Comments on Indiana

Setting politics aside to start with: I'm unsurprisingly a strong supporter of the original Religious Freedom Restoration Act and its state-level counterparts that sought to protect religious believers against state interference of the sort that was legalized by Smith v Oregon. I'm much more uneasy about RFRA defenses in civil lawsuits between two private parties. There is a lot to be said for having a general, impersonal private law, such that I don't have to know the identity of the other party in order to know the law that will govern our transaction. I've quoted this before in a related context; recall Voltaire's classic statement of the doux commerce thesis:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There thee Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

That's a major, valuable civil accomplishment, and not to be thrown away lightly. If I can't transact with people on the same terms because each of us is potentially carrying around a religiously-specific contract or tort law, that's a real loss. I don't say that a unified private law is required by justice or abstract principle; I'm too much of a pluralist and a multiculturalist for that. But I think we have reason to be very nervous about abandoning it, and reason to treat lightly and deliberately. I do not get the feeling that the trend toward super-RFRAs that extend to private transactions has been adopted with due care. As to private-sector discrimination, I'm of the view that private businesses should be free to refuse customers, subject to two categories of exceptions: (a) if the firms are common carriers or (in the common law sense) public accommodations rather than ordinary private retailers and (b) in the United States, due to the constitutional and historical distinctiveness of Jim Crow and its melding of public and private discrimination, discrimination on the basis of race. I think the trend to treat bans on private-sector discrimination outside of public accommodations and common carriers as the rule, rather than a unique exception demanded by the unique shape of Jim Crow, has been a serious mistake. But just because I think that the florist and the wedding-cake baker ought to be free to refuse customers in general doesn't mean that I think "antidiscrimination statute governing sexual orientation plus highly particular religious exemption" is a good second-best. Sometimes a legal kludge can make for a tolerable compromise. Sometimes when one area of law is broken, bending another can get you roughly where you should be. I'm not at all convinced that that's the case here. Writing an exemption to antidiscrimination law specifically for Christians who don't approve of homosexuality is ugly; and the generalized version we see in RFRAs like Indiana's does damage (the scale of which we can't yet guess) to the generality of the private law. Now unbracketing the politics: A pox on both your houses. There's a tremendous amount of deliberate and inflammatory misinformation flying around-- on one side, as if the IRFRA were nothing but a license to discriminate on the basis of sexual orientation, and on the other as if there were no relevant differences between IRFRA and other RFRAs. (Most state RFRas don't apply to horizontal suits between private parties; there's a circuit split on whether to interpret the federal RFRA as so applying, but the statute doesn't say that it does.) George Stephanopolous yesterday went after Mike Pence with what he clearly thought was the very clever demand to get a yes or no answer to the question of whether it's now legal to discriminate against gays and lesbians in Indiana, when a) It already was; Indiana doesn't have a statewide ban on private sector discrimination on the basis of sexual orientation (there are city- and county-level laws), and b) the right answer is not to know the answer, as all RFRAs prescribe a standard for judicial review rather than predetermining answers. It's up to a competent court to adjudicate whether there is a compelling state interest in preventing discrimination against a particular gay person by a particular conservative religious believer in a particular transaction. On the other hand, Pence and the bill's legislative supporters are obviously being disingenuous as hell about the motivation for passing a RFRA with this particular shape at this particular time. It is no secret that, politically, in Indiana, right now, this RFRA is centrally about same-sex marriage. People who have, in the last two years, unsuccessfully defended a ban on same-sex marriage in federal court and unsuccessfully tried to constitutionalize that ban make unconvincing defenders of liberty; they're just switching legal strategies. By the same token, and as I've said before, the newfound desire for opponents of same-sex marriage to defend pluralism and compromise rings very hollow.

Both of those requirements — compelling government interest, least burdensome means — are open to a considerable degree of interpretation, which is of course by design: That is what allows a modus vivendi to emerge.[...] Gay-rights activism is, just at the moment, very much oriented toward preventing the emergence of any social compromise on the matter of homosexual marriage, which is why tradition-minded florists and bakers, generally conservative Christians, are being targeted for prosecution as enemies of civil rights.

The anti-same-sex-marriage movement during its ascendancy in the 1990s and 2000s was viciously and hatefully maximalist. Imagine the different history of America if conservatives in the late 1990s had energetically supported civil unions provided that they not use the word "marriage," instead of pursuing the most aggressive and restrictionist DOMAs they could get away with in each context, such that where conservative majorities were strongest even ordinary contractual rights that might seem too much like marriage were prohibited, instead of mobilizing boycotts of firms that offered same-sex couples employment benefits! As it is, their defense of private sector liberty and the pluralism it makes possible is many days late and many dollars short. It kicked in only when, starting in the mid-2000s, the political tide turned. That shouldn't change our view of the right outcome; some particular cake baker shouldn't lose his religious liberty because the movement that's defending him now makes hypocritical arguments. But it does mean that the violin I hear playing when conservatives complain about the supposedly totalizing and compromise-rejecting agenda of same-sex-marriage supporters is very very small indeed. Update: Michael Tanner offers some thoughts in a very similar spirit.

Hither and yon, youtube edition

My talk at the Centre for Independent Studies in Sydney on "Rationalism, Pluralism, and Hayek's history of liberal thought" has been captured for the ages.

Sasha's asteroid

Sasha Volokh suggests, in accordance with orthodox libertarian rights theory, that

"taxing people to protect the Earth from an asteroid, while within Congress’s powers, is an illegitimate function of government from a moral perspective. I think it’s O.K. to violate people’s rights (e.g. through taxation) if the result is that you protect people’s rights to some greater extent (e.g. through police, courts, the military). But it’s not obvious to me that the Earth being hit by an asteroid (or, say, someone being hit by lightning or a falling tree) violates anyone’s rights; if that’s so, then I’m not sure I can justify preventing it through taxation.

