« May 2005 | Main | July 2005 »

June 28, 2005

under the big tent (two)

Don Herzog: June 28, 2005

So what do the Oklahoma Democrats have to say for themselves?  They don't have a platform yet, though this May 2003 statement directs the party to develop one:  ah, Democratic disorganization.  Unlike their GOP counterparts, they don't want a flurry of constitutional amendments.  Just one:  they'd like to see the Equal Rights Amendment ratified.  But they do like spending.  Please, no snickering about tax-and-spend Democrats, or I'll remind you of the obvious riposte.

They want public education for all, with no siphoning public funds off to voucher schemes, thank you very much.  (I disagree.)  They call for 'life-long learning" and "affordable higher education," with "increased and equitable funding."  "The Democratic Party of Oklahoma demands that health care, including mental health care, be affordable and accessible for every person."  And they'd like a nationally funded, single-payer system.

But what strikes me is not the usual wish-list of spending.  It's their political economy.  The state Republicans bobbled over free and fair markets.  The state Democrats seem to bobble rather more spectacularly:

We stand in full support of economic freedom for all working people including secure jobs and businesses in a global economy.

In one view, economic freedom is the opposite of security.  Maybe the party should read up on Schumpeter's "perennial gales of creative destruction," or Marx and Engels's passionate insistence that the bourgeoisie revolutionizes everything in sight.  So this makes the party look plain stupid, or as if they want to paper over dumb old protectionism with sexier names, or as if they think their audience is so gullible that they will think contradictory good things go together.  Then again, maybe the party has a more ambitious argument up its sleeve, on which adopting certain restraints opens up new, valuable options.  (Elizabeth Anderson and I have both urged the merits of such a view.)  And they do call for

democratically-governed market economies of “fair market” capitalism.

But they don't even sketch what those nice buzzwords might mean, so it's tempting to infer they're just confused.  Or whistling in the dark.  So too I'm not sure how to sort this out:

We support economic development policies and strategies that expand opportunities for ethnic and racial minorities, innercity and rural residents and other socio-economically disadvantaged people or groups to obtain capital and technical
assistance for sustainable economic and business development at the community level.

If they're worried about poverty, then they can just call for access to credit and the like to be aimed at the poor.  I can't tell how "ethnic and racial minorities" entered the mix here.

Then again they do sound a vintage nineteenth-century American theme (but alas Edward Bellamy's Nationalist newsletter seems not to be available online):  they argue that the "mega-corporation" is the enemy of (little-r) republican self-government.

We believe our democracy is controlled and threatened by mega-enterprises and propose to put an end to this consolidation of power.  We strongly advocate legislation to strengthen controls and to increase penalties for businesses that violate the public trust.

And they have ideas about how to do that.  Their opposition to corporate welfare is shared by some on the right.  (Makes you wonder why it doesn't get done.  Makes me wonder, anyway.)  Another idea is deliriously wacky in the classic populist way:  they would

End the legal fiction that corporations are entitled to rights as persons.

I wonder if they realize just how far-reaching a legal change that would be.  On other legal changes, they oppose what's travelling under the name tort reform and deplore, as I do, "an untenable incarceration rate."

So I disagree with some of it.  But maybe because I sympathize more with much of what they write, I didn't find this statement riddled with contradictions, as I did the state Republican party's.  Partisan readers may now leap to the task of proving me blindly, complacently wrong.  Ready, set....

« May 2005 | Main | July 2005 »

June 24, 2005

under the big tent (one)

Don Herzog: June 24, 2005

Blog etiquette is so damned tricky, but better safe than sorry:  hat tip to David V. for pointing me to the Oklahoma GOP platform (you can download the Word document from here — ooh, are the Okie Republicans in bed with Microsoft?) and Ralph Nader's salvo against it.  Nader indicted the extremism of the state party, the silence of the national party on such state platforms, and (surprise!) the gutlessness of the Democrats:

Call one for the Republicans.  They are neither squeamish about their off-the-wall declarations nor worried about their internal contradictions from the state to the national level.

Well, let's see.

The Oklahoma party calls for state and federal legislation to prohibit same-sex marriages and domestic partnerships, and also a constitutional amendment to limit marriage to one man and one woman.  I'm not sure if this is to leave states the room to adopt civil unions, or just carelessness — the party thanks "the members of the Platform Committee who gave two long Saturdays to produce this document" — but I'd prefer to think it's the former.  (And yes, it could be carelessness:  in short order the platform supports and opposes the same Taxpayer Bill of Rights for the state.)

They do like constitutional amendments, that's for sure.  Apparently the great document is radically deficient, though the party would rescind the state's previous call for a new constitutional convention.  It needs a balanced budget amendment, an amendment to protect "innocent human life" (they approve of capital punishment), another giving the president the line-item veto, still another imposing Congressional term limits, and a balanced federal budget amendment.

And more generally the party seems confused or thoughtless on the links between what's the right policy and who should decide:  that's what really struck me, far beyond Nader's impulse that they are voicing the ugly right-wing agenda that President Bush can't publicly avow.  Take schooling.  The party rejects all national curricula, aptitude testing, and "education standards," but also (in the meantime?) has some ideas about how to teach federally mandated AIDS education.  The party declares,

Locally elected school boards should have the authority to determine and implement all public school curricula, policies and procedures for their districts.

Hurrah localism! But with nary a blush, the platform promptly adds,

The traditional family unit, consisting of a (husband) man, (wife) woman and child(ren), is the foundation of our social structure.  The Oklahoma Department of Education should uphold and teach this definition of family at all levels of public education.

So much for the authority of those locally elected school boards.  The platform dances the same odd two-step again:

Where evolution is taught, intelligent design must be taught as well.

But then, right away:

Local school boards should maintain the right to choose curriculum and textbooks without state limitations.

You will forgive Oklahoma's staunch localists for not trusting the state GOP.  So too the boards will apparently all have to go along with this:

The Ten Commandments should be posted in all public schools as a means of moral guidance....

