Liberalism Unrelinquished: An interview with Dan Klein
Liberalism Unrelinquished (LU), is a new project by Prof Daniel Klein and Kevin Frei which aims to reclaim the word 'liberal' from those people who want to 'governmentalize' social affairs. So far it has been signed by around 350 people, including Alan Macfarlane, Charles Murray, Deirdre McCloskey, Richard Epstein, and Alan Charles Kors — as well as several members of the ASI. Dan spoke at the ASI back in 2012 on“Mere Libertarianism”, his synthesis of Hayekian and Rothbardian strands of libertarianism. I reviewed his rather excellent book Knowledge and Coordination here. I spoke to Dan about his new project. Bio: Daniel Klein is a professor of economics at George Mason University (where he leads a program in Adam Smith), the JIN Chair at the Mercatus Center at GMU, a fellow of the Ratio Institute in Stockholm, editor of Econ Journal Watch, and the author of Knowledge and Coordination: A Liberal Interpretation(Oxford University Press, 2012).
What is Liberalism Unrelinquished (LU)?
LU is a declaration of no surrender on the word liberal. The 250-word Statement is as follows:
In the 17th and 18th centuries there was an ascendant cultural outlook that may be termed the liberal outlook. It was best represented by the Scottish enlightenment, especially Adam Smith, and it flowed into a liberal era, which came to be represented politically by people like Richard Cobden, William Gladstone, and John Bright. The liberal outlook revolved around a number of central terms (in English-language discourse, the context of the semantic issue that concerns us).
Especially from 1880 there began an undoing of the meaning of the central terms, among them the word liberal. The tendency of the trends of the past 130 years has been toward the governmentalization of social affairs. The tendency exploded during the First World War, the Interwar Years, and the Second World War. After the Second World War the most extreme forms of governmentalization were pushed back and there have since been movements against the governmentalization trend. But by no means has the original liberal outlook been restored to its earlier cultural standing. The semantic catastrophes of the period 1880-1940 persist, and today, amidst the confusion of tongues, governmentalization continues to hold its ground and even creep forward. For the term liberal, in particular, it is especially in the United States and Canada that the term is used in ways to which we take exception.
We the undersigned affirm the original arc of liberalism, and the intention not to relinquish the term liberal to the trends, semantic and institutional, toward the governmentalization of social affairs.
Thus far, about 350 people have signed the statement.
You speak of "governmentalization." What’s that?
“Governmentalization” captures things beyond interventionist restrictions and taxation, such as the role of government or governmentally subsidized institutions in the culture -- government as benefactor, employer, and on-the-field player in commerce, industry, and finance. Government as big player. That comes only from coercive power, of course, but too often critics of governmentalization focus on the coercion and not enough on the resultant cultural power. Government is a ginormous player in social affairs. It both rams and beguiles its way into cultural spaces, to self-validate. Government as cultural vortex. Look at what has become of France, despite its rich history of liberal intellectuals.
What made you decide to start Liberalism Unrelinquished?
Kevin Frei and I started it. Kevin emailed me to propose a Liberalism Day, to talk up the original political meaning of liberal. That morphed into Liberalism Unrelinquished, executed mainly by Kevin, though I drafted the Statement. We approached five individuals as initial signers — Deirdre McCloskey, Stephen Davies, Richard Epstein, James Otteson, and Mario Rizzo. That set the ball rolling.
Why should we care about what word we use to describe ourselves?
The word liberal is powerful. It relates to liberty and toleration, reflected in to liberalize. Words have histories that a generation or two cannot undo. A word has cognates and connotations that make our language cohere, more than we know, more than dictionary definitions can tell.
We need a wider understanding of the semantic changes of the 1880-1940 period. In a way, semantic issues are the momentous issues of our times; semantics tell who and what we are, our selfhood; they condition how we justify our everyday activities.
I’ve heard a few people object that you’re trying to be prescriptivist about the word liberal – that, rightly or wrongly, the word’s meaning has changed and it’s pointless to try to undo that. And you say?
When words hit home everyone is prescriptivist. People who say “That’s just a semantic issue” don’t seem to have thought very deeply about the importance of semantic issues.
If T.H. Green and L.T. Hobhouse could affect how words are used, what they are taken to mean, why shouldn’t we try to do the same when doing so would be to the good? LU does not force anyone to learn about the original political meaning of liberal. People choose for themselves what semantics to practice.
