The death penalty: a clarification

In my previous post [click here to read it], I stated the grounds / argument / reason I oppose the death penalty, namely,

The state should not kill a person once that person no longer poses an immediate threat to society.

I also stated why this "argument" wasn't much of an argument, and I identified what I thought were some obvious problems. The chief problem was that I believed (and still believe) it to be a "question-begging" argument: if one already agrees with it, then one probably does not need to be convinced that the death penalty is wrong.

What I didn't do is explain further why I don't try to convince people of it. What are the reasons behind my saying that the state ought not kill those whom it has neutralized? I could cite some of the reasons that Pascal-Emmanuel Gobry tries to "demolish" or at least offer rejoinders for--the near certainty that some mistakes will be made (he did, after all, write this in response to the outcry over Troy Davis's execution) and that the death penalty might not operate as a deterrent (although I personally find this argument unprovable and based on assumptions about the purpose of punishment that I do not necessarily share). I also would add the alleged--and to my knowledge well-backed up by statistics--race, class, and (I suspect) sex discrimination* when it comes to who gets executed. There may very well be other reasons, some of which boil down to "I don't want to trust the state not to mess it up." As reasons, they have a certain force, and if true, might lead anyone to oppose the death penalty as a practical matter even if they support it in theory.

The truth is, however, that none of these reasons constitute my true rejection. All of them could be shown to be based on false premises--or could be stipulated to be false--and I would still oppose the penalty. In short, to adopt those as the reasons I oppose the death penalty--even though at least some of them might be sufficient reasons in themselves--would be dishonest on my part.

In short, my "argument" is not an "argument." I cannot use it to convince someone who doesn't already agree with me. I do not expect someone who is pro-death penalty to hear my "argument" and change their minds because of it. I might try to convince them that they already believe, deep down, that the state shouldn't kill people that do not pose an immediate threat. But such convincing would be a different feat, an act of showing that my opponent is actually someone who agrees with me already, not someone whom I could convince.


*When it comes to this point, I know nothing for certain. I suspect--and it's only a suspicion, founded on nothing--that if a similarly situated man and woman commit the same type of capital crime, then the man would most likely receive the death penalty. Again, I have no evidence, and I acknowledge two points. First, women often are and have been executed. Second, I understand that men tend to commit more violent crimes than women do, so establishing a way to test my suspicion systematically is quite hard.

A rejoinder to Pascal-Emmanuel Gobry

About two months ago, Pascal-Emmanual Gobry wrote of his admittedly reluctant support for the death penalty. (Click here to read his blog post in full.) His chief purpose is to "demolish" the anti-death penalty arguments and to explain why he supports the death penalty. I believe his argument for the death penalty is ultimately unworkable and unconscionable (which is not to say that it is not well-thought-out) and his attempt to demolish anti-death penalty arguments partially neglects an important argument against the death penalty, albeit one I do not believe I have heard others use and that I confess is almost a question-begging argument.

I share Mr. Gobry's reluctance to endorse some of the anti-death penalty arguments, although sometimes for different reasons from what he offers:

• Like him, I'm suspicious of the claim that "the death penalty is not a deterrent," not necessarily because I believe, as he does, that the sole purpose of "justice" is not to deter crime, but because I admit that even if it is a deterrent, its deterrent effect would not salve my opposition to it.
• I actually disagree with his argument that the death penalty is not vengeance--I think one function of the state undertaking to punish someone is to exact something I cannot call by any other name than "vengeance"--but at the end of the day, I submit that even if we stipulate the death penalty to be '"vengeance," then its essence as "vengeance" does not disqualify it any more than it would disqualify any other punishment exacted by the state.
• His argument against the claim that "the state should not kill people" works to the extent that his characterization of that claim is valid. His argument, quite simply, is that all societies allow some sort of state-sanctioned and state-implemented killing. I'll return to this argument later because my opposition is closely related to the claim that Mr. Gobry "demolishes" here. But again, if one accepts his characterization of the claim, then his counterargument at least lends food for thought to those who advance the claim.
• He addresses, but by his own admission does not "demolish," the argument that there is a real possibility of a miscarriage of justice. He his very honest that he has no perfectly good answer, other than to make the following points in mitigation against that argument: it is hard to truly compensate someone who, say, loses 10 years of their life in prison after having been found innocent of what they were convicted of (one might also add that compensation in such cases is in some states non-existent and in others very small); the assertion that "[p]unishment of the innocent is terrible to contemplate whatever the punishment, and yet society must punish and will always be imperfect"; the hopeful claim that [w]ith increasing prosperity and improving evidentiary science miscarriages should only become less likely, not more." I personally find these points woefully inadequate by themselves. First, it may be hard to "truly" compensate someone for 10 lost years--or even 10 lost days--but at the end of the day the person comes out of it alive. Second, the claim that society must punish and will always be imperfect strikes me as a bit of a dodge, almost the same as saying "it has ever been thus, so why change it."Third , I question the extent to which "evidentiary science," and the jurisprudence to accommodate it, will actually advance to cover most claims of wrongful imprisonment (I'm unclear how DNA evidence can even exonerate persons in most cases, and it seems to me that the appeals process does not always acknowledge such evidence as conclusive when it comes to ordering new trials). Despite my objections to this point, I'll concede him this argument if only because the underlying claim is not my true rejection of the death penalty. (I do think this "anti" argument, along with the argument that the death penalty is disproportionately assigned to persons of color, to poorer people, and (I suspect) to men, can be a true rejection for someone who otherwise might approve the death penalty.)