I guess the party hasn't yet heard that the Supreme Court ruled such displays unconstitutional in 1980, just on the basis of the cert. petitions, that is without hearing oral argument.  Oh, well, add another constitutional amendment.

There's lots more, of course.  The state and Congress should both adopt English as the official language, and all government documents should be available only in English.  (I think this a bad idea.)  The party is hawkish on national defense.  They're fond of Israel, not of Cuba.  They "oppose monetary foreign aid" and "believe the United States should consider withdrawal from the United Nations."  They reject gun control — and free trade pacts.  Indeed they'd like us to withdraw from the World Trade Organization.  (But they repeatedly insist on the merits of free markets.)  They'd eliminate the Bureau of Alcohol, Tobacco, and Firearms — all right, I knew Republicans didn't dote on that one — and also the Office of the Surgeon General.  And a robust commerce clause jurisprudence is useful when you dislike labor unions:  they'd like a national right-to-work law.

And there's lots more than that, but enough.  I enjoyed puzzling over the platform.  Unlike Nader, I didn't see it as the ugly and publicly unspeakable underbelly of Republican dominance.  If you have just two parties — sorry to my libertarian pals, but you know what I mean — you should expect each of them to be a big tent.  So it's a mistake to expect a party platform to hang together in any deeply structured way.  If you've got a story on which all these commitments do in fact hang together, I might be amazed.  Or I might just think your story is too clever and is printed on Silly Putty, so you can stretch it as needed.

Still, the Oklahoma Republican Party had a committee spend two long Saturdays on this document, and I suppose they voted to adopt it, and they're publicizing it, too.  There may be bits and pieces of it aimed at very specific blocs of voters.  But I bet there are plenty of Republicans, in and out of Oklahoma, that like almost all of this platform.  And if it's not deep principle that makes the thing hang together, what kind of cultural or political grammar does?

And then I wonder if there's a magically perverse psychological dynamic that runs this way.  "I'm going to be a Republican:  I like their positions on x, y, and z.  They can chuck the rest of it, as far as I'm concerned."  Then, after a year or six of being a Republican, you discover that the rest of it is pretty attractive, too.  Not because you've been persuaded of anything.  Just out of the same odd solidarity that creates screaming sports fans who scorn their opponents.  You know, the kind who delight in slogans like, "Nuke the Gay Whales."  The kind who were Republicans when the party stood for fiscal responsibility, and remained Republicans, maybe without even missing a beat, when the party sailed away on ballooning deficits.  The kind who were Republicans when the party was staunchly isolationist and skeptical of WIlsonian idealism in foreign policy, and remained Republicans, maybe without even missing a beat, when the party shifted gear into nation-building and the spirited pursuit of democracy and human rights abroad.

"Come on, Don, you think only Republicans are subject to these foibles?"  Nope.  Next time, I turn to the Oklahoma Democrats.

« May 2005 | Main | July 2005 »

June 21, 2005

flags, markets, and the commerce clause: a small, true fable

Don Herzog, The Bartlett Files: June 21, 2005

Rummaging around for new materials for my first amendment course, I stumbled upon the Freedom to Display the American Flag Act of 2005.  The remarkable Mr. Bartlett introduced it in January.  Here's its operative language:

A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.

No, the fate of the republic doesn't ride on this one:  as I say, mine is a small, true fable.  The bill languished several months in the Committee on Financial Affairs, at which point they lurched awake and referred it to the Subcommittee on Housing and Community Opportunity.  There, I confidently predict, it will rot.  So I suppose all it will do is provide the representative some nice campaign fodder.  (Not that he needs it.  He enjoys the considerable advantages of incumbency, and he's the richest of Maryland's representatives.)  Still, the bill invites a few points.

One:  I think everyone should be free to display the flag.  And I don't myself have much of a taste for those condos and planned communities which tightly govern paint color, shrubbery height, and the like.  They look like upscale versions of those dreary endless blocks of dismal concrete apartments from East Germany or the Soviet Union.

Two:  But of course I'm free not to buy such a condo.  (So I don't.)  There's a housing market, after all, and if some people want to sign sales agreements that waive their control over the external appearance of their own units, what's it to Congress?

Three:  And constitutionally, what could it be to Congress?  You could argue that this is a valid exercise of the commerce clause.  But that's absurd after Lopez.  I'll spare you the soporific lecture, but no, Raich doesn't change that.  Briefly, the Gun-Free Schools Act was a pretextual use of the commerce clause:  it narrowly reached areas around schools.  Mr. Bartlett's bill is pretextual and narrow in just that way.  The feds' Controlled Substances Act, though, is fully general, and just happened to fall on medical marijuana users.  So Raich is properly controlled by this old chestnut.  (That means I'm with Orin Kerr over at Volokh on this one; you can read much more about the issues there.)  Somber warning:  people who hijack this thread to denounce Raich will promptly be flogged with a wet noodle.  Recidivists will find their hard drives melting.

Those of us who really do care about federalism — that includes me can't jump up and down indignantly about federalism when we disapprove of some Congressional act on policy grounds, but then look the other way when we approve.  (For the record, I think medical marijuana use just fine, and would rather the feds not run around regulating marijuana anyway.  But that doesn't bear on the constitutional question.)  So conservatives shouldn't have to figure out whether they care more for flag display or voluntary agreements in markets.  They should instead say to Rep. Bartlett, "please, sir, Congress has no right to do anything about this matter."

And all of us, left and right, should wish that our representatives would stop introducing grandstanding legislation that they know perfectly well is constitutionally hopeless.

« May 2005 | Main | July 2005 »

June 17, 2005

dormitory relativism

Don Herzog: June 17, 2005

A while ago, David V. argued that relativism is hopeless, and helpfully distinguished it from nearby views.  But there's a version of relativism that I like.  Relax, I know better than to argue philosophy with David.  My version is all crass stuff about politics and social life, of no philosophical interest at all.  But it raises some illuminating questions about the promises and pitfalls of liberalism, or so I think.

