Positive Liberty

One of the talking points of the wingnuts is America is a republic not a democracy. Although a few folks I respect have said such (notably Walter Williams), most folks who parrot this line don’t know what they are talking about. America is and was founded to be a democracy, a liberal democracy in fact. “Democracy” simply means “voting” — if there are legitimate elections, then there is “democracy.” (If the elections are a sham, then it’s a “banana republic” so to speak.) America’s Constitution provides for elections, ergo America is a democracy. The term small l “liberal” simply means there are individual rights that majorities cannot abridge. So that’s liberal democracy in a nutshell. Elections by the majority with individual rights that the majority cannot abridge. Continue Reading »

Civil asset forfeiture, meet copyright enforcement.

Because, you know, asset forfeiture just works so well in stopping illegal drugs. Here’s the text of the bill.

Yikes.

Mildred Loving has died. From the Washington Post:

Mildred Loving, a black woman whose challenge to Virginia’s ban on interracial marriage led to a landmark Supreme Court ruling striking down such laws nationwide, has died, her daughter said Monday.

Peggy Fortune said Loving, 68, died Friday at her home in rural Milford. She did not disclose the cause of death.

Loving and her white husband, Richard, changed history in 1967 when the U.S. Supreme Court upheld their right to marry. The ruling struck down laws banning racially mixed marriages in at least 17 states.

They had married in Washington in 1958, when she was 18. Returning to their Virginia hometown, they were arrested within weeks and convicted on charges of “cohabiting as man and wife, against the peace and dignity of the Commonwealth,” according to their indictments.

Farewell to a courageous and exemplary American, one who continued until the end of her life to stand up for what she believed in.

You’ve probably already seen the YouTube videos. If not, Julian Sanchez is the source to start with:

…a friend—whose name I’ll omit for the moment — just got arrested at a little dance party some libertarians were holding at the Jefferson Memorial (which, apparently, is open to the public 24/7). I’m not entirely clear on what the charge could have been — I wasn’t aware dancing at a public monument was prohibited by any statute — but given that my friend’s immediate social circle is largely composed of journalists, bloggers, and constitutional lawyers who sue the government for fun, I predict hilarity. The purpose of the dance party, ironically, was to celebrate Thomas Jefferson’s birthday.

Yes, yes. And they captured the arrest on video, too. The participants were all wearing iPods, so noise wasn’t a factor. Reports have it that — am I allowed to mention her name yet? — was sober when she was arrested, too.

It’s a little late for this year’s, but let me suggest nominating the incident for next year’s Muzzle Awards. Via Eyeteeth, the Thomas Jefferson Center for the Protection of Free Expression brings us this year’s winners. The current crop isn’t bad as outrages go, but I have to say that it would be hard to beat the irony factor of being arrested at the Jefferson Memorial.

I’ve been summoned for jury duty.

Continue Reading »

Okay, so deep down inside I also think this is funny as hell and, yeah, I came across it on one of those weird news aggregators.

Except it’s not funny.

Herewith, a niche market: a greeting card line for prisoners.

For example, just like the nephews whom you feel guilted into slipping a few bucks into a cash card for when the family gets together for Christmas, now you can send your imprisoned friend or loved one a “Money On Your Books” card reading “I just wanted to tell you that I put some money on your books. Take care.”

For the record, I have absolutely no problem with incarcerating violent and dangerous criminals and I laugh out loud every time I read some asinine story in the New York Times or Washington Post bemoaning the ‘inexplicable’ fact that the prison population is at an all-time high “even though” the crime rate is down.

But a vast percentage of the U.S. prison population is there solely because of our absurd, idiotic, obscenely, nay, astronomically expensive and absolutely doomed to perpetual failure “War On Drugs.”

This is a product that shouldn’t be needed for a market that shouldn’t exist.

This context-plucked snippet of a phrase is from the ‘pen’ of David Mamet, surely one of the finest playwrights / screenwriters of our age. It is not, however, from any of his dialog overlapping, cynical 1.5 dimensional character cluttered literary efforts but from a longish essay in, of all places, the Village Voice. Herewith, Mamet the formerly “brain-dead liberal” (his phrase, folks, not mine) and still master wordsmith:

The Constitution, written by men with some experience of actual government, assumes that the chief executive will work to be king, the Parliament will scheme to sell off the silverware, and the judiciary will consider itself Olympian and do everything it can to much improve (destroy) the work of the other two branches. So the Constitution pits them against each other, in the attempt not to achieve stasis, but rather to allow for the constant corrections necessary to prevent one branch from getting too much power for too long.

