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What Social Animals Owe to Each Other

Friday, July 29, 2022

TGIF: The Limits of Ideology

I have defended the idea of ideology per se and have disparaged the idea that anyone can operate without an ideology. The self-proclaimed non-ideological person is really one who has an implicit and therefore unexamined or underexamined ideology. No one really judges everything case by case as if nothing were related to anything else. We all have principles of some sort.

I have never implied, however, that ideology cannot be abused or pushed too far. It most certainly can be. One way to do this is to imagine that an ideology can be squeezed to produce complete answers to empirical, including historical, questions. That belief might be a central feature of fanaticism: the delusion that all questions are ultimately ideological. This is what gives the word ideologue a foul odor.

This is not the say that ideology has no empirical ingredients. We couldn't form concepts or use them to construct worldviews and strategies for achieving human well-being without using knowledge acquired from experience, starting with sense perception and introspection. We cannot work it all out in our heads. We cannot even make good moral decisions without information from the external world; one need not be an orthodox consequentialist to know that consequences matter. So Cartesian rationalism will not do. (Neither will it suffice to rely on an empiricism unguided by inescapable, self-validating a priori principles of logic and human action, which are indispensable to understanding and organizing sense perception. This is one of Ludwig von Mises's important contributions to social science.)

Two clues that a person thinks that ideology has all the answers are 1) the automatic assumption that the quantitative and nonquantitative facts about a matter surely must be consistent with one's "priors" and 2) the conclusion that conflicting data are either erroneous or corrupt.

There simply are no libertarian, socialist, progressive, or conservative answers to questions such as:

  • Are police shooting and killing more, fewer, or the same number of unarmed black people in recent years as compared to an earlier period?
  • Is the annual number of such deaths closer to 1,000 or 20?
  • Is the percentage of lethal police shootings of unarmed black people 0.18 or 18 percent of all murders of black people?
  • Have recent spikes in the murder rate followed reductions in policing in low-income black inner cities?
  • Do most residents of inner cities favor less, more, or the same amount of policing?
  • Whom do those residents fear more: the police or street criminals?
  • Do disparities in racial, ethnic, or sexual representation in various walks of life indicate bigotry and discrimination?
  • Do disparities in average group scores on standardized tests prove that the tests are biased?
  • What happens to the income gap between men and women when the raw data are disaggregated to permit comparisons of like situations?
  • Is the average warming of the global climate or increases in atmospheric carbon dioxide necessarily bad things?
  • Are there more than two sexes?
  • Do men and women on average display differences in temperament and preferences across a large range of activities?
  • Are the observed differences the outcome of pernicious socialization or do evolutionary biology and evolutionary psychology provide reasonable explanations?
  • Do masks work and are vaccines safe?

Many more such questions could be listed. All I want to say here is that no ideology, however compassionate, can answer those questions. One must honestly look at the world to see what's going on, even if that requires leaving one's comfort zone. "He who knows only his own side of the case," John Stuart Mill wrote in On Liberty, "knows little of that." To their credit, social scientists occasionally acknowledge their surprise when publishing findings that conflicted with their expectations. (Roland Fryer Jr., who researches the extent of anti-black violence by police, comes to mind.)

Why does this matter? Aside from simple honesty in truth-seeking, it matters because if more people took this point to heart -- if fewer people relied on ideology for empirical answers --  they might find some common ground with their opponents and then have more productive conversations. That wouldn't hurt, would it?

The alternative is what we see every day: the choosing of sides based on tribal criteria and the quick resort to ad hominem attack at the first sign of disagreement.

Friday, July 22, 2022

TGIF: Compete Liberalism

Many people formerly of the left, who have bid good riddance to their former political home, believe they can retain the mantle of authentic liberalism while ignoring its free-market component. They don't want socialism, and they appropriately dislike the right-wing. But they also can't abide the libertarian commitment to free markets either. So they declare themselves centrists void of ideology.

The problem with this approach is that the commitment to market freedom lies at the heart of authentic, classical liberalism, or libertarianism. Liberalism and pro-market enthusiasm go hand in hand.

The misstep I have in mind may stem from the fallacy that personal liberty is distinguishable from economic liberty. Note how many people who call themselves civil libertarians would reject the unqualified label libertarian. This fallacy in turn may be a legacy of the mind-body dichotomy, which holds that human beings are a union of material and nonmaterial "substances."

