Privacy and the Constitution

“[B]oth the [‘]liberals[‘] and the conservatives misunderstand privacy. The conservatives engage in a narrow and unnatural reading of the Constitution in order to avoid seeing what they do not wish to see, while the [‘]liberals[‘] find in the Constitution not penumbras but a Rorschach test that reveals only what they wish to see. In both cases it comes down to an inkblot. Both approaches allow their adherents to disparage most freedoms and exalt the few freedoms allowed by their respective moral and political philosophies.”

“Dissolving the Inkblot: Privacy as Property Right,”
Cato Policy Report, Jan-Feb 1993

TGIF: Parents Should Govern Their Kids’ Education

How clear are these opening words of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”?

Judging by the U.S. Supreme Court’s many ventures into this area, we’d have to say not very clear at all. There’s a lesson in that. Constitutions don’t interpret themselves. People do, and the line between interpreting and making law is not as bright as we’re told.

The latest Court decision in the matter, Carson v. Makin, is instructive in that regard. The 6-3 decision — Republican appointees made up the majority, Democratic appointees the minority — struck down Maine’s exclusion of religious schools from a program that provides tax-funded tuition assistance to all parents who live in school districts that do not provide “free, public” secondary education. That’s over half the districts. Maine, according to the Court, is the most rural state in the country. Who knew?

Under the program, those parents can spend the money at another district’s school or at an academically accredited “nonsectarian” private school. The plaintiffs, two families, argued that this restriction violates both the Free-exercise clause and the establishment clause of the First Amendment, along with the Equal Protection Clause of the Fourteenth Amendment. The U.S. district and appellate courts had sided with the state.

The six justices of the majority held that the exclusion of sectarian schools violated the guarantee of the free exercise of religion despite the fact that religion permeated the regular curriculum. (Remember, these were state-approved schools academically.) But the minority justices said the exclusion violated the prohibition on the establishment of religion because the money would go to schools that used it to teach their particular faiths. It was establishment clause v. free-exercise clause.

So who is right? Can that question be answered? Chief Justice John Roberts’s majority opinion and the dissenting opinions by retiring Justice Stephen Breyer and Justice Sonia Sotomayor point to many Court precedents that seem to support their conflicting positions. But the precedents aren’t much help because one can always say that an earlier case differed in an important way from the current one.

Leaving aside one’s background philosophy, all of the arguments seem plausible and consistent with the constitutional text. One might appeal to historical materials, but my hunch is you can find disagreements there too. There’s a lesson in all this, one captured by legal scholar John Hasnas in “The Myth of the Rule of Law.” (A discussion of Hasnas’s paper is here.)

Hasnas’s point is that considering how statutes and constitutions are written and the contradictory case law, judges and lawyers can start at Point A and reach virtually whatever destination they wish. Each individual’s compass will be ideological. This, Hasnas insists, is not the notion of the rule of law taught in grade school or law school, but the rule of men and women. He writes:

The fact is that there is no such thing as a government of law and not people. The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion. For this reason, as long as the law remains a state monopoly, it will always reflect the political ideology of those invested with decisionmaking power. [Emphasis added. Hasnas favors judicial competition, or polycentric law.]

So what are we to make of the ruling? I’ll cut to the chase before doubling back. Consistent with Hasnas’s thesis, both the majority and the minority think its path is consistent with a desired religious neutrality. The majority holds that neutrality lies in not excluding religious schools from Maine’s program because all eligible parents would be treated the same, while the minority holds that neutrality requires excluding religious schools.

Truth be told, I prefer the ruling to the Court’s alternative, but let’s get clear on some preliminaries first. The root of the conflict that produced this case is government schooling itself. Ironically, the early government-school movement presented the misnamed “public school” as the way to prevent conflict over religion. How’s that worked out, Horace Mann? (See my book Separating School and State: How to Liberate America’s Families.)

Simply put, any government involvement in education infringes the liberty not only of parents but also of nonparent taxpayers, who are forced to support the government’s schools. And let’s be specific: government involvement violates freedom of conscience and not just material property rights. Even before the dawn of wokeness, many taxpayers disliked how the government schools taught even unobjectionable subjects.

The case against government schooling is bolstered by the well-known fact that coercive monopolies are inherently bad deals. They deliver poor quality at unnecessarily high prices. As bureaucratic organizations, they are interested in preserving their perks rather than serving their ostensible “customers.”