Many years ago, one of my favorite undergraduates had grown up in a small town in Michigan's upper peninsula, with a devout and extremely conservative family.  They'd all fretted about her moving to Ann Arbor, that notorious hotbed of leftist excess.  But she was smart as a whip and eager to get a first-class education.  When the university awarded her buckets of financial aid, she decided to attend.

Ann Arbor didn't faze her
— the place doesn't really live up to, or down to, its reputation but she did find her freshman dormitory startling.  I won't pretend to recall her exact wording, but the litany ran something like this.  "Down the hall is a lesbian with short, spiked, bright blue hair.  There's an Orthodox Jew from New York, and, um, I haven't met many Jews before.  My roommate spent a year working with peasants in Guatemala and came back fired up about Marxism.  And the first time I said grace in the dining hall, a crusading atheist wanted to argue with me."

Living in close quarters with exotic strangers:  the perfect hothouse setting for the growth of dormitory relativism.  And I think it's a gorgeous flower, not a weed.

Dormitory relativism says, oh, it's all just taste or personal preference.  You like atheism, I like religion; you embrace the sexual revolution, I prefer staying a virgin; you're a radical, I'm a conservative.  As long as you don't leave the bathroom a mess and don't keep me up at 2:00 in the morning with your stereo blasting, we can get along just fine.  To vary the metaphor, dormitory relativism is the perfect peace treaty for getting along with people with sharply different views.  Instead of bitter arguments and hatred, we get amiable shrugs.

To be defensible — to stay crassly political and eschew any claims about ethics or justification or epistemology or ontology — dormitory relativism has to be an as-if, wink-nudge-nod collective understanding.  Dormitory relativism doesn't say, "there is no point arguing about these matters because there's nothing there but personal preference."  That's rotten philosophy.  Dormitory relativism says, "because we don't want to argue about these matters, let's pretend that they're mere personal preference."  Let's pretend that morality, politics, religion, and more are just like the ice cream parlor, where we think there are no  reasons or criticisms or arguments or justifications to exchange about flavor.  (I confess I don't even believe that about ice cream.  I think members of the boring vanilla lobby are in fact making a reprehensibly boring mistake.   They could and should be ordering chocolate, which is manifestly better.  The nature and depth of our devotion to chocolate is not adequately rendered by saying that we happen to prefer it.  A universe without chocolate is objectively worse than one with it.  But let that go for now.  When David organizes a new blog to discuss The Theory of Value and High-Fat Dairy Products, I'll weigh in.)

As long as people are more or less aware that dormitory relativism is an as-if pose, and as long as they know which settings to invoke it in, it's a big winner.  The mischief sets in when they get confused and give it the rotten-philosophy interpretation.  Undergraduates sometimes adopt this pose in class, to get off the hook of having to argue.  They start too many sentences with phrases like, "I guess my own opinion is that...."  And then they start getting ironic and frivolous about their own deepest commitments.  But they just need a brisk little sociology lesson.  Dormitory relativism is fine for the dorms, fine for the dining halls, fine for parties; but it's a big loser in class discussion, and a big loser in figuring out what to make of your life.

Compare a parallel mistake in economics.  Take the common claims:  "utility is subjective," or "preferences are given or exogenous."  Those might draw a disciplinary boundary:  here in economics, we take that stuff as given.  Fine by me.  Or they might be taken as a deep claim about what utility and preference really are.  No, sorry, that's a train wreck.  We can always raise further questions about utility or preference.  We can critically appraise why people pursue what they do; we can ask for explanations and justifications.  De gustibus est disputandum, even if economists aren't interested.

I'd press the same point outside the academy.  Dormitory relativism helps you get along amiably enough when you leave your homogeneous small town and head to the big bad city.  It helps you sleep peacefully knowing that the unmarried couple down the hall are probably having sex in a position you find revolting, that too many Americans are smoking marijuana, and that millions of Americans don't own a Bible and don't even care that they don't.  But you can't actually defend other people's rights to those choices by arguing that "really" questions of value are all mere personal preference, although a surprising number of people have fallen for that dreadful argument.  After all, if questions of value are really matters of preference, then the merits and proper sphere of toleration and autonomy are matters of preference, too.  Instead you have to get serious and argue about autonomy and rights.  In sorting out those matters, dormitory relativism is useless.

« May 2005 | Main | July 2005 »

June 15, 2005

So You Want to Live in a Free Society (3): The fundamental freedom-based argument for private property

Anderson on Political Economy, Elizabeth Anderson: June 15, 2005

In this series of posts, I've been developing a view about the rules we should institute if we want to live in a free society.  On the view being constructed, we take freedom as our foundational value, in terms of which institutions, including property rights, are justified.  In taking freedom as our starting point, we treat property rights as instrumentally valuable for promoting freedom.  Particular property rules are to be justified according to how well they promote freedom.  This approach is distinct from one that starts with certain assumptions about what we own, as natural rights theories do, or that assumes that we are entitled to certain property rights in virtue of moral desert or productive contributions.  I've already argued that such approaches are incompatible with capitalism.  Arguments for private property rights based on freedom, however, are compatible with capitalism.

Of course, it matters how freedom is defined.  In my last post, I explained two conceptions of freedom:  as one's opportunity set, and as personal independence (non-domination).  In this post I'll just be looking at the notion of freedom as opportunity sets, and see where it takes us.  I'll be arguing that this notion of freedom delivers, fairly straightforwardly, a strong case in favor of institutions of private property, in a way that narrower notions of freedom as bare non-interference cannot do.

