The Volokh Conspiracy

Like me, conservative National Review columnist Jonah Goldberg has a generally favorable take on Yale Law Professor Heather Gerken’s progressive case for federalism:

A one-size-fits-all policy imposed at the national level has the potential to make very large numbers of citizens unhappy, even if it was arrived at democratically.....

Pushing government decisions down to the lowest democratic level possible — while protecting basic civil rights — guarantees that more people will have a say in how they live their lives. Not only does that mean more people will be happy, but the moral legitimacy of political decisions will be greater.

The problem for conservative and libertarian federalists is that whenever we talk about federalism, the Left hears “states’ rights” — which is then immediately, and unfairly, translated into, “Bring back Bull Connor.”

But that may be changing. In an essay for the spring issue of Democracy: A Journal of Ideas, Yale law professor Heather K. Gerken offers the case for “A New Progressive Federalism.”

Gerken’s chief concern is how to empower “minorities and dissenters.” Not surprisingly, she defines such people in almost purely left-wing terms of race and sexual orientation. Still, she makes the very compelling point that the current understanding of diversity — having minority members as tokens of inclusion — pretty much guarantees that racial minorities will always be political minorities as well...

Allowing local majorities to have their way, Gerken continues, “turns the tables. It allows the usual winners to lose and the usual losers to win. It gives racial minorities the chance to shed the role of influencer or gadfly and stand in the shoes of the majority.”

She’s right, and not just about her favored groups. For instance, Mormons (not a group Gerken highlights) are a national minority. But they are a Utah majority. Hence, Utah takes on Mormon characteristics. It’s no theocracy, but it is more representative and distinctive. In areas where Latinos or blacks are the majority, what’s so terrible about having institutions that reflect their values?

Whereas I think Gerken sometimes doesn’t give federalism enough credit, Goldberg sometimes gives it too much. For example, he ignores the problem that federalism is often ineffective in protecting the rights of immobile people and rights to immobile assets, such as property rights in land.

Be that as it may, Gerken’s progressive defense of federalism continues to get favorable notice in conservative and libertarian quarters (see also this comment by libertarian Damon Root). It will be interesting to see whether it will be equally well received by the intended left of center audience. There is already this moderately favorable piece in the Nation.

John Samples of the Cato Institute has an interesting recent piece on the conflict between Cato and the Kochs [via Gene Healy]:

The politically engaged have offered much commentary on the conflict over the future of the Cato Institute. Some prominent people on the left have spoken of their respect for the current Cato. In today’s polarized political world, an endorsement from the left often serves as a negative signal to conservatives. That reaction would be a mistake. Conservatives have something at stake in the continuation of Cato.

What is the issue here? Each reader will reach his or her own conclusions based on the evidence we have about the Kochs’ intentions in this takeover attempt. I would suggest that we look at the big picture about the recent development of think tanks. A few years ago a number of wealthy liberals including George Soros decided to contribute considerable sums to a new think tank. They deemed the old liberal think tanks (e.g. Brookings) ineffective and too removed from politics. They sought instead a think tank engaged with daily partisanship, grassroots mobilization, and electoral politics....

[T]he conservative will immediately recognize that the Kochs are proposing a “new model” think tank to replace the “old school” Cato. Of course, the conservative will not oppose all innovations though he will always insist on repair rather than reconstruction. But the conservative will ask, “What exactly needs repair here? What reasons counsel innovation at Cato?” Under Ed Crane, the Cato Institute has built a strong reputation for principled engagement in public policy....

[A] more partisan Cato wouldn’t necessarily further conservative ends of principled limits to government power. I am particularly concerned about an issue area I have worked in for over a decade: campaign finance regulation. It is true that the Republican party has supported the First Amendment by and large in these matters. However, partisanship sometimes requires divergence from principle. After all, the GOP is a party that seeks to win elections, a goal that might be served by restrictions on campaign finance. Indeed, the Republicans have supported a ban on political action committees and more recently, congressional Republicans tried to prohibit 527 committees when it served their electoral purposes....

The Koch brothers have done much to advance the cause of individual liberty and limited government. The “new model” they propose for Cato, however, is an innovation whose utility conservatives should doubt. The “old school” Cato has done much to raise doubt about Progressivism among Americans with an independent outlook. It has also contributed (and will contribute) to the valiant effort to preserve the core values of the American tradition. The conservative will wonder why such an institution should be cast aside in the pursuit of the latest political fad, an innovation fostered by none other than George Soros. On this matter at least, the conservative will judge the Kochs to be all too progressive.

I have myself commented on this issue several times, including here and here. I noted my various ties to the two sides in the dispute here.

