Stigma Works

It's shocking how fast public opinion has changed on the Religious Freedom and Restoration Act. I have two takeaways from this that might actually be original or insightful.

First is the power of stigma, and particularly the stigma of calling someone a bigot. Traditional beliefs about the immorality of homosexuality is now bigotry. Of course, the word bigotry doesn't do much analysis. It's just a way of saying my view of morality is right and yours is wrong. It seems to me defenders of traditional morality, in their efforts to seem tolerant and open minded, have consistently been on the defense and have lost the debate as a result. Supporters of traditional marriage don't want to be rude and tell others that their sexual practices are immoral. In contrast, supporters of homosexuality vocally and forcefully denounce traditional views about the morality of homosexuality as bigotry.

My other takeaway is that while it sometimes seem on the rise, libertarianism is still very much out the mainstream and may be on the decline. On traditional morality questions, I have no doubt Americans are moving towards what you could call the "libertarian" position, i.e., the government has no business legislating questions of sexual morality. But this shift is not happening because Americans are rejecting big government, but be cause they reject traditional sexual morality. Thus, the RFRA, which would simply exempts individuals (and maybe businesses) from laws that would otherwise require them to violate their religious beliefs unless there is a compelling state interest, is unacceptable. Apparently, people shouldn't be free to act in accordance with their consciences when government has decide what is moral. In contrast, support of the RFRA (or similar laws) is an easy call for a libertarian. So it's not support for government legislating morality generally that's on the decline, just support for a particular brand of morality.

The Constitution, Aesthetics, Groping, Paradox of Capitalism

1.

I've linked to this video before, but it's worth reposting.

I think this video illustrates a paradox--what' I'll call the paradox of capitalism. On the one hand, capitalism is the best system for innovation and progress. On the other hand, if we all had a big-picture appreciation for everything that capitalism does for us, then we might lose our drive to innovate. Our impatience with the capitalism's innovation from yesterday is the engine that makes capitalism go.

There's a tendency to think that, because we don't appreciate our progress, it doesn't really occur, or it's not that important. I guess you could argue that if our progress doesn't really bring us satisfaction, what's the point? But of course our lives are longer, healthier, we have more time for art and hobbies and family.

Wealth isn't just about stuff. It's about quality of life.

And it doesn't take very long to get to the point where a one-time luxury becomes the standard. The end of this terrific podcast on globalization demonstrates how many "luxuries" from 100 years ago are standard necessities today.

Which also makes me think, what of the things that we consider unnecessary luxuries today are going to be common place in 20 or 30 years? And is it really a fault to be on the cutting edge of that progress? Looking back in time, should we denounce the first people to have running water in their houses as materialistic people craving an unnecessary luxury?

2.

As you know, originalism is my preferred modality of constitutional interpretation. It, however, is far from perfect. One difficulty with originalism is the legitimacy of the constitution itself. Usually you can argue for originalism without really tackling this problem, because almost all Americans argue from the premise that the constitution is legitimate.

There are some arguments against that view, however (note: I admit, I haven't read all the material at the link). I wanted to focus on two: 1. No one today agreed to the constitution, and, therefore, no one is bound by it, and 2. only a small subset of people (white male property owners) could actually exercise the franchise in 1787 so as to consent to the constitution then too. Thus, the constitution was not democratically enacted and does not bind future generation who have not assented to it.

I wonder, does the first argument mean that every time there is a birth (or a person reaches adulthood) the constitution must be re-ratified? Or we must periodically re-ratify the constitution to ensure that it still enjoys super-majority support? Does the amendment process not account at least in part for the differing desires of future generations?

Also, it seems to me this argument applies to all law. The homocide laws of today invariably were adopted before many if not most of today's voters were of the age to vote. Does that mean that all law makes all future generations slaves? (but then, we are reading from anarchist literature.)

And even if everyone was allowed to vote, does that mean that the constitution is more legitimate? If we are following a principle of non-coercion, even if 80 percent vote for the constitution, the government will still coerce the other 20%. The other 20% are still enslaved.