Some commentators to my last post suspect that I've stacked the deck already with this notion of freedom as opportunity sets.  Rob Perelli-Minetti claims, for instance, that "I don't think most economists who are neither socialists nor some sort of Marxist would find the notion of liberty as opportunity set either helpful or meaningful."  To the contrary, it's a conventional way of  representing freedom among  non-Marxist, non-socialist economists.  Amartya Sen has done the best work formalizing this notion of freedom in the mathematical language of economics. He shows how it yields a neat freedom-based argument for free markets.  (See Sen's extensive discussions of representations of freedom in terms of opportunity sets in his Rationality and Freedom.  Note especially ch. 17, where he presents a nice proof of certain freedom-optimizing properties of competitive market equilibria.  His proof moves neoclassical analysis from its traditional focus on welfare to a focus on freedom--something any libertarian should welcome.)

Arbitrary Aarvark worries that I've strayed too far from Hayek with my account of freedom as opportunity sets.  But Hayek clearly stated that the fundamental justification for private property rights and free markets lies with the expansion of freedoms, understood as opportunities, that it provides.  The proper aim of legislators in passing laws, he says, is "increasing the chances for all . . . in the sense . . . [of] increasing the opportunties that will become available to some unkown persons." (Law, Legislation, and Liberty, vol. 2, p. 126).  It's worth quoting him at length:

Since rules of just conduct can affect only the chances of success of the efforts of men, the aim in altering or developing them should be to improve as much as possible the chances of anyone selected at random. . . . All the law can do is to add to the number of favorable possibilities likely to arise for some unknown person and thus to build up an increasing likelihood that favorable opportunities will come anyone's way. (L,L,L, 129-130).

For Hayek, the fundamental justification of property rights and rules of free exchange is to expand the "range of [favorable] opportunities" (p. 130)--that is, freedoms--that people have.  I heartily agree.

Still, suspicion lurks of a stacked deck, and appeals to Hayekian authority may not be enough to allay them.  Some people think that the freedom that matters is a formal notion of freedom as non-interference with whatever opportunities one has, however few and undesirable those opportunities may be.  They suspect that if we go beyond this notion of freedom as non-interference, toward the alarmingly "positive" notion of freedom as actual opportunities to which people have effective access, we'll move inexorably toward some awful "redistributive" policies that libertarians hate.

The latter suspicion, that notions of opportunity freedom lead us toward "redistributive" policies, is correct, as I'll be arguing in later posts.  But the former suspicion, that I have stacked the deck by selecting a conception of freedom tailored in advance to lead to that conclusion, is mistaken.  You can't head these developments off at the pass by insisting on evaluating institutions strictly by the formal notion of freedom as non-interference.  For that path leaves one unable to defend capitalist private property, too.

Fellow-blogger Don Herzog alluded to the reason why freedom-as-non-interference is an inadequate conception of freedom in a recent post.  If the only kind of freedom that matters is that no one intentionally interfere with one's formal freedom of action, and not that one's opportunity set be large and full of worthwhile options, then freedom-lovers would have to oppose traffic laws, stop lights, and so forth, for interfering with freedom of movement.  The result of a lack of such laws, however, is not actual freedom of movement, but, in areas of high traffic density, gridlock. (And, in areas of high traffic flow, grave danger.)  To be sure, in a state of gridlock, one has the formal freedom to choose any movement in one's opportunity set--which amounts to being able to rock forward and back a couple of inches from bumper to bumper, getting nowhere.  Some freedom!  By contrast, if we give up certain formal freedoms--to run red lights and stop signs, to drive indiscriminately across lanes--we get in return a vastly expanded opportunity set, including the ability to actually get to places one wants to go, more safely and quickly than if we hadn't given up those freedoms.  The point of formal freedom of movement--the right to move around, without coercive inteference by the state or other people--is that it is instrumental to expanding actual opportunities to move around where one wants to go.  Merely formal freedom of movement, with nowhere to move to, or nowhere worth moving to, is not an end in itself.  Different configurations of formal freedom of movement--different traffic laws--are justified by the extent of the opportunities for safe freedom of movement they enable.  Give up a little freedom-as-non-interference, get a big bundle of freedom as real opportunities to move around to worthwhile places in return.  A pretty spectacular bargain in terms of freedom, if you ask me.

Now here's the rub:  the fundamental freedom-based justification for private property has exactly the same form as tbe freedom-based justification for traffic laws.  So it depends on accepting a conception of freedom as opportunity, rather than freedom in the formal sense of non-interference.  For suppose our conception of freedom were simply that of non-interference.  Then the state of perfect freedom would be the earliest stage of Locke's state of nature, in which all the earth is held in common and everyone has a right to take whatever they want from it.  No one would have the right to coercively exclude anyone else from the use of any part of it, since that would involve interference with their freedom of action.  This entails that in the state of perfect freedom-as-non-interference, no one would be entitled to private property.

(Remember, if freedom is to be  our foundational value, then private property has to be justified in terms of freedom, and we can't help ourselves to any prior notion of natural rights to property, against which we define a moralized notion of non-interference with antecedently given rights.  That would be begging the question.  Granted, in the perfect state of freedom-as-non-interference, people couldn't seize your body, or take what you are physically holding or wearing, without coercively interfering with your freedom of action.  But if they just seized those acorns you had gathered and left on the ground for a moment, they would not be interfering with you.  No coercion would have taken place, since they would not have achieved their aims by bending your will to their desires.  Locke didn't start with any antecedently given conception of natural rights to property, either.  Rather, he justified natural rights to property in terms of their instrumental value in enabling people to advance their moral duties under the fundamental moral law--to protect, preserve, and promote human life.)

The trouble with trying to justfy private property in terms of freedom-as-non-interference is that private property essentially involves securing the owner's opportunity freedom at the expense of everyone else's freedom-as-non-interference.  This has to be a losing argument, if freedom-as-non-interference is the freedom that matters.  For private property essentially involves the use of coercive power to exclude others from using it.  It essentially involves coercive interference, or the threat of interference, with everyone else.  Common property in the earth and in things does not have this feature.  Viewed from the static point of view of freedom-as-non-interference, the institution of private property involves a net loss of freedom.

