The Volokh Conspiracy

For over the two years, the very intelligent and clever professors at Balkinization have been doing a great job up trying to come up with legal arguments in support of the health control law. Even people who were not persuaded by the arguments can see how they have contributed to the debate. The first item I wrote on the health control law was back on March 22, 2010, responding to an article by Jack Balkin in the New England Journal of Medicine regarding the tax power. (Incidentally, this may make me the second VC writer–very distantly second after Randy himself–to state in writing that the health control law is unconstitutional under modern law, not just under original meaning. )

My Independence Institute colleague Rob Natelson (U. Montana law school) first wrote on the constitutionality of the health control law on Jan. 23, 2010, responding to a Los Angeles Times essay by Akhil Amar, who also writes for Balkinization. (Making Natelson the 1st full-time law professor to write something on Barnett’s side of the issue.)

I think that the VC and Balkinization have jointly helped to elevate the constitutional analysis by the courts and by the public, especially when VC and Bk have engaged and addressed each other’s arguments. Both VC and Bk kept right on going last week, with plenty of arguments for the Court made during the period between the end of oral argument on Wednesday and the Court’s conference on Friday.

In the health control law debate, VC and Balkinization have each had one outlier. At VC, our outlier was Orin Kerr, who remains unconvinced by the arguments developed by Randy et al. Orin’s public questions and challenges have helped spur the health control skeptics to refine their arguments, and to state them more precisely and clearly.

Balkinization has a different kind of outlier. Andy Koppelman has spent two years penning variations of his thesis: “Everyone who doesn’t agree with me is stupid.”

As noted below by Randy, Koppleman’s latest essay explores the implications of his certitude that “the silliness of the constitutional arguments against the mandate is apparent to any competent lawyer who assesses them in good faith.” Because every competent lawyer knows that Koppelman is right, how could anyone, including Supreme Court Justices, purport to disagree?

There could be only two possible explanations for such a frivolous opinion: (1) a naked assertion of raw power by politicized right-wing justices contemptuous of democratic processes, or (2) a sort of mass hallucination induced by the inane rantings produced by the echo chamber of the right-wing blogosphere.

Thus, says Koppelman, everyone, including lower federal courts, should “nullify” a Supreme Court decision holding the health control law unconstitutional.

I’ll leave it up to the readers to decide whether the Supreme Court saying that Congress can’t force people to buy overpriced products from the Big Insurance oligopoly merits the same sort of response that Kentucky offered to a congressional statute which (as actually enforced) outlawed criticism of the President, or which Wisconsin offered to a federal statute purporting to conscript Wisconsin citizens into enforcement of the federal Fugitive Slave Act of 1850.

But I will say this, from an organizational behavior perspective. An organization whose task involves persuasive communications can sometimes be strengthened if there is one person in the organization who can thoughtfully say “Here’s why I think the rest of you may be wrong, and here are what I see to be the weaknesses in your argument.” In contrast, an organization will not improve its persuasive effectiveness if the organization pays any attention to a fanatical member who insists, “No, the people on the other side aren’t just wrong. They MAD I tell you! MAD! They live in an echo chamber, and can’t even consider contrary ideas. Isn’t that obviously CRAZY!!?”

For my own exchanges with Professor Koppelman, see Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011), and Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), both of which were co-authored BU’s Gary Lawson. A shorter version of the Lawson/Kopel thesis on the Necessary and Proper clause is available at The Incidental Unconstitutionality of the Individual Mandate, Legal Workshop. Feb. 6, 2012.

[Epilogue: April Fool's. On me. Larry Solum of Legal Theory occasionally posts abstracts of "articles" by famous professors which  are actually Solum-written parodies that take the professor's approach and push it just one more, somewhat plausible, step into absurdity. In real life, Koppelman does accuse critics of the health control law of acting "in the spirit of a saboteur in wartime,” and he did characterize the Lawson/Kopel argument for obeying the original meaning of the Necessary and Proper clause, as expounded in McCulloch, as "insane." But he never called for nullifying a Supreme Court decision; and while he has always said that there are no non-"silly" arguments against the health control law, he has never posited mass insanity as an alternative explanation to his theory that the only way for the health control law to be ruled unconstitutional would be political bias by the judges. And congratulations to Larry Solum, who is never insane, always brilliant, and sometimes silly.]