Can you tell me about the differences between ‘liberalism’ and ‘libertarianism’, as you see them? Are there liberals who could not be described as libertarians, and vice-versa?
Since age 16 or 17 I’ve been raised up on American-style libertarianism. As I see it, there is a narrow sense and a better, broader sense. The better sense, to me, rediscovers the outlook of Adam Smith. But the narrow sense of Murray Rothbard, for example, certainly has some tensions with the broader sense (from me on such tensions: one, two, three, four, five). I like to think that libertarianism grows more Smithian; in that sense I don’t see it as a matter of liberalism versus libertarianism.
Are you trying to effect a change within the libertarian movement, or among members of the centre-left who describe themselves as liberal?
The left gains enormously by getting away with calling itself “liberal,” so getting them to give up the goods is not even a prayer. Partly, I just want to self-declare, like Popeye, “I yam what I yam.” An Adam Smith liberal; a lovely little subculture. Next, I’d love to see the center-left, in the US, the Democratic Party people, be called by others something other than “liberal” simpliciter. Progressive, Democratic, social democratic, leftist, or left-liberal – all good. It is unfortunate that so many non-leftists comply with the self-description assumed by the left. For some 100 years the left/center-left dominated the cultural institutions. If non-leftists didn’t go along with their self-description, they were excluded. Then it took on a life of its own, and Republicans and libertarians are now surrendering “liberal.”
Why is LU generally restricted to over-30s?
Just to put some bounds on it. Wisdom comes with age …
In what countries do you think LU is most relevant? I’ve noticed that in the US ‘liberal’ usually means something like ‘progressive’, whereas in Europe it still generally has its old meaning. In the UK we’re a little bit in between.
I’m learning that, within the English-speaking countries, “liberal” means center-left most in the US and Canada, and that it retains its original political meaning most in Australia and New Zealand. Though I’m really not sure about India, South Africa, Hong Kong, and elsewhere. Yes, the UK is in between. In most of Europe liberal still principally retains its original political meaning.
Discourse from North America extends globally, so I think LU is relevant globally. Although our recruiting has been directed only to those in English-speaking countries, people from other countries, too, have signed on.
Do you think ‘liberalism’ implies a greater sympathy with redistributive public policies than ‘libertarianism’? Where do you see the ‘Bleeding Heart Libertarians’ fitting in to the ‘liberal’ nexus?
I think that Adam Smith liberalism is more flexible, more pragmatic generally, so yes. But I wouldn’t say that Adam Smith liberalism is positively friendly toward redistribution by government coercion. The attitude is more one of compromise.
As for the “Bleeding Heart Libertarians,” I am a fan. I think they are right (and concordant with Smith) that justice should not be confined to commutative justice (CJ). For justice beyond CJ they use “social justice.” I wouldn’t use that term, I’d use “estimative justice” for what they are talking about. But still I like what they are doing.
Do you have any thoughts about how political discourse will change in the future?
The left has a penchant to protest against "the unjust system." But we are wising up to the fact that, to a great and increasing extent, they are the system. The establishment, the status quo, is one of long-standing governmentalization of social affairs. If "conservative" means conserving the way things have been, the term increasingly fits governmentalization, since the trend is well over a century old. The establishment is one of governmentalization and hence cronyism and apparatchism. Since, let's face it, the left is basically about leaning toward governmentalization, more and more it is the left who are the conservatives, strictly speaking. What will come of this? I hope it starts to gnaw on their conscience, and that there is a reconsideration of what it means to be liberal.
Do you think the current left-right dichotomy makes sense and will it last?
The left/center-left dominated discourse. They determined semantics as follows: We the left are the humane ones. If you are not one of us, you are “the right” or “conservative.” So really there is the left and an everything-else category. Whether we can overcome the iron cage of leftist semantics is to be seen. Learning more about the original political meaning of the term liberal, 1769-1880, is a start (from me on that here).
The Statement says that the meaning of many ‘central terms’ fell into confusion during the 1880-1940 period. What terms?
The core set are: liberty, freedom, justice, property, contract, equality, as well as liberal. It was those terms, it seems to me, that confusion most befell. A second set would include equity, rights, law, rule of law, force/coercion, and privilege.
