The Volokh Conspiracy is not truly a "libertarian" blog [UPDATED!]

One of the first blogs I've ever started reading was the "Volokh Conspiracy."  It had, and probably still has, a reputation as a libertarian-oriented site whose authors are libertarian oriented lawyers and legal scholars.  It was my introduction to thoughtful libertarianism.  Indirectly, it was through VC that I stumbled upon the belated "Positive Liberty" blog, when Jon Rowe made a comment and I clicked on his url link.  From PL, it was only a few steps to the League of Ordinary Gentlemen.  The League is perhaps not a libertarian blog properly speaking, and some of the libertarian commenters have left (to the detriment of the comment-culture there), but I respectfully submit it's still a solid blog.

In other words, VC introduced me to libertarianism and blogging culture.  And so I kind of have a soft spot in my heart for it.

But its libertarian bona fides have never been absolute, and they're are now still less "bona" than before.  I offer two examples, one old, one recent.

The old example is Paul Cassell.  He has been an author there, albeit an infrequent one, for as long as I've been reading it and probably longer.  That intrepid defender of liberty devotes much of his legal scholarship to overturning Miranda rights and to support for the death penalty.  Maybe there are arguments to be made in the favor for both propositions, although I disagree with those arguments.  But I find it hard to call those propositions "libertarian" by most stretches of the imagination.

About the only "libertarian" line consistent with those propositions is that in order for a happy and free citizenry to enjoy the blessings of economic and civil liberty, that citizenry needs to have confidence that fraudsters and violent criminals shall be dealt with quickly and fairly.  And in fairness to Cassell, part of his argument against Miranda is that it can have poor consequences for the accused.  So, I'll give the law-and-order libertarian his due and just admit that I'm not sympathetic to his argument and confess I lack a j.d. degree.

The new example is Eugene Kontorovich.  He is a recent addition, and maybe he's been there for about a year.  One occasional topic is Israeli policy in the Palestinian territories.  This is such a fraught, emotional issue, that although I'm inclined to criticize his position, which strikes me as too dismissive of Palestinians' claims, I am also nevertheless inclined to admit that I don't follow the situation closely enough to know even most of the basic facts.  And I should admit the following as well.  That's a rough area of the world..  Israel is a liberal democracy, and it exists in an international situation of perpetual war or quasi-war, with some neighboring states observing official policies of eliminating Israel.  And the governing faction in part of the territories is also officially dedicated to eliminating Israel.  In light of those facts and the numerous difficulties, it's not so easy for me to determine whether the putative libertarian commentator is truly Scottish.

However, Mr. Kontorovich has just published a post about the recent tragedy in Boston that, unless he was being satirical or ironic, suggests a dangerous dismissiveness of the individual rights libertarians hold dear and a dangerous allocation of collective responsibility that ought to disturb anyone, liberal, conservative, or libertarian.  After discussing the citywide lockdown the police instituted to capture the suspect and after complaining (plausibly) that the lockdown has dangers of its own for civil liberties, he writes the following:

Yet such freakouts are nothing compared to what is in store if the the Marathon bombing means that Chechen jihadis has come to U.S. shores. The Chechens mounted one of the most vicious terror campaigns ever against Russia in the 1990s, blowing up apartment buildings, and launching massive attacks on theaters and even schools. They are known as among the most violent and dedicated terrorists in the world. They can be found fighting in Libya, Syria and every other major jihadi campaign. Though usually they have to sneak into the target countries, rather than coming on a visa as the Boston bombers apparently did.)

Russia only succeeded in suprresing the Chechen Islamists with extremely brutal tactics that would never find support in the U.S – essentially leveling the Chechen capital. Yet dealing with such a threat would also be impossible with a politically correct approach to counter-terror that, for example, turns away from talking frankly about the terrorists profiles and motives.

You see, if someone is Chechen, they are automatically suspect, perhaps especially because they are Islamists.  And even if most of us don't know anything about Chechnya, we all know "Islamists" are bad and dangerous.

What is the "politically correct approach to counter-terror"?  I suspect it requires such leftist approaches as assuming that people are innocent until proven guilty and that people haven't committed a crime until they have taken at least one overt act in furtherance of a crime.  On the other hand, Korematsu v. U.S. is still technically a valid legal opinion,* and recent innovations in dealing with people whom the president has named an "enemy combatant"--along with extra-judicial, extra-battlefield killings of U.S. citizens--has demonstrated that the "politically correct approach to counter-terror" doesn't have a lot of practical weight to it.

