Author: Ethan Blevins

Mending Wall

Ethan Blevins Liberty , , , , ,

Robert Frost’s lovely poem, “Mending Wall,” says something profound about the importance of the institution of property. The poem is about Frost and his neighbor meeting together to piece together a crumbling wall between their two properties. Frost pokes fun at the tradition; without a wall, will Frost’s apple trees sneak across the property line and gobble up the cones piled up beneath the neighbors’ pines? As the two walk the line, replacing a stone here and a stone there, the neighbor, in an almost ritualistic mantra, responds to Frost’s skepticism with the well-worn line, “Good fences make good neighbours.”

Some can and have interpreted Frost’s poem as a gentle argument against erecting barriers that separate us. I think that’s a mistake. Of course, I admit to overlaying my own political and philosophical views atop his writing. But with that in mind, the poem tells me to that clear property lines do indeed make good neighbors. In fact, this wall is what draws Frost and his neighbor together in a valuable social ritual. Even in the absence of an obvious need for the wall, the tradition stokes good will.

In a broader and more directly political sense, property does indeed make good neighbors. Where property rules are unclear or have not been established, social strife and distrust tend to proliferate. Where they are established by law or custom, parties have a neutral arbiter whose presence alone allows them to avoid dispute and uncertainty.

This seems to hold true on small and large scales. Parents of young children have all learned that allowing kids common ownership of toys is a recipe for constant conflict. If parents establish clear ownership of childrens’ possessions, then order settles in and kids can learn important social values like sharing–a virtue that will never arise if property rules are unclear or non-existent. Truly, in a home of common ownership, children only learn to cling desperately to everything and not give an inch.

The same appears true for communities and nations. Where countries do not have established customs and laws governing property, strife, distrust, and corruption fester (Russia is, unfortunately, a prime example of this problem). A similar phenomenon seems to have played its role in the rapid demise of the various utopian communal arrangements that cropped up during the Second Great Awakening in 19th century America.

Frost’s repeated refrain throughout his poem is: “Something there is that doesn’t love a wall.” I think Frost’s neighbor had the right of it–communities survive and thrive thanks to walls. We should take time to mend them.

The Rao Roe Row

Ethan Blevins Current Events, Law, Liberty , ,

Neomi Rao, nominee to the D.C. Circuit Court of Appeals, has fallen victim to an old fissure–conservative and libertarian disagreement over unenumerated rights. At the hint that she believes that rights exist outside the express text of the Constitution, conservatives have pounced, concerned that Rao will betray conservatives on abortion issues. On both political and legal dimensions, this concern is silly.

As a general matter, it’s beyond clear that Rao is qualified. Conservatives shouldn’t cripple a great candidate over a minor issue. The Supreme Court has many times confirmed that unenumerated rights exist. Rao is bound by those precedents, including Roe, and whether she agrees with those precedents or not is immaterial to the job she’s nominated to do. The chance that Rao will even have a chance to expand the existing list of recognized unenumerated rights is exceedingly low. It just doesn’t come up that often, and the courts already have tests for assessing whether a right should be recognized.

But perhaps more importantly, non-enumerated rights don’t lean toward one side of the ideological spectrum or the other. The Supreme Court of the early twentieth century recognized, for instance, liberty of contract as a constitutionally protected right–though unenumerated. Progressive jurists bent on defending Roosevelt’s New Deal did so in part by opposing the enforcement of unenumerated rights. Unenumerated rights also include other “conservative” causes such as the right to earn a living. And, of course, unenumerated rights have also favored “liberal” values such as a broad right to privacy. In short, it is unclear why Rao’s alleged support for the enforcement of unenumerated rights should enter into the partisan calculus.

And then there’s the simple fact that unenumerated rights do in fact exist and deserve constitutional protection. The history and passage of the Ninth Amendment, which says enumeration of rights shouldn’t detract from those retained by the people, make this clear. The founding generation didn’t see rights as reserved to a fixed set of especially important activities. In fact, many feared that the enumeration of certain rights would imply that the unenumerated ones shouldn’t be recognized. That fear has turned to be prescient, despite the inclusion of the Ninth Amendment, which was written to make clear that the enumerated rights shouldn’t be seen as implying that unenumerated rights should go unprotected.

In short, not only would Rao be right to recognize such rights–though the scope of those rights is always a matter of intense debate–she has to recognize them under binding law, and her thoughts on the matter are unlikely to make much difference to her job. If she gets nominated to the Supreme Court later down the road, the concern may have more relevance. For now, just get her confirmed.

Expression at the polls

Ethan Blevins Law, Liberty, Politics , ,

Last election, Jillian Ostrewich drove to a polling place at a Houston rec center, expecting to vote. But she made the mistake of wearing a “Houston Fire Fighters” t-shirt. An election worker confronted Jillian, insisting that she couldn’t vote unless she turned the offending shirt inside out. The rationale: a measure on the ballot was related to firefighter pay, and the shirt was related to firefighters.