Mr. Gobry's "pro" argument seems sincere, and I hope to present it fairly. Namely, he seems to argue that extended prison sentences are cruel and amount to "torture," and that the death penalty, at least in cases of long prison terms, is the less cruel option. He cites the reports of prison rape and violence as examples of this cruelty. He also finds it a skewed set of values to say that life is more important than liberty, whereas he would prefer liberty to be more important than life, at least when it comes to punishment. To be clear, he is emphatically not saying that life is to have no value, but that rescinding all liberty is an ultimately more severe and cruel punishment than taking life (bold in the original):

Prison is immoral, cruel and unjust, and particularly life imprisonment. If we want to talk about what punishments are too cruel and beyond the pale, and we should, extended prison terms strike me as much more cruel than the death penalty.
A free society should reflect in its laws the judgement that liberty is a higher value than life, though life is very important.

He goes on to say that his is not an argument for prison reform per se. In fact, his despair of the likelihood of effective prison reform--"everywhere, the way politics work ensures that they will remain this way, because there will never be strong coalitions in favor of making prison 'livable', if that were possible"--supports his assertion that the cruelty of prison is well nigh inexorable. He does concede the possibility of "short and 'medium' prison terms as punishment and rehabilitation." Still, the taking of liberty for life or for very long terms shocks, or should shock, the conscience of a putatively free "democratic" society.

Unlike Mr. Gobry in relation to his efforts against the anti-death penalty arugments, I cannot claim to "demolish" his own argument. But I have several reservations after which I find his argument wanting:

• As I note above, he concedes the possibility of "short and 'medium' terms" of prison, presumably in in minimum- and medium-security facilities, which (or so I've heard) have fewer of the features that lead Mr. Gobry to characterize prison as "torture." However, given this concession, I don't understand how finely he would draw the line between "short and 'medium' terms" (or likewise minimum- or medium-security facilities) and the longer terms (and harsher facilities) that are allegedly more cruel than death. At what point--10 years? 20 years? 30 years?--is death the less cruel option? My understanding is that recidivism is sometimes ipso facto justification for putting someone in a higher-security facility and for longer terms, even if the crime itself would not otherwise justify it. It shocks my conscience for a third-time petty drug dealer who has been convicted of no other crime to be put to death rather than be sentenced to 20 years in a maximum security prison (I'll confess that I do not know the drug laws well enough to know punishments). Of course, my shocked conscience is no answer to Mr. Gobry's argument, relying as it does on the premise that extreme deprivation of liberty for long periods of crime is more cruel than death. (And perhaps he might suggest that the penalties for violations of drug laws ought to be revised downward. He does not claim the US justice system is perfect or ideal.)
• To elaborate my shocked conscience reservation, I'll point out that Mr. Gobry's argument relies to some degree on the question of "how do we punish those horrible murderers" who do horrible things to people--at one point he says as much when he writes "there are evil, inexcusable murderers in the world. The question is what to do with them and, again, how far we are willing to go in terms of cruelty toward them?" What about the long prison sentences administered to white collar criminals or (sometimes) to non-violent drug offenders or to admittedly violent recidivists who nonetheless do not rise to the level of "evil, inexcusable murders"? It seems like Mr. Gobry would like to have it both ways: prison cannot be made better and we cannot justify the "torture" that is prison even when it comes to murderers, but when it comes to other criminals, well, we just won't talk about what happens to them. Of course, I must concede that a lot of criminals, especially white collar criminals, probably have minimum security sentences. But my point is, that if Mr. Gobry is going to call prison torture, and be consistent with his advocacy for, or at least acquiescence in the existence of, the death penalty, he needs to address this wider problem.
  
