Zero Tolerance

I’m not going to pretend to be an expert on this topic, but I’m going to lay out what appears to me to be true about the fiasco at the border.

First, illegal entry into the United States is a crime. If you enter the U.S. illegally, you can be prosecuted. If you are charged with illegal entry, you will be detained, and our law requires that adult criminal detainees be kept separate from children, which isn’t generally unreasonable.

(Note: not all people who enter the U.S. without authorization are entering illegally. Illegal entry requires that one either “(1) enter[] or attempt[] to enter the United States at any time or place other than as designated by immigration officers, or (2) elude[] examination or inspection by immigration officers, or (3) attempt[] to enter or obtain[] entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact.” In theory, one can show up at a designated port of entry at the right time and present oneself to immigration officials to request asylum. My understanding, however, is that CBP has been blocking asylum seekers from entering legally. So they’re entering illegally instead. It’s worth noting that the aforementioned CBP practice appears to violate immigration law.)

Second, not all crimes need to be prosecuted. Prosecutorial discretion, for better or for worse, is part of our system. This means that, in certain circumstances, prosecutors can decline to charge people who may have committed crimes. One of the ways that the executive branch of our government effects policy changes is by laying out enforcement priorities. Of course, it’s possible to go too far with this, to the point at which the executive is no longer faithfully executing the laws. But faithfully executing the laws can’t mean a 100% prosecution rate for all crimes, in part because that’s impossible to achieve.

Third, there are some really good reasons not to charge at least some illegal entrants with illegal entry. For example, it is presumably more expensive to conduct criminal proceedings (which must be before an actual Court) than to conduct civil deportation proceedings (which are held before Article II immigration judges). Moreover, it is presumably undesirable (unless you’re Jeff Sessions) to separate children from their families, especially when doing so makes the whole immigration process more chaotic and costly for everyone involved. What’s more, at least some of these entrants will attempt to claim asylum, and at least some of these claims will be meritorious, and prosecutions against them will fail. The economic and moral cost of charging every illegal entrant is sufficiently high that you can make a strong case against charging every illegal entrant.

Now, Sessions implemented this zero-tolerance policy because he has deemed it expedient to separate parents from children, as this will deter illegal entry. He has made the judgment that, in spite of the cost of prosecuting every illegal entrant, which includes the cost of figuring out how to hold parents and children in separate detainment facilities without losing track of where people are, is outweighed by the good of deterring illegal entry. And this deterrence is supposed to be achieved by separating families. You may have heard the moral principle that we ought not to do evil that good may follow. But that’s exactly what the government is doing. They are separating families in order to deter people from entering the country illegally.

Our immigration system is a mess. It’s way overloaded with pending asylum applications, and we don’t have sufficient facilities to hold everyone who has crossed the border while we process their claims. There isn’t a simple and humane solution for the overload our system is dealing with. Nevertheless, the existence of a serious problem does not justify the Trump administration’s use of the suffering of children as a deterrent and/or political bargaining chip. This policy is evil and it should be changed.

 

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Trump’s DOJ and the ACA

You may have heard that the Trump DOJ is not going to defend Obamacare in court, and the administration lawyers have adopted the position that the law is unconstitutional. You may also have heard that this is an egregious breach of longstanding norms. The government is supposed to defend its laws, after all! Just remember that the Obama administration declined to defend the Defense of Marriage Act, so it’s not like the Trump administration’s decision is without precedent.

Indeed, it’s sometimes a good thing when presidential administrations take the requirements of the Constitution seriously enough to defy Congress. Not all laws passed by Congress accord with the Constitution, and having an independent executive is a useful check on Congress’s power in much the same way that having an independent judiciary is. We have three co-equal branches of government, and the Constitution is supreme above each of them.

Nevertheless, the Trump administration’s argument is bad. It’s not bad because they believe the individual mandate is unconstitutional and aren’t defending it, however, but because they are arguing that the individual mandate’s legal invalidity requires the judiciary to “strike down” other provisions of Obamacare, namely, the Guaranteed-Issue and Community-Rating requirements. These two requirements ensure that people with pre-existing conditions cannot be denied coverage or charged more than people without such conditions, all else equal.

