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Kochan on Equality

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Chapman law professor Donald J. Kochan has a new essay available on SSRN entitled On Equality: The Anti-Interference Principle.  From the abstract:

[T]his Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. It argues that, to do so, equality requires that the government engage in anti-interference with individual choices and activities, so long as these things create no negative externalities to others. Absent avoidance of harm – special designations, privileges, or classifications necessarily interfere with equality in a manner that consequently violates the Anti-Interference Principle. Such actions necessarily interfere with equality. As such, if we are serious about respecting equality, such interference actions should be avoided.

Here are a few of my observations after reading the piece.  Further explaining the anti-interference principle, Professor Kochan says:

[A]t the very least, the [Equal Protection] Clause should be interpreted to mean that where one group or class is granted a privilege or immunity, another group should not be denied the same.  The two clauses in the Fourteenth Amendment—privileges or immunities and equal protection—must be read together as supporting a general constitutional recognition of an equality concept.

. . . .  The government has created far too many privileges, but once they are created, they should be available for all people. Equality demands it. Grant nothing beyond basic liberty if you will, but once we grant some privilege or immunity then it should be made equally available without special beneficiaries.  Favoring some over others would violate the anti-interference principle.

(Italics mine.)  I’m skeptical as to the interpretive accuracy of the first paragraph.  The Equal Protection Clause grants protection of rights, but does not itself contain a substantive component.  I cannot say I’m thrilled with the advent of a new retroactive interpretive principle that would further subvert the original meaning of the Fourteenth Amendment, even if toward beneficent ends.

The italicized language in the second paragraph suggests an appealing idea—i.e., that the government’s grant of entitlements ought to force the government to ensure those entitlements are equally applied.  In the abstract, I like this for the same reason I reflexively like the proposed REINS Act, which would force Congress to approve all bureaucratic rule-making with an expected annual economic impact of $100 million or more.  If the government is going to act, it has to do its due diligence and follow-through.

In this regard, I would have liked to see an application of how this might work with respect to licensing laws.  Instead, Professor Kochan references the California same-sex marriage legal battle.  However, that issue involves too many strands of the debate over the shared borders between law and culture.  Thus, it’s not terribly useful in a discussion of an equality principle.  For example, this passage overlooks those questions altogether:

Creating an institution like marriage yet excluding segments of the population from accessing the institution and all the benefits (and burdens) available in it is differential treatment not based on a preference to avoid harm, or precluding someone from a benefit because they have done something legally wrong, but instead based on some  artificial classification based on a preference of giving more to some over others.

First, marriage is fundamentally a social institution, not a legal institution.  Thus, to suggest government “created” the institution is incorrect.  Second, and relatedly, the suggestion that the definition or inner workings of marriage improperly involves “artificial classifications” misses the point.  From a purely legal standpoint, marriage is altogether arbitrary.  It is an outworking of human nature, not legal necessity.  Legal recognition of marriage is just that: the recognition of an institution borne of the people those laws mean to govern.  As I previously explained for the law to change or add to that institution is the tail wagging the dog, a breach of the treaty between law and society.

Thus, I also would have liked to see some application of the non-interference principle and what constitutes “unacceptable negative externalities” to more vexing examples of morals legislation, such as suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so on.  The essay quotes J.S. Mill, stating that “the individual is not accountable to society for his actions.”  Thus, one is left wondering whether the anti-interference principle is essentially just another way of describing libertarianism.

If Libertarianism Is the Young Man’s Ideology, Liberaltarianism Is the Young Confused Man’s Ideology

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Timothy Lee can’t see the link between conservatism and libertarianism.  Observing that conservatism is said to revolve around protecting individual liberty, Lee remarks:

This seems completely wrong to me.  Conservatives care about “protecting individual liberty” for some people, but the conservative movement includes many people who are indifferent, if not hostile, to the liberty of foreigners, immigrants, drug users, gays and lesbians, women who want abortions, broadcasters, sex workers, criminal defendants, Muslims, publishers of pornography, atheists, and so forth.

I have to note initially that “women who want abortions” is an odd description for a group of people—particularly for a group of people supposedly drawing the ire of an entire ideology. What makes Lee think that conservatives are so full of rude energy over any of these groups that they’ve rewired their entire concept of “liberty” in order to take them down a peg or two?