Perhaps Mr. Kontorovich will protest that when he mentions "terrorists['] profiles and motives" and the "talking frankly" about them, what he means is that law enforcement, in order to prevent crimes, has to develop schemas--"profiles"--of who is likely to be a criminal.  To a certain degree, I think that's reasonable.  If someone is acting suspiciously and if someone is part of a group [see update below] that is dedicated to violence or violent overthrow, then perhaps that is a sign that law enforcement can take proactive steps to prevent a future crime.  The issue is indeed messier than the snarkiness of my preceding paragraph might suggest.  And sometimes there are real tradeoffs between "security" and "liberty," and if one really values the latter, one needs to surrender a certain measure of security.

That's all easy for me to say.  I don't live in Boston, and neither I nor (to my knowledge) anyone I know has been the victim of a terrorist attack.  I have never even been the victim of so much as a mugging.  Who knows what position I might take if I had good reason to believe my security were threatened?  To be honest, I'm not positive I'd take the side of "more liberty."  For example, although I understand the concerns about TSA and "security theater," I don't personally find it onerous and I'm glad they're there, even though the concerns are more plausible than not.

But whatever the hypocrisies or resort to the idol of fear I might indulge in, I do suggest this:  these are not positions that a libertarian, qua libertarian, ought to permit.  They might be positions that a libertarian, qua imperfect human being, might be forgiven for assuming while afraid for her or his safety, but they are not consistent with what I understand libertarianism to be.  And a blog whose authors, even if they are in a minority, endorse these positions is not a truly libertarian blog.

UPDATE [4-21-13]:  By "group," I mean "organization" and not, for example, "ethnic group."  Even when used to mean "organization," special scrutiny for some "groups" raises legitimate first-amendment and freedom of assembly concerns.

UPDATE #2 [4-22-13]:  Here is the link to Mr. Kontorovich's blog post.

*A few years after the Iraq war, probably sometime in 2005, I was at a bar one evening hanging out with some friends.  We got to talking with one of the other bar patrons, who was a fairly robust supporter of the war and of other incidents to that war and the Afghanistan war.  The conversation eventually turned to Guantanamo and why he believed there was nothing wrong with the indefinite detentions.  His justifications (I paraphrase):  "We did the same thing to the Japanese during World War II."  It's hard to argue with that logic.

Naming the nameless

In Hermann Hesse's novel Journey to the East,* the protagonist/narrator, "H.H.," contemplates writing about what to him was an incredible, lost experience.  He has great difficulty doing so, and he says the following [p. 47]:

I imagine that every historian is similarly affected when he begins to record the events of some period and wishes to portray them sincerely.  Where is the center of events, the common standpoint around which they revolve and which gives them cohesion?  In order that something like cohesion, something like causality, that some kind of meaning might ensue and that it can in some way be narrated, the historian must invent units, a hero, a nation, an idea, and he must allow to happen to this invented unit what has in reality happened to the nameless.

Perhaps I risk jinxing something by saying this, but I have just finished this process for my dissertation.  Over the last few days, I have had six copies of the 582-page monstrosity printed up and have given a copy to the members of my committee.  If my defense, in May, is successful, I shall soon receive my PHD in history.

There have been peaks and valleys along the way, and I have on several occasions considered giving up altogether.  But intellectually speaking, one of the most difficult parts has been determining what it all means, what are its bounds, what is is "about."  It is certainly "about" some things that are at least rouglhy definable--coal dealers, antitrust laws, city-coal ordinances, prosecutors, trade associations, newspaper magnates, mayors, unions, presidents, and (I swear it's true) gangsters--but over the last few months, as I have written my introduction and conclusion, I have been forced to decide the larger, big question issues:

How does what I wrote contribute to the field of history?

Why should anyone in their right mind even read it?

These questions are supposed to be related.  Historians read the works of other historians because those contribute to a "historiography," something often defined as "the history of history," but perhaps is more usefully conceived as "a conversation among those interested in the past about the past."  Non-historians might also be interested in "historiography," too.  They (along with, perhaps, historians) can also have additional reasons for reading the works of historians.  Some of these reasons are a desire to engage a story, to learn about a specific event or to specific facts, to be seen as the type of person who reads history, or to look for the unexpected and expand one's knowledge.

