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Archive for the ‘Jurisprudence’ Category

My little sister attends the University of Vermont, and today she noted she was “one of three people at UVM not excited about the date“. I share her ambivalence. (more…)

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Regarding my previous thoughts on gun control, a reader writes,

Wow, do you ever miss the point. Put simply, drunk people do stupid things – and have bad aim! Picture the escalation of your average bar fight with guns instead of glasses and bar stools. They’re redesigning bar glasses to be less likely to shatter. How do you redesign the gun to be less lethal? And who would pay for that?!

Also, as one of many people who has worked in a restaurant with areas designated “smoking” and “non-smoking” – not everyone has a reasonable choice to make to avoid the smoke. Despite the significant decrease in tips, I chose to avoid working in the smoking section (not all places would even allow an employee to make that choice). I also, however, didn’t have a rent to pay at the time. Smoke travels easily inside a building. There were days I felt nauseated by the smoke. If the alternative is unemployment, it isn’t a reasonable option.

The objection is that I have missed the point because the reasoning for such a ban is that people have a higher propensity to do stupid things while drunk. Such an objection indicates to me that the reader entirely missed my original point.

Different people have different preferences, different tolerances for risk. There do exist bar owners and clienteles who prefer that patrons are able to carry a concealed weapon, or at least, do not mind it enough to to forgo patronizing the establishment. A blanket ban needlessly constrains those individuals.

Why constrain patrons in a uniform way? There are people who can be responsible with a firearm in a place that serves alcohol. Maybe they don’t drink, maybe they have one or two drinks, or maybe they get very drunk but are still responsible with a firearm. The point is that classically liberal philosophy explicitly condemns probabilistic models of policing to preemptively constrain people, as if they are irresponsible. Should we use racial profiling? Does the phrase “innocent until proven guilty” mean nothing? Thanks to the Second Amendment, by default a person can have a firearm on a public sidewalk. It is borderline arbitrary to remove that liberty when that person walks five feet into a bar or restaurant, provided the owner of the establishment allows it.

The state does not possess the knowledge to determine who is responsible with a firearm around alcohol, and who is not. The state does not have the knowledge to determine who prefers private environments where people are allowed to carry a concealed weapons. One aspect of the jurisprudence for the Second Amendment is to decentralize power. The state complements such decentralization of power with an additional mechanism, property rights.

Redesigning bar glasses to be less likely to shatter is an extreme absurdity. We already have penalties for assault and battery in the law. Why take measures to increase the cost to bar owners and patrons? Why punish, by making them pay more, the majority of drinkers who avoid violence? It’s hard to conceive of an individual owner who believes that suffering the cost of replacing types of glasses is profit-maximizing behavior. So this is a new regulation? If it is, it’s an absurd bureaucratic grab for power.

What is a “reasonable choice to make to avoid the smoke?” Who decides? Some people value the work highly enough to endure the secondhand smoke; some people wouldn’t. Appealing to “reasonable choices” for employees when advocating for a smoking band is a fallacious abuse of language. A smoking ban only reduces choices. The reader has fallaciously conflated incentive and coercion. Brandon Berg explains the difference well. The poor aren’t having their options limited by a restaurant offering a position in a smoke-filled environment; their options are limited by being poor. The option to work in a smokey restaurant expands their choices.

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Earlier this week my friend Ethan pressed me about what I thought about gun control measures. The state of Virginia was considering a proposal which would lift the blanket ban on concealed carry in bars and restaurants that serve alcohol.

Modern progressives have a completely illiberal sentiment towards state authority on the issue of firearms. It completely clashes with their liberal sentiment towards state authority on other issues. This inconsistency means that modern progressives are wrong either about either CCTV used for public monitoring, or gun control measures, or both. Which one is it? They are wrong in their support of state gun control measures.

