Notes From Babel

Links from the past week

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Via Greg Mankiw, Tax Foundation reports a controversial study indicating the U.S. is already has one of the most progressive tax policies around.  See also here.

Veronique de Rugy explains why hedge funds aren’t that bad, and might have even helped the economy.

Christopher Wolfe argues marriage has been injured not primarily by the campaign for same-sex marriage, but by no-fault divorce and the sexual revolution in general.

Tim Sandefur corrects a misunderstood point about states’ authority to maintain their own armies.

Adam Serwer on the Big Love series finale.

Eighty-Four Underpaid Fullerton Teachers Who Make Over $90k.

Interesting theory why the stimulus didn’t work:  liberal federal policy offset by conservative state policy.

Yglesias on why household budgets are not like government budgetsFLG responds.

Justice for Janitors is a real thing?

David Bernstein on Ryan Williams’—a living, breathing, practicing attorney, like me!—”path breaking” new article, The One and Only Substantive Due Process Clause.

Joe Biden on impeaching the President for unauthorized use of executive power.

The Bleeding Heart Libertarians blog poses another interesting thought experiment.  My comment here.


Written by Tim Kowal

March 25, 2011 at 11:29 pm

Posted in Uncategorized

Democracy, Meta-Choices, and Taking the Long View

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Julian Sanchez makes an interesting point about “meta-choices,” how we force ourselves to eschew snap decisions and to take the long view, and how this relates to democracy:

A polity can establish broad and general principles specifying the conditions under which government may or should act, or it can vote on individual policies and programs on a case-by-case basis (with many gradations in between, of course). Both are clearly in some sense “democratic”; the proper balance between them will depend in part on one’s theory about how democratic deliberation confers legitimacy, just as the weight an individual gives to different types of “choices” will turn on a view about the nature of rational autonomy. Limited government is sometimes painted as constraint on democracy—an obstacle to what a majority might favor at a particular time. But political elites, like marketers, understand how the frame and scope of a choice may radically affect what the very same person or polity would choose—and claims by either that only one counts as true “choice” or “democracy” ought to be viewed with due skepticism.

This prompted me to amend my list of political paradoxes, as follows:

Liberals tend to favor restrictions on supposed lesser, short-term liberties if they perceive the restrictions will promote greater, long-term liberties; at the same time, however, liberals tend to eschew rigid adherence to the Constitution’s restrictions on government power designed for the very purpose of securing greater, long-term liberties.

Written by Tim Kowal

March 24, 2011 at 10:42 pm

How do teachers union advocates explain this?

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From WPRI:

The end of strikes, however, didn’t mean teachers were any less aggressive in negotiating. Aided by the new law, teachers redoubled their efforts to improve compensation. And they succeeded, judging by the costs of total pay and benefit packages.

For instance, statewide average teacher salaries increased 6% per year in the 16 years before the Hortonville strike. In the 16 years after the strike, the increase is pegged at 7% annually. Not a big difference, for sure.

But salaries are only a part of the picture. Consider that in the 16 years prior to Hortonville, average state per-pupil spending increased 6.7% per year. Post-strike, it jumped to 9.6% per year in the 16 years following the Hortonville clash.

. . . .

Also in 1973, Milwaukee teachers negotiated a benefit that paid their health care premiums when they retired — in 2016, this benefit will be worth $4.9 billion, or more than four times the size of the Milwaukee district’s current budget.

Written by Tim Kowal

March 24, 2011 at 10:12 pm

Birthright Citizenship, and What It Means to Be “Subject to the Jurisdiction” of the U.S.

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Last week, Shikha Dalmia at Reason ran this highly disingenuous and disappointing policy rant against the push by several states to enact stronger laws to curb illegal immigration.  In it, Dalmia falsely claims that “automatic or birthright citizenship” is “a right enshrined in the 14th Amendment,” erroneously explaining that

the 14th Amendment is unusually clear about extending citizenship rights to everyone born on American soil except for children of foreign diplomats and American Indians (who belong to sovereign tribes). Eliminating these rights for anyone else will require three-quarters of the states to ratify another amendment.