The argument is based on the idea that the aforementioned requirements just don’t work without the individual mandate. This very well may be true. Insurance companies just can’t afford to insure sick people at a low price if healthy people don’t also buy insurance. That’s how insurance works. Get rid of the individual mandate and there just won’t be enough people paying for insurance without using it for insurance companies to make money.

The problem with this is that the way we think about courts and how they “strike down” laws is wrong. Courts don’t just decide whether laws are unconstitutional. They provide legal remedies for concrete injuries according to law, and this sometimes requires them to determine the constitutionality of statutes. For example, the individual mandate as originally written would injure me by requiring me to pay a penalty if I chose not to buy insurance. This is an injury that I can sue the government over. If the law is valid, then the government can use that as a defense against my lawsuit and prevent me from obtaining a remedy. But if it turns out that the law is unconstitutional, then the Court can command the government not to enforce the law against me, thus protecting me from injury.

However, this only applies to the part of the law that would actually injure me. In fact, it doesn’t technically apply to the law at all, but to the executive’s actions. Even if the Court tells the government not to enforce the law at all, the law remains law and stays on the books until Congress repeals it. The Court does not have the power to modify the law; it can only protect individuals from injury by enjoining the law’s enforcement. Because the Guaranteed-Issue and Community-Rating requirements do not unlawfully injure any parties before the Court, the judiciary does not have the power to do what the Trump administration is asking, i.e., invalidate the provisions.

The strangest thing about the whole situation is that Congress has already repealed the “tax”/penalty associated with the individual mandate, meaning that no one is injured by that particular provision anymore. The states that are suing are basically saying that they are being injured because the law doesn’t work and it is nevertheless being imposed on them. But just because a law doesn’t work very well doesn’t mean it’s unconstitutional, and the injury alleged is not exactly concrete and particularized. You can tell the injury isn’t particularized because there doesn’t seem to be a narrowly tailored remedy available (the plaintiffs request an injunction that basically forbids any enforcement of any provision of the ACA).

When you have a huge, complex law like the ACA, and one of the key provisions is unconstitutional, the proper course for the courts is not to sweep away the whole thing (or even to enjoin enforcement of the whole thing). They simply don’t have that power. All they can do is enjoin the enforcement of the unconstitutional provision as to the parties before the court. Then, if that provision is truly central to the functioning of the law, then the law will fall apart, and Congress will have to repeal it or modify it if they have any sense in them. Of course, that’s a big “if.” We’ll probably be stuck with this hacked-together healthcare disaster for a while.

Women’s Healthcare

Lately I’ve been thinking a lot about the morality of contraception, which led me to a podcast called The Catholic Feminist. I am not a Roman Catholic, nor do I consider myself a feminist, but so far I have found the podcast helpful. In particular, an episode titled “Women’s Healthcare and Natural Family Planning” has provoked some reflection.

The episode’s host, Claire, and her guest, Leah, both agree that it is a shame that “women’s healthcare” has become so thoroughly identified with the prescription of contraception and the availability of abortion. In essence, our current understanding of women’s healthcare is primarily concerned with inhibiting the one of the primary natural functions of women’s bodiesbearing children.

What is the source of this belief? Why on earth would we consider self-induced infertility to be an essential form of healthcare?

I trace it back to the liberal redefinition of the person as an autonomous utility-maximizer. Persons exist to pursue their own pleasure, which will result in the attainment of the greatest good for the greatest number, or so it goes. If this is the fundamental nature of what human beings are, then everything else should yield, even if that includes our bodies.

Men’s bodies don’t put up a fight to this redefinition in the same way that women’s bodies do.  We don’t bear children, nor do our bodies have to regularly prepare themselves to bear children. This makes it easier for us to think of ourselves as autonomous utility-maximizers instead of persons embedded in networks of duties and obligations oriented toward the common good. In order to make the same transition for women, however, we have had to suppress their bodies’ natural functions.

In the podcast, Leah goes so far as to call this misogyny, which sounds right. We now believe that women need to artificially inhibit the natural function of their bodies in order to achieve their fullest potential. In other words, women must effectively deny a part of who they are in order to be persons (e.g. autonomous utility-maximizers). If we’re serious about affirming the dignity of women (and men, for that matter), then we have to reject this faulty understanding of what it means to be a person.

