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What Social Animals Owe to Each Other

Friday, May 20, 2022

TGIF: True Liberals Are Not Conservatives

The relevance of F. A. Hayek's essay "Why I Am Not a Conservative," the postscript to his important 1960 book, The Constitution of Liberty, is demonstrated at once by the opening quote from Lord Acton:

At all times sincere friends of freedom have been rare, and its triumphs have been due to minorities, that have prevailed by associating themselves with auxiliaries whose objects often differed from their own; and this association, which is always dangerous, has sometimes been disastrous, by giving to opponents just grounds of opposition. [Emphasis added.]

Who among true liberal advocates of individual liberty and free social evolution -- aka libertarians -- would deny the truth of that observation?

Hayek had European conservatism in mind when he wrote his essay, and for years, American conservatives, who still had affection for true liberalism, hastened to point this out. As Hayek wrote:

Conservatism proper is a legitimate, probably necessary, and certainly widespread attitude of opposition to drastic change. It has, since the French Revolution, for a century and a half played an important role in European politics. Until the rise of socialism its opposite was liberalism. There is nothing corresponding to this conflict in the history of the United States, because what in Europe was called "liberalism" was here the common tradition on which the American polity had been built: thus the defender of the American tradition was a liberal in the European sense.

Later in his essay, he elaborated that "in the United States it is still possible to defend individual liberty by defending long-established institutions. To the liberal they are valuable not mainly because they are long established or because they are American but because they correspond to the ideals which he cherishes."

But he noted that "This already existing confusion [over labels] was made worse by the recent attempt to transplant to America the European type of conservatism, which, being alien to the American tradition, has acquired a somewhat odd character." The confusion was compounded, Hayek wrote, when socialists began to call themselves liberals.

Many still suffer from this confusion today. But change has been afoot because the illiberals of the left and right increasingly want no part of true liberalism or the label -- and in a way, that's good. Those on the left who call themselves progressives or socialists don't like the label liberal (or neo-liberal) because they associate it with the current permanent bipartisan prowar regime beholden to special corporate interests (so we liberals still have work to do), and virtually all conservatives eschew the label because they don't want to be mistaken for libertarians. That's also good.

So Hayek's essay has new relevance for America. Would Hayek have been surprised? He would have distinguished national conservatism from neoconservatism because of the latter's cosmopolitanism. But how could he embrace as bonafide allies people who view imperialist war as a way to create "national greatness" and social solidarity, as the neocons do? Hayek would have agreed with Abraham Bishop who said in 1800 that "a nation which makes greatness its polestar can never be free; beneath national greatness sink individual greatness, honor, wealth and freedom."

So let's look at Hayek's problem with conservatism. For him, the "decisive objection" is that "by its nature," conservatism can do no more than slow down the change that progressives have initiated. That's not good enough: "What the liberal must ask, first of all, is not how fast or how far we should move, but where we should move." He acknowledged that although the liberal's differences with the "collectivist radical" are greater than his differences with the conservative, the latter "generally holds merely a mild and moderate version of the prejudices of his time." Thus "the liberal today must more positively oppose some of the basic conceptions which most conservatives share with the socialists."

Explicitly illiberal American conservatives would take issue with Hayek here, but I think Hayek was right. To the extent that conservatives want to use the state to impose their values -- through censorship, immigration and trade restrictions, vice prohibitions, antitrust law, cultural protectionism, and the like -- they indeed share conceptions with their enemies on the left. The ends may differ, but the means bear an uneasy resemblance. (The late Leonard Liggio used to say that the original socialism arose as a middle way that promised to use conservative means, that is, the state, to achieve liberal ends, that is, industrial progress and widespread wealth. Later a "new left" turned against industrial progress and disparaged the goal of material abundance for all.)

"The main point about liberalism," Hayek wrote, "is that it wants to go elsewhere, not to stand still." My sense is that in the last few years, elements of the right have come to appreciate Hayek's point. They became fed up with mere holding actions and have resolved to push a "positive" program. Unfortunately, it's a state-saturated program that ought to make genuine liberals sick.