People under the sway of this view should understand that dividing human beings into mind (or spirit or conscience) and body, with the former more exalted than the latter, is a discredited idea. (Gilbert Ryle goes to great lengths to show this in his 1949 book, The Concept of Mind.) People are conscious, self-conscious material beings who need to act and interact in a variety of ways in order to flourish. As Thomas Szasz put it, mind is a verb, not a noun. Thus, no matter what philosophers, judges, and legislators may say, no grounds exist for safeguarding so-called personal liberty (expression and religion, among others) more vigilantly than so-called economic liberty (buying and selling). There is only individual liberty. Or: whether money is involved or not, all liberty is personal liberty.

To see this point, one need only ask what could be more personal than how one chooses to earn a living. Freedom of conscience is sacred, but it is inseparable from the freedom to pursue one's projects in the material marketplace. Products are embodied ideas. Prices, someone once said, are arguments aimed at persuasion. Would one be able to operate in the marketplace without freedom of expression? I don't think so. Yet look at how the bifurcation of human beings leads to limits on and violations of speech stigmatized as commercial speech. These go beyond mere prohibitions on fraudulent claims. Please explain that, civil libertarian free-speech "absolutists."

Governments don't regulate markets; they regulate people. So much for the misguided notion that liberty comes in two flavors, with the "spiritual" being more exalted than the "material."

One reason for the rejection of free markets by freedom-minded people is ignorance of the economic way of thinking, which is acquired not innate. This ignorance is manifested in many ways, but here's a prominent one: the belief that society must choose between government-regulated markets or unregulated markets. What's wrong with this set of choices? Two things are wrong. It posits a false option -- scary unregulated markets -- and omits a real option -- self-regulating markets. (More on the latter in a moment.)

The phrase unregulated market in fact is a contradiction in terms. It is as inappropriate as the term society would be when applied to a collection of people that displays no order whatsoever. Societies have a general regularity of some kind. That's what the word means. Likewise, markets by nature are regulated.

But by whom or what? It's tempting to say they are self-regulating, but that would be only a convenient shorthand. What regulates free markets are free people acting as entrepreneurs, producers, investors, borrowers, lenders, and consumers. Market forces, which in one sense are impersonal, turn out to be people who are at liberty to, say, buy, and sell as they see fit. Hence, the necessity for individual freedom, including the freedom to acquire and use private property, which Marx said would be abolished when socialism's time came. (Can you imagine?)

It is the freedom to own things, trade, and compete, and the freedom to turn down what's on offer, that regulates (or restricts) participants in the market. It's what keeps sellers from charging $100 for an apple or employers from paying workers $1 an hour in dangerous environments. It's what prompts producers, guided by the price system, to step up when supply falls short of demand, and buyers to tighten up temporarily when demand exceeds supply -- with the result that consumers, who are the point of it all, remember, are better served despite life's ups and downs. But to be effective, market forces must not be tampered with by politicians and bureaucrats, however honorable their intentions may be, because the interventions will invariably harm its ostensible beneficiaries. (We see this unerringly with the minimum wage and price controls.)

It matters whether the government or "the market" does the regulating. Politicians and bureaucrats necessarily have limited knowledge and -- let's be frank -- perverse incentives, including career ambitions and the temptations of power. Their primary tool is the threat of physical force against the disobedient.

In contrast, market forces operate peacefully through the actions of countless participants, each with intimate knowledge of his or her own circumstances as well as bits of the socially scattered information about resource supplies, know-how, and the like. Force and fraud are forbidden and redressable. Bureaucratic regulation will tend to be irrelevant at best and inimical at worst to what people care about. Moreover, it will tend to foster business concentration by increasing the burdens on smaller firms.

We end up with a big impersonal bureaucracy and big business (bigger, that is, than what is good for consumers and employees). Indeed, it does matter who or what does the regulating.

Objections that the free market leaves some people behind or that it subjects society to abusive monopoly, long-term unemployment, and inflation miss the mark. Before markets and profit-seeking became widespread and respectable, the consumption gap between the rich and everyone else was enormous. It was the spread of markets (admittedly far from fully free) that introduced unheard-of mass production, which has steadily and radically closed the consumption gap and cut absolute poverty worldwide. A visitor from the not-so-distant past would be astounded at the living standard of people we today regard as poor. The many in the developing world who still lag behind desperately need a liberal individualist pro-property legal framework, freedom, and free markets, which would provide badly needed cheap and reliable energy powered by fossil fuels. (The snobbery of Western elites in this matter is atrocious.)

