TGIF

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: True Liberals Are Not Conservatives

The relevance of F. A. Hayek’s essay “Why I Am Not a Conservative,” the postscript to his important 1960 book, The Constitution of Liberty, is demonstrated at once by the opening quote from Lord Acton:

At all times sincere friends of freedom have been rare, and its triumphs have been due to minorities, that have prevailed by associating themselves with auxiliaries whose objects often differed from their own; and this association, which is always dangerous, has sometimes been disastrous, by giving to opponents just grounds of opposition. [Emphasis added.]

Who among true liberal advocates of individual liberty and free social evolution — aka libertarians — would deny the truth of that observation?

Hayek had European conservatism in mind when he wrote his essay, and for years, American conservatives, who still had affection for true liberalism, hastened to point this out. As Hayek wrote:

Conservatism proper is a legitimate, probably necessary, and certainly widespread attitude of opposition to drastic change. It has, since the French Revolution, for a century and a half played an important role in European politics. Until the rise of socialism its opposite was liberalism. There is nothing corresponding to this conflict in the history of the United States, because what in Europe was called “liberalism” was here the common tradition on which the American polity had been built: thus the defender of the American tradition was a liberal in the European sense.

Later in his essay, he elaborated that “in the United States it is still possible to defend individual liberty by defending long-established institutions. To the liberal they are valuable not mainly because they are long established or because they are American but because they correspond to the ideals which he cherishes.”

But he noted that “This already existing confusion [over labels] was made worse by the recent attempt to transplant to America the European type of conservatism, which, being alien to the American tradition, has acquired a somewhat odd character.” The confusion was compounded, Hayek wrote, when socialists began to call themselves liberals.

Many still suffer from this confusion today. But change has been afoot because the illiberals of the left and right increasingly want no part of true liberalism or the label — and in a way, that’s good. Those on the left who call themselves progressives or socialists don’t like the label liberal (or neo-liberal) because they associate it with the current permanent bipartisan prowar regime beholden to special corporate interests (so we liberals still have work to do), and virtually all conservatives eschew the label because they don’t want to be mistaken for libertarians. That’s also good.

So Hayek’s essay has new relevance for America. Would Hayek have been surprised? He would have distinguished national conservatism from neoconservatism because of the latter’s cosmopolitanism. But how could he embrace as bonafide allies people who view imperialist war as a way to create “national greatness” and social solidarity, as the neocons do? Hayek would have agreed with Abraham Bishop who said in 1800 that “a nation which makes greatness its polestar can never be free; beneath national greatness sink individual greatness, honor, wealth and freedom.”

Let’s look at Hayek’s problem with conservatism. For him, the “decisive objection” is that “by its nature,” conservatism can do no more than slow down the change that progressives have initiated. That’s not good enough: “What the liberal must ask, first of all, is not how fast or how far we should move, but where we should move.” He acknowledged that although the liberal’s differences with the “collectivist radical” are greater than his differences with the conservative, the latter “generally holds merely a mild and moderate version of the prejudices of his time.” Thus “the liberal today must more positively oppose some of the basic conceptions which most conservatives share with the socialists.”

Explicitly illiberal American conservatives would take issue with Hayek here, but I think Hayek was right. To the extent that conservatives want to use the state to impose their values — through censorship, immigration and trade restrictions, vice prohibitions, antitrust law, cultural protectionism, and the like — they indeed share conceptions with their enemies on the left. The ends may differ, but the means bear an uneasy resemblance. (The late Leonard Liggio used to say that the original socialism arose as a middle way that promised to use conservative means, that is, the state, to achieve liberal ends, that is, industrial progress and widespread wealth. Later a “new left” turned against industrial progress and disparaged the goal of material abundance for all.)

“The main point about liberalism,” Hayek wrote, “is that it wants to go elsewhere, not to stand still.” My sense is that in the last few years, elements of the right have come to appreciate Hayek’s point. They became fed up with mere holding actions and have resolved to push a “positive” program. Unfortunately, it’s a state-saturated program that ought to make genuine liberals sick.

The exception appears to be foreign policy. Right-wing nonintervention seems to have two justifications: first, that the U.S. government is wrong to think it can design the cultures of other nation-states, and second, that the trillions of dollars the government spends on the military and foreign populations could be better used for domestic matters, including “border security.” So even in foreign policy the liberal and conservative bedfellows ought to be uncomfortable.

The liberal’s wish not to stand still is the crux of the matter.