This is a reductio of the conception of freedom as non-interference as the fundamental measure of freedom, not an attack on private property.  (As I've mentioned several times before, I'm an enthusiast for private property!  I want everyone to have effective access to it!)  What matters more fundamentally than freedom-as-non-interference is opportunity freedom.  Once we shift to a conception of freedom as opportunities, the case for private property is evident.  A society containing nothing but common property would be utterly impoverished and insecure.  People wouldn't make productive investments, for fear that others would just seize the results, leaving them poorer than before.  Others would find it easier to simply take things, rather than to try to get access to valued items by being of service to others.  Properly designed private property regimes massively expand everyone's opportunity freedom by reversing these perverse incentives.  They establish entitlements that dramatically increase the probability that individuals will gain from making productive investments.  They structure incentives so that people do better by being of service to others--thereby expanding others' opportunity freedom--than by taking what others have made, and thereby reducing their opportunity freedom in some zero-sum (or even negative-sum) game.

The fundamental freedom-based argument for private property is dynamic and opportunity-based, not static and formal.  From a static point of view, private property entails a net loss of formal freedom of action, just as traffic laws do.  From a dynamic, opportunity-based point of view--one that considers the consequences for future freedoms of these sacrifices of formal freedom--properly designed private property regimes dramatically expand people's real freedoms (opportunities).  Give up a little formal freedom-as-non-interference, and get a big and growing bundle of opportunity freedoms in return.  Hayek was right: this is a spectacular bargain.  But to grasp it as a bargain from the point of view of freedom, you must embrace a conception of freedom as opportunities, not merely as non-interference.

To sum up, I've argued in this post that:

1. Opportunity freedom is a more fundamental and important type of freedom then freedom-as-non-interference.

2. Private property in things can be justified in terms of opportunity freedoms, but not in terms of pure freedom-as-non-interference.

3. The fundamental form of a freedom-based justification for a coercive law is:  if you give up this freedom, you'll get a much more valuable set of freedoms in return.

« May 2005 | Main | July 2005 »

June 14, 2005

blast from the past (four)

Don Herzog: June 14, 2005

Yup, I've been rummaging around in the archives again.  Here are some desultory thoughts on an old account of politics and freedom:

  1. Every person has the right to govern himself, to fix his own goals, and to make his own way with a minimum of governmental interference.
  2. It is for government to foster and maintain an environment of freedom encouraging every individual to develop to the fullest his God-given powers of mind, heart and body; and, beyond this, government should undertake only needful things, rightly of public concern, which the citizen cannot himself accomplish.
  3. Within our Republic the Federal Government should act only in areas where it has Constitutional authority to act, and then only in respect to proven needs where individuals and local or state governments will not or cannot adequately perform.  Great power, whether governmental or private, political or economic, must be so checked, balanced and restrained and, where necessary, so dispersed as to prevent it from becoming a threat to freedom any place in the land.
  4. It is a high mission of government to help assure equal opportunity for all, affording every citizen an equal chance at the starting line but never determining who is to win or lose.  But government must also reflect the nation's compassionate concern for those who are unable, through no fault of their own, to provide adequately for themselves.
  5. Government must be restrained in its demands upon and its use of the resources of the people, remembering that it is not the creator but the steward of the wealth it uses; that its goals must ever discipline its means; and that service to all the people, never to selfish or partisan ends, must be the abiding purpose of men entrusted with public power.

I like the libertarian sound of 1, but it isn't all that informative.  Everything will hang on what counts as "interference."  And you can see instantly, from 2, that the authors aren't night-watchman-state types.  Indeed you might like a crisper account of what "an environment of freedom" is, and just how a government should "foster and maintain" it.  I shrink from repellent fantasies of state-sponsored propaganda (the neighborhood bullhorns bark out, "Arise, free citizens, and salute dawn's early light in whatever way you choose!").  But the authors of this document were perfectly sane, so I've no interest in lampooning their open-ended language.  And they believe in a common good, or "needful things ... of public concern," and don't believe that individuals acting privately can solve all problems.

3 has a crucial idea, one sadly missing in some of today's political debate.  "Great power, whether governmental or private, political or economic":  it's a mistake, the authors think, to think that power is foreign to the private realm or to economics.  So the now familiar mapping — state=coercion, economy=voluntary — is a mistake, too.  Try this:  your action isn't free, isn't voluntary, if you had no reasonable alternatives.  Then, as we'd say, you do what you have to do.  What follows?

A law requiring you to do (or not do) something under threat of criminal punishment deprives you of freedom.  But private actors make threats, too.  "You have to work overtime or you're fired" is an exercise of power if you don't have a reasonable alternative to your job.  (Your employer is not the least bit mistaken or unidiomatic when he says, "You have to.")  That your employer has a right to do that, absent any statutory limits — though it always surprises my students, at-will employment remains the dominant background norm of American law — is neither here nor there.  Before you say that someone can always get another job, remember abandoned company towns like Flint.  Or ask yourself whether state laws don't matter because you can always move to another state, or federal laws don't matter because you can always move to another country.

We don't even need an individual making an explicit threat to see how action can be unfree.  If the only housing you can afford is in a crime-ridden neighborhood, or by a badly polluted landfill site, then you have to live there.  So it may be — they don't say — that the authors' abstract language about "an environment of freedom" would license or require government action to give people more reasonable alternatives.

"But then the state is redistributing property, rights, and more!"  If that means that the state is changing the status quo, you bet.  In that sense, classical liberals' quest for equality under the law was redistributive, too.  No more special church courts for priests and ministers to slip away; no more legal privileges guaranteeing that aristocrats couldn't be charged with trespass and the like.  Charges of redistribution have bite when they mean the state is doing something wrong.  If you have a theory of property rights up your sleeve on which, say, it's wrong for the state to fund social welfare and supply minimal but decent public housing, both at taxpayer expense, I'd like to see that theory.  I've read a whole lot of property theory and I've yet to see an even vaguely plausible case that property rights extend so far.