Further, I suspect that many semi-liberals are motivated not by moral and economic objections, but by aesthetic objections to the marketplace. They find competition, profit, and the pursuit of self-interest unattractive. Too bad: there is actually something beautiful about an institution that adjusts peacefully to people's wants, rewarding producers for serving people's needs. Adam Smith described the process in The Wealth of Nations, and later economists, especially those of the Austrian school, elaborated the description. As they have pointed out, competition is not antithetical to cooperation but is concomitant. Competition is what emerges when we are free to decide who we wish to cooperate with. In other words, one cannot be pro-choice in all areas of life without being pro-competition. That doesn't mean the market is everything in a free society, but it is something rather important.

Finally, we should say something about pollution, the emission of dangerous substances into the air and water. Authentic liberalism understood it as a trespass and therefore a violation of individual rights. The "polluter pays" principle is a liberal principle that pays tribute to private property. However, liberalism is ever-mindful of the abuse and corrupting influence of power. A government bureau that is tasked with enforcing property rights against bonafide polluters may easily inflate its mission in ways that impose great costs with little or no benefits. Bureaucrats may define a nonpollutant, say, carbon dioxide (which is plant food) as a pollutant and in the process harm the world's most vulnerable people by restricting or forbidding emissions. The challenge for any state and nonstate form of governance is to stick to real rights violations and to let technological and organizational innovators find the solutions in cases of real danger. That requires increases in wealth, not drags on its growth.

It is also important to realize that, as in so many other matters, the market contains internal systems to generate ways of handling pollution. Entrepreneurs can earn profits by doing just that. Pollution represents a waste of scarce resources: one firm's trash is another firm's cash. As Pierre Desrochers's has shown (here and here, for example), the history of market-oriented societies is filled with such cases.

Friday, July 15, 2022

TGIF: Social Order through Liberty

Human beings are self-actualizing social animals. We need to cooperate with others to flourish fully and (but?) we also need the freedom to make of ourselves the persons we wish to be; we need autonomy.

Can we do both liberty and social order? The answer is yes, and that is where rights come into play. I'll go with Ayn Rand's definition: "A 'right' is a moral principle defining and sanctioning a man’s freedom of action in a social context." Also, "Rights are conditions of existence required by man’s nature for his proper survival." Although rights theory is fraught with the potential for abuse -- many many counterfeit "rights" have been conjured -- it's difficult to abandon the concept.

Liberty and social order are often seen as in conflict with each other. The conservatives' fondness for the phrase ordered liberty. It is meant to suggest that liberty too easily becomes license and chaos. So we often hear that rights must be balanced against one another or against other considerations (such as state interest), indicating that all people could not possibly exercise their rights at the same time because that would produce intolerable social conflict. Hence the need for external limits.

But thanks to the work of genuine liberals -- that is, libertarians, we have good reason to reject this concern.

One of the great synthesizers of individual and social welfare was one of the most unjustly reviled political thinkers in history: Herbert Spencer. In discussing the human "tendency toward individuation in his 1851 (and first) book, Social Statics, Spencer wrote:

[The person] is self-conscious; that is, he recognizes his own individuality. . . . [W]hat we call the moral law—the law of equal freedom—is the law under which individuation becomes perfect, and that ability to act up to this law is the final endowment of humanity.... The increasing assertion of personal rights is an increasing demand that the external conditions needful to a complete unfolding of the individuality shall be respected. Not only is there now a consciousness of individuality and an intelligence whereby individuality may be preserved, but there is a perception that the sphere of action requisite for due development of the individuality may be claimed, and a correlative desire to claim it. And when the change at present going on is complete—when each possesses an active instinct of freedom, together with an active sympathy—then will all the still existing limitations to individuality, be they governmental restraints or be they the aggressions of men on one another, cease. Then none will be hindered from duly unfolding their natures.