But the principal goal in a dissertation is to establish how it contributes to the historiography, along with, perhaps, a stab at demonstrating how marketable it is generally and demonstrating the ability to undertake a long-term study using primary sources.  And I have had to establish my dissertation's relationship to the historiography as I constructed my introduction and conclusion.

My grasp of historiography is weaker than it should be.  I really have only myself to blame for this.  I simply haven't devoted the time I ought to have in mastering it.  Neither is the historiography requirement a "gotcha requirement," a mere technicality and "last hurdle" before a good student can get her or his PHD.  From day one in graduate school, we are impressed with the need to learn historiography.  Knowing what other historians have done--what they've studied, what arguments they make, who they agree and disagree with--is part and parcel of professional history and most non-research-oriented grad seminar (in other words, almost all graduate courses stress learning the historiography).  So the requirement that I make my dissertation relevant to the historiography comes with the decision to write it and with the decision to finish grad school.

So like H.H.'s historian, I have had to look at my work from over the past five years or so--the time from when I finished my prospectus to now--and decide what meaning to attach to what I've done, to decide on how to name the nameless.  I have had to look at the story I have written and determine what it is bound by and what it signifies.

That's a hard thing to do.  Why, for example, should I begin my study in the 1880s and why should I end it in the late 1930s?  On the one hand, the answer is easy.  Because I am studying antitrust, the 1880s are a "logical" starting point because most state-level (in the U.S.) antitrust laws were enacted during the 1880s and 1890s, Canada's federal-level law was enacted in 1889, and the U.S. federal-level law was enacted in 1890.  The late 1930s are a good stopping point because that's the era of the New Deal (in the U.S.) and the Canadian variants of the New Deal (there was a brief, and abortive, federal New Deal in Canada, but what I focus on are the provincial-level "little new deals," especially the one in Ontario implemented under the province's "Industrial Standards Act" of 1935).  And the end of the 1930s comes with World War II, and since I'm too lazy to go into wartime economy (World War I was a bear to figure out and I simply didn't want to go into the weeds of wartime price controls, etc.).

And yet, these starting and stopping points are not as obvious as they might seem. For the starting point, I can't help but notice the many, many antecedents to what eventually became antitrust statutes (and in some cases, antitrust provisions of state constitutions).  These antecedents included laws and legal doctrines against conspiracy, the evolution of incorporation laws and corporation practice, common-law prohibitions against "restraints on trade" and common-law and statutory prohibitions against practices known as "forestalling, regrating, and engrossing" that formally date back at least to Queen Elizabeth I and informally date back even farther to the time of the Black Death in Europe.  In fact, some of the principals underlying antitrust go back to attempts by Emperor Diocletion in the Roman Empire to institute price-controls.  In further fact, they also arguably go back to the institution of "government" and the state itself, if one supposes that the (or "a") primary purpose of government is to regulate the terms of business competition.

For the end point, "World War II" is also in some ways arbitrary.  In my study of Ontario (i.e., Toronto as an example of what happens in Ontario), I actually get into the early World War II years because that's around the time that the Industrial Standards Act becomes important for the coal dealers I study.  (Keep in mind that Canada entered the war just a few days after Germany's invasion of Poland in September 1939, while the U.S. entered the conflict formally only after Pearl Harbor in December 1941, although Roosevelt had begun positioning the U.S. to enter the conflict at a much earlier date.)

It's also arbitrary because the coal dealers I study didn't simply adopt different interests or concerns right when the war started, never to look back.  Coal remained and remains and important part of the U.S. and (to a lesser extent) Canadian economies, although it is worthwhile to note that throughout the twentieth century, householders' reliance on coal for heat and energy decreased steadily, especially when it comes to use of coal in household furnaces.**  Antitrust didn't disappear after World War II, either, and although one of the principal arguments of my dissertation is that there was never an antitrust "movement" in most meaningful senses of the word "movement," there was still--and there is still--much agitation in the name of "antitrust" or, more broadly, "antimonopoly."