Rather brilliant. For, in the abstract, we may envision an Olympian perfection of perfect beings in Washington doing the business of their employers, the people, but any of us who has ever been at a zoning meeting with our property at stake is aware of the urge to cut through all the pernicious bullshit and go straight to firearms.

Good stuff (though not, by the way, all that much different from the slant one gets from P.J. O’Rourke’s brilliant Parliament Of Whores). Perhaps one shouldn’t be all that surprised to hear such comments from someone whose political sensibilities were sufficiently well honed to have written Oleanna back in 1992. Alas, there doesn’t appear to be a role here for Mamet perennial favorite, Ricky Jay. Even so, well worth a read.

Or so says A.J. Duffy, president of United Teachers Los Angeles. No surprise, Duffy approves of a California appellate court ruling effectively against home schooling. As the Los Angeles Times reports:

“Parents do not have a constitutional right to home school their children,” wrote Justice H. Walter Croskey in a Feb. 28 opinion signed by the two other members of the district court. “Parents who fail to [comply with school enrollment laws] may be subject to a criminal complaint against them, found guilty of an infraction, and subject to imposition of fines or an order to complete a parent education and counseling program.”

I’m sure the parent education and counseling program must be conducted by a ‘credentialed’ teacher, too. Ah, California!

Aside from being the oldest and second oldest universities in the United States, there are vast differences between Harvard University and the College of William & Mary. One is among the richest and most powerful institutions of higher education in the nation, the other typically gets the dubious honor of being among the least affluent of America’s elite universities. One has remained a private institution, never mind how many billions of dollars it manages to secure from public sources. The other, having fallen on hard times following the Civil War, became a “state supported” institution approximately one century ago, never mind that some 80% of its current funding does not derive from the Commonwealth of Virginia. One has some of the most prestigious graduate schools anywhere, the other remains primarily an elite undergraduate institution. One is the alma mater of some of the best Presidents of the United States and the other one is Harvard.

One of the few things they do share in recent years, however, is that both have seen their presidents resign from office after losing the support of the political interests necessary for their continued tenure. In the case of William & Mary’s recently resigned president, Gene R. Nichol, those political interests include a significant number of alumni, some Virginia legislators and, ultimately, the College’s governing Board of Visitors. In the case of Lawrence Summers’ tenure as president at Harvard, while he apparently continued to enjoy support from the de jure controlling Harvard Corporation, Harvard’s Faculty of Arts and Sciences’ 2005 “lack of confidence” vote is generally assumed to have marked the beginning of the end.

Both men were embroiled in various controversies during their presidencies. The most notorious in Summers case were probably his confrontation with Cornel West and his remarks regarding possibly innate differences accounting for the far smaller number of women excelling in science and engineering. In Nichol’s case, his decision to remove a cross from the chapel in the historic Wren Building and his most recent refusal to ban a student funded performance of the Sex Workers’ Art Show received the most media attention. In the case of both men, however, there were other, less publicized controversies.

Be that as it may, it would be easy to account for Summers’ downfall as the result of his having fallen victim to Northern political correctness and to Nichol’s defeat as the result of entrenched Southern conservativism. Perhaps there is some truth to that on a superficial level. I have no direct relationship with Harvard and I have expressed my personal views on the Nichol affair elsewhere; but the merits of their respective cases aside, what I find interesting here is the role of both ideology and, insofar as they are different, politics in both cases.

His intellectual integrity aside, Summers is, after all, a liberal Democrat. (And, yes, I’d make the same snide remark about any conservative Republican with intellectual integrity.) That he was insufficiently liberal or ‘progressive’ to satisfy the Harvard faculty shouts volumes about the extent to which there is any real room for intellectual disagreement inside contemporary academia.

But liberals and, even more so, progressives are supposed to love public, i.e., state funded and state controlled education. So it is especially ironic to hear Nichol’s supporters now decry the fact that his contract was not renewed “for political reasons.” That, ladies and gentlemen, is how public institutions and politics work. People with differing views make their respective cases and rally support from others as best they can, especially including the support of elected and other public officials, and whoever has the most political power wins regardless of who is right or wrong.