• Mr. Gobry despairs of a political coalition that would reform the prison system to such a degree as to make American prisons more "livable." Yet the same quasi-privatized prison industrial complex (to use a loaded term) and the incentives among police officers and prosecutors to arrest and convict (and sentence to long terms) large numbers of people are (arguably at least) largely responsible for the continuance of long prison terms in conditions that Mr. Gobry probably accurately describes as torture. Why would that same complex be any more amenable to re-establishing the process that is due to alleged criminals that would prevent the false positives and miscarriages of justice that Mr. Gobry, in another section of his blog post, is so hopeful for? Again, my point here is not a full answer to Mr. Gobry's argument, relying as it does on a quasi-conspiratorial vision of a "prison industrial complex" (obviously, I'm sympathetic to the charge that it does exist and is pernicious, but I confess that if someone were to call me on it, I don't have at my disposal the evidence to prove it) and counteracting only a portion of Mr. Gobry's larger argument about extreme deprivations of liberty.
• Whose to say that extreme deprivation of liberty is indeed worse than death? For what it's worth, I believe the horror stories about prison are at least sometime true, and I fear that they are chronically true, and I think it's an outrage and would prefer that something be done. It is also facile of me to claim that a life in prison is a life worth living. But maybe there is something valuable to maintaining life, even in a place as hellish as the worst stories of prison. Again, maybe not. But unless I'm the product of reincarnation--and if so, then my memory has been duly erased--I have never died and don't know what it's like to die and on some level I confess to being afraid of dying even though I know that it is inevitable.
  

Again, none of the preceding reservations actually "demolish" Mr. Gobry's argument. But they are strong enough to convince me, at least, to reject it.

Finally, I'll say that Mr. Gobry's efforts to "demolish" the anti-death penalty arguments rejects another argument, the one akin to the claim that "the state should not kill people" and the one I promised to return to. As I said above, he has quite a powerful point when he says that the state already approves of and takes part in killing in at least some circumstances that most opponents of the death penalty would probably accept (a police officer shooting a suspect in self defense, a soldier shooting a soldier in the army of a country with which the US is at war). Therefore, it is hard to advance this argument. Moreover, Mr. Gobry is not setting up a straw man. There are, apparently, people who make this argument, and if you read his post, he links to one of them.

But there is a related argument, albeit more qualified and perhaps also a bit question-begging (in a similar way that the argument he "demolishes" is also question-begging: if one accepts that "the state should not kill" it's a 360 degree leap to get to the conclusion that of course, the death penalty is not right). Here is the--and my--argument:

The state should not kill a person once that person no longer poses an immediate threat to society.

In other words, it is, at least in theory, okay for the state (e.g., a police officer) to kill in immediate self-defense (one hears certain anecdotes and wonders how many such killings are, in fact, self defense), but not after the state has detained or otherwise neutralized the alleged criminal.

I acknowledge that my "argument" is almost no argument at all; it almost completely begs--i.e., assumes as evidence--that which I intend to "prove" with it. Someone, having accepted my formulation, must in most cases probably also deny the death penalty. The burden on me is to prove the validity of my formulation--the question that I beg--and not the almost perfectly valid conclusion I draw from it.

I say it "almost completely" begs the question because there are still some gray areas. There is (probably) no such thing as pure immediacy when it comes to threats or anything else outside the "approaches to zero" we find in differential calculus: how mediated does the immediate have to be before it's no longer "immediate"? I don't know exactly. I draw the line at the time the suspect is handcuffed. But what about the possibility of escape? Ted Bundy apparently escaped, and to kill again. What about the possibility of an "extremist martyr"? At least some argument is to be made that had the architect of the Oklahoma City bomber not been killed, he as a "political" prisoner might prove a rallying point for like minded extremists in a more violent way than he would not otherwise have been. (Maybe not; his co-conspirator was not sentenced to death, if I recall, and however such extremists might revere him, he doesn't seem to have been the focal point of more violence.)

And here I see the insufficiency of my "rejoinder" to Mr. Gobry. It boils down to this: he did not address my argument, and there are certain points he left unexplored (how to account for the way the prison system is) or assumed a priori (liberty trumps life when it comes to extreme punishment). But there I do see our differences.

In search of the libertarian / liberal divide, part V

A few observations after considering a series of proposed policy changes that are representative of one person's vision of "marginal libertarianism."

First, in the future, I will think real hard before promising "a series of posts" about anything. It's a hard promise to honor with my attention span and with my other obligations. (Compared to people with full time jobs or with children to raise, my appeal "other obligations" may sound suspect, since my principal obligations are working a relatively stress free, but well-paying part time job and "writing" a dissertation. But it's my blog and I'll whine about what I want to whine about.)

Second, it is much, much easier to criticize someone else's ideas than it is to come up with one's own. My objections to most Mr. Hanley's ideas, could be boiled down to: "Here are the nits I pick, but the current state of affairs is bad, and I can't think of anything better to improve them."