Hobbes, Bentham, and other canonical writers sometimes write as if more law equals less freedom.  That's clearly wrong.  Some laws do nothing but offer new options.  Take the laws on how to write a will, which give you the magical ability to dispose of your property after your death.  And even laws with a canonical "thou shalt not" form can open up new options by closing off others.  Take right-hand drive, which enables you to zip along in your steel-and-glass death machine at alarmingly high speeds within inches of other drivers.  If we were free to drive wherever and however we wanted, no one could drive at all.  So too, laws against assault and the like help enable us safely to walk past strangers.  If you don't think that's amazing, I've got some travel destinations for you.

Because of the passive voice, 3 doesn't tell us whose job it is to check, balance, restrain, and where necessary disperse concentrated power.  Despite the commendable emphasis on what Europeans call subsidiarity, assigning political power to the lowest levels that can plausibly handle tasks, I think the unnamed actor has to be the federal government.  And then we have a familiar and formidable political problem, how to tame a federal government strong enough to manage other powerful social actors.

4 of course warms my heart, because I have here defended equality of opportunity and interpreted that as equality of starting points, while disavowing any interest in equality of outcomes.  And I suppose the call for government to supply a floor beneath which no helpless citizen may fall would warm my co-blogger Elizabeth Anderson's heart, too, even if she, like I, would insist that this is a demand of justice and freedom, not just of compassion or charity.

And 5 is dead right, too.  The authors think the government has important responsibilities in setting up the ground rules.  But they know that it is not properly the government's job to solve all problems
— and that free citizens have to balefully watch the government, eternal vigilance being the price of freedom.

Oh, yeah, I didn't identify the document.  Sorry.  It's the 1964 Republican Party platform.  Right, the one Barry Goldwater ran on.  So these days, at least, politics has a reverse Doppler shift:  as that platform recedes, it looks bluer and bluer.  No wonder that we bloggers have been critically assailed by our faithful commenters for defending its core commitments.  I wonder what today's GOP leaders think about these matters.  I wonder what party loyalists do.  I never dreamed there was so much space to Goldwater's right.

« May 2005 | Main | July 2005 »

June 12, 2005

truth in advertising

Don Herzog: June 12, 2005

I've been reading back issues of the Federalist Patriot, a conservative e-newsletter ("the Internet's most subscribed e-journal," as they boast) that also runs a website.  (Yes, such are the heroic sacrifices your humble blogger makes for you.)  It isn't very good, unless you take delight in, oh, watching John McCain win the "Alpha Jackass Award" for his position on campaign finance.  And when it is bad, it is horrid:

American University professor Daniel Dreisbach and University of Chicago law professor Philip Hamburger argue, correctly, that the "wall of separation" has its ironic and erroneous origin in 1947.  It was then that Supreme Court Justice Hugo Black (whose anti-Catholicism was nourished during his days in the KKK) ruled in Everson v. Board of Education that the First Amendment created a "high and impregnable" wall between religion and government.  That decision forbade New Jersey from spending public funds for religious education — and you know the rest of the story.

Well, let's see.  In Everson, Black did write the majority opinion.  And he did write,

The First Amendment has erected a wall between church and state.  That wall must be kept high and impregnable.

But he upheld New Jersey's right to reimburse bus fares for children attending parochial schools, the only "spending public funds for religious education" at issue in the case.  I know, picky, picky:  what's a little factual accuracy among friends?

Addendum:  I offered some thoughts on Everson here.

« May 2005 | Main | July 2005 »

June 11, 2005

growing up is hard to do

Don Herzog: June 11, 2005

Yesterday a meeting of the House Judiciary Committee came to an abrupt halt.  The chair of the committee, F. James Sensenbrenner, Jr. (R-WI), pounded his gavel and stormed out, while Democrats clamored to be recognized.  Democrats continued to argue and listen to testimony even though their microphones had been cut off.  C-SPAN2 continued their coverage for a while — what's a poor producer to do? — with a caption explaining what had happened.

The subject was reauthorizing the Patriot Act.  Sensenbrenner was peeved that Democrats were discussing the war on terror and Guantanamo Bay.  And he'd already been high-handed at the hearing.  When Mike Pence (R-IN) accused Amnesty International of endangering US soldiers, Sensenbrenner wouldn't let Amnesty's chair respond.

So much for government by discussion.  Sensenbrenner was in the news just ten years ago, for supporting a constitutional amendment to ban burning the flag.  It was just like Great Britain's ban on slandering the queen, he explained, "since we don't have a queen here."

Maybe he'd like us to have a king instead.  And here I thought the Senate was the aristocratic body.  Live and learn.

« May 2005 | Main | July 2005 »

June 10, 2005

13166 & LEP

Don Herzog, The Bartlett Files: June 10, 2005

13166 is the number of the Executive Order promulgated by President Clinton on 8/16/00.  It requires federal agencies and those receiving federal funding to take reasonable steps to accommodate persons with LEP, or limited English proficiency.  And it casts the failure to take such steps as a violation of Title VI of the Civil Rights Act of 1964.  The relevant statutory language, § 2000d, provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

So Clinton's thought was that failure to provide language assistance is tantamount to discrimination on the basis of national origin.  The order has been controversial from the start.  Congressmen routinely introduce legislation to overturn it, most recently here.  But the Bush administration has staunchly supported the order.  Testifying before the House Judiciary Committee on 3/16/05, assistant attorney general R. Alexander Acosta declared,

This administration is committed to improving the accessibility of these programs and activities to eligible LEP persons, a goal that reinforces its equally important commitment to promoting programs and activities designed to help individuals learn English.  As part of President Bush's Firstgov En Espanol initiative, the Civil Rights Division has established a Spanish language site.  During a two week period, nearly 5 percent of visits to our website homepage were to our Spanish language homepage a very significant percentage.  As we go forward, our focus in this area has turned to training federal grant recipients so they will be able to provide language assistance for individuals who need access services.

www.lep.gov puns on LEP to produce, Let Everyone Participate.  (Better than producing LEPers.)  Other federal units have fallen in line:  see for instance this EEOC site.

