Banana republicanism

‎"Special law" is every bit the contradiction in terms that "student strike" is. Emergency decrees and bills of attainder aren't laws, and I won't be referring to Bill 78 as a law except in scare quotes.

On the other hand, my patience for playing along with the phrase "student strike" ran out as of the UQAM protests this week, when the protesters prevented students and professors from meeting together for educational purposes, screaming "scab" at the students who wanted to attend class. Calling it a strike means calling the students who want to attend class scabs, and calling their attempts to attend class illegitimate, so I won't be doing that either.

So, that said, some first impressions of the proposed decree.

1. Section III is entirely illegitimate. I don't know whether it passes Charter review; I am not a Canadian lawyer. But it is an absurdly draconian violation of freedom of assembly and indeed freedom of movement. It's police state stuff, unworthy of a free society.

2. Section V.29 multiplies the reach of every other punitive and prohibitionist part of the act, so much so that it renders Sections III IV, and V as wholes illegitimate. It amounts to the category of conspiracy-by-omission. It means that not only anyone who talks to student protesters or protest leaders over the next several months is vulnerable to prosecution, but that even avoiding them won't keep you safe. Again, police state stuff.

3. If one were to detach V.29, Section IV and the rest of Section V start to look more complicated. They skirt awfully close to the line of being a bill of attainder; they're certainly not a normal case of lawful governance. But the boycott has created a legally strange situation. The boycotters, calling what they're doing a "strike," assert a collective democratic right to prevent students and professors from carrying on classes. But the concept of a student strike is unknown to Quebec law. That doesn't mean that it's illegal; it's not prohibited, and in a a free society that which is not prohibited is allowed. But striking is not only a refusal to do something; it is also an assertion of the authority to prevent others-- "scabs"-- from doing it. That makes it less like "assembly" and "speech" and more like "contract" or "will," come the moment when the beneficiary of a contract or a will seeks to take possession. In order to maintain peace and keep clear on what everyone's rights are, we normally rule out self-help and don't treat "contract" or "will" as things that one can just be left alone to do. They're powers partly constituted by law, exercisable in ways described and prescribed by law.

If I say that you and I had a contract, but it was oral and unwitnessed, and I try to seize the goods to which our supposed contract entitled me, you call the police to protect yourself and your goods. To that, it is insufficient on my part to say "unwitnessed oral contracts aren't prohibited." What I say is true, but it's also true that an unwitnessed oral promise does not rise to the level of "contract" that legitimizes coerced performance. Your right to carry on unmolested by me is something about which the law can't just be agnostic.

In a strike-as-constituted-by-the-labour-code, employers and would-be replacement workers have their freedom of action limited. The strike isn't just an action by the workers; it's an authorized limitation on others. The student unions, purporting to strike, have tried to self-help their way into that same ability to limit the actions of others. The law can't just be agnostic about whether students who don't wish to boycott may attend class unmolested, whether universities may protect their classrooms from disruption and protect access to them. And since this is not a legally-constituted strike, the legal answer is that those who wish to carry on with their educational activities are free to do so. Injunctions to protect their access, like legal action to prevent me from carrying off your stuff that I say you promised me, look aggressive but are legally defensive, defending the legal freedom of those the protesters want to characterize as "scabs" but who are not in a legal position like the would-be replacement workers during a labour strike.

The injunctions have been flouted; and protesters have repeatedly created situations where police have to choose between not protecting the rights of universities, professors, and dissenting students or trying to coerce large determined crowds of protesters. When they opt for the latter, they use the ugly and abusive tools of riot control against people who were not rioting but who were obstructing the legal rights of others, en masse. There is no peaceful way to move hundreds or thousands of people who do not wish to be moved. And there is also no rule that whatever hundreds or thousands of people together want to do must be legitimate. This has been the paradoxical situation of the last several weeks in particular. The police have been first to use violence, at least large-scale violence, over and over again; but that doesn't mean that the injunction-flouting protests were legitimate.