In this recent Washington Post op ed on how the GOP can increase its appeal to Hispanic voters, former Florida Governor Jeb Bush says the following about immigration:

The American immigrant experience is the most aspirational story ever told. Immigrants left all that was familiar to them to come here and make a better life for their families. That they believe this is possible only in America is the best expression of American exceptionalism I know. And on this score, Republicans have a winning message and record as the party of the entrepreneur....

[W]e need to think of immigration reform as an economic issue, not just a border security issue.....

Republicans should reengage on this issue and reframe it. Start by recognizing that new Americans strengthen our economy. We need more people to come to this country, ready to work and to contribute their creativity to our economy. U.S. immigration policies should reflect that principle. Just as Republicans believe in free trade of goods, we should support the freer flow of human talent.

These points are not new. That immigration “strengthen[s] our economy” is the longstanding consensus view of most economists. Others have previously noted that there is a deep contradiction between anti-immigration conservatives’ support for free markets and their opposition to the free flow of labor across national borders. Ronald Reagan recognized this many years ago, and supported freer immigration throughout most of his political career, even touting an America whose “doors were open to anyone with the will and the heart to get here” in his 1989 farewell address to the nation. The importance of Bush’s op ed is not that it says anything new, but that the person saying it is a prominent Republican whom many conservatives see as a preferable alternative to the party’s current presidential candidates.

Unfortunately, Bush did not address what is perhaps the most important objection many conservatives have to increased immigration: the fear that it will lead to the growth of the welfare state. I covered that issue here. Contrary to conservative conventional wisdom, increased immigration not only does not lead to a bigger welfare state, but may well boost efforts to cut it back.

This year’s election was supposed to be something new and different. However, Rick Santorum, the big winner in this year’s Iowa GOP primary is remarkably similar to the big GOP Iowa winner of 2008: Mike Huckabee. Like Huckabee, Santorum is a hard-core social conservative whose big government proclivities extend far beyond social issues. I covered Huckabee’s record in this December 2007 post. Santorum is remarkably similar, perhaps even worse. For the details on Santorum, see this post by David Boaz [HT: co-blogger David Bernstein], and Jonathan Rauch’s thorough review of Santorum’s 2005 book laying out his political philosophy. As Rauch noted, Santorum rejects what he once dismissed as “this whole idea of personal autonomy,” not to mention “the idea that people should be left alone.” He doesn’t just think that freedom should be heavily regulated; he’s against “the whole idea” on principle.

Santorum does have chutzpah. Despite his record, he just gave a victory speech where he emphasized that the main issue in this campaign is “freedom.” If that’s really what it’s about, Santorum’s campaign will end up the same way as Huckabee’s did. I’m no great fan of any of the other remaining GOP candidates. But none of them is as much a big government conservative as Santorum is.

UPDATE: There is one important difference between Huckabee’s success in 2008 and Santorum’s today. In 2008, Huckabee’s win seriously hurt Mitt Romney by preventing him from emerging as the main “conservative” alternative to John McCain until it was too late to stop McCain from winning the nomination. This year, Santorum’s success actually helps Romney by ensuring that his most prominent rival in the next few states will be a candidate who many Republicans see as unserious and unelectable against Obama.

UPDATE #2: Michael Tanner has more on Santorum’s big government version of conservatism here.

This Wednesday, I will be giving a talk at NYU Law School on the Tea Party Movement and Popular Constitutionalism. The talk will be at 11 AM in Vanderbilt Hall, Room 202. NYU Professor Roderick Hills will comment on my presentation, and there will also be questions from the audience until around 12:30 or so.

I previously wrote about the Tea Party as a popular constitutionalist movement in this article. In my talk, I will explain why the Tea Party qualifies a popular constitutionalist movement despite the fact that that concept has previously been used mostly to describe movements on the political left and assess its main strengths and weaknesses. Like previous popular constitutionalist movements, the Tea Party has not avoided such problems as the impact of widespread political ignorance.

I will also suggest why its impact is likely to be a net positive on balance – including from the standpoint of the mostly left of center advocates of popular constitutionalism, a point I first developed in the article linked above. Given that it was inevitable that the combination of Obama’s policies and a deep recession would produce a right-wing populist reaction, it is far better that it has produced a movement primarily focused on limiting federal power and spending than one focused on racial resentment or xenophobia, as was often the case in previous American history and in many European countries today. In addition, the movement’s emphasis on limiting federal power could potentially increase democratic accountability in government – a central objective of many advocates of popular constitutionalism.

UPDATE: In this 2010 post, I discussed claims that the Tea Party’s real agenda is racism.

