TGIF: Jefferson on Not Trusting the State

Regardless of written constitutions and the laws on the books, individual liberty is always at risk. And as liberty goes, so goes our capacity to live well, to achieve the good life as rational, virtuous social beings.

The danger comes from left and right, both of which aspire to have a body of elders impose narrow cultural and moral norms on everyone, overriding our right to think for ourselves. (Progressives and National Conservatives have a lot in common in that regard, even if they differ on what is to be imposed.)

This point about the fragility of liberty was well understood by the Irish politician, judge, and orator John Philpot Curran (1750-1817), who said: "The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."

As often happens, variations of this insight have been attributed to other people, most famously Thomas Jefferson, who is widely and apparently erroneously thought to have said more pithily: "The price of liberty is eternal vigilance." Curran has missed out on the credit he deserves.

At any rate, we have a problem. Although liberty is never safe from political ambition or even good intentions, most people are understandably absorbed in raising their families, earning their livelihoods, and just plain living. Thinking about liberty, much less exercising vigilance, has a low priority -- if it is on their agendas at all. I'm not finding fault; it's just a fact.

Hence the need for a degree of specialization. Libertarians to one extent or another specialize in keeping watch over liberty and drawing the public's attention to dangers from governments and nongovernment sources. These aren't entirely two separate categories because if an influential segment of the public comes to believe that liberty must be curtailed, such sentiment could find its way into the halls of power. For example, if enough people decide that offensive words or obscene images are equivalent to violent acts, politicians may take up that cause and prohibit so-called hate speech and the like. This has happened in Great Britain, where citizens can be visited by the police, fined, and compelled to take a sensitivity course for posting something on social media that allegedly made someone feel anxious. So far, thanks to the tradition of free speech and press recognized in the First Amendment, that does not happen in the United States. But we mustn't rest on our laurels. A violation could be just around any corner, and we can't be sure from which direction it will come.

Although Jefferson did not say, "The price of liberty is eternal vigilance." we know he believed it. We know this because of his 1798 Kentucky Resolutions, which he wrote anonymously for the state legislature in opposition to the Alien and Sedition Acts of that year. The Acts were passed by the Federalist party-controlled Congress under Federalist President John Adams. (Jefferson, who was not a Federalist, was the vice president at the time.) As one description of the Acts puts it:

The Resolutions by Jefferson and Madison were provoked by the Alien and Sedition Acts adopted by a Federalist-dominated Congress during the Quasi-War with France; those Acts gave the president the authority to deport any alien whom he thought a threat and made it illegal to criticize the president or the Congress. Dozens of people were prosecuted under the Sedition Act, with prosecutions targeted at newspaper editors who favored the new Democratic-Republican party – Jefferson’s party. Seeing such political prosecutions of free speech as a fundamental threat to the republic, Jefferson referred to this period as a “reign of witches."

Federalist support for the Acts was also fueled by Jeffersonian sympathy for the French Revolution. The government's fears about French influence in the United States had reached a fevered pitch.

In his Kentucky Resolutions -- a second, shorter resolution written by an unknown person passed in 1799 -- Jefferson invoked the principle that the Constitution delegated only certain limited powers to the national government and therefore the states individually could check that government whenever it broke through the limits. Hence, the document declared the Alien and Sedition Acts  "void and of no force" and requested their repeal. (Jefferson's draft called for nullification, but that language did not make the final document. It did make the second version, however.)

In making his case, Jefferson wrote something that more people need to understand, especially politicians and pundits who are sanguine about democracy. His document declared it is resolved:

that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is every where the parent of despotism: free government is founded in jealousy and not in confidence; it is jealousy & not confidence which prescribes limited Constitutions to bind down those whom we are obliged to trust with power. [Emphasis added.]

Hammering the point home, Jefferson concluded: "In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." How interesting that he used the word jealousy!! The dictionaries tell us that one meaning of that word is intense vigilance. Had he read Curran's words?

By the way, those words might have gotten Jefferson kicked off Twitter and Facebook.

For Jefferson, the idea that we can elect rulers and then leave them to the business of governing us was a recipe for tyranny, even if only the "soft tyranny" foreseen by Alexis de Tocqueville. (See my "'What Sort of Despotism Democratic Nations Have to Fear'" for some of Tocqueville's sobering predictions of the harm that democratic governments could do to the people.)

I'll close by noting that, unfortunately, Jefferson was too trusting in the Constitution's capacity to bind those given power. (Remember that the Constitution did not prevent the passage of the Alien and Sedition Acts less than a decade after its ratification. Think of all that's happened since.)

Indeed, no less an authority on the Constitution, James Madison acknowledged that any constitution must delegate implied powers; that is, powers not expressly allowed to the state: "[I]t was impossible to confine a government to the exercise of express powers;" he said, "there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae." He said this during a House debate over what would become the beloved Tenth Amendment in the Bill of Rights, which reserves to the states or the people "the powers not delegated" to the national government. Madison, who is famous for saying the national powers were "few and defined," refused to allow the word expressly to be inserted before delegated. Progressivism isn't the root of the problem. (See my article "James Madison: Father of the Implied-Powers Doctrine." For a wider perspective, also see my America's Counter-Revolution: The Constitution Revisited.)