I don't know enough about Canadian civil procedure to know why contempt of court proceedings couldn't be used to do what Section IV of the emergency decree tries to do: coerce the unions through crippling financial penalties in order to try to stop having to violently coerce the bodies of protesters. That would be preferable to this kind of legislative action. But some attempt to hold unions responsible for protests that flout injunctions and disrupt the legal freedom of others does seem legitimate, and preferable to constant situations that can be resolved only through police violence or through abandoning the freedom of third parties to the whims of the protesters. The unions are creatures of Quebec law, with power granted by law to compel dues payment from students; but they have helped themselves to an authority that isn't granted by the law that creates them, and when others have ignored that supposed authority have freely encouraged lawless response. It's awfully late in the day for their leaders to discover that "social peace" is at risk. Their attitude toward injunctions and toward the rights of universities, professors, and dissenting students has been one of "contempt for the rule of law," as Bernard Amyot, former president of the Canadian Bar Association put it. That doesn't excuse the government from blame for its own abandonment of the rule of law in the new emergency decree.

As with the ban on masks, illegitimate behavior by the protesters is going to met by an illegitimate response, deeply restricting what should be protected freedom of expression. Section III and Section V.29, like the ban on masks, are opportunistic expansions of state and police power far beyond what is needed, or what is compatible with liberal freedom. And Section V.29's multiplier effect on the rest of the act pushes all of Sections IV and V into that category. But for the student unions to suddenly appeal to the rule of law and freedom of assembly when they've scorned those for everyone else is a bit much. The upshot is a lot of damage all around to Quebec's ability to function as a free society.

Update: While I was writing this post, the Montreal city council unsurprisingly passed the awful ban on masks. Kafka-esque question-begging of the day:

The leader of one of the city's opposition parties, Louise Harel, asked for clarification on whether scarves or bandanas worn by protesters protecting themselves against chemical irritants or tear gas would be included in the ban.

A lawyer for the police insisted those scarves are considered masks under the bylaw. The reasoning is, according to the lawyer, that if tear gas is being deployed, the demonstration has already been declared illegal.

Perspective

Two days ago I sent a grumpy note to a Canadian granting agency about some isues in the grant adjudication process. Yesterday I griped all day about FQRSC/ SSHRC/ Common CV forms. Nothing quite like having the US House of Representatives vote to defund NSF funding to one's whole discipline to put the Canadian annoyances into perspective.

Masks

I talked with CBC Radio One about the problems with banning masks during protests. I think there are exceptional cases in which such bans can be temporarily and locally legitimate; but they need to be constructed a lot more narrowly and carefully than either the proposed Montreal or the Canadian federal bans have been. I managed to avoid talking about masked characters in comics, whether The Avengers (though that might have boosted my ratings) or V for Vendetta. Update: See also this CTV clip.

Congratulations...

to graduating senior political theorist and RGCS student fellow Mylène Freeman, newly elected NDP MP for the Quebec riding of Argenteuil--Papineau--Mirabel!

The Tory-PQ Alliance

The Parti Quebecois is riding high in the polls at the moment, though a provincial election is a long way off. And it seems to be filled with enthusiasm and vigor at the moment, coming off its convention this weekend-- though I can't say that I find the 93% vote in support of Pauline Marois to be quite so impressive as it's being made out to be. It sends the signal "in the face of a possible victory in the medium-term future, we are capable of acting as a basically unified and functional organization and not undermining our leader for no good reason." That's better than the PQ has sometimes done in the past, but it's not a dazzling accomplishment.

I fear that the real boost to the PQ's fortunes right now is coming from elsewhere: the Harper campaign.

To a first approximation, the median Quebec voter wants recognition as a distinct society, an advantageous fiscal relationship with Ottawa, and *not* to secede, have a vote on secession, or back into secession by a forced confrontation. That translates into a preference for voting for the Bloc as a substitute for voting for the PQ. The Bloc and the PQ are allies, of course-- but they are also rivals, in that the Bloc's success in extracting concessions at the center undermines the PQ's claim of urgency within the province. Voting for the Bloc thus becomes the safety valve, releasing nationalist-secessionist pressure and dampening fervor for the PQ and for secession.

As far as I'm concerned, this is a healthy dynamic. I don't like the Bloc; but I view them as a desirable feature of the Canadian political system, keeping pressure on the center to accommodate Quebec, and thereby keeping federation tolerable for Quebec.

