All posts by guestrcl

Current Events, Ethical Issues, Law & Legal Philosophy, Social Criticism

Libertarians: Limited Government – or Abortion Bans?

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The following is a guest post by Neera K. Badhwar, Professor Emeritus of the Department of Philosophy at the University of Oklahoma and a Senior Fellow in the PPE Program in the Department of Economics at George Mason University.

Libertarians want a limited government, a government that protects rights, enforces contracts, defends us against foreign enemies, and otherwise stays out of our affairs. The vast majority of libertarians support abortion rights on the grounds that the pregnant woman owns her body and has a right to decide how to use it. Some libertarians, however, support abortion bans because they believe that abortion violates the fetus’ right to life, a right they regard as being as strong as a child’s right to life. It is commonly held that both positions are consistent with libertarianism as a political theory.

I disagree. Whereas regarding abortion as morally wrong is consistent with support of a limited government, support for legal bans on abortion is not. For a fetus’ rights can’t be protected across the board without opening the door to a hugely invasive, almost unlimited-in-the-bedroom, government. The reasons for this have to do with the nature of pregnancy, the relation between the pregnant woman and the fetus, and the nature of the state.

One reason legal bans on abortion invite governmental invasiveness is that abortion is often indistinguishable from miscarriage. According to the NAPW, “fifteen to twenty percent of all pregnancies (or approximately 1 million a year in the U.S.) will end in a miscarriage or stillbirth”. A government that looks upon almost all abortions as a crime will tend to be vigilant about every pregnancy loss. Was it really a miscarriage – or was it an abortion?  Zealous prosecutors have criminally charged women who have had miscarriages on the mere suspicion of a self-induced abortion – even while Roe v. Wade was in force.Indeed, even in California, where the law explicitly holds that a woman can’t be charged with murder for loss of her pregnancy, prosecutors charged two women with murder after they had stillbirths that their doctors judged had been caused by drugs. (In one case, the prison sentence was overturned after the woman had served four years in prison, in the other case, it was dismissed. 

Another reason why an abortion ban invites greater government invasiveness is that, although every state allows an abortion when the mother’s life is in danger, not many such dangers are clear-cut. If a woman is hemorrhaging, and without an abortion sepsis will set in and kill her, an abortion is clearly justified. But what if the danger is not imminent, and it’s possible that the fetus will be expelled naturally? With the threat of prison looming over them, how many doctors will be willing to take the risk of performing an abortion? If the past is prologue, not many. When prosecutors started charging doctors who seemed to them to be over-prescribing pain medicines to their patients, scores of doctors stopped prescribing them.* The results were devastating: pain patients either lived in constant pain, or turned to the black market and bought drugs adulterated with heroin or fentanyl, a potent killer. (One pain patient recently killed his doctor for leaving him in constant pain, and then killed himself. We should expect many doctors to stop performing life-saving abortions when the danger to the mother is probable, or even certain, but not imminent, out of fear of prosecution. After Texas passed S.B.8 in September 2021, a woman with an ectopic pregnancy was turned away by her own doctor as well as by a hospital – even though an ectopic pregnancyis a death sentence for the fetus, and likewise for the woman if she can’t get an abortion in a timely fashion. 

In cases like these, we can blame the doctors for not doing their job, since the Texas law does allow an abortion in a medical emergency, and a pregnancy that will kill both the fetus and the mother is a medical emergency if anything is. But the medical emergency exemption does not cover pregnancies that are threatening to women with pulmonary hypertension, or certain heart conditions or other health problems. Pregnancies in these conditions pose an especially high risk for low-income, rural women who don’t have access to good doctors. 

Legally enforced abortion bans also open women – including women who are not pregnant but could become pregnant – to encroachments on their bodily autonomy. According to civil rights attorney, Cynthia Conti-Cook, “pregnant people’s decisions—to self-medicate, to not medicate, to seek substance abuse treatment, to drink alcohol, or smoke cigarettes—are all decisions that could be criminalized.” And thanks to digital technology, the state could easily surveil these behaviors. Prosecutors could also “subpoena women’s medical records and private social media files as part of criminal investigations into abortion providers”. Some politicians have even suggested keeping tabs on women’s menstruation cycles – and at least one official has already done so.

Anti-abortion libertarians could argue, rightly, that such invasions are not essential to state bans on abortion. But the point is that they are highly probable, if not inevitable, given the nature of the state, and a commitment to a limited state requires libertarians to refrain from providing the state with additional tools for abusing us. Libertarians of all people should be aware of the tendency of government to encroach on more and more of our lives, and to be more and more punitive. 

Some states currently exempt women who seek abortions from criminal penalties, but there is no guarantee that these protections will remain in place. There is a strong anti-abortion movement of “abortion abolitionists”pressuring legislators to eliminate such exemptions. And if the fetus is a person with rights equal to that of a child, then it stands to reason that the mother who kills it is a criminal, and must be treated as such. 

Again, just as a RICO violation “does not require intent, recklessness, willfulness, or even knowledge on the part of the accused,” a woman who does illegal drugs and has a stillborn child can be charged with homicide, even if she didn’t know that she was pregnant, or didn’t know that drugs could lead to a still birth. Of course, the elimination of mens rea is not inherent in an abortion ban, and no libertarian would support it. But Congress and state legislatures often pass laws without the requirement of mens rea, and libertarians who want to keep the state within bounds must take this feature of the state into account.

