people have tried to answer.) But if you think so, you'll have to offer an argument for why it's appalling. What you can't do is say that the quasi-Lockean conception just is freedom and the Right of Public Access is not.

(I'll leave it for another post to argue why the Right of Public Access is also a liberal and an individual right.)

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May 20, 2005

blast from the past (two)

Don Herzog: May 20, 2005

It's one of my favorite pamphlets, but alas, it isn't reprinted any more.  After the author published it, he handed it off to the Association for Preserving Liberty and Property against Republicans and Levellers — yup, they don't name political groups like they used to — and they circulated it widely.  Twenty-five years later, one radical was appalled to notice a newspaper ad for a new edition.  "It is false," he thundered, "that whilst some have exorbitant fortunes, the rest are happy."  Circulating such views "in the midst of desolation and ruin" was outrageous, "mocking the poor man's sorrow — jesting upon his misery."  Eight years after that, a conservative newspaper reprinted the whole text.  It was a dangerous time, they warned, "when the servant turns upon his master, and the shopman claims to be a philosopher," and the venerable old pamphlet was called for once again.

How the mighty have fallen:  this delicious pamphlet hasn't even been publicly available online.  But I have boldly taken matters in hand and now it is.  The pamphlet is William Paley's Reasons for Contentment, Addressed to the Labouring Part of the British Public, first published in 1792.  And that "British" matters.  I know of nothing like this piece from contemporary America.  As you read on, think about what that means about those American conservatives devoted to tradition, and especially the Anglophiles in the crowd.  Why are they devoted to foreign traditions?  Anyway, you should read Paley's deathless pamphlet.  All nine pages of it.  But here's a quick overview.

To put it politely, the English authorities were jittery in the aftermath of the French revolution.  A helpful soul, Paley — moral philosopher, theologian, and Anglican churchman — put his shoulder to the wheel to try to quiet radical demands for equality.  His pamphlet insists so vehemently on the superiority of poverty that it becomes entirely mysterious why the rich don't try to find some poor suckers to take their wealth off their hands.  Or for that matter why they don't just burn it outright.

Those grumbling about inequality, Paley sweetly explains, should recall that property rights are good for one and all.

The laws which accidentally cast enormous estates into one great man's possession, are, after all, the self same laws which protect and guard the poor man.  Fixed rules of property are established, for one as well as another, without knowing, before hand, whom they may affect.  If these rules sometimes throw an excessive or disproportionate share to one man's lot, who can help it?  It is much better that it should be so, than that the rules themselves should be broken up:  and you have only one side of the alternative or the other.  To abolish riches would not be to abolish poverty; but, on the contrary, to leave it without protection or resource.

Then too, Providence has ensured that most people can be happy without wealth.  Workers are busy, so they have no time for the "irksome and tormenting" thoughts that afflict the wealthy in their leisure.  "Frugality itself is a pleasure."  The poor provide more easily for their children:

All the provision which a poor man's child requires is contained in two words, "industry and innocence."  With these qualities, tho' without a shilling to set him forwards, he goes into the world prepared to become an useful, virtuous, and happy man.

The poor even get more pleasure from food and drink.

The rich who addict themselves to indulgence lose their relish.  Their desires are dead.  Their sensibilities are worn and tired.  Hence they lead a languid, satiated existence.  Hardly any thing can amuse, or rouse, or gratify them.  Whereas the poor man, if something extraordinary fall in his way, comes to the repast with appetite; is pleased and refreshed; derives from his usual course of moderation and temperance a quickness of perception and delight, which the unrestrained voluptuary knows nothing of.

Much has changed since Paley's day.  Today's poor are far better off materially.  (Would Paley regret the change?  Should we?)  And while I am deeply committed to equality of opportunity, and think that that requires equality of starting points, I flatly reject equality of outcomes.  (I've sketched my views here and in the two preceding posts linked in that one.)  Then too I think some of Paley's sentiments are exactly right for governing one's private life.  That sardonic reproach, "he who dies with the most toys wins," captures something important.  Whether Paley's sentiments properly play a role in justifying public policy is another matter.

So I don't produce Paley to sneer that the opposite of what he says is true.  Nor do I produce him to insinuate that conservatives haven't budged since his day.  Instead, I want to raise two questions.  One:  how much of what Paley says is right?  Two:  how much of what Paley says still circulates in public debate?  Well, three questions.  (These longwinded academics with their insufferable homework assignments!)  Three:  how much overlap is there between one and two?

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May 17, 2005

hail stranger well met

Don Herzog: May 17, 2005

How acutely embarrassing that we manage to get by with a linear or one-dimensional political mapping that comes from seating arrangements in the French national assembly of 1789.  I refer, of course, to the hallowed left/right distinction that gives this blessed blog its name.