It sort of makes the point on its own:  obviously, conservatives don’t have a list of people who deserve less liberty than everyone else.  Why is Lee making this personal?  If conservatives think the acts of prostitution or drug use or abortion are wrong and should be illegal, this doesn’t mean they want to “deprive” anyone of a “liberty” interest.  It simply means that conservatives don’t believe that these activities are properly described as “liberties,” because there is no rightful claim to engage in the acts in the first place. Libertarians obviously tend to have a broader definition of liberty than conservatives.  But this is a somewhat narrow scope of disagreement.

The fact is, Lee and so-called “liberaltarians” are wrong to suggest that libertarians have no more in common with conservatives than with liberals.  Libertarians and conservatives have sharp differences in their concepts of liberty, but they do believe in the central importance of liberty as an end in itself. Progressives, on the other hand, regard liberty as a means rather than an end, as something to be subjugated and subverted as needed in order to achieve some form of social enlightenment.  And modern liberalism, by the way, is really just rebranded progressivism, having hijacked the word “liberal” in a violent outburst of irony.

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“Brothers Under the Skin”: Conservatism and Libertarianism

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Sandefur is right:  conservatives and libertarians are not “brothers under the skin” who occasionally tussle over trifles.  Their respective positions on topics like the propriety of restrictions on certain sexual activity, as in Lawrence v. Texas, indicate a major rather than a minor break in their ideologies. This is not to say, however, that moral regulation is somehow the sine qua non of conservatism.  I submit that most conservatives would cringe at the idea of defending such laws, promulgated by cretinous state officials possessed of some burning obligation to ensure that all romantic congress in the jurisdiction conform to some established “custom and tradition.”  I can only imagine the glee that libertarians must feel at prevailing upon some poor lunkhead to defend a law like the one in Lawrence, and watching as he gurgles out a string of unintelligibilities until he is restored to his senses.  The correct response, as I believe Justice Scalia has given more than once, is that the mere fact that a law is stupid is not enough to make it unconstitutional.  (Incidentally, I believe Sandefur’s Objectivist brand of libertarianism takes just the opposite position.)

While I have no doubt that Sandefur accurately cites Russell Kirk in describing conservatism as “adher[ing] to custom, convention, and continuity,” this description is misleading if it is meant to encapsulate conservative jurisprudence—i.e., the way conservatives think about the law.  Thus, I think Sandefur overreaches in his description of conservatism’s goal in adhering to custom and convention, etc. in its approach to the application of law.

The ideology of conservatism as a whole is, indeed, profoundly different from libertarianism.  Conservative jurisprudence, however, shares more similarities with libertarian jurisprudence than one might expect by looking at the respective ideology as a whole.

Both ideologies are committed to the rule of law, and thus would decline to thrust any cultural agenda through an appointed branch of government.  Thus, with respect to their approach to the courts, libertarians and conservatives can still be “brothers under the skin” even as to cases like Lawrence v. Texas.  The dispute among conservatives and libertarians over that case (striking down a Texas law outlawing homosexual sodomy) is not over whether the Court ought to impose its preferences over the consummated will of the people, but whether that particular preference of the people could ever be consummated in the law in the first event.

In other words, the debate between conservatives and libertarians here is over political theory, not jurisprudence.  Thus, it is unfair and incorrect to suggest that conservatives would insist on effectuating their entire worldview through the legal system.  Just as unfair and incorrect, in fact, as it would be to suggest libertarians would do this.

This, at least, means I will enjoy discussing political and legal theory with libertarians infinitely more than with liberals, who tend to insist on mincing every such discussion into sodding pleas for equality and social justice.

UPDATE: If it’s embarrassing for conservatives to attack Lawrence v. Texas, it is probably similarly embarrassing for libertarians to attack Shelley v. Kraemer.

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Science:Knowledge :: Libertarianism:Political Theory

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As science is to knowledge, libertarianism is to political theory.  The former represents the most rigorous species of its respective genus.  But it cannot account for the full breadth of the genus.  Science relies on other forms of truth that can only be supported by different species of knowledge, and it cannot account for all useful human knowledge.  In a similar way, libertarianism cannot account for the full scope of laws that can be considered legitimate; it cannot account for the breadth and nuances of political and legal life that humans demand of their governing institutions.

Written by Tim Kowal

January 20, 2010 at 10:12 pm

Moral Values Are Premises, Not Conclusions

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God does not ponder the human race in general.  At a single glance he sees separately all of the beings of which humanity is composed, and he perceives each of them with the similarities that bring [each one] closer to all and the differences that isolate [each one] from [everyone else].