Third, almost all of my objections to Mr. Hanley's ideas are what I call "libertarian-friendly." Focusing on what will work is not a necessary or sufficient attribute of libertarianism, but most of the libertarians who I've read online seem very concerned about how policies will be implemented and whether they will bring about any "perverse incentives" or create a class of "rent seekers" (rent seeking is a concept I understand only imperfectly, but I understand it as the attempt to attain or maintain special privileges or unearned income from the state). Therefore, I cannot claim my decision not to be a libertarian to be distinguishable on the grounds of my differences with most of these policies.

Fourth, on the issues in which at least some of my objections rest on non-libertarian concerns, I think I see a kernal of my differences with libertarianism. I would support or at least acquiesce to government coercion for a conception of the "public interest" that seems to be defined along lines somewhat different from those that libertarians seem to define it.

Libertarians seem to define the "public interest" as "that which affects non-participant parties" where participant is defined as "someone who knowingly and willingly takes part" in a action. If, for instance, two people decide to do something that affects someone else negatively, then there is reason to restrain those people from acting, or at least require them to redress the "negative externalities" they create, all in the name of a "public interest." Conversely, if a policy would enable someone to do something that either does not affect non-participants negatively, or that benefits non-participants (or creates "positive externalities"), then that policy is probably good and serves a "public interest."

I think I differ in that I would enlargen (a real word? my spell check doesn't think so; maybe I should say "embiggen"?) the notion of "public interest" to include some an "obligation by those who have done well by the way things are to support others who have not done so well and the state ought to enforce this obligation." I see two problems with this view, neither of which I am yet able to resolve:

• It is mere assertion. I think that deep down, I agree with it, but I have no proof other than "that's what I believe."
  
• It allows for a potentially expansive state, with little check on state powers, for measures that check individual liberty, or at least by most definitions of "liberty." (Too often, I see people use the word "liberty" as self-evident, as if there might not be competing definitions of liberty.)
  

Regardless of the problems, I think this is where I differ from libertarianism. The difference doesn't necessarily have much to do with disagreement on policy, but rather on my higher tolerance of and acquiescence to state intervention by way of a more expansive justification for that intervention.

In Search of the libertarian / liberal divide, part IV

To continue with my series of posts on libertarian proposals: I am now going to cover those two items I said I "mostly opposed" of Mr. Hanley's policy proposals: for summary's sake, and for the sake of adding yet another colon to this sentence, here they are:

• Pass a constitutional amendment that bans subsidies to any for-profit corporation.
• Repeal the corporate income tax. It gets passed on to consumers anyway, so it’s just a way of pretending we’re making corporations pay their fair share, rather than substantively doing so. And it would reduce accounting costs and diminish the incentive to engage in rent-seeking in looking for special exemptions to it.

First, I'd like to change my vote from "mostly opposed" to "I'm so confused about the matter and what it would entail and how it would be implemented that I don't quite know where I stand but I think I'm opposed at least for that reason along with some others."

Here are my reservations about a constitutional amendment to ban subsidies to for-profit corporations:

• I'm unsure about the effect of an actual amendment. What would the amendment look like? How would it define "for profit" corporation, as opposed to some other entity?
• What would count as a subsidy? Would it be a simple transfer of money to a corporation? Would it be a tariff designed to protect a certain industry?
• Such an amendment would seem to run counter to the original mechanism used to create corporations. Now, it is probably open for debate whether corporations themselves are creatures of the state--it is possible that there is an organizing tendency among people to participate in joint enterprises and that such enterprises tend to act as a "body" in a way we might vaguely call "corporate"--but in practice, what we call corporations are indeed entities created by the state, either as a tool for people in business to use or, in their older form, as a special organization granted certain special rights to achieve a desired public end (I'm thinking of corporations created in the early 1800s to promote internal improvements). These types of corporations, and the privileges they enjoy, have had a long and evolving history. (Limited liability for shareholders was not necessarily an attribute of the corporation as it was originally conceived, for example.) Either way, it seems unclear to me how the creation of a corporation is not in some way a "subsidy" of those who choose to incorporate. How would an amendment take this into account?
• Would such an amendment apply only to state governments, or only to the federal government? If the restriction would be only on the federal government, would that prevent the federal government from issuing incentives to encourage overseas corporations to open up shop in the U.S.? (If so, maybe preventing such incentives is not a bad thing in itself, and therefore it might be a good thing altogether to have such a restriction.) If the restriction apply to the states, I imagine it would make illegal the disgusting spectacle we see in Illinois, wherein the governor and the legislature are falling over themselves to give various tax breaks to companies that threaten to leave the state. But I imagine that such a restriction would reduce the flexibility of state governments to act in such matters. Again, maybe that's not a bad thing, or at least not necessarily, but I wonder what the practical effects would be.
  