This is met with a sensible rejoinder from Matt Yglesias and that blank look of incredulity that Brad DeLong sometimes affects in lieu of argument. But I can sympathize even with Brad here. The conclusion is absurd, and as Matt says, that means that something has gone badly wrong somewhere along the way.


I'll again quote from my argument about this kind of thing.

I propose to treat the state as a morally contingent form of social organization that is nonetheless pervasive in the world we inhabit and in any world we can reasonably imagine in the medium-term future.

If we do so, one consequence is that we should view state officials as wielding a great deal of power in our social world that is probably not justified all the way down. States did not come about by individualist contractualist consent; they are not the institutional form of morally foundational nations; religious, hereditary, and customary forms of legitimation may remain sociologically credible in some places but are surely not morally well-grounded accounts of the justifications for the organized use of violence. Yet states are such well-entrenched features of the political landscape that, if can constrains ought at all, we are probably not morally obligated to abolish the state form in favor of some other form of political organization or in favor of anarchy of any description. We must morally make the best of them, making do with what we have.

In a world filled with states, officeholders and officials should view themselves as having political responsibility as analyzed by Weber, which is much like [David] Miller’s remedial responsibility. They wield power that is not morally legitimated by its origins; the power exists because of morally neutral historical and social accidents. What remains is moral responsibility for what is done with the power.

State officials then confront a world in which their authority gives them unusual power over outcomes. In a world full of drowning children, they are unusually likely to have access to life preservers. As Miller stresses, it is important not to view the world as always only made up of drowning children; we must also be able to see ourselves as partly responsible for the creation of our circumstances, our social worlds, and our outcomes. But even with that caveat in mind, there are drowning children enough to go around. Miller draws on Virginia Held’s (1970) famous argument that a random collection of individuals can be held morally responsible, to suggest that if they can, surely more substantial collectives like nations can be. But Held’s “random collection” shouldn’t be passed by so quickly; it is a serviceable shorthand for the reality of fellow-citizenship in a modern state, who make up a random collection of individuals who happen to be socially organized in a particular, contingent but powerful, way.

The state’s first duty, the prevention of interpersonal violence, follows more or less straightforwardly from the kind of social organization that the state is: the agency that is able to claim and enforce a local monopoly on the legitimate initiation of force. Not all forms of political organization have been like that, and the responsibilities of officeholders under them differed accordingly. But the ability to prevent private violence is constitutive of the modern state, which just for that reason acquires a responsibility to do so in accordance with the background moral rights of persons to be free from violence. Similarly, it acquires a responsibility to protect against theft and against aggression from outside its boundaries. It has displaced all other possible protectors; it has both the greatest ability and (due to its own actions) the only ability to defend against force; and so it bears the responsibility to do so.

Orthodox libertarianism would hold that this first responsibility (understood to include the prevention of private theft, not only personal violence) also more or less exhausts the state’s responsibilities. But the creation of the social technology that can protect against internal and external violence—for example, the creation of a professional body of armed men trained for coordinated action and a financial apparatus that can support that body—means that there is a significant concentration of physical and fiscal power on hand. And there may well be an overprovision of that power, since an underprovision is irresponsible and generates political pressure for state actors to fulfill their duties, and “just right” provision at the level that would keep police and armed forces working at precisely their whole capacity would be an astronomically unlikely coincidence. Then, unavoidably, the slack in the system provides the state and state actors with situations in which they have a unique capacity to prevent or mitigate harms and suffering. The police force created to prevent crimes also has the ability to respond to car crashes. The public fisc created to fund an army also has the ability to feed the starving. I am sure that there is no morally decent way to insist that the police officer refuse in principle to aid people in danger even if the danger wasn’t caused by crime, even though that means that the taxpayers will be involuntarily funding some use of the officer’s time that is not connected to rights-protection, even if the resulting situation is a violation of the best understanding of taxpayers’ property rights. Nor will it just be a matter of the personal benevolence of the police officer who wants to be free to prevent non-criminal harms while on the clock. If capacity and proximity can generate outcome-responsibility, then it can be the officer’s responsibility to act—and, accordingly, the responsibility of the state of which the officer is an agent.
Once the public fisc can prevent non-criminal harms indirectly, by paying its personnel to do so, it is a difficult distinction to maintain that it may not prevent them directly, by, e.g., feeding the hungry. Indeed, the distinction is probably an impossible one, and so all non-autocracies will end by being in the business of distribution (Dahl 1993). Once states are distributing benefits—and even physical protection is a benefit about which distributive decisions are made, as is perfectly evident when looking at the geographic unevenness of police protection in all countries—they face moral constraints about how and to whom they should be distributed. That is, there are problems of political redistributive justice, even if redistribution is not in itself demanded by justice.

I do not suppose that these brief remarks will persuade my fellow libertarians that they ought to abandon their views on redistributive spending. But perhaps they will agree that the police officer on duty has a responsibility (and not just the responsibility borne by any natural person) to aid the drowning child, even though doing so is a drain on taxpayer resources that is not for the sake of the prevention of interpersonal rights-violations, even though doing so provides a kind of subsidized in-kind insurance against misfortunes that are not injustices. The subsidy is not itself a demand of libertarian justice but of public responsibility conditional on the fact of public power; but once the subsidy exists, it is constrained by concerns about justice. A state could not justifiably intentionally deploy police differentially according to the race of the children likely to be at risk of drowning.