Frankly, I don’t know how to explain these claims other than an outright intent to mislead.  In fact, the question of whether birth on U.S. soil is enough, or whether only “children of foreign diplomats and American Indians” are excluded rather than anyone not “subject to the jurisdiction thereof” as the Fourteenth Amendment actually states, is a contentious issue that many constitutional experts are currently vigorously debating.

In my ongoing research into this area of law, I’ve come across some interesting cases shedding insight on the concern in British case law concerning persons born on British soil yet subject to the jurisdiction of a foreign sovereign.  Various European countries grappled with the problem of children born to citizens of foreign nations. In such instances, it is clear that children followed the citizenship of the father, but faith and credit to the jurisdiction of the country of birth was also given. Recognition of the proper jurisdiction to which a person was subject was important since the laws of one nation may purport to conscript putative citizens of a foreign nation into military service, potentially pitting those persons against his adopted country. See Prentiss Webster’s A Treatise on the Law of Citizenship in the United States: Treated Historically (Bender 1891), at 58-59. In this light, it is easy to see the concern against extending citizenship, the right to participate in the legislature, or of becoming the Commander-in-Chief of the United States military forces, to a person subject to the jurisdiction of a foreign power.  For example:

This rule was laid down at an early date in the state of Massachusetts as follows: “This claim of the commonwealth to the allegiance of all persons born within its territory may subject some persons, who, adhering to their former sovereign, and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when the opposing sovereigns claim their allegiance. But the inconvenience cannot alter the law of the land. Their situation is not different in law, whatever may be their equitable claims, from the situation of these citizens of the commonwealth who may be naturalized in the dominion of a foreign prince. The duties of these persons arising from their allegiance to the country of their birth, remain unchanged and unimpaired by their foreign naturalization. For by the common law no subject can expatriate himself.” Ainslie vs. Martin, 6 Mass. Rpts.

Id. at 78.  Similarly,

The Revised Statutes, section 1993, declare children born out of the limits of the United States, whose fathers were or may be at the time of their birth, citizens of the United States, to be citizens of the United States.

This statute is held to mean that the legislation of the United States should not be construed so as to interfere with the allegiance which such children so born owe to the country of their birth, while they continue within its territory. Under this, if the French government should see fit to hold Verdelet as a citizen of France for reason of birth within its territory, it might do so, and the government of the United States could not interfere with such a claim, if made by the French government upon him.

Id. at 119. This appears to give insight into the understanding of the “and subject to the jurisdiction thereof” clause: U.S. law was not meant to interfere with the jurisdiction other sovereigns might have over persons born or naturalized in the U.S.  In a government of consent such as the United States, consent may not be presumed to be given, and thus no citizenship may be conferred, where another sovereign lays claim to the person’s allegiance.

Contradictions on Both the Left and the Right

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There are lots of potential conversation starters here, but I’ll just offer these up as is for now:

  • Conservatives purport to distrust government, while liberals tend to favor government programs and regulation.  When it comes to law enforcement, however, conservatives demonstrate a strong bias in favor, and liberals a strong bias against.  (Perhaps the respective attitudes toward government are consistent when narrowed to legislative power—and even more specifically, legislative power concerning economic matters—versus executive power.)
  • Conservatives tend to take the long view toward policy, while liberals put a premium on remediating perceived present injustices.  When it comes to long term policies concerning the environment, however, conservatives exhibit a strong bias against, and liberals a strong bias in favor.
  • Conservatives tend to view moral values as objective and absolute, while liberals tend to view them as subjective and relative.  However, conservatives tend to view economic values as values as subjective and relative (i.e., depending on supply, demand, and other fluctuating market forces), while liberals tend to view the value of work as tethered to some objective and absolute standard (i.e., correlating to some predetermined standard of living).  (This relates to the distinction between procedural and substantive justice I touched on in a previous post; when it comes to economic values, conservatives embrace a procedural approach that allows the market to establish values based on self-executing, decentralized weighing of various factors, and is thus relativistic in terms of outcomes.  Liberals, on the other hand, tend to eschew market approaches in favor of fixing the value of work in the first event.)
  • Conservatives tend to eschew the vagaries of bureaucracy, while liberals defend bureaucracy as a positive good.  However, conservatives are apologists for the vagaries of high finance, while liberals are highly critical.
  • Conservatives tend to eschew centralized, top-down approaches to policy-making in favor of federalism and localism, while liberals tend to favor centralized planning.  When it comes to school reform, however, many liberals are critical of top-down approaches.
  • Liberals tend to favor industrial/urban to agrarian/rural lifestyles, yet they tend to be critical of the vast accumulations of wealth made possible in the former.

