Penn in Paper

Penn Gillette, the vocal half of the magical duo Penn & Teller, has a very interesting and thoughtful interview in Cracked that I enjoyed reading. It initially crossed my path when folks noted his apparent repudiation of his long-standing identity as a libertarian, which included this banger of a line:

I completely have not used the word Libertarian in describing myself since I got an email during lockdown where a person from a Libertarian organization wrote to me and said, “We’re doing an anti-mask demonstration in Vegas, and obviously we’d like you to head it.” I looked at that email and I went, “The fact they sent me this email is something I need to be very ashamed of, and I need to change.” Now, you can make the argument that maybe you don’t need to mandate masks — you can make the argument that maybe that shouldn’t be the government's job — but you cannot make the argument that you shouldn’t wear masks. It is the exact reciprocal of seatbelts because if I don’t wear a seatbelt, my chances of fucking myself up increase — if I don’t wear a mask, the chance of fucking someone else up increase. 

Many times when I identified as Libertarian, people said to me, “It’s just rich white guys that don’t want to be told what to do,” and I had a zillion answers to that — and now that seems 100 percent accurate.

But Penn also had some interesting comments when asked about Jews, Israel, and Palestine. At first, what he started to say made me a bit squirmy -- he indicated he didn't really understand the notion of being "culturally Jewish", and clearly thought it was a bit absurd. But he righted ship in the next question, when the interviewer asked "Because of the Israel-Hamas war, even talking about this can bring up accusations that, by being critical of Judaism[!!!] or Israel, it’s almost automatically anti-Semitism. Are you nervous talking about this?" Now, as you probably know, whenever I hear this "almost automatically antisemitic" claim, my blood pressure almost automatically spikes. But here I thought Penn said something very thoughtful in reply:

Yes, I’m very nervous. But I want to be a little more high-minded. I’m not as nervous about being attacked for it as I am nervous about being wrong. As a good friend of mine said, “I don’t mind being called an asshole — I don’t want to be an asshole.” (Laughs)

I've promised myself over and over again that I won’t say, publicly, even to friends, anything about what’s happening in Israel because it is far beyond me. I have no understanding of what it feels like for an organized group to come into where I’m living and kill people that I know — I’ve never experienced that, so, “Shut up.” And, yet, to live in the world, we have to contemplate that a little bit.

At the outset, I'm thrilled that Penn takes exactly the right line -- there's no entitlement not to be called an asshole ((or an antisemite)or an antisemite) when there's a colorable case that you're being one, and it's the latter prospect that one should worry about. Kudos to Penn for resisting this incredibly popular "anti-anti-racist" framing.

More broadly, someone -- I forget who -- said that one of the more pernicious features of current discursive climates on campuses is the immense pressure to declare an opinion, regardless of whether one feels confident enough in one's own knowledge to commit to one. "Silence is complicity" and all that; but it means that there is very little space for people to just step back and say "I don't know, I'm still learning about this, and I'm not going to be dragooned into a position before I'm ready to take one." The person who said this was talking about students in college, but I think the trend is more general than that, and again, I think Penn is quite right to resist it even as he notes (also correctly) that this forbearance is not stopping (and should not stop) him from thinking on the subject. As someone who thinks that one of the keystones of epistemic antisemitism is a perceived entitlement to talk about Jews without really knowing about Jews, I again view Penn's behavior here as a welcome form of epistemic humility.

So yes -- a good, thoughtful interview. I encourage folks to read it. It's a good example of someone who I think is committing himself to some important epistemic virtues even as he is clearly still, in my view, working through some thoughts.

Some Libertarians Are REAL Easy to "Coerce"

John Ziegler is a "conservative/libertarian" columnist who has views on race and how our current surge in racism came to be. Specifically, he thinks that "The left forced non urban/liberal whites (even those who were not overtly racist) to start thinking tribally."

Wow, forced, you say? That's strong language, and some people reasonably wanted to some clarification as to what "forcing" Ziegler had in mind. It must have been pretty intense, to force good White people (even the not overtly racist ones!) into "tribal" thinking.

Or, well, it could be this:

As an example, probably the moment when they started having to push “one for English” when calling customer service.