(From Levy, "National and Statist Responsibility," Critical Review of International Social and Political Philosophy, Volume 11, Issue 4 December 2008 , pages 485 - 499.)

In other words: it is obviously morally false that no steps may legitimately be taken to prevent the earth from an asteroid collision. It may be that in some alternate world without coercive states, alternate forms of social organization would have arisen that would have the organizational capacity to build the space cannon (or whatever). But we live in a world in which states have, for centuries, aggregated to themselves the function of the rapid large-scale organization of the means of applying great quantities of destructive kinetic energy. For good or for ill, they have displaced the social actors from that alternate world. If states may not act, then there is no one who both may and can, and that violates the premise at the beginning of this paragraph.

Say that I hold bad but effective land title-- if the property right to my land morally appropriately vests in an Indian tribe that may actually regain it someday, but hasn't yet. Indeed, I've been aggressively contesting their land claim; it is due in part to my own actions that they haven't reclaimed it. And then fire breaks out on a neighboring piece of land; my property is the appropriate place for a firebreak to protect much more area behind mine. (This could be a house in a city or a plot of forest.) But it is only likely, not guaranteed, that the fire will spread. So if I allow the firebreak on my land, I am knowingly and certainly destroying property value that might otherwise survive intact, on land that is not genuinely mine to destroy.

Or: I have stolen your car for a joy ride, and suddenly (god help me) see a trolley experiment unfolding in front of me. Instead of the fat man of some versions of the thought experiment, what I can put between the trolley and the people in peril is your car, probably totaling it.

In both cases, even if we concede that it was wrongful conduct that put me into the position of being the one able to prevent the catastrophic consequences, and even if the prevention will cause some moral harm, I have a clear duty to prevent the bad consequences. And-- for reasons familiar from Weber and Walzer, and fully articulated by Goodin in Utilitarianism as a Public Philosophy-- state actors have an exceptionally strong duty to prevent bad consequences that they're in a position to effect.

Sasha's rights theory is the one I object to with the policeman and the drowning child: the child's rights are not being violated, so the policeman may not spend taxpayer-supported time rescuing her. Still less may he commit some new act of expropriation-- grabbing your expensive suede jacket off a nearby park bench to wrap around the cold and wet child. But the asteroid case is even worse: it's as though the city has declared a curfew in the park, so no one but the policeman legally could be in a position to help the child at all. Given that state of affairs, the world that at that moment exists, the policeman not only may but must act.

The strict believer in property rights could still say: I'd be responsible for the value of your car if I totaled it in that way, even to save lives, since my being in that position was a consequence of my own actions. And that's right-- though it is fully compatible with the view that I have a moral duty to act. So maybe, in the science fiction future world in which state officials are all called on to pay damages for the harms their coercive actions caused over the centuries, they might be liable for the taxation in support of the building of the space cannon, even though they had a moral duty to build it. (The state has the right to create a firebreak without the owner's consent, under its duty to provide for public safety, but it owes damages afterwards.)

But now suppose that you were one of the people standing on the track whose life was saved. And try to calculate the who owes damages to whom, in the event that a handful of state officials coercively extracted some billions of dollars from hundreds of millions of people, with the consequence that all life on earth was saved.

What all of this means is: Sasha's theory of what rights we have is not the only premise needed to make his argument go. Not even fiat justitia ruat coelum will do the work. He also needs an implausible theory in which moral duties in a non-ideal world are absolutely identical to moral duties in an ideal world. To defeat it, we only need introduce a moral equivalent of the lawyerly concept of estoppel. If you believe in the libertarian alternate world of statelessness, and you believe that states have wickedly prevented us from reaching that world, you should think that states are estopped from suddenly pleading "let justice be done" come the moment when the heavens are literally about to fall.

Seeing Like A State, Seeing Like A Market

I add my two cents to the Cato Unbound forum on Seeing Like A State.

Liberty and civil society

[Note: originally written as a contribution to the Cato Unbound symposium on Philip Blond's Redy Toryism. Russell Arben Fox's reply to the symposium, and I guess mainly to me, is here, and it's of course a much better and more interesting defense of an idea like Red Toryism than was the piece of Blond's to which we had to reply.]

My old friend Patrick Deneen writes:

"The contemporary conspiracy between State and Market -- apparently locked in battle, but more fundamentally consonant in their hostility toward, and evisceration of, the institutions of civil society -- mutually reinforce each other, strengthening simultaneously commercial and State concentrations of power that recent events reveal to have been deeply intertwined. Both are based upon the radically individuated anthropology of classical liberalism, an anthropology that both necessarily precedes and ultimately succors the progressivist liberalism that it purports to oppose. ... The only true locus of human liberty is to be found in the institutions of civil society, yet our dominant philosophies both regard its requirements for stability, self-sacrifice and generational continuity as an obstacle to individual liberty."

I can't imagine the time horizons over which the purported changes have happened. The civil society that is a semi-distinct sphere of human society, the order of intermediate and sometimes-voluntary associations that mostly lack either coercive power over outsiders or expressly commercial purposes, isn't any older than the state and the market as distinct spheres. Like them, it arises in the world of modern social differentiation. The medieval church was, to our eye, quite state-like; the medieval guild looked a great deal like a participant in the market. From the time that civil society in this sense is really identifiable as a sphere-- the time when The Church became churches which were required to peacefully coexist, when one of the guilds evolved into the Freemasons and others were replaced by fraternal societies that did not regulate the labor market, when the intergenerational corporate form became democratized and demonopolized and made accessible to voluntary associations, and so on, in other words from the 18th or early 19th century onward-- there has always been augmentation of material wealth on the market and there has always been an increase in the coercive power of the state. And yet the grand narrative of the decline of civil society is, according to its leading empirical scholar Robert Putnam, the story of a civic-minded Greatest Generation inadvertently raising baby boomers who watched too much television. The pessimistic take on civil society is that it flourished and its forms proliferated until the 1950s, 60s, or 70s. (The optimistic take is that it flourishes still, and that its forms continue to proliferate, even if fewer hours are being volunteered for the Rotary.) The timing matches neither an unusucal increase in state power (certainly not compared with the 1910s or the 1930s and 40s!) nor an unusual increase in market power.