This is majoritarianism in action. (And no silly comments, please, about constitutional protections for minorities as the solution to the threat of majoritarianism – a sufficiently large majority can eliminate those protections any time it sees fit.) At Harvard, at the very least one can sit back and say, “Well, it’s their own private affair.” At William & Mary and at any other public institution, by contrast, the will of the many will always threaten the reasoning of the few. It’s not about right or wrong, after all; it’s about power. And that is why education, like religion, is too important to be left to the corruptible whims of the state.

Last week, Jason Kuznicki wrote what was, IMHO, a very important blog post titled, “Maryland: What if Marriage Were Strictly Religious?”

I’m surprised and disappointed that it didn’t receive more comments.

State legislator, Jamie Raskin’s idea, that marriages should be performed by church and government should only participate in civil unions, is, at first glance, radical. But the more you think about it, the more sense it makes.

But it should be particularly intriguing to the thoughtful people who read this blog.

I see in it a middle ground solution that soothes a culture war problem. So why only one comment about Raskin’s proposal?

HERE’S MY COMMENT

I don’t support the government’s involvement in marriage. And while I don’t agree with everything Matt Trewhella says in his pamphlet, 5 Reasons Why Christians Should Not Obtain a State Marriage License, I certainly find it compelling.

The marriages of the nation’s Founding Fathers were recorded in the family Bible — no license required.

Government involvement in marriage had its origins in the colonial period — in the form of anti-miscegenation laws. In other words, racism was the genesis.

It’s time to end this unholy marriage between holy matrimony and the State. Why should a civil government be able to “license” any form of private association between individuals?

Trewhella writes, Continue Reading »

My highly personal (therefore personal blog posted) take on the resignation of Gene R. Nichol as president of the College of William & Mary.

It’s nothing else but amusing to see Phyllis Schlafly rant against the Supreme Court opinions protecting pornography. I find it amusing beyond belief that these stuffy old men, Supreme Court Justices, in order to determine whether pornography is protected speech, had to watch the videos in order to answer the legal question. Heh.

Those of us who are entirely indifferent this morning to which Democrat Caroline Kennedy thinks is most like her daddy might consider instead this opening paragraph from the (UK) Daily Telegraph:

Smokers, heavy drinkers, the obese and the elderly should be barred from receiving some operations, according to doctors, with most saying the health service cannot afford to provide free care to everyone.

First things first, a bit of Borscht Belt humor: “You’re charging $10 a pound for lamb chops?!? Across the street at Stein’s I can buy them for $8 a pound!” “So go buy them at Stein’s.” “I can’t, he’s out of lamb chops.” “So when I’m out they’ll be $8 a pound here, too!”

It isn’t that the British national health service cannot afford to provide free care to everyone but that it cannot provide free care to anyone. Hidden costs are real costs nonetheless and the fact that the typical British citizen (or journalist) is unaware of the real cost he personally bears for his health care is irrelevant to the fact that it exists.

What the surveyed doctors are thus saying is that while it is not only proper but necessary for smokers, heavy drinkers the obese and the elderly to continue to contribute toward a socialized medical system, they should nonetheless be deprived of the very benefits they are most likely to need. That sounds fair, doesn’t it? I do hope you think so because it is, sadly, only a matter of a decade or so and maybe sooner before Americans find themselves the, um, beneficiaries of a similar health care system.

Be that as it may, let’s get one other point straight. One thing else the doctors are noting, a point which happens to be entirely correct, is that health care, like every other good in the world, is scarce in the technical economic sense that its supply potential demand exceeds its potential demand supply. [See comments.] Otherwise, we could have all the MRIs and liver transplants and stomach staples and cosmetic surgery and quadruple bypasses and whatnot our bloated, cholesterol clogged hearts desired.

Alas, we can’t. Oh sure, we can take some measures right now to increase, for example, the supply of livers for transplant, and according to my thanaphobic friend Ron Bailey we will someday live in a golden age of genetic medicine when cloning yourself a new liver or simply repairing your old one to its pristine condition will be as simple as microwave popcorn, but we’re not there yet. One way or another, medical treatment is going to be rationed and the only question left is whether that rationing is going to be conducted by the market or by the state.

Admittedly, deciding who gets a new liver on the basis of who can best pay for it or, worse yet, who can pay the most for it, strikes most of us as unfair. Health care, we feel, shouldn’t be like Ferraris or Picassos, available only to the wealthy, but like movies and Coca-Cola – plentifully available and affordable to all. Bill Gates and Warren Buffet can both drink their Cokes out of solid gold goblets while they watch Walk Hard in the comfort of their private home theaters but the Coke won’t taste any different and the movie will still suck. And that, we feel, is how health care should work.