— John Ziegler (@Zigmanfreud) July 23, 2019

Okay then. I guess I just have a different view on what counts as "force". But then, I'm not a libertarian, with their deep respect for human agency and liberty, nor a conservative, with their strong commitment to personal responsibility.

H/T: Hilzoy, who also spotted the "one for English" example (this post emerged because I had to dig that one out myself -- I couldn't believe it just from reading it).

Anyone Can Be "Not Racist" To Someone (With Bonus Right/Libertarian Intercession!)

After viciously beating an African-American man in an Iowa bar,  Randy Joe Metcalf was convicted of a federal hate crime and sentenced to 10 years in prison. In relevant part, the federal statute says that "[w]hoever . . . willfully causes bodily injury to any person . . . because of the actual or perceived race, color, religion, or national origin of any person . . . shall be imprisoned not more than 10 years, fined in accordance with this title, or both[.]"

The evidence surrounding the "because of" race element of the crime against Metcalf was substantial (and -- fair warning -- quite graphic). During the night of the attack (and into the following day), witnesses heard or saw Metcalf:

• Brag about burning crosses in front of an African-American family's home.
• Tell the bar owner "I hate fucking niggers."
• Show off a tattoo of a swastika to said bar owner and another bar patron while saying "that's what I'm about."
• Call the friends of the African-American man whom he'd later attack "nigger lovers" and "nigger loving cunts."
• Exclaim, in the course of attacking the man, "fucking nigger!" and "die nigger!"
• Tell a friend the following day that "the nigger got what he had coming to him."

What was Metcalf's main factual defense at trial?

That he wasn't racist. And indeed, the man with the swastika tattoo who savagely beat a man while hurtling racial slurs called seven witnesses who were prepared to testify that he was in no way a racist.

Un(?)surprisingly, the jury didn't buy it, and voted to convict. And the Eighth Circuit just affirmed that conviction, so it looks like Metcalf will spending quite some time in prison.

That was all I initially planned to write. But while rereading the case for this post, I came across another interesting tidbit: Metcalf had some powerful right-wing/libertarian allies filing amicus briefs on his behalf. The Cato Institute, the Reason Institute, The Individual Rights Foundation (an arm of the David Horowitz Freedom Center), the Center for Equal Opportunity, and two right-wing appointees to the United States Civil Rights Commission (Gail Heriot and Peter Kirsanow) all interceded to argue that the relevant provision of the federal hate crimes statute is unconstitutional as in excess of Congress' enforcement power under the 13th Amendment (I've read all the briefs, though it seems only the Cato Institute's is publicly available).

Now to be clear, even repulsive White supremacists have rights, and I don't think it's an endorsement of White supremacy to file an amicus brief in a White supremacist's criminal case. But it is worth tracing the precise argument these groups felt so passionately about that they'd intercede on behalf of a guy like Randy Joe Metcalf. 

Part of their argument is that the 13th Amendment only permits barring so-called "badges and incidents" of slavery (such as being targeted for physical assault on basis on one's race) when it is necessary to prevent the literal reimposition of slavery. Since, amici argue, there is no realistic change of literal slavery reemerging, it is no longer (if it ever was?) necessary for the federal government to ban racially-motivated assaults in order to pursue the constitutional ends of abolishing slavery (if you think they've been emboldened by Shelby County, you're right).

The other half of the argument is that hate crimes prosecutions, in particular, are a dangerous tool to give to the federal government because they're more susceptible to public outrage and thus "double jeopardy" prosecutions. This is a highly revealing argument. The double jeopardy clause doesn't apply when the federal government prosecutes its own criminal law (even after a completed state prosecution covering the same incident). The amici argue that the federal law here exceeds Congress' constitutional authority; but if that's the case the double jeopardy complaint is superfluous -- the law's just unconstitutional in its own right. So what's the point of bringing up double jeopardy?

The point is one of policy, or more accurately, of worldview. The argument is that "hate crimes" are particularly likely to arouse public anger and legal response, and that therefore we're more likely to see zealous prosecution (up to and including using these federal laws to get a "second bite at the apple" in the event an initial state prosecution fails). In doing so, the Cato Institute and its cohort wish to evoke a particular vision of civil rights laws -- wherein they're mainly a tool of oppression and governmental overreach and so must be highly limited and closely watched. They present a world where the government can hardly resist the pleas of minority communities for justice in the case of racist crimes; where the main problem when it comes to race in our society is too much zealousness in protecting outgroups. Who will think of the poor White supremacist, reviled by all and protected by none (except, of course, a President who thinks some among his number are "good people")?

