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.

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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.

The Same Old Political Divide

I’m reading Michael Klarman’s book The Framer’s Coup, and it’s excellent. Everyone should read it.

Throughout the book, Klarman discusses the Constitution’s strong anti-populist bent. The framers were intent on insulating the central government from democratic influence as much as possible. They were constrained to include republican features not so much by their own liberal political philosophies as by the reality that their handiwork would eventually require popular ratification. Indeed, according to Klarman the Constitution lacked popular support among a number of constituencies in the United States, and ratification was won in a battle that was hardly fought on a level playing field.

Which constituencies got the short end of the stick? Klarman divides several axes along which opinion divided: urban/rural, creditor/debtor, East/West, and North/South. The Constitution, for the most part, had the support of the coastal elites who owned government securities. But farmers and others from more rural areas tended to oppose ratification.

The political divide that characterized the ratification debate is much like the one we have today. On the one side, you have the supporters of a stronger national government. They have strong support from the highly educated, from city-dwellers, and from those who live on the coasts more generally. The press is, by and large, on their side, as are the universities. They regard the views of their opponents as crude. And then you have those who are skeptical of the government. They mostly live outside of major cities and away from the coasts. They complain that the media is biased against them. They believe the other party is trying to make a behemoth out of the government in order to trample on their liberties.

If there’s anything that reading about the ratification of the Constitution can teach us, it’s that the divisions that characterize our politics today are hardly new. In some sense, Donald Trump and the rise of populist electoral politics in this country more generally are the result of a failure of one side to conciliate the other. The Framers knew that they needed at least some popular support, and they did everything they could to gain it for the Constitution. It’s not enough to be right about what policies are best. You need the consent of the people to rule effectively.

I sympathize strongly with the arguments of the Federalists. People can’t govern themselves, generally speaking. The common man knows nothing about economics, and if we put major national issues to a direct vote, then the consequences would be disastrous. All the same, even the best men can govern poorly. And if they do so without popular backing, then the backlash will be stronger than it would otherwise be. The elites can’t just claim power on the basis of their own knowledge or virtue. They need to persuade the people to give it to them voluntarily. Otherwise they’re in for a rude awakening.

Is it Offensive to Imitate Stephen Hawking?

http://www.telegraph.co.uk/education/2018/01/22/oxford-university-student-disciplined-attending-dress-degree/

A student at Oxford has gotten in trouble for dressing up as Stephen Hawking for a “dress as your degree” themed party. His degree was presumably in Physics, meaning that this student dressed up as Hawking because Hawking is the embodiment of Physics. If anything, this should be flattering, right?

Why is it offensive to dress up as Stephen Hawking? Because he is disabled. As far as I can tell, there’s no other reason. But this is a dumb reason. If one of your heroes is disabled and you want to dress up as him, then why should that offend people?

Everyone needs to chill.

Abortion and the Death Penalty

The March for Life takes place today. Every year since the Supreme Court’s decision in Roe v. Wade, thousands from across the country have gathered to voice their opposition to abortion and pro-abortion policies. The March for Life is the occasion for the above tweet, which implies that opposition to abortion and opposition to the death penalty should go hand in hand.

This view is wrong. It’s easy to be anti-abortion but pro-death penalty (at least in some cases), because the choice of an individual to kill an unborn child is obviously morally different from the choice of the state to kill someone who has been duly convicted of a heinous crime.

To be sure, this doesn’t mean that the death penalty is good policy. But reasonable people who affirm the sacredness of human life can still support it in some cases. Personally, I think the death penalty should almost never be imposed. The danger of executing an innocent person is great enough to warrant extreme restraint in imposing the death penalty.

Nevertheless, there are some crimes for which imposing the death penalty may be just. For example, what if someone kidnapped, raped, tortured, and killed several children? In such a case, I think it may even be an injustice to refrain from imposing the death penalty, provided that we are sure that the person being executed is guilty.

In Defense of Ekow Yankah

It’s not surprising that Ekow Yankah’s op-ed titled “Can My Children Be Friends With White People?” has generated some controversy. My initial reaction to the piece was a mixture of contempt and bewilderment. Some of the controversy is probably because of the provocative headline, which Yankah likely did not even write. But the content of the article is quite provocative, too:

As against our gauzy national hopes, I will teach my boys to have profound doubts that friendship with white people is possible. When they ask, I will teach my sons that their beautiful hue is a fault line. Spare me platitudes of how we are all the same on the inside. I first have to keep my boys safe, and so I will teach them before the world shows them this particular brand of rending, violent, often fatal betrayal.

As someone who is skeptical of the postmodern race cult that has gained so much visibility in recent years, I find myself put on the defensive when I read this paragraph. How could anyone teach his children not to trust people on the basis of their skin color? It seems like another one of those critical race theory novices claiming that all white people are racist, that “whiteness” is toxic.