What should people read if they want to learn more about liberalism?
At LU (here), Kevin and I compiled a list of sources on the history of classical liberalism. Let me also offer my short piece “What Should Liberals Liberalize?,” needling left-liberals for failing to promote liberalizations that would promote what they claim to care about. But I see Smith’s The Theory of Moral Sentiments as the most important work of liberalism.
Where do you think the semantic shift that LU wants is most likely to happen – academia, journalism, online, or somewhere else?
The Adam Smith Institute and the Institute of Economic Affairs!
Where next for capitalism?
Writing for the BBC today, Madsen outlines his ideas about what capitalism should do to renew itself:
What capitalism should now do is to free itself from these rent-seeking perversions and spread its benefits as widely as possible.
It should act against anti-competitive practices to give people instead the power of free choices between competing goods and services. It should spread ownership of capital and investment as widely as possible through such things as personal pensions and individual savings accounts.
The Negative Income Tax and Basic Income are pretty much the same thing
I’ve been talking about the Negative Income Tax lately, and equating it with the idea of a Basic Income. I think most of the policies’ respective advocates would deny that they’re the same policy. In this post I’m going to outline why that’s incorrect and I’m happy to say that they’re basically the same thing. For the uninitiated, a Negative Income Tax is a form of welfare that replaces most existing welfare schemes with a single payment that supplements the income of the unemployed and low-paid. The payment is withdrawn as your earnings increase, ideally at a gradual enough rate that increasing your earnings (and hence reducing leisure time) is always worthwhile.
An example: a £5,000 basic payment at a 50% marginal withdrawal rate (this means that for every additional pound earned, the worker will receive 50p less in NIT payments). Someone with an income of zero would receive an NIT payment of £5,000, or just under £100/week. If they took a job that paid £5,000/year, they would receive a top-up of £2,500/year; that paid £7,500, a top-up of £1,250/year. Once they reached £10,000/year, they would receive nothing in NIT.
This idea was supported by Milton Friedman, among others, and has a reasonably strong pedigree on the right. Even libertarians who object to income redistribution in principle usually concede that a Negative Income Tax is the least bad form of welfare, because it is administratively simple and perverts incentives less than most welfare schemes. It is particularly appealing to many liberals and libertarians because it is unpaternalistic.
A Basic Income, on the other hand, is usually conceived as a flat payment to everybody irrespective of circumstance. This leads to a very big problem: assuming it replaces most forms of welfare as an NIT does, a basic income high enough for unemployed workers to subsist on would simply not be affordable to pay to everyone. A policy that ideally would be designed to help the poor ends up being a very expensive subsidy to people who do not need extra money.
Advocates of the Basic Income recognize this, and their solution is typically to use the tax system to ‘claw back’ the payment from relatively high earners. So everyone gets the money, but it is withdrawn according to earnings.
In practice, that’s more or less the same as a Negative Income Tax – the only difference is whether the withdrawal takes place at the ‘front’ of the payment (as with the NIT), or the ‘end’ (as with the Basic Income). Strange as it may seem, the policies advocated by Milton Friedman and the Green Party are the same in all but the technical detail.
But even if there is a surprising amount of agreement in terms of the kind of welfare we’d like to see, the detail may be more difficult to agree on. How much should a ‘basic income’ be? When should it begin to be withdrawn, and at what rate?
Questions like this are, I think, likely to be where what breaks up this (unholy?) alliance. But maybe not. Traditional policies like the minimum wage probably do more harm than good, and, rightfully, the question of how to improve the lives of the low paid does not seem to be going away. It will take compromise, but in the Negative Income Tax / Basic Income, we may have an answer.
Five intriguing papers I discovered this week II
As the second in a series, here are summaries of five interesting journal articles I read in the last week. All of these ones are new, although that may not always be the case. 1. "Very Long-Run Discount Rates" by Stefano Giglio, Matteo Maggiori and Johannes Stroebel
Giglio et al. use the difference between the prices of leasehold and freehold properties in the UK and Singapore to compute long-run discount rates. They find that over 100 years, the discount rate is 2.6%—whereas properties with 700-year or longer leases trade at par with freeholds. They point out that this 2.6% discount rate may have implications for climate change policy; the famous and influential Stern Review recommended using a 0% discount rate, which may justify much more extensive anti-CO2 measures now. Some slides explaining their findings are available here.
