Right Reason

Some Remarks About Constitutional Conservatives...

 

 

 

If there is one benefit that the Trump Administration has brought to the United States, it has been the nomination of Neil Gorsuch to fill the late Antonin Scalia’s seat on the Supreme Court. For better and for worse, Mr. Gorsuch’s nomination has provided the opportunity for commentators to discuss the late Supreme-Court justice’s judicial philosophy of originalism. Over at Vox, Sean Illing has argued that Scalia’s originalism was less a purely judicial philosophy and more a wider political ideology:

Scalia’s philosophy is hard to square with the reality of the constitutional debate. The implication is that the meaning and intent of the framers is perfectly clear, and that judges should adhere rigidly to that.

Mr. Illing goes on to quote Barack Obama’s Audacity of Hope’s discussion of this aspect of legal philosophy:

Anyone like Justice Scalia, looking to resolve our modern constitutional dispute through strict construction, has one big problem: The founders themselves disagreed profoundly, vehemently, on the meaning of their masterpiece. Before the ink on the constitutional parchment was dry, arguments had erupted not just about minor provisions, but about first principles; not just between peripheral figures, but within the revolution’s very core.

I must admit that I find it difficult to charitably reproduce the argument that, because there was disagreement when a law was written, that something was agreed to when the ink was put to paper, that the written law therefore does not contain some resolution or synthesis of that disagreement.

 

 

As a Catholic, I am reminded here of canon law. Canon law is the internal ecclesiastical law that governs the Roman Catholic Church, derived from Roman law, and it is the longest continually legal system in all of Western civilization. Canon law states (749§2) that: “The college of bishops also possesses infallibility in teaching when the bishops gathered together in an ecumenical council exercise the magisterium as teachers and judges of faith and morals who declare for the universal Church that a doctrine of faith or morals is to be held definitively…” However, anybody who has a bit of knowledge about the Catholic Church knows that ecumenical councils, although they promulgated written dogma, scarcely ever settled conflict in the generation in which those debates raged. One need only examine how long, say, the Arian controversy lasted after the Council of Nicaea lasted to see that written dogmas frequently failed to content partisans at odds with those controversies.

However, no canon lawyer would argue that, because there was disagreement about the Arian controversy after the Council of Nicaea, that the Nicaean creed is a “living creed” that may be adapted to the arbitrary opinions of subsequent bishops. Instead, the Nicaean creed said something. Even if contemporary Arians might not have been persuaded, it was the responsibility of future canon lawyers and theologians to exactly figure out the meaning of those words and enforce them. Fast forwarding to the 20th century, for this reason, the Second Vatican Council won’t be fully appreciated until long after the death of its partisans so that canon-law jurists may impartially read and interpret the documents that Vatican II produced without having to worry about the debates that generated those documents (and which those documents resolve) still being a matter of living memory.

When one takes a historical view of legal systems, that people disagree with what a law says within the generation in which that law was put to ink is to be expected. That disagreement certainly does not imply that the written law has no meaning, it only means that jurists of subsequent generations need to be cautious about how they interpret that law. Partisans may disagree about what words say, but that does not absolve jurists of their duty to pin down what the written words of law mean and imply. Ultimately, I don’t think that disagreement does not give warrant to the introduction of a jurists’ arbitrary views into those words.

 

In another article at Vox, Ezra Klein has argued that Mr. Gorsuch is “is an extremely conservative judge at a moment when an extremely conservative judge makes a mockery of the popular will.” However, the popular will is not an element of law and should have no place in a jurists’ reading of the law. Popular will has other places to express itself in the political system, from voluntary associations to the election of Congress. Indeed, that the House of Representatives, which is probably that portion of the federal government that best reflects the popular will of the American people, is overwhelmingly Republican is evidence that the popular will desire a Supreme-Court nominee who, in Mr. Klein reckoning, is “extremely conservative”! Of course, we needn’t forget that Mr. Klein had written, back in October, that “Hillary Clinton crushed Donald Trump in the most effective series of debate performances in modern political history.” So maybe Mr. Klein should be taking a hiatus about talking about the popular will of the American people during the Trump Administration.