The exception appears to be foreign policy. Right-wing nonintervention seems to have two justifications: first, that the U.S. government is wrong to think it can design the cultures of other nation-states, and second, that the trillions of dollars the government spends on the military and foreign populations could be better used for domestic matters, including "border security." So even in foreign policy the liberal and conservative bedfellows ought to be uncomfortable.

The liberal's wish not to stand still is the crux of the matter.

There has never been a time when liberal ideals were fully realized and when liberalism did not look forward to further improvement of institutions. Liberalism is not averse to evolution and change; and where spontaneous change has been smothered by government control, it wants a great deal of change of policy. So far as much of current governmental action is concerned, there is in the present world very little reason for the liberal to wish to preserve things as they are. It would seem to the liberal, indeed, that what is most urgently needed in most parts of the world is a thorough sweeping away of the obstacles to free growth. [Emphasis added.]

Hayek's embrace of a social order that guarantees change may seem to conflict with other things Hayek wrote that seem more conservative. But I think that may be mistaken. I take him to say that although the new is not necessarily the good, people must be free to try new ways to flourish. It is one thing to personally default to tried and true until something new proves itself worthy (because a tradition's value may not be immediately apparent), but quite another to empower the state to impede innovation and entrepreneurship, which is disruptive insofar as it is constructive. (Hence I would change Schumpeter's creative destruction to creative disruption.)

Hayek proceeded to enumerate several differences between liberal and conservative attitudes. The first, as already suggested, is that "one of the fundamental traits of the conservative attitude is a fear of change, a timid distrust of the new as such, while the liberal position is based on courage and confidence, on a preparedness to let change run its course even if we cannot predict where it will lead." This for Hayek explained the liberal enthusiasm for the free market's generation of spontaneous if unpredictable order, and the conservative lack of enthusiasm for such.

Relatedly, unlike liberalism, conservatism displays "its fondness for authority and its lack of understanding of economic forces. Since it distrusts both abstract theories and general principles, it neither understands those spontaneous forces on which a policy of freedom relies nor possesses a basis for formulating principles of policy." For Hayek, the conservative's "complacency ... toward ... established authority ... is difficult to reconcile with the preservation of liberty."

Hayek could have been describing Sen. Josh Hawley and the thinkers behind national conservatism when he wrote: "In general, it can probably be said that the conservative does not object to coercion or arbitrary power so long as it is used for what he regards as the right purposes. He believes that if government is in the hands of decent men, it ought not to be too much restricted by rigid rules."

Hayek faulted the conservative for lacking -- indeed, for disparaging -- abstract political principles, which are the key to peaceful coexistence among people within a society who have different moral visions:

What I mean is that he has no political principles which enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions. It is the recognition of such principles that permits the coexistence of different sets of values that makes it possible to build a peaceful society with a minimum of force.

And this point of Hayek's is especially pertinent:

Connected with the conservative distrust of the new and the strange is its hostility to internationalism and its proneness to a strident nationalism. Here is another source of its weakness in the struggle of ideas. It cannot alter the fact that the ideas which are changing our civilization respect no boundaries.... It is no real argument to say that an idea is un-American, or un-German, nor is a mistaken or vicious ideal better for having been conceived by one of our compatriots.

Hayek continued that "it is this nationalistic bias which frequently provides the bridge from conservatism to collectivism: to think in terms of 'our' industry or resource is only a short step away from demanding that these national assets be directed in the national interest...."

As he closed his essay Hayek confessed that since the word liberal had been corrupted, thanks to the French Revolution and other forces, by "overrationalis[m], nationalis[m]" and socialis[m]," it had ceased to a good label for his political outlook, which he shared with Tocqueville and Acton: "What I should want is a word which describes the party of life, the party that favors free growth and spontaneous evolution. But I have racked my brain unsuccessfully to find a descriptive term which commends itself." (He found libertarian "singularly unattractive" and "manufactured.")