Well, it doesn’t. For one thing, unlike many other modern services, it remains highly labor intensive, requiring skills ranging from neurosurgery to the folks who have to mop up all your messy bodily fluids after the operation. For another, the economics of medical technology (the machines, not the medicines) is such that all the emphasis is on performance, not on greater cost savings. That is to say that if we were willing to live (and die) with 1960s level medical technology, we could save a great deal of money. But we’re not. We want those MRIs and whatever the next generation of cutting edge technology might be and damn the cost.

A post or two ago, I mentioned a Weekly Standard column claiming that “[t]he moral vacuity of dogmatic libertarianism is poisonous to public life.” As absurd as that column was, I would agree with that statement but for the critical fact that what dogmatic libertarianism I have encountered over the years has had absolutely zero effect on public life. It’s around, though, if you want to seek it out at, say, any Libertarian Party social function. Be that as it may, the authors made yet another claim worth quoting here: “[E]conomic libertarianism, elevated to the status of inviolable first principle, leads to moral libertarianism.”

To which I can only add, damn, I sure hope so! Moral libertarianism, if it means anything at all, must mean something like the claim that I can’t know in advance how important that medical treatment is to you, your family and friends and you can’t know in advance how important it would be to me. Not, at least, in any absolute, “let’s-make-a-rule-for-everyone” sense. And that’s exactly what the rationing of socialized medicine perforce does; makes one-size-fits-all rules.

Markets are morally imperfect because people are morally imperfect. Letting people themselves decide what medical services they want or need and making them recognize that, one way or another, they must pay for those services entails a certain sort of unfairness. The problem with socialized medicine, however, is that its solution to that problem is far, far worse.

* “… wait until you see what it costs when it’s free.” — P.J. O’Rourke

David Skeel at Penn Law is one of the most notable of a small number of scholars who actively pursue Christian legal scholarship. On a personal note, he was my Business Associations professor at Temple Law, regarded as one of the best professors at the law school, and that’s probably why Penn Law recruited him. I didn’t know he was a traditional orthodox Christian when teaching at Temple (he may not have been while there?).

He’s posted some interesting articles on SSRN, the contents of some of which hope for a Renaissance in Christian legal scholarship. Skeel details the long and interesting history of evangelicals and scholarship and comes to the conclusion, after Mark Noll, that Protestant evangelical scholarship is in need of much improvement. Continue Reading »

Economists Steven D. Levitt and Sudhir Alladi Venkatesh recently made available for comment a working paper entitled An Empirical Analysis of Street-Level Prostitution. Fair’s fair. Levitt and Venkatesh stress that the paper is tentative and incomplete and therefore any and all findings, let alone any interpretations or reports by economics dimwits like me, should be viewed with some caution and skepticism. Still, the paper is well worth a read and, caveats noted, I’ll just mention a few of its more interesting points:

Perhaps most important from a social policy / public health perspective is that their findings conflict with earlier studies that had found a substantial price premium for unprotected (i.e., condomless) intercourse. The authors here “find a small price premium associated with unprotected sex, and condoms are used only 25 percent of the time.” In fact, their data suggests that the average unprotected sex premium is only $2. More specifically, they report:

For oral sex a condom reduces the price by $2. For vaginal sex that number rises to $5.53 (a 7.5 percent increase over the average price using a condom) and for anal sex the gap is $12.61 (or 13.6 percent of the average price with a condom).

Second, the sort of pimp / prostitute relationship they study appears quite contrary to the traditional stereotype and much closer to the agent-manager / talent model. According to their findings, it would appear that availing oneself of the, um, services of a pimp would be in the prostitute’s economic interests. For example, “prostitutes who do not work with pimps (and thus are working the streets), roughly three percent of all their tricks are freebies given to police.” It was my understanding, based on years of research including hundreds of movies, television shows and pulp novels, that the majority of street prostitutes were also being “run” by pimps, so I’m a bit skeptical here. After all, would Hollywood lie to us?

Third, and speaking as a white guy here, I’m shocked, shocked to read that Chicago prostitutes discriminate on the basis of race, charging white tricks more, and that they even “change the structure of the bargaining when the customer is not black.” So far, no comment from the Ron Paul campaign on this last finding, but I haven’t received the latest newsletter yet, so….

(Hat Tip to Reason’s Radley Balko.)