Getting rid of both state CCTV to monitor public places and the security theater of the TSA have traditionally been issues of civil liberties for modern progressives. It’s a sentiment I agree with, because the foundation rests on the idea that in a liberal society, we mustn’t use probabilistic models of policing for criminal law. In deciding how to restrict the behavior of otherwise free citizens, we should not weigh probabilities, which have some degree of intrinsic arbitrariness and subjectivity of the people designated as authorities. To the extent that criminal law should exist at all, it should exist only be for harms that people commit; crimes should be crimes because an offender commits some harm. An action should not be designated a crime to prevent some harm that could be caused by unrelated deliberate future action. Is concealed carry unrelated to gun violence? Having a gun is logically necessary for future gun violence, but not logically sufficient.

In a liberal society, just as we should privatize airport security and refuse to treat free citizens as suspicious criminals by preemptively watching them on CCTV, so too should we refuse to criminalize ownership of a tool.

Handguns are a tool for coercion, injuring, and killing. In a liberal society, citizens contract out police and governments to provide some level of protection against unjust aggression from other individuals. Police are not omnipresent though, nor would we want them to be. Who watches the watchmen? Just because we have the police as one tool to protect against unjust aggression and enforce consequences for it, there is not a legitimate reason for a government to restrict substitutes for such protection. In a liberal society we should not punish people for propensities to cause harm; we should punish people for harm.

I don’t see a blanket ban on concealed carry in places that serve alcohol as particularly necessary. As with any private establishment, property owners who do not feel comfortable with having concealed weapons on the premises could form their own local rules, and advertise the status as such. The same logic applies to smoking in restaurants and bars. This is an issue best resolved by property rights.

Incidentally, Lance Armstrong once campaigned for smoking bans in restaurants on the grounds that smoking was fine if individuals wanted to accept the harmful consequences of smoking for themselves, but that a ban in restaurants was necessary because secondhand smoke imposed costs on other people. So, he completely missed the point. The issue is resolved by property rights. If people don’t want to patronize a restaurant because of cigarette smoke, no one is forcing them to do so. It’s just nonsensical to say that person A, by smoking, is imposing a cost on person B, when person B has voluntarily chosen to enter a situation.

Anyway, as a practical matter, I actually prefer that more people carry firearms, so long as they’re comfortable doing so, and have the proper training. It is intuitively obvious that any potential criminal in any particular location would be more deterred from trying to use a firearm to commit a crime if they could not determine who, if anyone, would have the relatively equal power to stop them. Isn’t an area where everyone is known to be unarmed a more attractive target for a criminal?

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Happy Stimulus Anniversary! Hope you’re all enjoying the jobs we saved! And your solid gold toilets, and your free taxpayer-funded golf carts! This one is rather long, but I do drop an F-Bomb if you stick around long enough.

Evan Bayh is stepping down, and blaming the poisonous partisanship on the hill. From Yahoo! News (which features consistently good journalism; the ! means quality!):

Bayh blamed the current atmosphere of intense partisanship on the need for senators to constantly campaign to be reelected to another six-year term. Citing his father, a popular liberal senator in the ’60s and ’70s, he noted that “back in the day they used to have the saying: ‘You campaign for 2 years and you legislate for 4.’ Now you campaign for 6!” He noted that the need for constant fundraising made it nearly impossible to focus on passing legislation.

Frustration over the increasing amount of money being spent on political campaigns isn’t exactly a new thing, as spending by candidates in the 2008 presidential election nearly quadrupled the amount of money spent by candidates in the 2000 election. Additionally, winners of House races in 2000 spent an average of $849,158 to do so, while House winners in 2008 spent an average of $1,372,591. Enhancing the concerns of many on the left and the right has been a recent Supreme Court decision to strike down the country’s existing campaign finance laws. Put simply, the ruling opens the door for an even greater influence of money by allowing corporations spend money directly on campaigns.

There are two ways to address the influence of money in Washington

We could spend millions more on intricate regulations, inevitably leading to a greater concentration of power in a select few, who will then be plied with even greater amounts of money to curry favor.