So it’s no coincidence that the government’s schools are rotten; the more marginalized the community, the more rotten they are. This is a disgrace because the education establishment has sabotaged poorer people, many of whom suffer the legacy of long-standing official injustices, and kept them from ensuring better lives for their children. If you want to understand intergenerational poverty and cultural shortcomings, think “public schools.”

What we should strive for, then, is parental free choice in a competitive education marketplace. Competition is the universal solvent. (James Tooley and Pauline Dixon, among others, have demolished the claim that poorer people would be worse off in a free education market.)

As more people have come to understand the benefits of free choice, they have proposed steps by which parents could take their kids out of the rotten system. Unfortunately but understandably, reformers have supported incremental changes that still left the state and local governments with a huge amount of power over schooling. I say “understandably” because a proposal to replace government schooling with a free and competitive marketplace (which would include nonprofit institutions) is a hard sell in the current context, although it may be getting easier. One objection to the incremental approach, besides continued government compulsion, is that the radical approach would be shelved in favor of the more-attainable program.

At any rate, various programs — vouchers, tuition tax credits, third-party scholarship tax credits — were set up to help parents escape to some extent the clutches of the school bureaucracy. The Maine program was different because it was only for children living in school districts without secondary schools. In effect, the state told parents they could take the money that would have been spent on a local high school and use it at the accredited school of their choice. The only restriction aside from its being state-accredited was that it be nonsectarian. That seems unfair to religious parents, who regard their religious faith as integral to their education even in secular subjects. Why should they be taxed to support a system they disapprove of?

That’s why I prefer the ruling to what the dissenters wanted. They think that allowing parents to buy education from schools that will “use public money for religious purposes” violates the establishment clause. That strikes me as the weaker argument. How does letting parents have that choice “establish” religion? Maine did not set up a state church.

It all depends on how one interprets that clause. (This problem plagues the Constitution. See my America’s Counter-Revolution: The Constitution Revisited.) In his dissent Breyer says there is “play in the joints” between the establishment and free-exercise clauses, leaving “wiggle room” in which states can “navigate the tension created by the Clauses and consider their own interests in light of the Clauses’ competing prohibitions.” Loose joints and wiggle room hardly provide good guides for legislative dos and don’ts. Roberts counters that a “State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.” I think that makes more sense.

Breyer writes, “Maine thus excludes schools from its tuition program not because of the schools’ religious character but because the schools will use the funds to teach and promote religious ideals.” That supposed distinction enables him to embrace earlier decisions that permitted tax money for religiously affiliated institutions, but is that distinction meaningful? Can there really be a church-affiliated school that does not promote its faith to the pupils? The state legislature thought so and in theory permitted parents to spend the money on the former sort but not the latter sort. That sounds more like a word game to protect its statute from court scrutiny. The Court majority didn’t buy it.

My arguments here assume the existing political context, which of course I want to see changed. As long as state schools, state curriculum requirements, and compulsory attendance exist, fairness requires that parents — who pay income taxes, sales taxes, and property taxes one way or another — be free to direct the money to the schools of their choice. “School choice” is a pale substitute for real freedom, and it will always come with unjustifiable conditions, but it still may provide children an exit from intolerable situations.

If we must err, let’s err on the side of the parents’ freedom of choice. Let’s face it: the taxpayers would be coerced to support something they disapprove of no matter the outcome of this case, a point overlooked by the dissenters, who are concerned only when people are forced to support religion.

Let’s also push, then, for a wider freedom of choice. No one should be forced to finance schools (or anything else for that matter). Taxation taints everything. The right to choose is far more radical than most people think.

In sum, it is entirely reasonable to disagree with Justice Sotomayor, who wrote in her own dissenting opinion that the majority in this case “continues to dismantle the wall of separation between church and state that the Framers fought to build.” The First Amendment doesn’t mandate a “wall of separation.” (Jefferson most famously used this metaphor in a letter.) Rather, it seems to say only that Congress may neither establish religion (as, say, in England) nor interfere with anyone’s free exercise thereof. The Court long ago applied this and other applicable provisions of the Bill of Rights to the states via the 14th Amendment. (The establishment clause originally also meant that Congress couldn’t interfere with the established churches in individual states at the time.)

It’s hard to see how Maine has either established religion or interfered with its free exercise merely by “giving money to parents” (Sotomayor’s words) that they can freely spend on schooling. Contrary to Sotomayor, the ruling does not “require[] States in many circumstances to subsidize religious indoctrination with taxpayer dollars” because Maine did not have to set up a tuition-assistance program. The ruling simply says, echoing an earlier case, that if a state does so, it cannot forbid parents from choosing schools that mix religion with their regular curriculums. In other words, all it does is let parents spend the money that would otherwise have gone to a government school at the accredited schools of their choice.