"None will be hindered"? Even with "activity sympathy," how then can "an active instinct of freedom be reconciled with required social harmony? Spencer addresses the paradox:

Yet must this higher individuation be joined with the greatest mutual dependence. Paradoxical though the assertion looks, the progress is at once toward complete separateness and complete union. But the separateness is of a kind consistent with the most complex combinations for fulfilling social wants; and the union is of a kind that does not hinder entire development of each personality. Civilization is evolving a state of things and a kind of character in which two apparently conflicting requirements are reconciled.

It may sound odd, but Spencer anticipated “at once perfect individuation and perfect mutual dependence.” He wrote:

Just that kind of individuality will be acquired which finds in the most highly organized community the fittest sphere for its manifestation, which finds in each social arrangement a condition answering to some faculty in itself, which could not, in fact, expand at all if otherwise circumstanced. The ultimate man will be one whose private requirements coincide with public ones. He will be that manner of man who, in spontaneously fulfilling his own nature, incidentally performs the functions of a social unit, and yet is only enabled so to fulfill his own nature by all others doing the like.

This reminds me of Spinoza's belief that to be fully rational an individual must be surrounded by other rational free, individuals with whom he interacts respectfully through reason, persuasion, contract, and trade, not force.

Spencer, of course, is well known for what in Social Statics he called the law of equal freedom: "Every man has freedom to do all he wills, provided he infringes not the equal freedom of any other man.” This sounds good, and it is. But Murray Rothbard, in his discussion of the impossibility and hence senselessness of egalitarianism (in Power and Market: Government and the Economy), made an important observation about Spencer's law. Rothbard wrote:

This goal [equality of liberty] does not attempt to make every individual’s total condition equal—an absolutely impossible task; instead, it advocates liberty—a condition of absence of coercion over person and property for every man.

Rothbard pointed out that the terms equality before the law and equality of rights "are ambiguous and misleading. The former could be taken to mean equality of slavery as well as liberty and has, in fact, been so narrowed down in recent years as to be." He also wrote that the term equal is problematic in the study of human affairs because it suggests a unit of measure that does not exist. (For libertarianism conceived at equality of authority, see Roderick Long's "Liberty: The Other Equality" and "Equality: The Unknown Ideal.")

Finally, Rothbard wrote:

Spencer’s Law of Equal Freedom is redundant. For if every man has freedom to do all that he wills, it follows from this very premise that no man’s freedom has been infringed or invaded. The whole second clause of the law after “wills” is redundant and unnecessary. Since the formulation of Spencer’s Law, opponents of Spencer have used the qualifying clause to drive holes into the libertarian philosophy. Yet all this time they were hitting at an encumbrance, not at the essence of the law. The concept of “equality” has no rightful place in the “Law of Equal Freedom,” being replaceable by the logical quantifier “every.” The “Law of Equal Freedom” could well be renamed The Law of Total Freedom.

Rothbard credits the point to Clara Dixon Davidson, who in 1892 wrote in Benjamin Tucker's magazine, Liberty:

The law of equal freedom, “Every one is free to do whatsoever he wills,” appears to me to be the primary condition to happiness. If I fail to add the remainder of Herbert Spencer’s celebrated law of equal freedom, I shall only risk being misinterpreted by persons who cannot understand that the opening affirmation includes what follows, since, if any one did infringe upon the freedom of another, all would not be equally free. [Emphsis added.]

This leads to the conclusion that all people may be free to exercise their rights simultaneously without jeopardy to life-serving social order. No need for balancing rights exists. If all "ordered liberty" means is liberty that is consistent with social order, then we can rest easy so long as people think soundly about liberty. How surprising is this? After all, the very notion of rights stems from each individual's need to act in the world without conflicting with others. (This insight about rights theory has been called "compossibility" by the Georgist libertarian Hillel Steiner. For an opposing view to the Davidson-Rothbard argument, see this from Matt Zwolinski.)

This does not mean the boundaries between people's zones of freedom are always immediately clear -- far from it. Disagreements (both good faith and malicious) are inevitable. That's why, in addition to liberal customs, free societies will have contracts, formal associations, policing agencies, insurance, mediators, arbiters, and judges. Governance does not require government.

It seems that Benjamin Tucker's magazine motto (borrowed from Pierre-Joseph Proudhon) had it right: "Liberty: Not the Daughter but the Mother of Order."

Thursday, July 14, 2022

Orwell Updated

Conformity is diversity. Exclusion is inclusion. Toleration is oppression.