2. "Is the stock market just a side show? Evidence from a structural reform" by Murillo Campello, Rafael P. Ribas, and Albert Wang
Campello et al. look at a 2005 reform that, in a staggered 16-month basis and after a trial, allowed $400bn worth of Chinese equity, previously untradable, to be bought and sold. Using "wrinkles" in the roll out that provide quasi-experimental tests, they find that firm profitability, productivity, investment and value all improved substantially. "Policies that ease restrictions on [capital] markets may have positive effects" runs the final line of their conclusion—quelle surprise!
3. "Social security programs and retirement around the world: Disability insurance programs and retirement" by Courtney Coile, Kevin S. Milligan and David A. Wise
These three authors add to the burgeoning literature proving that those on the edge of retirement respond to incentives just like anyone else. This shouldn't really be a surprise, but the heavy flow of publications adding evidence in this direction suggests that maybe there was once a bizarre consensus in the other direction. Coile et al. show that delaying eligibility to pensions, increasing the stringency of disability insurance programs, and other welfare reforms for older people have "very large" effects on how much labour they decide to supply. Not exactly shocking, but certainly important in ageing societies.
4. "What Happens When Employers are Free to Discriminate? Evidence from the English Barclays Premier Fantasy Football League" by Alex Bryson and Arnaud Chevalier
In this nifty and quirky paper the authors try and isolate "taste-based" racial discrimination, by looking if fantasy football players pick footballers differently based on their race, controlling for "productivity" (i.e. their expected points tally). They find no evidence of taste-based discrimination here, suggesting that much of the apparent discrimination found in other studies (e.g. studies of fake CVs where different ethnicities see different acceptance rates even when they have similar qualifications and experience) could be statistical. That is, since employers cannot directly observe productivity (unlike in fantasy football), and since different ethnicities have different productivity distributions, certain ethnicities are on average less valuable to employers. Of course, it might be that people exercise taste-based discrimination as well when they have to interact regularly with the group/race/ethnicity in question—fantasy football is much more at arms length.
5. "The Role of Publicly Provided Electricity in Economic Development: The Experience of the Tennessee Valley Authority, 1929–1955" by Carl Kitchens (ungated)
The most fun kind of research to read is one that confirms a niggling view you've had for a while, but one that nevertheless overturns a happy consensus. The Tennessee Valley Authority is a classic example of "enlightened" central planning, targeting a hard-up area with massive coordinated infrastructural investment and widely believed to have delivered substantial benefits. But if these dams and systems were really such good investments wouldn't private companies have got around all the barriers to such an investment already? There are some cases where I suppose that sort of basic argument doesn't hold, but it's a pretty good first approach to any area, and it turns out the TVA is one of them. Kitchens newly-published paper finds "that the development of the TVA during its first 30 years did not cause manufacturing, retail sales per capita or electrification to grow any faster in areas receiving TVA electricity than in other areas in the Southeast."
Piracy deal ahoy!
After years of impasse, UK Internet Service Providers and the copyright holders of the entertainment world look set to sign off an agreement on internet piracy. According to the Beeb a 'voluntary copyright alert programme' is to be agreed. Under this, ISPs will identify the IP addresses of alleged copyright offenders and send them ‘educational’ letters on copyright violation and legal alternatives to piracy. Whilst a similar ‘six strikes’ scheme in America sees ISPs able to impose sanctions (such as slowed internet speeds) on persistent offenders, the UK scheme does not. The amount of letters that ISPs can send is capped, and no individual will receive more than 4 letters. Following these, no further action will be taken.
This voluntary agreement breaks a deadlock between content giants, the government and ISPs caused by the Digital Economy Act (DEA). Rushed through in the parliamentary wash-up of 2010, the DEA's copyright provisions instruct ISPs to keep a database of persistent downloaders, and to restrict then finally suspend internet access to those who ignore written warnings.
These provisions are deeply problematic. They force ISPs to police their own customers, burden the companies with compliance costs and ask them to protect another’s intellectual property. Punishing alleged copyright infringers without judicial involvement also undermines the rule of law. Criticized by many politicians, civil liberties groups and the ISPs themselves, none of the Act has been actually implemented.