Sotomayor also writes: “If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.” I ask: so what’s wrong with that? Government has no business subsidizing people. If it wants them to have more money, cut and abolish taxes.


TGIF: Free Exchange Is Win-Win

With the possible exception of the political class and its cronies, most of us would be healthier, wealthier, happier, and freer if the public knew how to engage in “the economic way of thinking.” The late Paul Heyne, who wrote a popular textbook by that name (now in its 13th edition thanks to Peter Boettke and David Prychitko), summarized the economic way of thinking by writing, “All social phenomena emerge from the choices of individuals in response to expected benefits and costs to themselves.”

I think of Heyne’s title whenever I encounter an example of failing to understand this. Unfortunately, our society is rife with examples and resulting bad government policies, which tells you a lot about why we suffer periodic hardships like the current inflation. The lockdowns during the COVID-19 pandemic were a spectacularly tragic example of the failure to engage in the economic way of thinking.

Other instances of that failure are so thoughtless as to be ludicrous. Take the wealthy business owner who donates a large sum of money to a worthy cause. The fallacy occurs when the donor or someone else inevitably says that the charitable act was motivated by a wish to “give something back,” presumably to society or the community.

What’s wrong here? It suggests that the donor wants to show gratitude for his fortune by reciprocating. But that makes no sense because the donor’s wealth was not the result of people handing over money as a favor and getting nothing in return. Those people were customers, not donors. They bought something they wanted and must have liked the terms of exchange. So there is nothing to pay back. (I have in mind only people operating according to just-market principles: no force, fraud, or favors coercively provided by politicians.)

In the marketplace, profits come from voluntary exchange, which requires that buyers and sellers freely choose to transact business. Why would they do that? They do it because each party expects to benefit — to be made better off — by giving up something they own for something that they would rather own. This is clear with barter, but it’s equally true when one party trades money. Money, a medium of exchange, expands the opportunity for exchange by enabling people to get what they want even when they don’t have the particular items that their available trading partners want.

When Smith trades a sum of money to Jones to acquire shoes, Smith demonstrates that he prefers those shoes to anything else he might have feasibly used the money for, including holding on to it. Jones demonstrates the opposite preference.

Unfortunately, since they are fallible, Smith or Jones (or both) might realize later that he made a mistake. That’s life, but it does not change the fact that at the moment of exchange, both sides expected to gain. If they are right, they have a happy win-win, or positive-sum, situation. Both sides profit, not just the one who obtains money because both come out ahead. (The competitive quest for profit has brought us liberal return policies, so the fallibility problem long ago became much less severe. John Stossel likes to point out that at the supermarket, both checkout clerks and customers typically thank each other.)

Free exchange produces mutual gain. If we could quantify the gain (we can’t), we would say that after the exchange, the two people have more total value between them than they had before the exchange. This is remarkable, considering no new stuff was created by the transaction. Possession of the product and the money simply changed hands.

To put it qualitatively, we can say that through the exchange, both parties climbed higher on their respective value scales, giving up a subjectively lower-ranking value for a subjectively higher-ranking one. (What counts is how the parties evaluate things.) For this to occur, we need first, two parties with different preferences and, second, freedom, including property rights. Before you can justly trade something, you must own it.

In light of the two-way gain through free exchange, the wealthy seller has no reason to “pay back.” He is successful because he provides value to his customers, who are happy to exchange their money.

It’s too bad that people who earn fortunes justly are made to feel guilty about their success. (Ayn Rand and Ludwig von Mises did their best to teach honest producers they had nothing to be ashamed of.) We consumers never feel guilty about the profits we reap. Why should the sellers?

TGIF: The Libertarian Solution

“What’s the libertarian solution to social or economic problem X? How about problem Y or Z?”

No libertarian needs to wait long before hearing such questions. But strictly speaking, the libertarian philosophy offers no solutions to specific problems. That’s not what it does. It is not itself a solution. Rather, it describes an institutional environment in which imaginative people are free and motivated to discover innovative solutions to individual and collective problems.

That environment has moral, cultural, economic, and legal dimensions, all grounded in self-ownership, respect for others, property, competition, persuasion, and consent, as opposed to government authority, monopoly, decree, and coercion. The cultural dimension is especially important, though often unappreciated. Widespread resentment toward other people’s success, for example, is literally deadly, not only for those targeted but for society at large, especially those at the bottom.