Hence, a constitution, no matter how good it looks, can't help but create a false sense of security about liberty, which is exactly what Jefferson was worried about in his call for jealousy and not confidence toward the state. Particular people will be empowered to interpret any constitution, and they, even if well-intentioned, are likely to see things differently from freedom-loving individuals.

As Lysander Spooner pointed out in an 1870 essay: "But whether the Constitution really be one thing, or another, this much is certain -- that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

Talking Over the Beefed-Up IRS

Scott Horton and I discussed the ominous changes in store for middle-income taxpayers under the Inflation Reduction Act. Listen here.

TGIF: The Coming New and Improved IRS

The brilliant people in the Biden administration and the U.S. Congress have decided that one thing America really needs is an Internal Revenue Service (!) fortified by 87,000 more employees and 80 billion more dollars so it can help reduce the inflation that currently menaces us.  

You don't believe it? Oh, ye of little faith!

How is that to be accomplished? By auditing rich individuals and corporations, of course, thereby harvesting tons of hitherto uncollected revenue and forcing the shirkers to pay their "fair share." (No one ever says how we know they aren't already paying it.) The law's advocates also say that with its outright tax increase on corporations and cutting of energy and health care costs, inflation will be lowered still more. I wouldn't take that too seriously.

You might suspect that the government's story is not exactly kosher -- and you would be right. Even though the Biden people insist that the IRS provisions of the just-enacted Inflation Reduction Act will leave people making less than $400,000 unscathed, nothing in the law guarantees that, and the defensiveness of the White House and congressional spokesmen seem to confirm that the nonrich are not safe. Last year the Congressional Budget Office said all taxpayers would face higher audit rates under an earlier, larger version of the Inflation Reduction Act. (It was then called Build Back Better.)

This stands to reason that all taxpayers will be at risk. The highest earners have battalions of the best tax lawyers and accountants who surely advise their clients how to (legally) avoid, not evade, taxes. (News flash: the tax code is complicated, even vague, and will become even more so under the new law.) When you combine that fact with the regrettably small number of really, really rich people, you have to figure that the newly beefed-up IRS won't be anywhere near able to squeeze out the expected sums without going after lower hanging fruit. That's the rest of us: additional audits of people of more modest means. (Just for the record: with the exception of any actual thieves, wealthy people also have a right to their money.)

How many times before have presidents and legislators promised to raise badly needed, deficit-shrinking revenue by stepping up IRS enforcement against the rich? It's how progressives lull the middle class into accepting always-increasing spending.

But strangely, the deficits never shrink and stay shrunk. So either the revenue estimates were unalloyed bunk or the government spent the additional revenue on new projects. I'm sure it was a combination of both. Surprise, surprise! Birds gotta fly. Fish gotta swim. Politicians gotta spend.

At any rate, the deficit and debt (monetized by the Federal Reserve, our inflation engine) have grown without relief. Isn't that likely to be the case this time? It's surely the way to bet.

According to Forbes, "Democrats say the legislation will raise close to $740 billion in tax revenue over the next 10 years and devote $300 billion of that money toward reducing the federal deficit." That's 2 percent of the deficits expected over the next 10 years. You should realize that last year's budget deficit was $2.77 trillion, the second highest after the 2020s $3.13 trillion. 

But let's remember that these revenue projections are really predictions about how people will behave -- and how much taxable income they will produce -- in an altered institutional environment. The prognosticators make their predictions with inherently dodgy computer models. Remember how well such models predicted the climate and covid catastrophe? In truth, we don't know how creative, entrepreneurial people will adjust to changing tax and regulatory conditions. Individuals discover things when they face new situations. They are not robots. 

Another thing to keep in mind is that corporations do not pay taxes. They collect them. Only people pay taxes. So which people pay the corporate income tax, which will go up under the new law? Economists have long known that the tax is paid by consumers through higher prices, employees through lower wages, and shareholders, most of whom are not wealthy, through lower returns to their retirement funds. The corporate tax is one of those great political deceptions that seems to be a permanent fixture of the landscape. By the way, taxes on savings and investment invariably constitute double and even triple taxation, stifling innovation and wealth creation. Thus the general welfare, and not only justice, suffers.

Will the Inflation Reduction Act really act to reduce inflation? No bloody way. Inflation is not merely a general price rise. That's only the symptom. The cause is an inflation of the money supply by the government's central bank.

When the government spends more than it collects in taxes, it borrows money to cover the budget deficit. The Federal Reserve will buy the government debt, creating money out of thin air to do so. When the conjured-up money is spent or lent, we have the proverbial more dollars chasing the same amount of goods and -- voila! -- a general rise in prices. The new money also will tend to push interest rates lower than the free-market level, which in turn will distort the calculations of investors -- interest rates are key signals to producers, after all -- resulting in unsustainable malinvestment. (This is one of the monumental theoretical achievements of the Austrian school of economics, featuring Ludwig von Mises's and F. A. Hayek's work on money and banking.)