This interesting Slate article on Match.com notes that Match’s statistical data base finds that conservatives are more willing to date liberals on the site than vice versa:

Indeed, says [Match.com's Amarnath] Thombre, “the politics one is quite interesting. Conservatives are far more open to reaching out to someone with a different point of view than a liberal is.” That is, when it comes to looking for love, conservatives are more open-minded than liberals.

I don’t rule out the possibility that conservatives are genuinely more ideologically tolerant in their dating lives than liberals. But it’s also possible that the conservatives on Match are unrepresentative. Some of the most hard-core social conservatives might either reject online dating on principle or utilize sites like E-Harmony, which are geared to their specific needs.

Back in 2007, I wrote a post arguing that people tend to overestimate the dangers of cross-ideological dating. And in my single days, I practiced what I preached. About a year after I wrote that post, however, I met my future wife, who is not only a fellow libertarian, but is libertarian to almost the exact same degree as I am. We have nearly identical scores on Bryan Caplan’s Libertarian Purity Test. Regardless, I think what I wrote back in 2007 is still valid. Single people who take a rigid stance against cross-ideological dating are probably doing themselves a disservice.

In a recent interview, Paul Krugman argued that liberals generally understand conservative arguments better than vice versa:

A liberal can talk coherently about what the conservative view is because people like me actually do listen. We don’t think it’s right, but we pay enough attention to see what the other person is trying to get at. The reverse is not true. You try to get someone who is fiercely anti-Keynesian to even explain what a Keynesian economic argument is, they can’t do it. They can’t get it remotely right. Or if you ask a conservative, “What do liberals want?” You get this bizarre stuff – for example, that liberals want everybody to ride trains, because it makes people more susceptible to collectivism. You just have to look at the realities of the way each side talks and what they know. One side of the picture is open-minded and sceptical. We have views that are different, but they’re arrived at through paying attention. The other side has dogmatic views.

Bryan Caplan responds:

In a Turing Test, a computer tries to pass for human....

According to Krugman, liberals have the ability to simulate conservatives, but conservatives lack the ability to simulate liberals....

It’s not a perfect criterion, of course, especially for highly idiosyncratic views. But the ability to pass ideological Turing tests – to state opposing views as clearly and persuasively as their proponents – is a genuine symptom of objectivity and wisdom....

There are important caveats..... we should compare liberal intellectuals to non-liberal intellectuals, and liberal entertainers to non-liberal entertainers, not say Krugman to Beck....

If we limit our sample to Ph.D.s from top-10 social science programs, I don’t see how Krugman could be right. You can’t get a Ph.D. from Princeton econ without acquiring basic familiarity with market failure arguments and Keynesian macro. At least you couldn’t when I was a student there in the 90s. In contrast, it’s easy to get a Ph.D. from Princeton econ without even learning the key differences between conservatism and libertarianism, much less their main arguments... And frankly, it shows....

Indeed, I’ll happily bet that any libertarian with a Ph.D. from a top-10 social science program can fool more voters than Krugman. We learn his worldview as part of the curriculum. He learns ours in his spare time – if he chooses to spare it.

I tend to agree with Bryan. On average, non-liberal scholars and intellectuals know more about liberalism than their liberal counterparts know about libertarianism and conservatism. That’s because the non-liberals are usually surrounded by people with liberal views, and those views are extensively covered in the curriculum of nearly all top colleges and graduate schools. By contrast, it’s easier for liberal intellectuals to ignore non-liberal arguments or at least devote little time and effort to understanding them.

Outside the intellectual world, both liberals and non-liberals often have little knowledge of their opponents’ arguments. But that’s just part of the more general problem of widespread political ignorance. Indeed, a close-minded attitude to opposing views is a general facet of the way most people approach politics. It’s not a problem unique to either liberals or their adversaries.

But, as Bryan says, the proof is in the pudding. In my next post, I will take the ideological Turing test myself, and readers can judge how I do.

My article, “The Tea Party Movement and Popular Constitutionalism,” is now available on SSRN. It is part of a recent Northwestern University Law Review Colloquy symposium on the Constitutional Politics of the Tea Party Movement. Here is the abstract:

The rise of the Tea Party movement follows a period during which many scholars have focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation. Most of the previous scholarship on popular constitutionalism analyzed movements identified with the political left. Although the Tea Party movement is primarily composed of conservatives and libertarians, it has much in common with previous popular constitutional movements.

Part I of this Essay describes some of these similarities, focusing on the ways in which popular constitutional movements have arisen in response to social or economic crises, or major policy initiatives instituted by their opponents. Part II explains how the Tea Party movement shares key strengths and weaknesses of other popular movements. Public opinion on constitutional and policy issues is often influenced by widespread political ignorance and irrationality. The Tea Party is no exception to these trends. The evidence suggests, however, that Tea Party supporters are no more likely to be ignorant than public opinion generally, or their opponents on the political left.