It was difficult to swallow this logic in 2013, when Shelby County was decided. In 2018, it would be laughable save for the fact that it appears to be virtually indestructible. Just as for some people there's no amount of evidence that could establish someone to be racist, for some organizations there's no amount of evidence that could establish racism as an actual, non-trivial problem in American society.

What If Black Liberty Mattered?

Jacob Levy writes on the history of "liberty" as a trope in American racist movements, and the corresponding flirtation that many libertarians have had with White supremacy. Levy's essays for the Niskanen Center have been consistently superb -- I already wrote on his fantastic defense of identity politics as against the Mark Lilla critique -- and this is no different. Give it a read.

Trains and Their Alternatives

By far, my favorite species of libertarian writing is the article which attacks a government spending project by articulating all the other spending projects -- also opposed by libertarians -- that could instead receive the money. This Reason article making fun of a new light rail project in downtown Detroit is a great example of the genre.

I don't know enough about the particulars of Detroit to know if the project makes sense or not. I do note that reviving urban cores via densification around light rail hubs has a very strong record of success and plays into the increasingly car-less preferences of the millennial generation. Given that this is pretty much the trend in urban revitalization, you'd think the article might mention it somewhere, but alas. Indeed, the article seems peculiarly attached to the thesis that "downtown" is a doomed concept which fell apart in 1967 and will never rise again -- a theory that seems to my ears to be, what, a decade out of date? At least? The trend in the United States has been towards restoring the central nature of "downtown" areas, as young professionals like being able to walk (or take a quick hop on public transportation) to their jobs, their favorite restaurants, or their after-work hangouts. So the idea that Detroit would benefit from following this path is hardly some sort of absurdist boondoggle.

The real joy though, comes in all the caveats that are snuck in throughout the article, much as a parent might hide vegetables under the mashed potatoes. "Detroit's light rail line could be written off as a typical government pork fest, if only a large share of the construction funds weren't coming from private sources." Uh-oh -- sometimes private benefactors make choices with their money that don't perfectly align with Reason's read on Rational Choice Theory? Say it ain't so! What about convenience? Well, obviously, the best way to think about that is their absurd hypothetical where a local business magnate uses his god-given right as a Free Market Maker issues some sort of decree to "mandate that his employees utilize the new light rail line in their daily commutes after it opens in 2016." The idea behind these light rail projects typically is that people move close to the train stations and don't drive anywhere, but that really basic concept is again nowhere to be seen.

And what about the "26 percent of Detroit households that don’t own cars"? Here, Reason suggests that further investment in the city's bus lines would be a better use of the money. And maybe so -- there are a lot of reasons to favor rapid-bus transit over train lines, greater flexibility being among the most prominent! But of course, if that was on the table it would be another government spending atrocity Reason would oppose on principled libertarian grounds. And even if Reason was remotely likely to offer its full-throated support to massive government subsidies to local bus lines -- which I don't think we'll see in any form except as a hypothetical counterplan to actual proposed projects -- the fact is one of these projects is on the table (thanks to private money, no less), and one isn't.

So yes, color me skeptical that their problem with the rail project stems either from Reason's deep understanding of contemporary urban redevelopment policy or their heartfelt commitment to bus service.