Executive Order 13166 doesn't single out Spanish for special treatment.  But its requiring "reasonable steps" to be taken "without unduly burdening" an agency's or funding recipient's work hooks up on the ground with the numbers.  The 2000 Census reports that 47 million Americans, or 18% of the population, spoke some language other than English at home.  (That figure is up from 14% in 1990, 11% in 1980.)  28 million of them spoke Spanish:  about half said they could also speak English "very well."  Obviously things will vary with the kind of government program or the geographic location.  But often the order requires having a Spanish interpreter on hand, making printed forms available in Spanish, and the like.

The politics of 13166 are of course wrapped up in calculations of winning votes.  Since those calculations always turn my eyelids into a mysterious lead alloy, I'll leave them to you.  Then there are issues of cost:  here are OMB's calculations.  But I don't think we can dispose of the matter by fretting about dollars, not least because the language of reasonable steps and undue burdens allows consideration of costs.  Before bickering about whether the costs are too high, we should figure out whether 13166 is a good thing.  I should note that a recent legal challenge by ProEnglish was tossed out:  the judge ruled they and the doctors they assembled had no standing to challenge HHS regulations adopted pursuant to the order (Colwell v. HHS, 2005 US Dist. Lexis 6556).

Here are two kinds of reasons Americans should speak English.  One:  they'll be better off in the job market.  (Here's a study on the convergence of low-wage jobs, food processing, rural Minnesota, and immigrants with little or no ability in English.)  On 2/13/01, pressing for a constitutional amendment to declare English our official language and require that all government records be kept in English, Rep. John Doolittle (R-CA) quoted "Ernesto Ortiz, a South Texas ranch hand":

"My children learn in Spanish in school so they can grow up to be busboys and waiters.  I teach them in English at home so they can grow up to be doctors and lawyers."

That goes directly to questions about teaching English as a second language, what language math or science should be taught in, and the like, but not directly to the merits of 13166.  Market-minded conservatives would ordinarily be happy to assure us that we can count on rational self-interest to sort out these matters.  After all, it's not as though 13166 requires people not to learn English.  If government agencies besides schools make it easier to get along without good English, are they complicit in making many persons with LEP an economic underclass?

Two:  English-speakers will be able to participate in a broader range of democratic debate.  Yes, the public sphere is already segmented in lots of ways:  by race, by ideology, and so on.  But if you speak English you can eavesdrop pretty easily on what's going on elsewhere, as indeed some are eavesdropping on this blog.  The language barrier is harder to get across.  (Google's translation function remains mostly good for laughs.)  And here there is a common good or public interest that goes beyond whatever incentives particular individuals have.

Plenty of persons with LEP will improve their English; if the usual sociological dynamics surrounding immigration kick in, even more of their children will.  But surely some won't:  they will remain in linguistic enclaves.  13166 requires federal agencies and those funded by them to take reasonable steps to accommodate them.  In health care, a translator can be the difference between life and death.  An economist might notice that at the margin, 13166 will encourage some persons with LEP not to improve their English.  But it takes time to learn English, too.  Barring dramatic changes in immigration policies,  there will be a steady supply of new immigrants who may need to deal with government agencies and programs while they're learning.  Given the steady stream of new immigrants, 13166 is, if you see what I mean, a permanent transition policy.  Still, a perverse effect of helping out those making the transition to English is making it easier for others to stay in their linguistic enclaves.

I take that perverse effect seriously, but my inclination — no more than that; as I said before, I'm still puzzling over these issues is that 13166 is the right policy.  Yes, the questions of cost and implementation are real.  Rep. Doolittle also protested that

The Maine Medical Center is now required to post a "Interpreter Availability Sign" to be "printed at least in English, Farsi, Khmer, Russian, Serbo-Croatian (Cyrillic and Roman alphabets), Somali, Spanish and Vietnamese."

And that requirement, following a settlement with HHS, may well be overkill:  I don't know.  Most obviously, I'd want to know some of the linguistic demographics of Maine.  But on the question of principle, I think Clinton got this one right.  (And believe me, I've never been a Clinton fan.)  Government bureaucracies and programs are difficult enough to navigate without overcoming language issues, and a proud nation of immigrants shouldn't be pretending that only English-speakers are genuinely welcome.

Yes, we could leave it to private, voluntary actors to supply translation help.  That's a reasonable view:  I think it would be wrong to say that people have some strong legal entitlement to the existence of 13166, a view that alas is summoned up by the link to Title VI and discrimination on the basis of national origin.  The link to the statute gives the executive the right to do something here, and I'd think cheerfully about rolling over and playing dead to the objection that 13166 is properly a call for the legislature, not the executive.  But I'd add that as an interpretation and enforcement of what a statute requires, 13166 is not at all out of line with plenty of other executive orders.  (Here is a quick primer on the constitutional and jurisdictional questions.)  My view, anyway, is that 13166 is on balance a good policy, but not at all that it's obligatory.

By the way, the constitutional amendment to declare English our official language was introduced again this year.  I somberly report that the remarkable Mr. Bartlett is one of three co-sponsors.  But I learned that very late in the day, and you're wrong if you imagine it has any bearing on my views on the merits.

One more thought, about which I am pretty damned confident.  If you think 13166 a mistake, if you think that government affairs should all be conducted in English, or that it's wrong to require hospitals receiving federal funding to take reasonable steps to provide interpreters, you need an instrumental reason why.  That is, you need to explain what good consequences follow from your preferred regime, or what bad consequences follow from 13166.  If you think instead that regardless of the consequences, Americans should speak English or America is for English-speakers, then I think you have a picture of American identity that's drastically illiberal.  It's as bad an idea as requiring all of us to share a communion.  I don't think moral or political judgments are always consequentialist.  But I think here they properly are.  And that leads to one last, gentle, diagnostic suggestion.  If you're not just opposed to 13166, but indignant or passionately exercised by it, ask yourself why.