Tuesday, July 12, 2022

Richard Cobden on the Link between Free Trade and Peace

I see in the Free-trade principle that which shall act on the moral world as the principle of gravitation in the universe,—drawing men together, thrusting aside the antagonism of race, and creed, and language, and uniting us in the bonds of eternal peace. I have looked even farther. I have speculated, and probably dreamt, in the dim future—ay, a thousand years hence—I have speculated on what the effect of the triumph of this principle may be. I believe that the effect will be to change the face of the world, so as to introduce a system of government entirely distinct from that which now prevails. I believe that the desire and the motive for large and mighty empires; for gigantic armies and great navies—for those materials which are used for the destruction of life and the desolation of the rewards of labour—will die away; I believe that such things will cease to be necessary, or to be used, when man becomes one family, and freely exchanges the fruits of his labour with his brother man. I believe that, if we could be allowed to reappear on this sublunary scene, we should see, at a far distant period, the governing system of this world revert to something like the municipal system; and I believe that the speculative philosopher of a thousand years hence will date the greatest revolution that ever happened in the world’s history from the triumph of the principle which we have met here to advocate.

--Richard Cobden; Speech; Manchester, England; January 15, 1846

Friday, July 08, 2022

TGIF: Why Can't You Shout "Fire!" in the Virtual Public Square?

Almost 10 years ago the free-speech champion Trevor Timm, with the Electronic Frontier Foundation at the time and now with the Free of the Press Foundation, implored readers "to stop using the ‘fire in a crowded theater’ quote" to justify limits on free expression. Many people apparently need a reminder.

Timm wrote, "[Supreme Court Justice Oliver Wendell] Holmes [Jr.'s]' quote has become a crutch for every censor in America, yet the quote is wildly misunderstood." To dispel the misunderstanding, Timm told the story behind the quotation.

The Court opinion containing the quote is from Schenck v. United States (1919), a notorious anti-free-speech case in which Charles Schenck and Elizabeth Baer had been convicted and sentenced to six months in prison during World War I under the federal Espionage Act for mailing 15,000 pamphlets urging soon-to-be-drafted men "not [to] submit to intimidation" and to "Assert your rights." The pamphlet did not advocate violent resistance but stated that the draft violated the 13th Amendment, which bans slavery.

The Court ruled unanimously against the defendants on the grounds that distributing the material was a "clear and present danger" during wartime. Holmes noted that the pamphlet would have been constitutionally protected in peacetime, but in 1917 the rules were different. To emphasize the point, Holmes wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Schenck stood as a precedent until 1969, when it was overturned in Brandenburg v. Ohio. Nevertheless, Holmes's trope is wheeled out today against almost anyone who expresses concern about the limitations on the free exchange of ideas on social networks, especially when the controversy concerns criticism of any aspect of "wokeism," for example, the ideologies underpinning "anti-racism" and "trans-genderism." If someone publicly expresses uneasiness at people being suspended from or kicked off social-media platforms for innocuous posts that come nowhere near threatening or inciting violence, the other side will likely quote Holmes to justify the punishment.

It should be too obvious to have to point out that Holmes's dictum is irrelevant to such episodes. Before we get to that, however, let's put on this on the record: although they may be under great government pressure to crack down on certain real or alleged misinformation and disinformation, the social-media platforms are private companies with the right to set their terms of use. But that does not mean having a low bar for expulsion is a good policy. Social networking, to the extent it is to have political value, ought to be an open forum. Kicking people off even for lying about election results or (justifiably) criticizing rules about permissible pronouns is not only obnoxious; it also makes a mockery of what the platforms themselves say they aspire to be.

With that out of the way, we can move on to the main course. None of the targets to which Holmes's trope is aimed bears any resemblance to the literal case of falsely shouting fire in a theater. We can break this down into two parts.

The first concerns the unreasonable shouting of anything, even "Chocolate!" in a theater, crowded or not. If I buy a ticket to a concert, play, or movie, I have at least an implicit contract with the theater owner that I will not disrupt the show (without a darn good reason) and spoil it for the other patrons. If that contractual term were not assumed, the owner would be defrauding all the customers. Would you buy a ticket to a show knowing that anyone in the audience was permitted to make noise?