Tony Ortiz suffered a similar fate in Dallas. Tony’s crime was wearing a MAGA hat while he stood in the voting line outside his local library. An election worker said he couldn’t wear the hat to the polls because the MAGA slogan constituted “electioneering.” Tony responded that the hat had nothing to do with any issue or candidate on the ballot. The election worker threatened to call the police.

These election workers were relying on a Texas law that forbids electioneering or wearing “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot” in or near a polling place. The law even prohibits someone from wearing an ID if the name is the same as someone appearing on the ballot. A violation is a criminal misdemeanor. Today, my colleagues and I at Pacific Legal Foundation filed a lawsuit on behalf of Jillian and Tony challenging the Texas ban.

As it happens, the Supreme Court issued a decision just last year striking down a similar law in another case brought by Pacific Legal Foundation called Minnesota Voters Alliance v. Mansky. The Minnesota law in MVA prohibited wearing a “political badge, political button, or other political insignia” in the polling place. The Court said states can limit some electioneering at the polling place to prevent voter intimidation and excessive disruption. But the government has to have some clear and logical basis for sifting “what may come in from what must stay out.”

The word “political” was not a clear boundary. As the Court noted, almost anything could be considered political, and the fuzzy language offered too much wiggle room for abuse and discrimination. The attorney arguing for Minnesota drove this point home during an onslaught of blistering questions in oral argument: how about a rainbow flag shirt? Permitted, maybe. How about a “Parkland Strong” shirt? Permitted, probably. How about an NRA shirt? Definite no. How about a shirt with the text of the Second Amendment? Definite no. At about that point, most everyone knew the outcome of the case–the attorney had just proven the inherently arbitrary standard he was trying to defend.

The Texas case filed today is a bit different. For one, the ban extends to 100 feet outside the polling place, which clearly encompasses sidewalks and other public areas where speech rights enjoy their widest berth. But the ban is not quite as amorphous as the word “political.” Instead, the ban extends to messages that relate to a candidate, measure, or party on the ballot.

This slightly narrower language probably doesn’t save the Texas law. After all, almost anything can be considered related to a candidate if the candidate has taken any kind of position on it. If a candidate has criticized Trump (have any not?), then is Tony’s MAGA hat “related” to the candidate? If Ben & Jerry’s takes a position on a ballot measure, does a Ben & Jerry’s shirt relate to that ballot measure? Maybe, but it depends on the election worker–and therein lies the problem. As the Supreme Court said in MVA, “A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions over every candidate and party on the ballot is not reasonable.” Not only would such an index be impossible, but the contents and application of that index would be dictated by an election worker’s own biases and background.

The integrity of the electoral process is vital. But surely Jillian’s firefighter shirt or even the much-reviled MAGA emblem do not imperil the right to vote. Wed don’t shed the right to express ourselves in peaceable ways when we step into a polling line.

Musk in contempt?

Ethan Blevins Law, Liberty , ,

The SEC wants to slam Elon Musk with contempt over a thirteen word tweet. Musk has taken to Twitter to both vaunt his company and castigate the SEC. He’s under an existing SEC settlement that requires company oversight of his communications. Musk’s brief tweet on Feb. 19 that stoked the ire of the SEC said: “Tesla made 0 cars in 2011, but will make around 500k in 2019.” The SEC swooped in, charging that Musk hadn’t received preapproval for the tweet and convinced Musk had misled the public.

The SEC’s overzealous attempt to wield the contempt power is disturbing. Especially given Musk’s vocal and mocking disdain for the SEC, the regulator’s attempted coup over the content of his tweets raises serious First Amendment concerns. Here, it seems the 500K estimate was not precise, but Musk went on to clarify on his Twitter feed, and he didn’t conjure the number from the ether. At worst, it was incomplete information. Welcome to Twitter. I just can’t quite stomach the fact that a regulator is out there lurking, ready to pounce on any linguistic imprecision in a forum where brevity is the name of the game. Obviously, Musk’s statements have an impact on the market, but investors are sophisticated actors who should be expected to do their homework. The SEC’s paternalistic and aggressive monitoring of Twitter feeds should raise our hackles.

Originalism and defamation

Ethan Blevins Law, Liberty ,

Today, Justice Clarence Thomas issued a solo opinion urging the Supreme Court to reconsider a hallmark case in First Amendment law–New York Times v. Sullivan. That case held that defamation claims brought by public figures had to meet a heightened standard of proof by showing “actual malice” by the alleged defamer. The basic premise is that muscular use of private defamation suits discourages criticism of public figures and thus clashes with First Amendment interests.