If the fetus has as strong a claim to life as a child, then the fact that the fetus resulted from rape or incest, or that it has severe anomalies, cannot justify an abortion. After all, a child born of rape or incest, or with severe anomalies, may not be killed. This leads to a further reason why abortion bans must expand the role of government in our lives. More babies with birth defects will be born, most parents will be unable to take care of them entirely on their own, and private charities will be limited in their ability to help. The obvious outcome is that the state will have to provide support for them. But no new or more extensive state program comes without higher taxes and a new and more meddlesome bureaucracy. 

For all these reasons, abortion bans open the door to an ever-more powerful state. Two of the three reasons I’ve given – the nature of pregnancy and the pregnant woman’s relation to a fetus – don’t apply to laws against homicide as ordinarily understood. The closest thing to a miscarriage in the case of homicide is an accidental death. But whereas a miscarriage often cannot be distinguished from an abortion, an accidental death can often be distinguished from a murder. Again, no one person has the unique relation to the victim of a homicide that a pregnant woman has to a fetus. So the possibility of homicide does not invite the kind of encroachments on our bodily integrity that abortion bans invite on women’s bodily integrity. The only thing comparable to them is the war on drugs. 

Libertarians can believe that abortion is morally wrong and try to persuade others of their position without contradicting their commitment to a limited government. But they cannot support a legal ban on abortion without doing so. They must choose between abortion bans and a limited government. 

…………………………..

*The Supreme Court decision of June 27th, 2022, declaring that doctors who act in good faith can’t be prosecuted just because their actions fall “outside the usual course of [medical] treatment,” has finally freed doctors to follow their best clinical judgment, based on each patient’s specific circumstances.

Current Events, Discourse, Education, Ethical Issues, Free Speech, Law & Legal Philosophy, Misc Academic Issues

Locke and Land Acknowledgements 

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The following is a guest post by Kyle Swan, Professor of Philosophy and Director of Center for Practical and Professional Ethics at CSU Sacramento.

Stuart Reges is suing his employer, the University of Washington, for violating his First Amendment speech rights. The University initiated an investigation into whether Reges violated its anti-harassment policy for publishing a land acknowledgement statement on his course syllabus. His read, 

“I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.” 

Reges is protesting the recommended acknowledgment circulated by the University. The protest is clearly protected speech. I hope Reges wins his suit decisively. 

But what about Reges’s statement? He appears to be serious. In a Quillette article he writes, 

“I am a Georgist, and according to the Georgist worldview, Native Americans have no special claim to any land, just like the rest of us. But since few are familiar with that economic ideology, I leaned instead on a principle described in John Locke’s Second Treatise on Government, now known as the labor theory of property or the ‘homestead principle.’ To the Georgist idea that land is owned in common by all living people, Locke added that by mixing one’s labor with the land, one encloses it from the shared property because people own the products of their labor. If, for example, you make the effort to grow corn on an acre of land, you come to own that acre of land, so long as there is still plenty of land left for others to use.” 

The labor theory Reges refers to is a theory of property acquisition. In its original state, the entire earth is given to us in common. Nobody owns stuff in the world. The question is, how can we remove things from the commons and make rightful claims to them that would allow us then to exclude others from using them? 

Locke provides some conditions. First, it has to be true that someone hasn’t already done that — the stuff has to not be already owned. Second, the person appropriating something from the commons has to do it in a way that improves it through their productive activity — gathering berries, hunting deer, growing vegetables, clearing trees — all kinds of activity counts. Finally, the way they do this has to leave enough and as good for others, so that no one would have reason to complain about the appropriation. 

Professor Reges’s acknowledgment is saying that Coastal Salish people weren’t ever in a position to claim ownership. They were never rightful owners. So when settlers came to the area in the late 1840s or whenever, he supposes these settlers were appropriating the land from the commons, rather than from a group of people. 

Professor Reges’s application of Locke’s theory is dubious. I’m a philosopher, not a historian, but it seems unlikely to me that there were no groups of native people engaged in productive activity in the relevant areas when settlers showed up. 

More importantly, though, if Reges is correct and there weren’t people there already with legitimate ownership claims, then the behavior of government authorities in the mid-19th C was very odd. Because what they were doing was negotiating treaties with the native peoples, including the Salish. Doing so suggests their recognition of legitimate claims made by these groups. Why were they making contracts to acquire land from these native peoples if they didn’t own the land? It seems incredible they would do this if they regarded the lands as unused, unoccupied, and unowned. So it looks like this was a transfer of land ownership rights, not an original appropriation of them. 

Now everything hangs on how these contracts were presented and executed. Were the negotiations above board? Were all the relevant people groups represented? Did they all sign? Were all the terms of the contract fulfilled? Again, I’m a philosopher, not a historian, but if not, if there were problems with the agreement, then there wasn’t a legitimate transfer of the Washington territories. 

If that’s right, then a different part of Locke’s theory applies, which you can find in a later chapter of the 2nd Treatise, Of Conquest. There Locke argues that an aggressor who “unjustly invades another man’s right can…never come to have a right over the conquered…. Should a robber break into my house, and with a dagger at my throat make me seal deeds to convey my estate to him, would this give him any title? Just such a title, by his sword, has an unjust conqueror, who forces me into submission. The injury and the crime is equal, whether committed by the wearer of a crown, or some petty villain. The title of the offender, and the number of his followers, make no difference in the offence, unless it be to aggravate it.” 

And so “the inhabitants of any country who are descended and derive a title to their estates from those who are subdued and had a government forced upon them against their free consents, retain a right to the possession of their ancestors….the first conqueror never having had a title to the land of that country, the people who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves….If it be objected, This would cause endless trouble; I answer, no more than justice does.” 

