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    Secession and the Collective Will

    There is one objection to secession that I want to take a moment to disagree with. In class, a student suggested that secession was not legitimate for individual states, because they had decided to join together as one decision-making unit. Individual states no longer had individual decision-making power.

    Parsing votes for some sort of collective will is futile. I certainly never agreed to merge my sovereignty with the collective. I doubt many people have. If all the people of Massachusetts decide tomorrow that they don’t want to be part of our “decision making unit”, we certainly can’t say that they have decided to be part of the United States. If the rest of the United States voted against their secession, most people would say that “we” have decided against secession. I would say that there is no such thing as “we” that has a unified desire of its own. There would just be 49 states voting one way, and one state voting the other.

    What do the numbers matter? If the United States voted to annex Iraq, would that be legitimate? Our population can certainly outvote theirs. What if China voted to annex the United States? No one would argue that this is legitimate.

    If people never agreed to merge with the collective will, and there is no inherent legitimacy in numbers, the argument must be that within a democracy you can’t secede unless a majority agrees: that’s just how democracy works. Perhaps – but it isn’t necessarily how secession works. It is not obvious that a movement to break away from a government should be bound by the internal logic of that government.

    Of course, I’m hardly an advocate of democratic legitimacy, and most people’s moral intuitions are not in sync with mine on this issue.

  • Uncategorized

    Secession! Con Law Edition

    Wednesday in Con Law we discussed the legitimacy of the United States Constitution. The Constitution was adopted contrary to the explicit terms of the Articles of Confederation (the governing document of the United States of America at the time) – which prohibited the separate states from forming any league or treaty between themselves, and which required more votes for amendment than the Constitution required for ratification.

    Our professor asked, if people could ignore the Articles, why couldn’t they ignore the Constitution? Why couldn’t states choose to secede today? Was it ok for the southern states to attempt to secede? I argued that it wasn’t, because they were seceding to protect slavery. The professor suggested something to the effect that we should attempt to abstract from our contemporary moral judgments about slavery.

    I think this is exactly backwards. Like government, guns, and nuclear energy, secession has no inherent moral force that people can discern in a vacuum from what it’s used for. Seceding to keep millions in slavery was bad. Isn’t that obvious? The southern secession is an ugly blot on our nation’s history, and framing discussions of secession in its shadow obscures things. If you polled people about the secession of Ukraine from the USSR, southern Sudan from greater Sudan, East Timor from Indonesia, or Kosovo from Yugoslavia, they would probably support them. If you asked people about the hypothetical secessions of Quebec from Canada, Catalonia from Spain, Flanders from the Netherlands, Santa Cruz from Bolivia, Australia or Bermuda from the British Commonwealth, Taiwan from China, or the West Bank and Gaza from Israel, they would probably at least be indifferent.

    I doubt opinions about these secession movements have anything to do with the sublime legitimacy of the relevant governing charters. People would support these secessions because they think that they are good – that either their consequences are good or their intentions are just. These secessions protect some ethnic group, democracy, or local interests.  Or they just break up unobjectionable governments into smaller fragments. Given the list above, I would guess that secessions motivated by a desire to keep large numbers of people in literal slavery are in the minority.

    I have argued repeatedly (see herehere, and here) in favor of regulatory competition. The more choices people have about what sort of government they live in, and the easier it is to switch between those choices, then the better government will be. On net, I think that a bloodless secession probably adds to regulatory competition. So on net, I am likely to support secession movements.

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    Some Con Law Textbook Notes

    Learning lots of entertaining things from my Con Law book’s hurried history of the constitution’s roots.

    The Constitution has been “successful” and showed the “framers’ wisdom” (19).  The Articles of Confederation, by contrast, were a “failed federal government”.  The authors list as evidence an economic downturn, hyperinflation in state currencies, and fear of invasion by Great Britain (26).  I suppose it is true that the Articles failed as a government, but to me that failure could have been a success otherwise.  Certainly the Constitution failed to create a significantly federal government.

    There is a lot of incoherent discussion of sovereignty resting in “we the people” (21), and government resting upon the “consent of the governed”.  What does the book think that this might mean?  I realize that most people find reference to a collective’s “will” to be meaningful, but I don’t understand why.   Also, if the people are sovereign, why is the present generation bound by our grandparents (22)?  Aren’t we a sovereign people too?

    Our constitution supposedly mostly protects rights of individuals, not prerogatives of government (23).  In theory and text maybe… In reality?

    The text claims that Americans embraced Locke’s ideas of consent and the social contract.  I can’t disagree with that, though I wonder how coherent those ideas remained once Americans had embraced them.  Too much Locke the democratic supremacist, too little Locke the Natural Rights theorist?