This Spooner guy from the link and the guy that blogs at Austro-Athenian Empire both seem to think that contracts are the only legitimate way to bind human behavior. Contracts require consent of all people. No contract is capable of coordinating any large number of people if that is the requirement. The transaction cost is through the roof.

Also, who is going to enforce contracts?

3.

The Oregon construction defect litigation bar is a pretty small group of the same players. One of the big players, Jack Levy, groped another female lawyer at party. The story has been big gossip in the construction legal community for some time. Now there's a story about it at the Oregonian's website. (Oregon's biggest paper.) 50 comments so far.

The victim of the story is described as "a litigation associate with another firm, who represents homeowners associations." I can only think of 4 attorney's that meet that description. But I know who filed the complaint. Probably if you know the construction defect bar well enough to know that, you also already know who the victim is.

Funniest line, though it probably shouldn't be: "She said she was moving down the hall during the party when Levy firmly grabbed her rear."

I also like this line: "The bar initially declined the complaint but revived it after the complainant alerted police." Snap! But I wonder if the Bar didn't get it right the first time.

RULE 8.4 MISCONDUCT

(a) It is professional misconduct for a lawyer to:

(1) violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(2) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer’s fitness to practice law;

(4) engage in conduct that is prejudicial to the administration of justice;

(5) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate these Rules or

other law; or

(6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

There's no professional rule against groping opposing counsel. Groping is criminal, but it doesn't really reflect on honesty, trustworthiness (eh, maybe), or fitness as a lawyer, except maybe the part where Levy goes to give the lawyer a hug and groped her again. There's no fraud or dishonestly, except maybe in that hug/second groping. Four might apply, as the victim is arguing that this was a ploy to get leverage in the case. However, I understand that Levy was pretty drunk and groped a lot of women at that party, so I doubt it. 5 and 6 don't apply. Looks to me like the bar got it right the first time.

4.

Do you think aesthetic tastes are learned or innate? I've been thinking a lot about the cars I like. I find that I like the styling of luxury cars more than low end cars (although I don't like most Acura's, for some reason).

First I think, maybe it's just because those automakers spend money on the little things that make the car look nice. Then I think, maybe I just like those cars because I've been told by commercials that those are cars of status, and in reality, I don't actually like a BMW 46e body style any more than that of a boxy scion.

Then I think, no, I do like it more because of it is sleek and attractive. Then I think, maybe our preference for certain cars designs relates to our hardwired concept of beauty. Like it reminds us of the female figure or something like that. Then I think, that must be nonsense because there are truck designs I prefer to other trucks, which if anything are masculine, not feminine. Or house designs I like more than other houses, which are asexual.

Then I look at 90s cars and I remember when they were new, and I remember thinking they were kind of cool looking back in the day, but now I think they look more or less horrible. And I have this thought--maybe style is just a fad, and there is no objective way to evaluate it. Or maybe I just have more refined tastes now than then. Or maybe aesthetics are constantly marching forward much like technology, and looking back only shows us how far we've come.

5.

I think the Rand Paul controversy shows two things: 1. The media does not understand even the basics of libertarian thought and 2. it disproves Glenn Reynold's theory that Ron Paul's success came from libertarianism resonating with viewers.

6.

What do you think about cliques within a ward? We should be inclusive and extend the hand of fellowship to everyone, right? But then, we also genuinely like some people more than others. We don't have to pretend like we like all people equally, do we? It sure is a bummer if you're the one that no one likes.