There has never been a time when liberal ideals were fully realized and when liberalism did not look forward to further improvement of institutions. Liberalism is not averse to evolution and change; and where spontaneous change has been smothered by government control, it wants a great deal of change of policy. So far as much of current governmental action is concerned, there is in the present world very little reason for the liberal to wish to preserve things as they are. It would seem to the liberal, indeed, that what is most urgently needed in most parts of the world is a thorough sweeping away of the obstacles to free growth. [Emphasis added.]

Hayek’s embrace of a social order that guarantees change may seem to conflict with other things Hayek wrote that seem more conservative. But I think that may be mistaken. I take him to say that although the new is not necessarily the good, people must be free to try new ways to flourish. It is one thing to personally default to tried and true until something new proves itself worthy (because a tradition’s value may not be immediately apparent), but quite another to empower the state to impede innovation and entrepreneurship, which is disruptive insofar as it is constructive. (Hence I would change Schumpeter’s creative destruction to creative disruption.)

Hayek proceeded to enumerate several differences between liberal and conservative attitudes. The first, as already suggested, is that “one of the fundamental traits of the conservative attitude is a fear of change, a timid distrust of the new as such, while the liberal position is based on courage and confidence, on a preparedness to let change run its course even if we cannot predict where it will lead.” This for Hayek explained the liberal enthusiasm for the free market’s generation of spontaneous if unpredictable order, and the conservative lack of enthusiasm for such.

Relatedly, unlike liberalism, conservatism displays “its fondness for authority and its lack of understanding of economic forces. Since it distrusts both abstract theories and general principles, it neither understands those spontaneous forces on which a policy of freedom relies nor possesses a basis for formulating principles of policy.” For Hayek, the conservative’s “complacency … toward … established authority … is difficult to reconcile with the preservation of liberty.”

Hayek could have been describing Sen. Josh Hawley and the thinkers behind national conservatism when he wrote: “In general, it can probably be said that the conservative does not object to coercion or arbitrary power so long as it is used for what he regards as the right purposes. He believes that if government is in the hands of decent men, it ought not to be too much restricted by rigid rules.”

Hayek faulted the conservative for lacking — indeed, for disparaging — abstract political principles, which are the key to peaceful coexistence among people within a society who have different moral visions:

What I mean is that he has no political principles which enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions. It is the recognition of such principles that permits the coexistence of different sets of values that makes it possible to build a peaceful society with a minimum of force.

And this point of Hayek’s is especially pertinent:

Connected with the conservative distrust of the new and the strange is its hostility to internationalism and its proneness to a strident nationalism. Here is another source of its weakness in the struggle of ideas. It cannot alter the fact that the ideas which are changing our civilization respect no boundaries…. It is no real argument to say that an idea is un-American, or un-German, nor is a mistaken or vicious ideal better for having been conceived by one of our compatriots.

Hayek continued that “it is this nationalistic bias which frequently provides the bridge from conservatism to collectivism: to think in terms of ‘our’ industry or resource is only a short step away from demanding that these national assets be directed in the national interest….”

As he closed his essay Hayek confessed that since the word liberal had been corrupted, thanks to the French Revolution and other forces, by “overrationalis[m], nationalis[m]” and socialis[m],” it had ceased to a good label for his political outlook, which he shared with Tocqueville and Acton: “What I should want is a word which describes the party of life, the party that favors free growth and spontaneous evolution. But I have racked my brain unsuccessfully to find a descriptive term which commends itself.” (He found libertarian “singularly unattractive” and “manufactured.”)

I could go on quoting Hayek’s essay — which is not to say I agree with all of it — but I fear that would unduly impose on the reader. So I recommend that the entire essay by the self-described “unrepentant Old Whig” be devoured forthwith.

TGIF: Alito’s Challenge to Libertarians

In his recently leaked first draft of an opinion that would reverse the abortion-rights cases Roe v. Wade and Casey v. Planned Parenthood, Supreme Court Justice Samuel Alito gives Americans a choice between judges who read their personal preferences into the Constitution and judges who recognize only rights that they find “rooted in [our] history and tradition” and deem “essential to our Nation’s ‘scheme of ordered Liberty.'”

Is that it? Neither choice seems an adequate safeguard for individual freedom.