    The book corroborates a claim I have heard before that the Constitution has some roots in George Washington’s frustration in commanding and paying for the Continental army (27).  Isn’t it typical of bureaucrats and politicians always to obsess over the last crisis?  I find it fitting that the Federal Government has its roots in George Washington’s ambitions for an American military empire.  Leviathan indeed.  Also, Washington’s support for the new Constitution was apparently crucial for its success.  We can blame Washington for the death of viable regulatory competition in North America – that’s why he’s my third least favorite president.

    Interestingly, it claims that Madison intended for the text, and not the drafters’ intentions or interpretations of it, to define the Constitution’s meaning.  This was supposedly one of the reasons that the drafters’ did not share notes on their debate (29).

  • Uncategorized

    Isn’t the Exclusionary Rule Logical?

    Covering Mapp v. Ohio, my Criminal Investigation class agonized today over the exclusionary rule.  The exclusionary rule prohibits police from using evidence in trial if they gathered it in an unreasonable search.  The Fourth Amendment clearly prohibits unreasonable searches, whatever those are, but it does not explicitly endorse the exclusionary rule.

    The Supreme Court and my class clearly felt that they had to strain to fit the exclusionary rule into the Fourth Amendment.  People hedged about necessity and justice, all, to my mind, unconvincingly.

    I don’t think the exclusionary rule is complicated.  To me it follows logically:

    Premise (Fourth Amendment): The government can’t conduct unreasonable searches.

    Premise (Due Process): The government has to convict you based on some investigation.

    Conclusion: The government can’t convict you based on investigations that relied on an unreasonable search.

    I don’t think there is any problem with the logical combination of the premises, and the second premise seems mostly reasonable.  The exclusionary rule follows logically from the Constitution.  The only problem is that the first premise is in fact false.  The government can conduct unreasonable searches.  It does them all the time – that’s why the court has to consider the exclusionary rule.  When courts enforce the exclusionary rule they aren’t distorting the Constitution: they are enforcing its logical consequences.  They are taking the Constitution seriously even though the police did not.

  • Immigration

    Conservative Immigration “Overlords”

    Bryan Caplan argues that conservatives believe the state is an all-powerful “overlord” channeling the will of the voters – but only when they talk about immigration. Chapman University Prof. John Eastman’s* WSJ Letter to the Editor gives a perfect example. Breeze past the body of his argument (he claims the 14th amendment does not grant birthright citizenship) to the conclusion:

    The Citizenship Clause actually codifies the Lockean view of government articulated in the Declaration of Independence, namely, that legitimate government is grounded in the consent of the governed. That philosophical principle rejects the old feudal notion that anyone born on the King’s soil is forever the subject of the King. Mutual consent is what makes citizens, not the illegal actions of those who try to demand it unilaterally.

    Eastman is referring to Locke’s “social contract”. A social contract is nearly the opposite of a contract. Contracts require that participants actually agree to bind themselves. The social contract, on the other hand, is binding whether or not you explicitly agree to it. A private party cannot force you into an actual contract by threat of violence – this would be duress. But if you do not wish to enter into the social contract, you must, supposedly, flee.

    Locke’s discussion of tacit and explicit consent leads everyone astray. It should not be taken seriously. Few people, citizen or immigrant, ever truly consent to an unconstrained leviathan. Participating in democracy is not consent, any more than a contract you were forced to enter against your will would be consensual, if you got to vote on some of its terms with 300 million other people afterward. Even the Pledge of Allegiance fails under traditional contract doctrine – there is no consideration (exchange) – unless it is loyalty in exchange for “liberty and justice for all”.

    Locke does not believe that the fictional social contract creates an omnipotent government. In order for the social contract to have a hint of legitimacy, it needs to represent at least what people would have agreed to willfully and without duress. Locke believes that people have a natural right to hold and use property free from the interference of others. Locke supposes that people would contract away (only) their individual right to protect their other rights, and only for the purpose of allowing the state to do so more efficiently. He explicitly and repeatedly insists that government acts illegitimately if it intentionally violates property rights.

    Any state that intentionally prohibits “landlords, grocers, and employers” (as Bryan Caplan puts it) from doing business with immigrants is violating their property rights. Immigration restrictions violate the moral conception of the social contract. The social contract that allows immigration restrictions is the one where citizens give up their rights. Not Locke’s social contract, but the Leviathan of Hobbes.

    * I assume John Eastman is a conservative because he takes the conservative line on immigration. Don’t dwell on the circularity.

