TGIF: Hooked on the State

Since the government partial shutdown began, we've been seeing panicked headlines about states being denied federal money for promised or already-started energy and infrastructure projects. Other sorts of subsidies are also in jeopardy. You'd think that not getting money from Washington was the worst thing that could happen. Oh my goodness, federalism might be breaking out!

Unfortunately, we can be sure that no restoration is in the works. We are not about to return to the long-gone world in which the national government had few powers and the people of the 50 states grappled with governments that were nearby as well as competitive with one another, thanks to their residents' freedom to exit an oppressive jurisdiction for a freer one. This occurs today to a degree, but that ultimate safeguard of liberty—exit—diminishes when Washington imposes or strongly incentivizes uniformity nationwide—when it sets a coercive baseline. Revenue that looks like free money has been an effective way to accomplish that end. So much the worse for liberty, considering that a major factor leading to original free-market, small-government liberalism in Western Europe was the relatively low cost of fleeing tyranny. In practice, the more centralized the power, the less free we are.

The panic to which I refer did not begin with the recent so-called shutdown. We saw it when Trump cut back on tax money to universities and other organizations earlier this year. It was as if a divine right had been abolished. For decades before that, presidents have threatened to withhold federal funds if states didn't do things like impose a 55-mph speed limit or raise the drinking age to 21.

How was that not a violation of the spirit, if not the letter, of federalism and decentralization, which, at least theoretically, was the distinctive American system? (Market-ordered anarchism would be even better, but it's not on the menu today.)

It's a good time to remember, or realize for the first time, that throughout the 20th century, American classical liberals, or libertarians, warned of the dangers of national funding for every sort of thing. There was the New Deal, of course, the beginning of the national welfare state, which included Washington-run relief and pensions systems. Many people might have been willing to forgive that because of the Great Depression, but centralization didn't end after that crisis and World War II. The programs were accepted and thus became permanent. We later saw national funding for highways, education, and housing, often tied to imagined crises, such as the Soviet presence.

A few politicians (such as Robert Taft and Barry Goldwater) and writers (such as Leonard Read, Felix Morley, and Henry Hazlitt) warned that money from Washington jeopardized liberty. They foresaw that people would get hooked on the money, that the government slope was slippery, that each program would be a precedent for the next, that mission creep was to be expected, that even a reduction in an anticipated spending increase would be seen as a heartless cutback, and that with money comes strings. For their troubles, they were smeared as paranoid, reactionary, and extremist. What they really were was libertarian.

But the Cassandras were right! They said people would become habituated to money from the national government—and they did! For many, no alternative exists to Washington. Even the possibility of a delay of one dime prompts street demonstrations demanding that the government "keep its hands" off some government program. How absurd!

The champions of centralized government have been winning for over a century. That the relatively free parts of the private sector keep enriching us is a tribute to capitalism, not to the politicians and bureaucrats. No doubt, many, if not all, of the architects of centralization intended that once they got the ball rolling, there would be no going back. Their opponents certainly knew it, but they were shunned, disparaged as old-fashioned, and shut up.

Is there a way back? That is the question. If we cherish freedom, we must find it.

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.