The life of religious institutions in particular is somewhat more complicated. One of the great institutional accomplishments of American civil society, the Catholic school system, has indeed fallen victim to the market. The system rested on the service of men and, especially, women who opted to forego market rewards for lifelong religious-education vocations. The opportunity costs of that decision have risen dramatically, especially for women who had been excluded from the labor market altogether. It is unclear whether the system is sustainable on current trends. If it is not, there will be a loss to the social world. But it will not be because of, nor will it engender, a loss of liberty.

Liberty is productive of civil society. The tremendous creativity of nineteenth-century Americans in creating churches, voluntary associations, universities, and fraternal societies is a testament to this. And the existence of a rich and vibrant civil society is a sign of freedom. I do not believe that a society that lacked such a civil society would be a free one-- but the lack would be more symptom than cause. Free persons do create and inhabit and maintain and perpetuate organizations and institutions. They do so partly under the umbrella of a coercive state that allows the institutions to be intermediate, rather than rival armed camps enforcing the rights of the members. And they do so partly with the wealth and leisure that the market makes possible. There are, of course, countervailing effects and complex relationships. But there is nothing like a simple inverse relationship between civil society and a reifiied sum of "state plus market."

The phrase "civil society" is a complicated one. It suggests the self-governing city or city-state, free of feudal power or coercive religious jurisdiction. In early modernity, this sense of a complete political society with rough equality before the law and excluding religious violence becamse generalized to the entities we now think of as nation-states-- the Hobbesian, Weberian, Westphalian states that overpowered coercive church jurisdiction and suppressed the possibility of religious civil war. And so, in the writings of someone like John Locke, civil society is political society, theself-contained and unified political society that can apply a general law and that excludes external (e.g. church) claims of political power. There was an important sense in which that society offered freedom-- freedom from the inquisitors and their Protestant equivalents. That is, civil society-as-state suppressed the power of intermediate institutions. In the 18th century, thinkers such as Adam Ferguson and Adam Smith came to imagine social spheres distinct from political society-- a society, and an economy, that could persist over time and survive changes in political regime. (Scottish society and the Scottish economy changed, but did not disappear, when the Scottish state disappeared into the British.) That, too, was an advance in our understanding of freedom-- our social lives are not wholly constituted by our political lives. Hegel was later to use the phrase to refer almost entirely to the market, under an appropriate legal regime-- the legal regime that recognizes free bourgeois citizens, legally autonomous and interacting with each other as equals. That is the social world of liberal agents creating new voluntary associations as easily, and with the same rules, as they create economic firms or political parties.

To say that liberty is only possible in civil society is an interesting thought when it admits of this complexity. But when it treats the non-political non-economic domain as the whole meaning of the phrase, it is misleading at best.

Guy Fawkes revisited

Steve Benen and Josh Marshall are surprised that the Republican Governor's Association has decided to issue a call to Remember November in a way that seems to evoke remembering the Fifth of November. I have to say it's not obviously true that there's any Guy Fawkes reference in the video. It could be exclusively a reference to Election Day falling in November. And Benen calls back to a Michelle Bachman rally on Capitol Hill that took place last November 5-- but as far as I can tell Benen was the only one linking that to Guy Fawkes Day. The basic presumption has to be that Americans don't know the date, don't know the rhyme, and don't know the significance of either.

But here, my guess is that the Ron Paul influence on the Tea Parties has meant that rallies have signs and chants to remember November in a way that is directly descended from the Paul campaign's inadvertent association with Guy Fawkes Day.

And-- tell me if I'm imagining this-- in the "Remember November logo, the V is stylized to look both like the checkmark on a ballot and like the V from "V for Vendetta."

SO I think Benen, Marshall, and Scherer are right to see a Guy Fawkes influence here-- but it certainly doesn't amount to a wholesale appropriation of the imagery. This is a lot more tenuous than, say, the usual Republican appropriation of and code language about the American Confederacy.

In case the connection is real, I'll take the occasion to refer you to my post three years ago about the strange twists and turns and misunderstandings that ended with Guy Fawkes being a symbol to the American anti-statist right.

The myth of the golden age

One recurring topic around here is the problematic libertarian historical memory of an America in which once, before the Fall, there was Freedom-- whether the Fall was the New Deal or the 1937 switch in time or the 16th Amendment or the Federal Reserve Act or whatever. And I have a special interest in that subset of soi-disant libertarians who I term confederatistas for whom the Fall was apparently 1865. It's a topic of interest for me outside the blog, too: "Federalism and the Old and New Liberalisms" is substantially about the same thing.

Indeed, the second-most trafficked post in this blog's history was about related problems, though I won't link back to it because it names the odd law professor blogger whose wrath it incurred and who seems eager to resume internet fights whenever possible.

Anyways: I wish to recommend a new piece on the problem by David Boaz, VP of Cato: Up from slavery.

