Notes From Babel

Archive for November 2010

Distinguishing Conservatism and Progressivism

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I’ve been thinking a bit about Tim Sandefur’s recent comment to this post, and specifically this comment, in which I argued that whatever conservatism’s moral perspective toward “the human condition,” conservatives are committed to achieving it through culture and society, not through coercive government controls.  Sandefur excepted as follows:

This is false. Conservatives are every bit as fond of Progressivism as liberals—moreso, in some ways. Progressives were actually quite socially conservative, and believed, as today’s conservatives do, in using the state to make people good—i.e., to control marriage, sex, education, the use of alcohol or drugs, and all those other social issues. The main body of conservative intellectuals is extremely close to the Progressives of the turn of the century–Robert Bork, for example. True, there are some conservatives, of whom you are one, who take natural rights seriously in ways Progressives did not, but so far as I know you remain every bit as ready to use the state to control marriage, sex, education, et cetera. I recommend on this subject Michael McGerr’s outstanding book “A Fierce Discontent.”

I know Tim well enough that it came as no surprise that he would take exception to my use of a libertarian anti-Progressivist argument in the cause of conservatism.  And I will give him that conservatism is a moralistic ideology that does not shy from expressing its values through the law.  Same-sex marriage is one example.  Abortion is another.  Drug use, prostitution, suicide, euthanasia, bestiality, the list goes on.  In this regard, it can be difficult to explain how conservatives are different from Progressives:  though they have different values, they merely seek to express them through the law like conservatives do.  So aren’t conservatives and Progressives just birds of a feather?

I don’t think so.  First, it is important to recall that society precedes government.  That is, not only are the two distinct, but the latter is inferior to the former in its representation of the values and beliefs of its constituent members.  Law and government reflect only a very narrow subset of the important values and beliefs of the society out of which it arises.  And where law and government fail to represent the society’s important beliefs and values—and particularly, where it misrepresents them—their authority is greatly injured.

For conservatives, moral authority arises out of society.[***]  Beliefs about marriage, the beginning of life, the end of life, and certain of our most important relationships are of utmost importance in establishing and maintaining the bonds among individuals that make up our underlying society.  In certain cases, these beliefs and values will find their way into our laws.  But it is important to note the direction these values and beliefs flow:  from society to government.  That is, government is meant to play a supporting role in the underlying society’s culture and norms; it is not meant to conceive and advance them on its own, foisting them on the society which the government is meant to serve.

For Progressives, on the other hand, this is exactly what government does.  Through either minority factions or temporary populist flare-ups, most Progressive laws are political or factional phenomena that in large part do not reflect the values of the underlying society.  Minimum wage or maximum hours laws, for example, are not even the sorts of laws that are traditionally harbored by an underlying society.  That is, a conservative society might adopt laws forbidding work on Sunday, in expression of its Christian beliefs and rituals.  However, that same society would search its underlying values in vain for anything compelling it to adopt laws forbidding a worker to labor more than 10 hours in a given day.  Birth control and “family planning” programs are another easy example:  the goal of eliminating children born to poor families is one felt more strongly by government planners than by the society itself.

Progressivism, I think, was borne of two new presumptions: that the federal government should make society “nice” (a justifiable presumption in the example of bringing emancipated blacks “up” from slavery, for example); and, due to technological and intellectual innovations, that government could make society “nice.”  But I’m having trouble coming up with many examples (other than, perhaps, federal education mandates and the “war on drugs”) of how conservatives embraced the Progressive movement for the purpose of expressing any more of its values and beliefs in the law that it hadn’t already grown accustomed to doing.


*If you are wondering why I capitalize “Progressive” but not “conservative,” know that I am, too.

**By the way, I finished Tim’s new book, The Right to Earn a Living, over the Thanksgiving holiday.  It is a wonderfully detailed account of the myriad ways government wrecks our ability to make a living.

[*** I should clarify/correct this statement. By moral authority here I am speaking in the descriptive sense, not the prescriptive. That is, what a people (and in this post I am conceptualizing people in their pre-government condition) believes on moral issues is the source of moral legitimacy, at least as against the later-contrived state. This is not meant to touch on who or what in pre-government society establishes that moral baseline (e.g., the mob, the clerics, scriptures, etc.). It is only meant to say that whatever is moral is such without respect to the state.]