But that dynamic only works if the Bloc is perceived to carry some weight in Ottawa. A Harper majority, and especially a Harper majority won on the basis of a nationwide attack on Quebec secessionist sentiment as manifested in support for the Bloc, will leave the average francophone Quebec voter with a sense of not having a voice, of having the desire to be maitres chez nous delegitimized in Canadian politics. Even if Harper doesn't win his majority, he's contributed to that delegitimation by making the thought of a de facto coalition with the Bloc anathema.

That can only be good for the PQ, two years out.

Hey, look at that

Now that the earmark bans are in place, it's evident to everyone that earmarks affect spending levels.

When House Republicans were searching for cuts to offer Senate Democrats as part of a temporary spending plan to avert a government shutdown, they were able to reach into accounts set aside for earmarks and find nearly $2.8 billion that would have previously gone to water projects, transit programs and construction programs. No earmarks, no need for that money, and the threat of an imminent shutdown was eased.

Lawmakers said the absence of earmarks also allowed for a more freewheeling debate on the House floor during consideration of the Republican plan to slash $61 billion from this year’s budget since Democrats and Republicans were not caught up in protecting the special provisions they had worked so hard to tuck into the spending bill.

“This is a completely new experience, and a good one,” said Representative Jeff Flake, an Arizona Republican who had lost scores of attempts on the House floor to strip earmarks from spending bills.

While spending on earmarks is a tiny portion of the budget, critics like Mr. Flake and Mr. Boehner said they played an insidious role in pushing up federal spending through what is known in legislative terms as logrolling.

Top members of the Appropriations Committee might, for instance, grant a lawmaker’s request for a few million dollars for an important project back home. That lawmaker would then be obligated to support the entire multibillion-dollar bill despite possible reservations. Woe to the person who gets an earmark and then opposes the bill; chances for a future earmark would be somewhere between zero and none.

“You get millions for an earmark and end up voting for billions of dollars that you may oppose,” said Steve Ellis, a vice president at Taxpayers for Common Sense, a government watchdog group.

(For previous discussion, see here.)

Political bias in academia, revisited yet again

Lots of people who should know better seem to be excited about this silly John Tierney article on this Jonathan Haidt presentation about political bias in the academy.

Haidt has taken things that surely by now everyone knows about politics and the academy-- e.g. that the professoriate leans left compared to the American populace as a whole-- and dressed them up in various bits of metaphor and jargon. Some of the metaphors are good ones; I like the magnet image. But they're metaphors, not evidence. Throw in what on usenet we once would have called ObLarrysummers, and the cute fact that it's social psychologists in the audience-- people who think of thesmelves as good at analyzing patterns of bias!-- and we're done. We have a just-so story about the evolution of taboos around topics having to do with race and gender straight out of the political correctness wars circa 1992, retold in a way that emphasizes what's supposed to be clear as soon as one says "taboo"-- that there's something magical and superstitious rather than rational about it.

But here's what we don't have:
1) Any meaningful new evidence about the political imbalance in the academy.
2) Any meaningful evidence at all of bias.
3) Any attempt whatsoever to sort out the competing explanations for the political imbalance that are the heart of any serious conversation on the topic.

Stipulating that the academy skews left compared with a random population sample (which is what Haidt's facially meaningless phrase "statistically impossible lack of diversity" actually means), we are always faced with the question of why. Random population samples are, after all, not something one usually comes across in daily life; even professional opinion pollsters trying to get such samples have real trouble doing so, because, e.g., the people who own landline phones, as opposed to no phones or only cell phones, aren't a random population draw, and if you survey using the phone book you'll get a skewed sample.

The common explanations:

1) Initial self-selection. Different careers reflect different mindsets and values, and the sorting into those careers early in means that there's no reason to expect them to look like random population draws. No one is surprised when the military skews right or the Peace Corps skews left. There's probably some sorting as between, say, those who go into business or finance of various kinds out of college and those who pursue PhDs. This point can be put in a value-neutral way, or said with whatever sanctimonious inflection one likes. "Conservatives are practical, and practical people go into business, while head-in-the-cloud unrealistic people want to go into an ivory tower." "Liberals believe in critical thought and reasoning, so they are naturally attracted to careers that value it; conservatives don't like having their assumptions questioned, so they naturally turn away from intellectual careers." Note that one has to go through another round of this in order to think about why any one discipline is politically skewed: economists, engineers, philosophers, and literary theorists are plausibly different groups of people to begin with, and they sort themselves out accordingly.