Part III explains two possible advantages of one unusual feature of the Tea Party: the fact that it is the first popular constitutionalist movement in many years whose main focus is the need to limit federal power. The enormous size and scope of modern government undercuts meaningful democratic control over government policy because “rationally ignorant” voters cannot keep track of more than a small fraction of government activity. Strengthening democratic accountability is one of the main objectives of advocates of popular constitutionalism. The imposition of stricter limits on government power might make that goal easier to achieve. The Tea Party’s focus on limiting government also makes it less likely that we will see the emergence of a right-wing populist movement that is primarily focused on intolerance and xenophobia, of the kind that often arose during previous economic downturns.

A British panel composed of leading members of Parliament and former public officials has concluded that the War on Drugs is a failure and should be abandoned. The panel includes former heads of MI5 (the British domestic intelligence agency) and the Crown Prosecution Service, as well as leading Conservatives, including prominent former members of Margaret Thatcher’s government. Here’s a report by the conservative-leaning Daily Telegraph:

The “war on drugs” has failed and should be abandoned in favour of evidence-based policies that treat addiction as a health problem, according to prominent public figures including former heads of MI5 and the Crown Prosecution Service.

Leading peers – including prominent Tories – say that despite governments worldwide drawing up tough laws against dealers and users over the past 50 years, illegal drugs have become more accessible.

Vast amounts of money have been wasted on unsuccessful crackdowns, while criminals have made fortunes importing drugs into this country.

The increasing use of the most harmful drugs such as heroin has also led to “enormous health problems”, according to the group....

It could lead to calls for the British government to decriminalise drugs, or at least for the police and Crown Prosecution Service not to jail people for possession of small amounts of banned substances.

Their intervention could receive a sympathetic audience in Whitehall, where ministers and civil servants are trying to cut the numbers and cost of the prison population....

The chairman of the new group, Baroness Meacher.... told The Daily Telegraph: “Criminalising drug users has been an expensive catastrophe for individuals and communities....”

Lord Lawson, who was Chancellor of the Exchequer between 1983 and 1989 [under Margaret Thatcher], said: “I have no doubt that the present policy is a disaster....”

In the United States, the opposition of political conservatives is still perhaps the most important obstacle to efforts to cut back on the War on Drugs. Hopefully, this reconsideration by some of their British counterparts will lead more American conservatives follow the example of William F. Buckley and Pat Robertson, both of whom gradually came to realize that the War on Drugs causes enormous harm, and is bad for family values.

Following up my post on what might happen if liberals and libertarians agreed on empirical issues, this post addresses the question of what might happen if libertarians came to agree on empirical issues with conservatives.

Unfortunately, answering this question is a lot tougher than the previous one about liberals. Libertarianism and liberalism are fairly coherent ideological movements. By contrast, “conservatism” is a hodgepodge of different ideologies united mainly by their opposition to the political left. George Will, Pat Buchanan, Bill Kristol, and Mike Huckabee are all considered conservatives. But they differ greatly from each other on both empirical issues and values. So too with neoconservatives, religious right social conservatives, and Burkean conservatives. Moreover, some conservatives are quite close to libertarians on most issues because they have a assimilated a great many libertarian ideas.

To make the question more tractable, I’m going to focus primarily on social conservatives who generally support free market policies on “economic” issues, while also supporting a high degree of “social” regulation. I recognize that this is far from the only type of conservatism out there. But it’s probably the most common one in the United States, especially among conservative intellectuals.

As with some libertarians and liberals, some social conservatives are purely utilitarian in their values. They support conservative policies because they think that will maximize human happiness. If a utilitarian libertarian and a utilitarian conservative could agree on empirical issues, their policy differences would disappear. They would then agree on both values and the best way to implement them. But pure utilitarianism is even less common among conservatives than among liberals and libertarians, possibly because many social conservatives are strongly religious and the major religions all incorporate many non-utilitarian values. Here are some issues where non-utilitarian conservatives will continue to disagree with libertarians even if the two groups could come to a consensus on empirics:

I. Nationalism.

Many, though not all, conservatives are nationalistic. By contrast, most libertarians are hostile to nationalism, usually for the kinds of reasons I outlined here. Some of these differences are traceable to disagreements over the empirical effects of nationalism. But not all of them. At the level of fundamental values, many nationalistic conservatives are willing to impose severe costs on foreigners for the purpose of securing significantly smaller benefits for members of their own polity.