Locke’s theory of acquisition has two parts. The first is a theory about how original appropriation would be legitimate. The answer has to do with labor and productive activity. But that part doesn’t seem to apply to this case, since it looks like the Salish already had an existing claim. The second part of the theory is about how acquisition by transfer would be legitimate. The answer here has to do with agreement, and everything depends on the quality of the agreement and how it was or wasn’t honored. But we see there’s more to the story. When there has been no agreement, no just transfer and only conquest, Locke says that people retain “the native right of their ancestors.” 

Locke has long been accused of providing intellectual and justificatory cover for the (mis)appropriation of Indigenous people’s land in America and around the world. But it seems like it’s been Locke’s views that have been misappropriated.

Current Events, Free Speech, Misc Academic Issues

Georgetown University Does Not Have a Speech and Expression Policy

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The following is a guest post by John Hasnas. Dr. Hasnas is a Professor of Ethics at Georgetown University’s McDonough School of Business and Professor of Law (by courtesy) at Georgetown Law Center.

In 2017, to great fanfare, Georgetown University adopted a speech and expression policy that states,

It is Georgetown University’s policy to provide all members of the University community, including faculty, students, and staff, the broadest possible latitude to speak, write, listen, challenge, and learn. . . . It is not the proper role of a university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Deliberation or debate may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or ill conceived.

On January 26, 2021, the incoming Executive Director of Georgetown law’s Center for the Constitution, Ilya Shapiro, expressed his disapproval of President Biden’s decision to consider only African-American women for appointment to the Supreme Court by tweeting: “Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into latest intersectionality hierarchy so we’ll get lesser black woman.”

On January 27, the dean of Georgetown Law published a campus-wide e-mail in which he called the tweet “appalling” and “at odds with everything we stand for at Georgetown Law.” On January 31, the dean placed the director on “administrative leave, pending an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment.” 

On June 2, the dean published a campus wide e-mail in which he stated that Mr. Shapiro’s “tweets could be reasonably understood, and were in fact understood by many, to disparage any Black woman the President might nominate.” He went on to explain that 

In considering how to address the impact of Mr. Shapiro’s tweets, I was guided by two overarching principles. The first is the Law Center’s dedication to speech and expression. Georgetown University’s Speech and Expression Policy provides that the “University is committed to free and open inquiry, deliberation and debate in all matters, and the untrammeled verbal and nonverbal expression of ideas.” The second and equally important principle was our dedication to building a culture of equity and inclusion (emphasis added).

He then pointed out that the speech and expression policy states that “[t]he freedom to debate and discuss the merits of competing ideas does not mean that individuals may say whatever they wish, wherever they wish.” He further noted that speech that violates the University’s Policy Statement on Harassment is prohibited and that the Speech and Expression Policy does not supersede professional conduct policies or HR policies. He omitted the next sentence that states, “But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions not be used in a manner that is inconsistent with the University’s commitment to a free and open discussion of ideas.”

The dean concluded his e-mail by stating,

Georgetown Law is committed to preserving and protecting the right of free and open inquiry, deliberation, and debate. We have an equally compelling obligation to foster a campus community that is free from bias, and in which every member is treated with respect and courtesy. I am committed to continuing to strive toward both of these indispensable goals (emphasis added).

Apparently, Georgetown has equally compelling commitments to “free and open inquiry, deliberation, and debate” and “to foster a campus community that is free from bias, and in which every member is treated with respect and courtesy.” 

Combining these two commitments means that Georgetown’s policy is to provide all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn unless some members of the Georgetown community could reasonably understand what is being expressed as disparaging them or the administration finds the comments at odds with what Georgetown stands for. It means that Georgetown believes that it is not the proper role of a university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive unless they offend some members of the Georgetown community. It means that members of the Georgetown community are free to express ideas that others find to be offensive, unwise, immoral, or ill conceived unless students or administrators deem them too offensive, unwise, immoral, or ill conceived to be permitted.

It means that Georgetown University does not have a speech and expression policy. 

Editors note: Yesterday, Ilya Shapiro resigned his position at Georgetown, claiming it would be a hostile work environment wherein he was set up to fail.
Current Events, Ethical Issues, Social Criticism

Collective vs. Individual Risk Assessment: An Illustration

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This is a guest post by John Hasnas (Georgetown University)

I move between two worlds. I work at Georgetown University in Washington, DC and I live in the Lake Barcroft community in Northern Virginia. The former is governed by the collective risk assessment made by the government of the District of Columbia and the University. The latter is largely governed by the individual risk assessments made by the residents. The former is a sad, lonely, and oppressive place. The latter is a cheerful, friendly, happy place.

This semester I have been teaching a hybrid class at the Georgetown Law Center. Entering the building in the hours before class is like stepping into the twilight zone episode, “Where Is Everybody?” in which Earl Holliman wanders through a totally deserted city. The class is held, not in a classroom, but in a large auditorium, which in pre-pandemic times seated 328 people. Now a maximum of 35 out of the 105 enrolled students sit in their own 42 square foot bubbles. The students, all of whom have tested negative for the coronavirus, are required to wear masks at all times and are not permitted to eat or drink in the building. During the 10 minute break in the 2 hour class, they must stand on little blue circles on the floor separated by 6 feet when they talk to each other. The law school encourages students and staff who observe violations of these rules to report the offenders who may then be barred from campus. Some of my students were reported for taking their masks off to eat or drink during the break and for standing too close to each other. I have been fully vaccinated since March 13, but I must teach wearing a mask.

The Lake Barcroft community surrounds a lake that has several artificially created beaches. Sunday was a beautiful, warm, sunny day in Northern Virginia. I decided to take a kayak out onto the lake for relaxation and little exercise. When I got to the beach it was filled with people. Families were playing together. Kids were wading and paddling around on kayaks and paddle boards. Several groups of friends, both teenagers and adults, were socializing together or playing frisbee or spike ball. There was laughter. And nary a mask in sight.