Owen Strachan and Gay Identity

When you hear “Gay Christianity,” you might assume that the phrase refers to Christians who reject the church’s historic teaching on sexuality, in particular the part about sex being reserved for opposite-sex unions. However, there are many Christians who, while affirming the church’s historic teaching on sex, want to work harder to accommodate members of the LGBT community. Revoice is a conference for Christians seeking ways to help the church to better love LGBT people while also maintaining its teaching on sexual ethics.

Owen Strachan has written an article that mischaracterizes both the Revoice conference and the general move towards affirming LGBT people that some Christians are making. Some of his concerns are understandable, particularly if “affirming LGBT identities” means claiming that same-sex attraction is part of God’s design or that sexual orientation is a fundamental feature of one’s identity. But I don’t think that’s what the folks at Revoice are up to.

Strachan refers to just a few items from the Revoice website to make his point that the conference is “biblically unfaithful and fundamentally unsound”:

One presenter will speak on how “queer treasure, honor, and glory” will be brought into the New Jerusalem; another presenter identifies as “bisexual” and is “actively involved” in the Chicago “LGBTQ community”; a third key participant argues that “Simply experiencing attraction to the same sex (or being gay) is not in itself a morally culpable sin.”

The first example is a simple mischaracterization that I hope is the result of careless reading. Here is the summary of the session that Strachan quotes from:

REDEEMING QUEER CULTURE: AN ADVENTURE

Presenter: Grant Hartley

For the sexual minority seeking to submit his or her life fully to Christ and to the historic Christian sexual ethic, queer culture presents a bit of a dilemma; rather than combing through and analyzing to find which parts are to be rejected, to be redeemed, or to be received with joy (Acts 17:16-34), Christians have often discarded the virtues of queer culture along with the vices, which leaves culturally connected Christian sexual minorities torn between two cultures, two histories, and two communities. So questions that have until now been largely unanswered remain: what does queer culture (and specifically, queer literature and theory) have to offer us who follow Christ? What queer treasure, honor, and glory will be brought into the New Jerusalem at the end of time (Revelation 21:24-26)?

Strachan writes: “There will be nothing unholy in the celestial city, nothing sinful that will be brought to the worship of the crucified and resurrected Lord of the church.” Need this claim from Strachan contradict what is written in the above summary? Only if you make an unwarranted assumption about what exactly “queer culture” is. Strachan seems to think that “queer culture” must be characterized by an acceptance of homosexual activity or something similar. But “queer culture” is just the culture that is born from the experience of LGBT people (or people who experience same-sex attraction/gender dysphoria). The boundaries aren’t rigidly fixed, but any cultural artifact that either was created by an LGBT person or portrays LGBT people sympathetically would probably fall under the “queer culture” umbrella. Are we to believe that all of this is “sinful” and “unholy”?

The second example demonstrates that Strachan holds some assumptions about what it means to identify as LGBT. He seems to think that saying, “I am gay,” is equivalent to saying, “experiencing homosexual desire is fundamental to who I am as a person.” It’s certainly possible that many people mean that, even self-identified LGBT Christians. However, it’s also reasonable to interpret “I am gay” as shorthand for “same-sex attraction is a significant component of my lived experience that has shaped my view of the world.” Likewise, people with anorexia might say “I’m anorexic” without implying that anorexia is somehow fundamental to who they are as people.

LGBT Christians need some way to communicate their experience and how it has shaped them, and the alternatives to saying “I’m gay” or “I’m transgender” are clunky enough that I find it entirely understandable if people don’t want to use them. “I experience same-sex attraction,” or “As a Christian who struggles with same-sex attraction…” vs. “I’m gay,” or “As a gay Christian…” etc. Identifying as gay is not the same as saying “being gay is who I am.”

With the third example, Strachan is making a point that has only tangential relevance to whether Revoice is “fundamentally unsound.” He writes: “I can note that a fellow man is good-looking, but if I am attracted to him (even for an instant), I am sinning, and I should instantaneously confess my sin to God, repent of it, and seek in the fullest possible extent to build in ways of preventing said sin in the future.” I am inclined to think it would be more precise to say that the hypothetical attraction would be sinful. But would he really be sinning?

I don’t know. Maybe. But in any case this disagreement about whether experiencing a sinful desire is a way of sinning isn’t limited to situations that involve same-sex attraction. And if the conference speaker is wrong, it would be wrong to blame this belief on “gay Christianity.” The belief that experiencing a desire to sin is not a form of sin itself is not the result of wanting to affirm LGBT identities, but of trying to deal with the fact that we do not always choose to experience sinful desires. Obviously, we’re culpable for giving into them, but for experiencing them? Something about that seems intuitively wrong. Perhaps my intuition is incorrect, but that’s not because it’s trying to justify homosexuality.