Still, in my study, I had to place a limit somewhere.  And in writing my intro and conclusion, I had to justify those limits.  And I've chosen to do so along the "easy" reasons I cite above.  My point is, though, that there's no true limit to my study.  (However, I wouldn't be surprised if my committee insists that a "true enough" limit would be, say, 250 pages and not 582!)  I had to, in a sense, impose an arbitrary starting and stopping point.  I had to invent a "unit" of time--a period that scholars of U.S. antitrust usually call the "formative era" (c. 1890 to c. 1914) and the post-formative era of "associationalism" (1910s-1920s) and direct government regulation in the 1930s.  The obvious program for the latter is the temporary suspension of antitrust laws under the National Industrial Recovery Act of 1933, but I also consider later innovations to be just as important even though I focus on the Recovery Act (I'm referring, for example, to welfare-state programs, to the AAA, to the Wagner Act, and to the Robinson-Patman Act).

There are other limits that I have placed on my dissertation while writing it and that I have had to justify in my intro and conclusion.  One is, for lack of a better term, spatial.  I look specifically at what I call two "markets" for coal--Chicago and Toronto--and I define "market" as a site of regulation.  So, I look at how federal, state and provincial, and city and county regulations affect the way members of the coal industry (primarily coal retailer, but also sometimes operators, miners, wholesalers, and teamsters) compete(d) with each other.  Another limit is industry-specific:  the coal industry as opposed to industries that aren't the coal industry.

I won't go, here, into my justifications for looking at this industry or at those sites--or "markets"--as opposed to other industries or other markets.  Neither will I go into my conclusions about significance, other than to say I see a very disturbing tendency among the subjects I study to invoke antitrust in the service of exacting arbitrary punishments on people who are unpopular.  But my point is to note that I have had to place names and limits on what I have studied.

There is a certain mystery to historical study that cannot be fully grasped or elucidated.  I cannot "capture" the past in my study--all I can do, really, is study it and place limits on it, and analyze--or more accurately, offer suppositions about--the meaning of those limits.

To return to The Journey to the East, H.H., toward the end of the novel, finds that the great, mystical experience he has undergone--a journey to the east as a member of some inchoately defined "League"--has been narrated by at least two other persons in addition to him.  And although his story and the other two stories recount the same events, their constructions on the meaning of those events vary so widely as to call into question the whole enterprise of narrating the past at all.  H.H. reads these histories as part of a challenge offered to him by the "League" of which he had been a member and wished to rejoin.  He needs to consult the "League's" files about himself.  And what he finds is the gradual effacing of his own self into the image of the "League's" president, who, depending on how you are inclined to interpret Hesse's work, may indicate a Christ-figure or a Buddha/Enlightened One figure (or some other construct).  This is the loss of the ego, the surrender of all stories, back to the timeless and boundless and nameless.

And that, I think, is the true lesson we take from history.  It's a lesson in humility and demolition of the ego, of our attachedness to the ephemeral world and the fluid past.  I'm under few illusions that my dissertation is a great epic--it's one of scores, perhaps hundreds, to be finished in history this year alone, and it's one of thousands to have been written in history over the past decades.  And all that is assuming that my dissertation is passed by my committee, something about which I'm hopeful but also something I don't wish to assume too soon.  But it has been an exercise in finding and naming the nameless, and in reflecting it all back again to that which cannot be named.



*Hermann Hesse, The Journey to the East, trans. Hilda Rosner (1932; translated edition, New York:  The Noonday Press, 1956).

**Coal is still important because it can be burned in energy producing plants, which provide the energy to heat, or more frequently, to provide electricity to households.

Dodging the issue

When I was in 7th grade, our gym class played a game called "bombardment," or basically dodge ball.  As an elementary school student, I had loved dodge ball.  But in middle school two things were different.  First, the balls used were much harder (the ones in elementary school were softer, "nerf" variety, the ones in middle school were the inflatable hard rubber type....there's probably a better term here, but I don't know it).  Second, a certain proportion of the students were much, much taller and stronger because, well, puberty had happened.  They could throw those balls hard and it could hurt. 

I hated "bombardment."  And it hurt.  On at least one occasion (but admittedly probably only one), I was hit so hard in the chest that I had a hard time breathing afterward.  It wasn't a medical emergency and within seconds I was physically all right.  But I was really afraid.  Some of those balls came hurtling so fast, banging against some sort of metal heat register that created a booming sound when it was hit. 