On the other hand, on my way to the beach, I passed individuals and couples who were out for a walk by themselves, some wearing masks, some not. Some of these crossed the street to make sure they did not come too close to me. Everyone nodded or waved hello as we passed.

I am fairly certain that my students and I would behave differently if we were free to make our own risk assessments. I believe that several of my students who are aware that everyone in the room has tested negative for Covid would sit closer together, socialize more in the break, and perhaps not wear masks. I certainly would not wear a mask when teaching. Having been both vaccinated and tested negative, I do not believe I am at risk myself or pose a significant risk to the students, the nearest of whom are several yards away from me. Of course, some of the students who come to class might not be comfortable with such conduct, and may decide to stop attending in person and join the rest of the class who are taking the course online. The two groups would be the analog of the people happily congregating at the beach and those walking alone along the street.

When we are free to make risk assessments for ourselves, we consider not only the danger to be avoided, but also the cost of what we must give up to avoid it. When risk assessments are made collectively, all that is considered is what will most effectively reduce the danger. There is no way to consider the varied personal cost felt by each individual and no incentive to do so. This is a rather mundane observation. But as I move between my classroom at Georgetown and the beach at Lake Barcroft, I feel its profound effect on the happiness of those in each camp.

Law & Legal Philosophy, Political Philosophy/Theory, Social Criticism

Is it Useless or Wrong for Libertarians to Vote For Pro-Liberty Candidates?

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Guest Post by Neera Badhwar, Professor Emerita of Philosophy at the University of Oklahoma and is affiliated with the Departments of Philosophy and Economics at George Mason University.

Some libertarians believe that voting is wrong because it makes you complicit in the state’s oppression. This argument goes back to 19th century abolitionists, most notably William Garrison and Wendell Phillips, who argued that even voting for an abolitionist, anti-war candidate makes you complicit in the oppression of the state. This is because all government officials have to take an oath to uphold the pro-slavery Constitution, and judges have to enforce its pro-slavery provisions, such as the one that “required states to return runaway slaves to their master (Art. 4, sec. 2)”. An oath, according to Phillips,  is a “contract between him [the official] and the whole nation.” Even if the official’s aim in seeking office is to ultimately bring about a Constitutional amendment to end slavery, he has to support the Constitution till he succeeds (Garrison). So if you vote for a candidate, you will be partly responsible for his pro-slavery oath and actions. “What one does by his agent he does himself” (Phillips).

Garrison’s and Phillips’ arguments work, if they do, only if they are right that the Constitution is pro-slavery. But if it is anti-slavery, as Lysander Spooner and Frederick Douglass argued, and your candidate shares their belief, your vote for him does not make him – or you – complicit in supporting oppression.

However, even if the Constitution is pro-slavery, and your candidate believes that it is, he also knows that the Constitution allows speech critical of slavery, and thus of the Constitution. The Constitution also provides a process for amending it, and allows people to run for office in order to amend it. In other words, even if the Constitution is pro-slavery, it contains within itself the seeds of its own reform. So fidelity to the Constitution by someone committed to doing his part in ending slavery does not entail support for its pro-slavery provisions. Rather, it entails a rejection of these provisions. Hence, if this is why an anti-slavery candidate runs for office, he is not complicit in the oppression of the state, and neither is the voter.

We don’t have slavery any longer, but Garrison’s and Phillips’ rejection of electoral politics is still influential. Contemporary libertarians who reject electoral politics sometimes argue that to vote for a candidate, even a pro-liberty candidate, is to participate in the oppression of the state because no candidate is consistently libertarian. So if you vote for such a candidate, you are partly responsible for her oppressive actions. However, if your reason for voting for an imperfectly libertarian candidate is to defeat the anti-liberty candidate and reduce oppression, how can it make you complicit in the former’s oppressive actions? And even if it does, how can allowing the far more anti-liberty candidate to win not make you even more complicit in the perpetuation of oppression?

No doubt the anti-voting libertarian would reply (and I would agree) that there Is a difference between doing x and letting x happen. Letting someone drown when you can easily save her is not morally equivalent to throwing her into a river tied to a rock. But it is, nonetheless, wrong to sit on your hands instead of trying to save her. Likewise, under analogous circumstances, that is, when voting is easy and the pro-liberty candidate has a good chance of winning, I believe not voting for her is mistaken. And if  there’s nothing else you are doing to further your pro-liberty values, your not voting for her is wrong.

My brief in favor of voting might seem naive, since one vote makes no difference to a candidate’s chances of winning in a Presidential election. But not all elections are Presidential and not all “one votes” are truly one. If the race is a local one (county or municipal), and influential libertarians vote and defend voting for a local libertarian candidate, many others will also vote, and the candidate could win. This might also be possible in a state election. In any case, there’s a ‘performative’ contradiction in influential libertarian bloggers telling a readership of hundreds or even thousands that one vote doesn’t make a difference, as though every person’s “one vote” stays in its own corner instead of getting added up to every other person’s “one vote” to make hundreds or thousands of votes for the pro-liberty candidate. If the “one vote” argument were sound, it would apply as well to arguing for libertarian principles in books, blogs, or articles, since no one book, blog, or article makes a difference to people’s understanding of or support for libertarian principles (just think of how many have argued for these principles over the last 350 years, and how few they have persuaded).

In any case, victory at the polls is not the only goal of voting. Strong electoral support for a libertarian candidate even in a Presidential election can bring libertarianism to people’s attention the way blogs, articles, or books do not.