2) Selection and screening mechanisms. The favorite sanctimonious left-wing explanation for why there aren't conservatives in the academy is that the academy's various hurdles, from grad school admission onward, screen for intelligence, and conservatives are less intelligent people.

3) Change over time. The second-favorite sanctimonious left-wing explanation is that academics, who might start out with no real political views at all, are influenced by evidence and argument, and these favor movement toward the left, or at least toward a point farther left than the American median. Sometimes this is distinctively about the post-2001 years, but sometimes not. Common symptoms of this argument are the mindless repetition of John Stuart Mill's comments about conservatives being stupid or Lionel Trilling's "irritable mental gestures." Equally uninteresting is something like this: university professors, with their tenure and their taxpayer-funded salaries become left-wing because they resent their dependence on hard-working productive people who have real jobs; they spend their whole lives cut off from and failing to learn about markets, competition, and business, so what do you expect?

4) Bias-- whether unintended (the hostile environment "locker room talk" Haidt discusses) or intended ("don't tenure him, he's a Republican."). These are meaningfully different from each other, but both are problematic.

Sorting these out requires hard longitudinal work. When, in the decades from freshman year of college to tenure, does the political skew get introduced? Are conservatives disinclined to enter a given discipline at all, maybe just because they're disproportionately more interested in other things? Trying to enter the discipline but failing because they're not smart enough? Entering the discipline but becoming more left-wing over time? Trying to enter but dropping out because they're discouraged by groupthink? Or trying to enter but being kept out by overt bias? The answer may be "some of each," of course, and the dynamics may feed on each other-- but that's a hypothesis in its own right.

A slice-of-time show of hands at an academic conference in response to the question "who here is a conservative?" does absolutely nothing to sort any of this out. Neither does a google search on the phrases "liberal social psychologist" and "conservative social psychologist." Those two data only show what we already knew: the professoriate skews left. The two solicited anonymous e-mails complaining about uncomfortable environments provide anecdotal support for "unintended bias," but, well, not very much. And the cute fact that the presentation is being offered to social psychologists who study the emergence of bias in groups has some nice rhetorical effect in the room, but still doesn't add any insight.

I freely admit that sorting these questions of causation out is extremely hard. But anyone who claims to be talking about this subject and doesn't even acknowledge them, to say nothing of trying to solve them, hasn't added to our knowledge, and certainly hasn't provided any reason for supporters of the bias hypotheses to run around claiming vindication. The fact that the presentation (note: not an article, not a paper, a power point presentation at a conference) got a NYT write-up from a sympathetic columnist doesn't make it any more of a contribution to our knowledge.

Earmarks revisited

Harry Reid is trying the "earmarks don't increase spending" line. I commented on that idea here.

Note toward a future blog post

Bradford Plumer, like Matt Yglesias, is a fan of the Chinese idea (I'm taking it for granted that they're right about this, I don't know it myself) of having good mayors promoted up through the mayorly ranks.

If the mayor of a small city—say, out in China's provinces—does a good job, then when his term is up he may get appointed as mayor of an even bigger city. Being able to govern a city is a useful skill, after all, so why not people who have shown some talent at it move up and try their hand at governing bigger cities, rather than restricting the job to whatever local dogcatcher can prove residency? Maybe voters don't want meddling outsiders. But they can make that choice themselves, no?

Sounds good. But I'll go with "no." In the American party system I'm thinking that turns mayorships into almost purely patronage positions. Every medium-sized city mayor in America decides to try to succeed Daley. Who will win? Well, there will be a Democratic primary to decide it. But with dozens of potential candidates who are poorly known to the local voters, someone is going to do some serious vetting: the incumbent's machine, or the governor if of the same party, or US Senators if of the same party... or the President if of the same party.

The U.S. has some 50,000 municipalities. The coordination problem of hundreds or thousands of mayors trying to move around the country and up the totem pole, when the voters "hiring" them in this odd labor market can't possibly have information about most of them, are huge. So, formally or informally, we'd end up with the Chinese model: the party hierarchy would provide the coordination.