On the face of it, it’s good that the new agreement is such a watered-down version of earlier proposals. It’s certainly a far cry from what the content industries really want: effective barriers to piracy and access to a list of infringers to hit with ‘compensatory’ legal action. Advocates of internet freedom should be pleased. That said, the agreement doesn’t change the power of copyright holders- they can still get infringing content removed and websites blocked under existing legislation.
Furthermore, skeptics might think that the entertainment industry’s acceptance of the new scheme is just them playing the long game. The programme is meant to run for 3 years but be regularly reviewed. Rights holders have warned that should the scheme prove ineffective they will push for the “rapid implementation” of measures in the DEA.
If the objective is to deter piracy it’s obvious that the scheme will be next to useless: sending ‘educational’ letters will do little to change the behavior of serial downloaders. What it does do, however, is let the entertainment industry claim that a soft approach doesn’t work, and gets ISPs creating a database of copyright infringers that rights holders might win access to in the future. Playing ball now gives the copyright giants credibility to push for more extreme measures later on.
This might seem cynical, but the established entertainment bodies are reluctant to let go of their increasingly outdated business models. Returning to the DEA also gets governments back in the picture, whom copyright bodies often have great success in lobbying. From the ‘Mickey Mouse Protection Act’ of 1998 to the recent EU extension of the copyright in sound recordings, entertainment groups have a knack of preventing their goods from falling into the public domain, and ensuring that governments favor their industry’s profits over actual economic sense.
Understandably, media groups want people to stop illegally sharing their stuff. But instead of lobbying for legislation and slapping fines around the most effective deterrent is to understand consumer’s preferences and offer them valuable alternatives to piracy. Whilst movie bodies get angry at Google for linking to copyrighted material without really tackling their problem themselves, Spotify’s quite probably done more to combat music piracy than blocking The Pirate Bay ever has. However, instead of evolving the copyright industry seems to go out of its way to antagonize consumers, rent-seeking and objecting to even the most eminently sensible of copyright reforms.
Given the entertainment industry’s determination to protect their intellectual property, it’s unlikely that efforts to tackle piracy will end with a voluntary alert system. Whilst innovating companies will continue to find new ways of sharing and monetizing content, for the time being the copyright-holding giants of the entertainment world will remain preoccupied with the wrong prescriptions for piracy.
Should libertarians care about Brendan Eich's resignation?
Mozilla CEO Brendan Eich has resigned his job after just 10 days in the role. This came after it was rediscovered that he gave $1,000 to Proposition 8, a direct democratic move to ban gay marriage in California, that narrowly passed. Upon discovering this, twitter and other areas of the internet mobilised, with 72,000 supporting a petition to the board to sack him. One libertarian perspective might be that, since no negative rights were infringed, this was an entirely defensible use of social pressure to enforce social norms—Eich contributed to a proposal that many libertarians believe would restrict the rights of gays. For this perspective, the Eich situation is proof that state intervention is not needed to achieve socio-political equality for groups considered oppressed. It's very very interesting that many progressives are actually using the rhetoric of thin libertarianism, which they would usually abhor, to defend their position on the issue.
Contrariwise, an alternative "thick" libertarian perspective might hold that people have the right not to be hounded out of their job for opinions they hold and do not enforce on others—by all accounts Mozilla is a highly equal-opportunities place for LGBT people. For this perspective, Eich's resignation is a worrying indication that First Amendment—freedom of expression—rights are disappearing. But confusingly, some would call the hounding position the true "thick" libertarian view, since it says that legal rights alone do not guarantee gays' freedom.
A third perspective might say that although this resignation, considered alone, might not be regrettable, because it advances gays' freedoms, as a rule people should not lose their job for holding certain political perspectives and even actively supporting them. This would hold especially strongly if we agreed that the small donations Eich made were unlikely to actually change anything.
I think all of these perspectives have merit as libertarian responses to what's happened. But whatever the normative issues here, I think the whole situation is much more interesting as an illustration of a positive (i.e. descriptive, not morally loaded) historical trend and tendency that is becoming, in my opinion, more and more obvious. Gay marriage was on almost no one's radar in 1990. In 2000 it was still only an utterly minority idea even among gays.