God therefore has no need of general ideas; that is to say, he never feels the necessity of enclosing a very great number of analogous objects under the same form so as to think about them more conveniently.

It is not so with man.  If the human mind undertook to examine and judge individually all the particular cases that strike it, it would soon be lost in the midst of the immensity of detail and would no longer see anything; in this extremity it has recourse to an imperfect but necessary process that both aids it in its weakness and proves its weakness.

Alexis de Tocqueville, Democracy in America, Univ. Chicago Press, 2002  (Mansfield and Winthrop, eds.) at 411 (emphasis added).  What a lovely and subtle admonition against over-extending the faculty of classification.  At the heart of libertarianism is the broad, general idea that no law is valid that circumscribes action that does either physically or economically harm another.  This premise is honest, elegant, and powerful.

But it is also an over-simplification.  At its core, libertarianism, in hopes of “purifying” the Law, prevent its subjects from incorporating into it the values of the people that could not be distilled into strictly cause-and-effect terms.  This ignores that many of the important beliefs of a community cannot be articulated in this way.  As Tocqueville said:

Dogmatic beliefs are more or less numerous according to the times.  They are born in different manners and can change form and object; but one cannot make it so that there are no dogmatic beliefs, that is, opinions men receive on trust without discussing them.  If each undertook himself to form all his opinions and to pursue the truth in isolation down paths cleared by him alone, it is not probable that a great number of men would ever unite in any common belief.

Now it is easy to see that there is no society that can prosper without such beliefs, or rather there is none that could survive this way; for without common ideas there is no common action, and without common action men still exist, but a social body does not.  Thus in order that there be society, and all the more, that this society prosper, it is necessary that all the minds of the citizens always be brought and held together by some principal ideas; and that cannot happen unless each of them sometimes comes to draw his opinions from one and the same source unless each consents to receive a certain number of ready-made beliefs.

If I now consider man separately, I find that dogmatic beliefs are no less indispensable to him for living alone than for acting in common with those like him.

If man were forced to prove to himself all the truths he makes use of every day, he would never finish; he would exhaust himself in preliminary demonstrations without advancing; as he does not have the time because of the short span of life, nor the ability because of the limits of his mind, to act that way, he is reduced to accepting as given a host of facts and opinions that he has neither the leisure nor the power to examine and verify by himself, but that the more able have found or the crowd adopts.  It is on this first foundation that he himself builds the edifice of his own thoughts.  It is not his will that brings him to proceed in this manner; the inflexible law of his condition constrains him to do it.

Id. at 407-08.

This practical epistemology is expressed in our judicial system as the concept of judicial notice.  Generally, facts may be submitted to a court only through a rigid set of procedures to ensure authenticity and veracity.  However, some facts—those that are commonly known in the jurisdiction, and whose truth cannot reasonably be controverted—are exempt from these procedures, and a court will readily take notice of them.  As Singh v. Ashcroft, 393 F.3d 903, 906 (2004) put it:

Every case “involves the use of hundreds or thousands of non-evidence facts.” . . . . Administrative cases and the review of administrative decisions are no exception to this universal truth. An agency or an appeals court could not function if it had to depend on proof in the record of facts “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”

(Citing rule 201 of the Federal Rules of Evidence.)

Certain “facts” that political man must assume are those whose truth is a premise rather than a conclusion of human reason.  This is perhaps the only way that even such fundamental concepts as causation and universal order—absolutely essential to purporting to hand down a judicial opinion—can be observed.  Were we to require an explication how one thing “caused” another, we would never leave the armchair. Thus, in the sense of taking the concept of causation as a conclusion that must logically follow a series of demonstrated and proven premises, it could not only be “reasonably questioned”—it is as unproven as a thing possibly can be.  For what does it mean to “cause” something?  We see one thing happen, then another.  The billiard ball draws nigh to another billiard ball, and suddenly the second ball moves.  We never see causation; it is simply a story we tell to satisfy our innate desire to impute interconnectedness and order on the world around us.

Thankfully, it is not as a conclusion that causation is accepted as a truth, but as a premise:  we could make no sense of our experience without simply accepting that the sudden movement of one billiard ball is “caused” by its being struck by the other, and that its velocity and trajectory are sound indicators of how similarly situated billiard balls will behave in the future.