Written by Tim Kowal

November 29, 2010 at 8:48 pm

Waxing Indignant about the Unwritten Constitution

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Liberal constitutional law scholar Erwin Chemerinsky waxes indignant at the Obama Administration’s brief filed in support of an Arizona law giving tax credits for contributions to student tuition organizations.  Apparently, the law apparently in some tax dollars going to parochial schools.  Chemerinsky apparently agrees with the Ninth Circuit that Arizona’s law violates the First Amendment, which provides that “Congress shall make no law respecting an establishment of religion.”

Anyone familiar with First Amendment jurisprudence will probably think me pedantic for saying so, but someone like Dean Chemerinsky should know better than to suggest this is a violation of the Establishment Clause.  No one will ever contend that Arizona’s law is an act of “Congress . . . respecting an establishment of religion.”  Instead, as you probably know, what Dean Chemerinsky means to suggest is this is a violation of the Fourteenth Amendment’s proscription that “nor shall any state deprive any person of life, liberty, or property, without due process of law.”

Then again, after reading this, any person not inducted into the cult of living constitutionalism might still ask, how does this have anything to do with an Arizona law giving tax credits for donations to student tuition organizations?  The short story is, the Supreme Court made it have something to do with it in 1947 in the case of Everson v. Board of Education.  Many liberal scholars will defend the Court’s broadening of our unwritten constitution based on esoteric notions of political theory and social justice.  But none of them will ever pretend that we actually bother with the text of what we still assiduously refer to as the “Establishment Clause.”

In my view, liberals like Chemerinsky continue to employ the term “Establishment Clause” when they refer to attempts to limit the states rather than Congress for more than mere habit or convenience.  They do it for strategic reasons, to maintain the semblance that we are still talking about CONSTITUTIONAL LAW—as in, the law based on our nation’s most revered document—rather than mere decisional law—as in, the law as handed down by courts.

It is for this reason that it is so bothersome when liberals wax indignant at “activist” efforts to “tear down the wall of separation” between church and state. Dean Chemerinsky knows what the text of the First Amendment says. He knows it never applied to the states. He knows it cannot logically be applied to the states. Thus, the “separation” doctrine is not a constitutional one, it is a decisional one wrought by the Court. Liberals can be disappointed when subsequent Courts chip away at the holdings of prior liberal-leaning decisions. But it is disingenuous to pretend at indignation as if the Constitution were in play.

Written by Tim Kowal

November 22, 2010 at 11:14 pm

California and the Big Flushing Sound

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I suppose it goes without saying, November 2 put California significantly closer to hitting the reset button.  It’s not been since 1932, I believe, that one party was so overwhelmingly victorious in this state’s elections—and of all elections, and of all parties, California made 2010 the year to affirm their commitment to this state’s particular off-the-rails brand of lefty Democrats.  As I tried to warn here and here, Jerry Brown will be a death blow to California’s judiciary, where it looks likely that as many as four of our Supreme Court seats will be up for grabs.  When they come up, they will be filled by the same governor who gave us the Court who actively declined to enforce the state’s death penalty laws, and who made “wrongful life” a legal cause of action in California, alone among the states in the nation.

Ed Whelan had this to say:

On the legal front, Brown’s multiple derelictions of duty as state attorney general in failing to defend California’s marriage laws should have led more directly to impeachment and disbarment than promotion. And the same Brown who appointed terrible state supreme court justices like Rose Bird three decades ago can be expected to do as poorly—or even worse—this time around.

And Steven Greenhut is spot on here:

No state is in a bigger fiscal jam than California, with its structural budget deficit and massive unfunded liabilities for well-compensated public employees. The state’s business climate is atrocious, and unemployment has topped 12 percent. Yet California voters on Tuesday not only sidestepped the national backlash against liberal Democratic policies; they declared that they want more of them.

. . . .

California is said to be a national trendsetter, but Tuesday night, it lagged behind the rest of the country. The state continues to move toward the financial precipice. It’s becoming more likely that California is, as former state librarian Kevin Starr put it, a “failed state.” For this, Golden State voters have no one to blame but themselves. I can only take comfort in H. L. Mencken’s words: “Democracy is the theory that the common people know what they want and deserve to get it good and hard.”