I could go on quoting Hayek's essay -- which is not to say I agree with all of it -- but I fear that would unduly impose on the reader. So I recommend that the entire essay by the self-described "unrepentant Old Whig" be devoured forthwith.

Friday, May 13, 2022

George H. Smith

The sad news has belatedly come to my attention that the philosopher and historian George H. Smith, 73, died on April 8. He had been in poor health. I was fortunate to have known George since the 1970s and to have had many conversations with him. He was self-educated, multidisciplinary, and nothing short of brilliant.

Smith wrote several books and hundreds of articles on the philosophy, history, and intellectual history of individualism, classical liberalism, anarchism, and freethought. His output was remarkable and can be found in literary and video form at Libertarianism.org. His work is also available at Amazon.com.

TGIF: Alito's Challenge to Libertarians

In his recently leaked first draft of an opinion that would reverse the abortion-rights cases Roe v. Wade and Casey v. Planned Parenthood, Supreme Court Justice Samuel Alito gives Americans a choice between judges who read their personal preferences into the Constitution and judges who recognize only rights that they find "rooted in [our] history and tradition" and deem "essential to our Nation's 'scheme of ordered Liberty.'"

Is that it? Neither choice seems an adequate safeguard for individual freedom.

Whether one likes the result or not, Alito's draft in Dobbs v. Jackson Women's Health Organization raises important issues apart from abortion. Indeed, he unintendedly draws attention to whether the Constitution can be relied on to protect liberty. Unsurprisingly, Alito is not concerned with rights as a philosophical matter. That's not his job. Rather, he's concerned only with constitutional rights -- liberties that satisfy criteria making them worthy of protection by the government. By that standard, an otherwise perfectly defensible right might not qualify. That would be left to the legislative process. That's the constitutional game. The framers understood this, though some libertarians do not.

The Constitution may seem to clearly endorse a general notion of liberty in the 14th Amendment's due process clause, but does it really? Alito, like other conservatives, thinks not:

Historical inquiries ... are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the same thing” In a well-known essay, Isaiah Berlin reported that “[h]istorians of ideas” had catalogued more than 200 different senses in which the terms had been used.

In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution.

So, Alito writes elsewhere in his opinion, "[G]uided by the history and tradition that map the essential components of our Nation's concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term 'liberty' when the issue involves putative rights not named in the Constitution" -- such as a woman's putative right terminate a pregnancy.

Note that Alito uses the term ordered liberty. That's a concept in the case law, apparently first enunciated in 1937, that "sets limits and defines the boundary between competing interests.” Why must the term liberty be so qualified? Because, he writes, “attempts to justify abortion [and other things --SR] through appeals to a broader right to autonomy and to define one's 'concept of existence' prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history."

If that counts as "proving too much," libertarians would say let's do it.

Alito hastens to add that other court-protected rights that are not deeply rooted in history -- such as the rights to contraception, interracial marriage, and same-sex marriage -- are not jeopardized by his opinion because abortion is unique. How confident can others be about that?

Putting on his historian's hat, Alito accuses the majority in Roe of misstating history and writes that abortion even at an early stage was never regarded as a right in Anglo-American common or statutory law and was generally illegal throughout the United States. Not everyone agrees with Alito's historical account.

Alito asserts that when justices ignored history, they engaged in "the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York." That was the highly influential 1905 case in which the Court struck down a state law limiting the hours that bakers could work per day and per week because the law violated freedom of contract under the 14th Amendment. Progressives hated the ruling from the start, but some conservatives later came to hate it too because it relied on the concept of substantive due process, by which judges could invent rights that conservatives abhorred. Libertarians also ought to have apprehensions about substantive due process. Such seemingly benign legal notions, including "unenumerated rights," are double-edged swords.

The juridical problem in distinguishing putative rights that are constitutionally protected from those that are not is that no constitution could name more than a few rights. Where does that leave all the rights left out? (We could say there is only one right, namely, the right not to be subjected to aggression, and that anything more specific rights are examples of the principle. But that would incite a never-ending controversy over what constitutes aggression.)