Whether one likes the result or not, Alito’s draft in Dobbs v. Jackson Women’s Health Organization raises important issues apart from abortion. Indeed, he unintendedly draws attention to whether the Constitution can be relied on to protect liberty. Unsurprisingly, Alito is not concerned with rights as a philosophical matter. That’s not his job. Rather, he’s concerned only with constitutional rights — liberties that satisfy criteria making them worthy of protection by the government. By that standard, an otherwise perfectly defensible right might not qualify. That would be left to the legislative process. That’s the constitutional game. The framers understood this, though some libertarians do not.

The Constitution may seem to clearly endorse a general notion of liberty in the 14th Amendment’s due process clause, but does it really? Alito, like other conservatives, thinks not:

Historical inquiries … are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the same thing” In a well-known essay, Isaiah Berlin reported that “[h]istorians of ideas” had catalogued more than 200 different senses in which the terms had been used.

In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution.

So, Alito writes elsewhere in his opinion, “[G]uided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term ‘liberty’ when the issue involves putative rights not named in the Constitution” — such as a woman’s putative right terminate a pregnancy.

Note that Alito uses the term ordered liberty. That’s a concept in the case law, apparently first enunciated in 1937, that “sets limits and defines the boundary between competing interests.” Why must the term liberty be so qualified? Because, he writes, “attempts to justify abortion [and other things –SR] through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history.”

If that counts as “proving too much,” libertarians would say let’s do it.

Alito hastens to add that other court-protected rights that are not deeply rooted in history — such as the rights to contraception, interracial marriage, and same-sex marriage — are not jeopardized by his opinion because abortion is unique. How confident can others be about that?

Putting on his historian’s hat, Alito accuses the majority in Roe of misstating history and writes that abortion even at an early stage was never regarded as a right in Anglo-American common or statutory law and was generally illegal throughout the United States. Not everyone agrees with Alito’s historical account.

Alito asserts that when justices ignored history, they engaged in “the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.” That was the highly influential 1905 case in which the Court struck down a state law limiting the hours that bakers could work per day and per week because the law violated freedom of contract under the 14th Amendment. Progressives hated the ruling from the start, but some conservatives later came to hate it too because it relied on the concept of substantive due process, by which judges could invent rights that conservatives abhorred. Libertarians also ought to have apprehensions about substantive due process. Such seemingly benign legal notions, including “unenumerated rights,” are double-edged swords.

The juridical problem in distinguishing putative rights that are constitutionally protected from those that are not is that no constitution could name more than a few rights. Where does that leave all the rights left out? (We could say there is only one right, namely, the right not to be subjected to aggression, and that anything more specific rights are examples of the principle. But that would incite a never-ending controversy over what constitutes aggression.)

The Ninth Amendment, which says that rights not mentioned were still retained by the people, seemed to be the solution to the problem. That amendment has not played an important role in constitutional law to the frustration of libertarians, but danger lies in that amendment if it were to be taken seriously. The danger is that pseudo-rights could be embraced by Supreme Court justices. Rights theory is like a butterfly. You may lovingly nurture the egg, larva, and pupa, but once the butterfly emerges from the cocoon, it will fly where it likes or be blown about by the wind, logic or no logic. (It’s been pointed out that the Bill of Rights has turned out to be a tragic distraction. Instead of the government having the burden of justifying any power it wishes to exercise, the people have had to justify any claimed right by finding supporting text in the Bill of Rights. Maybe we’d have been better off without it.)

It’s tempting for each of us to think that our own theory of rights or liberty just happens to be the one that perfectly aligns with the intent of the framers or with the common understanding of the constitutional text in 1789. But how likely is that? The framers didn’t agree philosophically on everything and people often understand words and sentences differently among themselves. In other words, originalism isn’t a neat solution.

As noted, Alito’s alternative to judges who impose their personal views about liberty is judges who stick exclusively to rights deeply rooted in the country’s history and tradition. But this is also unsatisfying because it imprisons us in the thinking of long-dead individuals whose understanding of liberty might have been incomplete. Why assume that the framers understood every implication of the nature of freedom? As Thomas Paine wrote in The Rights of Man:

There never did, there never will, and there never can, exist a Parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the “end of time,” or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void…. It is the living, and not the dead, that are to be accommodated.

It’s true that constitutions can be amended and the framers’ shortcomings addressed, but that process is always costly and difficult. In the meantime, people suffer from the deprivation of their liberty.

Alito’s choice between the alternatives is clear, but the Constitution contains no guide to interpretation. Even if it did, how would that help? Any guide to interpretation would itself be open to interpretation. We’d end up with an infinite series of guides.