 

 

As far as I can see, constitutional conservatives might be the closest things to true liberals in American politics today and best vehicle for advancing the general welfare. They understand the rule of law and the primacy of the abstract. They are well-read in the intellectual fonts that influenced the American Founders, including John Locke, Montesquieu, David Hume, Adam Smith, and Edmund Burke, and whose wisdom still provides the intellectual foundation for any free society today. I have once been skeptically of many of their views on the powers of the presidency, which at time seem quasi-monarchical, but I have since been convinced by Eric Nelson’s book, The Royalist Revolution, that those views are in-line with the Founders’ ideas for the executive branch.

Those intellectual fonts, as well as the American Founders, had a confidence that, once broken free from monarchical privilege, that the wisdom of common people could secure the felicity of their society. However, they also understood that liberty cannot exist outside of the rule of law. Thankfully, breaking free of monarchical privilege does not imply the breaking of the rule of law, and constitutional conservatives are aware of that. In a world where only the dose makes the poison, constitutional conservatives have a proper skepticism of experts granted privilege that has turned into an excessive populism in the Western world today.

 

When Removing Government Requires Government

 

Whatever you think of them, reform happens at the margins of politics.

 

Free trade has always been a tenet of libertarianism. After all, the unimpeded movement of goods across borders may be a paradigmatic example of the libertarian maxim of ‘Anything peaceful.’ It is then with trepidation that many libertarians have looked on at the debate surrounding free trade today. For them, the Trans-Pacific Partnership doesn’t look anything like free trade. Instead, it looks like just another arrangement between governments bestowing benefits upon their favored cronies at the expense of the rest of society. Yet, for whatever its controversy, if it is passed, the Trans-Pacific Partnership would be America’s largest trade agreement in effect and would thereby represent a marginal liberalization of trade across the region.

 

The Trans-Pacific Partnership, then, is an example for a central irony to libertarianism: Although libertarianism advocates anything peaceful, it is often in need for politicians to advance its agenda. Very frequently the very act of de-governmentalization itself requires government. What a government erects can very often only be demolished by a government. Although, many new technologies have and will emerge that can disrupt regulations and thereby increase the overall liberty of society by creating a space that has yet to be interpreted with, such disruption isn’t always possible. In the case of trade, new technologies may make certain tariffs and quotas irrelevant to the lives of consumers, many more will remain and, in some way, harm consumers.

 

No Uber-like company will emerge that can allow American consumers to find a way around the United States’ protection of domestic sugar producers. Doing that would require government. However iron-clad the arguments for free trade may be, to actually get free trade requires a government eliminating its own obstructions, just as the peaceful enjoyment of alcohol required it to repeal the Eighteenth Amendment. Bargaining, interviews, negotiations and speeches are all necessary parts of the process. Without political acumen, trade reform would go nowhere. Free trade needs crafty politicians who are aware of when the political stars align and who can seize the initiative to advance liberty-enhancing reforms at the margins.

 

Libertarians worry about whether the Trans-Pacific Partnership would advance crony capitalism, not free markets. Cronies have certainly taken an interest in the treaty. That much is indisputable. As The Guardian reports, for ever ‘yea’ vote tallied in the Senate to give the White House fast-track authority, the US Business Coalition for TPP gave an average of $17,676.48 to it. That negotiations of the Trans-Pacific Partnership is being kept secret, contrary to standard operating protocol, only compounds those suspicions.

 

Although President Obama has said that there is nothing to worry about with the secret negotiations, certainly the president is not unaware of how ironic it is for him to assert that while still keeping the supposedly innocuous records out of the public eye. The old quip, quis custodiet ipsos custodes, looms large. Combined with the amount of money that businesses have spent, the secrecy surrounding the Trans-Pacific Partnership is bound to pique the suspicion of many libertarians. Those opponents of the Trans-Pacific Partnership are, then, right enough since there certainly is plenty of crony capitalism in the Trans-Pacific Partnership.