Thus when a libertarian says freedom or the free market will solve a particular problem (if politicians stand aside), what sounds like an impossibly oversimplified response is actually highly complex. In contrast to the politicians’ boasts, note the humility here. Confidence in market problem-solving is confidence in free human imagination dispersed among countless individuals throughout society. Who can say who will come up with the solution? No one. That in part is why we need everyone to be free.

The unique grounding of the libertarian environment has far different built-in incentives for problem-solvers than any state-based alternative. State problem-solving is characterized by centralized bureaucracy, artificial knowledge constraints, nonconsensual financing (taxation) that precludes feedback, profligacy (producing the disruptive knowledge distortions of debt and inflation), and significant unaccountability. In contrast, social- or market-based problem-solving is characterized by multiple knowledge centers, competition, consensual financing, and the profit motive. In that environment proposed solutions are subjected to intellectual and product competition, which yields better knowledge than other arrangements. F. A. Hayek called competition a “discovery” process. I think of it as the universal solvent.

In the market, problems are potential profit opportunities for entrepreneurs, and as we know, the profit motive is potent. The entrepreneur’s job is to figure out where and how resources are used suboptimally relative to what people (not politicians) want most. Solving a problem often requires shifting scarce resources and labor from one purpose to another.

How can anyone know what’s the best way to go? Entrepreneurs find clues to that question in market prices, which is why the price system is so important and must not be tampered with by politicians and bureaucrats. If an entrepreneur is correct when thinks he can buy a quantity of resources and hire labor at one price per finished-product unit and make something people will want to buy at a sufficiently higher price, he will earn a profit. That’s a sign the enterprise solved a problem for its customers. Profit in the free market (absent government intervention) is a reward for success. It’s not a dirty word.

Indispensable to the entrepreneurial function is the consumers’ freedom to accept or reject offers as they see fit. Both responses communicate vital information to the problem-solvers. Coercion, the government’s way of doing things, sabotages the function.

The freedom-based process is vital in our world of scarcity, trade-offs, and imperfect knowledge. Improvement is always possible, and imperfect knowledge is not the only reason. Another is that people’s preferences change. What they wanted yesterday they may not want tomorrow, especially if something new comes along. A third reason is that the array of resources changes, with new materials, technologies, and organization methods proving superior to the old. Government restraints on this process do a disservice to people trying to improve their lives, especially those who have yet to “make it.”

In contrast to entrepreneurs, politicians and bureaucrats can’t look for price discrepancies (since government “services” are not priced in the market) and wouldn’t profit from them in any event. Government officials instead respond to constituencies (relatively small well-connected interests generally) who lobby for “free,” that is, tax-financed, stuff. Since most of the benefits bestowed by the government are concentrated on relatively small interest groups with much riding on their single purpose, while the costs are dispersed among the mass of unorganized taxpayers and consumers without a single purpose, the interest groups usually prevail. (Think of quotas and tariffs on imports. A few domestic producers are usually able to dominate a much larger group of consumers.)

Moreover, when politicians and bureaucrats promise to solve a problem and fail, they rarely suffer any consequences since they are able to blame the private sector. (Inflation is blamed on greedy businesses, not on the real culprit: government borrowing that is monetized is by the Federal Reserve.) Spotting that misdirection requires one to engage in the economic way of thinking, but most of the public has no idea what that means. (Frédéric Bastiat in the 19th century illustrated this in “That Which Is Seen, and That Which Is Unseen.”) This political trick works so well that government officials can easily turn failure into bigger budgets and more power. The game is rigged against the people, who pay twice: through the tax system and by having to forgo real the solutions that entrepreneurs would have discovered had the government kept its hands off the resources.

Nothing better indicates the superiority of market solutions to state solutions than the fact that market solutions will vary according to local knowledge and preferences. In contrast, state solutions tend to be one-size-fits-all.

No one has ever suggested that the libertarian environment for solving problems is perfect. People aren’t infallible, so the private consent-based approach can’t be either. Trial-and-error is inescapable but also indispensable. Yet the last time I checked, politicians and bureaucrats were people too. (No, really!) The difference is that people are operationally smarter in a free, decentralized, and competitive environment where they encounter feedback and face the clear consequences of their choices. That’s exactly what is lacking in the political environment.