« May 2005 | Main | July 2005 »

June 07, 2005

thinning the cement of society

Don Herzog: June 7, 2005

Once upon a time, as all these quaintly old-fashioned but truer-than-true tales must begin, people thought social order required consensus on morality and religion.  The unity of Christendom was an international principle.  After the Reformation, people settled for each nation having its own religion:  Cuius regio, eius religio, as the reinvigorated old tag went.  But as long as people thought the job of the state was to promote the one true religion, they fought bitterly over who'd be in control.  No wonder 16th-century Europe saw religious civil wars and associated atrocities.  In 1572, tens of thousands of Huguenots (French Protestants) were murdered by their Catholic neighbors.  The pope celebrated the St. Bartholomew's Day massacre, ordering bonfires, bell-ringing, a Te Deum, a mural, and a special commemorative medal.  He even greeted the messenger bearing the great news with a reward of one hundred crowns.  This quasi-official faltering defense of the pope, hanging on the claim that his early news was inaccurate, fails to explain the actions he continued to take weeks and months later, or the language of the medal, UGONOTTORUM STRAGES, that is, Huguenots slaughtered.

Liberals realized that trying to command agreement on such fundamentals as religion wasn't a great strategy for securing social order.  On the contrary, it was a recipe for grotesque disorder.  So they offered deflating accounts of what the state was for.  Not promoting the good life, but securing mere life, would be fine.  Not leading subjects to salvation, but protecting their lives and property, would be fine.  I like to quip that a liberal society is held together by driving on the same side of the road, the willingness to fill out tedious bureaucratic forms in triplicate, and the patience to stand in line to pay other people money.  Regardless, the key insight is that thinner social cement actually sticks.  Thicker cement makes everything fall apart.

But surely there's more to it than that.  Surely liberal citizens have to agree on the importance of not harming each other, and more generally it would be nice if they had at least rough agreement on reasonable ground rules for regulating their social cooperation.  I say rough agreement, and not more than that, because it would require tyranny to get any more, and because here as elsewhere conflict can be creative.  Vibrant disputes can give us good new ideas.

A lot remains to be worked out here.  How much agreement and uniformity do we need?  On what issues?  And I'm not going to pretend I have all the answers up my sleeve.  Consider the vexing problems surrounding language.  Should all Americans know English?  Should the government insist on it?  Can that be done without implicitly undercutting bilingual competency and all that goes with it?

From ProEnglish, an important player for over a decade:


  • Adopting laws or constitutional amendments declaring English the official language of the United States, and of individual states.
  • Defending the right of individual states to make English the official language of government operations.
  • Ending bilingual education (e.g. foreign language immersion) programs in public schools.
  • Repealing federal mandates for the translation of government documents and voting ballots into languages other than English.
  • Opposing the admission of territories as states unless they have adopted English as their official language.


  • In a pluralistic nation such as ours, the function of government should be to foster and support the similarities that unite us, rather than institutionalize the differences that divide us.
  • Our nation's public schools have the clear responsibility to help students who don't know English to learn that language as quickly as possible. To do otherwise is to sentence the child to a lifetime of political and economic isolation.  Quality teaching of English and America's civic culture should be a part of every student's curriculum.  The study of foreign languages, as an academic discipline, should be strongly encouraged.
  • All candidates for U.S. citizenship should be required to demonstrate a knowledge of English and an understanding of our system of government, at a level sufficient to vote in the language of our country English.
  • Naturalization ceremonies, including the Oath of Citizenship, must be conducted in English.
  • The right to use other languages must be respected.

And here's a fabulous collection of materials from the other side of this debate.  Bitch, Ph.D. has some telling vignettes about her childhood classroom experiences, and how language connects up with other matters.  Again, I claim no expertise in this domain.  But here are some rudimentary thoughts.  Language isn't just a colorless tool we use to shove ideas back and forth.  Though linguists and philosophers fret about just how to put the point, language really is intimately wrapped up with culture, if not how people think or see the world.  So requiring public schools to do all their teaching in English looks like an assault on ethnic communities and parents' autonomy.  But it is true that children who can't speak good English will have a hard time of it in some job markets.  And they'll be shut out from important arenas of political debate, too.  I don't doubt that there are ugly nativist and racist reasons for rallying to Official English.  But you have to be a lunatic to think that there are no plausible reasons on ProEnglish's side of the debate.

Way back in 1923 the Supreme Court struck down a Nebraska statute dictating that "No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language."  But states remain free to decide how to run their public schools.  Would vouchers solve the problem?  Should we just let parents choose whether they want their children to be educated all or partly or not at all in English?  Ordinarily we can trust parents to make good decisions for their children.  And ordinarily we don't have to worry much about conflicts between families, local communities, and the broader society.  I'm not at all sure this is the ordinary case.

There's room for cautious comparison with other countries' experience, say the ongoing controversies over Quebec's infamous Bill 101 or the varying legally guaranteed rights of Basque (Euraska) speakers in different regions of Navarre.  But my sense is that the contrasts with the US case are more striking than the similarities.

And I balk when ProEnglish declares that "the function of government should be to foster and support the similarities that unite us."  (I prefer what President Bush said yesterday in marking Black Music Month:  "our diversity makes our country strong.")  That smacks of the pre-liberal view on social order that remains a disaster on wheels — indeed, that in our wonderfully diverse society is more disastrous than ever.  So I confess it makes me suspicious of their agenda.    But I'm no multiculturalist, either.  I'm baffled, and still trying to figure these issues out.  Is sharing a language more like sharing communion? or more like right-hand drive?  How thin can the cement of a liberal society get, anyway?

That's the abstract puzzle.  Next time I'll take up a particular policy problem.

« May 2005 | Main | July 2005 »