 

Nevertheless, a sober assessment of the treaty and particularly its impact at the political margins of liberty should inform us that these are acceptable costs to a policy that will lead to an improvement of the overall liberty of all involved. It’s true that the Trans-Pacific Partnership wouldn’t lead to a system of perfectly free trade and, in doing so, would plenty of room for each nation’s particular cronies to prosper. But we don’t live in a world where such a system of perfectly free trade is attainable. We live in a world where the treaty is on;y an improvement at the margins and where those improvements are going to have to be made in a way that placates each nation’s many cronies. The Trans-Pacific Partnership promises just that: marginally freer trade, with all the benefits that marginally freer trade would have. The Brookings Institute estimates that the global gains that marginally freer trade would be in the vicinity of at around $295 billion each year.

 

By being self-aware that any liberalization of trade would require government action, libertarians can be very open about the costs of the treaty while at the same time confident that it will have a beneficial overall effect. To remove the barriers to trade that exist across the Pacific requires an act of government. That alone would introduce some cronyism to the reform. Worse, it requires an act of many governments, all with their own particular faults. Nevertheless, that any progress towards liberalization in trade is possible is itself a miracle. A miracle that is only possible because of crafty politicians in government today. It’s not everyday that their actions would have a liberty-enhancing outcome and so the opportunity shouldn’t be squandered by comparing our imperfect world to a libertarian utopia.

 

Overall, the Trans-Pacific Partnership reveals an irony in any hope of libertarian reform today: However much libertarians may properly distrust politicians, free-trade reform will only happen if the politicians in power are able to negotiate the restraints away. On this issue, the cause of liberty, therefore, is in the precarious and inextricable position of relying on government to remove government. Maybe they shouldn’t stop worrying, but libertarians should start to give the Trans-Pacific Partnership the modest love it deserves.

VICE News' "The Fight Against Ebola"

 

 

More Reasons To End the Drug War

From "Should State Funding Go to School Books or Orange Jump Suits?" by Charlyce Bozzello and Alayna Ackerman in The Daily Signal:

New data shows nearly all states spend more on corrections than K-12 education—much more in some cases. New York, for instance, spent $60,076 per prison inmate but only $20,639 per pupil.

This is not a plea for more government spending on education. But it does raise the question of whether smarter spending on education could reduce the cost of incarceration and, more importantly, the number of people incarcerated. Instead of spending more of their state budgets on school books and teacher salaries than on inmates, disquieting new data shows that nearly all states are spending more of their funding on their prison population than towards K-12 education.

That statement is worth elaborating and thinking about. On average, state funding spent on a prisoner Jack is sometimes more than triple the state funding spent on Suzie’s fifth grade math class.

 End the war on drugs. Now. On that topic, at Fox Business Stuart Varney argues that the end of the war on drugs is now likely and is becoming inevitable.

Everyone Wants Peace on Their Terms

 

As for me, I cease not to advocate peace. It may be on unjust terms, but even so it is more expedient than the justest of civil wars.

-Marcus Tullius Cicero, Letters to Atticus

 

In “Does anyone really want a settlement in the Middle East?”, Daniel Hannan asks the question of what anyone has to gain from the current flare up of the conflict in Gaza:

What is Hamas trying to achieve by firing rockets into Israel? I’m not asking about its right to do so, or what the alternatives are, or the pros and cons of the whole 70-year-old dispute. I’m asking a narrower strategic question. What are the people who run Gaza trying to achieve by lobbing ordnance across the border?

…

The most rational explanation I can find for Hamas’s renewal of hostilities is that it’s trying to shore up its support in Gaza. The Syrian civil war and the Egyptian coup have deprived the paramilitaries of, respectively, their chief sponsor and their most immediate sympathiser. Isolated and bankrupt, unable even to pay the salaries of their 40,000 government employees, Hamas leaders seem to have decided to stake everything on a military campaign. Possibly, like Galtieri’s junta in 1982, they feel they have little to lose. At best, a new ceasefire might result in concessions, such as prisoner releases or – the big prize – a reopening of Gaza’s borders. At worst, the conflict should rally people to their regime.

 

Pareto efficiency is an important concept here. Less important as a positive standard for policy as much as a via negativa for eliminating policies we think shouldn’t work.