How does one explain this commitment to the policies that are so obviously suffocating us?  Professor Mondo recently solicited feedback  about “adulthood” and “childishness” in political ideologies.  At the risk of sounding undignified, I think there is a genuine claim that the leftovers of the 60s liberal movement, at least, smacks of what can probably fairly be called youthful idealism.  And because the 60s were so iconic and indelible, the ideology of that era tends to grip the imagination of ex-hippies to this day.

The night ObamaCare passed, I had myself a rant about our beloved parents’ generation who, after enjoying what was then still a largely unregulated and undeveloped America and plucking opportunity from her branches heavy with fruit, are now working furiously to rope off those orchards from their children’s generation through stifling environmental and economic regulations. For what purpose? Probably because the only place such a beatific vision of humanity could ever survive is in government. And that vision, activated by power, allows boomers to bask in a nostalgic stupor: green regulations keep land undeveloped to keep things looking like it did back in the 50s; economic regulations insulate familiar though inefficient businesses from their own natural mortality; profligate unions keep treating the mediocre among us to homeownership, a relic of a time when American economic power was at its height (and regulatory costs of development were substantially lower than today); and socialized medicine and reverse mortgages and fat pensions ensure they all get to keep us from changing the channel a few more years while they chew on the pith and pips of America’s former glory.

Let’s hope California’s not still the nation’s trendsetter.

Written by Tim Kowal

November 18, 2010 at 10:59 pm

Forgetting How to Be Certain

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I tried to make sense of Erik Kain’s piece on his inability to find certainty in anything about our system of government, and thus his embrace of uncertainty, but I just couldn’t get it.  After giving it one more shot, however, I think I figured it out.  It was this paragraph he quoted from Jim Manzi that made it come together for me:

Bill Buckley famously said that he “would rather by governed by the first 2,000 names in the Boston telephone directory than by the Harvard faculty.” So would I. But I would rather fly in an airplane with wings designed by one competent aeronautical engineer than one with wings designed by a committee of the first 20,000 names of non-engineers in the Boston phonebook. The value of actual expertise in a technical field like wing design outweighs the advantages offered by incorporating multiple points of view.

Something about this made me realize:  I don’t want “small” government because government is inefficient or incompetent or corrupt—though it often is all those things.  Likewise, I don’t prefer markets because they always produce better outcomes, or they are always fair—though they often are.  Government ought to stay locked in its cage not because we are “certain” it would run amok if loosed upon society, or because we are “uncertain” whether it might work some grand good for humanity.  No:  It ought to stay within its prescribed limits because we are certain that our freedom, our livelihoods, and our communities are good things worth being preserved against governmental encroachment.

The paragraph above reflects this principle.  We should prefer to be governed by 2,000 strangers chosen at random over Harvard faculty because Harvard faculty are invariably cleverer at wriggling out of constitutional constraints on governmental power and chiseling away at our liberty.

This chiseling away seems to be a foregone conclusion these days—probably why I struggled so hard to get the point of Kain’s piece.  Thus, the emphasis is never about whether government will intervene, only how effective it might be.  The quote from Manzi goes on:

The essential Progressive belief that [Ezra Klein] expresses in undiluted form is that crafting public policy through legislation is a topic for which, in simplified terms, the benefits of expertise outweigh the benefits of popular contention. Stated more cautiously, this would be the belief that the institutional rules of the game should be more heavily tilted toward expert opinion on many important topics than they are in the U.S. today.

This would be a lot more compelling if the elites didn’t have such a terrible track record of producing social interventions that work.

The contention in bold is troubling when we consider the enlargement of the counter-majoritarian branch of our federal government, i.e., the courts, through their Progressivist non-interpretivist view of the constitution.  If the courts presume to pass judgment on every detail of life formerly properly reserved to the legislature, this is enough of a blow to democracy.  But if the view takes hold that our legislatures, too, ought to subvert the popular will in favor of a give-‘em-what’s-good-for-‘em aristocracy, then where does there remain any quality of democracy in our system of government?  We would be left merely to elect the tyrant of our choice.

This is why I think the whole dichotomy between certainty and doubt is wrongheaded, because it is looking for certainty in the wrong place.  “How can we be certain we are improving the human condition as much as possible?”  “How can we be certain we are regulating freedom in the right amounts?”  “How can we be certain we are liberating enough people from suffering the consequences of their actions?”  All this technocratic legal experimentation takes its toll on the certainties we set out with in the first place:  a shared reverence for liberty, and a shared set of moral and cultural values.  This is not to say there is not substantial room for doubt in the continual process of enacting laws that are thought most meet and convenient for the general good.  But by straining our considerable modern intelligence on questions of legal and social and engineering, we ignore those sure truths that matter.  And then write long essays lamenting we have nothing to be certain of.