As to repealing corporate income tax, again, I'm unclear on what to make of it. I should plead ignorance and say that I don't know how a corporate income tax operates. My main concern is whether the correlation with prices is necessarily 1:1. If a tax of 1% is added to a corporation's income, then do prices increase by 1%, or by a lesser (or larger) percentage? I guess my main reservation is that I'd want to know more about what these taxes pay for, how much they are passed on to the consumer, and how capable they are of enforcement. I do imagine that in Illinois, the spectacle I described above would be lessened by such a repeal, but at the same time I find it hard to believe the legislators would have had the courage to impose a higher personal income tax to make up for the corporate income tax (of course, that issue is complicated, for at the time the legislature raised the corporate tax, it also raised individual income taxes "temporarily"; there is also the question of whether raising taxes at this time of recession is the right thing to do.)

In search of the libertarian / liberal divide, part III

Continuing with my series of posts on "marginal libertarian" policies and my hope to define further the distinguishing features of libertarianism and liberalism [click here to see the first post, and click here to see the second], here is a discussion of those policies which I support, but with reservations. Of these, some reservations are libertarian-friendly and others are probably more "liberalish," or at least non-libertarian (notice that I haven't defined liberalism, or liberalishism; suffice it to say that I'm "working on it").

The only one policy about which I have reservations solely on grounds that I might call "libertarian" is the radical reduction of the armed forces. Of course, my reservations probably depend at least in part on what counts as "radical" reductions. In the abstract, I'm all for ending the warfare state and the militarization of the US society and economy. In practice, the US does have a lot of commitments abroad that would be difficult to disentangle even in ten or twenty years time. Such issues are well beyond my pay grade, and I'm too ignorant. I just fear that a precipitous and "radical" draw down might be dangerous.

I call this a "libertarian" reservation not because there aren't libertarian reasons to support demilitarization: indeed, one might argue that the original antipathy to government violations of civil liberties in the Anglo world--an antipathy from which I think it's possible to trace modern libertarianism--arose in reaction to England's warfare state (I'm thinking of the "country Whig" constituency that arose in England during the 18th century and whose thinking, at least according to historian Bernard Bailyn, provided some of the ideological basis for the American Revolution). I call this reservation "libertarian" because I believe it is located closely to a notion of national defense, so that a strong military can, or at least might, deflect or at least channel the rise of local hegemons that might divide the world into separate "power spheres." In short, I fear a return to the 1930s, which depending on the circumstances might be an even greater threat to liberties than our current standing army and military industrial complex.

Now, I'm open to the notion that I'm entirely wrong on this fear. I should stress that my reservation--resting as it does on a hypothetical and on an imperfect historical analogy--is a weak one, and I would welcome a demilitarization of our economy and society the moment and to the degree that it is shown to be feasible in our current world system.

My reservations against vouchers and against a constitutional amendment to overturn the Kelo decision (the 2005 court decision that upheld a state's taking of private property and transfer to a private developer on the ground that the resulting development would increase the local tax base and provide jobs, etc.) are both liberalish and libertarian.

As for vouchers, I'm not in principle against programs that broaden people's horizons and give them options to go to schools different from the public school to which they would otherwise be assigned. The rent seeker, however, is in the details, and I'm concerned about how vouchers would work and do work in practice.

First, I would need to know if the vouchers are merely rebates of property taxes. If so, I imagine they would effectively price out those who do not own real property because there cannot be a rebate to such taxes when the taxes are not paid directly in the first place (they are paid indirectly, of course, through rent). Second, I am concerned that regardless of the basis for the rebate--or grant of money, as I imagine some voucher systems might simply be a grant of money that people may use for non-public schools--the poor will still be priced out of using vouchers and would be warehoused in public schools that now would have fewer funds available. (Perhaps this concern is less valid than I stated it: maybe money for vouchers does not imply necessarily a loss of funds for public schools, and perhaps money is only one of many problems that some public school districts face so that merely giving more money does not necessarily mean improvements.)

Now, these concerns are liberalish in the sense that they rest on the implication that it is better to compel people to pay for public education, which is in a sense a state-supported, partial monopoly. Libertarians tend not to like state-supported monopolies unless there is no other way to provide the service. I understand the libertarian support for vouchers has to do somewhat with the competition that they would allegedly introduce. Therefore, inasmuch as I would strengthen the public schools' monopoly on primary and secondary education, my reservations against vouchers is non-libertarian.