As the title of this post suggests, I don’t think this is actually what Yankah is trying to say. I’m going to try to explain what I think his point is in a way that might be less provocative. Perhaps I won’t get it quite right. But I want to do my best to take what is helpful from what Yankah is saying and make it accessible to people who are put off by the apparent similarity between his op-ed and Tariq Nasheed’s Twitter feed.

I’ll start with what should be an uncontroversial claim: Americans are woefully under-educated about the history of institutionalized racism against African-American communities. We have attempted to rehabilitate the image of the Confederacy, despite the fact that it was founded specifically to protect the institution of slavery. We remember the Civil Rights Act of 1964, but we don’t remember the one that was passed nearly a century earlier and struck down by the Supreme Court, leading to the rise of Jim Crow. We point to the end of de jure segregation in public schools as a sign of racial progress, but forget that de facto segregation of public schools is often a direct result of systemic discrimination in housing. Racism has profoundly shaped the world we live in today, and we often do not see it.

And this, I think, is the crux of Yankah’s argument. The effects of racism are not always obvious. And white Americans have an interest in being oblivious to them. African-Americans should not assume that white Americans will want to understand the ways that racism has afflicted, and continues to afflict, our country. We have an interest in being blind that can only be overcome if we are intentional about loving our African-American neighbors as ourselves. Generally speaking, people are not very good at that.

What Yankah is not teaching his children is that white people are out to get them. That’s a Tariq Nasheed way to approach racism in America, and it’s stupid. Instead, Yankah is teaching his children to recognize that most white Americans, even if they’re not “racist,” will turn a blind eye to racism as long as it’s convenient for them to do so. And this is, tragically, true.

The more universal formulation of this principle, which is less likely to provoke objections from white people, is that people are willing to overlook injustice when it is expedient for them to do so. This is our sinful nature at work. It’s why people who weren’t particularly evil were able to administer the mass-execution of Jews during the Holocaust, it’s why as great a man as George Washington was able to own slaves, and it’s why the revolutionary power of the Reconstruction Amendments lay dormant for almost a century, effectively neutered by the Supreme Court, as conditions worsened for African-Americans in the Jim Crow South.

I think this is the most productive way to read Yankah’s op-ed. The takeaway for white Americans is that we really do need to listen to African-Americans. That doesn’t necessarily mean we need to agree with our African-American neighbors about every detail of every issue. But we can’t assume that we have all the facts right, especially when it comes to issues that we have an incentive to see a certain way, or an incentive not to see at all. Just because a certain instance of racism is not immediately apparent to me doesn’t mean that it isn’t real. For me to effectively love my neighbors as myself requires me to keep that in mind at all times.

Why Bother with an Op-Ed?

Laurence Tribe has an op-ed in the Washington Post arguing that the Supreme Court should strike down the death penalty as unconstitutional. His argument is that the death penalty “violates human dignity and constitutes cruel and unusual punishment.” I actually agree with him, in part, and I think that we should abolish the death penalty. However, the mechanism for doing so is through state legislatures or a constitutional amendment, not through the Supreme Court.

It’s odd to me that Tribe chooses to set forth his case in an op-ed at all, given that he obviously isn’t counting on ordinary legislative means to put an end to the death penalty in America. If all you need to do is convince the Court, then why care about convincing the public?

I suppose it makes some sense. If people continue to lose regard for the Supreme Court, viewing it as just another political branch of our government whose rulings are determined by the party that picks the judges, then trying to sway popular opinion is rational, as that will ultimately determine who sits on the Court. And of course, Tribe, like many other progressives, wants the Court to function as a policy-making instrument to advance progressive ends like the abolition of the death penalty, gay rights, and abortion.

But beyond that, if the Court oversteps its bounds too much, it will undermine its own legitimacy. It is the Constitution of the United States that created the Supreme Court and provided the Court with its judicial powers. If the Supreme Court flagrantly disregards the meaning of the Constitution, then it effectively saws off the branch on which it sits. As Justice Scalia said in his dissent in Obergefell v. Hodges:

With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

The Court cannot enforce its own judgments.  It can only go so far in reinterpreting the Constitution before someone will say “no.” Indeed, this is already happening on the fringes. Roy Moore, a former Alabama judge, was removed from his seat for disobeying a federal court order. He is now the Republican nominee for Alabama’s seat in the Senate.

I don’t like Roy Moore. I consider him and people who support him a threat to the rule of law in this country. But it’s unsurprising that figures like him would pop up, given the Supreme Court’s lawless advocacy of progressive causes. If the Court doesn’t start to hold itself back from resolving all the most controversial political issues on the basis of Anthony Kennedy’s moral philosophy, Moore will start to become mainstream, no matter how many op-eds Larry Tribe writes.