Local Elections, Deja Vu

1. Voted in our local election. I spent several hours trying to figure out who was who and who I should vote for. I even read something about each of the unopposed candidates, most of whom were judges. One judge I had an ex parte motion in front of two weeks ago, so that was an easy decision. A few reflections.
1. Dean Worthen (former law school dean) used to say that the way to really get people mad it to tell them what they can and can't do with their property. From that you'd think that local elections would be the most contentious as that is where most property regulation occurs. In reality, though, we pay the least attention to them. There were something like 16 positions for republican delegates on my ballot, but only 2 people ran. Most appellate court judges ran unopposed (although I started to wonder if maybe you can't run against them.) It seems like there really is a lot of room to get involved and get influence in local politics.
2. Voting was particularly hard because I had to familiarize myself with local issues before I could vote meaningfully for the candidates.
3. The best politicians were the most mealy mouthed. I had to read between the lines on their websites to figure out what they really believed in. I say they were the best because it seems like some of the most vapid writing was on the most popular candidate's pages.
4. Non-partisan elections are STUPID! They simply are a way to obfuscate the political leanings of the candidates, which ultimately is all you want to know. I had to find my way to a questionnaire by the two supreme court candidates before finally finding some sort of indication of the judge's political leanings.
5. All my effort to be an informed voter is probably a waste of time. First, its just the primary, and I live in Oregon, so none of these people are likely to be elected. Second, as we know from public choice theory, my vote doesn't actually count.
2. In one of his books (and I think tv news stories) John Stossel argues that government mandating airbags is an unnecessary infringement on our freedom. Apparently if you're shorter than a certain height, an airbag actually increases the risk you will be killed in a car accident. He found a lady who was terrified of this risk, but couldn't legally buy a car without an airbag or deactivate the airbag. Obviously government has run amok!
3.  But then I got to thinking about the Tullock spike. An airbag makes you more likely to survive a crash. That means you are more likely to drive recklessly, and inflict externalities on others. And libertarians also believe in internalizing externalities. So now, I don't know what a libertarian should think about Stossel's example. Or maybe, it just further proves Stossel's point because airbags protect the vast majority of people, increasing their tendency to drive aggressively (but that would make his particular example a bad one).
4. It looks like the days of the federal government being limited to its enumerated powers are enumerated. My guess on why Justice Roberts joining the majority: he's thinking about the other myriads of government programs that could be challenged if he took too hard of a line of the commerce and necessary and proper clauses. This is, I think, just one of those areas where the jurisprudence is bowing to the political realities. Sadly, it looks like these cases were decided 70 years ago with the switch in time that saved nine.
5. I've seen Breyer and Scalia do this or a similar back and forth a couple of times now, but it's always interesting. Breyer's best arguments against originalism:
1. History is not always clear. (Scalia's counter: history is clear in some of the most controversial cases)
2. If we are looking at history, we should have 9 historians on the court.
3. Deriving neutral principles and applying them to today's circumstances is really hard.
6. A gathering backlash against the suns? or a marketing plan working perfectly?
7. Saw the movie De Ja Vue on TV Saturday. If you can buy into the premise, it kind of worked, but that's a big if. It also has one of those really bad, didactic scenes where the characters just blurt out every rule and premise you have to accept to believe the movie. Great movies doesn't do that.