One final note. In a world of scarcity (however much technology loosens its limits), solving problems always entails costs. As Thomas Sowell teaches, in a sense, there are no solutions, only trade-offs. What we all strive for in life is an overall improvement; in effect we exchange situations we don’t want (all things considered) for ones we do want. That’s the natural condition, which politicians and bureaucrats cannot improve on. But as we can readily see, they certainly can make things much worse.


TGIF: Heartless Immigration Restrictions Need Replacing

Some elements of the right-wing are spreading the fear that Democrats are engineering a take-over of America by replacing white voters with nonwhites through liberal immigration policies. It’s come to be known as “the great replacement,” and in its ugliest form, it is said to be a Jewish conspiracy. Remember the sickening chant at the 2017 right-wing Charlottesville rally: “Jews will not replace us”?

I wish this fear-mongering could be ignored, but since a few fanatics have committed violence apparently to prevent the “great replacement,” it needs to be discussed.

Why would anyone lose even one wink over this alleged plot? For one thing, even if such a plan existed, the Democrats can’t possibly know how future citizens will vote or even if they will vote. Why assume they will follow the Democrats’ orders, as the right-winders expect? In recent years, some Republicans have done fairly well with Latino voters. As long as conservatives talk about the nonwhite population as though it were a group of obedient children rather than moral agents, they needn’t wonder why they don’t win more votes in those communities. Just a thought, but maybe people who are energetic and entrepreneurial enough to leave their impoverished homes for a shot at greater opportunity, despite the risks, ought to be wooed, not alienated by political activists who pay lip service to individual enterprise.

Regardless of whether some Democratic politicians and left-wing activists think they can carry out the alleged plot or whether their statements praising America’s changing ethnic composition are merely quoted out of context, who cares? True freedom-lovers favor whatever ethnic composition results from the freely chosen actions of sovereign individuals — both current and aspiring Americans. Freedom’s champions also favor progressively shrinking government power so that no one — regardless of ethnicity — can impose his or her values on others. (Strictly speaking, one value should be imposed on others, the liberal value summed up by the phrase live and let live. In other words, aggressive physical force is illegitimate.)

It would be nice if someone prominent in American politics would say to the conspiracy theorists: “Who needs replacement conspiracy to explain the need for open borders? We already have a perfectly good reason to open the gates: immigrants not only help themselves by coming here, but they also improve our society and the whole world.”

But don’t hold your breath. Does a Democrat walk the land who favors unrestricted immigration? Please let me know.

On the contrary, some Democrats have their own replacement conspiracy theory about those who favor free (or at least freer) immigration. Sen. Bernie Sanders, the economically illiterate darling of the left, says he opposes open borders because “the Koch brothers,” by which he means anyone who favors freedom of movement (that is, libertarians), want cheap labor to replace more expensive American labor. It never occurs to politicians like Sanders that open-borders advocates might just favor individual liberty. Isn’t it interesting how much the right and left have in common?

Tucker Carlson leads the right-wing media in “exposing” the great plot to create a new electorate through immigration. His trope is revealing: “Look, if this was happening in your house, your parents adopted a bunch of new siblings and gave them brand-new bikes, you would say to your siblings, ‘You know, I think we’re being replaced by kids our parents love more.'”

It doesn’t get more ridiculous than that. First of all, would you say that? Second, in what respect do new arrivals get better “bikes” than those who were born here? Third, why does the government give anyone “bikes”?

The most revealing bit is Carlson’s analogizing the country to a family with the government as parents. It seems that the godfather of American conservatism isn’t Edmund Burke, but Sir Robert Filmer. (John Locke’s liberalism was a response to the monarchist Filmer.) According to the Encyclopedia Britannica,

Filmer believed that the state was a family, that the first king was a father, and that submission to patriarchal authority was the key to political obligation. Making a strained interpretation of scripture, typical of his time but ridiculed by Locke, he pronounced that Adam was the first king and that Charles I ruled in England as Adam’s eldest heir. Filmer represented that patriarchal social structure which characterized Europe until the Industrial Revolution.

So let’s get serious. Drawing on contemporary data, history, and sound social theory, George Mason University Professor Bryan Caplan shows that every one of the common fears about free immigration —  lower wages, a bigger welfare state, radical cultural change, authoritarianism, etc. — are either concocted wholesale or outrageously exaggerated. So stop worrying! (See this interview with Caplan and check out his graphic nonfiction book, Open Borders: The Science and Ethics of Immigration.)