Written by Tim Kowal

November 17, 2010 at 12:36 am

“Producing policies that improve the human condition”

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From Fear and Loathing in Georgetown, an excerpt from a 2005 article by Jonathan Chait:

Liberalism is a more deeply pragmatic governing philosophy–more open to change, more receptive to empiricism, and ultimately better at producing policies that improve the human condition–than conservatism.

The really odious component of this statement is disguised as an implied premise: that “the human condition” can be improved, or that such is a legitimate or principal aim of government. This is one of the key ways that liberals and conservatives talk past each other. Liberals rail that conservatives don’t come up with plans to solve the world’s problems and “improve” the “human condition.” Conservatives, in my view, don’t care about all that stuff. Perhaps “time horizons” is a way to take some wind out of liberals’ sails, a way to counter that the way to solve the problems liberals’ are worried about is to take the long view. But really, the truly conservative position is that government ought to sit tight until there arise the sort of problems government is instituted to address; to observe the difference between threats to security and threats to comfort; to stop acting like Mrs. Reverend Lovejoy at every Dateline story, for heaven’s sake. “Won’t somebody PLEASE think of the CHILDREN!!!”

There will always be some deficiency in the “human condition” to be remedied, improved, assuaged, or eliminated.  But this is part of the human condition—to be forever dissatisfied.  To assume that government is assigned the task of perfecting the human condition is the big lie implicit in all this talk about employing empiricism and social science in lawmaking.

Written by Tim Kowal

November 15, 2010 at 10:13 pm

How economic regulation swallows jobs

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Speaking of tilling the soil for more government intervention, check out this great video from IJ.

H/T Sandefur

Written by Tim Kowal

November 13, 2010 at 10:55 am

Posted in Economics, Law

Regulating Payday Loans

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Earlier this year, Obama signed into law new cash advance lending laws designed to make it more difficult for these lenders to do business, and make readily available cash less available to poor Americans.  This video from Reason gives a good overview of the issue and the positions of those for and against the new law:

Being a pretty thoroughgoing conservative, I’m reflexively against this sort of law.  But then again, I was at least lukewarmly in favor of a similar new law passed last year, the Credit Card Act.  How can I be in favor of one and not the other?

Perhaps because credit cards have become a fact of life, for one thing. It would take a concentrated act of will to go without one. One would be ill-advised to make any large purchases, or any online purchase, or to travel by making use of cash or ATM cards instead of credit cards.  Credit cards, so long as the balance is paid off each month, act as a free layer of security and insurance to the consumer.

But the impacts go beyond the merely practical.  Paying for everything in our lives—not just big ticket items, but groceries and gasoline and Sunday trips for an ice cream cone—comes to have a significant impact on our values toward money, and toward products and our consumption of them.  Not just economically, but psychologically and socially.  There’s something perhaps unnatural about buying on credit.  We’re using stuff we haven’t paid for yet, which can add a layer of complexity in dealing with tight family budgets.  We have to plan to fork out a wad of cash not only for next month’s rent/mortgage, but also for last month’s ice cream cones.

Yet, despite all their vagaries, credit cards have become a part of American culture.

Given all that, I think it’s justified when it comes to credit cards to choose to give up some of the bargaining rights we hold as individuals, in order to establish and fortify a set of baseline values concerning this pervasive economic institution on which we all depend as a people.

Though, if there’s any merit to the foregoing, it still would have nothing to do with the cash advance industry.  Relatively few Americans depend on them, and thus it cannot be said they are part of the our culture in the way credit cards are.  And the purpose for the new law are designed to restrict and crush the industry, not regulate or normalize it—probably a presumptively bad legislative purpose to begin with.  People may come to depend on cash advances because they’re bad with their money (not a good reason to undermine lenders’ economic freedom) or because they’re just poor (arguably a better reason). But the solution should come by way of improving the borrowers’ economic position, not by stripping others’ economic rights.

Written by Tim Kowal

November 10, 2010 at 10:23 pm