This has important implications for issues like trade and immigration. Let’s assume that greatly expanded immigration creates huge net benefits for immigrants, but inflicts much smaller net costs on native-born Americans. Most libertarians would accept that tradeoff. After all, the freedom and utility of immigrants is, in their view, no less valuable than that of natives. And the majority of libertarians see immigration restrictions as infringements on liberty, not just utilitarian harms.

Not so with nationalistic conservatives. For example, conservative Harvard economist George Borjas wants to greatly reduce immigration in order to prevent what he estimates to be fairly modest wage reductions for low-skilled Americans, even though he realizes the enormous harm that would inflict on potential migrants. In a recent book, conservative scholar Edgar Browning explicitly states that immigration policy should be determined entirely without reference to the welfare of the immigrants themselves (which he views as an uncontroversial premise). Views like Borjas’ and Browning’s are quite common among nationalistic conservatives, though admittedly not universal.

What is true for immigration also holds for trade. The only difference is that fewer conservatives believe that free trade inflicts net harms on Americans than believe the same of immigration. Those who do believe that trade inflicts net harm on Americans tend to support protectionism entirely without reference to the impact on foreigners (Pat Buchanan is a good example).

Agreement on empirical issues surrounding immigration, trade and other such issues would eliminate libertarian-conservative differences only if conservatives came to believe that fully laissez-faire policies in these fields create net benefits for current American citizens.

II. Social Regulation.

Much of the libertarian-conservative disagreement over social and “morals” regulation comes down to disagreement over the empirical effects of such regulations. Elsewhere, I have criticized conservatives such as Robert Bork for ignoring the ways in which their empirical critiques of economic regulation apply to social regulation as well.

But empirical disagreements are not the only source of the conflict. Many conservatives believe that some forms of “immoral” behavior are intrinsically wrong even if legalizing them would increase happiness on net. For example, some argue that it is intrinsically wrong to gamble, take mind-altering drugs, engage in “unnatural” sex, or consume pornography. Conservatives who believe this might still be willing to support legalization if the harms of prohibition are great enough. That accounts for William F. Buckley’s and now Pat Robertson’s opposition to the War on Drugs. But the threshold level of harm needed to persuade social conservatives to support legalization is a lot higher than for libertarians.

The flip side is that many libertarians might still oppose social regulation even in cases where they agree that it creates net utilitarian benefits. They, after all, value social freedom for its own sake, not just because they think it increases happiness. Most libertarians might be willing to support regulation if they thought the utilitarian benefits were extremely large. If banning pornography were the only way to prevent a massive epidemic of rape, I would be in favor of it. But the threshold level of benefit would, for most libertarians, have to be pretty high. Certainly much higher than for most social conservatives.

III. Retribution.

Conservatives generally favor harsher punishments for criminals than libertarians do. This difference reflects various empirical disagreements between the two groups. But there’s also a difference in values. Conservatives are, on average, much more committed to the value of retribution than libertarians are. That’s a key reason why many libertarians, but almost no conservatives, favor moving the criminal justice system towards a model based on restitution rather than punishment (see this article by co-blogger Randy Barnett). Personally, I’m much more of a retributivist than most of my fellow libertarians. But my view is definitely in the minority among libertarian intellectuals.

I have not mentioned war and foreign policy in this post, largely because the issue deeply divides libertarians among themselves. I think that the internal division among libertarians (people who mostly share the same values) suggests that the divide between dovish libertarians and hawkish conservatives on these issues is also largely about empirics rather than values. However, it’s possible that the conservative commitment to nationalism also plays a role here.

Overall, a social conservative who came to agree with libertarians on empirical issues but not values would be more supportive of free trade and immigration and more skeptical of social regulation. But she might still differ with libertarians on these issues because of the conservative commitment to nationalism and nonutilitarian justifications for social regulation. Full convergence with libertarian policy positions would only occur if the conservative came to believe that social regulation inflicts very great harm and that free migration is a net benefit to Americans. Even then, we would still have the disagreement over retribution.

A libertarian who came to agree with social conservatives on empirical issues would endorse higher levels of social regulation and lower levels of immigration. But we would only see full convergence if the libertarian came to believe that the harm caused by laissez-faire was great enough to outweigh the nonutilitarian value he assigns to freedom.

UPDATE: For readers who may be interested, here’s a post I wrote about F.A. Hayek’s classic libertarian critique of conservatism that focuses on some of the same issues as this one, though it does not try to distinguish empirical issues from differences in values.