The world is Pareto-efficient when no one can be made better off except at the expense of somebody else. Or, as Andreu Mas-Colell and Michael D. Whinston express the idea in their text book Microeconomic Theory: “(A world) that is Pareto optimal uses society’s initial resources and technological possibilities efficiently in the sense that there is no alternative way to organize the production and distribution of goods that makes some consumer better off without making some consumer worse off” (Mas-Colell and Whinston 1995, 313). 

Pareto efficiency is a standard which conforms very much to how we would like politics done in a liberal democracy. After all, would not benevolent citizens choose to vote to avoid a world in which somebody can be better off without hurting anybody else? If Jim could be given a new home without hurting Jill or Bill, wouldn’t Jill or Bill let that happen? So clearly Pareto efficiency does conform to the ethos of a liberal democracy, and expresses the basic sentiment motivating liberal democracy (especially of the social democratic variety) that people can come together through the voting booths in order to solve their problems in an amicable fashion. Yet, though Pareto efficiency is interesting in speculations about policy, it absolutely fails in being a useful standard for guiding policy, and the reason for that is that Pareto efficiency is so weak a condition that pretty much every conceivable state of the world beyond economists’ models is already Pareto efficient. 

  

At this point, somebody who looks at the world from the point of view of economics alone can point out how much is being wasted over the struggle between the two nations and how much their citizens could gain by living in peace with each other. However, politics is about identify as much as about policy, and so for the political situation between Palestine and Israel to change, somebody’s identity has to lose, and so somebody has to be made worst off. Maybe not in profane terms (in fact, they might be made better off from the Max-U point of view), but certainly in the sacred terms of identity. 

Indeed, I can’t even find a neutral term to describe the region inhabited by the two nations without giving off signs of non-existent bias between either faction. If I call the region, Palestine, I imply that the Palestinians should win the conflict (whatever that means) and vice versa for calling the region Israel. Even importing the Latin word Judea or the Greek Παλαιστίνη doesn’t work. There’s just no way of talking about the situation without hurting somebody’s identity, which implies that the entire situation is some weird equilibrium, and kept there because changing it would require pain that no one wants to feel.  

 

We are all tethered by history in a world of utility maximizers, both in terms of the sacred and the profane, and that is felt no more strongly in Israel/Palestine/Judea/Παλαιστίνη/whatever-you-want-to-call-the-region. For there to be peace in the region, because of the initial endowment given to us by history, somebody will have to walk away from the negotiating table unhappy; yet, because we live in a world of utility maximizers, that won’t happen. 

Jokowi Wins in Indonesia

 

 

For those looking for some good news in politics, turn your attention to Indonesia. From The Economist's "Indonesia's democracy: A new kind of president":

THE wait is over. After taking two weeks to count 135m ballots from 480,000-odd polling stations across the vast archipelago, Indonesia’s Election Commission (the KPU) has at last confirmed that Joko Widodo has been elected president. The commission said that Mr Joko, the governor of Indonesia’s capital, Jakarta, and his vice-presidential running mate, Jusuf Kalla, won 71m votes at the election on July 9th. That represents 53.2% of the valid votes. The losers, Prabowo Subianto and Hatta Rajasa, won 62.6m votes, or 46.9%. Mr Joko was victorious in 23 of the country’s 33 provinces. His winning margin of 8.4m votes, or 6.3 percentage points, was even wider than had been predicted by most of the respected pollsters on the night of the election. 

Mr Joko, known to all as Jokowi, is due to start his five-year term as leader of the world’s third-largest democracy on October 20th. He will be like no leader Indonesia has had before, with roots in neither the army nor an established family. This sets him apart from his early patron, Megawati Sukarnoputri, who is the daughter of Indonesia’s founding president Sukarno and was president herself from 2001 to 2004. Instead Jokowi rose up through local government, a product of the far-reaching political decentralisation that was introduced after the overthrow of Suharto, Indonesia’s late dictator, in 1999. A former furniture-seller, Jokowi was elected mayor of Solo, a medium-sized city in central Java, before becoming Jakarta’s governor in 2012. He has a reputation for being a man of the people. 