My concerns are also libertarian-friendly, however, in that I believe a voucher scheme, again, depending on how it operates, could be just a way of funneling money from one group of people to another, particularly if the voucher program is based solely on giving a rebate for property taxes. This funneling might create a class of interested, relatively more affluent people who are strongly subsidized at the expense of poorer people. Again, I must stress that this objection, like my others, comes from my ignorance of how these programs operate in practice or would operate if implemented on a wide scale.

My reservations about an amendment to overturn the Kelo decision are based more on the means of a constitutional amendment than on the prospect of overturning Kelo itself. I belief that the decision of New Haven, Connecticut, to take Ms. Kelo's property was based on a wrongheaded policy. (I have heard that the private developer ultimately did nothing with the land acquired. I don't know if that claim is true, but even if it is false, I think the policy was a bad one.) I also believe that any takings that involves a transfer of property to a private entity should be subject to the strictest scrutiny, so that the type of policy pursued by New Haven could not have survived a constitutional challenge. I disagree with a constitutional amendment for two reasons, one liberalish and one libertarian, and I admit that in some ways the betray an internal contradiction in my own thinking on the matter:

1. Liberalish: as my invocation of a "strict scrutiny" test above might suggest, I can imagine, but only in the abstract, situations in which a taking for a purpose to transfer to a private entity might be justified. I say "in the abstract," because I cannot think of anything off hand. Also, and perhaps this is only a minor reservation, would such an amendment bar any transfer of land to a private entity if that land had been acquired by eminent domain? Perhaps this question represents a misunderstanding of Kelo (I have not actually read the decision, and I do not know if the private developer in question paid for the land that was condemned). But say the state acquires land for a public purpose through eminent domain: could it transfer the land 10 years later? a 100 years later? (I will say that the libertarian skepticism of eminent domain is well founded, especially because "just compensation" is not necessarily, in practice, fair compensation.)
2. Libertarian: a constitutional amendment, depending on how it is worded, might do what it's supposed to do, but it might also either be redundant or, worse, might enable more Kelo-style takings in the future. It might seem strange to say that an amendment to overturn a Supreme Court precedent be redundant when the precedent has been set, but I would not be surprised if the Court in the next 20 years or so will start distinguishing Kelo almost out of existence. (I'm not a Court watcher or otherwise an expert on the law, so take my prediction with several large grains of salt. I have no evidence, just my "hunch.") My main fear--that it would enable future takings--rests on my belief that introducing a ban into the constitution might be interpreted as "now you can do, provided you don't violate this rule." The fifth amendment allows the federal government (and the state, through incorporation via the 14th amendment) to take property "for public use." The new amendment would, I imagine, put a further qualification on "for public use," that would likely follow a format similar to the following "shall not be construed as to permit a transfer to a non-public entity." I wouldn't be surprised if such an amendment only makes it incumbent upon the state to claim and to prove to the satisfaction of the Court that the private entity is actually, really, and in all truth, in a matter of speaking, for purposes of this taking, a "public entity." And then we'd be back at square one. (Of course, I might be wrong on all this. And maybe an amendment would introduce in practice the type of strict scrutiny I favor.)
   

For the remaining policies that I support, but with reservations, my reservations are probably more liberalish than libertarian. These concern Mr. Hanley's prescription for reforming health care provision, his desire to end agricultural cartels, and the negative income tax idea.

Re: his prescriptions for health insurance reform: I like the idea of decoupling health insurance from employment and introducing a competitive market for insurance. I also favor government intervention to help the poor and for "catastrophic" coverage (I confess, I'm ignorant enough about insurance to have a firm grasp on what is meant by "catastrophic" coverage and whether it includes, for example, pre-existing conditions). My reservations, such as they are, rest on a skepticism, or at least an ignorance, of how well the government intervention would help: how intrusive and cumbersome the means testing requirement would be and wide the gap between what coverage one can get on the market and one can get from government provision.

Re: ending agricultural cartels: Any consideration of whether farmers should be allowed to form cartels must take into account the effect such cartels have on the prices of foodstuffs. In short, I, as a non-farmer, find it hard to sympathize with practices that at least in the short term raise prices of necessary food to the consumer, and I also find it hard to sympathize with the massive subsidies provided farmers, especially when those subsidies seem to work more to encourage small- (or medium-, or sometimes large-) scale farms on land that would otherwise be farmed any way than to encourage farming on land that wouldn't be farmed at all without them. Therefore, I would support ending government support for agricultural cartels, but my reservation rests on my ignorance: does the government merely tolerate such cartels, or does it enforce them? If it's only the former, then I might be inclined to support them or at least their legality.