Justice Thomas’s primary complaint with this standard is that judges created it with a wave of the wand rather than a serious analysis of the original understanding of the First Amendment. He points out that the ratifiers of the Constitution gave no indication that they intended to abrogate the long-standing common law of libel that had existed in the colonies and England for centuries. For those who believe that the Constitution’s meaning should reflect what the ratifiers thought the language meant at the time, I think Justice Thomas makes a convincing case.

The Gandalf Test

Ethan Blevins Books, Culture, Liberty, Politics , , , ,

The two dominant American political parties have one defining trait in common, and it’s the trait that makes them both undeserving to hold the power they seek to wield. Both parties fail the Gandalf test.

I derive the Gandalf test from one of my favorite conversations in the Lord of the Rings. Gandalf pays a visit to Frodo Baggins after concluding that Bilbo’s old ring is in fact the One Ring–the single most dangerous and powerful object in Middle-earth. Once the full enormity of the ring dawns on Frodo, he tries to thrust it upon Gandalf. Gandalf flatly refuses. “With that power I should have power too great and terrible.” He recognized that he cannot embrace so much power even though he would want to do good with it. “Yet the way of the Ring to my heart is by pity, pity for weakness and the desire of strength to do good. Do not tempt me!”

The Gandalf test is simple: a righteous cause and a genuine desire to save the world do not qualify anyone for the exercise of extensive unilateral power. The Republican and Democratic Parties both have recently failed this test, and not for the first time. On one side, President Trump has turned to emergency powers to barge through constitutional barriers, so convinced he is that his cause is just. On the other side, the Green New Deal proposes to remake the United States economy. We tend to too often squabble over the merits of these policies instead of stepping back to apply the Gandalf test. Even if the policies themselves are good ones, even urgent ones, we must ask whether any person or cadre should wield the extraordinary power to put them into action. The “desire of strength to do good” is not enough.

A clear message of Gandalf’s and the Lord of the Rings generally is that progress toward the good and worthy comes through the everyday courage and goodness of ordinary people, not a few great souls on gilded thrones. Elsewhere, Gandalf points out: “Saruman believes it is only great power that can hold evil in check, but that is not what I have found. It is the small everyday deeds of ordinary folk that keeps the darkness at bay.” And in the Return of the King: “It is not our part to master all the tides of the world, but to do what is in us for the succour of those years wherein we are set, uprooting the evil in the fields that we know, so that those who live after may have clean earth to till. What weather they shall have is not ours to rule.” What a wonderfully apt response to the Green New Deal’s attempt to rule with an iron fist today in order to literally rule the weather that others might have tomorrow. That kind of hubris is poison to a republic.

We need to subject our leaders to the Gandalf test. We need to know if they are the type to vainly “master all the tides of the world,” or whether they will lead in humility by quietly empowering the everyday deeds of everyday people. If they can’t pass the test, I couldn’t care less whether they’re proposing a wall, a tax hike, or a clean energy revolution.

Automated law enforcement and rational basis

Ethan Blevins Liberty , , ,

Does law enforcement need a human touch? The Supreme Court of Iowa says no. The Court recently decided that automated traffic enforcement (ATE) does not violate the Iowa Constitution. The Court, however, did take some time to address an important topic in constitutional jurisprudence: the nature of rational basis review.

Rational basis is a test applied to a variety of constitutional challenges. In the ATE case, the plaintiffs had brought due process and equal protection claims, both of which relied on the rational basis test. Rational basis is the weakest test in the hierarchy of judicial scrutiny. If a law is rationally related to a legitimate government interest, then a court won’t strike it down. As you might expect, plaintiffs very rarely succeed on this flimsy rational basis standard.

And so it was here. The Plaintiffs had argued that the ATE system in Cedar Rapids was not rationally related to an interest in public safety because, among many other things, the system punished a vehicle’s owner for speeding even if the owner was not the driver at the time. The Court had misgivings, but it ultimately deferred to the City and let the law slide.

The Court did, however, give a little boost to rational basis. The Court correctly noted that many state constitutions offer a stronger rational basis test than the federal test. That’s an important reminder to constitutional litigators–sometimes state constitutions may have analogous provisions to the federal constitution, but the protections they offer might be more robust.

The Court also made an important point about evidence in a rational basis claim. In many rational basis cases, plaintiffs don’t even get a chance to present evidence as to whether a law is rationally related to a legitimate government interest. If the government just asserts–without evidence–that a law furthers a legitimate interest like public safety, then the game is over. But the Iowa Supreme Court correctly noted that while a law is entitled to a presumption of constitutionality under rational basis, plaintiffs have a right to present evidence to rebut that presumption. Hence, “the mere incantation of the abracadabra of public safety does not end the analysis.” This evidentiary point is vital for strengthening the constitution’s protections against expansive government power.

Bad guys and bad thinking

Ethan Blevins Law, Liberty, Politics , , , , ,

AOC made waves with her recent “lightning round” during a hearing on a new campaign finance behemoth lumbering through the House, HR 1. Her basic point was that under our current campaign finance regime, it’s “super legal” to be a “pretty bad guy.”