As the third-largest democracy in the world, if Indonesia can maintain the institutions of a liberal civilization, then there is hope for liberalism in the future. There is more to liberalism than democracy, but the election of a civilian from a humble beginning is a sign of hope for the political plight of poor nations across the world as they are hurled from the rule of the military to the rule of cronies and back again.

 

The election of a bourgeois candidate is certainly a sign of hope for the prosperity of world-wide liberalism, and it should remind us that the most important political victories aren't necessarily about having the right policy so much as having the right identity. Buttressed by bourgeois dignity, the liberal civilization can be a hardy weed, but without that identity it can easily wither and die as soon as policy changes. We therefore shouldn't look at Jokowi's victory as a victory of democracy so much as a victory for bourgeois dignity. 

End the Export-Import Bank

 

 

On September 30^th, Congress will to vote on renewing the Export-Import Bank’s mandate. For almost eighty years, the bank has been giving credit subsidies to foreign buyers of American goods. Whether that mandate to subsidize exports has been for the general welfare is questionable. 

 

According to its advocates, the bank provides a valuable service by leveling the playing field. Even if Congress had scruples with supporting an institution as blatantly mercantilist as the Export-Import Bank, other nations like China would not, and if the United States did not support the bank, its economy would lose jobs to those nations who were willing to subsidize exports. In  addition, at least according to its mandate, the Export-Import Bank is not supposed to finance projects that could have otherwise found financing on the private market, and the bank could therefore be construed as a reaction to the market failing to provide such projects with capital. 

Yet, there are many reasons to doubt those arguments. In “There Are Better Ways to Help American Exporters Abroad Than the Ex-Im Bank”, Veronique de Rugy argues against the view that the bank serves as therapy to a market failure. She shows that more than half of the bank’s subsidies have no justification, and shows that the bank only assists with two percent of American exports:

 
 

Moreover, as de Rugy shows elsewhere, the exporters that the bank supports are primarily large corporations, like Boeing, with ties to the Federal government:

  

Rather than being an institution which supports American business against the threat of foreign mercantilism, the bank provides help mostly with no justification, and mostly to large corporations who certainly aren’t about to go out of business because of foreign competition. Really, the Export-Import Bank is merely a mercantilist institution in which bureaucrats within the bank, with no skin in the game, get to arbitrarily decide where to invest in the economy. How they invest in exporting businesses isn’t determined by the calculus of profit and loss, but how the bureaucrats within the bank interpret their mandate, and interpret what is in everybody else’s best interests. Such behavior introduces the very real possibilities for malinvestment and political patronage, which is certainly not in everybody’s best interests. The Export-Import Bank isn’t fighting fire with fire; rather, it is an institution which provides support to those with connections to the government, and which unnecessarily meddles with the free market. 

 

Though Congress will likely extend the Export-Import Bank’s charter, the United States would be better off if they ended it. It’s an institution of crony capitalism which enrich the few that they protect at the expense of a, uncountable number of consumers, and should therefore be swept aside in the service of universal benevolence. More importantly, free trade is a simple and obvious way for increasing the prosperity of every human being on earth. Obstructions to free trade, like the Export-Import Bank, are simply artificial obstructions to humanity’s prosperity, and should be swept away like we would sweep away other artificial obstructions. 

The European Union and The Consent of the Governed

 

 

 

Is the European Union a nation in and of itself? Guy Verhofstadt seems to believe so.

As an American familiar with American federal institutions, I can certainly say that what Mr. Verhofstadt and his ilk desire is a United States of Europe. Any talk otherwise betrays their unfamiliarity with what a federal union demands: That people ultimately identify with the top of the political pyramid.

 There can never be a United States of Europe because, unlike the United States, there is no single European identity. I doubt that a majority of Europeans will identify the European Union as their ultimate political group. An American in California can consider themselves to be the member of the same policy as an American in New York; they both speak the same language, they both roughly have the same political ideals, and they both identify with the same political symbols. The same cannot be said about a European in Athens and a European in London.

There was certainly a gradual evolution in American identity over the course of the 19^th century. One can easily cite Robert E. Lee's decision to fight for Virginia rather than for the federal Union as evidence for that, but it was nevertheless a difficult decision for him to make. Would it be similarly difficult for a German, Frenchman or Englishman to make a similar decision? I doubt it.