Re: the negative income tax. I confess to not knowing much about the negative income tax, and most of what I do know I learned just a few days ago when I read this post by someone who has studied the idea. There are, as the author of this post notes, some problems with implementing such a plan, but I think it sounds like in general a good idea. I would not like to end all other forms of support, however: I think I would support a robust food stamp program (with all its problems), for example, in addition to a negative income tax, largely because I fear that any version of the negative income tax likely to be implemented would not be sufficient to ensure what I would like to consider a minimum standard of living (note that my "minimum standard of living" is probably higher than what might be considered subsistence level).

In my next post, I'll discuss briefly the policies that I more or less oppose, although I'm not entirely opposed to the motivations behind enacting them.

In search of the libertarian / liberal divide, part II

In my previous post [click here to read it], I listed a series of policies advanced by a self-identified "marginal libertarian" and promised to examine why I support, support with reservations, or oppose these policies. In this post, I'll start with those policies that I almost unequivocally support: ending the war on drugs and legalizing same sex marriage.

First, ending the war on drugs:

I'll say that whatever other reason I might have for opposing the war on drugs, I'm convinced by the libertarian argument for ending the "war." Here is that argument as I understand it: the "war" is an excuse, and provides a mechanism, for the state to exercise a broad authority over its citizens in a particularly arbitrary way. The "war" subjects people to constant governmental oversight, crowds our prisons, and ruins the job prospects for millions of people who are caught for "possession." It also acts as a sort of "prosecutors' insurance": if the prosecutor "knows" someone is guilty of something serious, but can only prove possession, then the he or she can leverage that possession into a plea deal that increases his or her conviction rate. The "war" also creates a broad constituency for its own perpetuation: the prison guards union in California, owners of privatized prisons, prosecutors, the vast networks of funding streams for federal, state, and local efforts to eradicate the drug trade, to name a few.

My only quibble with "end the war on drugs" is not a particularly anti-libertarian one, it's one of definition. At its base, the "war on drugs" is a metaphor for a wider array of policies that function as a large power shift of the state over everyday citizens. In other words, there is not one single "war" policy that needs be overturned, but several other steps that probably include decriminalization, ending funding streams, ending the Drug Enforcement Agency. (Note, ending the "war" does not, to my mind, necessarily imply legalization, although it probably implies a radical decriminalization. Also, some ways that might be proposed to end the war, a "focus on treatment," for example, might have some very bad collateral consequences: in my more dystopian moments, I can imagine a judge saying to someone "well, you haven't committed a crime--and therefore this is not an adversarial process and you don't have the right to a lawyer--but you appear to be an addict, and I therefore "invite" you to spend 5 years in a treatment facility, and because this is for your own good, you must accept the invitation or be guilty of violating law wxyz-1234.")

The policy goal of allowing same sex marriage is also one I support largely on libertarian as well as personal grounds. The personal: I know several gay couples, and I would like them to have the option to marry if that's what they want to do. The libertarian: I find it unfair to deny some couples the right to marry simply because they are of the same sex. With the exception of, perhaps, a (probably very slight) increase in government spending or decrease in tax revenues because more people would, with gay marriage, be in different tax and social security benefits categories, and with the exception of knocking straight marriage from its position as "the only marriage contract allowed," I don't see how legalizing gay marriage affects others' rights at all. Even if the affect on taxes and government spending be enormous, I hope I would still support ssm because it's the right thing to do.

In my next, probably most boring post of the series of posts, I'll discuss the policies I support, but with reservations.

In search of the libertarian / liberal divide, part I

I often have a hard time explaining to myself why I am not a libertarian. Well, in some ways, I suppose I am, but I do not choose to identify myself as one, and the policies I tend to prefer are generally not endorsed by people who call themselves libertarians.

In part, my refusal to identify as a libertarian comes from a reluctance to be identified with the popular caricatures of libertarians: according to one of these caricatures, libertarians are minarchist extremists who support policies that would take us to a new feudalism where the owners of property rule over all in a sort of survival of the fittest world. This caricature--as well as others I could mention--is unfair to what I understand most self-proclaimed libertarians to believe. Still, that doesn't answer really why I don't identify as a libertarian. (For what it's worth, I don't identify as a Democrat, either, even though my preferred policies seem to be more congenial with what Democrats advance.)