The New York Times recently ran an interesting article on the Secular Right blog, which I commented on here back when it was first established:

As a child, Razib Khan spent several weeks studying in a Bangladeshi madrasa. Heather Mac Donald once studied literary deconstructionism and clerked for a left-wing judge. In neither case did the education take. They are atheist conservatives — Mr. Khan an apostate to his family’s Islamic faith, Ms. Mac Donald to her left-wing education.

They are part of a small faction on the right: conservatives with no use for religion. Since 2008, they have been contributors to the blog Secular Right, where they argue that conservative values like small government, self-reliance and liberty can be defended without recourse to invisible deities or the religions that exalt them....

Ramesh Ponnuru, a senior editor at National Review, noted that conservatives throughout history have esteemed “mediating institutions” like schools and churches, sources of authority other than the state. “If that’s the way you’re thinking, concern for the strength of organized religion follows pretty naturally,” Mr. Ponnuru said.

I do have a small bone to pick with the article and possibly with Ramesh Ponnuru. There is a difference between being an atheist and having “no use for religion.” One can deny the existence of God, while simultaneously recognizing that religious institutions sometimes serve useful purposes. Being an atheist doesn’t prevent me from seeing that the Catholic Church runs an excellent system of private schools, for example. It also doesn’t prevent anyone from recognizing the value of “mediating institutions,” including religious ones.

At the same time, it is also the case that organized religion has often contributed to grave injustices, providing support for slavery, gender inequality, and occasionally (in the case of “Liberation Theology”) even communism. Whether a mostly secular society will be better off than a mostly religious one depends on the values advocated by the religious and secular ideologies in question. Atheism doesn’t require anyone to believe that every conceivable secular belief system has better social consequences than every conceivable religious one. One can be an atheist while still believing that Catholicism, Judaism, or Mormonism is less harmful than Marxism, for example.

In a comment on my last post on Russian Jewish immigration, University of North Carolina law professor and blogger Eric Muller writes:

Again and again I find myself wondering to what extent it’s true that Jewish refugees/emigres from Soviet totalitarianism (and their offspring) tend to have a libertarian and/or conservative political orientation. Does anyone know whether this has been studied? Are Eugene, Sasha, and Ilya typical in this regard, or atypical?

There is actually survey data on this, which reveals that some 75% of Russian Jewish immigrants vote Republican, as compared to only about 20% of native-born American Jews. The same pattern is evident among other refugees from communism, such as Cubans and Vietnamese. The reasons are not hard to figure out. The experience of living under communism makes these refugee groups hostile to anything that smacks of socialism and also to those political parties and ideologies that they perceive (with some justice) as having been soft on communism during the latter part of the Cold War. This in turn leads them to be more “right-wing” than they might have been otherwise. As I discuss in my immigration memoir, I probably would have become a liberal or leftist had I been born in the US and had the same interests and personality.

The overwhelming majority of Russian Jews in legal and social science academia tend to be conservative or libertarian (more often the latter), which is in sharp contrast to the generally left-wing orientation of the vast majority of other US academics. My impression is that rank and file Russian Jewish immigrants also tend to be on the right, more libertarian-leaning than conservative (e.g. – most are pro-choice and favor fairly strong separation of church and state). Obviously, most are not nearly as self-conscious or consistent in their libertarian leanings as academics such as Sasha and myself. And the term “libertarian” is probably not familiar to most of them, just as it isn’t to the majority of the 10-15% of other Americans who hold generally libertarian views.

In yesterday’s Washington Post, Bracken Hendricks of the Center for American Progress laments widespread conservative opposition to “government action on climate change.”  Responding to the threat posed by global warming should be a conservative cause, Hendricks argues, because a warmer world will breed bigger government.

Many conservatives say they oppose clean-energy policies because they want to keep government off our backs. But they have it exactly backward. Doing nothing will set our country on a course toward narrower choices for businesses and individuals, along with an expanded role for government. When catastrophe strikes – and yes, the science is quite solid that it will – it will be the feds who are left conducting triage.

My economic views are progressive, and I think government has an important role in tackling big problems. But I admire many cherished conservative values, from personal responsibility to thrift to accountability, and I worry that conservatives’ lock-step posture on climate change is seriously out of step with their professed priorities. A strong defense of our national interests, rigorous cost-benefit analysis, fiscal discipline and the ability to avoid unnecessary intrusions into personal liberty will all be seriously compromised in a world marked by climate change.

Failure to take decisive action against climate change is unconservative, Hendricks argues, because global warming presents such grave risks.

far from being conservative, the Republican stance on global warming shows a stunning appetite for risk. When faced with uncertainty and the possibility of costly outcomes, smart businessmen buy insurance, reduce their downside exposure and protect their assets.

