Over at the NRO, Andrew McCarthy has an interesting column on the controversy about NSA. I hope to say something about the President’s review board at some point. McCarthy’s description of the members of the board is interesting: It is composed of only five members. Three are academics: Cass Sunstein, who served as regulatory czar in the president’s first regulation-happy term; Geoffrey Stone, a civil-liberties scholar; and Peter Swire, a privacy-law expert who also worked in the Clinton administration. I have great respect for their scholarship, but all three are predisposed to elevate civil-liberties concerns over national-security needs. The president’s panel…
Archives for December 2013
There are surely good arguments for the NSA metadata collection program. The bare assertion—evident on the Sunday shows last weekend—that it would have prevented 9/11 is not one of them.
It is, for starters, highly speculative. The pre-9/11 problem was not a lack of data but a lack of coordination. One need not engage in retrospective blame to observe that clues generated by the old technology—larger needles in a smaller haystack—seem, in searing hindsight, not to have been lacking.
The deeper problem is retrospective risk analysis. Its concomitant is the attempt to use 9/11 as a rhetorical trump. It is intended to stop conversation rather than start it, as in Rep. Peter King’s understandable display of pathos on Meet the Press: “I live in New York. I lost about 150 friends, neighbors and constituents on September 11. If the NSA had had this metadata in 2001, that attack probably wouldn’t have happened.”
The Congressman’s personal loss deserves both sympathy and honor. But the distance of a dozen years provides adequate space for deliberate rather than impassioned consideration, and the simple assertion—which is hindsight working in hindsight—that surveillance would have prevented the attacks cannot conclude the issue in foresight for the simple reason that, looking forward, preventing attacks can never be all that matters.
I have long been a libertarian, although the type of libertarianism that I follow has changed over time. Initially, I was a natural rights libertarian of the Nozickian type, but over time I became a consequentialist influenced by Friedrick Hayek and Richard Epstein. Over time, I also became more moderate moving from night watchmen state conception to a classical liberal position.
All of these positions more or less fall within the libertarian tradition broadly understood. But there is one issue where I believe that the tradition has not adequately taken matters into account. What does one do when others do not agree with libertarianism? Suppose that one is within a country with nonlibertarians. How should one live together?
The initial answer given by libertarians is that the people of differing views should live together and respect one another’s rights. In such a world, individual liberty allows everyone to pursue their values, and it is not necessary for one person to impose their values on others. While I find that convincing, let’s suppose that someone else does not accept the argument. They have a different understanding about the facts and/or values. They believe that free markets harm the poor and therefore should be restricted. Or they believe that people should be required to help the worse off, even if they do not want to.
The traditional libertarian response is to say to such people, “You are wrong to coerce others, and I will not let you do so, if I can stop you.” While this is a correct response from a narrow libertarian perspective, it is not clear that it is right from the broader perspective of social morality.
I look at the issue from the perspective of a welfare consequentialist (that is, a kind of utilitarian). Under that approach, people with nonlibertarian factual beliefs or values affect what the optimal institutions should be. Imagine, as I believe, that classical liberal institutions are the optimal ones from a welfare consequentialist perspective. They produce the greatest liberty and wealth for people in the society (and other goodies as well, but I shall ignore those in this post). So, for a society of classical liberals, those institutions would clearly be the best ones.
But now introduce a significant number of modern liberals (sometimes called welfare liberals), who believe in larger government and more redistribution than classical liberals do. How does that change the analysis of the optimal institutions?
From a welfare consequentialist perspective, there are at least two important consequences of the existence of welfare liberals. First, if welfare liberals strongly dislike the classical liberal institutions, then they are far less likely to support the system. In particular, if we assume that the constitution embodies these classical liberal principles, then the welfare liberals may become alienated from the polity. A polity needs its citizens to support its institutions and if the citizens strongly oppose the policy, they may not exhibit the necessary degree of support. Thus, additional support for the laws and constitution may be derived if there is a compromise between classical liberal and modern liberal institutions.