It's even worse. This century's massive money creation has been accompanied by the depressed production of goods brought about by the economic lockdowns during the covid pandemic. It's not just more money chasing the same supply of goods, but a smaller supply of goods. Thank you, politicians throughout America, for your service.  

A real inflation reduction act would do nothing but slash spending -- assuming we think the government should spend anything at all. After all, it ultimately obtains its money at gunpoint, that is, by theft. Slashing spending means rethinking big government, that is, -- top of the list -- the warfare and welfare state. 

So the touted Biden achievement is the just same old snake oil in new packaging. The government is out of control, and I don't see how that will soon end. Taxation is a blank check for politicians. The income tax is especially bad because it requires all to account to the government for their income-earning activities under threat of penalty. This inquisitorial device ought to be seen as intolerable in a theoretically free country. (For more, see my book Your Money or Your Life: Why We Must Abolish the Income Tax.)

TGIF: About Those January 6 Committee Extravaganzas

I admit it: I watched nearly every moment of the House committee extravaganzas on the January 6 riot at the U.S. Capitol. I did more than that. I was transfixed. I couldn't even multitask.

Were the mislabeled "hearings" beyond all criticism? Of course not. They were choreographed, but only mildly so; the production effort lent an orderliness that I appreciated. I accept the point that the presentations had nothing to say about FBI-informant intrigue if it took place. Such mischief has occurred in the past, and if credible allegations exist, they should be pursued vigorously. Of course, it wouldn't let off the hook anyone who followed the directions of an agent provocateur. The same goes for other government misfeasance and malfeasance apart from Donald Trump's.

Still, even given all that, I see no good grounds for dismissing the presentations as worthless partisanship. The reason ought to be obvious. The presentations enabled us to watch senior White House, Justice Department, and Trump campaign lawyers and other key staff describe Trump's horrifying complacency as he entertained himself before, during, and after the violent outburst. Gruesomely riveting!

One need not be a small-D democrat to be concerned about what took place on January 6, 2021. The source of rational concern is not only the target of the violence. It is the violence itself. We've seen a good deal of domestic political violence in recent years, and I'm confident that no good would come from more. On the contrary, to the extent that violence becomes an acceptable political tactic, we will be in deep trouble. As Leonard E. Read, founding president of the Foundation for Economic Education, wrote in "On that Day Began Lies":

Consider the mob. It is a loose-type association. The mob will tar and feather, burn at the stake, string up by the neck, and otherwise murder. But dissect this association, pull it apart, investigate its individual components. Each person, very often, is a God-fearing, home-loving, wouldn’t-kill-a-fly type of individual.

What happens, then? What makes persons in a mob behave as they do? What accounts for the distinction between these persons acting as responsible individuals and acting in association?

Perhaps it is this: These persons, when in mob association, and maybe at the instigation of a demented leader, remove the self-disciplines which guide them in individual action; thus the evil that is in each person is released, for there is some evil in all of us. In this situation, no one of the mobsters consciously assumes the personal guilt for what is thought to be a collective act but, instead, puts the onus of it on an abstraction which, without persons, is what the mob is.

Apart from the direct threat from the violence, we must also consider the secondary threat: namely, that of the government's inevitable crackdown. If the violence becomes more widespread, average people will understandably demand safety, and the politicians will be only too happy to comply with less-than-discriminate force. A weak state response could prompt the emergence of a "strong leader," a Bonaparte, who promises to restore order forthwith.

This is why the peaceful transfer of power after elections is desirable. To be sure, representative democracy places a distant second to complete and authentic individualist, free-market liberalism, but it beats gangs fighting in the streets.

So think back now to January 6. Trump clearly lost the election. His 60 attempts to persuade judges that the election had been stolen had failed. (Many of the judges were appointed by Trump or other Republican presidents.) He was told repeatedly by senior officials that he had appointed, from the attorney general on down, including expert investigators in election security, that he had no case -- but to no avail. A conspiracy to perpetrate such an election fraud and its coverup would make any other alleged conspiracy look like child's play.

Undeterred, Trump merely brought in a small group of toadies led by the faithful Rudy Giuliani to press his worthless case. Trump insisted he actually won the election by a landslide and set out to gaslight the American people into thinking there was something to that claim. Considering the lack of proof and all the contrary information he had been given, we are entitled to conclude that Trump never actually believed that he had been reelected. This was no delusion; rather I suspect it was merely a grand Trumpian scam that would surely rake in lots of money; it was also a what-the-hell longshot at retaining power. He apparently didn't care about anything else. In other words, he was playing with fire. At best it was gross negligence.

When he got nowhere with his staff and the courts, he encouraged a mob, which he had every reason to think would be unruly, to gather in Washington, D.C., on the day that Congress was to certify the states' electoral counts. Trump and his small circle worked every angle, including encouraging supporters to fraudulently pose as alternative electors in their states and trying to convince Vice President Mike Pence that he could exclude Biden electoral votes or at least delay Congress's certification by sending the matter back to the states -- when no vice president has any such power. Pence deserves credit here. I shudder to think what might have happened in the streets had Pence slavishly done what Trump pushed him to do.