Mis-Match Mish-Mash, Part II

Via Ilya Somin, George Will forwards the "mis-match" hypothesis as an argument for abandoning race-based preferences in education admission. Argued most forcefully by UCLA law professor Richard Sander, the mis-match hypothesis argues that race-based affirmative action places minority applicants in schools above their level, at which point they struggle mightily. Someone who would have been a B+ student at the University of Iowa becomes a C- student at the University of Michigan. This has the effect of discouraging minority students, leading to worse rates of employment and bar passage than we would see in absence of affirmative action. The first thing that has to be said about these studies is that they are deeply controversial, not in the "their conclusions are uncomfortable" way, but in the "the data doesn't support the conclusions" sort of way. That's always important to note before we cede too much terrain to this argument off the bat. But putting that aside, it is an argument I continue to find very, very strange. The basic thrust of the argument is that it is worse for a student to attend a better school. That's counter-intuitive to begin with, but one can see Sander's logic. Where it starts to crumble a bit is that nobody seems to notice or worry about "mis-match" in any other situation but race-based preferences. Legacy admissions are the obvious control case, as they offer a situation where (mostly) White students are admitted to a school they likely otherwise would not have been in absence of the preference. Two things jump out here. First, I've yet to hear anyone say these students are "mis-matched". People argue against legacy preferences on the grounds that they are unfair to the marginal candidate not admitted to the university, but I've yet to hear anyone argue they hurt the legacy beneficiary. Second, if we're to take mismatch seriously, we'd have to come to the hard-to-swallow conclusion that wealthy, well-connected parents -- the epitome of the sophisticated education consumer -- are deliberately sabotaging their children's academic futures. Someone should tell them. On a smaller scale, Sander's hypothesis indicates that all the steps law school applicants take to improve their profile without actually becoming smarter (e.g., LSAT prep courses) are actually self-destructive. I took an LSAT prep course and my LSAT score went up four points. Since my LSAT score basically was carrying my GPA on its back, that may have been no small thing in getting admitted to the schools I was. Was I shooting myself in the foot? Oh cruel world, if only I had been placed properly, at the appropriate law school, my life probably wouldn't be such a dismal failure right now. The other oddity about this, particularly stemming from someone like Somin, is how openly paternalistic it is. Somin writes that he is "pessimistic about the ability of government to institute compensatory justice preferences that are simultaneously equitable and effective in accomplishing their objectives." This is purely an attempt to harmonize some cognitive-dissonance, because it is Somin who is taking the interventionist, big-government approach here. He promotes a one-size-fits-all government mandate which stifles local innovation and prevents schools from adopting the admissions policies they think are optimal for creating the best possible incoming classes. Public universities are essentially market participants -- they for the most part act similarly to their private counterparts, except when some state law or regulation constrains them or otherwise forces them to modify their behavior. When it comes to affirmative action, it is pretty clear that most state universities, left to their own devices, would practice it. They don't because some law or regulation or court decision forbids it. To test this hypothesis, imagine if tomorrow the University of California, or Michigan, or Nebraska was cut loose and went private. Would they utilize affirmative action for their next incoming class? I think the answer is obviously yes -- in all these controversies, the university administration wants to have such programs and it is some act of government which forbids it. Somin's argument, hence, is clearly a plea for greater government intrusion in the field of admissions policy -- it replaces what is in essence quasi-private market competition amongst universities (each university decides its own policy, and presumably the one with the best admissions policy is rewarded by having better students, more successful alumni, greater prestige, etc.) with a blanket legal rule. And the "why" is even more embarrassing: First, because he, in his judgment, thinks that the admissions directors and college administrators are so bad at managing these programs that it is better for a government power (the Supreme Court) to make the decision for itself (a command-and-control model); and second, because he is worried for the sake of the students who are being given the opportunity to attend their dream school (i.e., naked paternalism). The cop-out here is to just say government should get out of the field of education entirely. That's a cop-out because it doesn't answer how we should structure legal rules in a world where that's a pipe dream. It would seem the answer, from a libertarian perspective, would be to have the rules governing these schools approximate a free market regime as much as possible -- to wit, allow the schools to implement whatever admissions standards they want, and certainly don't step in as a paternalistic measure to protect admitted students from their allegedly unwise choices.

Video Game Night Roundup

I've been on a bit of a gamer kick recently. Borrowed Mass Effect, beat that the other day. Then I pre-ordered the new Assassin's Creed. Then I bought Mass Effect 2, Fight Night Champion, and Super Smash Bros. Brawl. I beat Fight Night just an hour ago.

* * *

Intriguing gambit: US goes to the WTO to argue that China's "great internet firewall" represents a restraint on free trade.

Hey remember when groups like the ZOA were aghast at the prospect of American Jews criticizing Israel? They lost that principle real quick.

Interesting bit on WaPo about Herman Cain's racial background.

Don't see this every day: Libertarian blogger asks whether we should abolish the corporate form.