Alternatively, we could limit the power of all of the branches of government, reducing the incentives to lobby Washington, cutting off the flow of money.

But what’s interesting about Senator Bayh stepping down is his implied belief in the power and majesty of bipartisanship. From his comments, it’s evident that the Hoosier Senator believes in the power of Congress to lead, and that synthesizing conflicting or contradictory viewpoints can and will lead to good governance.

I don’t agree. Some of the worst bills are the most bipartisan. Sarbane-Oxley, McCain-Feingold, the egregious Farm Bills, the stimulus, TARP, the 80’s S&L scandles,  and on ad nauseam and ad infinitum. Of course on some issues bipartisan support is clearly a good thing, like defense, criminal statutes, and tax policy. The benefits here are avoiding arbitrary or biased regulation on issues that should be universal. Broadly I’m in favor there.

Where I disagree is in saying that compromise on fundamentally different beliefs can result in good government. Particular ideological beliefs of both parties shouldn’t be compromised to forward mediocre bills. If liberal’s truly believe that healthcare is an affirmative right, or conservatives sincerely hold that life starts at conception, what purpose do compromising these beliefs for political gain accomplish? The answer is in the question; political gain. Influence, privilege and money are preferred by the political class over ideals. The difference here is that these issues are primarily social and therefore subjective or personal, while the former set where I support bipartisanship are broadly universal.

Universal issues have objectively universal consequences, in ways that other issues don’t. For some getting an abortion might be unquestionably the right thing to do, for others it could be abhorrent. But equally important, there is a significant middle class where it’s an open question. Similarly, health insurance may save some (see Megan McArdle for an ongoing discussion on this issue), but the exact same level of care may not save another person suffering from the same disease; the same level of care also has varying degrees of “saved”, as anyone who knows cancer patients can attest. The issues aren’t universal in the same way as defense or tax.

Those areas of policy where compromise is illogical or politically motivated are fertile grounds for bipartisanship. Politicians want to be seen ‘accomplishing’ things, and often have little sense of what their accomplishments represent. John McCain pushed for campaign finance reform and ran on that platform for two presidential election cycles, before getting obliterated financially by President Obama, who skillfully used the rules McCain advocated to choke him.

All too often bipartisanship precludes social experimentation and enshrines one fickle majority upon the whole. Some liberals like Justice Oliver Wendell Holmes realize this. He felt that the constitution was a threat to majority tyranny, and his progressive leanings elevated that elusive creature of ‘the public will’ above constitutional constraints. He famously wrote;

If my fellow citizens want to go to Hell I will help them. It’s my job.

That may be the worst perversion of the role of the judiciary ever. I’m less offended by outright bribery than by Holmes’ complete abandonment of constitutional duty. What a fucker.

Other progressives/liberals will argue that a centralized technocracy will avoid this majoritarian fickleness, but there’s very little evidence to support that theory. Even as politically insulated a technocrat as Alan Greenspan kept one finger always testing the political winds.

The genius of American federalism is that it leaves plenty of experimentation space for competing ideas of all stripes, and allows people with limited knowledge and limited rationality to demonstrably embrace one system or another, all while bearing the responsibility for their choices. Bipartisanship, and centralization in general, goes a long way towards chipping away at that dynamic. Jeffersonian “laboratories of democracy” don’t require unanimous or cross-party support, but Madisonian faction-on-faction action.

P.S. For more proof that Holmes is indeed a fucker, among his hundreds of terrible rulings,  he held that the mentally handicapped could be sterilized by the state. Perhaps the nadir of Liberal Fascism.

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This month’s issue of Cato Unbound features a pretty good discussion of Hayek’s conception of spontaneous order.  Timothy Sandefur’s first critique in the lead essay is provocative, but has some flaws.  On Hayek’s description of how law is constructed, Sandefur writes:

“No system of law,” Hayek admits, “has ever been designed as a whole, and even the various attempts at codification could do no more than systematize an existing body of law, and in doing so supplement it or eliminate inconsistencies.” Even the most sophisticated bureaucratic, top-down plan is going to incorporate lessons learned through historical experience. In other words, the “partially different rules” that compete in the spontaneous order are necessarily “constructed” ones. And because Hayek incorporates these elements of constructivism into his account of spontaneous order, he ends up making it impossible to discriminate between a spontaneous and a constructed order.