At the Bleeding Heart Libertarians blog, libertarian lawprof Fernando Teson writes that “The remarkable truth of this conversation between bleeding heart libertarians and progressives is that our disagreement is exclusively empirical. If we all agree that political institutions should be arranged to alleviate poverty, then the only remaining question is which policies actually do this. Why is it then that we cannot agree, or at least converge, by just looking at reliable data, studies, and empirical theories?”

Fernando suggests that disagreement between liberals and libertarians would largely disappear if the two sides could agree on empirical facts. I think there is a lot of truth to this, but it’s not the whole truth. Agreement on empirics would greatly narrow the range of disagreement between libertarians and liberals, but some important differences would remain.

As I explained in this post, some libertarians are actually utilitarians: they support libertarianism purely because they believe that libertarian policies maximize happiness. Some liberals are utilitarians as well. If a utilitarian liberal and a utilitarian libertarian came to a consensus on empirical issues, they could also come to agreement on policy as well. The only thing that separates them is a disagreement over how best to achieve a common goal: maximizing happiness (I set aside, for the moment, the fact that there are different schools of utilitarianism that disagree over the definition of happiness).

Most libertarians and most liberals are not pure utilitarians. Similarly, few if any care only about alleviating poverty, the issue Fernando focuses on in his post. Here are some issues that would continue to divide libertarians and liberals who aren’t pure utilitarians even if they overcame their empirical disagreements:

I. Economic Liberties.

Most libertarians assign at least some intrinsic value to economic freedom over and above its instrumental benefits. Thus, they would be willing to sacrifice at least some utilitarian gains in order to preserve it. For example, I would oppose mandatory national service even if I were convinced that it would create substantial utilitarian benefits. Economic freedom is valuable enough to sacrifice some happiness for. Obviously, there are limits to the tradeoffs I and most other libertarians would accept in this regard. If a draft were the only way to prevent the conquest of the United States by a totalitarian dictatorship, I would (reluctantly) support it. However, most liberals assign little or no intrinsic value to economic liberty, and therefore would be reluctant to sacrifice even small utilitarian benefits to preserve it.

II. Income Inequality.

Just as most libertarians assign intrinsic value to economic liberty, many liberals assign intrinsic value to restrictions on income inequality. And they are willing to sacrifice at least some utilitarian benefits to achieve it. If, for example, we could greatly reduce income inequality at the price of a 1% reduction in average income for the middle class, many liberals would take the deal. Virtually no libertarians would, since they assign no intrinsic value to income equality at all.

III. Dignitary Wrongs.

Much liberal opposition to libertarian ideas such as organ markets and abolition of the minimum wage and minimum housing standards is due to disagreement over empirics. But not all of it. In discussing such issues with liberals, I often hear arguments such as the following: “Even if organ markets would make the poor better off, I still oppose them because it’s morally wrong for anyone to have to sell parts of their body in order to avoid poverty. It’s wrong to exploit the poor in that way.” Or this: “Even if abolishing minimum housing standards would improve the situation of poor tenants by enabling them to rent cheaper apartments, we as a society shouldn’t do it because such inadequate housing is morally unacceptable.” Liberals who reason in this way believe that some mutually beneficial economic exchanges should be forbidden because they create some sort of dignitary harm that outweighs their utilitarian benefits. Libertarians either discount such considerations entirely or at least believe they aren’t important enough to justify restricting individual freedom.