Of Restrictions Actual and Desired

Clark Neily of the Institute for Justice is guest-blogging at the VC on the subject of "judicial engagement", which is one of those words conservatives use when they want to strike down disagreeable legislation while still keeping the term "activist" in their back pocket. Anyway, Neily's argument is that the court should as aggressively scrutinize whether a congressional act is sanctioned under a constitutional grant of power as they do when an act is said to violate a constitutional restriction on it.

For example, "[i]n cases involving favored constitutional values like free speech and avoiding suspect classifications, judges determine the government’s actual objectives and then evaluate the “fit” between those objectives and the means chosen to advance them." By contrast, Neily complains, in cases involving more general police power claims (interestingly, Neily does not appear to limit his case to federal enactments), courts are far more deferential, engaging only in a bare-bones "rational basis review". "Judicial engagement simply proposes that there should not be a category of cases in which courts totally abandon those inquiries — and the underlying jurisprudential convictions they reflect — as they often do." "[B]asic ... analytical consistency" demands it.

This is impressively atextual. "Free speech" is not just a "favored constitutional value". It is a constitutional restriction -- a thou shalt not right in the text. When courts apply strict standards of review to laws which seem to impinge on it, what they are in effect saying is that "this law appears to breach a constitutional proscription. So if it's going to fly in spite of that restriction, you better have a damn good reason for it." In effect, it is asking when we'll allow overriding social need to trump textual bars.

By contrast, constitutional clauses like the Commerce Clause are grant of power. It makes no sense to apply the same level of scrutiny to laws which facially violate the constitution to those that don't (of course, if the Court doesn't think a law impinges on free speech norms, we never get to strict review in the first place. The finding of a constitutional tension is a prerequisite to heightened judicial scrutiny). Neily is essentially importing in the key facet of the First and Fourteenth Amendments (their status as legal restrictions on governmental authority) into every constitutional clause by abstracting away from the text and calling everything a constitutional "value". While Neily might wish that constitutional grants of power were circumscribed more sharply than they are, the fact is that (particularly with respect to state governments) there is a presumed residual authority to act unless a law violates a particular block on power.

Want a Broader Tax Base? Reduce Income Inequality

The current tax orthodoxy amongst congressional Republicans has been simple: no more taxes, period. But some Republican presidential contenders realize that's unsustainable. And they've finally hit on a tax increase they can support: raising taxes on the bottom 50% of American workers. The language is "broadening the tax base", and the argument is that these are Americans who pay no income tax at all (though of course they pay other taxes, such as social security and sales taxes), because their incomes fall below the minimum required to trigger tax liability.

Libertarian blogger Radley Balko* concurs with those who find it worrisome that half the country pays nothing in income taxes. The problem, as he sees it, is that "an increasingly small percentage of earners fund the government, we’ll soon have a majority of people who pay no tax voting for more and more government services they benefit from, but don’t have to pay for." The reason we want to broaden the tax base is to ensure that everybody (or at least as many people as is feasible) have "skin in the game", that is, have an incentive to care about governmental expenditures.

The concern is legitimate, but it doesn't necessarily take us where Balko thinks it does. Let's put aside for the moment the fact that just because a majority of Americans don't pay income taxes doesn't actually mean that majority controls policy (both because of apportionment issues, and also because of structural concerns which disproportionately reduce the influence the bottom 50% have in political institutions). And also put aside the fact that taxation is not the only way that one can have "skin in the game" -- poorer Americans are more likely to be dependent on governmental services for the provision of basic needs, and thus have every reason to care about the efficacy of such services (Balko's main concern is less effected by this, because his primary worry is that government will do more, not that it will do what it does poorly -- though he suspects it will).

That fifty percent of Americans don't pay income tax is not because our tax code is set up to say "the poorest half of Americans pay nothing". Rather, the income tax system simply decrees that people who make below a certain threshold pay nothing income taxes, presumably because we feel that taking money away from people who earn that little represents too much of a hardship. And, as income inequality continues to skyrocket, the number of people who fall below that demarcation is now hovering around 50%.

But if we started seeing rising wages and earnings amongst the working class, that number would drop as more Americans earn enough to join the ranks of taxpayers. In other words, to the extent conservatives are really concerned that as many people as possible have "skin in the game", the current income tax structure in turn gives conservatives an incentive to care about an issue important to liberals: income inequality. One can broaden the tax base by taking more away from the already-poor. But it seems the better option is to broaden the income tax base by broadening the income base -- rendering fewer people poor in the first place.