Libertarians are right that most people should not vote because they are ignorant of the issues, or because their views are mistaken, or because they can do more good by using their time for other ends. But they are not right to discourage libertarians from voting for pro-liberty candidates. Insofar as they do this, they play a significant role in the victory of the anti-liberty candidate, and become complicit in his oppression. They are like the non-rescuer who urges other people not to rescue the drowning victim. Libertarians are also wrong to discount the possibility of positive results from an electoral victory. Slavery was ended not by the intellectual and moral groundwork laid by abolitionists alone, but also by the electoral victory and actions of an imperfectly anti-slavery President, Abraham Lincoln.

Current Events, Discourse, Political Philosophy/Theory, Social Criticism

What Shouldn’t Be Surprising about Democracy

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The following is a guest post from John Hasnas of the McDonough School of Business at Georgetown University.

One of the drawbacks of not being a committed supporter of democracy is that one loses the ability to be continually surprised by the discovery of the obvious. Currently, the intelligentsia is shocked to find that significant percentages of the public 1) subscribe to “conspiracy theories”–the current euphemism for beliefs held without supporting evidence and in the face of strong disconfirming evidence–and 2) don’t seem committed to the preservation of democratic institutions. But to those of us who view democracy dispassionately rather than as true believers, there is nothing surprising about this at all. It is precisely what we would expect. 

1) Under democracy, the person or policy that receives the most support prevails. But majority support has no necessary connection to the facts of reality. For example, a majority that wanted to stop illegal immigration could vote for a politician who promises to build a wall across the southern border of the United States, even though, as a matter of fact, this would have almost no effect on illegal immigration. Or a majority that wanted to help the poorest members of society could vote to raise the minimum wage to $15 per hour, even though this would reduce employment for the poorest unskilled workers.

When we make decisions for ourselves, most of us pay close attention to the facts of reality. We look both ways before we cross the street. When we drive, we stop at red lights and refrain from driving 90 miles an hour through residential streets. We consider how much money we make in deciding how much money to spend. We comparison shop, consider the prospects for return before making investments, perform regular maintenance on our cars and homes, and purchase automobile, life, health, and homeowner’s insurance. We don’t just walk up and take other people’s stuff. 

We do this because each of us would personally suffer the consequences of ignoring the facts of reality. Failure to look both ways means that we might be hit by a car. Reckless driving means that we might crash. Profligate spending means that we might go bankrupt. Failure to comparison shop, invest carefully, perform necessary maintenance, and purchase insurance means that we may suffer financial losses. Failure to observe property rights means that we may be punched in the nose. 

Things are different when we vote. Because voting one way rather than another imposes no direct consequences on us personally, there is little reason to consider the way the world actually works. Thus, we are free to indulge our imagination and vote for the way we want the world to be. We can imagine that a big, beautiful wall across the southern border will stop illegal immigration, so we vote for the politician who promises to build it and have Mexico pay for it. We feel compassion for low skilled, low wage workers, so we vote to give them all $15 per hour. 

The incentive structure of democratic decision-making encourages people to indulge their fantasies and vote in ways that make them feel good about themselves. This good feeling can be obtained by signaling that one cares about the poor or that one cares about family values, or that one supports his or her team or that one is a loyal member of the tribe. There is no need for one’s vote or other political activities to be tied to the facts of reality to obtain these psychological benefits. After watching large segments of the population believe that a border wall will stop illegal immigration, that Russian interference determined the outcome of the 2016 election, that the Chinese pay tariffs rather than American consumers, and that deficits don’t matter, can it really be surprising that many people believe that there was widespread voter fraud in the 2020 election? Since the believer suffers no personal harm from indulging in such a belief and can gain significant psychological benefit from doing so, how can we be surprised by the prevalence of political conspiracy theories?

2) And it surely should not be surprising that the abstract support for “democratic institutions” disappears when one’s side loses an election. In the first place, supporting democracy in the real world borders on the irrational. A commitment to democracy requires one to believe that the policy of the candidate who receives the greatest number of votes should be adopted. But when one votes, he or she is expressing a personal belief about the desirability of a proposed policy. If our committed democrat’s opponent receives more votes, he or she must now simultaneously believe that the policy of the candidate he or she opposed should be adopted based on the belief that social policy should be determined by the democratic process and that the policy of that candidate should not be adopted based on his or her personal belief. 

Imagine that a candidate runs for President on a platform of building a wall across the southern border of the United States, temporarily banning Muslims from entering the United States, and imposing tariffs on products manufactured overseas. Also imagine that Debbie Democrat, a firm believer in democratic governance, strongly opposes all of these measures and believes that their adoption is both immoral and would be disastrous for the country. Accordingly, she votes for the opposing candidate. Assume however that after the votes are counted, her candidate loses. Debbie Democrat is now in the uncomfortable position of simultaneously believing that a wall should be built across the southern border of the United States, Muslims should be temporarily banned from entering the United States, and tariffs should be imposed on products manufactured overseas based on her belief that social policy should be determined by the democratic process and that none of these measures should be adopted based on her personal belief that they are immoral and counterproductive. 

How surprising can it be that the losers of an election will try to obstruct the will of the majority whether through protests, lawsuits or other procedural impediments, civil disobedience, or even intimidation and violence? What wouldbe surprising would be for Debbie and those who voted with her to say, “Well, we lost the election, so we should do all we can to help put the will of the people into effect and support building the wall, banning Muslims, and imposing tariffs at least until the next election.” 

For most people, democracy is like religion. Belief that democracy is a morally justified and necessary form of government is accepted as a matter of faith. It is only we few heretics who actually examine democracy’s features. We are the ones who notice that democracy is a zero sum game; that under democracy, all must conform their behavior to the will of the majority, and that this makes democracy a winner-take-all game that creates an incentive to defeat one’s opponents at all costs.