Public pension systems and Social Security were built decades ago, under very different economic and demographic conditions. Alas, our political institutions are lousy at modernizing the system—even when ruin is just around the corner. A few quick fun facts: Public Pensions Andrew G. Biggs (American Enterprise Institute) reports that state and local pensions systems aren’t just woefully underfunded; they’ve also come to pose much graver risks to state and local budgets. First, pension assets are now about 143% of state and local outlays, up from 49% in 1975. Thus, it’s become three times more expensive for legislatures to amortize funds in down years.…
Books reviewed in this essay:
The Reactionary Mind: Conservatism from Edmund Burke to Sarah Palin, by Corey Robin. Oxford University Press.
The Common Mind: Politics, Society and Christian Humanism from Thomas More to Russell Kirk, by André Gushurst-Moore. Angelico Press.
The Pinch: How the Baby Boomers Took Their Children’s Future—and Why They Should Give It Back, by David Willetts. Atlantic Books.
Amidst the recurring question of whether Edmund Burke is relevant to contemporary politics, we are presented with three volumes that approach this vital issue in different ways, and with varying levels of scholarly and popular perceptiveness. All the books under review attempt to connect the witness and insights of the great statesman to ongoing conflicts in society and politics. Perhaps the disparate assessments of Burke alone could suggest the resiliency of his legacy; however, the importance of Burke the political theorist dictates a closer examination of these critical works.
Mitch McConnell, Senate Republican leader, confessed to big business bureaucrats that he and other Establishment Republicans want to remain their link to government money and favors. According to a Wall Street Journal story (December 16), he asked them to open their wallets lest his kind be overwhelmed — not by Democrats, but by those smelly little Tea Party conservatives — the real threats to the government spending and regulations by which big business thrives.
There are stronger constitutional arguments on both sides of same-sex marriage than any disputants are willing to acknowledge. But the particular manner in which U.S. District Judge Robert J. Shelby reached his decision, announced Friday, overturning Utah’s state constitutional amendment defining marriage heterosexually is a tangle of faulty reasoning and judicial arrogance that will disserve the cause he aims to advance.
The first clue that something is amiss is revealed in the stunning—well, maybe not; but still—error of basic civics on the opinion’s seventeenth page: “When the Constitution was first ratified, [citizens’ fundamental rights] were specifically articulated in the Bill of Rights and protected an individual from certain actions of the federal government.”
That claim—coming here from a federal judge—would cost a freshman points on a blue-book exam. Any student of introductory American government knows the Constitution was ratified over explicit objections that it did not contain a Bill of Rights and on its Framers’ specific insistence that including one might weaken the edifice they had constructed.
In my view, when historians look back on this period of the Supreme Court, Justice Clarence Thomas will be seen as extremely important justice. While Justice Scalia will be seen as the justice who initially developed modern originalism on the Court, Justice Thomas will be seen as the justice who most consistently pursued the doctrine. Although Thomas’s decisions may have fewer adherents on the Supreme Court, he has exerted influence in other ways by making previous positions that were not discussed in government bodies – such as returning to the pre-New Deal Commerce Clause – to be part of the conversation. His differences with Justice Scalia also shows to the world that originalism comes in various stripes.
It is therefore a welcome event that Ralph Rossum is publishing a new book on Justice Thomas’s jurisprudence. Rossum’s other work suggests that this is likely to be an excellent book and is one that I hope to read in the near future. Here is a description of the book:
Having been a tad remiss in my blogging obligations, I’ll try to compensate by letting patient readers in on an elaborate political joke, involving the planet and the U.S. economy. Getting the joke demands familiarity with messy statutes and a keen appreciation of institutional incentives. That’s why we Washingtonians are rich and you people are a laugh a minute.
The current Liberty Law Talk is with author Christopher Lazarski on his new book, Power Tends to Corrupt: Lord Acton's Study of Liberty. Our Books essay this week is by Todd Zywicki on Nassim Taleb's Antifragile: Things That Gain From Disorder. Zywicki applies Taleb's insight that an antifragile "system . . . gains from disorder and volatility—i.e., exposure to stresses improves the operation of the system and makes it stronger," to financial regulation, arguing this approach would lead to better results than the regulatory philosophy of Dodd-Frank. Alberto Mingardi @Econ Lib on Chris DeMuth, Hayek, and Obamacare. George Will: Can the passive Congress…