So where does that leave us? Apparently with two choices: an un-elected national super-legislature free to invent rights or a federal court guided by an emaciated, tradition-bound notion of liberty and unchained state legislatures free to grant (revocable) “rights” by majority vote. Neither seems ideal, but the ideal seems not to be on the menu today. I recorded my thoughts on perhaps the short-term second-best solution in “Disagreement without Conflict.”

(See my book America’s Counter-Revolution: The Constitution Revisited.)

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.

TGIF: What Really Protects Liberty?

The COVID-19 pandemic has demonstrated, as if we needed another demonstration, that little stands between the government and our liberty. Champions of individual freedom have been properly disturbed by how much power governments at all levels have seized since the pandemic hit in 2020.

To make matters worse, officeholders and public-health officials object when the judicial branch occasionally overturns their power grabs because judges are said to be unqualified to rule on “medical” matters. So, if judges furnish constitutional and other legal grounds against power grabs, we’re supposed to ignore them because they in fact are issuing medical opinions for which they are not qualified. That’s pretty inventive reasoning, but unfortunately it is in the service of tyranny and serfdom.

Some judges have made good, that is, power-limiting, decisions during the pandemic, though they might well have gone the other way. (See John Hasnas’s “The Myth of the Rule of Law.”) It’s only a slight exaggeration to say the judicial process is a coin toss.

When judges get it right, the devout constitutionalists among us cheer: “The system works!” But what about all the times the rulings went the other way? Where does that leave the constitutionalists? They will say that the problem isn’t with the Constitution; it’s with the judges. But considering that the Constitution doesn’t interpret itself, who were they expecting to interpret it? Robots that have been correctly programmed? Who would do the programming? Even people within the competing schools of constitutional interpretation don’t agree on everything.

Since it’s people all the way down and the process is internal, not external to society, don’t the constitutionalists have a wee problem?

James Madison called the Bill of Rights, which he wrote, a “parchment barrier.” But he couldn’t have really meant that because parchment is a poor material for making the heavy-duty, barrier liberty requires due to the predatory nature of politicians. The only real barriers in this regard are the people themselves — people, that is, who refuse to give, carry out, or obey unjust orders. Paraxodically, orders require consent, and that can be withheld. (Think of the scene in Monty Python’s Life of Brian in which Brian tells a prison guard that he doesn’t have to follow orders and the guard replies, “I like orders.”)

Strictly speaking, constitutions and statutes cannot compel unjust conduct or compliance. They are merely words. When governors ordered “non-essential” businesses and schools to shut down and people to stay home in 2020, those politicians didn’t point guns at anyone. People obeyed, but I suspect that only a few did so lest they be punished. If someone had disobeyed, armed agents of the state might have been dispatched, but why did they obey orders? No gun was held to their heads. They might have been fired and others put in their place places, but no one would have been subjected to force.

So all these state agents acted to suppress liberty freely. They followed orders. Why? Because they believed it was proper to do so. Most of the public believed it too. So they were unlikely to interfere.

Why do all these people behave as they do? They do it because of their moral-political values, which they’ve absorbed since childhood. They believe deep down that the state — which is just a large gang of people — is mystically endowed with a moral authority that permits them to do things that the rest of us must never do. In other words, the people, who always outnumber their rulers, subjugate themselves. (See Etienne de la Boetie’s classic, The Discourse on Voluntary Servitude.)

This means that the real constitution in any society is not necessarily and usually is not the written one. The real constitution is reflected in most people’s day-to-day actions, attitudes, and de facto institutions. It may conform to or conflict with the written constitution. As Roderick Long writes, “what matters is a nation’s ‘constitution’ in the original sense of the actual institutions, practices, and incentive structures that are in place.” (See “Market Anarchism as Constitutionalism.”)

The upshot is that if people’s values are not consistently pro-liberty, it won’t matter in the long run much what the Constitution “says,” and if they are pro-liberty, then it won’t matter whether there is a written constitution — or a state for that matter. In this respect, the debate between libertarians over whether the state is either necessary or proper starts to look rather different. Stateless societies would have constitutions too. As Long puts it:

Anarchy thus represents the extension, not the negation, of constitutionalism. Instead of thinking of anarchy as a situation in which government has been squeezed down to nothingness, it might be more helpful – at least for minarchists – to think of anarchy as a situation in which government has been extended to include everybody. This is what Gustave de Molinari, the founder of market anarchism, meant when he wrote, in 1884: “The future thus belongs neither to the absorption of society by the State, as the communists and collectivists suppose, nor to the suppression of the State, as the [non-market] anarchists and nihilists dream, but to the diffusion of the State within society.”…

Anarchy is the completion, not the negation, of the rule of law. 