I wrote recently that much campaign finance rhetoric resembles a religious canon. If so, then AOC is vying for the position of high priestess. I can’t review all the many flaws in her five-minute fable, but I’ll briefly canvas her commitment to orthodoxy.

First, she asks the hearing panel whether there is anything stopping a “bad guy” from being entirely funded by corporate PACs. The panel answered that no law prevents that. But surely common sense does. Running on a campaign solely funded by corporate PACs would be a titanically stupid campaign strategy. First off, thanks to disclosure laws and the realities of a media-rich society, all constituents would know that the candidate was running solely off corporate PACs. Why any candidate would intentionally sell themselves as a corporate lackey is beyond me.

Not only would this look bad, but it would also come at a huge financial cost. Congressional campaigns are mostly funded by individual contributions, not corporate PAC money, so basically a candidate would be refusing a huge amount of loot in order to broadcast themselves as the Peter Pettigrew of electoral candidates. I’m not convinced this is a looming threat to our democracy. Why should we regulate a non-existent problem?

Of course, she also trotted out important theological terms such as “dark money.” She seems to think campaigns are directly funded by dark money. Not so–any contribution over $200 faces extensive disclosure requirements. Dark money usually refers to independent political expenditures, which still face a variety of disclosure requirements and make up a surprisingly small amount of total political expenditures. Again, she is swiping at phantasms.

A larger issue is that even if her claims are true, HR 1 and most other campaign finance laws are hugely overbroad. The overwhelming majority of political spending occurs with no eye toward extracting favors from a candidate. Yet HR 1 would impose huge burdens on all groups speaking in the political arena. The better route to catch “bad guys” is to enforce criminal laws that prohibit bribery. Will you catch every instance of quid pro quo corruption? Almost certainly not. But since when was this a controversial price to pay for a free society? We’ve long ago decided that it’s best to have less than perfect enforcement in order to preserve individual liberty.

The collateral damage that HR 1 would impose on legitimate, non-corrupt speech is tremendous. I’m not confident AOC is fretting over the real “bad guy.”

Time to emerge from the campaign finance mythology

Ethan Blevins Law, Liberty, Politics , , , ,

Campaign finance laws long ago ascended to the Mount Olympus of political mythos. The mantra that we must exorcize money from politics has become an article of faith. But the basic premises undergirding this creed rest on a sandy foundation made up of unsound logic and unsupported claims. Not to mention a total disregard for First Amendment rights. The Supreme Court, however, will soon have a chance to reconsider campaign finance laws’ often dubious rationales and uncomfortable relationship with the First Amendment.

Campaign finance laws kicked off in the late nineteenth and early twentieth centuries with some early laws that banned corporation contributions, but they mostly gathered dust. Then, ironically, Republicans in 1947 used campaign finance laws to try and stifle union contributions, which led unions to create the much-hated PAC to dodge the restrictions. Then first serious attempt at comprehensive campaign finance regulation swept through in 1971 with the Federal Election Campaign Act. FECA laid down strict contribution and expenditures limits. Six years later, FECA led to the Supreme Court’s major canonical work in campaign finance lore, Buckley v. Valeo.

Buckley was a mixed bag. On the one hand, it struck down limits on independent expenditures by people who spend their own money on political communication during a campaign. On the other, it upheld limits on direct campaign contributions. Hence, both sides of the campaign-finance divide gripe about Buckley—First Amendment advocates want campaign contributions to be just as uninhibited as independent expenditures, and campaign-finance believers think government should be able to curtail independent expenditures to the same degree as campaign contributions.

As a speech advocate, I fall into the camp that feels Buckley did not do enough to protect First Amendment interests. Buckley relied on flawed notions about the nature of campaign contributions and the alleged need for limiting them. For example, the Buckley Court claimed that contributions don’t deserve as much First Amendment protection as expenditures because the speech facilitated by the contribution is someone beside the contributor. The trouble is that the same is true of expenditures—typically a political spender’s message is conveyed through a go-between, like an ad agency or a TV station. Courts have never held that reliance on someone else to convey your message robs you of the right to promote that message. Except for Buckley.

Another rationale for distinguishing contributions and expenditures is the “general” nature of a contribution. An expenditure allows the speaker to tailor his precise message. I.e.: I support Daenaerys Targaryen because she fries Lannisters with dragon fire. But if you just give a contribution to the Targaryen campaign, then no one knows why you support her. Anti-slavery? Dragons? Small Hands? You could be contributing for any reason, and the lack of specificity translates to a weaker First Amendment right. This is another lame excuse. After all, does the guy holding a “Warren 2020” deserve less First Amendment protection than someone holding a “Harris for better healthcare” sign? No case has ever said so or will ever say so. Except for Buckley.