Dan Farber finds the op-ed compelling.  I do not.   Unlike some conservatives, I believe global warming is a serious problem that merits a serious policy response (as I’ve blogged about at length), but I don’t find Hendricks’ arguments particularly persuasive.

Conservative action to proposed climate policies is driven by opposition to extensive government interference in the economy.  Cap and trade is a conservative bogeyman because it requires far-reaching regulatory authority over private economic activity and the imposition of a de facto tax on energy use.  Opposition to cap-and-trade is not the same as opposition to all climate measures.  As Senator Mitch McConnell noted in a recent interview, “nobody thinks it’s a bad idea to reduce carbon emissions.” But many do think it is a bad idea to allow EPA to regulate over one million sources of carbon emissions or adopt an expansive “cap-and-tax” scheme that will places tens of millions more taxpayer dollars under government control.

Furthermore, while “smart businessmen buy insurance,” they also pay attention to the relationship between their premiums and the expected value of their coverage.  Even when faced with potentially catastrophic risks, not all insurance policies are a good deal.  If a minimal risk reduction is tremendously expensive, the “smart businessman” will find another way to manage the risk, “reduce their downside exposure and protect their assets.”  Sometimes this means investing in prevention or purchasing insurance.  In other cases it means protecting assets by making them more resilient against potential threats or investing in contingencies.  That mandating dramatic near-term emission reductions is a more sensible or “conservative” risk management strategy than investing in technological innovation, exploring geoengineering, or preparing for adaptation is something to be shown, not blithely asserted.

Hendricks’ effort to scare conservatives into supporting big government now to avoid bigger government later rings particularly hollow.  Why is it that everything requires bigger government?  Climate change is a threat?  Extend government tentacles throughout the economy.  Climate change is already happening?  Ditto.  Adaptation is necessary?  More of the same.  Were climate change not happening at all, I suspect Hendricks would still endorse a substantial expansion in government power.

Admittedly some on the right are equally reflexive, assert government is never the answer, and go to lengths to deny climate change poses any threat whatsoever.  Yet there are also plenty of conservatives and libertarians who are deeply skeptical of government intervention, but are nonetheless  willing to believe global warming might be a problem.  It’s perfectly reasonable to believe that reducing greenhouse gas emissions does not require the enactment of monstrous, pork-laden, regulatory statutes like Waxman-Markey.  And it’s not at all clear that climate adaptation necessitates a massive expansion of government power.  In many areas, such as water, climate adaptation requires more reliance on markets, not less.  Climatopolis author Matthew Kahn also blogged here about how successful climate adaptation will be driven by market forces, not government planners.

I share Hendricks’ and Farber’s frustration that more conservatives don’t take climate change or other environmental concerns seriously.  But I also believe some of this is the environmentalist movement’s own doing.  If everything calls for the same big government solution, why does it matter what the problem is?  If progressives really believe climate change is an impending catastrophe — not just a problem worth addressing but a potential apocalypse — and seek to enlist conservatives to their cause, they should pursue consensus efforts to reduce greenhouse gas emissions, including efforts to stimulate technological innovation or proposals for revenue-neutral carbon taxes (see, e.g., here, here and here).  Yet Hendricks’ colleagues at CAP excoriate any and all who deviate from the progressive climate orthodoxy or espouse anything short of dramatic government intervention throughout the economy.  Environmentalists will be more successful enlisting conservatives (and many moderates) to their cause once they become more focused on solutions, and less insistent on government control.

To me, the most disappointing of the many electoral results this Tuesday was the relatively narrow (54-46) defeat of California Proposition 19, the marijuana legalization initiative that I and and many other VCers endorsed. I’m not disappointed because this proves that law professors have little electoral clout. We knew that already. Rather, the disappointment is because Prop 19 was the best opportunity in many years to deal a serious blow to the War on Drugs. Early polls showed that it had a decent chance to win.

At the same time, it is notable that such a broad legalization measure could get 46% of the vote in the nation’s largest state despite the near-uniform opposition of the political establishment in both parties, ranging from President Obama to Governor Schwarzenegger and many others. Such a result would have been almost unthinkable a decade ago.

The CNN exit polls on Proposition 19 contain lots of interesting data. They reveal that the initiative lost in large part because of its weakness among two groups: the elderly and self-identified “conservatives.”

I. The Age Gap.

People over the age of 65 voted against Prop 19 by a 68-32 margin. Had the electorate been limited to people under the age of 50, Proposition 19 would probably have won, albeit narrowly (by about 51-49). But people over the age of 50 formed a whopping 54% of the California electorate, which reflects the much greater of propensity of the elderly to vote and participate in politics. Using the data collected here, I calculated that people age 50 and above are actually only about 37.5% of the voting-age population in the state.