The mob assembled as Trump requested, and he lifted their hopes that they could "stop the steal." Informed that some supporters had weapons and so wouldn't go through metal detectors for Trump's speech, he told security to remove the detectors because "they're not here to harm me." Then he urged the mob to march to the Capitol. Tens of thousands did so, breaking through doors and windows and signaling that they meant to threaten or harm those who stood in their and Trump's way. Thwarted by the Secret Service in his wish to go to the Capitol, Trump went back to the White House and watched the show from his dining room.

Repeated pleas by his staff that he call for an end to the riot fell on deaf ears. On the contrary, he tried to turn up the heat by condemning Pence on Twitter for his lack of courage. When his supporters chanted that Pence should be hanged, he was heard to say that maybe those supporters were onto something. Late in the day, when he finally made a video appeal to the rioters, he couldn't resist telling them: "We love you.... You're very special."

All in all, this was a sad day that capped a sad few months -- again, not because democracy is sacred, but because violence is uncontrollably toxic. Does the record establish Trump's legal liability for incitement to violence? I am not qualified to say. Moreover, we who distrust political power must be wary of vaguely defined offenses that originate in speech.

But Trump does seem to have left himself open to charges related to his failure to secure the Capitol despite repeated desperate pleas and to his obvious attempts to obstruct Congress. It was at least a dereliction of duty. (I highly recommend Walter Olson's "The Jan. 6 Committee’s Findings Have Met the Appropriately High Bar for Prosecuting Trump.")

Mob violence isn't the only thing to be feared in this world, but it ranks pretty high up there.

How Times Have Changed

It was once regarded as condescending to humor other people by pretending to accept their fictions about themselves. Today it’s regarded as a mandatory form of respect that is breached only by bigots.

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.

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.

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."

Orwell Updated

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

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

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.

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.

Dissolving the Inkblot: Privacy as Property Right

Foreword: I wrote this article when I worked for the Cato Institute in the early 1990s. I post it here because I think it is relevant to the recent Supreme Court decision on abortion in Dobbs v Jackson and other landmark cases, including those concerning contraception and gay rights. I could write a critique of my own thesis today, but I still think it is worth sharing in light of the raging controversy regarding the constitutional status of privacy. Where I’ve used the word liberal, please imagine I wrote progressive. I prefer to reserve the word liberal for those — in contrast to progressives and conservatives — who embrace all the implications of self-ownership.

No question in jurisprudence is as muddled as that of privacy. Conservatives refuse to recognize a general legal right to privacy. Big‐​government liberals misconstrue the concept and apply it arbitrarily and opportunistically. They would protect a woman’s decision to abort a fetus but not two business competitors who wished to discuss their pricing strategies.

The dominant liberal and conservative approaches to privacy are unsatisfactory because they are essentially unprincipled. Liberals, such as Laurence Tribe, envision a right of privacy radiating from express provisions of the Constitution, but that right is so narrow that it is self‐​subverting. Conservatives, such as Robert Bork, reject that vision of a right to privacy because they believe that the method used to find it will allow judges to invent rights. Conservatives seem to assume that there is no alternative vision. But there is an alternative vision, one that derives privacy rights from a Lockean framework based on each person’s property in his own life, liberty, and estate.

The Liberal‐​Conservative Debate

Privacy and the Constitution

"[B]oth the [']liberals['] and the conservatives misunderstand privacy. The conservatives engage in a narrow and unnatural reading of the Constitution in order to avoid seeing what they do not wish to see, while the [']liberals['] find in the Constitution not penumbras but a Rorschach test that reveals only what they wish to see. In both cases it comes down to an inkblot. Both approaches allow their adherents to disparage most freedoms and exalt the few freedoms allowed by their respective moral and political philosophies."

"Dissolving the Inkblot: Privacy as Property Right,"
Cato Policy Report, Jan-Feb 1993

TGIF: Parents Should Govern Their Kids' Education

How clear are these opening words of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”?

Judging by the U.S. Supreme Court's many ventures into this area, we'd have to say not very clear at all. There's a lesson in that. Constitutions don't interpret themselves. People do, and the line between interpreting and making law is not as bright as we're told.

The latest Court decision in the matter, Carson v. Makin, is instructive in that regard. The 6-3 decision -- Republican appointees made up the majority, Democratic appointees the minority -- struck down Maine's exclusion of religious schools from a program that provides tax-funded tuition assistance to all parents who live in school districts that do not provide "free, public" secondary education. That's over half the districts. Maine, according to the Court, is the most rural state in the country. Who knew?

Under the program, those parents can spend the money at another district's school or at an academically accredited "nonsectarian" private school. The plaintiffs, two families, argued that this restriction violates both the Free-exercise clause and the establishment clause of the First Amendment, along with the Equal Protection Clause of the Fourteenth Amendment. The U.S. district and appellate courts had sided with the state.

The six justices of the majority held that the exclusion of sectarian schools violated the guarantee of the free exercise of religion despite the fact that religion permeated the regular curriculum. (Remember, these were state-approved schools academically.) But the minority justices said the exclusion violated the prohibition on the establishment of religion because the money would go to schools that used it to teach their particular faiths. It was establishment clause v. free-exercise clause.