In colder weather, when we couldn't have gym class outside, there was always a possibility that we would have to play bombardment.  Fridays, on inside days, were always reserved for bombardment while occasionally other days the gym teachers would "surprise" us with an unscheduled game.  I grew to the point where I hated Fridays and where I hated rainy days (which I otherwise loved....the dry Colorado weather sometimes can make rain a welcome thing).

Once, for some  holiday--I think it was before Christmas break, but it probably wasn't a Friday because it wasn't a scheduled "bombardment day"--one of the gym teachers talked about how in the spirit of the holidays, we had to give each other "gifts."  And the other teacher (we had two gym teachers), who was hidden in the ball room, started lobbing out the bombardment balls, and most of the other kids seemed to get really excited that they now got to play their favorite game.  I remember a sense of panic rising in me, almost to the point of wanting to cry.


At the end of the 7th grade year, we had to choose our electives for the 8th grade year.  Gym wasn't required for 8th grade like it was for 7th, so it was optional.  But we also had to have our parents sign off on our choice of electives.  And I thought that my mother--who constantly feared that I wasn't getting enough exercise or eating enough--would be angry if I didn't take gym.  So I put it on my schedule.  However, the electives were done through a ranking system.  We had to choose 8 electives and rank them based on preference.  I put gym at 7 or 8, hoping that would be enough for me to, err, dodge the gym obligation.

I worried much of the following summer about what my schedule would be.  The school would mail us our schedules in August.  When my schedule came, it had me down for a gym class.  I remember actually crying when I saw that.

This was one instance where I stood up for myself.  I actually walked to the middle school a week before classes started, and respectfully asked for the school to drop me from the gym class.  I didn't say why.  After enduring a lecture from the guidance counselor about how not everyone's preference could be satisfied, my schedule was changed. 

----------

Now, I hear that one school district in New Hampshire has banned dodge ball [this is a yahoo news link, so it probably has a short life] on the grounds that it can be a way for some kids to target and bully others.  Cameron Smith, in the linked to article, calls this move "the latest episode of an over-active school board making an overtly PC move."

The linked-to article has an embedded video from "NBC sports," in which the two hosts bemoan the move, too.  One of them, trying to play devil's advocate, says, "if you had a small weak kid...." and his colleague interrupts him, "First of all, I wouldn't."  But to more seriously answer the question, his colleague says such moves like the banning of dodge ball make her "cringe when I think of what kind of kids we're raising and what kind of adults we're going to end up having walking around."

The other host then calls it "the wussification of America" and says "it's a lot like the kids that get trophies for everyone."  He then adds that as much as he wanted to play devil's advocate, "I think dodge ball like a lot of things breeds character."

I don't have much to say about whether dodge ball is a vector for bullying.  Although the claim makes a certain amount of sense, I for one was never explicitly targeted.  I wasn't singled out.  In my case at least, as much as I hated it and feared it, it wasn't an instance of bullying.

But I find the dismissive attitude represented by Cameron Smith and these two NBS Sports peoples to be reprehensible.  It's not about "wussification."  It's about subjecting people to low-level physical battery and not giving them a real chance to opt out.  I for one was not particularly confident that I could go to either of my gym teachers and explain that I wanted to sit out the game.  Over the door to the locker room, they had a sign that said "No Wimps Allowed."  Neither was I confident that I talk to my parents, for reasons that I won't go into here. 

Now, maybe it did build character.  For example, it taught me to, or reinforced my tendency to, want to placate people who are stronger than I am, or to hide in the shadows in order to avoid loud and strong people while they rant and express their rage through their physical strength.  Who knows?  If enough people have to live through bombardment, then maybe they can grow up to write the great American novel, or become secretary of defense and oversee the invasion of a small country.

And--I mean this next point seriously--maybe it wouldn't have hurt me to take a few licks, to learn that getting hit a few times by balls that in reality left no lasting damage wasn't the end of the world.

But the choice should have been mine.  And it should have been meaningful, too, not one of those "okay, you opt out....here's your yellow pariah card you have to wear while the non-wimps play dodge ball" choices.

Again, I haven't much to say about the bullying aspect--although a link between dodge ball and bullying wouldn't surprise me--but I'm not going to criticize that school board for banning it.