Miranda Warnings, Education, Seatbelt Laws, Other Things

1. Lots of talk about whether this latest terrorist should be mirandized. First, I like this post by libertarian blogger, Jeffrey Miron, pointing out that Glenn Beck thinks the terrorist should be mirandized. I like how it shows how conservatives/libertarians still value individual rights, when they think the constitution actually contains the right. I think that it's interesting that Beck thinks the constitution contains the right (discussed below). I also think it's interesting how many different areas of law this question implicates (non of which I'm an expert in, so I could be misremembering the law).
1. War and peace powers. One argument against mirandizing is that when we are at war, the president has the power to detain the terrorist indefinitely under the war powers as an enemy combatant. No mirandizing necessary, because you don't get criminal procedure rights when you are the enemy in a war. That was kind of  the issue in the Hamdi case (dealing with detentions). Do american citizens engaged in war against the U.S. get habeas rights like other citizens? What's interesting is that Thomas and Scalia came out on polar opposite sides of the question, with the court landing in the middle. Thomas said the president can hold the citizen terrorist indefinitely without review, and Scalia said that the terrorist gets full habeas corpus rights unless congress suspends the writ. Republicans have mostly adopted the Thomas view, but I think I'm on Scalia's side. (I do think that it was key that Hamdi was brought back to the U.S. though).
2. Fifth Amendment. Miranda has been controversial since the case was decided. While it is based on the right against self-incrimination, that the fifth amendment only bars being compelled to be a witness against yourself. Miranda, therefore, rests on the assumption that all custodial interrogations without a warning and waiver are coercive. That's what's interesting to me about what Beck said--he assumes that Miranda warnings are a constitutional right.
3. Standing and the Exclusionary Rule. Not giving a Miranda warning doesn't mean the guy gets off scott-free. It just means that the exclusionary rule applies to the evidence he gave in answer to the interrogation. Other evidence it still admissible. It could be well worth not giving the warning and giving up the right to use the information in court in order to get additional information from the terrorist that reveals, for example, a network of terrorist. Also, only the right holder has standing to challenge the use of the evidence, so the testimony could be used against other terrorists.
4. Second Interrogation. If I remember criminal procedure right, the police can get a confession, leave, come back some time later, give Miranda warnings, get a waiver, and get another confession and even though the first confession is inadmissible, the second would be admissible. 
5. Emergency Exception. I just learned there is also an emergency exception to Miranda. I'm not sure I agree with Krauthammer that congress can create a statutory exception, however. I don't think a constitutional requirement can be overridden by statute, and whether the statute conflicts with the constitution depending on what the supreme court determines the Constitution requires. Also,while I agree that giving Miranda warnings is going to slightly increase the chance a suspect clams up, who today doesn't know their Miranda rights? I imagine the effect of Miranda warnings is very small.
6. In conclusion, I don't really have much of an opinion on whether terror suspects should be mirandized.
2. Here's a pretty good article about that Milwaukee voucher study making some of the same points we discussed a week or two ago.
3. At some point, the back and forth over at B v. E has to end. Still there is this one question I've been thinking about: If you distrust government why do you trust it with military power? This is basically the inverse of the question I posed: if you think your government is evil, why would you trust it with so much domestic power? I plain don't understand why, if you think government is so evil that it kills thousands of people for oil, you would trust it to teach your children 40 hours a week or to administer your healthcare system. I think if I believed government regularly started wars for oil, I'd be an anarchist.
4. The inverse does pose a small problem, however. If I distrust government why do I trust it with military power? A lot of libertarians actually do not trust the government with much military power. Ron Paul is one. I think Don Boudreaux is another. But they tend to think that government is evil. I'm not there. I think government is inefficient. But  I do think government tends to dole out favors to the politically connected. I'm sure the Department of Defense is no exception. So why couldn't a defense contractor capture the DoD the way libertarians think other agencies are captured?
5. Here is why I think that government use of military power is generally better than administration of economic programs:
1. It isn't necessarily better. Government has a role to play in solving community action problems and raising a military is a classic community action problem. But It's not that I think government will do a good job. It's just that we won't have a military without government.
2. Government officials can more easily convince themselves that their friends are the most deserving of government largess. It's also easy to convince yourself that inefficient spending is good for the economy (that's one of the premises of Keynsian economics).  Much of the cost of inefficient government is hidden. The cost of a inefficient government contract, handout, tariff or quota is what could have been produced in its absence. The costs are hidden and so easy to ignore.  It's much harder to delude yourself into thinking a war for oil is a good thing. The cost of war are not hidden. In fact, they are certain to be big news and to directly impact citizens, who will hold politicians accountable.
3. The question of war is more decentralized than the question of awarding a contract--at least in the case of Iraq. That decision involved the president, the CIA, other intelligence agencies and the Senate.
6. Do you think it is unfair to call Obama a socialist? interesting discussion here. In the traditional sense, where government controls the means of production, yeah, it's probably not accurate. But there seems to be another sense of socialist, where you believe that government can almost always improve markets by regulating them. Seems to me Obama's a socialist under that watered-down definition. Maybe we need a better word for people, who when they look around, all they see are market failures.
7. I'm less of a closed-boarders guy than I used to be. But the Suns wearing their Spanish-language jerseys still annoys me. 
8. Here are the issues that keep me from identifying as a Libertarian: foreign policy, immigration, abortion and sometimes drugs. In the Goldberg-Frum exchange, Frum asks Goldberg whether he supports seatbelt laws. I wonder if that is a good test of libertarianism. Do you support seatbelt laws? Both Frum and Goldberg do.
9. When I bought my house I knew it had water in the crawlspace. We've finally decided it's time to do something about it. I have four bids, and I'm tempted to go with the lowest, which is still expensive. But, the bids aren't for the same fix. Two are for a sum pump. One is for a pipe through some concrete. One is for a French drain. I don't want to do the cheapest if it doesn't fix the problem. But I'm not sure how to determine which fix is actually going to work. Any suggestions?