In Chapter 10 of his 1944 book, The Road to Serfdom, Freidrich Hayek explained why, in a winner-take-all political system, adherence to principle is self-eliminating. The politician whose commitment to principle prevents him from doing what is necessary to gain power is washed out of the system, or as Bill Clinton more succinctly put it when asked why he lied during the 1996 Presidential campaign, “You gotta do what you gotta do.” In a democracy, any politician whose commitment to abstract moral or political principles prevents him or her from doing what will generate the most votes, loses. This makes politicians’ explicitly hypocritical behavior and application of double standards, which is so shocking to democracy’s true believers, such a mundane observation to us. It is also why we know that it is pointless to exhort people to eschew “whataboutism” as a form of political argument. Far from an aberration, such argumentation is baked into government by electoral majority. 

Many intellectuals seem surprised that Republican politicians who were running for their lives from a mob whipped up by President Trump on January 6 could vote overwhelmingly not to impeach Trump less than three weeks later. But to those of us with a realistic view of the incentive structure of democracy, nothing could seem more natural. You don’t get to make policy if you don’t get elected. So, in the words of Bill Clinton, “You gotta do what you gotta do.”

Ethical Issues, Social Criticism

Why aren’t more women Libertarians?

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This is a guest post by Angela Dills, the Gimelstob-Landry Distinguished Professor of Regional Economic Development at Western Carolina University

Clearly, climate is an issue and one that should be addressed by everyone.  Libertarians want less government and fewer laws, which means that civil society – communities, organizations, families – needs to take on roles that government has taken on.  That means using our influence to dissuade others from poor behavior: holding ourselves to high standards of behavior, critiquing harmful and rude behavior out loud, restraining those who persist in poor behavior from opportunities to do so.  

So why aren’t more women committed to libertarianism?

Women are pros at building and maintaining civil society. Women still complete a disproportionate share of household chores for their own families, giving up their leisure and market work time to raise children and care for elderly parents.  Women are more likely to attend religious services regularly. Women are more likely to volunteer.   I presume that women engage in other community building activities more often, too, even when it’s not well measured in surveys.  Neighbor had surgery? A woman probably baked that casserole or organized that meal train to bring over for dinner.   Spouse is sick?  A woman probably took your kids out for the day to give you time to rest.[1]  Christmas and New Years’ cards, birthday greetings, celebration planning – all those interactions that maintain connections among friends and family are more often made by women.  

Consider a thought experiment of what might change as government shrunk. Certainly, I expect entrepreneurs to deliver some services – more private security, more private schools, health care services produced and priced for lower income households, and the like.  And, given the literature on crowd out (here or here or here, for example), I expect philanthropists to expand their charitable endeavors when government reduces its transfer activities.  Given opportunities to retain more of their earned income, generous people in our communities would give more, and more effectively, to help the less fortunate.

Less government increases the need for civil society in all its forms: charitable organizations of all sorts, religious institutions, civic institutions (like Rotary International), community groups, professional organizations, and more.  One hesitation some might have about the feasibility of less government is whether and how much groups like these will step up to help the less fortunate.  And, like many courses of action that liberty-lovers advance, it is impossible to say for sure what will emerge. Spontaneous order is annoying like that. 

But women know this: they know they’ll step into the gaps.  Cooking extra to bring to the neighbor in need. Organizing a coat drive for the trailer park residents as winter approaches.  Checking on the elderly neighbor for a chat and to make sure her heat functions, then sending an older child over to shovel snow from her driveway. Filling the Little Free Pantries and Little Free Libraries around town. Women are the backbone of civil society.   Women build the trust and the community and care for their friends and neighbors.  We know these transfers of time, money, energy, and love can happen in a free society. Because they happen every day. 

I suspect many women understand that, unless more men step up to the community-building plate, that less government means more unpaid, and too often unrecognized, work for women. I suspect some turn away from smaller government ideas, not eager for more of this load of worrying about and caring for those in need.   

For me, seeing people care for their friends and neighbors reassures me that good people in our communities already work to help the less fortunate. Just in our small town, we have a woman who collects items for new foster children (and others) who may arrive to new homes with only the clothes on their backs; a couple who helps the homeless and nearly homeless find or keep their homes, providing emergency supplies and assistance; angel trees to provide Christmas gifts for children whose parents might not be able to afford them. 

There are organizations and businesses run by people who have taken their passion for their community and love for their neighbors, gotten to know the specific needs, and found ways to collaborate to meet them. There are friendship networks and support systems that look out for changing needs and work to meet them, efficiently and effectively providing assistance in ways government welfare programs don’t. I mean, when’s the last time the Department of Social Services baked a casserole for an overwhelmed family? 

In a society with less government, more of that work may need to be done. I firmly believe that local knowledge allows private charitable behavior to more efficiently and effectively meet the needs of the less fortunate. I hope, though, that men will join women in taking on these tasks instead of waiting for women to manage even more of the caring. 

Thanks to Andrew J. Cohen and Sean Mulholland for conversations about the above.  

[1] Not saying men don’t do these things. They do! You can see it in the surveys on volunteering. Men are just less likely to do so.  But it happens, both formally and informally. One small example: when my husband was sick recently, his friend Bill picked up our energetic dog every afternoon to exercise her. Thanks Bill! 

Uncategorized

110 Harms of Crony Capitalism

110 Harms of Crony Capitalism

Guest Post by Neera Badhwar, Professor Emerita of Philosophy at the University of Oklahoma and is affiliated with the Departments of Philosophy and Economics at George Mason University.