IV. Multiculturalism and Group Solidarity.

On average, both libertarians and liberals are much less nationalistic than conservatives. This is one of the points that unites the two groups. Nonetheless, many liberals do believe that membership in an ethnic or racial group can create some moral obligations, especially if that group has been the victim of oppression or discrimination. Liberal political philosophers such as Will Kymlicka argue that government should subsidize and otherwise promote minority cultures. Not all liberals assign intrinsic value to such group membership, but many do. To the extent that this is true, it’s a point of disagreement with libertarians that would persist even if the two groups agreed on empirics.

In sum, a liberal who came to agree with libertarians on empirical issues would favor a major reduction in the role of government in society. But he would still probably support more taxation and redistribution than libertarians do. He might also still favor banning some mutually beneficial economic transactions that create dignitary wrongs and support some government subsidization of minority cultures.

A libertarian who accepted the liberal view on empirical questions would come to endorse a lot more taxation and regulation. But he or she still would not support as much regulation as liberals do because of the countervailing intrinsic value of economic freedom. He also would still oppose government intervention in cases where the goal is purely to alleviate dignitary wrongs or subsidize some ethnic group’s culture for its own sake.

We could probably add a few other items to the above list. But I doubt that there would be many more that are of great importance. If so, this suggests that empirical disagreements are by far the most important points of dispute between liberals and libertarians, even if not the only ones. I would be thrilled to form a political coalition with the hypothetical liberal who retained his left-wing values but came to agree with libertarians on empirics. And I bet most liberals would be happy to ally with his libertarian analogue (the libertarian who adopts liberal positions on empirical questions while retaining his or her libertarian values). Empirical disputes, not values, are the main obstacle to a liberaltarianism.

That, however, does not mean that a liberaltarian alliance will be easy to forge. The empirical disagreements in question are extensive and deeply held. Moreover, most people don’t evaluate evidence on political issues with anything approaching unbiased objectivity. Worse, many have a tendency to believe that those who oppose them on empirical issues are actually motivated by abhorrent values or narrow self-interest. That makes agreement even more difficult to achieve than it would be otherwise.

UPDATE: Some of what I say about economic liberties in Point I above also applies to property rights. However, as I noted in this essay, many liberals do attach at least some intrinsic value to property rights, so the disagreement here is more focused on empirical questions than that over economic liberties. Liberals support more restrictions on property rights than libertarians do in large part because they disagree over the empirical effects of such restrictions.

I finally had a chance to read the Cato Unbound symposium that Todd Z mentioned below.  It’s well worth the read.

I should add to my earlier post on this that I am not, as it happens, hostile to the pursuit of behavioral economics; far from it.  But I do share some of the skepticism about how it goes about the intellectual enterprise – for example, the way in which concepts in moral psychology that I would regard as unavoidably “deep,” such as trust, get operationalized, in order to fit into a certain form of testable experimental design, into concepts that are much flatter and on the surface, such as “confidence,” to quote a recent conversation with a psychologist friend in the field.

Indeed, as I’ve occasionally observed here at VC, if rationalist economics and behavioral economics are in some sense at odds and competing, or at least complementary, in another sense, they are much more deeply linked.  They are linked in being “surface” theories of human nature.  Neither of them embraces a deep view of human psychology or human nature – they are each minimalist and reductive, each in its own way.

There are contrasting approaches in economics that do embrace deeper views of people, more precisely, more “committed” views of human psychology.  One category would be institutional economics insofar as it embraces one or another form of sociological theory of institutions.  A theory of institutions that matters to economics, however, in a social sense will almost always be one that concerns legitimacy.

The other category would be theories of value based around deep commitments about human nature – moral psychology – and the defining work would be the Theory of Moral Sentiments.  But all that stuff that Akerloff and Schiller and other people today want to say about animal sentiments, etc., is all essentially founded in what might as well be called the moral psychology school of economics – and yet does not want quite to speak its name.  It hides behind Keynes, in a peculiar feat of intellectual history, when really it is Smith, the moral psychologist.

It’s not to say that one or another is right or wrong.  They describe different kinds of things and are better seen as complementary.  Confidence, in the sense that some behavioralists assert it as a conceptual proxy for trust, isn’t quite that – it is a stronger concept that confidence as its operationalization, for example.  And legitimacy is far more than the artifact of an observed tendency of people to obey institutional precepts; even the term precepts is conceptually slightly different from commands or orders.