By the way, enacting immigration controls in the name of staving off authoritarianism is a cruel joke because controls on immigration necessarily are controls on whomever the state chooses to define as a citizen.

Instead of favoring heartless restrictions on people’s freedom to move, why don’t people who worry about immigration instead call for limits on government power so that fewer areas of life are controlled by politicians beholden to blocs of voters? Conservatives must have their own sort of welfare state in mind.

TGIF: Glenn Loury’s Collectivist Immigration Policy

Glenn Loury, the economist at Brown University, often has interesting things to say. His YouTube Glenn Show episodes with linguist and social commentator John McWhorter feature valuable insights and eye-opening data about race, woke “anti-racism,” and related matters.

Loury is a neoclassical economist who is generally pro-market. He harbors some doubt about government solutions to social problems. But judging by what he says about immigration, his political theory is appallingly collectivist. This is alarmingly clear from his most recent video with McWhorter. (The transcript is here.)

Loury wants to separate the case for tight border control from the polarizing right-wing TV personalities like Tucker Carlson who constantly bang on about it. Loury’s purpose is to show that a perfectly nonracist case can be made for the government controlling “the border.” (The U.S, has more than one border, but Loury uses the singular form.) He says, in the typical alarmist right-wing manner:

Is it good for the country that we don’t have control of the border and that people come in the thousands and tens of thousands and ultimately in the millions without authorization?

So here’s an argument that I don’t think is a “swarthy hoard” argument. I am an American citizen. That’s a very special endowment which I have inherited in virtue of my birth. This is my country. There are 330 million or so of us. We should get to decide what the future of the composition of our polity is going to be through legitimate democratic deliberation. That’s what we elect representatives for. That’s the purpose of law.

He goes on to say that the American people should decide democratically, that is, collectively, who will and won’t “add[] positive value to the collective enterprise of the country.” It sounds more like he’s talking about a member-owned country club than about a (theoretically) free country.

I see three problems here. First, political decision-making in a representative democracy doesn’t work in the pollyannish way that Loury seems to imagine. Second, voters, politicians, and bureaucrats couldn’t acquire the information needed to ascertain who will and won’t “add[] positive value to the collective enterprise of the country.” And third, Loury’s approach runs roughshod over individual liberty, private property, and the pursuit of happiness. Aren’t those values our actual very special endowment inherited in virtue of our birth?

James Buchanan said that he helped found the Public Choice school of economics to achieve a “politics without romance.” By that he meant that if we are to understand the political realm, we must drop the civic-books fairy tales about well-informed voters and public-spirited politicians and bureaucrats. Instead, we must take people involved in politics as they really are. Politicians and bureaucrats do not become saints when they leave the private sector for government jobs. Even when they are not simply corrupt, they still have career ambitions and other self-interested motivations, like those outside the government.

A related point comes from the Austrian school of economics, specifically Ludwig von Mises and F. A Hayek, who showed beginning a century ago that central planners can’t possibly know all that they would have to know to guide a society’s commercial activities. It’s called “the knowledge problem,” and it’s why socialism and communism fail. The point also applies to governments that presume to plan immigration according to who will be productive and who will be parasitical. That “data” simply is not on deposit anywhere for the bureaucrats’ taking. Remember that we’re talking about human beings and a future that has yet to unfold.

Moreover, voter decision-making is distorted by perverse incentives inherent in the democratic system. As Bryan Caplan shows in The Myth of the Rational Voter: Why Democracies Choose Bad Policies, voters tend to indulge their unexamined irrational biases rather than spend their free time studying which positions and candidates would be best for their communities. But why would they indulge their irrational biases? They do so because it is costless to each of them: since no single vote is likely to be decisive, why would busy people trade time with family and friends for pointless research that will have zero impact on an election? One of those irrational biases is the bias against foreigners. (Caplan explains his data-rich thesis here. See my review of Caplan’s book.)

The point of all this is to show that Loury’s idealized democratic vision — in which well-informed voters with a birdseye view of the social landscape elect wise and altruistic representatives guided only by the general welfare who will deliberate on an immigration policy aimed solely at creating the scientifically determined optimal population for America, a policy that will then be administered by humane bureaucrats in the executive branch under the guiding hand of an enlightened president — is a chimera. Rather, the political arena is a sausage factory full of largely unaccountable career-, prestige-, and power-seekers; special interests; and voters, each of whom pays only a tiny bit of the full price of their foolish choices.