So who is right? Can that question be answered? Chief Justice John Roberts's majority opinion and the dissenting opinions by retiring Justice Stephen Breyer and Justice Sonia Sotomayor point to many Court precedents that seem to support their conflicting positions. But the precedents aren't much help because one can always say that an earlier case differed in an important way from the current one.

Leaving aside one's background philosophy, all of the arguments seem plausible and consistent with the constitutional text. One might appeal to historical materials, but my hunch is you can find disagreements there too. There's a lesson in all this, one captured by legal scholar John Hasnas in "The Myth of the Rule of Law." (A discussion of Hasnas's paper is here.)

Hasnas's point is that considering how statutes and constitutions are written and the contradictory case law, judges and lawyers can start at Point A and reach virtually whatever destination they wish. Each individual's compass will be ideological. This, Hasnas insists, is not the notion of the rule of law taught in grade school or law school, but the rule of men and women. He writes:

The fact is that there is no such thing as a government of law and not people. The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion. For this reason, as long as the law remains a state monopoly, it will always reflect the political ideology of those invested with decisionmaking power. [Emphasis added. Hasnas favors judicial competition, or polycentric law.]

So what are we to make of the ruling? I'll cut to the chase before doubling back. Consistent with Hasnas's thesis, both the majority and the minority think its path is consistent with a desired religious neutrality. The majority holds that neutrality lies in not excluding religious schools from Maine's program because all eligible parents would be treated the same, while the minority holds that neutrality requires excluding religious schools.

Truth be told, I prefer the ruling to the Court's alternative, but let's get clear on some preliminaries first. The root of the conflict that produced this case is government schooling itself. Ironically, the early government-school movement presented the misnamed "public school" as the way to prevent conflict over religion. How's that worked out, Horace Mann? (See my book Separating School and State: How to Liberate America's Families.)

Simply put, any government involvement in education infringes the liberty not only of parents but also of nonparent taxpayers, who are forced to support the government's schools. And let's be specific: government involvement violates freedom of conscience and not just material property rights. Even before the dawn of wokeness, many taxpayers disliked how the government schools taught even unobjectionable subjects.

The case against government schooling is bolstered by the well-known fact that coercive monopolies are inherently bad deals. They deliver poor quality at unnecessarily high prices. As bureaucratic organizations, they are interested in preserving their perks rather than serving their ostensible "customers."

So it's no coincidence that the government's schools are rotten; the more marginalized the community, the more rotten they are. This is a disgrace because the education establishment has sabotaged poorer people, many of whom suffer the legacy of long-standing official injustices, and kept them from ensuring better lives for their children. If you want to understand intergenerational poverty and cultural shortcomings, think "public schools."

What we should strive for, then, is parental free choice in a competitive education marketplace. Competition is the universal solvent. (James Tooley and Pauline Dixon, among others, have demolished the claim that poorer people would be worse off in a free education market.)

As more people have come to understand the benefits of free choice, they have proposed steps by which parents could take their kids out of the rotten system. Unfortunately but understandably, reformers have supported incremental changes that still left the state and local governments with a huge amount of power over schooling. I say "understandably" because a proposal to replace government schooling with a free and competitive marketplace (which would include nonprofit institutions) is a hard sell in the current context, although it may be getting easier. One objection to the incremental approach, besides continued government compulsion, is that the radical approach would be shelved in favor of the more-attainable program.

At any rate, various programs -- vouchers, tuition tax credits, third-party scholarship tax credits -- were set up to help parents escape to some extent the clutches of the school bureaucracy. The Maine program was different because it was only for children living in school districts without secondary schools. In effect, the state told parents they could take the money that would have been spent on a local high school and use it at the accredited school of their choice. The only restriction aside from its being state-accredited was that it be nonsectarian. That seems unfair to religious parents, who regard their religious faith as integral to their education even in secular subjects. Why should they be taxed to support a system they disapprove of?

That's why I prefer the ruling to what the dissenters wanted. They think that allowing parents to buy education from schools that will "use public money for religious purposes" violates the establishment clause. That strikes me as the weaker argument. How does letting parents have that choice "establish" religion? Maine did not set up a state church.

It all depends on how one interprets that clause. (This problem plagues the Constitution. See my America's Counter-Revolution: The Constitution Revisited.) In his dissent Breyer says there is "play in the joints" between the establishment and free-exercise clauses, leaving "wiggle room" in which states can "navigate the tension created by the Clauses and consider their own interests in light of the Clauses’ competing prohibitions." Loose joints and wiggle room hardly provide good guides for legislative dos and don'ts. Roberts counters that a "State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise." I think that makes more sense.

Breyer writes, "Maine thus excludes schools from its tuition program not because of the schools’ religious character but because the schools will use the funds to teach and promote religious ideals." That supposed distinction enables him to embrace earlier decisions that permitted tax money for religiously affiliated institutions, but is that distinction meaningful? Can there really be a church-affiliated school that does not promote its faith to the pupils? The state legislature thought so and in theory permitted parents to spend the money on the former sort but not the latter sort. That sounds more like a word game to protect its statute from court scrutiny. The Court majority didn't buy it.