Just as I cannot eat in a restaurant and refuse to pay by claiming that I never explicitly agreed to pay for the meal, so I cannot make a ruckus in a theater on grounds that I never agreed not to do so. We can go further and point out, as Murray Rothbard did, that even the theater owner may not unreasonably disrupt the show without violating the contract with his customers:  If he does, "He has thus welshed on this contractual obligation, in violation of the property rights of his patrons."

Rothbard's point is that freedom of speech is not some free-floating right. To make sense it must be rooted in property rights. No one has a right to make a speech in your living room without an invitation. The corollary, he points out, is that so-called public, that is, government-controlled, land presents insoluble conflicts. When demonstrators want to block a busy street during rush hour, whose rights should prevail: theirs or the drivers'.

As I say, this goes for any shouting. But let's move on to the issue of content. Falsely shouting fire adds potential injury or death to the insult because the patrons do not have the luxury of checking out the shouter's claim. Maybe it's a false alarm, but waiting to find out could cost them their lives. Obviously, if the shouter knows the place is on fire, he's done his fellow patrons a favor.

How does this relate to social media? Nothing anyone can say on Twitter can compare to the potentially deadly disruption that would occur with a false shouting of fire in a theater. Even if Donald Trump tweets a million times a day -- falsely -- that his landslide reelection in 2020 was stolen from him, the mechanism for harm just is not present. No one reading Trump's tweets, as obnoxious as they would be, would have to rush out of wherever he is merely to save his life and possibly endanger others as he does so. It's simply ridiculous to compare the two situations.

A tweet might offend people -- if they choose to take offense -- or it might hurt someone's feelings. But let's get real: that bears no resemblance to endangerment. But what if someone else reads the tweet and then feels motivated to commit violence? That person is an aggressor who is fully responsible for his actions. He must not be permitted to plead that the tweet caused or incited him to commit violence. He is an agent.

Rigid controls on social media cannot be justified on "clear and present danger" grounds. In other words, it's impossible to shout "Fire!" on social media, and we are justified in criticizing platform owners who insist on punishing their guests for what they say. It's easy enough to avoid your fellow guests whom you find obnoxious.

So let's finally put Holmes's trope to rest. It has no power to justify restrictions on expression that does not directly and immediately endanger others.

Friday, July 01, 2022

TGIF: Abortion Rights v. Abortion Permissions

Even if you cringe at last week's ruling in Dobbs v. Jackson Women's Health, it would be wrong to say that the five Supreme Court justices took away women's right to have abortions.

I say this because the Supreme Court, unfortunately, never actually recognized a women's right to terminate a pregnancy. Instead, what the Court did in 1973 in Roe v. Wade (and reaffirmed in 1992 in Planned Parenthood v. Casey) was to grant women permission to have abortions up to a judge-defined moment. (Such court permission-granting is not unique to abortion.)

A permission is obviously not a right; it is the opposite. Individual rights are commonly understood as principles that morally and legally protect activities that individuals by their nature are entitled to engage in free from aggression by others, even the people regarded as government officials. ("I know my rights!") Contractual rights are conditioned on the terms of the contract, but those are not the kind of rights we're talking about here.

Yes, the Roe and Casey opinions used rights language. And in their dissent in Dobbs, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor write, "Roe held, and Casey reaffirmed, that the Constitution safeguards a woman’s right to decide for herself whether to bear a child."

But we shouldn't be misled by that language because their dissent also states, in defending Roe and Casey, "Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions." (Emphasis added.) Not full choice -- just "substantial choice." Why not full choice? Because, write the dissenters, "the State had, as Roe had held, an exceptionally significant interest in disallowing abortions in the later phase of a pregnancy." Permission granted; permission revoked.

Specifically, the Roe Court said that women have a constitutionally protected right to privacy with respect to their pregnancies -- but only until the state's "compelling interest in the potentiality of human life" kicks in after the second trimester or (in Casey) when the fetus becomes viable outside the womb. This doesn't sound like a matter of rights, but rather an exercise in the Court's subjective balancing of competing interests. What the Court calls "constitutional rights" sound like something else. This take on the Court's views will please anyone who conscientiously objects to abortion as murder. But it ought to dismay those who believe with equal conviction that women do possess a right to end their pregnancies. The Roe Court misled them.