The Ninth Amendment, which says that rights not mentioned were still retained by the people, seemed to be the solution to the problem. That amendment has not played an important role in constitutional law to the frustration of libertarians, but danger lies in that amendment if it were to be taken seriously. The danger is that pseudo-rights could be embraced by Supreme Court justices. Rights theory is like a butterfly. You may lovingly nurture the egg, larva, and pupa, but once the butterfly emerges from the cocoon, it will fly where it likes or be blown about by the wind, logic or no logic. (It's been pointed out that the Bill of Rights has turned out to be a tragic distraction. Instead of the government having the burden of justifying any power it wishes to exercise, the people have had to justify any claimed right by finding supporting text in the Bill of Rights. Maybe we'd have been better off without it.)

It's tempting for each of us to think that our own theory of rights or liberty just happens to be the one that perfectly aligns with the intent of the framers or with the common understanding of the constitutional text in 1789. But how likely is that? The framers didn't agree philosophically on everything and people often understand words and sentences differently among themselves. In other words, originalism isn't a neat solution.

As noted, Alito's alternative to judges who impose their personal views about liberty is judges who stick exclusively to rights deeply rooted in the country's history and tradition. But this is also unsatisfying because it imprisons us in the thinking of long-dead individuals whose understanding of liberty might have been incomplete. Why assume that the framers understood every implication of the nature of freedom? As Thomas Paine wrote in The Rights of Man:

There never did, there never will, and there never can, exist a Parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the "end of time," or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void.... It is the living, and not the dead, that are to be accommodated.

It's true that constitutions can be amended and the framers' shortcomings addressed, but that process is always costly and difficult. In the meantime, people suffer from the deprivation of their liberty.

Alito's choice between the alternatives is clear, but the Constitution contains no guide to interpretation. Even if it did, how would that help? Any guide to interpretation would itself be open to interpretation. We'd end up with an infinite series of guides.

So where does that leave us? Apparently with two choices: an un-elected national super-legislature free to invent rights or a federal court guided by an emaciated, tradition-bound notion of liberty and unchained state legislatures free to grant (revocable) "rights" by majority vote. Neither seems ideal, but the ideal seems not to be on the menu today. I recorded my thoughts on perhaps the short-term second-best solution in "Disagreement without Conflict."

(See my book America's Counter-Revolution: The Constitution Revisited.)

Friday, May 06, 2022

TGIF: Mask Mandate - Liberty Can Hang on One Word

As I mentioned recently, whether the courts protect or violate liberty in any given case is something of a coin toss. The matter could hinge on a single word. We just had a good example of that fact.

On April 18 U.S. District Judge Kathryn Kimball Mizelle, a Trump appointee in Tampa, Fla., ruled that the Centers for Disease Control exceeded its statutory authority when it mandated that most people wear masks when using public transportation in order to stem the spread of COVID-19. (Health Freedom Defense Fund et al. v. Biden.)

The judge's ruling hinged on a single word in §264(a) of the Public Health Services Act of 1944, on which the CDC claimed its authority: sanitation.

§264(a) states:

The Surgeon General [or CDC apparently], with the approval of the [HHS] Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General [or CDC] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

For Judge Mizelle the question came down to exactly what sanitation means and whether mask-wearing is a method of sanitation. The answer depends, she said, on the sense, that is, the context, in which the statute uses that word.

She wrote: "A requirement that travelers wear a mask is not inspection, fumigation, disinfection, sanitation, or pest extermination, and the government does not contend otherwise." But, she added, the CDC does contend that the mask mandate is "akin to sanitation."

The judge rejected that contention. The statute does not define sanitation, so she relied on dictionaries for guidance, finding that the word refers to both cleaning something and keeping it clean:

The context of §264(a) indicates that "sanitation" and "other measures" refer to measures that clean something, not ones that keep something clean. Wearing a mask cleans nothing. At most, it traps virus droplets. But it neither "sanitizes" the person wearing the mask nor "sanitizes" the conveyance. Because the CDC required mask wearing as a measure to keep something clean -- explaining that it limits the spread of COVID-19 through prevention, but never contending that it actively destroys or removes it -- the Mask Mandate falls outside of §264(a).