However, when I read what consistent libertarians believe (there are always libertarians of opportunity, just as there are fellow travelers of opportunity to any ism when what what that ism advocates is congenial to them), I am sometimes at a loss to explain my differences with them. In one post, I listed things I have learned from libertarianism (click here to see it; and to that list I'll add that libertarians place a value on "choice," such that policies that tend to enlarge the number choices available to people tend to be better than policies that limit the number of choices). But although I appreciate these lessons and indeed must take them into account when I think about any of my policy preferences, they leave me at a loss to explain why I don't identify as a libertarian. This "loss to explain" is further highlighted by other (perhaps over-broad) statements about what libertarians believe, as in the explanation provided by libertarianism dot org [click here to read it in full]:*

Libertarianism is the belief that each person has the right to live his life as he chooses so long as he respects the equal rights of others. Libertarians defend each person’s right to life, liberty, and property. In the libertarian view, voluntary agreement is the gold standard of human relationships. If there is no good reason to forbid something (a good reason being that it violates the rights of others), it should be allowed. Force should be reserved for prohibiting or punishing those who themselves use force, such as murderers, robbers, rapists, kidnappers, and defrauders (who practice a kind of theft). Most people live their own lives by that code of ethics....[the definition elaborates a bit further, and I invite you to click onto the above link to see what I leave out, but I think what I've quoted here represents it fairly.]

This definition, as far as it goes, is something I could probably sign on with. I would, and do, quibble with the claim in the last sentence inasmuch as I believe we all have an inner authoritarian that out of spite or pride would forbid others from doing something which harms us not (at the same time, I believe a lot of libertarians suppose anyone to be corruptible, which is one reason why they are suspicious of concentrations of power into the government). I also believe that in the right circumstances we all are or would be tempted to resort to it. But quibbles are a fact of life, and in broad outlines much of this definition seems congenial. I do think it is over-broad because I imagine a very large number of people who are not libertarians would claim to be willing to embrace it. (Note, for example, how opponents of same sex marriage often frame their opposition in terms of how ssm would damage traditional marriage, not in terms of denying someone the right to do something that otherwise respects the rights of others.)

Too often, when I think about such things as "libertarianism" or "liberalism," I tend to focus too much on first principles and starting premises. And that focus leads me into vague, unsupported assertionism (see my claim that we all have an inner authoritarian).

Something I read recently at League of Ordinary Gentlemen, however, gives me the chance to explore further why I am not a libertarian. James Hanley, in the comment thread of a guest post at League of Ordinary Gentlemen (click here to read the post) gives a list of some policies that he, as a libertarian, would support. He calls these "marginal improvements" in order to underscore that they are doable and that libertarianism does not necessarily represent some pie-in-the-sky attempt to remake society completely de novo. Here is a concrete instance where I can say I support, oppose, or support with reservations a specifically libertarian policy and whether I support, oppose, or support with reservations out of respect for principles that might be considered libertarian or out of some other principles, or a combination. In short, examining this list will give me the opportunity to explore why I don't consider myself a libertarian and to explore what I see as some of the distinguishing features of liberalism and libertarianism. Here is the list Mr. Hanley provides, in brackets is a notation of whether I mostly support, support with reservations, or mostly oppose the given policy (click here to read the original comment):

1. End the war on drugs. [mostly support]

2. Radically reduce the armed forces (ok, that might be beyond marginal, but I think changes at the margin there are unlikely to stick). [support with reservtions]

3. Eliminate our current welfare programs and shift to a negative income tax. [support with reservations]

4. Pass a constitutional amendment that bans subsidies to any for-profit corporation. (I’m not a fan of subsidies for not-for-profit ones, either, but I don’t want to get rid of the tax deduction for contributions to non-profits, which is a de facto subsidy.) [mostly oppose]

5. Repeal the corporate income tax. It gets passed on to consumers anyway, so it’s just a way of pretending we’re making corporations pay their fair share, rather than substantively doing so. And it would reduce accounting costs and diminish the incentive to engage in rent-seeking in looking for special exemptions to it. [mostly oppose]

6. Promote the expansive use of school vouchers. [support with reservations]

7. Eliminate the federal law that allows for the creation of agricultural cartels. [support with reservations]

8. Change our health care system so that it’s actually more of a market system, reserving government’s role primarily for catastrophic care and the very poor. At a minimum this requires severing the link between employment and health insurance (which is what is actually blocking most unemployed/self-employed people from getting health insurance), and making it easier to set up inter-state buying networks. [support with reservations]

9. Allow same-sex marriage. [mostly support, with no reservations]

10. Constitutional amendment to overturn the Kelo decision. [support with reservations]

In the next few posts, I will examine each of these policies to explain why I take the position on them that I do and what role properly "libertarian" justifications play in my assessment of these policies. I will then follow up with a more general post on what this all means for defining the distinguishing features of libertarianism and liberalism.


*I do not read that site regularly and only stumbled on it a few days ago. I also cannot claim that it speaks for all or most libertarians. My very brief perusal of the site suggests to me that it relies on a question-begging, one-size-fits-all notion of liberty that amounts to preaching to the choir.