But didn’t Madison give us liberty-protecting checks and balances? Not really. What he actually bequeathed was a simulacrum of what a fully freedom-based system would provide. While he hyped his Constitution as featuring a separation of powers (and a context in which ambition would neutralize ambition), he overlooked the likelihood that the branches and special interests may discover that collusion against the people is more profitable than competition among themselves.

In contrast, as Long points out,

Far from eschewing checks and balances market anarchists take market competition, with its associated incentives, to instantiate a checks-and-balances system, and to do so far more reliably than could a governmental system…. Separation of powers, like federalism and elective democracy, merely simulates market competition, within a fundamentally monopolistic context.

These insights are valid regardless of the content of a given written constitution, although libertarian and conservative constitutionalists’ love affair with the U.S. Constitution is curious. As the Anti-federalists pointed out when the Constitution was first proposed, the taxing power, absent from the Articles of Confederation, is virtually unlimited and the necessary-and-proper clause is downright scary. Then there’s that power to regulate trade, the commerce clause! It also was absent from the Articles of Confederation. (Not that I would have been satisfied with that document. But the comparison is illuminating.)

I won’t mention the executive branch’s royal power over military and foreign policy. Its consequences have been too terrifyingly obvious to need elaboration here.

And let’s not forget the Constitution’s implied powers. I know, I know: the Constitution has no implied powers. The national government may only exercise powers expressly delegated. Right? Sorry. As Madison himself said during the debate over the proposed Tenth Amendment,” it was impossible to confine a government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae.” Ouch!

Of course, no article about the Constitution would be complete without quoting Lysander Spooner’s irrefutable “The Constitution of No Authority,” published in 1870, a time much beloved by constitutionalists:

But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist

What’s to stop a return of all the restrictions if COVID-19 rears its ugly head or when the next pandemic comes long? Not the Constitution. Constitutions are security blankets, and like all security blankets, they distract from real danger: the unspoken values people hold that are inimical to liberty. Only education and persuasion can instill pro-liberty values.

(Read more about these matters in my book America’s Counter-Revolution: The Constitution Revisited.)

TGIF: Shades of Gray in the Russia-Ukraine War

If you’re looking for morality tales — clashes between the clearly good and the clearly bad — I suggest you look elsewhere than to the geopolitical theater. There we find only conflicts between shades of darker gray.

This seems to have been the case throughout history. Empires and would-be empires vied with rival empires and would-be empires for territory, resources, taxpayers, and soldiers. No surprise: governments will be governments, and that’s not good. This is not to say the shades of gray did not differ at all, perhaps even significantly on occasion, but the objective was always, first and foremost, booty and control of people. The interests of commoners were rarely if ever the cause.

We see this in Russia’s war on Ukraine. Let’s be clear: Vladimir Putin and his Russian government freely chose to send military forces across the border into Ukraine. Their military personnel complied. They ultimately are responsible for their choices and therefore the death, injury, and mayhem that is taking place. (I make an exception for proven false-flag operations on the Ukrainian side, should any come to light.)

Now that the issue of primary culpability is out of the way, we can go on to talk about contributory culpability. I hope I’ve left little room for anyone to argue assigning contributory culpability to others is intended to let the Russian government personnel off the hook.

What sort of culpability do I have in mind? It’s on the order of setting a trap and loading it with bait in order to lure a target. Russia had to choose to step into it, but those who set the trap did not have to do what they did. Hence, they contributed to a terrible situation.

Many experts analysts have long pointed out that the U.S. government at least since the late 1990s has knowingly been provoking Russia by expanding NATO up to the country’s western border, incorporating most of the allies and some of the republics of the late Soviet Union. For years the U.S. government and other NATO officials have talked publicly about inviting the former republics Ukraine and Georgia to join. Everyone knew that Ukraine was an especially sensitive matter because it had long been a buffer between Russia and states to the west, Poland in particular. The Soviet Union had been invaded three times in the 20th century, twice by Germany and once by Poland, both NATO members since the demise of the USSR.