American urban government is often nothing to write home about. But I'm unpersuaded that it would be improved by concentrating selection in the national political parties; and I think that's what this would necessarily amount to.

Cass Sunstein in the news

As part of its effort to mend fences with business, the Obama administration has ordered of a review of regulations to seek "the proper balance," trying to "ensure that regulations protect our safety, health and environment while promoting economic growth" and to remove "outdated regulations that stifle job creation and make our economy less competitive." "Per a senior administration official, OMB Director Jack Lew is overseeing this effort, and it will be run out of Cass Sunstein’s office at OMB."

Left-leaning groups are predictably worried, and respond as if the mere notion that a regulation could be economically harmful is some kind of vile Republican lie.

Note that Obama's op-ed named just one example of overregulation, already repealed: the classification of saccharine as hazardous waste by the EPA. And it foresees new or stiffer "safety rules for infant formula; procedures to stop preventable infections in hospitals; efforts to target chronic violators of workplace safety laws." The emphasis of the piece is hardly on any claim that in fact there is too much regulation in any area. The tone is generally one that says "we've been doing things basically right and now we will confirm that with a self-audit."

I predict that almost no regulations will actually be repealed as a result of this, except in cases of conflict or redundancy with other regulations. I'm sure that compliance requirements can be simplified in many cases, and that we'll hear triumphant accounts of that: "Small businesses used to need to fill out 13 forms to do this; that has been reduced to 3." Almost any complex bureaucracy accumulates surplus paperwork requirements, and there are always reductions that can be made there just by deciding to look for them. But don't expect any sweeping round of deregulation here. Something more like Gore's "reinventing government" is the most to expect: basically worthy housecleaning, important to do every so often, but not at all fundamentally transformative of the regulatory balance. This is an effort to "change the tone," not to change the state.

Indeed, the Executive Order itself explicitly says "This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866 of September 30, 1993"-- that is, the original order establishing the Reinventing Government initiative. It's a reaffirmation and refinement of existing practice. The greatest novelty is the order that each agency develop a plan for the periodic review of past regulations; but it seems that the reviews will be conducted by the agencies themselves, which already could have proposed changing their past rules had they wanted to.

One question, though: doesn't the new order mandate what Sunstein's office was supposed to be doing all along? He's a very energetic guy who likes to work long hours, and he was confirmed a year and a half ago. The Federal Register only grows by a couple of hundred pages per day, which is about his writing pace. Hasn't he already completed this review?

Update: See als these comments from Eric Posner.

Earmarks

The idea is rapidly spreading that a ban on earmarks doesn't affect spending, since earmarks are a way of distributing what's already been appropriated.

This is just true enough to be clever, and marks the speaker as being more sophisticated than those Tea Party rubes. But it's basically false, for three reasons.

First, it is more expensive to do things inefficiently than to do things efficiently. Building the Ted Stevens Bridge To Nowhere or the Robert Byrd Gold-Plated NORAD Auxiliary High Command Of West Virginia means that money has simply been wasted, and that all the needs that weren't met this year will arise again next year. If the real needs exert at least some pull on appropriations levels, then wasting money rather than spending it wisely at time 1 does affect appropriations at time 2. The U.S. gets very bad value per dollar of federal infrastructure spending, in part because earmarks screw up the ability to prioritize projects. That doesn't increase the appropriations at time 1; but it does tend to drive them up in every later year. Similarly, when earmarks keep alive weapons systems that the Pentagon wants to cancel, because the defense appropriators in Congress view the defense budget as a jobs program, the Pentagon shrugs its shoulders and increase its request the following year; it's not going to let the wasteful jobs-program part of the budget displace its own military priorities.

Second, bills often emerge out of House-Senate committees with higher appropriations levels that have the express aim of smoothing passage with earmarks.

But third, and most important: the earmarking members of Congress are the same people who set the appropriations level. And by this I don't only mean that they're members of the House and Senate; I mean that they're powerful members of the relevant committees. Ted Stevens and Robert Byrd took turns chairing the Senate Appropriations Committee. The knowledge that they were going to have a chance to start shoveling pork a little bit later in the process affected how much they appropriated at the beginning.