The third rationale for contribution limits is that the quantity of the contribution does not strengthen or weaken the speech being regulated. That is, Buckley says if you give $5 or $500 to the Palpatine campaign, your message is the same. But surely the number is a clear metric for degree or intensity of support. If you gave $1 to Albus Dumbledore and $100 to Lord Voldemort, that says something about your viewpoint. If a cap is placed on contributions, the government is essentially saying that you can only support your candidate up to X amount—that’s more than a minor burden on someone’s right to political expression and participation. Plus, the contribution is not just about the symbolic act of giving—it’s also about the speech facilitated by that contribution, which is obviously affected by the quantity of the donation.

Buckley allowed contribution limits for the sake of combating corruption or the appearance of corruption. Here, too, Buckley falters. Study after study has failed to demonstrate that campaign contributions purchase special favors on anything approaching a widespread basis. Yet contribution limits take a widespread approach. Certainly, anecdotal evidence of quid pro quo exchange of contributions for favors exists. But that can hardly support a widespread cap where the overwhelming majority of contributions are motivated by ideological commitment, not a desire to obtain special political favors post-election.

Bereft of actual evidence, campaign finance zealots resort to bumper sticker slogans like “money buys elections.” Certainly, candidates who receive a lot of money tend to also receive a lot of votes. But this is just correlation. People will tend to donate to strong candidates, and people will also tend to vote for strong candidates. The likely variable here is a candidate’s popularity, not campaign contributions.

And what in the world is the “appearance” of corruption? No other First Amendment right that I know of lives or dies by the grace of the subjective feelings of the public. Rights are supposed to exist despite any prevailing hostility from the public. Yet that’s the Buckley standard. Indeed, courts have looked to public opinion polls and other tenuous evidence to uphold severe contribution limits in cities and states across the country.

While contribution limits likely don’t do any good, they do plenty of harm. Even beyond the injury done to the First Amendment interests of contributors, campaign finance laws tend to only help one group of people: incumbents. Campaign finance laws erect such arcane labyrinths that only the savvy, experienced politicians who can afford pinstriped election-law attorneys and have lots of name recognition will come out ahead. Contribution limits also do huge favors for wealthy, self-funded candidates.

Often, what political amateurs with no name recognition need is a concentrated boost of support from a small group of supporters to kickstart a competitive campaign. Contribution limits make this nigh impossible. But instead of loosening campaign finance laws that fortify incumbency, politicians peddle terrible ideas like term limits. If they truly wanted competitive politics (which they don’t), then they’d liberalize campaign finance.

Since we can hardly rely on the incumbents to break down incumbency protections, the time has come for the Supreme Court to return to Buckley. The Court will have the chance to do just that with a petition from a case called Illinois Liberty PAC v. Madigan. We could do for some fresh air in politics—the way to do that is to strip away an orthodoxy that only serves to protect the powerful.

Spaghetti Monsters and Free Exercise

Ethan Blevins Law, Liberty, Religion , ,

Should Flying Spaghetti Monster worshipers be allowed to wear colanders on their heads in drivers’ license photos? Maybe so. Today, four conservative justices hinted that someone might want to bring them a good Free Exercise case soon so they can unseat a long-standing and long-criticized case called Employment Division v. Smith. That case, penned by Justice Scalia, had in turn uprooted several decades-worth of precedent that had built up a robust bulwark of religious rights under the First Amendment’s Free Exercise Clause.

It’s a funny twist. Liberal justices like Justice William Brennan had built up strong protections under the Free Exercise Clause, such as allowing Amish to pull their children from high school early because of their faith, or allowing Saturday Sabbath worshipers to enjoy certain exceptions to work requirements for unemployment benefits. Then the penultimate conservative justice, Antonin Scalia, dealt a severe blow to those precedents in Smith. Scalia said that religious practices did not merit exemption from generally applicable laws.

Now, the conservative justices want to rethink Smith, while the liberal justices may hang back. Perhaps the shift in the culture wars has caused this parallel shift in jurisprudential alliances. In any case, I think we should welcome reconsideration of Smith.

Scalia’s opinion in Smith raised some legitimate concerns. He argued that if we allowed judges to have a heavy hand in deciding which religious practices deserved special exemptions from the law and which did not, then judges would inevitably engage in subjective judgment calls and descend into the very parochialism that the First Amendment is designed to thwart. He also worried that allowing exemptions from generally applicable law would court anarchy—we would have a legal code peppered with holes for a thousand individualized religious beliefs and practices. Both are legitimate concerns.

Smith did prompt a strong legislative response. Congress and quite a few states thereafter passed Religious Freedom Restoration Acts (RFRAs) that basically revived the pre-Smith law. But legislatures can and do exempt some laws from RFRAs, and many states do not have them.