Last week, the Pew Research Center published a study proposing that the American public falls into 9 discrete groups.  Alas, it's still a left/right divide:  anyway they have 3 very strongly Republican groups, 3 very strongly Democrat, and 3 independent, moderate, or sullenly withdrawn.  But it's also an advertisement for how stunningly robust that divide remains.  The Pew researchers took a bunch of survey questions and used clustering techniques to come up with these divisions.  Roughly speaking, they played with the data to find groups of people whose responses to groups of questions were far away from the rest of the population.  They wanted to find powerful statistical correlations that also made intuitive sense.  And they did.

You can poke around the data yourself.  But I was most interested in the "enterprisers."  No, sorry, they don't sound like libertarians.  (50% of "liberals" support free trade agreements, but only 47% of enterprisers do.  Given the sample size, that difference doesn't look statistically significant, but still....)  They're closer to what social scientists have long and controversially branded as "authoritarian personality" types, a category repulsive for its blend of political criticism and medical pathology.  (Later that day:  in response to Tad Brennan and others, I emphasize that this is a complaint about the category itself, that conceptual way of carving the terrain, and no complaint at all about anyone who actually was grouped in the category.)  Regardless, they're 9% of the public and they claim to have voted for Bush by a margin of 92% to 1%.  (I say "claim to" not to challenge their enthusiasm, but because of the usual hazards of reliance on self-reporting.  The survey also reports that 74% of the general public voted in the last presidential election, but in fact just over 60% did.)

Here's the cluster of questions defining enterprisers.  They're far more likely to agree that:

  • Most corporations make a fair and reasonable amount of profit.
  • Stricter environmental laws and regulations cost too many jobs and hurt the economy.
  • Using overwhelming military force is the best way to defeat terrorism around the world.
  • Poor people today have it easy because they can get government benefits without doing anything in return.

Just for comparison, here's the cluster for which disproportionate approval defines "social conservatives," the 11% of the population who claimed to break 86% to 4% for Bush:

  • Homosexuality is a way of life that should be discouraged by society.
  • The growing number of newcomers from other countries threatens traditional American customs and values.
  • Poor people today have it easy because they can get government benefits without doing anything in return.
  • Business corporations make too much profit.

You can immediately see how uneasy political coalitions hold together — and how they might splinter.  Tap resentment of the undeserving poor and the enterprisers and social conservatives rally to your cause.  Talk too much about profits and you antagonize one group or the other.

But back to the enterprisers who fascinated me.  They're overwhelmingly white, overwhelmingly male, and wealthy (as wealthy as the "liberals" in the mapping).  83% think creationism should be taught along with evolution in public schools.  (62% of social conservatives would teach creationism instead of evolution.)  They're the most likely to approve of torturing suspects to gain information and the most likely to approve of pre-emptive military strikes.  They are the only group among the nine opposed to the government's guaranteeing health insurance.  Yes, really:  Pew reports that 65% of the American public favor or strongly favor "the US government guaranteeing health insurance for all citizens, even if it means raising taxes."  Dr. Frist, are you on the line?  Dr. Frist?  Hello?  Quick, someone call an ambulance:  Dr. Frist seems to have fainted.

And the enterprisers' responses are the most lopsided on all these questions, too.  They worry the least about the deficit, but are the most opposed both to raising taxes and cutting military spending to deal with it:  they're also the most in favor of cutting domestic spending to deal with it.  A sizable 63% of them oppose government programs to help women and minorities get better jobs and education.  A hefty 73% of them approve the Patriot Act.  A bulging 82% of them want all of Bush's tax cuts made permanent.  A colossal 90% of them oppose gay marriage.  (Only 84% of the social conservatives do.)  A whopping 92% of them want to drill in Alaska's Arctic National Wildlife Refuge.  You almost never see numbers like this in public opinion work.  I much doubt that this 9% of the public — or any other 9% — boasts well-informed views on these matters.  You might think there's not much to know about gay marriage.  But the merits of the Patriot Act? or drilling in ANWR?  You need to know a lot to have a reasonable view.  So those numbers suggest that something crudely ideological is going on.

I will astonish you by reporting that I am no enterpriser.  (You can learn your own classification with these questions.  Though some questions made me chafe, I came out "liberal."  So I may be boringly predictable, but at least I don't have to worry about David V.'s banning me from the blog.)  Still, I don't shrug and assume that I have nothing to say to these people
or that they have nothing to say to me.  I don't think of them as repellent beetles and myself as the judicious political entomologist.  (The Pew researchers are the entomologists here, and they have my species duly charted, too.)  And I wouldn't flaunt my private suspicion, which I confide in a whisper only to you, that the enterprisers' views are powerfully structured by gender, by a tough-guy or macho stance.  I don't think that they simply have "other values" and that we can't really argue about "values."  Instead, I assume we could have reasonable debate.