The idea that earmarks don't affect spending levels rests on a crazy image of how appropriations levels are set. We don't have one set of legislators who are dispassionate, disinterested judges of how much money needs to be allocated, who are then later on replaced by a bunch of grubby politicos deciding how to divvy up the spoils. Neither do we have legislators who, during their initial appropriations deliberations, somehow forget that earmarking comes later. Instead, we have normal human legislators throughout, responding to their incentives and environment. It would take a kind of saintly self-denial for them not to increase the initial size of the pool knowing that they were going to get a chance to give themselves a share later on.

Republican earmark supporters have been saying that abolishing earmarks transfers allocation authority to the dreaded Obama Administration. Well, yes. And if you tell a bunch of Republican legislators to decide how much money to give to the Obama administration to allocate, they'll come up with a smaller number than if you tell them to come up with an amount for them to divide up among themselves to allocate. Indeed the same holds true for members of the President's own party.

Earmarks aren't themselves a lot of money in the grand scheme of things, and abolishing them entirely would only make a tiny dent in the deficit. But they do indeed affect appropriations-- and my hunch is that they affect appropriations for more than their actual cash value, because they create a system that attracts appropriators like Byrd and Stevens, who err on the side of spending too much to make sure there's enough to go around.

Picking sides

David Boaz on Vaughn Walker, the judge who struck down Proposition 8

In other words, this “liberal San Francisco judge” was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups. It’s a good thing for for advocates of marriage equality that those forces were only able to block Walker twice.

H/tWill Wilkinson.

A belated mea culpa

This is roundabout; bear with me.

Matt Yglesias highlights a story about the closure of Walter Reed hospital, and notes the existence of regulations on how the land may be used. In short, the land may be conveyed directly to government agencies or various kinds of non-profit entities that submit proposals for it. It cannot be auctioned or otherwise sold to the private market.

Matt notes-- rightly-- that this is weird.

What on earth is the purpose of rules of this sort? Why not sell the land and earmark the money for these worthy purposes? That would seem to make everyone better off. You don’t see that many examples of truly pareto optimal policy changes out there, but this is one. No nefarious interest I can think of benefits from this arrangement, it’s just wasteful for no reason. And it comes up in DC all the time because a similar rule applies to a bunch of long-vacant school buildings we have.

I didn't know about these rules, and probably would have thought no more about it if not for the fact that he quoted David Alpert's reference to the regulations as "federal base closure rules." (Walter Reed is, after all, a military installation.)

Uh-oh, thinks I.

A little reading later, I believe I owe the following apology:

In 1988, the Pease Air Force Base on the edge of my hometown had been slated for closure, and it was shuttered in 1991, at important savings to the federal government and important anti-stimulus for the local area during the early 90s recession. The land was transferred to a QUANGO, the Pease Development Authority, which spent its first few years trying and failing to attract high profile firms to come use large amounts of the land all at once. In the meantime, a huge chunk of real estate and infrastructure sat basically vacant.

In 1992 (at the ripe old age of 21) I ran for the New Hampshire House of Representatives, as a Libertarian. And my distinctive policy proposal was: break up the PDA, stop trying to land the One Big Firm that would come replace the Air Force as a dominant employer, and allow the base to be parceled and auctioned. Market-led base redevelopment rather than local-politico-led posturing.

It's now pretty clear to me that this would have been impossible under federal law, and that the PDA/ tradeport model was as close as any local authorities could come to letting commerce take hold there. (At least they didn't turn the base into a megaprison complex.) Doesn't mean it was a good model, and almost twenty years later I still think there's underutilized capital there. But it would have been wholly outside the New Hampshire legislature's authority to fix this.

Of course: 1) No one else seemed to know this, either; certainly, my opponents never slapped me down as an ignorant kid who didn't know the rules. 2) I was a 21-year old third-party candidate running against two Democratic incumbents in a solid Democratic (two-seat) district. I wasn't ever going to win. 3) Had I won, I would hardly have been the most ignorant member of New Hampshire's 400-person part-time lower legislative house, or the first to find that the thing they'd talked about on the campaign trail couldn't be done.

Nonetheless: I apologize to the voters of my then-district, and to my opponents in that race. I spent several months arguing something on the basis of insufficient information, and making claims that it turns out were false or impossible.

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.