David Forsyth interviews me about crony capitalism. While cronyism is both unjust and harmful, I argue that not all businesses that engage in cronyism are equally at fault. And some may not be at fault at all.

But you may prefer to read my discussion of crony capitalism in https://www.libertarianism.org/columns/cronyism-toxic-friendship-between-business-government, where I also reject the claim made by some libertarians that seeking tax credits is not cronyism because “the state never had a right to impose taxes on us in the first place.” This argument proves too much. If it’s ok to seek tax credits, it’s also ok to seek subsidies and low‐​interest or guaranteed loans, because they also draw on the taxes that the state “never had a right to impose on us”.

Ethical Issues, Uncategorized

Why Do Horrid People Have Rights? (Part II)

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Guest Post by Neera Badhwar, Professor Emerita of Philosophy at the University of Oklahoma and is affiliated with the Departments of Philosophy and Economics at George Mason University.

In Part I, I showed that justifying liberty rights on the grounds that we need them to pursue eudaimonia fails to show why people who are incapable of pursuing eudaimonia have liberty rights. Here I will ask if a less ambitious justification can include the excluded people.

According to Loren Lomasky, most of us are project-pursuers (CE*), setting long-term goals for ourselves and creating personal value. Personal projects give our lives structure and meaning. Indeed, they are part of our very identity (CE*). Lomasky argues that it is this that endows each project-pursuer with a separate, irreplaceable value, and grounds rights.

However, according to Lomasky, it is not only project-pursuers who have rights. Some non-project-pursuers have rights by virtue of their membership in the moral community of project-pursuers who have “the rational motivation … to recognize and respond to” non-project-pursuers (199). This is why those born so mentally incapacitated that they will never pursue projects, as well as those who can no longer pursue projects on account of dementia, have rights. They are proper objects for “the respect of others” (199). All these individuals ‘piggyback’ on the status of project-pursuers as rights holders. If the vast majority of human beings were not project-pursuers, no one would have rights.

So there are two bases for ascribing rights to people: project-pursuit and membership in a community of project-pursuers. This argument, if sound, justifies the ascription of rights to far more people than the eudaimonistic argument. In addition to those who will never pursue projects and those who can no longer do so because of dementia, it also allows hopeless addicts to count as rights-bearers. But it leaves the fate of the psychopath and the vicious man in limbo. Full-fledged psychopaths are not and never were project-pursuers because they don’t have long-term goals. One of the most enduring traits of a full-fledged psychopath is his impulsivity – giving in to the desire of the moment. Hervey Cleckley observes that the “[full] psychopath shows a striking inability to follow any sort of life plan consistently, whether it be … good or evil. He does not maintain an effort toward any far goal at all. … On the contrary, he seems to go out of his way to make a failure of life…. At the behest of trivial impulses he repeatedly addresses himself directly to folly” (CE*) (364). 

Is the psychopath a member of the moral community of project-pursuers? If being a member simply means ‘living in society’, then of course he’s a member of the moral community. But if it means that he is recognizable as “a proper object for the respect of others” (199, my italics), then he is not, since he inflicts harm and psychological pain on family members and strangers without guilt.[1] It seems that neither of Lomasky’s arguments can justify ascribing rights to a psychopath. Yet we do think that he has a right to liberty unless or until he violates someone’s rights.

The vicious man described in Part I, whose supreme joy lies in seeing others suffer, but who is smart enough not to violate others’ rights, poses a different problem. He does have a project: the project of making others suffer. This project might give meaning and structure to the vicious man’s life, but its meaning for others is completely negative. Hence he, too, is not a proper object of our respect. The same applies to other varieties of anti-social personalities. Yet we do think that they ought to live free so long as they don’t violate anyone’s rights.

We are either wrong to believe that full-fledged psychopaths (who, by their nature, cannot become project-pursuers), vicious people (whose projects are intentionally inimical to other people’s projects), and anti-social personalities have liberty rights, or we have to look for a different justification.

Let’s start by asking why we might not want such people to have liberty rights. The main reason is that they inflict misery on others without rhyme or reason. But we don’t have a right against misery, because such a right would conflict with many of our liberty rights. It is morally wrong to be a treacherous lover, an unjust boss, a hateful neighbor, a domineering parent, or a nasty teen, but we all have a right to be thus. A right against misery would also conflict with our liberty to behave in perfectly decent ways, because even decent behavior can be a source of misery for some. For example, a young woman who marries someone with the ‘wrong’ politics, religion, or skin color can make her parents miserable. So if the parents had a right to be protected from misery, it would follow that their daughter did not have a right to marry the person she wants. Again, a son’s decision to become a businessman, instead of a musician like his father, might make his father miserable. But the father’s right against misery would mean that the son does not have a right to become a businessman. As these examples show, a right against misery can be self-defeating, since A’s lack of liberty to inflict misery on B is often B’s liberty to inflict misery on A. The idea that we have a right to be protected from misery opens wide the door to government overreach and a violation of many of our rights. It invites the government to become a predator instead of a protector. If we are made miserable by others’ behavior, we need to rely on friends, relatives, or psychologists for support. So psychopaths and other trouble-makers can’t be denied their liberties on the grounds that they make us miserable.

But what is it about them that grounds their rights? The only answer is that, for all their badness, many psychopaths, vicious people, and anti-social personalities have the ability to not violate our rights, even if only for purely instrumental reasons. It is this ability that gives them a right to liberty. This answer of course applies to everyone with this ability – the virtuous as well as the vicious, and everyone in between. But in the case of everyone other than the vicious, the anti-social, and the psychopathic, we also have other reasons to regard them as rights-bearers, reasons that show the importance of rights in human life.