My primary issue with Justice Scalia’s Smith opinion is that his worry about subjective judgment calls seems to prove too much. Judges are called upon to make these kinds of sensitive and controversial decisions all the time. We rely on things like tenure and salary protection to shelter their independence and impartiality as much as we can, but these kinds of difficult decisions arise in innumerable other contexts. I would prefer a robust and imperfectly enforced Free Exercise Clause to one that does almost nothing at all.

Likewise, the concern about courting anarchy may be overblown. Laws and religious practices usually do not clash in a fundamental way, and under the pre-Smith “compelling interest” test, legislators can still forbid child sacrifice while allowing Muslim police officers to keep their beards. Plus, freedom of speech and many other rights already require exceptions to the scope of otherwise legitimate laws—they just can’t be applied in certain circumstances. The Free Exercise Clause is not unique in that way.

If the Court does confront Smith, it may also have to deal with the Flying Spaghetti Monster problem. That is—the Court may have to address a question which it has mostly avoided: what is a “religion” under the First Amendment. Does the Church of the Flying Spaghetti Monster count? Should Pastafarians be allowed to wear colanders on their heads in drivers’ license photos while everyone else has to go bareheaded? What about the Church of Diego Maradona, a real church dedicated to the Argentine soccer legend? Clearly, asking a court to define a “religion” raises the same concerns of parochial judgment calls that drove the decision in Smith. But maybe the answer is to let them all in, with perhaps just a low-threshold sincerity requirement. Beyond the occasional colander-clad guy in the DMV line, we haven’t seen a huge number of people adopting faux beliefs just so they can get a religious exemption for smoking dope. But then, there is an International Church of Cannabis that would surely see a surge in conversions if Smith is overturned.

Where are our manners?

Ethan Blevins Economics, Liberty , , , , ,

“Manners Makyth Man.” William of Wykeham said that back in a distant past when the letter “y” was at peak popularity. I thought of that quote today as I read about the shrill outrage over Karen Pence’s unremarkable job at a Christian school. There’s a great speech expounding on William of Wykeham’s quote, delivered about a century ago by Lord John Fletcher Moulton in London. He entitled his speech, “Law and Manners,” and its message could really use another go around.

Lord Moulton’s speech begins by dividing human action into three domains: the domain of positive law, the domain of absolute choice, and the domain of what he calls “manners.” This last domain is his essential topic, which he defines as “obedience to the unenforceable.”

Manners, by which he means something akin to duty or morality but encompassing more than both, are sandwiched between the worlds of positive law and absolute choice. This realm of manners is where we may act as we choose but we nonetheless face constraints that are outside the force of law. His basic premise is that the larger the middle domain, the healthier the society. He says, “The true test is the extent to which individuals composing the nation can be trusted to obey self-imposed law.” Encroachment from the realms of positive law and absolute choice pose a danger.

Lord Moulton does not suggest that the two outer domains are bad. They are vital. But if either expands too far into the middle, trouble awaits. If positive law expands too far, it stifles the freedom necessary for a flourishing society. On the other hand, if people feel completely unrestrained in their exercise of freedom, civil society begins to sag, and the danger that positive law will sweep in to pick up a perceived slack increases. As one religious leader put it, “We would not accept the yoke of Christ; so now we must tremble at the yoke of Caesar.”

Given these threats to the middle domain, Lord Moulton feared that “the worst tyranny will be found in democracies.” Minority interests will get chewed up by the voracious appetite of a positive law driven by a majority.  The representatives of the majority “think that the power and the will to legislate amount to a justification for that legislation. Such a principle would be death to liberty. No part of our life would be secure from interference from without. If I were asked to define tyranny, I would say it was yielding to the lust of governing.”

The maintenance of the middle domain depends on growth of a robust civil society sheltered from majority dominance. Religion, culture, tradition, diasporas—communities independent of the state must exist with some genuine autonomy for the middle domain to survive and thrive.

And this brings me back to Karen Pence working at a Christian school that (trigger outrage) requires students and teachers to abide by traditional Christian values. Whether or not those values are correct or not is not at all the point. Those eager to slap down a law at the first hint of a disagreement need to understand that tolerance for even genuinely illiberal viewpoints is essential to the success of liberal democracy. Organizations must have some power to define themselves apart from the prerogatives of the state to establish a framework for obedience to the unenforceable. As the Supreme Court put it, people must have space to organize communities separate from state interference that can serve as competing purveyors of norms. Such groups provide an essential “counterweight . . . to the State’s impulse to hegemony.” Thus, organizations that can establish their own norms apart form majority interference prevent the encroachment of positive law into the middle domain.

I worry that we are seeing simultaneous encroachment from both the realms of positive law and absolute choice. People outraged at Karen Pence’s new job feel convinced that the positive law should thrust its tentacles into group dynamics, thereby swallowing civil society into an all-pervading state orthodoxy. On the other hand, a sneering sense of moral relativity that frowns upon any attempt to speak up for solid norms encroaches from the other end—the perversion of tolerance that believes in no genuine moral structure outside what the law “makyth.” The letter “Y” may be a consonant and a vowel, but that doesn’t mean we can live without unenforced rules. Lord Moulton warned us about this. It’s time we mind our manners.