I think Strachan’s whole article stems from a misunderstanding about what Revoice is up to. He seems to think they’re highly concerned with affirming LGBT identities, when in fact they’re concerned with the understanding the experience out of which such identities are born. Whereas Strachan writes repeatedly about LGBT identity, sinful identity, etc., the word “identity” doesn’t even show up on Revoice’s page. You can go check for yourself.

Perhaps we need better language to distinguish between identity and experience. There are things about me that have heavily shaped my experience that are not fundamental to who I am as a person, even though the experiences that have resulted from them are foundational to how I view the world. For instance, I struggle with depression. The experience of depression has helped to make me who I am, but it is not who I am. Likewise, the experience of being LGBT undoubtedly shapes people at the deepest level, even though LGBT-ness itself isn’t fundamental to their identity. Revoice is not affirming LGBT-ness as an identity; rather, they are affirming the identities of people who are united by the common experience of living as LGBT persons. If the church cannot recognize that distinction, then it will fail to adequately care for LGBT people.

Courts Don’t Strike Down Laws

I recently read an excellent article titled “The Writ-of-Erasure Fallacy,” by Jonathan Mitchell. It is long, and laypeople might have a difficult time wading through it. But the key point is extremely important, and it is something that everyone should know. In short: courts don’t strike down laws.

This might come as a surprise, because many people think that this is precisely what courts do. They interpret the Constitution and strike down any laws that they take to violate it. After all, how could a law continue to be a law after the Court has declared that it violates the Constitution?

Mitchell’s article explains how. In order to understand his thesis, however, one must understand what it really is that courts in our legal system do.

Courts resolve cases and controversies. In order to resolve cases and controversies, judges must look to the law to determine what right has been violated and whether a remedy exists for the violation. When appellate judges (such as the justices of the Supreme Court) decide cases, they create precedent which binds lower courts. For example, if the Supreme Court interprets a statute to resolve a particular case in a certain way, then all lower courts will be bound to resolve similar cases in a similar way.

Sometimes, courts have to determine whether a statute is constitutional. After all, if a statute violates the Constitution, then it would be unlawful for a court to apply it to resolve a dispute. Suppose, then the Supreme Court resolves a case, holding a statute unconstitutional in the process. Lower courts would then be bound not to apply the statute.

The statute, nevertheless, remains a statute.

I’m Sick of Protest Culture

The walkout today has me thinking about protest and its pros and cons. Obviously, protest can be a good way to effect social change. But it can also be a way for young, narcissistic idealists to peacock before their peers. Encouraging this sort of peacocking is bad, because encouragement is the last thing narcissists need. At the same time, we don’t want to just be complacent. There are things about the world that suck, and we might be able to do something about it.

The ideological war of the past couple years has made it hard for me to regard protest positively. My knee-jerk reaction when I hear about protests is to cynically dismiss them as virtue-signaling. Sometimes this reaction may be correct, but it often is not. In any case, even when people protest on behalf of causes that I agree with, I find myself trying to distance myself from them psychologically. I’m hypercritical of everything they do and say. I hate that I’m like this now.

I want to stop gun violence. But when I hear about students protesting against it, my first thought isn’t “Wow! That’s great!” but “They are being used as pawns.” Which makes me sad, because I would much rather see these protests as a sign that young people are participating in the life of the polis, and that they actually care about politics.

In short, I’m torn. There are things we need to change. This is beyond doubt. It’s a good thing that people care about criminal justice reform, police accountability, racism, and mass shootings. But too often, I feel that these protests end up being a form of political theatre, serving to boost the self-esteem of the participants instead of to persuade or challenge their fellow citizens. It’s not enough to “send a message” or to “let your voice be heard,” you actually need to say something that might convince others to join you. And in order to do that, you need to know what you’re talking about.