Similarly, as far as the argument goes for purposes of political theory, moral truths can only be taken as premises.  Any justification one might give as to why any number of things are good can only devolve into an appeal to yet some other moral good.  At some level, engaging in any moral debate assumes that the participants agree on some basic moral premises.  If they are sharp and insightful thinkers and effective advocates, they might be able to demonstrate, once those shared moral premises are uncovered, how reason and intellectual consistency lead inexorably to his position, or at least to the untenability of his opponent’s position.

But political order was created not merely for litigators.  Meaningful participation in civil society requires that its members take notice of certain truths.  The enshrinement of certain of those truths in the law serves this function.  Particularly in secular society that grows more and more skeptical of both religion and tradition, there is increasingly scant commonly accepted authority to which to appeal in asserting the legitimacy of certain cultural norms.

Moral truths are not the sort that can be demonstrated by syllogism.  They are part of a cultural conversation.  Some morals eventually prove they carry their own weight, while others prove counter-productive and are discarded.  But the fact that individual citizens cannot account in strictly rational terms for the legitimacy of their moral beliefs—even, and particularly, for the strongest of them—does not suggest they should be barred from expressing those views in their laws.  James Buchan observed in The Authentic Adam Smith: His Life and Ideas, that “Adam Smith was aware that he was prone to the fault of the ancient philosopher Epicurus, which was ‘the propensity to account for all appearances from as few principles as possible’.”  Id., W. W. Norton & Co., 2006 (paperback ed. 2007) at 8.  Many philosophers commit this same error of insisting that all the complexities of human experience be first reduced to the strictures of logical reasoning before it may be regarded as legitimate.  While we as heirs of the Enlightenment should tread lightly in imposing our moral values by legal coercion, we should not believe those libertarians who suggest that it is in all cases verboten.

Written by Tim Kowal

December 17, 2009 at 11:29 pm

If a Kitten Ever Got the Chance, He’d Eat You and Everyone You Care About

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A recent post at Positive Liberty referred me to this one I missed a couple years back, whose title practically makes it impossible not to read on.  The topic—the libertarian view on animal rights and animal cruelty—was too good for me to pass up without commenting on my befuddlement over libertarians’ repressed and awkward relationship with culture and morality.  As Jason Kuznicki put it:

I know I won’t make any friends by saying this, but I am afraid that the same also applies if I want to raise dogs to fight one another. I am disgusted by the practice, and I would never watch a dogfight. But I do not think it should be illegal. Once we start making “disgust” and “I wouldn’t do it” into the basis of criminal law, we might as well outlaw sodomy. And Protestantism.*

Why in blazes not?  Libertarians’ problem is their unjustified assumption that human beings can neatly compartmentalize law and culture, and/or that culture is insignificant.  We can’t, and it isn’t.  As Richard John Neuhaus put it:

Whatever else law may be, it is a human enterprise in response to human behavior, and human behavior is stubbornly entangled with beliefs about right and wrong. Law that is recognized as legitimate is there¬fore related to the larger universe of moral discourse that helps shape human behavior. In short, if law is not also a moral enterprise, it is without legitimacy or binding force.

(Emphasis added.)  Libertarians are perennially hopeful that they can shepherd Western man to the end of the long road begun at the Enlightenment—the nirvana in which their morality is shared by all.  That morality, of course, is that moral injury is not legitimate injury and thus of no legitimate political concern, and that further justification for an act neither can nor need be demonstrated beyond that its perpetrators consented to do it.

Jefferson is frequently offered in support of this view: “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”  It follows from this, the argument then goes, that the same is true of other moral choices that do not result in harm to unconsenting third parties.

But consent cannot authorize an act that is intrinsically immoral.  Suicide is consensual by very definition, yet supremely immoral.  The Nazi regime was brought to power through the consent of the governed.  There is nothing preventing incestual or polygamous relationships from being consensual.  Yet there is no issue in condemning all these as immoral.