My arguments here assume the existing political context, which of course I want to see changed. As long as state schools, state curriculum requirements, and compulsory attendance exist, fairness requires that parents -- who pay income taxes, sales taxes, and property taxes one way or another -- be free to direct the money to the schools of their choice. "School choice" is a pale substitute for real freedom, and it will always come with unjustifiable conditions, but it still may provide children an exit from intolerable situations.

If we must err, let's err on the side of the parents' freedom of choice. Let's face it: the taxpayers would be coerced to support something they disapprove of no matter the outcome of this case, a point overlooked by the dissenters, who are concerned only when people are forced to support religion.

Let's also push, then, for a wider freedom of choice. No one should be forced to finance schools (or anything else for that matter). Taxation taints everything. The right to choose is far more radical than most people think.

In sum, it is entirely reasonable to disagree with Justice Sotomayor, who wrote in her own dissenting opinion that the majority in this case "continues to dismantle the wall of separation between church and state that the Framers fought to build." The First Amendment doesn't mandate a "wall of separation." (Jefferson most famously used this metaphor in a letter.) Rather, it seems to say only that Congress may neither establish religion (as, say, in England) nor interfere with anyone's free exercise thereof. The Court long ago applied this and other applicable provisions of the Bill of Rights to the states via the 14th Amendment. (The establishment clause originally also meant that Congress couldn't interfere with the established churches in individual states at the time.)

It's hard to see how Maine has either established religion or interfered with its free exercise merely by "giving money to parents" (Sotomayor's words) that they can freely spend on schooling. Contrary to Sotomayor, the ruling does not "require[] States in many circumstances to subsidize religious indoctrination with taxpayer dollars" because Maine did not have to set up a tuition-assistance program. The ruling simply says, echoing an earlier case, that if a state does so, it cannot forbid parents from choosing schools that mix religion with their regular curriculums. In other words, all it does is let parents spend the money that would otherwise have gone to a government school at the accredited schools of their choice.

Sotomayor also writes: "If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens." I ask: so what's wrong with that? Government has no business subsidizing people. If it wants them to have more money, cut and abolish taxes.

TGIF: Free Exchange Is Win-Win

With the possible exception of the political class and its cronies, most of us would be healthier, wealthier, happier, and freer if the public knew how to engage in "the economic way of thinking." The late Paul Heyne, who wrote a popular textbook by that name (now in its 13th edition thanks to Peter Boettke and David Prychitko), summarized the economic way of thinking by writing, "All social phenomena emerge from the choices of individuals in response to expected benefits and costs to themselves."

I think of Heyne's title whenever I encounter an example of failing to understand this. Unfortunately, our society is rife with examples and resulting bad government policies, which tells you a lot about why we suffer periodic hardships like the current inflation. The lockdowns during the COVID-19 pandemic were a spectacularly tragic example of the failure to engage in the economic way of thinking.

Other instances of that failure are so thoughtless as to be ludicrous. Take the wealthy business owner who donates a large sum of money to a worthy cause. The fallacy occurs when the donor or someone else inevitably says that the charitable act was motivated by a wish to "give something back," presumably to society or the community.

What's wrong here? It suggests that the donor wants to show gratitude for his fortune by reciprocating. But that makes no sense because the donor's wealth was not the result of people handing over money as a favor and getting nothing in return. Those people were customers, not donors. They bought something they wanted and must have liked the terms of exchange. So there is nothing to pay back. (I have in mind only people operating according to just-market principles: no force, fraud, or favors coercively provided by politicians.)

In the marketplace, profits come from voluntary exchange, which requires that buyers and sellers freely choose to transact business. Why would they do that? They do it because each party expects to benefit -- to be made better off -- by giving up something they own for something that they would rather own. This is clear with barter, but it's equally true when one party trades money. Money, a medium of exchange, expands the opportunity for exchange by enabling people to get what they want even when they don't have the particular items that their available trading partners want.

When Smith trades a sum of money to Jones to acquire shoes, Smith demonstrates that he prefers those shoes to anything else he might have feasibly used the money for, including holding on to it. Jones demonstrates the opposite preference.

Unfortunately, since they are fallible, Smith or Jones (or both) might realize later that he made a mistake. That's life, but it does not change the fact that at the moment of exchange, both sides expected to gain. If they are right, they have a happy win-win, or positive-sum, situation. Both sides profit, not just the one who obtains money because both come out ahead. (The competitive quest for profit has brought us liberal return policies, so the fallibility problem long ago became much less severe. John Stossel likes to point out that at the supermarket, both checkout clerks and customers typically thank each other.)

Free exchange produces mutual gain. If we could quantify the gain (we can't), we would say that after the exchange, the two people have more total value between them than they had before the exchange. This is remarkable, considering no new stuff was created by the transaction. Possession of the product and the money simply changed hands.

To put it qualitatively, we can say that through the exchange, both parties climbed higher on their respective value scales, giving up a subjectively lower-ranking value for a subjectively higher-ranking one. (What counts is how the parties evaluate things.) For this to occur, we need first, two parties with different preferences and, second, freedom, including property rights. Before you can justly trade something, you must own it.

In light of the two-way gain through free exchange, the wealthy seller has no reason to "pay back." He is successful because he provides value to his customers, who are happy to exchange their money. 