In other words, effective protest is more than just venting. It’s not enough just to have a protest. Protests need to persuade. Effective persuasion on the part of protesters requires learning, which, in turn, requires time and humility. Or it will require relinquishing physical safety, as it did the civil rights protesters who endured beatings at the hands of the police in southern cities. When protesters learn about the issues they’re protesting and are prepared to sacrifice something on behalf of their communities, they show themselves to be good, engaged citizens. But you don’t need to be a good citizen to vent, even if you’re venting alongside hundreds or thousands of your peers.

I’ll keep thinking about this. Even as I’ve written, my thoughts have evolved. Maybe I’ll figure out what I think and write something in a few days.

2 Capitalisms

I generally don’t like the word “capitalism.” This is because, in my mind, capitalism isn’t an “ism.” That is, it’s not an ideology or even really a system, but the absence thereof. People who criticize capitalism generally aren’t criticizing freedom or markets, but an ideology which holds that humans are individual self-interested actors who seek to maximize benefits to themselves, and that we should not stop them from doing so in almost any circumstance.

This criticism is spot-on. Insofar as capitalism is an ideology that exalts self-interest and profit-seeking, it should be rejected. Freedom of choice and markets should not be thought of as means of maximizing the ability of individuals to pursue their self-interest, but as advancing some other sort of more substantive good. And insofar as these things hinder, rather than promote, that good, they should be modified or replaced with something else, albeit cautiously.

So there’s ideological capitalism and there’s instrumental capitalism. You can believe that free markets and profit-maximization are desirable in themselves, in which case you’re an ideological capitalist. Or you can believe that free markets, as a general rule, are the best way to promote the common good, in which case you’re an instrumental capitalist. The first position is indefensible and incompatible with even considering the merits of a non-capitalist economic system. The second is reasonable in some circumstances, although it might not be in others. We can have more capitalism or less capitalism if we’re instrumental capitalists. If we’re ideological capitalists, we either have it or we don’t.

It seems to me that markets are a highly effective way to advance the common good, provided that people acting within them are not profit-maximizing robots. The problem is that as ideological capitalism has become ascendant, people have more and more closely resembled such robots. Fewer people are asking whether creating a new technology or financial instrument would be desirable for society at large. Instead, they just ask if it will make them money in the short run. Often, it will. Hence the 2008 financial crisis. Hence the creation of addictive technologies that take all of our data so that Google can sell it to the highest bidder. Hence political commentators who spew lies and sensationalism at every opportunity.

Markets in themselves do not cause these problems. People, acting freely within markets, do. The question, therefore, isn’t whether markets are good or not, but whether we can change people’s behavior within markets. I think we can, but it’s unclear exactly how. And the task of reforming the human heart is far more daunting than that of reforming the structures in which we live our daily lives.

Why You Should Learn to Read Court Opinions

Supreme Court Rules Immigrants Can Be Detained Indefinitely

Wow! How concerning! I’m going to post on social media about how outrageous it is that the highest court in the land is so hostile to immigrant rights! I haven’t read the opinion or anything like that, but I did read this article. The whole article. Not just the headline. Surely this means I’m prepared to comment intelligently on the Supreme Court’s ruling.

Unfortunately, it does not. The headline above is a blatant mischaracterization of what the Court actually ruled. Assuming the person who wrote the story is somewhat competent at reading legal opinions, the headline probably qualifies as a lie. But I’m more prepared to assume incompetence than malice. Reading legal documents is hard, and even very smart people tend to be bad at it. Especially when they have ideological axes to grind, which tend to make it harder to read a legal document dispassionately.

The lesson here is that you should take everything you read and hear about legal developments with a grain of salt. Law is complicated, and most people don’t understand it. Incompetent journalists are shielded from criticism because there are relatively few people willing and able to criticize them for botching stories on legal subjects. The best way to be informed is to actually read the legal opinions so that you know what’s in them. Otherwise you’re at the mercy of journalists who may have no clue what they’re talking about.

To demonstrate that the headline above is wrong, I will show you some key parts of the relevant legal opinion.

Here is a summary, which comes at the beginning of the opinion:

JUSTICE ALITO delivered the opinion of the Court, except as to Part II, concluding that §§1225(b), 1226(a), and 1226(c) do not give detained aliens the right to periodic bond hearings during the course of their detention. The Ninth Circuit misapplied the canon of constitutional avoidance in holding otherwise. Pp. 12–31.