Libertarianism and the shutdown

Ethan Blevins Economics, Liberty, Politics , , ,

Yesterday, Paul Krugman published a deceptive, sloppy, and self-contradictory opinion article in the New York Times entitled “Trump’s Big Libertarian Experiment.” The premise: the shutdown delivers what all libertarians want, and the shutdown (this is strongly implied) demonstrates just how silly libertarians are.

This is nonsense. First off, Trump is decidedly not a libertarian. Second, government shutdowns have occurred for decades–are all of these “libertarian” experiments? Finally, no libertarians that I’m aware of have ever favored mercurial spending freezes that sweep the rug out from under people who’ve come to rely on government programs. Principled reform is a bit different from abrupt financial lurches.

The disruption and harm caused by sudden spending jolts have no bearing on whether a libertarian society could work or not. Krugman points out that businesspeople are already enraged that the Small Business Administration has ceased issuing loans, an organization that many libertarians have claimed is unnecessary. Of course they’re angry–they expected something that suddenly has ceased. That has absolutely nothing to do with whether the SBA is necessary; it just demonstrates that people get ticked off when their expectations are suddenly dashed. The shutdown proves nothing about whether the private market could ultimately supply any benefits offered by the SBA.

He also says that work at the FDA has dwindled. Routine inspections have ceased. He has zero evidence that this has caused even an iota of harm to anyone, but the implication is clear: we’ll all be confined to the toilets soon as E. coli swamps the country. He marshals no evidence to confront whether state regulators can adequately fill this role, or whether tort law and market forces can suffice.

Libertarians envision a society in which many roles currently served by government can find contractual and common-law counterparts (or not, if it turns out no one wants the service). Libertarians certainly don’t believe in blasting holes in long-standing social structures without warning, without forethought, or without transition.

Ironically, to the extent we do confront Krugman’s silly claims, it appears that the shutdown’s impact has been minimal despite huge numbers of furloughed employees. The New York Times, aside from Krugman’s disposable rhetoric, also published a comparison of the number of furloughed employees (800,000 by their estimation) to private industries. The number of furloughed employees, for example, exceeds twice the number of people employed by Target. I don’t think this tells us what the New York Times thinks it tells us. These stats beg the question as to whether these positions are necessary at all. That said, any negative impact from the shutdown that actually does exist–aside from the furloughed workers losing money–should be attributed to social and economic disruption resulting from spending turbulence, not to the actual necessity of the government programs affected.

Fantasy and politics

Ethan Blevins Books, Culture , , , , , , ,

I wish fantasy novels offered more political diversity. I adore fantasy, but I’ve begun to chafe at the ironic lack of creativity when it comes to political regimes. The genre may be missing a great opportunity. Or maybe I’m reading the wrong books.

While I don’t really mean this as a criticism so much as an observation, monarchy and feudalism abound in most other-world fantasies. Or the politics are indistinct. Despite my deep love for Tolkien, he falls into this category as well–either political control is unclear in regions like the Shire, or the region is ruled by an absolute ruler. His most well-known series culminates with the return of the benevolent dictator to the throne, Aragorn King of all the Dunedain (granted, there is intentional Christian symbolism here).

Modern fantasists follow a similar trend. Brandon Sanderson’s books, while wonderful, tend to involve worlds replete with absolute rulers. In fact, in the original Mistborn trilogy, a naive emperor tries to impose a more representative system of government, fails, and then decides that a firm hand is what’s called for. He and other authors like Robert Jordan dabble with some interesting political ideas and do provide a great deal of political detail, but they ultimately tend toward absolutism of some variety. Terry Pratchett’s main city-state on Discworld, Ankh-Morkpork, is ruled over by an absolute ruler, but Pratchett at least takes plenty of opportunity to poke fun at the masses’ constant yearning for a noble king to tell them what to do. Really, all these books are splendid, and politics are typically not their centerpiece–I just think some more variety may be valuable to the genre. (I’m not pointing fingers, as I’m guilty of the same problem–my forthcoming fantasy novel takes place in an empire with an absolute ruler and a largely meaningless parliament).

Fantasists could perhaps take a page from their science fiction comrades, where experiments with politics seem more common. Fantasy authors could do more than tinker with small tweaks to the monarchy and mercantilism of a pre-enlightenment age.  I can’t help but roll my eyes when I hear Tyrion Lannister on Game of Thrones gushing about how Daenaerys Targaryen is the only person who can swoop in and save the Seven Kingdoms from itself. That’s remedial polisci–surely we can do better. Who wouldn’t want to read about an anarcho-capitalist Iron Islands or a post-communist King’s Landing?