  • Uncategorized

    Political Incentives of the Republican Party

    Matthew Yglesias disagrees with Paul Krugman that conservative and progressive political philosophies are irreconcilable:

    The strange thing is that so much of this furious opposition to activist government appears to be make-believe. The American Enterprise Institute did a poll of self-identified conservatives and found that “only 3 percent of respondents favored reforming Social Security and Medicare.” The 2010 elections put a lot of new conservative governors in office, and I’m guessing that exactly zero of them will abolish mandatory minimum parking requirements in their states. Nor do I expect to see Rep Frank Lewis slash farm subsidies.It’s a bit puzzling. The gap is really not just between conservatives and non-conservatives, but between conservatives’ self-image and the reality of their program. Paul Ryan, for example, can’t quite seem to decide if he wants to slow the growth of Medicare while maintaining a credible safety net for elderly Americans (in which case his “roadmap” proposal is the starting point of a discussion) or if he’s an Ayn Rand devotée who’s trying to liberate America from enslavement at the hands of the welfare state. Indeed, he doesn’t really even seem to see that these are different ideas!

    I don’t find it as puzzling as Yglesias does.  The political process has a specific set of incentives that will shape the career of all successful politicians.  In general, Politicians try to win voters and campaign funds by appealing to concrete, discernible interest groups: agriculture, the banks, the middle class, the elderly, unions, doctors.  Voters pursue their interests much more effectively by protecting their own particular entitlement than trying to simultaneously repeal all the other entitlements.  There is a political prisoner’s dilemma; the equilibrium of political incentives will always be very far from Republican small-government rhetoric.

    Conservative politicians succeed both by pandering to interest groups for votes (the elderly, for example, in the last election) and by wooing ideological conservative voters with small government-platitudes.  In other words, they succeed by pursuing incompatible principles.  Democrat voters, on the other hand, usually like rhetoric about extending additional government support to (certain) interest groups (e.g. the sick, the poor, the uninsured, teachers, doctors).  The only hard choices that Democratic politicians have to make is how hard to push for their priorities – and which come first.  A “small-government” politician needs to be a hypocrite to succeed.

  • Uncategorized

    More on the Fallacy of Inevitability

    For the fallacy see here.

    An American friend once told me that he wanted the United States to maximize its citizens’ utility. I asked, why just its citizens? Is there some moral reason to prefer Americans to foreigners?*  No, he said, but obviously Americans would never vote to maximize global utility. Fine, I said, but why don’t you want to?  Should we harvest African babies if it could increase American total utility?  No, he admitted, we should probably adopt some formula that maximized the sum of American utility and some fraction of non-American utility – perhaps 1/2).

    That struck me as odd for two reasons.  My friend was implying that foreigners counted for a fraction of the moral worth of Americans – which he did not believe.  And he was adopting a utility scale that a purely rational electorate would reject nearly as inevitably as it would reject a “global utility” formula.  He had adopted it as a hybrid between what he probably preferred – equal weighting of utility – and what he considered inevitable – national maximizing.  Given that he was capable of embracing an impossible principle, why didn’t he embrace the one he actually believed?

    I should probably apologize for ambushing my friend at an irrelevant tangent in our conversation.

    Sometimes the fallacy is blindingly obvious.  If you ask someone for their opinion on abortion, they will give it to you.  Suppose they are pro-life.  If you tell them that they should change their opinion, because the Supreme Court has decided the issue, they will shrug.  What does the Supreme Court’s opinion have to do with theirs?

    I suspect that many people who consistently commit the fallacy of inevitability have delusions of politics: they want to be President someday.  They are not eager to embrace obvious moral principles that are contrary to the interests of voters (like equal moral worth for foreigners).  So they pretend to support things that are inevitable.  This is one way that political incentives weed honest people out of politics.

    * Nothing in this post should be construed to suggest I advocate maximizing global utility.

  • Uncategorized

    Libertarians on Giffords Shooting

    A scan of my blogroll and Facebook feed suggests that most libertarians tend to agree with conservatives that the Giffords shooting does not have implications for the supposedly high pitch of contemporary partisan politics. See here, here, and here, for examples.

    Why is this? One simple explanation is that most libertarians are more sympathetic to the Republican party in general, and the Tea Party in particular. I suspect that most American libertarians come from the right. It is certainly true in my case.

    So it could just be partisan bias. A more sympathetic explanation is that libertarians are all strong individualists. Individualists tend to want to compartmentalize moral blame. They want to blame only the person who actually commits a bad act. To do more would question the self-responsibility of that bad actor and impinge on the autonomy of other actors. If you loan your roommate a copy of The Road to Serfdom and he bludgeons his congressman to death with it, neither you nor Hayek is responsible. Even if he got the idea from reading the book.  This is how I tend to see things.