Lastly, Loury overlooks the neglected cost of a collectivist approach to immigration. What cost? The cost to individual Americans who would sell or rent to, buy from, hire, work for, and socialize with immigrants. (The terrible cost to those locked out is obvious). Don’t those Americans have rights? Why should their freedom to engage in voluntary relationships with non-Americans require government permission, even if that system is given a democratic gloss? As Chandran Kukathas emphasizes in his book Immigration and Freedom, restrictions on actual and would-be immigrants necessarily are restrictions on American citizens too. It is impossible to enact the former without enacting the latter.

Watch Loury in action:

If we don’t have control, and we simply allow anyone who has the resources to get themselves to the Mexican side of that border and wade across that river into the country, we will look up in 20 years, in 50 years and find that we are a different country than we had been in ways over which we did not exert the legitimate discretion that is our inheritance as citizens of the country. [Emphasis added.]

That’s a social engineer speaking.

Loury thinks he’s accomplished his goal: since blacks, he alleges, suffer disproportionately from “uncontrolled immigration” (as if we have that) “through the labor market or through competition for public resources,” border control could hardly be racially motivated. Does he not see the problem here? Border control might still be motivated by animus toward Mexicans, Latinos generally, or brown people, rather than black people, although I accuse Loury of none of that.

As for his concern about the labor market and public resources, that is, tax revenue, Loury should know better. Immigration experts associated with the Cato Institute and elsewhere have shown repeatedly over many years that immigrants hugely benefit Americans generally on net and in fact the whole world. Immigrants are producers as well as consumers, and their crime rates and consumption of tax-funded benefits are relatively low. If Loury is worried about new arrivals’ going on the dole or lowering the wages of the high-school dropouts, he could propose, as second-best solutions, relevant welfare restrictions on new arrivals (they exist for the most part already) or assistance to the small number of low-skilled workers adversely affected in the job market. He could also propose that the government abolish myriad obstacles to creating businesses and housing. Instead, he proposes to keep people he deems unproductive out of the country, people who desperately want to make better lives for themselves and their families in America. Shame on him.

Again citing Caplan, significant wealth creation is to be expected from even the poorest immigrants in America because their productivity vastly increases when they move from capital-poor to capital-rich environments. Machines magnify the power of human labor. Moreover, the more people in a productive environment, the more minds there are to contribute new ideas that will combine with other ideas to become even better ideas. The result is a rising living standard for all. As Julian Simon put it, human ingenuity is the “ultimate resource.”

Thus, as Caplan says, an open-border policy is the most effective antipoverty program imaginable. Keeping poor people locked in undeveloped countries is simply cruel. (See Caplan’s graphic novel, Open Borders.)

Loury doesn’t mention culture in his case against freedom of movement, but it’s hard to believe that he doesn’t also have that in mind. Suffice it to say here that asking politicians to conserve “the culture” seems, to say the least, ill-advised — even if it were possible.

I’ll close with one more quote from Loury:

So who I don’t want to come? Anybody who doesn’t have my permission to come. Beyond that, if you were to ask me, and there are more people who want to come than there are “places” for them to come, and we have to decide how many places we want to make available for people to come, I would say, people who are going to come and be a dependent on the rest of us for their support are less desirable than people who want to come and who are going to start businesses or bring skills or things of this kind.

Here we see Loury falling back on the discredited fixed-pie model of society. More people than places for them? Immigrants in a free market create their own places. We also see Loury the soothsayer, for he apparently knows who will be dependent and who will be productive, who will start businesses and who won’t. Wouldn’t it be nice if the rest of us could see the future so clearly?

TGIF: Mask Mandate – Liberty Can Hang on One Word

As I mentioned recently, whether the courts protect or violate liberty in any given case is something of a coin toss. The matter could hinge on a single word. We just had a good example of that fact.

On April 18 U.S. District Judge Kathryn Kimball Mizelle, a Trump appointee in Tampa, Fla., ruled that the Centers for Disease Control exceeded its statutory authority when it mandated that most people wear masks when using public transportation in order to stem the spread of COVID-19. (Health Freedom Defense Fund et al. v. Biden.)

The judge’s ruling hinged on a single word in §264(a) of the Public Health Services Act of 1944, on which the CDC claimed its authority: sanitation.

§264(a) states:

The Surgeon General [or CDC apparently], with the approval of the [HHS] Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General [or CDC] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

For Judge Mizelle the question came down to exactly what sanitation means and whether mask-wearing is a method of sanitation. The answer depends, she said, on the sense, that is, the context, in which the statute uses that word.