This misses the point!  Hayek uses the idea of spontaneous order to comment on how centralized or decentralized power, knowledge, and decisions are in a social system.  Sure, a system of primarily constructed order can have feedback from the bottom, and a system of spontaneous order can have top-down universalities.  That doesn’t mean that if features of one type exist within a system of the other that the distinction between each becomes meaningless.  After all, Hayek was contrasting central planning with a market economy.

Sandefur oversimplifies.  He wants to classify systems into absolute categories while ignoring the existence of messy continua.  While it is possible to nitpick, we can easily classify the United States as a liberal market economy, and Cuba as a socialist economy.  It would be dishonest to deny these categorizations; we wouldn’t say that because the U.S. has public schools, and that because Cuba has a money supply, we simply can’t distinguish any difference between these economies.

Hasnas corroborates my sentiment that the difference really is simple:

If there is anything more to this problem, I am blind to it. Spontaneous orders are the product of human action but not human design; constructed orders are the product of human design. That’s about it. The former implies the absence of a conscious final decision maker; the latter implies its presence.

Sandefur attacks Hayek for making a normative critique of constructed orders.  Though he builds this argument from the supposed lack of distinction between spontaneous and constructed orders, he contradicts himself by acknowledging the existence of the difference, so that he can continue.  Given that the distinction does exist, is Hayek justified in making a normative critique of constructed orders?  Yes, he is!  Hayek’s point is that spontaneous order can handle more complex systems than constructed orders.  Constructed order can only be as complex as the central planner can design it, but spontaneous order can handle far more complexity.  This is a good thing.  A more complex system is able to handle more information and processes, and is able to give more people more of what they want.  Sandefur lays this in the introduction, so why not accept this normative claim at face value?

Sandefur chastises Hayek as lacking a basis for advocating social reform since spontaneous order will have provided some optimal socially constructed order.  That could be true, but that’s not how I read Hayek.  I read him as desiring to decentralize power and decisions, which would be social reform in and of itself.  Did Hayek really ever consider reform of social institutions that had already arisen from spontaneous processes?  Wasn’t the point just to criticize social processes that had been implemented from a central authority?

Obviously Hayek was a liberal, in the true sense.  He defined himself as such in “Why I Am Not a Conservative.”  So it doesn’t make sense that he would position himself against social change–he welcomed the dynamism of free markets, which carries a kind of social change.

Hold on!  Was the decision of Lawrence v. Texas justified by spontaneous order?  Sandefur is correct in pointing out that Hayek’s framework is ambiguous enough to both attack and defend the decision.  It’s a strong example of an instance where the logic of spontaneous order does not provide a clear normative prescription.  Does that matter?  Spontaneous order is a useful analytical tool, but it doesn’t apply to everything.

Hasnas’s normative defense of spontaneous order seems accurate, that true spontaneous order advances legitimate moral values, but also indicates the proliferation of them.  Also, Hasnas agrees that Hayek stretched the applicability of spontaneous order when using it to describe law.

Another point that comes up in the discussion is whether Hayek was making normative claims at all.  Caldwell writes:

Another way to make sense of Hayek is simply to assert that he was making no normative claims at all, that he was doing positive science. This would probably be Hayek’s preferred route, given that the Austrians always claimed to be following Weber’s strictures regarding Wertfreiheit. Thus when he criticized central planning, Hayek was actually claiming that, given the goals of socialists, central planning was not the appropriate means by which to reach them.

Is this true?  It seems to me that socialism has always held egalitarianism as its goal, not uplift.  Have you ever heard of a socialist discuss positive-sum game?  I haven’t.

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