Mizelle had much more to say on why the second sense of the word doesn't apply, and she rejected other CDC claims.

My point is not to take issue with the result. I am delighted the CDC -- one of those "expert" regulatory agencies that have effectively become unelected legislatures unto themselves -- was reined in. Throughout the pandemic the CDC has tried to seize one unprecedented power after another. Fortunately it has not gone unchecked. When it imposed a moratorium on apartment evictions and forbade the cruise industry from operating, the courts said no. Now a court has said no to the mask mandate.

Rather, my point is that freedom can hang by a very thin thread. Judge Mizelle made a good case that in this statutory context, mask-wearing is not a method of sanitation. But what about the next judge who hears a CDC or other power-grabbing case? (As we've seen repeatedly, the party of the nominating president gives no assurance.) As former President Clinton aide Elaine Kamarck shows, it wouldn't have been a stretch for a judge to have upheld the mandate, and most Americans wouldn't have thought the reasoning off the wall. The difference between Mizelle and Kamarck looks like hair-splitting. But liberty is too precious to be left to hair-splitting.

As I wrote in 2009, after soon-to-be Supreme Court Justice Sonia Sotomayor assured the Senate Judiciary Committee that a "judge applies the law [and not her feelings] to the facts" of the case:

Nothing in human affairs is that simple. Judgment and interpretation are required every step of the way. This is why, contrary to popular fable, the line between the rule of law and the rule of men and women is so fine as to be nonexistent. (See John Hasnas’s important papers "The Myth of the Rule of Law" and the "The Depoliticization of Law" [pdf]). Laws, which are intended to be applied to an unlimited number of unforeseeable future circumstances, do not speak for themselves. Human beings must interpret them. This does not mean language is inherently impenetrable. (I could hardly write if I believed that.) However, there is a broad middle ground between impenetrability and perfect clarity. As libertarian legal scholar Randy Barnett noted,  “While I do not share [the] view of law as radically indeterminate, I sure think it is a whole lot more underdeterminate than Judge Sotomayor made it out to be in her testimony today.”

Where does that leave us then? It leaves us with the question asked by the classical liberal legal philosopher Bruno Leoni, author of Freedom and the Law (1961): “It is a question of deciding whether individual freedom is compatible in principle with the present system centered on and almost completely identified with legislation.” What's the alternative to legislature-based law? Leoni wrote: "Both the Romans and the English shared the idea that the law is something to be discovered more than to be enacted and that nobody is so powerful in his society as to be in a position to identify his own will with the will of the land."

It was law that judges discerned when resolving specific disputes brought before them by specific individuals; it was law based on custom and the reasonable expectations it gave rise to. The system stood in contrast to legislature-made rules that are later interpreted by judges. It wasn't a perfect system, but the comparison is not to Utopia but to what legislatures and judges routinely do. Leoni likened judge-discovered law to the spontaneous order of the free market and legislature-made rules to central economic planning:

No solemn titles, no pompous ceremonies, no enthusiasm on the part of applauding masses can conceal the crude fact that both the legislators and the directors of a centralized economy are only particular individuals like you and me, ignorant of 99 percent of what is going on around them as far as the real transactions, agreements, attitudes, feelings, and convictions of people are concerned.

Under the best of circumstances, conventional political systems are dodgy places to seek the protection of liberty, even in matters of public health, where property rights, contract, and voluntary community should reign supreme. (On the efficacy of masks, see this.) If the mask-mandate case isn't convincing enough, have a look at the leaked draft of Justice Samuel Alito's draft opinion in the Supreme Court's latest abortion case.

Thursday, May 05, 2022

Privacy as a Property Right

In 1993 I wrote an article at the Cato Institute that may be relevant to the current controversy over abortion and the Supreme Court: "Dissolving the Inkblot: Privacy as a Property Right."