If you can think of others, I’d love to hear them.

Written by Tim Kowal

March 21, 2011 at 10:56 pm

Atheism Cannot Account for Objective Morality

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(This post originally appeared at AtheistConnect.)

AtheistConnect published several posts recently concerning the question whether it is necessary to posit the existence of God to provide a cogent account for objective morality.  For the reasons briefly stated below, among others, I argue the affirmative:  God is necessary to provide an account of objective morality and, accordingly, atheism necessarily cannot provide such an account.

First, consider the argument made in this article referenced in Nate’s post:

Even if we accept that it’s true that there is no point in being moral if there is no God, this wouldn’t be an argument against atheism in the sense of showing that atheism isn’t true, rational, or justified. It wouldn’t provide any reason to think that theism generally or Christianity in particular is likely true. It is logically possible that there is no God and that we have no good reasons to behave morally.

The suggestion that “It is logically possible that there is no God and that we have no good reasons to behave morally” is a worthless statement.  Man is the sort of being that has both a moral intuition, and a rational faculty that demands an account be given for his beliefs—including his moral intuition.  These are non-negotiable preconditions with which all persons approach the world, and for which an epistemological and moral framework of the world must give an account.  Atheists’ response to the problem of morality, however, is either to deny man’s moral intuition (e.g., by positing “morality” is nothing more than the calculated pursuit of pleasure and avoidance of pain), or to deny the need for a rational account of that moral intuition (e.g., by arbitrarily replacing religious morality disfavored by atheists, and replacing it with secular humanist morality).  Thus, although atheists claim to reject transcendental reasoning, they fail to give anything resembling a cogent, rational account for man’s moral intuition in its place.

Worse, atheists often purport to take advantage of the gaps in their own reasoning by arguing that theists are clearly wrong to suggest that atheism implicitly rejects objective morality, and thus cannot establish a basis for mounting moral condemnation of, for example, the Holocaust or 9/11.  To the contrary, the argument goes, atheists do acknowledge objective morality, and even behave morally, generally speaking.  But this is misdirection.  In fact, the theist’s fallacy in making this argument is to assume that atheists comport themselves consistently with their proffered worldview when, in reality, they do not.  The theist’s unsound argument thus runs as follows:

  1. Since having rejected the existence of God, atheism has not provided a suitable alternative account for objective morality.
  2. Intellectual consistency requires rejecting that for which no suitable account has been provided.
  3. Atheists comport themselves consistently with their proffered worldview.
  4. Thus, atheists reject objective morality.

Of course, the reason this argument fails is because premise (3) is false:  atheists either are intellectually dishonest, or they simply don’t understand that their worldview cannot account for objective morality.  Again, one might say “I don’t believe in God” as a glib expression of one’s anti-authoritarianism and wide-eyed skepticism, but it actually means something very severe—particularly if it also means “I do not believe in anything that transcends empirical phenomena.”  This is a profound claim that tears down important metaphysical underpinnings of one’s view of the world, including the intellectual framework necessary to account for objective morality.  If the maker of such a statement has any interest in talking seriously about such ideas, he will have to posit an alternative theory of reality that can account for them.

But nothing like this has come forth from atheism’s ranks.  The drab statement quoted above about “logical possibilities” concerning God and morality is effectively the sum and substance of all atheism has to say about objective morality.  In discussions of moral philosophy, then, atheism is, at best, intellectually irrelevant.

Written by Tim Kowal

March 21, 2011 at 10:55 pm

Same-Sex Marriage and Political Symbolism

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A whole bunch of blogs have been touting this Washington Post/ABC News poll—claiming that “support for gay marriage has grown to 53 percent today”—as a sign that Americans have now embraced “marriage equality.”  Putting aside for purposes of this post the question of same-sex marriage itself, that commentators are claiming a victory for “marriage equality” generally should give pause.  Indeed, this has become the accepted term for rhetorical engagement on the issue, simply for the reason that “equality” has such great purchase on the American political soul.  Most Americans are reflexively in favor of the concept of equality because the word is so commonly coupled in political and historical discourse with “racial,” or “religious,” or “political.”  Those campaigns for equality concern egregious historical abuses concerning the most fundamental of rights, which abuses were extinguished only at great cost.  It is good and right that we exalt concept, such as equality, as overarching symbols of the American political order; such symbols serve as a means of expressing our hard-fought fundamental values as a people, and of forefending threats that might still be lodged against them.