There are plenty of reasons why one would want to design experiments around minimal commitments; there are plenty of reasons why minimal commitments are not enough to explain things.  The problem with surface theories of human nature is that they describe the ‘man without qualities’.  The problem with deep theories of human nature is that they eventually wind up with Dr Freud or something equally non-falsifiable – the ‘man with too many qualities’.

That is at the level of intellectual inquiry.  But the Cato Unbound discussion – and the end of the Ferguson piece, as well as my comment on the move that a certain application of behavioral economics makes, parallel to a move concerning rationality and deliberative democracy – is about its political and moral application.  That’s a separate discussion from the intellectual qualities of behavioral economics.  However, I found myself interested by a side issue, which is the final thing I want to raise here.  It is that the Cato symposium regarded the moral and political issue as being one of paternalism – whether that is true or not, that was the framing moral question in the discussion.

I would have thought, however, that rather than “paternalistic” policy, the phenomenon that the Cato critics were raising was much more a question of “therapeutic” social policy.  There are reasons, of course, to be concerned about them both if one is a libertarian – and even if one is not, quite possibly.  But they are not precisely the same thing.  Paternalistic or therapeutic?  Culture of paternalism or culture of therapy?  Discuss.  (Update:  I woke up this morning thinking that maybe the Cato Unbound discussion really is about paternalism; I’m still interested in the distinction, though.  Also, responding to one of the comments, I don’t think that falsifiability or non-falsifiability is the only relevant criterion; falsifiability on examination turns out to be more complicated than usually expressed.)

Instead of a Stendhal post this week – I missed Saturday lost in the DC snow – and further to my Foundation post below, which has garnered some very interesting comments ... do we have any fans of James Blish’s Cities in Flight novels?

As an exercise in future history social theory, I actually think they are deeper than the Foundation novels; certainly I found the characters more psychologically interesting and in many respects, the interplay of society with ideas from science deeper, too.  I used to think – and say below – that they are emotionally rather bleak, pessimistic.  I think today I would say it is not so much pessimism as a very adult sensibility of mortality.  The original Foundation series is aimed at cleverness in holding out on the ending; Blish was a surprisingly psychological writer, particularly for that era in science fiction.

Here is what I wrote about the series on a family blog in 2005, reading them with my daughter: Continue reading ‘Cities in Flight’ »

Peggy Noonan notes in her weekend column that President Obama’s SOTU address worked in a name for the new program – in the tradition of the “New Deal” or Kennedy’s “New Frontier.  For the Obama administration, it is the New Foundation.  She is skeptical:

They’ve chosen a phrase for the president’s program. They call it the “New Foundation.” They sneaked it in rather tentatively, probably not sure it would take off. It won’t. Such labels work when they clearly capture something that is already clear. “The New Deal” captured FDR’s historic shift to an increased governmental presence in individual American lives. It was a new deal. “The New Frontier”—we are a young and vibrant nation still, and adventures await us in space and elsewhere. It was a mood, not a program, but a mood well captured.

“The New Foundation” is solid and workmanlike, but it attempts to put form and order to a governing philosophy that is still too herky-jerky to be summed up.

I am equally skeptical, but my interest here is a different one.  We here at Volokh Conspiracy tend to be well aware of the Foundation novels – only too aware, possibly.  But I recall reading here or somewhere that Paul Krugman and several other leading economic and legal academic-policymakers had come to their professions wanting to be ... Hari Seldon.  Deeply attracted to the idea of a mathematically-based psychohistory.  Certainly includes me.  I am the son of a physical scientist; I spent my early years playing with dangerous chemicals in my father’s lab.  But from the time I read the Foundation books, I was lost to physical sciences – I wanted the vision of a science of mass behavior.