Note that this does not say that detained aliens do not have the right to periodic bond hearings. It merely says that Sections 1225(b), 1226(a), and 1226(c) do not give them such a right. There’s an important difference. Some rights are conferred by the Constitution, some by statute. This right, while clearly not conferred by the statute (as Justice Alito demonstrates), may very well be conferred by the Constitution. That question was not decided.

Because the Court of Appeals erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to
consider respondents’ constitutional arguments on their merits. Consistent with our role as “a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), we do not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them in the first instance.

Here Alito explicitly says that the court has not ruled on whether periodic bond hearings are required under our law. While the statutes do not require such hearings, the Constitution may, and Alito instructs the Ninth Circuit to consider the constitutional question. It’s unclear what will happen in subsequent litigation, but the Court has made no substantive changes to our law that will adversely affect immigrant detainees. All they have done is reiterated that courts can’t rewrite statutes in order to avoid answering constitutional questions.

There’s a lot more to the opinion, but you only really need to read the previous paragraph to see that the headline at the beginning of this post is indefensible. This holds as a general rule: you don’t need to read much of an opinion to figure out what the holding is. So make sure when you read about an outrageous court ruling that the ruling is actually outrageous. Often, you will find that it has been blown out of proportion. When cases implicate hot-button issues, it’s understandable that many focus only on who “won” or “lost” while ignoring what the Court actually decided. Understandable, but not excusable. Don’t do it. Read the opinions.

Whose Government? Which State?

Liberals want more government and conservatives want less. This isn’t really an accurate characterization of the divide between liberals and conservatives, but it’s what most people tend to think of when they think of the left/right divide. Patrick Deneen argues in his excellent new book, Why Liberalism Failed, that both liberals (i.e. left/progressive liberals) and conservatives (i.e. right/classical liberals), favor vesting colossal powers in the state so that it can protect individual rights. Progressives want to permit the state to restrict hateful speech to protect the feelings of minorities, and conservatives want to use the power of the state to extend the free market as much as possible so that we can consume more goods and services to satisfy our needs and wants.

But then there are people who want to give the government the power, not to secure individual freedom (whether from economic or social constraints), but to promote the common good. Elizabeth Bruenig’s column in the Washington Post, combined with her comments that followed it on Twitter, is a good example. Bruenig supports state-funded paid family leave for the purpose of supporting families, rather than the system backed by Marco Rubio, in which the cost of supporting a family would remain on the parent(s), albeit shifted years into the future.

I found an interesting response to this position on Twitter:

This is true, if somewhat beside the point that Bruenig was making at that particular moment. (Her point was that child rearing is a collective concern, and not merely an individual one.) But what I found interesting about this exchange is that it was unclear exactly what was meant by the “state” or “government.” Important public policy questions cannot be boiled down to “more government” versus “less government,” as government can take many different forms, some of which are better suited to pursuing certain ends than others. We do not have to choose between an expansive federal nanny state and individual autonomy. Indeed, these two things often come as a bundle, as Deneen notes in his book.

Instead, we ought to consider what other kinds of government might be better suited to promoting the collective interest that communities have in ensuring that children are raised well. The answer is contained in the question, if the question is posed properly. Communities have an interest in raising their children well, so self-governing communities should promote and protect that interest, which is a key component of their common good. We don’t need to rely on an impersonal, relatively unaccountable governmental entity that does little more than dispense cash to promote the good of families. In a properly constituted community, individual members work together to secure the common good, even if that means sacrificing some of their autonomy.

The solution proposed by Bruenig thus treats the symptoms, rather than the disease. If we have strong communities who are willing and able to govern themselves in such a way that promotes the good of the families that constitute them, then we will not need a distant federal government to tax and spend to support the welfare of families. Federally mandated paid family leave is a quick, short-term fix that might even make things worse in the long run by removing the incentive for communities to govern themselves in pursuit of their common good. The need for devotion to the good of a particular community would be annihilated because of the promise of the bureaucracy to provide financial security to all, regardless of their situation.

Yet Bruenig is correct in maintaining that child rearing is a collective concern, rather than merely an individual one. If I am truly a member of a community, then I will care about the well-being of other members of that community—how they raise their children, whether they have enough financial resources to support their family, etc. And a true community is governed by norms that effectively require members to actively pursue the common good. For example, the federal government need not require me to provide financial help to my parents should they ever need it. Doing so is my moral obligation as their son, even though it is not my legal obligation.