I might start, for instance, by pressing them on their views about government largesse to the needy.  I might find it useful to get them to grapple with the views and experiences of the 9% "disaffected," defined in part by being much more likely to believe that "Hard work and determination are no guarantee of success for most people."  Facts are not just stubborn things; they're useful, too.  I echo Stephen Darwall's citationThe New York Times has just published suggestive data on class and mobility.

Or I might just ask:  guys (and remember, they are overwhelmingly men), what's so great about oil drilling in the Arctic, anyway?

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May 15, 2005

Class and Politics

Stephen Darwall: May 15, 2005

Today's New York Times begins a three-week series of articles on "Class in America" that will lay out the results of recent research on the "greater role" that class plays "in American life."  Class is prominent also in David Brooks's column for today: "Meet the Poor Republicans."  The juxtaposition is especially interesting.

Brooks has consistently identified and insightfully analyzed recent Republican success in attracting lower-income voters.  Here he notes that George Bush "won the white working class by 23 percentage points" and asks "why so many lower-middle-class waitresses in Kansas and Hispanic warehouse workers in Texas now call themselves Republicans?"  His answer, supported by recent Pew Research Center data, is that "they agree with Horatio Alger," they believe in socioeconomic mobility, that "most people can get ahead with hard work."  According to the Pew study, although only 14 percent of lower-income Democrats have that belief, 76 percent of lower-income Republicans do.  This is surely a remarkable difference.

This is where "Class in America" comes in.  It has been well known that economic inequality began to increase in the mid-1970s.  People disagree about how bad this is in itself, but those who think it isn't usually do so because they believe there is sufficient socioeconomic mobility, that people can overcome their socioeconomic birthplace by hard work.  There was a time when research might have seemed to bear that out.  In 1987, Gary Becker "summed up the research by saying that mobility in the United States was so high that very little advantage was passed down from one generation to the next."  Many researchers believed that the effects of socioeconomic birthplace tended to wash out over two generations.

The problem is that the past research turns out to have been deeply flawed, and more recent research has shown significantly less, and significantly decreasing, mobility.  So much so, indeed, that the Times quotes my Michigan economist colleague, Garry Solon, as saying that the argument that  inequality doesn't matter because of socioeconomic mobility is not "respectable in scholarly circles anymore."  A study by the Federal Reserve Bank of Boston, for example, found less mobility in the 1980s than the 1970s, and less still in the 1990s.

None of this should be surprising to my generation.  (I'm fifty-eight.)  The opportunities for parental investment in our children's "skill set"--SAT preparation, music lessons, organized sports activities (of a dizzying variety), and exotic travel, educational, and even community service opportunities--certainly goes well beyond anything we ourselves experienced.  And for their part, elite colleges and universities compete ever more feverishly for students with the most impressive portfolios (never mind legacy admits).

It is interesting to contemplate the possibility that the phenomenon of increased lower-income Republicans is based (even partly) on a belief in socioeconomic mobility that is, at least increasingly, a myth.

To his credit, David Brooks notes that "when you look at how Republicans behave in office, you notice that they are often clueless when it comes to understanding the lower-class folks who have put them there."  And Brooks spends half his column arguing that Republicans should be doing significantly more to level the playing field and less to protect corporate interests.  Might there be an opportunity here for Republicans and Democrats who are concerned about obstacles to socioeconomic mobility to make common cause?

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The Never Ending Story: Tax Cut Politics

Neil Buchanan: May 15, 2005

Taxes have always been a political cookie jar.  Few politicians, it seems, can resist the temptation to curry favor with the folks back home by voting for some kind of change in the tax code.  The spectacle has always been fascinating, if not truly strange.  Now, for reasons that are little understood—and perhaps mostly accidental—there is every reason to believe that things will only become stranger.

One of the issues roiling Congress these days is the proposal to make permanent the repeal of the estate tax.  Under current law, the estate tax is being decreased (by a combination of larger exemptions and lower rates) from 2001-2009, then eliminated entirely in 2010, then returned to its 2001 level in 2011 and thereafter.  Like many other provisions in Bush’s 2001 tax bill, therefore, estate tax repeal is set to be undone unless the law is changed.