The Queen's Speech

"My government will invest in new high-speed broadband internet connection," spoken by an 84-year old woman wearing an actual ginormous crown in imperial purple sitting on an actual throne.

I'm sure that to Commonwealthers the theater (theatre) of the Queen's Speech (or its viceregal equivalents) is old hat, but this is the first one I've ever actually watched. It strikes me as wonderfully odd. It seems undignified for the Queen to have to read a first-person speech written by some newly-elected politico and simultaneously undignified for the elected leader of a great power not to be able to deliver his own agenda to Parliament, and just wildly incongruous to have the longest-serving head of state in the world (is that right?) wading through a detailed list of bills to be introduced ("alcohol-related violence!") and through boringly jargony catchphrases. And yet it all works-- I enjoyed it more than I've enjoyed a State of the Union, like, ever.

I especially liked that the official statement of the government's agenda doubles as the Queen's Christmas card/ annual letter ("The Duke of Edinburgh and I look forward to our visit to Canada in June").

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.

"Worthwhile Canadian initiative"

FIscal restraint through spending cuts, says Tyler Cowen in his NYT column.

(I'm curious: do my Canadian readers recognize the "initiative" joke?)

I've been known to complain...

I've been known to complain about Phi Beta Cons, the uninteresting National Review blog about higher education. I can easily imagine a place for a website filled with smart and well-informed conservative commentary on the academy, and I think it'd be a useful thing. But it would have to not consist of endless complaints about all forms of affirmative action save for alumni preferences and football admits; whines that Very Serious Studies by National Review freelancers aren't making it onto college curricula; jokes about political correctness that were the state of the comedic are in 1990 or so; and griping that the kids these days are having the sex.

There's lots of talk about the student-loan reform at PBC right now, little of it enlightening in the slightest. But at least it's not PBC, but rather The Corner, that came up with this gem. Republican Senator Lamar Alexander issues a bunch of dull talking points about the reform, and how it turns everything over to the government. He predicts that it will lead to something

more like a Soviet-style, European, and even Asian higher-education model where the government manages everything. In most of those countries, they’ve been falling over themselves to reject their state-controlled authoritarian universities, which are much worse than ours, and move toward the American model which emphasizes choice, competition, and peer-reviewed research. In that sense, we’re now stepping back from our choice-competition culture, which has given us not just some of the best universities in the world, but almost all of them.

So: "Soviet-style" is clearly in there for polemical value. But The Corner headlines the post "Alexander: Obama's 'Soviet-Style' Takeover of Student Loans." Alexander's comparing the predicted system of higher education to the Soviet system. But the headline makes "Soviet-style" into a description of the "takeover"-- i.e. a violent nationalization without compensation.

Notice that banks would be free to continue to make student loans. And they're not having their existing assets taken. All they're losing is the ability to make publicly subsidized student loans in the future. A comparison with Soviet nationalization is just nuts. And it's not even what Alexander said.

Anyway, the headline-post gap wasn't what first struck me about this. Neither was the surrender of National Review to being the microphone handed to current Republican office-holders. Rather, it was this:

Back in the days of the Savings and Loan crisis, and again in the days of Freddie Mac and Fannie Mae, we saw lots of commentary from the right that the problems couldn't be blamed on the free market. After all, in both cases massive moral hazard had been created by federal guarantees underwriting the debts, eliminating market discipline. Pains were taken to piously distinguish the free market from corporatism and corporate welfare (a distinction I take very seriously, I might add).

In the last two weeks, I haven't seen any Republican official or Republican-leaning intellectual make the slightest reference to the problems with a system in which private lenders make risk-free profits by lending on the back of a federal guarantee. The indictment of corporate welfare has been nowhere to be found. The view that there's something distinctively unproblematic about private lenders with public guarantees has been completely lost. And the (misleading) headline, the reference to a Soviet-style takeover, crystallized this for me. Since there's been no crisis in student lending, no collapse of the system, the status quo ante has been naturalized; there are people on the right who think that the subsidized revenue streams to which lenders had become accustomed were a kind of property that has now been seized. The ex post commentaries on FSLIC and Franny and Freddie have been forgotten.

Update I missed this post from the estimable and independent-minded Reihan Salam.