It's too bad that people who earn fortunes justly are made to feel guilty about their success. (Ayn Rand and Ludwig von Mises did their best to teach honest producers they had nothing to be ashamed of.) We consumers never feel guilty about the profits we reap. Why should the sellers?

Can't We All Get Along?

We ought to be able to discuss how to reasonably accommodate "trans-gender" people without gaslighting the public about well-established fundamental and immutable biological facts, muddying the language, smearing opponents as phobic bigots, or violating anyone's rights.

TGIF: The Libertarian Solution

"What's the libertarian solution to social or economic problem X? How about problem Y or Z?"

No libertarian needs to wait long before hearing such questions. But strictly speaking, the libertarian philosophy offers no solutions to specific problems. That's not what it does. It is not itself a solution. Rather, it describes an institutional environment in which imaginative people are free and motivated to discover innovative solutions to individual and collective problems.

That environment has moral, cultural, economic, and legal dimensions, all grounded in self-ownership, respect for others, property, competition, persuasion, and consent, as opposed to government authority, monopoly, decree, and coercion. The cultural dimension is especially important, though often unappreciated. Widespread resentment toward other people's success, for example, is literally deadly, not only for those targeted but for society at large, especially those at the bottom.

Thus when a libertarian says freedom or the free market will solve a particular problem (if politicians stand aside), what sounds like an impossibly oversimplified response is actually highly complex. In contrast to the politicians' boasts, note the humility here. Confidence in market problem-solving is confidence in free human imagination dispersed among countless individuals throughout society. Who can say who will come up with the solution? No one. That in part is why we need everyone to be free.

The unique grounding of the libertarian environment has far different built-in incentives for problem-solvers than any state-based alternative. State problem-solving is characterized by centralized bureaucracy, artificial knowledge constraints, nonconsensual financing (taxation) that precludes feedback, profligacy (producing the disruptive knowledge distortions of debt and inflation), and significant unaccountability. In contrast, social- or market-based problem-solving is characterized by multiple knowledge centers, competition, consensual financing, and the profit motive. In that environment proposed solutions are subjected to intellectual and product competition, which yields better knowledge than other arrangements. F. A. Hayek called competition a "discovery" process. I think of it as the universal solvent.

In the market, problems are potential profit opportunities for entrepreneurs, and as we know, the profit motive is potent. The entrepreneur's job is to figure out where and how resources are used suboptimally relative to what people (not politicians) want most. Solving a problem often requires shifting scarce resources and labor from one purpose to another.

How can anyone know what's the best way to go? Entrepreneurs find clues to that question in market prices, which is why the price system is so important and must not be tampered with by politicians and bureaucrats. If an entrepreneur is correct when thinks he can buy a quantity of resources and hire labor at one price per finished-product unit and make something people will want to buy at a sufficiently higher price, he will earn a profit. That's a sign the enterprise solved a problem for its customers. Profit in the free market (absent government intervention) is a reward for success. It's not a dirty word.

Indispensable to the entrepreneurial function is the consumers' freedom to accept or reject offers as they see fit. Both responses communicate vital information to the problem-solvers. Coercion, the government's way of doing things, sabotages the function.

The freedom-based process is vital in our world of scarcity, trade-offs, and imperfect knowledge. Improvement is always possible, and imperfect knowledge is not the only reason. Another is that people's preferences change. What they wanted yesterday they may not want tomorrow, especially if something new comes along. A third reason is that the array of resources changes, with new materials, technologies, and organization methods proving superior to the old. Government restraints on this process do a disservice to people trying to improve their lives, especially those who have yet to "make it."

In contrast to entrepreneurs, politicians and bureaucrats can't look for price discrepancies (since government "services" are not priced in the market) and wouldn't profit from them in any event. Government officials instead respond to constituencies (relatively small well-connected interests generally) who lobby for "free," that is, tax-financed, stuff. Since most of the benefits bestowed by the government are concentrated on relatively small interest groups with much riding on their single purpose, while the costs are dispersed among the mass of unorganized taxpayers and consumers without a single purpose, the interest groups usually prevail. (Think of quotas and tariffs on imports. A few domestic producers are usually able to dominate a much larger group of consumers.)

Moreover, when politicians and bureaucrats promise to solve a problem and fail, they rarely suffer any consequences since they are able to blame the private sector. (Inflation is blamed on greedy businesses, not on the real culprit: government borrowing that is monetized is by the Federal Reserve.) Spotting that misdirection requires one to engage in the economic way of thinking, but most of the public has no idea what that means. (Frédéric Bastiat in the 19th century illustrated this in "That Which Is Seen, and That Which Is Unseen.") This political trick works so well that government officials can easily turn failure into bigger budgets and more power. The game is rigged against the people, who pay twice: through the tax system and by having to forgo real the solutions that entrepreneurs would have discovered had the government kept its hands off the resources.

Nothing better indicates the superiority of market solutions to state solutions than the fact that market solutions will vary according to local knowledge and preferences. In contrast, state solutions tend to be one-size-fits-all.