The interesting question about the age gap on this issue is whether it is a cohort effect or a generational effect. In other words, do people start out favoring legalization in their twenties, but turn against it as they age (a cohort effect)? Or are more recent generations generally more favorable to drug legalization, a difference that persists as they age (a generational effect)? My tentative conclusion is that its probably more of a generational effect. This is not just a difference between the very young and the rest. Rather, each successive age group is much more pro-legalization than those older than them. Even 50-64 year olds were 12 points more favorable to Prop 19 than the over-65s. Moreover, much social science data suggests that political attitudes tend to be fairly consistent with age, solidifying for most people when they are in their twenties. Winston Churchill notwithstanding, if you were a socialist at twenty, that implies a high probability you will still be one at forty. In addition, an important recent study suggests that the elderly actually become more socially liberal as they age, not less so.

II. The War on Drugs and Conservatism.

Self-identified conservatives were even more opposed to Prop 19 than the elderly, with 73% voting against. Unlike the generation gap, legalization advocates cannot expect this problem to get better on its own. I don’t expect conservatives to quickly change their views on this issue. Adherents all political ideologies are slow to change longstanding beliefs, and tend to dismiss opposing evidence out of hand, while overvaluing any evidence that supports their preexisting views.

But I hope conservatives will at least consider the following points. First, the case against the War on Drugs and other “morals” regulations is very similar to the standard conservative critique of economic regulation, a point I made in greater detail in this article and here. Indeed, the War on Drugs is one of our biggest examples of economic regulation, since it bans the sale of a product and creates a vast illegal market that stimulates violence and organized crime. It is in fact quite similar to left-wing proposals to ban products such as cigarettes or fatty foods, both of which pose greater health risks than many currently illegal drugs do. Ironically, Proposition 19 was opposed by 67% of those voters who said in the same survey that government is currently doing “too much,” probably because of the large overlap between this group and ideological conservatives.

Second, the War on Drugs severely hampers two cherished conservative goals: winning the War on Terror and promoting family values. Even if you think that drug prohibition is on balance a worthy objective, is it really worth the price of greatly exacerbating the terrorist threat and undercutting the ability of poor African-Americans to form intact families? Few can do so so long as a very high percentage of poor black males are either in prison or cycling in and out of custody, in large part as a result of the War on Drugs.

Every ideology sometimes faces difficult tradeoffs. The War on Drugs poses several particularly important ones for conservatives. Over time, I hope that more conservatives will come to agree with William F. Buckley’s conclusion that “it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana.”

Forbes has “fact-checked” its infamous and inflammatory cover story by Dinesh D’Souza, “How Obama Thinks.”  Heather MacDonald is not impressed.

Such a “fact-checking” feint is irrelevant to this travesty of an article; you can’t “fact-check” a fever dream of paranoia and irrationality.  Sickeningly, while “How Obama Thinks” is useless as a guide to the Obama presidency, it is all too representative of the hysteria that now runs through a significant portion of the right-wing media establishment.   The article is worth analyzing at some length as an example of the lunacy that is poisoning much conservative discourse.

D’Souza argues that Obama’s policies are motivated by a hatred towards American power absorbed from his Kenyan father.  He offers exactly zero evidence for his hackneyed psychological theory.  But the most laughable weakness in D’Souza’s thesis is the fact that the policies which D’Souza presents as the “dreams of a Luo tribesman” have a decades-long American pedigree and are embraced by wide swathes of the American electorate and political class.  If support for progressive taxation, greater government regulation of health care, stimulus spending, and conservation make one the tool of the African anticolonial movement, then Paul Krugman, Robert Reich, Al Gore, Nancy Pelosi, John Kenneth Galbraith, FDR, and the Sierra Club are all Third World agents provocateurs. . . .

Even if it were the case that Obama embraces the standard liberal playbook for reasons of personal history—a position for which D’Souza has provided no evidence—so what?  If Obama were not president, millions of people would still support the policies of his presidency under a different Democratic leader, as they have been doing for decades. . . .

D’Souza’s screed is just the latest manifestation of the rebirth of the conservative hysteria that marked the Clinton era.  The fact that both Clinton and Obama’s critics became obsessed with the person rather than his policies suggests that those critics have no faith in the public’s ability to grapple with abstract issues, rather than alleged personal failings. . . .

Political hatred and fear should be summoned forth only under the most exigent of circumstances.  D’Souza has failed completely to make the case for unleashing his incendiary brand of irrationality.

NOTE: I have not opened comments on this post.  If you wish to comment on MacDonald’s post, please do so at Secular Right.