This is not a liberal versus conservative thing although, it bears noting, nothing about Asimov’s Foundation vision suggested anything very liberal or libertarian.  It was all galactic social engineering.  At least so far as I could ever tell.  However, it does lead me to wonder whether any obscure, deeply buried, unconscious Jungian archtype of the Foundation entered somehow into this New Foundation framing.  This is an administration of academics, in love with design and social engineering, not so much the execution and carry-through part.  Yeah, yeah, the social engineering is supposed to be all nudgy and liberal paternalism, not coercive and bad.  It’s an administration of New Class elites especially in love with its peculiar combination of disinterested technocracy married to the most aggressive ideological remake of, well, the foundations of American society in a long time, and almost entirely from the top down.  But in that case, who is the Hari Seldon of this New Foundation?  (Alert commenter says, more important ... “Who is the Mule?”)

Well, at least the SOTU catchphrase was not ... Second Foundation!   Although, for all we know, it might have started out, before the rewrite as ... Foundation and Empire.  I don’t have one of those clever poll apps, so let me  just ask our readers:

If you had to pick a catch phrase among the following that most accurately described the administration and its program, which of the following would it be?

• New Foundation,
• Foundation,
• Foundation and Empire,
• Second Foundation
• Or some other Foundation series related theme.  Please try to keep ideas for names within the Foundation universe, or anyway no broader than Asimov era “classic sci fi.”

Update:  An alert commenter observes that although the term New Foundation appeared in 2009 in the administration’s issue framing, sufficient to spark a NYT article on it, the term doesn’t seem to actually appear in SOTU, at least on my quick scan.  Let me know in the comments if I’m wrong  Presumably this is why Noonan phrases it slightly carefully, so as to not say that it did.  Anyway, my basic point is the same.

Update 2:  Thanks, Glenn, for the Instalanche!  It’s a pretty long list of folks in important positions, at least of a certain generation, who are Foundation fans – and some, including my daughter, of the next.  Glenn says ...  ”I’ll note that both Newt Gingrich and Osama bin Laden are supposed to be Foundation fans, for whatever that’s worth . . . .”

There seems to be a strange subtext in some press stories hinting that the suspect in the Fort Hood shootings, Nidal Malik Hasan, had psychological problems or motivations of a kind that would somehow render his acts inconsistent with terrorism or with Islamic terrorism. Does the press realize that the psychological profile of a typical suicide bomber or religious mass murderer is hardly one of complete normality?

The scholarship on the psychological makeup of terrorists is somewhat spotty, but in his 2005 Journal of Conflict Resolution article reviewing the literature, Jeff Victoroff identifies the following four characteristics in “typical” terrorists:

a. High affective valence regarding an ideological issue

[here Islam, jihad, or the Iraqi or Afghan Wars]

b. A personal stake—such as strongly perceived oppression, humiliation, or persecution; an extraordinary need for identity, glory, or vengeance; or a drive for expression of intrinsic aggressivity—that distinguishes him or her from the vast majority of those who fulfill characteristic a

[here probably strongly perceived oppression, humiliation, or persecution]

c. Low cognitive flexibility, low tolerance for ambiguity, and elevated tendency toward attribution error

[here there is alleged rigidity in personal relations consistent with low cognitive flexibility and low tolerance for ambiguity; we do not yet know if there was attribution error, such as unreasonably blaming Americans or Jews]

d. A capacity to suppress both instinctive and learned moral constraints against harming innocents, whether due to intrinsic or acquired factors, individual or group forces—probably influenced by a, b, and c.

[here we have not only Hasan's actions as evidence, but also his words and the words of some of his friends]

Jeff Victoroff, “The Mind of the Terrorist: A Review and Critique of Psychological Approaches,” Journal of Conflict Resolution, 49: 3-42, 35 (Feb. 2005).

If what has been reported about Hasan so far is true, his biography may not be usual. But Hasan would seem to fit the psychological profile of an Islamic terrorist almost perfectly — indeed, about as well as Mohamed Atta, Osama Bin Laden, or Khalid Sheikh Mohammed.