Democracy is a means of finding some shared opinion constituting the consent of the governed within the clamor and energy within a nation. It seeks to find some solution to the problems of governance which will be satisfactory to most. Whether those policies are found is often more a question of shared identity and shared symbols than actual persuasion. There need to be focal institutions and ideals which can unite people around political institutions, and where they don’t exist nor will the fiction of a consent of the governed. 

Democracy cannot work everywhere, and there needs to be some shared sense of identity for people to be willing to continually exist within a democratic nation with their geographic neighbors. Such identity exists in the United States, but it simply doesn’t across the European Union.  

Some Remarks About Corporate Personhood

 

The Burwell v Hobby Lobby, Inc has once again brought the specter of corporate personhood into many people’s complaints against the laws. Many argue that corporations are not people, and that we can therefore not speak of them as being protected by the same rights as individuals. For a know-nothing approach to this objection, see John Oliver’s reply on Last Week Tonight:

 

Though Mr. Oliver is by no means the most eloquent supporter of this view, he expresses the sentiment well: For-profit-companies aren’t individuals and therefore do not have the liberties that a living, breathing individual would. A more eloquent means of argumentation might be to argue that publicly traded companies exist, among other reasons, so as to shield the owners from some of the risks of managing a large corporation like Hobby Lobby. For Hobby Lobby’s owners to then argue that they should be granted the legal right to follow their own consciousness when they ensure that they are only partially accountable for Hobby Lobby’s actions is then a contradiction.  As the argument goes, Hobby Lobby can either be a publicly traded corporation, or its owners can take full responsibility for its actions, it cannot do both. 

 

This argument does not understand the notion of a right, though. If people have rights, then those rights must exist antecedant to their social existence. One’s right to freely exercise one’s religion does not depend on who one decides to associate with; rather the right is antecedent to that association, and is a legal parameter determining that association.  

Rights cannot simply disappear. Corporations are nothing but associations of people. To therefore say that corporations are people is as trivially true as saying that a chair made out of wood is wood. When people do things in a corporation, they don’t suddenly shed their rights; instead, they carry their rights with them, and are thereby protected by them in the same manner as they would be if acting alone. In short, an association of people is free to do whatever those people would have been free to do. 

The legal doctrine of corporate personhood is merely a cheat to get at the same idea. A cheat, yes, but one that is valuable for protecting people’s liberty in a commercial society. It has also been on the books since the Dictionary Act of 1871:

The Dictionary Act states that “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”12

   

Ebola Outbreak in West Africa

 

Ebola Case #3

 

From CNN:

The death toll from an Ebola outbreak in coastal West Africa has risen to 86, with dozens more ill, aid workers reported Friday.

The deaths are among the 137 cases reported by the World Health Organization, which said the outbreak has "rapidly evolved" since originating in the forests of southeastern Guinea. The city of Guekedou, near the borders with Sierra Leone and Liberia, has seen the majority of the deaths.

Five people are believed to have died in Guinea's capital, Conakry, according to WHO. Two of the victims had traveled to the region.

It's the first emergence of Ebola in western Africa, and WHO spokesman Tarik Jasarevic said the U.N. agency is trying to track people who had encountered the victims and make sure "that all those who have been in contact with infected people are being checked upon.

"What is really important is to inform the population of Guinea and Conakry about this disease, as this is the first time they are facing Ebola. They need to know what it is and how they can protect themselves."

Tragically for those involved, Ebola is back. Epidemics fascinate me in a very macabre sense. Yes, it is cliché to point out how it is humbling to think how such small thing could have such an impact upon human society. It is also cliché to think about how people have to fight against an invisible foe to control the spread of a virus like Ebola. Nevertheless, they are sources of my fascination. Thanks to germ theory, we know about how diseases spread and that knowledge really does allow us to percieve the world in another manner. Our knowledge allows us to concert human efforts as to actually be able to fight back against the virus:

                                        AP PHOTO/KJELL GUNNAR BERAAS, MSF

Our fight against germs then makes manifest the truth behind yet another cliché: that knowledge is power.