For your viewing pleasure:
Police don't make the laws. Legislators do, at the request of constituents. Constituents therefore bear responsibility for the thuggish displays that arise as a direct consequence of their petitions for redress of injury.
A pair of little girls selling lemonade should occupy the top tier of what can rightly be considered euvoluntary exchange. The relentless quest for prior restraint cannot.
Showing posts with label equal protection. Show all posts
Showing posts with label equal protection. Show all posts
Thursday, June 11, 2015
Monday, January 5, 2015
Disrupt Cruelty
You will die.
You will die and your remains will wither to rejoin the earth and the air.
You will die and from the elements you shrug off new life shall arise. Life is fleeting, death is eternal. Because of this, men and women of good conscience treasure the brief gift that is a life well-lived. Because of this, men and women of good conscience inflict no pain, wreak no suffering without just cause. Because of this, because everyone dies alone, humanity has adopted expensive, enduring institutions, occasionally profane, but mostly sacred around the inescapable clutch of the grave.
Does the logic of prohibition apply to animal testing? Recall that by banning alcohol, rum-running hooch-slingers contributed to a gangland culture that gave us such niceties as denatured alcohol and the Saint Valentine's Day Massacre. The War on Drugs gave us massive, powerful cartels. And the ongoing offensive against sex work is, well, offensive. But what would happen if governments up and banned live animal testing altogether? It seems rather unlikely that black markets in test monkeys would arise.
In cases like this, I return to my old habit of considering the underlying exchange. With alcohol, the best evidence indicates that with sufficient treatment, subjects obtain classical symptoms of drunkenness. Similarly, a dose of LSD will expose the glowing heart of the hidden universe. The thing itself, the drug, the treatment is just a technology to obtain an effect. With drugs, I think that the opprobrium is against the effect, as the technology is otherwise unobjectionable. With animal testing however, the ends are generally valuable enough to tolerate the abrogation of the tug of the conscience that stubbornly insists on mercy.
In EE terms, the BATNA of animal testing is delayed or eliminated drug tests, constipated disease research, and a halt to cosmetics innovation. I'll take the bold stance that if it means fluffy little bunnies don't have to suffer to produce a new shade of blush indistinguishable from the enormous palette already available, this is probably not a welfare-destroying choice (assuming animals contribute to the social welfare function, which I admit is a contentious claim). But curing (infectious) disease is as close to a pure public good as I can easily imagine.
Wouldn't it be just great if we could get the wonderful benefits of animal testing without having to inflict torture in the name of testing? I think it would.
Unfortunately, the Dickey-Wicker Amendment boilerplate in every spending bill since 1995 restricts the use of federal funding for human embryos in research. The moral intuitions there are interesting. I suspect it engages Jon Haidt's disgust moral dimension, which means that the alternatives of either animal testing or marginally slower research are likely to stick around.
Of course, people are clever. When we told them they have to pay fruit pickers higher wages, farmers made better, faster machines to do that work. When we told them they couldn't put CFCs in cannisters anymore, hairspray makers switched to finger pumps. Now that we're telling them to hike the pay of fast food clerks, burger slingers are taking the path of the banks in their switch from meat-and-bone tellers to ATMs by automating the ordering process. To borrow a classic Jeff Goldblumism, commerce... uh, commerce finds a way.
Consider the possibility that if instead of incinerating culled embryos, they could be donated to federally-funded research facilities that they might use the insights gleaned to work towards a more cruelty- and morally-objectionable-free research environment. End Dickey-Wicker now.
But don't be too shocked when it doesn't happen. Legislation is notoriously hard to repeal.
You will die and your remains will wither to rejoin the earth and the air.
You will die and from the elements you shrug off new life shall arise. Life is fleeting, death is eternal. Because of this, men and women of good conscience treasure the brief gift that is a life well-lived. Because of this, men and women of good conscience inflict no pain, wreak no suffering without just cause. Because of this, because everyone dies alone, humanity has adopted expensive, enduring institutions, occasionally profane, but mostly sacred around the inescapable clutch of the grave.
Does the logic of prohibition apply to animal testing? Recall that by banning alcohol, rum-running hooch-slingers contributed to a gangland culture that gave us such niceties as denatured alcohol and the Saint Valentine's Day Massacre. The War on Drugs gave us massive, powerful cartels. And the ongoing offensive against sex work is, well, offensive. But what would happen if governments up and banned live animal testing altogether? It seems rather unlikely that black markets in test monkeys would arise.