[1] It’s possible that what Lomasky means by ‘respect’ is simply ‘respect for us as rights holders. But that makes his argument circular: we have rights because we are proper objects of respect, and we are proper objects of respect because we have rights.

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Uncategorized

Why Do Horrid People Have Rights? (Part I)

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Guest Post by Neera Badhwar, Professor Emerita of Philosophy at the University of Oklahoma and is affiliated with the Departments of Philosophy and Economics at George Mason University.

Individual rights to life, liberty, and property protect our freedom from others’ interference. Rights are claims on others to refrain from initiating physical force on us or defrauding us. Having and respecting rights implies, for instance, that we have a right to buy a house for ourselves, but no right to throw out the owners of a house in order to make room for ourselves. To do so is to invade (in this case, both literally and metaphorically) the occupants’ protected space of freedom to own that house. Rights are boundaries marking the extent of our freedom to act as we please, and both government and individuals are morally bound to respect them. Force is justified only in self-defense or, in the case of government, in defending our rights. On the libertarian conception of rights and the limits of state power, governments may not force us to do or refrain from doing things in order to make us more happy, healthy, or moral. Rights prohibit governments from passing and enforcing paternalistic or moralistic laws and policies.

What is it about us that grounds rights, in particular, our rights to life and liberty?  Most philosophers appeal to our nature as rational, self-directed beings, beings with the capacity to act on goals we set for ourselves. We own our minds and bodies the way we own our property, and no one may use our bodies or property without our consent. Another way of capturing this thought is to say that we are ends in ourselves (see, for example, Nozick (CE*) and Mack), with ends of our own, not mere means to other people’s ends. No matter how noble the goal to which the government or society want to sacrifice us, if we don’t consent to being sacrificed, it is wrong of them to do so. Rights prohibit them from treating us as mere means through physical force or fraud – they protect our ends-in-ourselves-ship. This is why they are morally important and worthy of respect.  

The mere fact that we have ends of our own, however, doesn’t seem enough to justify the importance of rights in libertarian theory. After all, our ends can be banal, such as mindlessly watching sitcoms and eating popcorn all day long. Some philosophers (e.g., Rasmussen and Den Uyl-CE*) argue that rights are important because they create the conditions we need to pursue our ultimate goal as human beings and individuals: eudaimonia. Eudaimonia is happiness in a virtuous life,and we need to be left free to direct our choices as we see fit in order to achieve it. Without freedom of speech and action, we have little chance of achieving a mature understanding of right and wrong, much less of aiming at virtue and eudaimonia.

This argument, however, can’t explain why everyone who is commonly regarded as a rights-bearer ought to be so regarded. Most people are mixed in their character and actions. Although they don’t assault others, or steal their property, or defraud them (in a big way), many do engage in small dishonesties when they can get away with them (see Ariely). We are familiar with politicians lying to us in order to win votes or save face, and with businesses unjustly seeking favors from politicians in order to outdo the competition. There’s little reason to think that the rest of us would be much better if we were in their situation. The chief aim of many people is to avoid trouble with the law and get along with others. They are likely to be virtuous with those they love, and many earn their living in a worthwhile enterprise. But they are far from having the moral ambition to become better people overall, as they must to have rights according to the eudaimonistic argument.

The eudaimonist could say that if our rights are respected, at least some of us might improve morally, since we all have the capacity to do so. There is no way to tell in advance who will and who won’t. But this answer leaves out many categories of people.

Addicts who are incapacitated by their addiction do not and cannot aim for virtue. Indeed, they cannot even will to aim for virtue. Their natural capacity for doing so has been swamped by their ‘second nature’ – their addiction. Yet on the libertarian view, which the eudaimonistic philosophers share, they too have the right to act as they choose, so long as they don’t violate other people’s rights. Libertarians don’t think that it’s permissible for the government, or for the addicts’ relatives, to haul them off to an institution for treatment so that they can recover their capacity for trying to become virtuous. Again, children born with severe mental defects will never strive for virtue, and adults who develop dementia will never again do so.

Psychopaths, thought to constitute roughly 2% of the American population, are also a problem for the eudaimonist thesis. Full-fledged psychopaths are incapable of love or empathy, psychopaths inflict harm and psychological pain on family members, friends, and strangers, without guilt. They are rational in the sense that they can fit means to goals, and understand arguments for acting in certain ways and not others. But they are not rational in the sense that they can understand the significance of these arguments. Hence, they are not moved by their understanding. In other words, they have theoretical rationality, but not practical rationality. This is why the psychiatrist, Hervey Cleckley (CE*), who has seen hundreds of psychopaths in his practice, describes their appearance of sanity as a mask. Yet if they don’t violate others’ basic rights by assaulting, killing, robbing, or defrauding them – and many don’t – they are considered as having rights, and we are under an obligation to respect their rights. The same applies to other brands of trouble-makers, such as people with anti-social personalities. Extremely vicious, but non-psychopathic, individuals, whose aim in life is to create trouble for others, and who take joy in seeing others suffer, but without violating their rights, also pose a problem for the eudaemonist thesis. There is little reason to think that they can change for the better, and no reason to think that they can if they are close to death. Yet we don’t strip them of their rights as they approach the end.

Trying to justify rights on the grounds of people’s capacity to pursue eudaimonia implies that many people we think have rights, don’t. It seems that the more exalted our view of human nature and human action as a basis for respecting rights, the smaller the number of people we can justifiably regard as rights-bearers.  

In Part II I’ll consider a less exalted view of human nature as a basis for rights to see if it can justify ascribing rights to people who are excluded by the eudaimonistic justification. It will also become evident in Part II that the same justification does not work for everyone.

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