In 2008 (the same year as Prop 8, and the end of the google ngrams data range in the previous link), US President Barack Obama was elected and specifically opposed gay marriage. Between 2008 and 2014 gay marriage has gone from something a liberal Democrat felt he could not guarantee election without opposing, to something that a chief executive (admittedly a Silicon Valley chief executive, of a particularly "socially aware" firm) has to favour, or at least not outwardly oppose, to keep their job. This is astonishingly rapid.
And various issues suggest that maybe this ousting had little to do with a cost-benefit analysis. Let's assume the best argument in favour of ousting him is that (a) he tipped the balance in favour of anti-gay marriage in the past, and this delayed gay people gaining their deserved marriage rights, and (b) his position at the top of Mozilla will stop it being truly equal to gay employees and consumers. That is, let's assume that the left-leaning people who got Eich overthrown do in fact wish Eich to have meaningful freedom of conscience and speech, but they also think it's fair to censor him if he acts based on those in ways which increase oppression or reduce social welfare.
(This isn't entirely accurate: some do think that people genuinely shouldn't be able to be both employed and hold personal anti-gay marriage perspectives. But I see personal opinions (many of which are genetically heritable) as a much weaker justification for the hounding and the principle of charity dictates I tackle the strongest possible opposing argument here.)
The fact that showing neither (a) nor (b) has even been attempted in any of the myriad of news and commentary I've seen on the issue is telling (I'm open to being refuted here). Indeed, none of the commentary I've seen has even mentioned these issues. And what's more I bet Eich-resignation-advocates wouldn't change their minds if we discovered that Mozilla's currently pro-LGBT policies were impervious to CEO influence, and that his $1,000 did pitifully little to change the outcome of Prop 8, never mind the overall progress of gays' marriage rights.
This suggests to me that this is about policing heresies. This is a doctrinal dispute. I wonder if Eich would still be in his job had he publicly stated regret at his old anti-gay marriage perspective and repudiated it forcefully. I bet he would. And this brings me to the final point: libertarians should care, but not because the instance itself is necessarily a bad thing—an ugly, base, low, cowardly, mean thing certainly, but it might pass a cost-benefit analysis if we really did one—but because of this trend. Progress appears to be an unstoppable juggernaught, and it might be speeding up.
No wonder activists hate the Koch brothers so much
his ia a rather alarming thing for any activist to read in the daily newspaper. From Charles Koch in the WSJ:
Far from trying to rig the system, I have spent decades opposing cronyism and all political favors, including mandates, subsidies and protective tariffs—even when we benefit from them. I believe that cronyism is nothing more than welfare for the rich and powerful, and should be abolished. Koch Industries was the only major producer in the ethanol industry to argue for the demise of the ethanol tax credit in 2011. That government handout (which cost taxpayers billions) needlessly drove up food and fuel prices as well as other costs for consumers—many of whom were poor or otherwise disadvantaged. Now the mandate needs to go, so that consumers and the marketplace are the ones who decide the future of ethanol.
But, but, if a rich guy is fighting for there not to be privileges granted by govenment then what are we allgonna do? Hundreds of thousands of jobs as well paid activists, demonstrators, organisers of petitions, demanders of special privileges, all will disappear! For the entire foundation of all of this social justice stuff is that the rich are using government to screw the working stiff. If anyone actually catches on to the idea that it's people buying privilege from said government that is the problem then where go our careers in campaigning for privilege for our guys from government?
No wonder the activists actually hate the Koch brothers. They're not playing that part assigned to them in the great political kabuki play and by refusing to do so they're putting those lovely careers "influencing " DC at risk.
The conscience of the constitution
The Conscience of the Constitution by Timothy Sandefur, is a new Cato book that can be read with profit by anyone interested in classical liberalism, not just Americans. Some regard the US Constitution as a great bastion of democracy, yet the word, says Sandefur, appears nowhere in it. What the Constitution actually enshrines is liberty.
This liberal purpose and foundation is expressed in very plain terms by the Declaration of Independence, which is, in Sandefur's term, 'the conscience of the Constitution'. Where the Constitution says how the power of government should be limited, the Declaration explains why. Not to empower majorities and their representatives, but to restrain them.