In cases like this, I return to my old habit of considering the underlying exchange. With alcohol, the best evidence indicates that with sufficient treatment, subjects obtain classical symptoms of drunkenness. Similarly, a dose of LSD will expose the glowing heart of the hidden universe. The thing itself, the drug, the treatment is just a technology to obtain an effect. With drugs, I think that the opprobrium is against the effect, as the technology is otherwise unobjectionable. With animal testing however, the ends are generally valuable enough to tolerate the abrogation of the tug of the conscience that stubbornly insists on mercy.
In EE terms, the BATNA of animal testing is delayed or eliminated drug tests, constipated disease research, and a halt to cosmetics innovation. I'll take the bold stance that if it means fluffy little bunnies don't have to suffer to produce a new shade of blush indistinguishable from the enormous palette already available, this is probably not a welfare-destroying choice (assuming animals contribute to the social welfare function, which I admit is a contentious claim). But curing (infectious) disease is as close to a pure public good as I can easily imagine.
Wouldn't it be just great if we could get the wonderful benefits of animal testing without having to inflict torture in the name of testing? I think it would.
Unfortunately, the Dickey-Wicker Amendment boilerplate in every spending bill since 1995 restricts the use of federal funding for human embryos in research. The moral intuitions there are interesting. I suspect it engages Jon Haidt's disgust moral dimension, which means that the alternatives of either animal testing or marginally slower research are likely to stick around.
Of course, people are clever. When we told them they have to pay fruit pickers higher wages, farmers made better, faster machines to do that work. When we told them they couldn't put CFCs in cannisters anymore, hairspray makers switched to finger pumps. Now that we're telling them to hike the pay of fast food clerks, burger slingers are taking the path of the banks in their switch from meat-and-bone tellers to ATMs by automating the ordering process. To borrow a classic Jeff Goldblumism, commerce... uh, commerce finds a way.
Consider the possibility that if instead of incinerating culled embryos, they could be donated to federally-funded research facilities that they might use the insights gleaned to work towards a more cruelty- and morally-objectionable-free research environment. End Dickey-Wicker now.
But don't be too shocked when it doesn't happen. Legislation is notoriously hard to repeal.
R.I.P. Dwayne Goettel
Monday, May 12, 2014
The Greatest Trick Ever Pulled
"For what shall it profit a man, if he shall gain the whole world, and lose his own soul?" Mark 8:36 (KJV)
God Himself sits in judgement over the souls of men But His patience is eternal... not so the IRS. To the tax collector, the letter of the law is the Final Arbiter what Sits o'er All. And into yon letter the American constituency and its elected elite have carved, jointly and severally, an exception from taxation so deeply etched that only the most hard-bitten secularist would creak her jaw to call it a "loophole": churches shall pay no taxes.
Of course, Old Scratch hangs his hat in the details, so they say. Church organizations aren't on the hook to the Treasury, but that doesn't necessarily extend to preachers' spouses or their kids. So as Kenneth Copeland can attest, if you find yourself getting a little too cozy with political aspirants, expect the State's Infernal Revenue Service mephits to hound you till the rivers run red with the blood of the innocent (or from 2007-2011, whichever comes first). Similarly, if you minister to a huge congregation and if they tithe, and if you turn that lucre into comfortable mansions, plush lifesytles, and dalliances with aristocratic and oligarchic elites, you probably shouldn't be too agog when (not if) you run afoul of ordinary folks' ordinary moral sentiments.
In Aristotelian terms, it ain't proportionate for a loquacious preacher to amass wealth that would make Solomon blush and to then be given special dispense from the state, most especially when the underlying religious tradition has strong overtones of modesty, service, and charity.
One of the best lessons I ever learned from a Munger lecture is that accumulated wealth is a byproduct of exchange. It's effluvium, waste, all those ledgers cramped with artifacts of past exchanges. What we should care about, what produces satisfaction is the exchange itself that gave rise to plump capital holdings. When we focus on the hoard alone, we commit the nasty analytical error of judging outcomes rather than processes, dead artifacts instead of living rules. Anyone drenched in the economic way of thinking (and boy howdy, if you ever need a good example of a natural economist, you could do a hell of a lot worse than bending your gaze towards Mungo) should kick and scream any time there's talk of just or unjust outcomes. Wealth concentration itself is too dumb a bunny to estimate the justice lurking in pairwise exchange. If I drop a dollar in the collection plate, that transaction is part of the covenant I have with God, with my religious community, and with my pastor. That moment of choice (and the moment I initially chose to stand as part of the flock) is where the careful analyst can raise hue and cry should injustice lurk.