Citizens United

While I generally like Reason, this post kind of irritates me. With the exception of some fundamental rights that are necessary to the operation of a democracy, I'd prefer most policy choices be left to normal statutory law. But when courts snatch policy decisions from the democratic process using some specious constitutional theory, then the only recourse remaining to the people is to amend the constitution.

What Welch has done is lump together constitutional decisions based upon actual constitutional provisions --like the flag burning decision based on the First Amendment--with policy decision masquerading as constitutional law--like the right to abortion or same-sex marriage. I think most people who are pro-life or pro-traditional marriage would be more than happy to leave those decisions to the democratic process if the courts did, too.

Really, Welch is saying the constitutions should always represent his policy preference of expanding freedom. We can agree that increasing freedom is good, but I guess we don't agree on what constitutes increasing freedom. For instance abortion might increase the freedom of pregnant women but it significantly decreases the freedom of the unborn. So the constitution should always expand freedom and freedom is what Welch says it is.

On a semi-related topic, I also think Stossel way oversimplifies the complexity of the First Amendment jurisprudence. Talking about the recent Supreme Court decision in Citizens United that held corporations have First Amendment rights, Stossel writes:

This should be obvious. The First Amendment reads: "Congress shall make no law ... abridging the freedom of speech, or of the press." What part about "Congress shall make no law" don't the other justices understand?

But really there are all kinds of speech that congress can abridge. Like the classic example of yelling "fire" in a crowded theater. Or what about a conspiracy to commit murder. Both of these are speech of a type, but not protected by the First Amendment. So while I agree that this was the Supreme Court reached the right decision, the correct analysis is, in fact, more subtle that simply reading the text. See, here, here and here for a more thorough analysis.

Glenn Beck

Not sure how I feel about Glenn Beck. He's fidgety. He's melodramatic. I find it hard to watch him at times. I prefer satire, but he's sarcasm. He makes me laugh sometimes, but not always. I prefer Limbaugh's humor.

Beck boarders on being a populist and a demagogue. I have a really hard time watching the sort of self righteousness that people like O'Reilly and Beck sometimes display. But then, Beck also get self righteous for good reasons, like his big scores against Van Jones and ACORN.

Beck can be cringe inducing--like when he says he only married his wife because she wouldn't sleep with him otherwise.

Beck also runs his mouth. Calling Obama racist was, I think, pretty dumb. This is maybe my biggest beef with Beck. People in positions like his should pick their words carefully. (Same complaint about Ann Coulter and her 9/11 widows remarks). I even knew what he meant, and agree in general, but his words give the opposition too much ammunition.

On the plus side, we pretty much agree on most things. Also, Beck's a principled libertarian, where as O'Reilly is a a populist without consistent guiding principles.

Beck is criticized unfairly. Beck isn't "dividing us." Americans are divided because we disagree about how this county should be governed. That's what democracy is about. We should battle out our differences, not try to suppress them.

Beck is also a convert to the church. He bears a strong testimony and seems quite genuine in this respect. I very much enjoy watching him when he is talking about church and religion.

So, with those reservations, I say, two one cheers to Glenn Beck!

Organ Donor, Life Donor

On average, 16 people a day die of kidney failure. You only need one kidney to survive, but most people have two functional kidneys, so the world contains approximately (slightly less than) twice as many functional kidneys as it needs to keep every person alive. Despite the huge surplus, for some reason the people with an extra kidney lying around just aren't giving them up.

Of course the reason they aren't giving them up is obvious: no one want to undergo a surgery for a stranger, so the only people that donate kidneys are the people that know the recipient or are really, really altruistic.

While a person may not be willing to give up a kidney for nothing, inevitable some people are willing to sell a kidney. The solution to this problem is then obvious: create a market. People who need money will sell their kidney, and people suffering from kidney failure will buy a kidney. Both parties benefits from the transaction, otherwise, they wouldn't enter into it.