The warnings against NATO’s march eastward were too many to count and came from people as diverse as Henry Kissinger and Noam Chomsky, Soviet-rollback guru Paul Nitze and Soviet-containment architect George Kennan. The current director of the CIA, William J. Burns, warned in 2008, when he was George W. Bush’s ambassador to Russia, that no Russian leader — conservative or liberal — would ever stand for the admission of Ukraine and Georgia into NATO. Burns’s leaked memo was written shortly after publicly NATO declared that it welcomed applications for membership from those states.

That was 14 years ago and six years before the U.S. State Department helped foment a Nazi-backed coup that drove a Russia-friendly but democratically elected president from power — even though he had been making concessions to the opposition in the streets, including a call for early elections. What motivated the U.S. government was that president’s intention to reject an exclusive economic and political relationship with the European Union in order to accept a loan with liberal terms from Russia.

Aside from the overt NATO talk, there’s the matter of the U.S. government’s putting missile launchers in Poland and Romania. As outfitted, they are for defensive anti-missile missiles, but that could be changed. Moreover, defensive missiles obviously can be useful in an offensive campaign. Remember that Donald Trump, the reputed Russian agent, had earlier denounced the Reagan-era treaty that banned intermediate-range nuclear weapons from Europe and elsewhere. No one could have been surprised when all this was worrisome to the Russians. (Recall what happened in 1962 when the Soviet Union tried to put missiles in Cuba. John F. Kennedy imposed a naval blockade on the island and was ready to launch a nuclear war if the missiles were not removed.)

Since the Russian invasion, Joe Biden and his foreign policy people have denounced Russia sanctimoniously for its violations of international law and brutality, including the inexcusable deaths of noncombatants. It is not inappropriate to ask when an American president has ever respected international law when it was inconvenient for U.S. objectives. In the 21st century alone, American presidents have launched illegal aggressive wars in the Middle East and other places to effect regime change and other geopolitical objectives even partially on behalf of other states, such as Israel. In the process Americans have killed untold noncombatants. They have tortured prisoners. They have wreaked sickening destruction, creating hordes of refugees — and so on. Yet day after day, lying American officials — but I repeat myself — admonish Putin for his bad behavior. There’s nothing like setting a good example.

The Ukrainian leaders must also share in the blame. Those leaders who have been West-leaning have not been shy about aspiring to join NATO, knowing full well how the Russians would interpret those words. Since the 2014 coup — in response to which Russia annexed a long-standing security area, the Crimea with its Russian naval base, to keep it out of NATO hands — Ukrainian presidents could have made overtures to Russia, assuring that they would not seek NATO membership and offering to make Ukraine neutral in the manner of Austria since 1955. They did not do that, even though the current president, Volodymyr Zelensky, a former comedian and actor, was elected on a peace-with-Russia platform.

Superficially, Zelensky is an appealing figure. He’s young and charismatic, and he wears t-shirts. His country has been invaded, which of course puts him in a sympathetic light when he appears on television. But is that the whole story of the man? It also seems that despite the terms of the Minsk agreements, he has been unwilling to talk to leaders in the heavily Russian-ethnic Donbas region, in the far east of Ukraine, about home-rule. Two provinces there, Luhansk and Donetsk, have since declared their independence, which Russia has recognized. The Ukrainian military has been shelling the area since the 2014 coup, and Donbas forces have fought back. The casualties on both sides have been high.

Moreover, as Jacques Baud, an intelligence expert who has worked for NATO, the UN, and Swiss strategic intelligence  writes:

On [March 24, 2021], Volodymyr Zelensky issued a decree for the recapture of the Crimea, and began to deploy his forces to the south of the country. At the same time, several NATO exercises were conducted between the Black Sea and the Baltic Sea, accompanied by a significant increase in reconnaissance flights along the Russian border. Russia then conducted several exercises to test the operational readiness of its troops and to show that it was following the evolution of the situation. [Aaron Mate’s video interview with Baud is here.]

Baud also writes, “In violation of the Minsk Agreements, the Ukraine was conducting air operations in Donbass using drones, including at least one strike against a fuel depot in Donetsk in October 2021. The American press noted this, but not the Europeans; and no one condemned these violations.”

It begins to look as though Zelensky has cavalierly used the Ukrainian people for his own ends: instead of seeking peace, he sought or was willing to risk war with Russia, assuming the U.S. government and other NATO states would back him up with perhaps more than arms shipments. He still demands a NATO no-fly zone, which would all but assure a new world war and perhaps an all-out nuclear war. So he also shares in the responsibility.

As usual, there’s blame aplenty to go around.

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