Of course, economists will be perhaps more prone than others to punt on any justice that dwells in the collection plate exchange. The epistemological problem of cracking someone's skull open to see if they truly are better off or not making the trade is pretty dang tough. How many people end up regretting religious faith? In which direction do deathbed conversions typically go? But even if we conclude that flim-flam multi-millionaire bs artistes like Benny Hinn provide valuable spiritual services to their congregations, how do we square that with proportional Aristotelian justice? What is the common-sense moral justification for the asymmetrical tax treatment of religious organizations? Do they consume fewer public goods? Perhaps there's a case that churches actually produce public goods on net, beyond the private joys of salvation and community membership mentioned above, beyond the club goods shared by flock members. If that's the case though, wouldn't it be prudent to compare spillover benefits from religious organizations to spillover benefits from other organizations, including for-profit firms? There's a Whole Foods down the street from where I work, and I assure you that the sense of satisfaction I detect in many of the shoppers is almost impossible to distinguish from the spiritual rapture that clings to the faithful I run across on Sunday mornings.
Revisit your null hypothesis. Wealthy preachers might be a symptom that something has gone wrong, but don't let the Devil convince you he doesn't exist: problems happen when we treat a metric as a goal, when we confuse outcomes with intent, when we indulge analytical laziness. Consider whether or not congregants retain the wherewithal to revoke their patronage. Consider if they think themselves exploited. Talk to them if you must. And do please consider that the 16th amendment was a mistake. Perhaps the problem isn't that churches don't pay income tax, but that the rest of us do.
God Himself sits in judgement over the souls of men But His patience is eternal... not so the IRS. To the tax collector, the letter of the law is the Final Arbiter what Sits o'er All. And into yon letter the American constituency and its elected elite have carved, jointly and severally, an exception from taxation so deeply etched that only the most hard-bitten secularist would creak her jaw to call it a "loophole": churches shall pay no taxes.
Of course, Old Scratch hangs his hat in the details, so they say. Church organizations aren't on the hook to the Treasury, but that doesn't necessarily extend to preachers' spouses or their kids. So as Kenneth Copeland can attest, if you find yourself getting a little too cozy with political aspirants, expect the State's Infernal Revenue Service mephits to hound you till the rivers run red with the blood of the innocent (or from 2007-2011, whichever comes first). Similarly, if you minister to a huge congregation and if they tithe, and if you turn that lucre into comfortable mansions, plush lifesytles, and dalliances with aristocratic and oligarchic elites, you probably shouldn't be too agog when (not if) you run afoul of ordinary folks' ordinary moral sentiments.
In Aristotelian terms, it ain't proportionate for a loquacious preacher to amass wealth that would make Solomon blush and to then be given special dispense from the state, most especially when the underlying religious tradition has strong overtones of modesty, service, and charity.
One of the best lessons I ever learned from a Munger lecture is that accumulated wealth is a byproduct of exchange. It's effluvium, waste, all those ledgers cramped with artifacts of past exchanges. What we should care about, what produces satisfaction is the exchange itself that gave rise to plump capital holdings. When we focus on the hoard alone, we commit the nasty analytical error of judging outcomes rather than processes, dead artifacts instead of living rules. Anyone drenched in the economic way of thinking (and boy howdy, if you ever need a good example of a natural economist, you could do a hell of a lot worse than bending your gaze towards Mungo) should kick and scream any time there's talk of just or unjust outcomes. Wealth concentration itself is too dumb a bunny to estimate the justice lurking in pairwise exchange. If I drop a dollar in the collection plate, that transaction is part of the covenant I have with God, with my religious community, and with my pastor. That moment of choice (and the moment I initially chose to stand as part of the flock) is where the careful analyst can raise hue and cry should injustice lurk.