    Progressives are more sympathetic to the notion of shared responsibility – which they sometimes refer to (in confusion, I think) as “personal responsibility”.  Viewed with at least a grain of determinism, it is not in fact true that humans have complete willful control over their own actions.  Human actors are influenced by their environment, including the actions of other humans.  If you give your friend alcohol and then he has an accident while driving home drunk from your house, perhaps you share some culpability?  But it is hard to engineer a solution to collective responsibility, even if it is real.

    Conservatives tend to share the individualistic outlook but I’m not sure how consistent they are. If a Muslim person committed a terrorist attack in the name of Islam, many conservatives would blame “Muslims” or at least “Islam”.  Would libertarians? Progressives would be less willing to assign collective responsibility to Islam.  Perhaps because they are used to thinking of government, not religion, as the relevant collective.  Or maybe because they are not a part of this particular collective?  Or perhaps they have a complicating commitment to cultural sensitivity.

  • Uncategorized

    Secession! Sudan Edition

    Apparently, voters in southern Sudan are expected to vote to secede from that country.

    All things being equal, I am a fan of secession.  More countries means more choices of regulatory regime for the world’s citizens.  When dissatisfied citizens have more alternatives to their native country, their native country has less leverage over them.  This means that countries have to compete to deliver the sort of regulatory regime that people actually want.  Conversely, large federal governments like the United States or the European Union act as collusive agreements that prevent regulatory competition between their constituent states.

    Some people object that it is difficult and expensive to leave your home country.  I agree!  If there were no migration costs, then one more country wouldn’t make much difference.  But because there are migration costs, having smaller countries reduces those costs, and allows more competition on the margin.  It costs less to leave a smaller country, if only because of the mileage.  I imagine that tiny countries like Singapore, Hong Kong, and Monaco face a lot of regulatory competition, relative to behemoths like the United States.

    Unfortunately, secession is often associated with civil war and ethnic violence.  Sudan has had both, and there is fear of more.  The benefits of regulatory competition have to be weighed against the costs of achieving it.  I advocate peaceful, not violent, secession.  But when secession has arrived, we should acknowledge its benefits.

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    Two Fallacies

    The Self-Centered Fallacy. The Fallacy of Inevitability.

    Can you think of better names for these fallacies? Do they already have names?

    People commit the self-centered fallacy when they believe some rule only because they think it would be useful for everyone else to believe that rule.  It is self centered because it implies a megalomaniac faith that your beliefs really have an important effect on everyone else’s beliefs.  Examples of the self-centered fallacy (these are examples, not statements of belief):

    • I believe it is bad to pick flowers in the park, because it would be bad if everyone else thought they could pick the flowers in the park.
    • I believe it is important to vote, because everyone else should believe it is important to vote.
    • I believe that it is immoral to violate the law, because it is important for everyone else to believe it is immoral to break the law.
    • I believe that people should give to charity, because it would be good if everyone believed they should give to charity.
    • I believe that the Constitution is a binding document, because I want everyone else to believe that it is a binding document.

    People commit the fallacy of inevitability when they believe something is good because it is inevitable.  This often manifests as an endorsement of the status quo.  Mickey Kaus recently confessed:

    I don’t favor policies that would hurt unskilled American workers even if they would help unskilled Latin American illegal immigrants…. I’m happy to acknowledge a commitment to moral nationalism. [Others have] a plausible but extreme and eccentric libertarian position that we have no moral obligation to help fellow nationals before we help everyone else on the planet, because [they view] borders as a “global system of socio-economic apartheid.” Well, OK. Let’s vote!

    I’ve insisted, on the contrary that:

    It may be inevitable for democratic processes to discount utilitarian gains to poor foreigners.  But there is no reason for any individual utilitarian thinker to adopt the utilitarian constraints of their nation’s politics.  Neither should a natural rights thinker accept the practical constraints of his political system as a moral constraint on natural rights.  Justice is justice, whether or not it is procedurally obtainable.

    When people insist that a law is good because it exists “everywhere”, or that the state is good because there is no alternative to it, they are committing the fallacy of inevitability.

    I think these fallacies are pretty important to common sense morality.  Here is a just-so evolutionary story to explain the psychological strength of these fallacies:

    In the evolutionary environment, we lived in small bands with few people.  A small minority of those few people had more authority than the rest.  It would be dangerous for the rest of the people to challenge the often inevitable power of the few people with more authority.  It would be useful for them to accept the moral claims of these few people.  Because people did in fact accept their moral claims, it was useful for the few people with authority to believe that their own moral beliefs affected the beliefs of everyone else.

    We no longer live in that environment.

    Update: Here is a list of some fallacies.  The self-centered fallacy is similar to the “Appeal to the Consequences of a Belief”.  I don’t see anything like the fallacy of inevitability.