So what now? Everyone understands that the Court did not outlaw abortion. Instead, it sent the matter, to use conventional political language, to the people and their elected representatives in the several states. Who could object to that?

Well, lots of people could. Those who believe that individuals have a natural right to life, liberty, and property should be concerned about leaving the question of rights to majority rule. Majorities can be and often are wrong: they can call something a right that isn't, and they can deny that something is a right that is.

On top of that, the flaws intrinsic to representative democracy are well documented, starting with the perverse incentives and irresponsibility generated by the fact that a single vote is almost never decisive. (George Bush's remarkably close 2000 victory in Florida had a margin of 537 votes. But no individual voter had more than one vote.) If any voter doubts his electoral impotence, he should compare how he would prepare for an election in these two scenarios: the first in which, as normal, he has only one vote; the second in which he also has only one vote but has been assured by divine intervention that whomever he votes for is guaranteed to win.

Democracy also falls short of the textbook ideal because, in light of the impotence of a single vote, most people have better things to do than invest the time, money, and effort required to properly educate themselves about the consequences of what the candidates say they would do if elected. (That would require studying economics, among other things.)

Moreover, no single voter will incur more than a tiny fraction of the full social cost of his making a bad decision at the polls. (This assumes that candidates, who represent a shopping cart of positions on diverse issues, will even keep their campaign promises.) And we also have the problem that highly motivated and concentrated single-issue interest groups will often prevail over the far larger but unorganized mass of citizens. This is the plague of concentrated benefits and dispersed costs. (For an elaboration of these flaws, see Bryan Caplan’s The Myth of the Rational Voter: Why Democracies Choose Bad Policies. Ilya Somin and Jason Brennan have also written books on this subject. See also my "Is 'Free Election' an Oxymoron?" and "The Crazy Arithmetic of Voting.")

I join those who worry about having our rights determined by majority rule in the state legislatures. But what's the alternative? Until a free market in rights protection and conflict resolution is a live option, it seems the only alternative is what we now have: the U.S. Supreme Court.

But shouldn't advocates of liberty be concerned about that too? As many have pointed out, the Court resembles an unelected, life-tenured supreme legislature that allows no easy appeal. We may like the Court when it agrees with us, but what about when it doesn't? Even a court that seems committed to individual rights could have a different notion of rights than you or I have. It might sanction pseudo-rights, such as taxpayer-financed abortion, that conflict with authentic rights. Or it might refuse to sanction an authentic right. What do we do in those cases? Do we need a Supremer Court to correct the Supreme Court? And a Supremerer Court to correct the Supremer Court, ad infinitum?

Libertarians who don't want rights left to state legislatures should beware of the Nirvana fallacy, comparing real-world legislatures to an idealized Supreme Court. State legislatures are fraught with danger, but we won't soon see a Supreme Court full of justices who embrace the rights theory of Ayn Rand, Murray Rothbard, or [insert name of favorite libertarian]. The question, then, is: what is the least-bad alternative in the meantime.

Contrary to what many want to believe, the Constitution does not instruct us in how it is to be interpreted or direct us to someone's -- Madison's? Hamilton's? -- interpretation. But even if it did, an internal or external interpretation would also be subject to interpretation. “Any interpretation still hangs in the air along with what it interprets, and cannot give it any support,” Wittgenstein wrote about rule-following.

There could be no correct reading of the Constitution. One might say that a particular reading is more reasonable (here's one perhaps) and another less reasonable, but we have no way to pronounce a reading the correct one. A reading could be clearly wrong, but not clearly right.

It is not as if we could have a computer that could infallibly decide constitutional questions. To qualify, that computer could not be programmed by a human being, or else it would be vulnerable to the criticism above. It's human beings all the way down. (See Roderick Long's "Rule-Following, Praxeology, and Anarchy.")

The alternatives -- courts or state legislatures -- pose a threat to freedom. We can weigh the relative risks, but the threat won't disappear. For example, compared to a national supreme court, legislative decentralization would at least reduce the cost of voting with one's feet, that is, relocating. However, that is not always possible, especially for low-income people, and states can perpetrate what has been called "grassroots tyranny." (See Jacob T. Levy's Rationalism, Pluralism, and Freedom and my review of that book.)

Bottom line: regardless of institutions, liberty is never secure. Hence, the need for eternal vigilance and persistent efforts to teach people to cherish liberty.