Sandefur's thesis is that over a long period of usurpations, the liberty role of the Constitution has been eclipsed by its democracy rule. Its principles go back to Magna Carta, which declared that rulers and officials themselves had were subject to the 'law of the land' – the deep sense of justice and fairness that grows up through the voluntary interactions of free people. Governments cannot pass any rule they like, no matter how arbitrary, irrational, unfair, unclear or contradictory, and properly call it 'law'. It is this that 'due process' is all about – laws and their execution must be substantively fair and just. Americans do not simply enjoy a list of 'rights' but are protected (or should be) by a general rule against exploitation and unfairness.
In any particular case, that general rule might of course outrage the majority. And in recent years, says Sandefur, the courts have come to place the majority decisions in the legislature above the principle of safeguarding liberty, hardly ever striking down official powers. It is called 'judicial activism' but actually it is a baleful inactivity. Justices claim that legislators are nearer to the public and therefore better equipped to know what is in the 'public interest'. But that, says Sandefur, gives legislators carte blanche to pass almost any law, covering it with some or other 'public interest' fig-leaf. Also, majority decisions are actually made through the rent-seeking of interest groups, pressuring politicians, as described so well by the Public Choice economists. And much law today is made by unelected regulators anyway, so the 'nearer to the public' argument is plainly a sham.
Deliberately upholding unjust laws, concludes Sandefur, is no less damaging than accidentally striking down just ones. The courts should be in no doubt that, as the Constitution and Declaration specify, liberty is the primary object of their actions. However much democracy we have, our rulers have no right to go beyond the Constitution and thereby put the liberty of individuals at risk.
I fear that Theresa May is deluded about modern slavery
As I noted yesterday there's a disturbing campaign going on to make the purchase of sex illegal. The argument being, the false argument being, that there's some appreciable amount of slavery among sex workers and that this is the only way that we can deal with the problem. That the original proposal came from the usual suspects worried me a little. That we then get ths from Theresa May which is much worse:
Modern slavery is an evil which is happening around the world today – including here in Britain. Across this country in restaurants, shops, brothels, nail bars and on illegal drugs farms are women, men and children, being held against their will, and forced into a life of slavery and abuse.
As I pointed out yesterday we have absolutely no evidence at all that there are any slaves, modern or not, in any brothels anywhere in the land. Indeed, when we actively went looking for such we couldn't find any. And the reason for this is actually quite simple. There are sufficient people entirely willing to sell sex at the prices currently on offer for it not to be worth the bother of trying to enslave someone to do it.
So, given that we don't have slavery happening in brothels we do have to wonder why Ms. May is so ill informed here. And we can diagnose that, at least in part, from something else she says here. That's that reference to "nail bars". Which is a ludicrous scare story that started here:
But it turns out that there may be another, far darker reason for the rise of the affordable manicure in the UK of late. A report by the Sunday Times (paywalled link) this week presented evidence about nail salons staffed by illegal immigrants, specifically from Vietnam. According to the report, industry insiders estimate that there are 100,000 Vietnamese manicurists working in the UK, despite only 29,000 Vietnamese-born migrants officially being registered in census data. [Questions raised below by commenters over these figures have been addressed in our Reality Check blog – see footnote.] It alleges that some of these illegal migrants are victims of "what appears to be a human-trafficking network" and that they are sometimes forced to work as prostitutes as well as manicurists.
"Industry insiders", may, possibly, allied with just entirely insane numbers do not proof of anything make. For a start there's estimated to be only 80,000 prostitutes in the country: we are really not going to start claiming that all of them are enslaved in Vietnamese nail bars, are we? Or that one in 200 women of fertile age in the country are in fact working illegally out of Vietnamese nail bars, or are Vietnamese themselves? This is actually such an absurd set of numbers that The Guardian itself had to investigate:
According to the latest statistics from January to March 2013, it is true that Vietnam is one of the top countries of concern, having the highest number of NRM cases after Albania, Nigeria and Poland. While even one case of human trafficking is one too many, the raw numbers do cast doubt on the implication that there are thousands of Vietnamese victims in the UK – 32 Vietnamese nationals were identified as potential victims in those three months.
32 people being abused is of course 32 people too many. But it's a rather different figure from 100,000.