Institute for Liberal Studies seminar at McGill

On facebook and on the ILS website:

Politics & Society Seminar
(co-hosted with the Montreal Economic Institute and the McGill International Student Network)
March 6, 2010 | 10am - 4pm
McGill University, Location TBA
Join us on Saturday, March 6 at McGill University to hear from leading thinkers about the ideas that shape our society.
Students and faculty from all disciplines are encouraged to attend. Click here to register.
The seminar will begin at 10:00am and conclude at 4:00pm. Each talk will be followed by time for questions and discussion by the participants. The seminar is free for students and faculty, general admission is $20. Lunch will be provided.
The agenda for this seminar is as follows:
10:00am – Registration
10:30am – Welcome
10:45am – Tom Palmer (Atlas Economic Research Foundation) - A Brief, 4,500 Year History of Liberty
12:00pm – Lunch
1:00pm – Jacob Levy (McGill University) - Freedom, Culture and Multiculturalism
2:15pm - Break
2:30pm – Jason Brennan (Brown University) - Civic Virtue Without Politics
3:45pm - Wrap-up and adjournment

Remember, remember...

one of the most-read posts ever on this blog: Guy Fawkes Day, V for Vendetta, and American politics.

Bush, Obama, and the size of government

As my old friend Todd Seavey details, he and I have made a bet on the growth of government under the Obama and Bush administrations, by three measures, in each case comparing Obama's [first] term with GWB's first term: the change in federal expenditures as a % of GDP over four years, the change in total government expenditure at all levels over four years, and the change in the federal budget, in percentage terms from its starting point, measured in constant dollars.

As will surprise few of either Todd's readers or mine, he's predicting socialist apocalypse under Obama, and I'm... not.

Discussing Obama's budget reminds me to link to this NYT profile of Peter Orszag, who I certainly can't call an old friend since we haven't been in touch at all since high school, but who was a friendly acquaintance from the high school debate team and my partner for one or two tournaments. I liked this bit:

As he heads to his job as White House budget director, he already seems to pulse with energy, but he asks his driver to stop at Starbucks for enormous doses of iced and hot tea. His epic caffeine intake concerned him until he solved the problem with typical Orszagian efficiency: he underwent genetic testing, confirmed that he could safely metabolize large amounts and happily moved on to the next worry.

They can test for that? And what, precisely, counted as "epic?" Peter's probably almost a foot taller than I am; I'm now curious how my intake compares.

And that, in turn, reminds me to finally blog about the most important article from the NYT in the past several days, mentioned to me by several sources. If I were putting up a separate post about it, its headline would of course be "I'm going to live forever... and break some Olympic records while I'm at it: part of a continuing series."

So even as sports stars from baseball players to cyclists to sprinters are pilloried for using performance enhancing drugs, one of the best studied performance enhancers is fine for them or anyone else to use. And it is right there in a cup of coffee or a can of soda.

Exercise physiologists have studied caffeine’s effects in nearly every iteration: Does it help sprinters? Marathon runners? Cyclists? Rowers? Swimmers? Athletes whose sports involve stopping and starting like tennis players? The answers are yes and yes and yes and yes.[...]

Now, Dr. Tarnopolsky and others report that caffeine increases the power output of muscles by releasing calcium that is stored in muscle. The effect can enable athletes to keep going longer or to go faster in the same length of time. Caffeine also affects the brain’s sensation of exhaustion, that feeling that it’s time to stop, you can’t go on any more. That may be one way it improves endurance, Dr. Tarnopolsky said.

The performance improvement in controlled laboratory settings can be 20 to 25 percent, Dr. Tarnopolsky said. But in the real world, including all comers, the improvement may average about 5 percent, still significant if you want to get your best time or even win a race.[...]

The beneficial effects on exercise, though, remain. Even if you are a regular coffee drinker, if you have a cup of coffee before a workout or a race, you will do better, Dr. Tarnopolsky said. “There is no question about it,” he added.

He puts the caffeine research to use when he trains and competes. Dr. Tarnopolsky is an elite triathlete, ski orienteer and trail runner who has competed at national and international levels. And, he said, he loves coffee: “I love the smell. I love the taste. It’s heaven.”

And before a race? He always has a cup.

I've gotten steadily more athletic over my adult life. I think we now have an explanation as to why that is.

Stanley Fish inhabits a very different academic world from the one I inhabit...

If this is true.

I’ve been asking colleagues in several departments and disciplines whether they’ve ever come across the term “neoliberalism” and whether they know what it means. A small number acknowledged having heard the word; a very much smaller number ventured a tentative definition. I was asking because I had been reading essays in which the adjective neoliberal was routinely invoked as an accusation, and I had only a sketchy notion of what was intended by it.

Elsewhere

Lots of great and interesting stuff on traditional themes of interest around here.

Will Wilkinson on inequality and American exceptionalism... and race.

Many people on liberaltarianism; Ross Douthat, twice; Reihan Salam; Will, and again (I especially like that last post); Ilya Somin; Virginia Postrel.

A characteristically epic and rich post from Russell Arben Fox on some of his own favorite themes, some of which he and I have discussed from time to time (and I chip in in comments there). A sample:

The point is, I suspect, that trying to extricate liberal ideas in all their varieties from any political argument that doesn't address capitalism (and the mostly or at least increasingly democratic forms of modern life it presumes to be valuable) itself directly is probably always going to end up failing. Burke himself, who is usually held as the very font of modern conservatism, was a liberal, or at least was liberal; as Jacob Levy (among others) has persuasively argued, Burke was a Whig whose "pluralist liberalism" led him to greatly respect the "ancient liberties--of churches, guilds, parlements, provinces, cities, nobles, and all the rest--[that] provided a place to stand against absolutism." So from the beginning, any conservatism which speaks of liberty in the context of modern democratic capitalism--the arena within which different groups (the small platoons!) as we know them today can form and seek the freedom and power to live their lives as they see fit in the first place--is going to be, at most, a form of liberalism, one that is, as Alasdair MacIntyre once put it, a "conservative liberalism," a liberalism more pluralist in its devotions, more sensitive to history and less rational in its ambitions, but a liberalism nonetheless.