She wrote: “A requirement that travelers wear a mask is not inspection, fumigation, disinfection, sanitation, or pest extermination, and the government does not contend otherwise.” But, she added, the CDC does contend that the mask mandate is “akin to sanitation.”

The judge rejected that contention. The statute does not define sanitation, so she relied on dictionaries for guidance, finding that the word refers to both cleaning something and keeping it clean:

The context of §264(a) indicates that “sanitation” and “other measures” refer to measures that clean something, not ones that keep something clean. Wearing a mask cleans nothing. At most, it traps virus droplets. But it neither “sanitizes” the person wearing the mask nor “sanitizes” the conveyance. Because the CDC required mask wearing as a measure to keep something clean — explaining that it limits the spread of COVID-19 through prevention, but never contending that it actively destroys or removes it — the Mask Mandate falls outside of §264(a).

Mizelle had much more to say on why the second sense of the word doesn’t apply, and she rejected other CDC claims.

My point is not to take issue with the result. I am delighted the CDC — one of those “expert” regulatory agencies that have effectively become unelected legislatures unto themselves — was reined in. Throughout the pandemic the CDC has tried to seize one unprecedented power after another. Fortunately it has not gone unchecked. When it imposed a moratorium on apartment evictions and forbade the cruise industry from operating, the courts said no. Now a court has said no to the mask mandate.

Rather, my point is that freedom can hang by a very thin thread. Judge Mizelle made a good case that in this statutory context, mask-wearing is not a method of sanitation. But what about the next judge who hears a CDC or other power-grabbing case? (As we’ve seen repeatedly, the party of the nominating president gives no assurance.) As former President Clinton aide Elaine Kamarck shows, it wouldn’t have been a stretch for a judge to have upheld the mandate, and most Americans wouldn’t have thought the reasoning off the wall. The difference between Mizelle and Kamarck looks like hair-splitting. But liberty is too precious to be left to hair-splitting.

As I wrote in 2009, after soon-to-be Supreme Court Justice Sonia Sotomayor assured the Senate Judiciary Committee that a “judge applies the law [and not her feelings] to the facts” of the case:

Nothing in human affairs is that simple. Judgment and interpretation are required every step of the way. This is why, contrary to popular fable, the line between the rule of law and the rule of men and women is so fine as to be nonexistent. (See John Hasnas’s important papers “The Myth of the Rule of Law” and the “The Depoliticization of Law” [pdf]). Laws, which are intended to be applied to an unlimited number of unforeseeable future circumstances, do not speak for themselves. Human beings must interpret them. This does not mean language is inherently impenetrable. (I could hardly write if I believed that.) However, there is a broad middle ground between impenetrability and perfect clarity. As libertarian legal scholar Randy Barnett noted,  “While I do not share [the] view of law as radically indeterminate, I sure think it is a whole lot more underdeterminate than Judge Sotomayor made it out to be in her testimony today.”

Where does that leave us then? It leaves us with the question asked by the classical liberal legal philosopher Bruno Leoni, author of Freedom and the Law (1961): “It is a question of deciding whether individual freedom is compatible in principle with the present system centered on and almost completely identified with legislation.” What’s the alternative to legislature-based law? Leoni wrote: “Both the Romans and the English shared the idea that the law is something to be discovered more than to be enacted and that nobody is so powerful in his society as to be in a position to identify his own will with the will of the land.”

It was law that judges discerned when resolving specific disputes brought before them by specific individuals; it was law based on custom and the reasonable expectations it gave rise to. The system stood in contrast to legislature-made rules that are later interpreted by judges. It wasn’t a perfect system, but the comparison is not to Utopia but to what legislatures and judges routinely do. Leoni likened judge-discovered law to the spontaneous order of the free market and legislature-made rules to central economic planning:

No solemn titles, no pompous ceremonies, no enthusiasm on the part of applauding masses can conceal the crude fact that both the legislators and the directors of a centralized economy are only particular individuals like you and me, ignorant of 99 percent of what is going on around them as far as the real transactions, agreements, attitudes, feelings, and convictions of people are concerned.

Under the best of circumstances, conventional political systems are dodgy places to seek the protection of liberty, even in matters of public health, where property rights, contract, and voluntary community should reign supreme. (On the efficacy of masks, see this.) If the mask-mandate case isn’t convincing enough, have a look at the leaked draft of Justice Samuel Alito’s draft opinion in the Supreme Court’s latest abortion case.


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