I strongly support the estate tax.  Like many economists and tax specialists, I see the estate tax as a misunderstood and underused part of our menu of taxes.  The point of this post, though, is not to defend the estate tax but to

explore the implications of the curious procedural rule that brought us the odd prospect of a tax being reduced, then disappearing entirely for one year, then reappearing in its original form.  The rule, which was adopted for understandable (though debatable) reasons, now threatens to make tax policy and politics even less sensible than ever.

In a previous entry on Left2Right, I mentioned that Congress has at its disposal several ways to make its promises seem more reliable.  In particular, I mentioned the possibility of requiring a super-majority vote for a future Congress to change a law.  One way to create such a requirement, of course, is through a constitutional amendment.  But that is not the only way.  The U.S. Senate has imposed upon itself a super-majority rule, requiring 60 votes for any tax cuts that lose revenue more than ten years into the future.  When Bush’s 2001 tax bill was up for a vote, fewer than 60 Senators were willing to make the tax cuts permanent.  Hence, the Bush team was forced to sunset everything in the bill after 10 years.  Some provisions of that law have since been made permanent by super-majority votes, but many others—including repeal of the estate tax—have not.

The original purpose of the Senate’s super-majority requirement, of course, was to prevent a mere majority of the Senate from approving tax cuts that would raise deficits into the indefinite future.  It might seem far-fetched now, but there was a time in the eighties and nineties when Republicans were eager to prevent deficits from getting out of control.  Now, with deficit spending a key part of the Bush economic plan, one might think that these requirements for broad consensus on tax cuts would be an ironic roadblock, with Republicans’ previous procedural maneuvers now preventing them from cutting taxes—representing precisely the kind of budget discipline that the earlier Senators intended to impose on their successors, though none of them could have predicted the role reversal.  Instead, the super-majority rule has created a political goldmine, allowing Republicans in Congress to revisit tax cuts endlessly, granting single-year extensions to some laws and constantly providing grist for the anti-tax rhetorical mill.

The opposite approach is represented by President Reagan’s first major tax bill, passed by a Democratic Congress in 1981.  In that bill, Congress and the President responded to a decade of high inflation by recognizing that higher prices were pushing people into higher tax brackets, paying higher marginal tax rates on incomes that were lower in terms of buying power.  Up until 1981, Congress had simply passed a tax cut bill every few years, readjusting the tax code to undo the effects of inflation.  This approach was ad hoc and unpredictable, though, so the 1981 bill included a provision to index various parts of the tax code, in particular the cutoff points for the various rate brackets (to prevent “bracket creep”).  Such indexing allows everyone to know that, even without legislative action, the tax code will be changed each year to prevent taxes from going up inexorably with inflation.  This is good economics, in particular because it allows people to know that the tax code will be changed neutrally according to objective economic data.

The problem, of course, is that automatic indexing prevents any current member of Congress from bragging to their constituents that they voted to cut taxes.  Taxes have been “cut” in this way every year since 1981, but no one gets any credit for doing so.  While I am not aware of any serious proposals to eliminate indexing, there is every reason to believe that the Republicans in Congress and the President have awoken to the fact that long-term tax changes are not good politics.  People talk about “fixing” the Alternative Minimum Tax (AMT), for example, but in the meantime Congress has voted for partial AMT relief on a rolling one- or two-year basis.  Might we not suspect that, even if Republicans merely stumbled onto this, they are now only too keenly aware that tax uncertainty benefits them politically—that annual, piecemeal, partial, time-limited, ad hoc tax changes are exactly what they need to keep their political base engaged and hungry for more?

In the 2004 election campaign, the Bush team claimed that John Kerry had voted for “higher taxes” several hundred times in his Senate career.  Their count included every procedural vote on a tax bill, as well as votes against tax cuts (not just votes for tax increases).  We can expect the future of tax politics to take that logic and push it to its extreme.  Having taxes constantly on the front burner means that every member of Congress will be faced with a seemingly endless series of votes to cut taxes.  Every vote against a tax cut—no matter how small the cut or how ill-advised the policy—will be a political liability.  Keeping various taxes just alive enough to force regular votes on them could be Karl Rove’s fondest dream.

The estate tax itself might well be the exception to this new rule.  It has become a big-game trophy, and the anti-tax Republicans have long been hungry to taste victory.  On the other hand, a compromise might keep the estate tax barely alive—and on the political agenda.

Either way, though, my expectations for fundamental simplification of the tax code have never been lower.  We no longer have politicians who merely want to add special provisions to the tax code to benefit certain constituents.  Now we have a majority party that is simply addicted to tax cut politics.  They do not want to cut taxes once and for all.  They want to be permanently in favor of cutting taxes.  The result will be an even bigger tax mess than we already have.

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