No one has ever suggested that the libertarian environment for solving problems is perfect. People aren't infallible, so the private consent-based approach can't be either. Trial-and-error is inescapable but also indispensable. Yet the last time I checked, politicians and bureaucrats were people too. (No, really!) The difference is that people are operationally smarter in a free, decentralized, and competitive environment where they encounter feedback and face the clear consequences of their choices. That's exactly what is lacking in the political environment.

One final note. In a world of scarcity (however much technology loosens its limits), solving problems always entails costs. As Thomas Sowell teaches, in a sense, there are no solutions, only trade-offs. What we all strive for in life is an overall improvement; in effect we exchange situations we don't want (all things considered) for ones we do want. That's the natural condition, which politicians and bureaucrats cannot improve on. But as we can readily see, they certainly can make things much worse.

 

TGIF: Heartless Immigration Restrictions Need Replacing

Some elements of the right-wing are spreading the fear that Democrats are engineering a take-over of America by replacing white voters with nonwhites through liberal immigration policies. It's come to be known as "the great replacement," and in its ugliest form, it is said to be a Jewish conspiracy. Remember the sickening chant at the 2017 right-wing Charlottesville rally: "Jews will not replace us"?

I wish this fear-mongering could be ignored, but since a few fanatics have committed violence apparently to prevent the "great replacement," it needs to be discussed.

Why would anyone lose even one wink over this alleged plot? For one thing, even if such a plan existed, the Democrats can't possibly know how future citizens will vote or even if they will vote. Why assume they will follow the Democrats' orders, as the right-winders expect? In recent years, some Republicans have done fairly well with Latino voters. As long as conservatives talk about the nonwhite population as though it were a group of obedient children rather than moral agents, they needn't wonder why they don't win more votes in those communities. Just a thought, but maybe people who are energetic and entrepreneurial enough to leave their impoverished homes for a shot at greater opportunity, despite the risks, ought to be wooed, not alienated by political activists who pay lip service to individual enterprise.

Regardless of whether some Democratic politicians and left-wing activists think they can carry out the alleged plot or whether their statements praising America's changing ethnic composition are merely quoted out of context, who cares? True freedom-lovers favor whatever ethnic composition results from the freely chosen actions of sovereign individuals -- both current and aspiring Americans. Freedom's champions also favor progressively shrinking government power so that no one -- regardless of ethnicity -- can impose his or her values on others. (Strictly speaking, one value should be imposed on others, the liberal value summed up by the phrase live and let live. In other words, aggressive physical force is illegitimate.)

It would be nice if someone prominent in American politics would say to the conspiracy theorists: "Who needs replacement conspiracy to explain the need for open borders? We already have a perfectly good reason to open the gates: immigrants not only help themselves by coming here, but they also improve our society and the whole world."

But don't hold your breath. Does a Democrat walk the land who favors unrestricted immigration? Please let me know.

On the contrary, some Democrats have their own replacement conspiracy theory about those who favor free (or at least freer) immigration. Sen. Bernie Sanders, the economically illiterate darling of the left, says he opposes open borders because "the Koch brothers," by which he means anyone who favors freedom of movement (that is, libertarians), want cheap labor to replace more expensive American labor. It never occurs to politicians like Sanders that open-borders advocates might just favor individual liberty. Isn't it interesting how much the right and left have in common?

Tucker Carlson leads the right-wing media in "exposing" the great plot to create a new electorate through immigration. His trope is revealing: "Look, if this was happening in your house, your parents adopted a bunch of new siblings and gave them brand-new bikes, you would say to your siblings, 'You know, I think we're being replaced by kids our parents love more.'"

It doesn't get more ridiculous than that. First of all, would you say that? Second, in what respect do new arrivals get better "bikes" than those who were born here? Third, why does the government give anyone "bikes"?

The most revealing bit is Carlson's analogizing the country to a family with the government as parents. It seems that the godfather of American conservatism isn't Edmund Burke, but Sir Robert Filmer. (John Locke's liberalism was a response to the monarchist Filmer.) According to the Encyclopedia Britannica,

Filmer believed that the state was a family, that the first king was a father, and that submission to patriarchal authority was the key to political obligation. Making a strained interpretation of scripture, typical of his time but ridiculed by Locke, he pronounced that Adam was the first king and that Charles I ruled in England as Adam’s eldest heir. Filmer represented that patriarchal social structure which characterized Europe until the Industrial Revolution.

So let's get serious. Drawing on contemporary data, history, and sound social theory, George Mason University Professor Bryan Caplan shows that every one of the common fears about free immigration --  lower wages, a bigger welfare state, radical cultural change, authoritarianism, etc. -- are either concocted wholesale or outrageously exaggerated. So stop worrying! (See this interview with Caplan and check out his graphic nonfiction book, Open Borders: The Science and Ethics of Immigration.)

By the way, enacting immigration controls in the name of staving off authoritarianism is a cruel joke because controls on immigration necessarily are controls on whomever the state chooses to define as a citizen.

Instead of favoring heartless restrictions on people's freedom to move, why don't people who worry about immigration instead call for limits on government power so that fewer areas of life are controlled by politicians beholden to blocs of voters? Conservatives must have their own sort of welfare state in mind.