Unfortunately, in the U.S. it's illegal to sell your kidney, so 16 people a year will continue to die unnecessarily.

Some people think that if we allowed people to sell their kidneys, the rich who need organs will take advantage of the poor, who need money. It's probably true that the people willing to sell their organs are going to mostly be poor people, probably from poor countries. I certainly would sell my kidney, but someone would have to pay me a lot of money. Someone is the Philippines will undoubtedly sell for considerably less. But it's awfully paternalistic of our government to prohibit two willing adult parties from entering into a transaction that benefits both parties and doesn't affect anyone else (i.e., there are no negative externalities). The poor people clearly care more about the money than the superfluous organ.

Now, that above is the libertarian argument for allowing parties to sell their organs, and it's my basic position on the issue too. However, I do wonder about the following: what if a healthy individual wants to sell his heart for a hefty sum. Should he be allowed to end his life and sell his heart to an individual in need of a heart, with the money from the transaction going to his family? I find this senario very troubling, and yet, I can't see a principlied difference between this situation and the one above.

Abortion and Libertarianism II

In my last post I argue that a person can believe in libertarian principles and still reach a pro-life policy position because of the factual question of whether the unborn child (or fetus) should be recognized as a person with rights to freedom.

Actually, it's not so much a factual question as ethical one. We know that the unborn are alive, we just don't know (or we don't agree) that they should be entitled to the same rights as other humans.

Writing the other post, I thought of one attractive pro-choice libertarian argument: we know that we should maximize the freedom of adult women, however, the rights of the unborn are debatable. Faced with this ambiguity, it makes sense for Libertarians to be pro-choice because restricting abortion necessarily restricts the freedom of pregnant women, but only potentially denies the rights to the unborn.

Of course, some if not most people will decide the question of whether the unborn have rights resolutely one way of the other. Once a person resolves that the unborn is human and entitled to the rights of all other people, then libertarian principles can just as easily lead ( actually I think they compel) that person to become pro-life.

Furthermore, a libertarian who cannot resolve the issue of whether or when the unborn are entitled to rights, should recognize that, the restricting a pregnant woman's right to abortion is only a slight reduction of freedom, while abortion is total denial of rights to the unborn. Thus, a fence-sitting libertarian must lean very heavily in the direction of no rights for the unborn before he can use that ambiguity as a justification to hold pro-choice views.

Libertarianism and Abortion

I find myself becoming more libertarian. Libertarians are frequently described as a hodge-podge of liberal and conservative values: they are generally thought of as liberal on social issues but conservative on economic issues. Foreign policy issues seem to split libertarians roughtly in half.

That's not a very good description of libertarianism. Instead, the fundamental principles guiding libertarianism is that individual freedom should be maxamized. libertarians are, in fact, classic liberals, in the Lockean sense of the word "liberal."

I generally agree with the premise of libertarianism and most of the policies that flow from the premise. and yet there are still some issues where libertarians and I have divergent policy preferences. As part of my new blog I thought I would explore these issues, and whether the policy preference of most libertarians follows from libertarian principles. Then, I'll comment on why or why not I agree with the libertarian policy preference. Either that, or I'll just write whatever pops into my head.

Let's start with abortion. Abortion is one issue where I part ways with most libertarians, who seem to favor abortion. Because they favor maximizing individual freedom, they believe in allowing adult women to do what they want with their bodies, including having an abortion. The premise is that what is aborted is part of a woman's body.

Of course, the maximization of freedom requires limiting some individual freedom to maximize everyones freedom. For example, I can punch the air all I want, but I am not fee to punch your nose, because that would impinge on your freedom. So we have to curtain some behaviors in order to maximize overall freedom.

While abortion then, increases a woman's freedom to do as she wishes with her body, it also decreases the freedom of the baby inside the woman to basically zero. In this case the fist of "abortion" is punching the "nose" of the unborn.

Of course, that anaylsis, assumes that the fetus growing inside the pregnant woman is a child. That's a factual premise that I'm sure pro-choice libertarians would take issue with. But whatever the factual truth, the principles of libertarianism do not require libertarians to be pro-choice.