Now in some ways this is obviously a kind of silly point to make. Political theorists like Jacob and Patrick (and, sometimes, me) can argue all we like about the conceptual and/or historical connections between Burke and other early modern liberals, but in historical fact it is the conservatives--certainly at least since Russell Kirk--that have seen in Burke's appreciation of tradition and natural limits a conservative response to Rousseau and thus to all the revolutionary or egalitarian implications of liberalism. And, of course, the liberal reading of Burke can itself be contested: the man did rhapsodize about how moved he was by the glorious presence of Marie Antoinette, after all. So (perhaps to allude back to the aforementioned debate between Patrick and Damon) there are elements of a fundamentally illiberal appreciation of authority in his thought. Still, overall, I think the general point stands: every successful modern conservative political argument has been, to a degree, in the same position as that which Michael Walzer once famously said about the relevance of communitarianism to our modern liberal world (about which, more here); namely, that it is, however interesting and important an ideology, nonetheless parasitic on liberalism, a "recurrent critique," at best.

So does this mean that Patrick's search for a conservatism that can truly be tried and made fruitful is, in the end, in vain? Not necessarily--it just means that one needs to get clear on what it is you're searching for, and think again about where to find it and what one hopes to accomplish There are different sorts of recurrent critiques, after all.

Read the whole thing.

Liberaltarianism, west coast edition, continued

(See earlier posts here, here, here, and here.)

Josh Cohen has posted the text of his remarks from the Stanford panel. (via Henry Farrell.)

Liberalism and libertarianism, again

Last fall's Princeton panel has now had its west coast counterpart, at Stanford.

Liberals and Libertarians: Kissing Cousins or Distant Relatives?

Description:
A DEBATE BETWEEN LIBERALS AND LIBERTARIANS

LIBERALS

Joshua Cohen / Political Science, Stanford University

Pamela Karlan / Law, Stanford University

Bradley DeLong / Economics, UC Berkeley

LIBERTARIANS

Brink Lindsay / Cato Institute

Will Wilkinson / Cato Institute, Blogger at FlyBottle

Virginia Postrel / Dynamist

That liberals and libertarians share philosophical origins is clearly implied by the common Latin root for both words, liberalis, meaning open or generous. Both philosophies advocate civil liberties, individual autonomy, limited state interference in private affairs, and a non-bellicose foreign policy. Where the two stances have diverged is with respect to fiscal and regulatory issues. Although liberals generally view markets as the best way of organizing production and distribution, they have been more sympathetic than libertarians to governmental involvement in the management of markets for the public good. Moreover, whereas both liberals and libertarians generally concur that the public sector should avoid excessive spending, the former have been more supportive of government programs to expand opportunity and provide social insurance.

During the 1960s and 1970s, when the public sector was expanding and government spending was rising sharply, libertarians leaned strongly toward a “fusionist” coalition with traditional social conservatives and generally supported the Republican realignment of the 1980s and 1990s. Since 2000, however, the Republican party has succumbed to ideologies that have shifted it steadily away from core libertarian principles by curtailing civil liberties, expanding government intrusions into private affairs, running up huge fiscal deficits, expanding federal control over local institutions such as schools, and launching costly military invasions in the absence of direct threats.

In the wake of these developments, the “fusionist” coalition between libertarians and conservative republicans has substantially frayed and perhaps the time has come to reconsider the historical estrangement between liberals and libertarians. Given shared positions with respect to civil liberties, state involvement in private affairs, fiscal responsibility, and the War in Iraq, it may be fruitful to search for common ground in other areas. Is there room for compromise on contested regulatory and fiscal issues, or are liberals and libertarians destined to be occasional tactical allies with fundamentally conflicting strategic visions? And regardless of possibilities for closer political cooperation, what libertarian insights do liberals need to do a better job of appreciating, and vice versa?

Brad DeLong posts his remarks here. I do wish I had Brad's way with words:

One way to understand Keynes's General Theory is that Say's Law is false in theory but that we can build the running code for limited, strategic interventions that will make Say's Law roughly true in practice. The modern American liberal economist's view of libertarianism is much the same: libertarianism is false in theory, but it is very much worth figuring out a set of limited, strategic interventions that will make the libertarian promises roughly true in practice.

Two thoughts:
1) Josh Cohen is a leading political theorist/ philosopher and an important figure on the center-left of intellectual life-- but I can't think that I've ever read him describing himself as a liberal. He seems to me an odd choice if one is constructing this as Team Liberal and Team Libertarian.

2) It struck me at the Princeton session that "Team Liberal and Team Libertarian" is the wrong construction for the project. If there must be a debate with sides (rather than a discussion around common issues) then it ought to be something like "Team 'Kissing Cousins' Thesis and Team 'Distant Relatives' Thesis."

Remember, remember...

when, a year ago, Ron Paul raised a whole lotta money on Guy Fawkes Day? It's forever ago in political time, and hard to remember that it seemed particularly interesting interesting. But my post about Ron Paul, Guy Fawkes, and V for Vendetta was one of the most-read things I've ever written, oddly enough. And I still think that the migration from the defense of the British state through Alan Moore's anti-Thatcherism to Ron Paul, the fact that a traditional British celebration of the defeat of the enemies of the state could end up animating an agenda of radical anti-statism, is one of the stranger things I've ever seen in political symbolism. So, for this year's Guy Fawkes Day, a link to look backward at.

Do Libertarians Fit in a Liberal World?

Todd Seavey has written an article for Reason about the liberalism and libertarianism conference at Princeton a coupleof weeks ago.