Not all libertarians take the Declaration’s guarantee of the right of each man to pursue happiness as an invitation to moral relativism (though many do, knowingly or not).  Judging from this single article, I can’t tell which type Kuznicki is. He appears to find something repugnant about Michael Vick and animal cruelty in general, though he also seems a bit squeamish of the fact since he’s unable to make out an abstract theory of animal rights in which to ground his nagging scruples.  When he says, “Even I find his actions repugnant, and I think he had a perfect right to do them,” we might give him the benefit of the doubt and take him as saying that he believes Michael Vick’s actions were objectively repugnant, and yet even that is not grounds for outlawing them.  Kuznicki goes on:

Why the law needs to get involved, I really don’t understand. If the law were to act here in any fair or consistent way, it would also be forced to destroy a lot of other uses for animals that we mostly find unobjectionable. For every argument you make against foie gras or dogfighting — both practices of longstanding tradition — someone else can come along an make what’s probably an a fortiori case against industrial farming, which obviously involves more pain to more animals, which is of very recent institution, and which bothers relatively few.

The answer to this is that one of democracy’s attributes is its liberation from the confinement of rigorous consistency.  This is why we can select two as the magic upper barrier for the number of marriage participants without any particular reason (as I’ve explained here, here, and here).  The so-called traditional definition of marriage is concededly arbitrary.  But so also would be the proposed revision.  Why limit the number to two?  Why limit the participants to non-relatives?  At some point, subjecting these concerns to strict, abstract logic, we would be forced to  just dump the whole institution.  Fine, say many libertarians, over-concerned with reducing all manner of human life to mathematical proof.  But this is not fine with the vast majority.  And it never will be, if I may offer a prognostication.  A successful polity is one of virtuous citizens, eager to come to its service.  This is unlikely to happen when the polity reflects the values of no citizen.

If we are forced to hold ourselves to consistency and rationality in the strictest, most absolute sense, we will have left no room for being human.  We depend on our innate moral sense to help us determine which beliefs are conclusions for whose support we must insist on the rigorous application of reason and evidence, and which beliefs are premises without much of the rest of our belief system becomes unintelligible.

Libertarianism ultimately suggests that human flourishing, to which end political society is ordered, is a solitary endeavor.  At the very least, it suggests that we have nothing to gain by being made to grapple with the sensibilities of other individuals in our communities.

It is curious that Kuznicki would choose animal cruelty for his example. Those who care for animals—even those who don’t—feel genuine anguish, a moral pain, at stories and images of animals being beaten, abused, mistreated.  Though I have not taken the plunge into vegetarianism, I rarely get through a meal without it occurring to me how the animal probably suffered greatly before its end.  And things are relatively humane in our country.  I came across a video on the web some time back, involving a worker dipping one terrified, live cat after another into a vat of boiling oil.  Apparently it is easier than killing them first, and it makes the fur come off easier.  The image has haunted me ever since.  Even recalling it causes sincere sadness and moral anguish.  It makes me more willing to tolerate having to share space with our own four cats.

You can damn well bet I’d vote to criminalize such repugnant practices.  Libertarians wouldn’t because, if they did, it’d undermine their position of isolation from the rest of society around them.  There must be great satisfaction in following that doctrine to its end, given how sad and cruel it often is.

* Protestantism?  Actually, Kuznicki explains this a bit further here, suggesting that the First Amendment’s ban on laws respecting an establishment of religion applies to anything that might be called morals legislation.  No further explication is provided, unfortunately.  Like libertarianism’s core moral position—that aside from prohibitions on picking my pocket or breaking my leg, no laws are valid—if the idea doesn’t intrinsically tickle your fancy, there is little else to give you.  “C’mon, man. Don’t you get it?  Please, just get it, man.”

A Query for Libertarians on Moral Legislation

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Here’s a puzzle for libertarians (or anyone else who wants to chime in): Assuming one takes a position against “moral” legislation against marijuana (i.e., that marijuana should not be unlawful merely on the grounds that it is “bad”), would it be much less wrong to legalize it while taxing the snot out of it?

For my part, I don’t tend to mind much that cigarettes are taxed to the hilt. But on the other hand, I wouldn’t have much problem with criminalizing cigarettes altogether. I don’t think I’d vote for an initiative to do so, but it is a perfectly acceptable thing for us to vote about, at least from a constitutional point of view.

However, if you’re one to take the view that we may not, through criminalization, impose personal preferences on choices that are basically private and personal, then, to be consistent, mustn’t you also take the view that we may not do it through punitive taxation, either? The spectre of normative legislation is still present, only instead of prohibiting certain behavior, the state engages in something like selling indulgences, requiring outliers of the public sentiment to make penance for their willful deviations. Is this really any better?

Written by Tim Kowal

July 19, 2009 at 7:51 am

Posted in Libertarianism