At heart our problem here is simple. We've all cottoned on to the fact that the Socialist Calculation problem is intractable. It's simply not possible to have sufficient information to be able to plan the economy. But what we've not quite grasped, as yet, is that ths is not just a matter of economics. As above we've a scare story running about the country being infested with nail file wielding Vietnamese tarts and the government is proposing to legislate based on this most absurd of stories. But the information that the government is proposing to act upon is simply untrue. Obviously, clearly on the face of it, garglingly nonsensical. We simply do not have more Vietnamese women enslaved into prostitution than we do the total number of prostitutes in the country.
So what on earth is Theresa May doing? She is, God Save Us All, after all the Home Secretary. She has an entire department of people to tell her what is what, whch pieces of information are correct and those which are the fabrications of campaigners with an axe to grind. Why in heck isn't she listening to them?
The deluded idea of making sex illegal to buy
There are times that I look upon those who would rule us and wonder where the collective IQ leaked out to. This is one such time: they're proposing that it should be made illegal to purchase sex in the United Kingdom.
Britain will today take a significant step towards reforming prostitution laws as the first cross-party report for almost 20 years recommends that only pimps and punters should be jailed or fined. The MPs and peers will recommend that the UK adopts a system whereby soliciting is no longer a punishable offence, but anyone who pays for sex is committing a crime. Prostitutes who are caught loitering on streets plying their trade should be given anti-social behaviour orders rather than being prosecuted, the group will say.
The Independent covers the same story:
What the All Party Parliamentary Group on Prostitution broadly proposes is Nordic-style reform, which is what the European Parliament also backed last week. This would shift the burden of prosecution from mostly women sellers to mostly male buyers and pimps. MPs are right to say that one of the root problems with Britain’s laws on the sex trade is that they send conflicting messages about who is in the wrong. If trafficked women, especially, are to be helped, they must be assured that the law is on their side. It is why the MPs want the mass of current legislation consolidated into a single Act, which makes it clear that only those who purchase sex will feel the rigours of the law.
One minor lunacy is the idea of ASBOs instead of criminal punishment. But an ASBO is only a way station to a criminal punishment anyway. Effectively it's a sentence that if you do that again you'll be jailed. Which, given that under the current law no one is jailed for being a prostitute seems to be an increase, not a decrease, in punishment.
But what's truly nonsensical, delusional even, is the basic philosophy at the heart of all of this. That many people don't like the fact that prostitution exists is true. But then I don't like Simon Cowell's existence either and no one at all claims that this gives me the right to ban him. The only possible claim that can be made in favour of the banning of prostitution, or even of the declaration that it is something wrong that we would like to minimise, is that it represents some form of slavery in which people are forced to do things they do not agree to doing voluntarily.
And that is indeed the claim that is being made, see that reference to "trafficking" in the Independent. However, the one thing that we do in fact know about the "slavery" in prostitution is that it doesn't, in this country at least, actually exist. For we had a plan whereby every single police force in the country went out looking for people who were indeed sex slaves. People who were being forced, against their will, into prostitution (ie, repeatedly raped, a vile crime). And when they had a look through all of the brothels, working flats, saunas and street walkers they could find not one single police force was able to come up with sufficient evidence to charge anyone at all with the crime of holding someone in such sex slavery. Operation Pentameter it was called and it's the biggest refutation of the hysterical case about trafficking that could possibly have been devised.
The vision some have of people being forced onto the game is simply untrue. What we do in fact have is consenting adults deciding to offer such services as they wish to offer for the cash being proferred to them. And this isn't something that requires customers to be made into criminals: nor is it something that requires suppliers to be made into criminals either. It's just not something that requires anyone at all to be made into a criminal. It's consenting adults deciding what to do with their own bodies.
The only laws which should (apart, perhaps, from a little bit of zoning and planning law) apply to commercial sex are those that apply to non-commercial sex. Consent, age, these sorts of thngs, and nowt else.
This entire suggestion to adopt the "Nordic Way" is based upon a delusion. That there is some amount of sex slavery which the innocent must be protected from being sucked into. But given that we cannot find any evidence of the existence of sex slavery that is indeed a delusion. It's simply nonsensical piffle and those who would rule us should be ashamed of offering up such an idiotic policy.
Instead I would propose an Act making bansturbation illegal. Bansturbators being those who get sexual pleasure from banning one or more behaviours of others. There's definitely too many of those around and unfortunately they seem to be in control of the legislature at present.