Elsewhere on election day

My friend Todd Seavey has decided to devote his blog this week to denunciations, in his inimitable style, of quisling Obamatarians and liberaltarians like, well, me.

And another college friend (and my onetime newsroom boss) Naomi Camilleri wrote up a thoughtful post on "Why don't we vote?" In the comments thread there I speak up for the nonvoter.

Norman Barry, R.I.P.

The British political theorist and major contributor to the rejuvenation of classical liberal political thought has died. The University of Buckingham posts this obituary (via Brian Doherty).

"Liberals and Libertarians: Common Cause or Separate Agendas?" Text fo remarks at Princeton

Before I had returned from my trip to Princeton for this event, the always-sage John Holbo wrote,

But here’s the main problem. It is obviously false that Obama ‘demonizes individualism’. I’ve read quite a bit of Croly and heard a lot of Obama speeches and they don’t sound like each other at all. They don’t have similar political philosophies. If you listen to Obama and hear Croly all that proves is that you need to get your hearing checked. Or your head checked.

Read the whole thing; John's epic-length posts are always worth it.

I hadn't been sure whether to post my panel remarks here, but John's post settled it for me. He's having an argument with Jonah Goldberg about whether Obama is kin to the collectivist progressives of the turn of the twentieth century, and-- as you'll see below-- I think he's right and Goldberg's wrong. (I recognize I haven't provided an argument to that effect. Only had ten minutes to talk.)

Remarks:

The great economist Joseph Schumpeter, referring to the fortunes of the word ‘liberal,’ once commented that "as a supreme, if unintended, compliment, the enemies of the system of private enterprise have thought it wise to appropriate its label." Many of my fellow libertarians, or classical liberals as we sometimes insist on calling ourselves, share that view; egalitarian liberals are enemies who stole our name. I think that it’s much more pithy than it is true, and that classical liberals and those who a century ago took the name of “new liberals” but who I’ll just call left-liberals share much that is morally and philosophically important and true, and that we’re ideological cousins sprung from common intellectual ancestry. We’re also sprung from a common class and cultural matrix. Liberals were not the party of the peasantry or the working class, neither were they the party of the aristocracy, the high clergy, and the military. They were the party of religious dissenters and minorities, smallholders, the petit bourgeoisie, merchants, and sometimes lawyers.

Now, the timing of our session is odd, for this argument. On the one hand, I have arguments I’ve been developing for many years about why libertarians belong not in a great fusionist alliance with conservatives but rather in common cause with our fellow liberals. I think that’s been an interestingly hard argument to make, but we meet at a time, a few weeks before an election, when I think the immediate conclusion to draw is boringly easy. No libertarian can hope to see the party of torture, denials of habeas corpus, indefinite detention without trial, and boundless unsupervised executive power returned to office. If our core root liberalism, if our roots in the struggles of common law against absolutist king or in John Locke or in Montesquieu or in the American Revolution mean anything at all, then it means a four percentage-point difference in marginal income tax rates is less important than removing the party of torture and detention without trial from power. That’s morally so overwhelmingly important as to make my traditional arguments about libertarians leaving the fusionist alliance seem kind of silly.

Conversely, I’ve had arguments as to why left-liberals should welcome us into common cause, and why they as well as we should be prepared to be changed by the alliance or the fusion. I think that the US Democratic Party ought to build on the accomplishments of the Clinton years, and extend and deepen the New Democratic agenda. To a libertarian, those years of trade deals completed and successfully ratified, market liberalization spreading around the world, and moderate budget restraint at home have to look something like a paradise—and it was a time that showed the progressive potential of market-led growth. But the paradise is lost, and we are in for not only a recession and a financial contraction but also for an era of bad policy responses and reactions. I have no illusions that Democrats are going to come shopping for market-oriented or neoliberal or deregulatory reform ideas in the next couple of years. Though I think it’s worth noting that Obama is from and of the market-friendly University of Chicago Law School, and that the Republican Party not only nominated the moralizing anti-market anti-bourgeois noblesse d’epee John McCain but is likely to face a Palin-Huckabee contest four years from now that will confirm a Republican turn toward a singularly unattractive populism.

But this moment will pass, and anyway I have little comparative advantage in talking about current events. Instead, I’d like to talk about political theory, about the divergence between classical and egalitarian liberalisms, and about what they can bring to each other today.

During the era when the so-called “new” or “social” liberalism self-consciously departed from its market-oriented predecessor, the new liberals often maintained that their core liberal values needed to find new institutional and policy outcomes in the wake of the industrial revolution—that a corporation as much as a state could threaten a person’s freedom, that the assembly line as much as censorship could stunt individual mental growth and development. In my view, unfortunately, they never did much more than establish those analogies. They didn’t do much interesting argumentative work on how old liberal premises and values plus new industrial circumstances yielded welfarist conclusions. In part this was because the major theorists of the turn in Britain, Thomas Green and Leonard Hobhouse, really didn’t share old liberal premises; Green had drunk too deeply at the well of Hegel and Hobhouse was too quick to reject the moral priority of individuals. I think that a great deal of the political movement of new liberalism was more continuous with the old—it drew from the same intellectual, cultural, and class circles, for example—but the theoretical turn to welfare liberalism got highly tied up with a generational intellectual turn to Hegelian idealism or to collectivism of various unattractive sorts. I think a similar story can be told in the U.S. around Woodrow Wilson and the mixing together of welfarist liberalism with progressivism, imperialism, and Jim Crow. In turn, I think that the classical liberals who lived through the 1910s to 1940s saw the development of egalitarian liberalism as being of a piece with the moral and intellectual crisis of those years—the flourishing of communism and fascism, the crisis and near collapse of liberal constitutionalism. And they thus made common cause with conservatives who they took to be on the right side of a great civilizational divide, no matter how many things they were wrong about. The liberal center did not hold; some liberals made common cause with social democrats who two generations before they had viewed as antagonists, and others made common cause with conservatives they had viewed as antagonists.