If you have any good recommendations for other-world fantasies that take up this challenge, I’d love to hear them!

Why Christmas materialism is awesome

Ethan Blevins Culture, Economics, Liberty, Religion

It has always struck me as odd that capitalism’s usual defenders abandon it when commercialism seems to be on its best behavior. Every year, we religionists love to rail against Christmas materialism. What a terrible curse–people in the marketplace thinking of others’ interests and needs for once.  All the efficiency of the market PLUS good will toward men–why are we complaining, again?

Yet we do. Without fail, twitter feeds and chapel lecterns ring with invectives against Christmas commercialism. The warning voice, though, never seems to strike with precision. The concern seems to be that a focus on stuff gives rise to an idolatrous dethroning of deity.  This religious criticism appears to mimic the secular and progressive criticism that commerce somehow defiles us and strips us of virtues like compassion or solidarity.

I don’t buy either of these criticisms, largely for the same reasons: commerce brings people together, builds trust, and fosters goodwill. These benefits are in addition to the efficiencies that market advocates typically emphasize. And these three aspects of commercial exchange are in special abundance during Christmas.

Perhaps the materialism complaint stumbles at the outset by focusing on the largely mythical human calculator that predominates in economic theory–the man focused only on maximization of personal utility. That portraiture does not explain the fact that so much commerce occurs on behalf of someone else–a reality underscored and amplified during holiday shopping. Thus, Christmas supports Amartya Sen’s critique of the rational-man theory: “The purely economic man is indeed close to being a social moron.” He’s the one who gives you lotion samples and leftover hotel shampoo in your stocking. But most of us don’t do that. Instead, the market provides a forum for us to express and cultivate virtue. As Deirdre McCloskey says, “In other words, it’s not the case that market capitalism requires or generates loveless people. More like the contrary. Markets and even the much-maligned corporation encourage friendships wider and deeper than the atomism of a full-blown socialist regime.” I think a simple test proves this point. If you walk about a shopping mall during the Christmas holiday (setting aside for a moment your inner misanthrope), how are people behaving? By and large, there is an overpowering sense of goodwill among people engaged in (shudder) holiday materialism. I’d say this is mostly true at any time of year, but we may as well notice this phenomenon when it stands at its apex.

Beyond just the goodwill generated by the act of commerce, the materialism critique seems to ignore the very purpose of the materialistic behavior being condemned. Shouldn’t we celebrate this key example of how commercialism can enhance friendship through gift-giving? If you’re a religious capitalist, what is there not to like here?

A friend pointed out recently that Christmas giving seems fruitless, since the value-for-value gift exchanges offset each other. He concluded we may as well just keep our money. From an efficiency standpoint, it does seem strange to engage in a transaction cost without any expectation that you’ll achieve a pareto-efficient state of affairs. Samuelsonian economics alone can’t really explain why people engage in this ritual. That’s probably because the ritual is not purely economic. It’s about connection, relationship, and opportunity to think beyond ourselves. In other words, at bottom, it really is not about materialism in the shallow, desiccated sense that these Christmas puritans rail against. Commerce can be about compassion and camaraderie–not just self-interested calculation (though there’s nothing wrong with that either).

I don’t think the Babe of Bethlehem would disagree. After all, Jesus, while no aristocrat, was not a severe ascetic by any means–somewhat of a contrast to his cousin, John the Baptist. Perhaps the most poignant example of his view toward extravagant gift-giving occurs when a woman anoints him with an extremely valuable ointment. His disciples complained of the waste, griping that the ointment should’ve been sold and the proceeds given to the poor. Jesus defended her: “Let her alone; why trouble ye her? She hath wrought a good work on me.” In other words, a materialistic act can still be a virtuous one. In fact, I’d go as far as to say that the vast majority of them are. We need, after all, an earthly vehicle by which to exercise heavenly virtue. The market is well-suited for that role. God can be in a market–he’s that good.

Of course, a post about Christmas and materialism must make obligatory mention of Ebenezer Scrooge. Dickens was no fan of capitalism, but his reformed villain ironically proves a point about Christmas materialism: it’s the lack of virtue in the individual operating in the market, not the market itself, that desiccates the soul. So perhaps I can end with a simple “Scrooge” test: is Scrooge the guy standing back and pointing the finger, or is Scrooge the person that the finger aims at–the mom who braves the crowded mall to plop her kids on Santa’s lap and wraps gifts until 3:00 AM in the morning?

Why protect speech?

Ethan Blevins Law, Liberty , , , , , , , , ,

The U.S. Supreme Court has extended more protection for speech than other major courts that adjudicate rights, such as the European Court of Human of Rights. Nonetheless, the Supreme Court is frequently wrong about why speech deserves constitutional protection. That error has undermined the First Amendment that the Court purports to protect. Continue reading →