Beyond a few relatively narrow areas, however, “equality” as a political symbol bears little application to “equality” as a legal standard.  No one seriously believes, for example, that doctors and janitors are entitled to equal pay, that Best Buy and Circuit City are entitled to equal market share, or that the Yankees and the Red Sox are entitled to an equal number of World Series championships.  On these questions, we expect and demand protection of unequal results corresponding to the input of unequal talents and efforts.

We also demand inequality on other types of questions—e.g., who is qualified for employment as a police officer or a fire fighter; who is allowed to drink alcohol; whether gardeners and nuclear power plant operators should be equally regulated.  When it comes to such questions concerning the public health and welfare, the equality principle is significantly circumscribed.

Equality, then, is a strange concept, as it at once guarantees and threatens liberty depending on the subject matter.  There is no doubt that liberty cannot endure when, for example, racial minorities are arbitrarily deprived of protection of fundamental rights.  But neither can there be any serious doubt that liberty cannot endure when everyone is deprived of protection of fundamental rights so that an equal menu of positive rights can be offered up in exchange.  Thus, the way in which some individuals are deprived of personal, political, economic, and property rights in order to promote social and economic equality poses a substantial threat to classical liberty generally.  Similarly, it cannot be seriously doubted that the state cannot serve its necessary function to protect the public health and safety if it must yield in all cases to a mandate of absolute equality.  Equality, then, is a lancet, not a sledgehammer.

Advocacy of a general notion of “marriage equality” poses its own kind of threat:  It incites us to demand urgent remediation of a perceived injustice, yet provides no guidance for evaluating the nature of the purported injustice, or why similar instances of social inequality should not also be subsumed in the demand.  The Religion News Blog, for instance, recently reported that a Canadian civil rights group “has filed a final argument in B.C. Supreme Court against [Canada’s] polygamy law, saying it is a Victorian-era statute that should be ‘relegated to the scrap heap of history.’”  Similarly, Andrew Sullivan recently passed along this story reporting that Switzerland is considering abolishing its “obsolete” laws criminalizing incest.  Matthew Franck likewise has argued that the U.S. is already surprisingly close to announcing “a constitutional right to incest.”  Most advocates of “marriage equality,” of course, have no intention of supporting these reforms.  But why shouldn’t the same symbol of equality, conscripted into advocacy of same-sex marriage, also compel equality for these other types of social arrangements?  Is there not something irresponsible and perhaps deceptive about demanding “marriage equality for all” if what is really meant is something other than “equality” and something less than “all”?

I’ve argued previously that were same-sex marriage judicially imposed, there would be no logical stopping point before judicially obliterating all morals legislation, such as suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so on.  On that basis, I’ve concluded that this question must be decided by the normal democratic process, who are not limited by strict logical application of legal principle.  The “marriage equality” rhetoric, however, compromises that process by putting voters to a false choice by insisting on strict adherence to the equality principle.  In other words, it is a distinct possibility that many Americans have changed their attitude about same-sex marriage based on an implicit threat that, if they don’t, they will be branded as enemies of equality and share space in the pages of history with racial bigots and merciless dictators.  Same-sex marriage advocates’ ubiquitous citation to the inapposite racial discrimination case of Loving v. Virginia, for example, makes this threat unmistakable.

Members of a democratic society must live with the duly expressed choice of the majority on social questions like those concerning the social institution of marriage.  It is disconcerting that consensus is quite conceivably being achieved by confusion, misconstruction, or misrepresentation concerning the fundamental symbol of equality and thus putting voters to a false choice between their political and social values.  Same-sex marriage advocates neglect to correct this misunderstanding since it works in their favor.  The resulting false pretense in the political discourse concerning same-sex marriage is quite possibly responsible, in some measure, for the increased likelihood that Americans will tell pollsters same-sex marriage should be legal.