Fortunately, I think that Hegelianism, collectivism, and progressivism have been substantially unwound from welfare liberalism, certainly in the U.S. since no later than Rawls and the Warren Court. An egalitarian liberalism that is committed to the priority of liberty, to the defense of civil liberties, to the social diversity characteristic of the post-60s and 70s West, and to the anti-authoritarianism of the New Left—that’s a liberalism worthy of the name. And libertarians in Will’s and my generation, while we learned from people who learned from people who were shaped by the long crisis of the first half of the twentieth century, we inhabit a different world from the one in which the fusionist alliance with the Right made sense. National Greatness conservatism, the conservatism of Irving Kristol and John McCain that says let us have a war or a crisis just so that we may have national unity and a moral cause greater than our private lives—that’s the kind of thing that characterized progressivism and New Liberalism at their worst, but it’s effectively absent from egalitarian liberalism today.

I mean to close with a few words about what egalitarian and classical liberals can learn from each other, and what their common cause is.

From the classical liberal, the egalitarian liberal has learned one huge lesson and ought to learn three more. The huge lesson is the productive and progressive power of markets. While economic discourse will turn anti-market for a while, we are not going to return to the 1970s or the 1940s or the 1930s. Egalitarian liberals may overestimate the number of tweaks and twists and limits they can give the market with no ill effects—but they’re not going to aspire to replace the market, or complain about how awful it is that economic activity is so disorganized and uncoordinated. The three lessons they ought to learn are: first, remember that the choice is never between the existing market and the ideal regulation or the ideal intervention. It’s between the existing market and the politically likely regulation or intervention. Second, remember that egalitarianism’s moral force ought to be global, and therefore that the egalitarian has the most reason to favor openness to trade and immigration. Free trade is, along with religious freedom and the rule of law, one of liberalism’s three founding commitments, and classical liberals can help call our egalitarian friends back to their best selves by reminding them of that. And, third, remember that the exercise of coercive power tends not to be done in the interest or for the benefit of the powerless, and that often limiting state power is the most progressive policy. The American War on Drugs and the resultant criminalization of vast portions of America’s poor is the most dramatic of examples.

From the egalitarian liberal, the classical liberal has probably not yet learned any of the necessary big lessons. But I will focus on two. The first is that where distributive effects from deliberately enacted policies are inevitable, and they often are, it is better that those effects be progressive rather than regressive. At any given level of spending, we have moral reason to prefer that the spending alleviate poverty and suffering rather than that it be wasted. The view of the big-government right has been that spending on the rich didn’t count as spending, and that state-corporatism could still claim the mantle of the market. The Bush administration’s drug benefit is a spectacular example—huge government spending, but so long as it’s arranged to subsidize a corporate sector rather than to alleviate need among the poor, it doesn’t really count. Classical liberals need to be able to say that there is principled reason to prefer progressivity to regressivity and corporatism, alongside the principled reasons to favor smaller government over larger. We will not always be able to have a government that is both smaller and more progressive—but we will sometimes, as we have for the past eight years, have government that is neither, and that suggests that it’s possible to make some pareto improvements from the joint perspective of egalitarian and libertarian liberals.

For the second, I’ll note that Friedrich Hayek considered the rule of law to be such an attractive and foundationally liberal concept that he attempted to subsume most of his political theory under its rubric. I think he was right about some of that, though not all of it. But the analogical extension of the rule of law to cover questions of economic policy depend on the conceptual core of the rule of law being intact: the separation of powers, constraints on executive authority, due process, and all the rest that Hayek wrote a marvelous history of in the middle of Constitution of Liberty. This allows me to draw the theoretical point back toward the contemporary moral point with which I began. The rule of law, the subjection of the executive to law, and the protections of the due process of law—these are accomplishments that it is easy to take for granted but that are always fragile. Their defense and vindication is the common cause of liberals of whatever stripe.

Espressotarianism

I've made pretty plain that I'm not voting Libertarian in this presidential election, though I wish Barr and the LP well and wish them many votes. I've voted Libertarian for President several times, and will vote Libertarian downticket when possible this year. I'd be thrilled to see Barr win 49.9% of the vote and crush McCain for second place. But I don't will that Barr be elected president, and that prevents me from voting for him.

But this sure does warm the cockles of my heart, and is the sort of thing that couldn't be allowed to go unnoticed on this blog.

He is fifty-nine but has the stamina of a college freshman—he consumes up to fifteen shots of espresso a day, typically in five-shot installments.

By contrast, the guy I'm actually voting for sometimes smokes cigarettes. If I were voting with the "people who remind me of me" standard that, for example, people invoke when explaining their support of Sarah Palin, then the fact that Obama and I have both taught courses at Chicago Law might well be trumped by the difference between cigarettes and 15 shots of espresso per day.

(At some point I'd like someone to ask some voter who invokes the "people who remind me of me" standard about the arrogance and narcissism of it-- what makes you so great that similitude to you is a relevant criterion for the presidency? I know that there are answers to the question and defensible reasons for identity-politics voting: "people who remind me of me are more likely to take the interests of people like me into account, and I think people like me are unjustly neglected by a system dominated by liberal elites/ whites/ Christians/ the professional class/ etc." But even when those reasons are adequate ones, there's often also a level of narcissism that goes unexamined. But now I've wandered far off-topic.)