And aside from the fact that this is simply more humane -- there is a threshold level of income below which we don't think a family is earning enough to support itself to a standard commensurate with our status as the greatest country in the world -- I think the incentive question cuts in its favor as well. I already explained above that the poor already have lots of incentives to care about how government works, and, regardless, it's far cheaper to incentivize them to act anyway. By contrast, there are very few notable points of leverage society has on the rich to get them to care about the living standards of the poor. To the extent that they are genuinely concerned over an emergent democratic majority which pays no taxes (to be honest, I'm dubious that they're actually that concerned), that's a very rare opportunity to make a trade.

* I want to say that, while obviously I strongly disagree with Balko on issues such as this, I have a lot of respect for him as a libertarian who actually puts his money where his mouth is -- he devotes as much if not more attention to aspects of governmental power which harm the poor and marginalized as he does to decrying regulations which hurt primarily the rich and powerful. His work on police brutality and the death penalty, in particular, has been stellar and admirable.

Presto! Property

Stewart Baker on intellectual property:

Conservatives — and especially libertarians — seem like a cheap date on this issue. You’d think libertarians would have been in the forefront of objecting to governmental intrusions into our lives at the behest of a special interest — let alone the creation of a new class of quasicriminals, defined as more or less everyone who entered high school after 1996, who can be investigated and prosecuted whenever the government or some member of industry decides that they are too troublesome.

But no. For a lot of libertarians, judging by the comments to David’s post, all the RIAA has to do is call its new government-created entitlement a form of property, and, presto bingo, it’s sacrosanct.

Come to think of it, maybe I can persuade readers here that TSA’s new enhanced security measures are just fine — as long as we enforce the rules by giving all the passengers on the plane a “property” right not to travel with people who refuse body imaging and enhanced patdowns. Instead of relying on oppressive government regulation, we’d just let the passengers collect millions in “statutory damages” from noncompliant travelers.

He's riffing off of Larry Lessig's Free Culture here. The whole post is worth a read.

It's No Better in the Private Sector, Kid

I empathize with Radley Balko's travails to get his refund back from the IRS. But that's because I'm locked in more or less the same battle with Comcast, which has been hanging onto my security deposit and refund for nearly three months now. Same utter incompetence by everyone I've every interacted with. Same shunting from bureaucracy to bureaucracy. Same inability to explain what went wrong, how it went wrong, or how they're planning to fix it. I don't think even the IRS' opening gambit was to allege that Balko owed them additional money, which is how Comcast tried to play me.

Read the Book

Texas Governor Rick Perry (R), recently seen floating the secession of Texas as a valid response to domestic policy differences with the Obama administration (but remember, Democrats hate America), has started citing Hayek as a reason to oppose universal health care.

"Read that book. Read this book," he says, gesturing toward the nearby table. I see something from Weight Watchers and a Harry Potter paperback--but the governor is referring to the "The Road to Serfdom" by Frederick Hayek and "The 5000 Year Leap" by W. Cleon Skousen. "Read Amity Shlaes's 'The Forgotten Man.' Amity's book is very eye-opening—scary—for me."

As it happens, Andrew Murphy has read "The Road to Serfdom". And on pages 120-21, Hayek has this to say about the state's role in providing social insurance:

Nor is there any reason why the state should not assist the individuals in providing for those common hazards of life which, because of their uncertainty, few individuals can make adequate provisions. Where, as in the case of sickness and accident, neither the desire to avoid such calamities nor the effects to overcome their consequences are as a rule weakened by the provision of assistance-where, in short, we deal with genuinely insurable risks- the case for the state’s helping to organize comprehensive system of social insurance is strong.

Read the book, governor.

Libertarian Feminism

A really interesting essay that seeks to reinterpret libertarianism in a feminist (really, radical feminist) light. I wouldn't say I agree (after all, I'm not a libertarian), but I approve of the instinct -- the authors engage with feminist theory in a genuine and respectful fashion.

Via

Ouch!

Libertarian Party sends funeral wreath to the GOP national headquarters, mourning the death of their small government principles with the upcoming nomination of John McCain.