A health-care reform thought

The rightward shift in crime policy and welfare policy of the mid-1990s-- basically, welfare reform plus all the Giuliani-era policing improvements-- ultimately benefited Democrats. They stopped the fearful exodus of whites from the party by undermining the two great pathologizing narratives about blacks.

I wonder whether something similar could happen with health care reform. One important source of working-class and middle-class resistance to creative destruction and freer markers over the past couple of decades has been the terror of losing health insurance along with a job, especially but not only for those whose families include someone with a preexisting condition. If a period of unemployment or self-employment lasted longer than COBRA benefits, it became very frightening regardless of savings in the bank or the profitability of the new self-employment; and any job turnover at all was very problematic for those with pre-existing conditions.

I wonder whether health care reform will take some of that fear away, and so make the prospect of turnover seem less like a potentially-mortal threat. No one's going to welcome losing their jobs! But the intensity of opposition to, say, free trade agreements might diminish.

Notice this is not a story about Republicans benefiting because of a backlash against the bill; rather, it assumes that the bill, like all entitlements, will be untouchable and will therefore fade into the background.

Update: Another, ;largely-unrelated, thought, about the relationship between the new law and the insurance industry's self-interest.

This turns the US health insurance industry into something a lot like the water, gas, phone, and electricity utilities in the US between the Progressive era and 1980. They're private and more or less guaranteed a rate of return to capital, but the terms on which they provide service is much more tightly regulated, and will approximate being universal. This is a somewhat unappealing model for lots of reasons; it manages to be pro-business and pro-capital while also being anti-innovation and anti-entrepreneurship. The moves of the late 70s and early 80s away from this model were largely desirable. But the utility model has its (so to speak) utility; it provides private capital for the industry, provides widespread coverage for consumers, and provides at least a little competition and innovation. Indeed the health insurance version will have somewhat more competition than the post-Progressive Era version, since it will lack the enforced protection of allegedly-"natural" monopolies. Insurance industries will still be in competition with each other, albeit in a more constrained way.

Thoughts on prorogation, of various levels of seriousness

1) "Plus de 100 intellectuels dénoncent la prorogation". Daniel Weinstock's letter charging Stephen Harper with betraying democratic principles and constitutional norms gains widespread support among legal scholars, philosophers, and political scientists.

2) The silver lining: via the Gazette, a list (scroll to the bottom of the page) of the bills that were in progress during the 2009 session of Parliament that are now scuttled. Prorogation wipes the pending legislation from the last year out, undoing or at least delaying a substantial portion of the government's legislative agenda.

Among the 'losses' are, most importantly, new mandatory minimum sentences for drug offenses (C-15), but also a bunch of expansions of police powers (C-19, C-31, C-34, C-46, C-47, C-55) and a bunch of the kind of "cracks down on" and "close criminal loopholes" legislation that I consider guilty until proven innocent (C-27, C-35, C-36, C-42, C-43, C-45, C-52, C-53, C-54, C-58). Anything that sabotages Canada's march toward American-style narcotics policies can't be all bad.

Looks to me like the only serious losses on the list are the FTA with Jordan and the end of Canada Post's monopoly on international first-class mail. On net, a win. After all, "no man’s life, liberty, or property are safe while the Legislature is in session" (attr to Mark Twain, but apparently predating him.)

3) Some thoughts from the revolutionary tradition that was rejected by the Loyalist ancestors of many of today's anglophone Canadians.

John Locke:

Sec. 155. It may be demanded here, What if the executive power, being possessed of the force of the common-wealth, shall make use of that force to hinder the meeting and acting of the legislative, when the original constitution, or the public exigencies require it? I say, using force upon the people without authority, and contrary to the trust put in him that does so, is a state of war with the people, who have a right to reinstate their legislative in the exercise of their power: for having erected a legislative, with an intent they should exercise the power of making laws, either at certain set times, or when there is need of it, when they are hindered by any force from what is so necessary to the society, and wherein the safety and preservation of the people consists, the people have a right to remove it by force. In all states and conditions, the true remedy of force without authority, is to oppose force to it. The use of force without authority, always puts him that uses it into a state of war, as the aggressor, and renders him liable to be treated accordingly.

Thomas Jefferson:

[among King George III's long train of abuses justifying revolution are that] "He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

"He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within."