So Bruenig and her critics on Twitter are wrong for the same reason: they assume that an acknowledgement of a collective concern requires the empowerment of a centralized state to deal with that concern. This assumption that the only way to treat the common good as truly common is by harnessing the power of the Leviathan is one of the deadly symptoms of liberal ideology. Neither the autonomous individual nor the distant, centralized state is well-equipped to pursue the common good. Fortunately, we have an alternative, genuine self-government by well-constituted communities.

Solution for Gerrymandering

Unlike some, I don’t think gerrymandering is necessarily a problem. This paper explains why. Party affiliation isn’t an immutable characteristic, and the political goals of parties can change. As a result, the anti-democratic effects of partisan gerrymandering can be avoided, provided that voters are willing to vote for different parties and that parties are willing to change their platforms to appeal to different voters.

Obviously, these conditions don’t always obtain. Voters might be very loyal to their respective parties. Or parties might be unwilling to compromise on issues for ideological reasons. In these cases, partisan gerrymandering will have anti-democratic effects. And while I’m not the biggest fan of democracy, I prefer majority rule to minority rule, all things equal.

So I’ve been thinking about how we might solve the problem of partisan gerrymandering. Judicial remedies are unlikely to be satisfactory, for a variety of reasons. First, I’m not convinced that the judicial power furnishes a remedy for partisan gerrymandering cases in principle. If a court declares a map illegal and none of the actors who are authorized to draw a new map elect to do so, then what else is there to do? Is the court going to hold a state legislature in contempt for failing to draw a satisfactory map? Fine the state until they acquiesce? Or maybe the court will just draw its own map, notwithstanding the provision in the Constitution that empowers Congress, and not the federal courts, to revise federal election regulations. Maybe that could work, at least to some degree. But do we really want to allow unelected officials with life tenure to regulate federal elections based on a highly dubious interpretation of the Equal Protection Clause? I, for one, do not.

Second, even if it is possible in theory for judges to adjudicate partisan gerrymandering claims, finding a manageable standard has proved darn near impossible. There are simply too many factors to take into consideration, making it extremely hard to determine what district lines are “illegitimate.” Third, the proposed standards that have the most promise, such as the “Efficiency Gap” analysis, would have a tendency to further entrench the two party system that we have (because they treat party alignment as more fundamental than it actually is), making it even harder for voters whose preferences don’t align with the platforms of either party to achieve their political goals.

Instead, I favor a different solution. It would have to be passed by Congress or written into the Constitution via amendment. Obviously, these constraints would make it difficult to implement, but I can dream.

Rather than trying to determine what sorts of districts are “fair,” let’s just get rid of districts. All elections for federal office will be at-large. Instead of voting for candidates, voters within a state will pick their desired party, which will offer a list of candidates for office before the election. A state’s seats in the House will be allocated proportionally between the parties. This could also work for Presidential Electors.

This system has several virtues. First, it would eliminate the possibility of gerrymandering, because there would no longer be any districts. Second, this system of at-large proportional representation would make it easier for new political parties to win seats, as they would only need a minimum amount of support statewide, rather than majority support in any given district. Third, if adopted as the method of selecting presidential electors, the system could help to restore the function of the electoral college as a deliberative body.

As it stands now, presidential electors don’t have much agency in the process of picking the president, notwithstanding the fact that this is their job. Instead, they are bound, sometimes by state law, to vote for the candidate who won the popular vote in their state, with a few exceptions. This defeats the purpose of the electoral college, which is to be a body that deliberates over who ought to be president and then selects a candidate.

The current state of affairs could be changed if we adopted the voting system described above for presidential electors. It would still be expected that electors from the major parties would vote for their party’s candidates. However, smaller parties, who might not even be able to field a presidential candidate, would still be able to exert influence on the deliberation and eventual vote of the electoral college if they secured even a small number of electors. And the multiplicity of interests and views represented in the electoral college would make it harder for ideologically extreme candidates from either party to win.

Of course, it’s unlikely that this sort of change will come to pass, at least any time soon. Both parties in our government benefit from their continued entrenchment, and would therefore resist any attempt to make it easier for third parties to win seats in the government. And while individual states could adopt these rules for their elections, the legislatures are unlikely to do so, given that ruling parties likely stand to lose by enacting them. Still interesting to think about. Maybe someday we’ll get to a point where something like this will be politically feasible.