Of course, economists will be perhaps more prone than others to punt on any justice that dwells in the collection plate exchange. The epistemological problem of cracking someone's skull open to see if they truly are better off or not making the trade is pretty dang tough. How many people end up regretting religious faith? In which direction do deathbed conversions typically go? But even if we conclude that flim-flam multi-millionaire bs artistes like Benny Hinn provide valuable spiritual services to their congregations, how do we square that with proportional Aristotelian justice? What is the common-sense moral justification for the asymmetrical tax treatment of religious organizations? Do they consume fewer public goods? Perhaps there's a case that churches actually produce public goods on net, beyond the private joys of salvation and community membership mentioned above, beyond the club goods shared by flock members. If that's the case though, wouldn't it be prudent to compare spillover benefits from religious organizations to spillover benefits from other organizations, including for-profit firms? There's a Whole Foods down the street from where I work, and I assure you that the sense of satisfaction I detect in many of the shoppers is almost impossible to distinguish from the spiritual rapture that clings to the faithful I run across on Sunday mornings.
Revisit your null hypothesis. Wealthy preachers might be a symptom that something has gone wrong, but don't let the Devil convince you he doesn't exist: problems happen when we treat a metric as a goal, when we confuse outcomes with intent, when we indulge analytical laziness. Consider whether or not congregants retain the wherewithal to revoke their patronage. Consider if they think themselves exploited. Talk to them if you must. And do please consider that the 16th amendment was a mistake. Perhaps the problem isn't that churches don't pay income tax, but that the rest of us do.
Wednesday, February 5, 2014
Treading on Snow
My pal Nate is where I usually go for questions of jurisprudence. I wander into his territory, uninvited, without regret.
Cynthia Nixon on marriage equality:
Seek not dominion, for surely it shall find you first.
Nota bene, friends: this longsword cuts on the backstroke too. If you object to statutes that restrain folks from contracting (or not) based on sexual identity, it's consistent to object to statutes that restrain folks from contracting (or not) based on which side of the counter they stand on. The lunch counter example is particularly noteworthy in Nixon's choice of words. The Civil Rights Act of 1964 did more than just repeal the ass of Jim Crow, it inserted its own ass into every space, both public and private.
Sidebar: in case you weren't aware, the "ass" in "the law is an ass" is "ass" qua donkey. The law is a stubborn, single-minded entity. And like the common ass, is quite useful for certain tasks, though you wouldn't ask ius or lex to pen a sonnet.
Substituting one form of dominion for another invites spiteful retribution under the petticoats of Lady Justice. Equality under the law, a fine principle, demands that any two fit people have access to the marriage contract in the eyes of the state. The principle here is not that gay people are great and deserve special protection, it's that under the US Constitutional order, all constituents are equal before the law. If it seems as if I'm repeating myself, it may be because this fairly obvious little slice of jurisprudence seems utterly lost in these discussions. This is a founding principle carried over from the Enlightenment that appears to be buried in the din of bristly moralizing on both sides.
But people, while severing the tether that forces that ass to discriminate is consistent with good statesmanship, it's an error of the same type that pinions this dumb creature to the task of discriminating along new dimensions. It was an act of justice to lift the statutes that imposed segregation. But consider the cost of yoking business owners to the common will: some people obtain the obligation to enter into contracts they would have not otherwise entertained. This is perverse. The antidote to oppression is liberty, not coercion.
So yes, it's obvious on its face that consenting people should have the right to voluntarily enter into mutually agreeable contracts. That's just as blatantly, obviously true for marriage as it is for cake decoration services and renting out the privately-owned grounds of a bed and breakfast.
Everyone deserves the right to say "no", even if—no, especially if—the answer may be frustrating for others. The alternative is illiberal and unjust.
Cynthia Nixon on marriage equality:
When women got the vote, they did not redefine voting. When African-Americans got the right to sit at a lunch counter alongside white people, they did not redefine eating out. They were simply invited to the table. That is all we want to do; we have no desire to change marriage. We want to be entitled to not only the same privileges but the same responsibilities as straight people.Equality before the law implies a non-discrimination standard under the law. The law is an ass, suited to the mulish task of bulk imposition of clearly understood rules. The inelegant artlessness of parsing complexion, social status, sexuality, or belief is a chore unfit for a legislature distant in cognition and void of meaningful accountability.
Seek not dominion, for surely it shall find you first.
Nota bene, friends: this longsword cuts on the backstroke too. If you object to statutes that restrain folks from contracting (or not) based on sexual identity, it's consistent to object to statutes that restrain folks from contracting (or not) based on which side of the counter they stand on. The lunch counter example is particularly noteworthy in Nixon's choice of words. The Civil Rights Act of 1964 did more than just repeal the ass of Jim Crow, it inserted its own ass into every space, both public and private.
Sidebar: in case you weren't aware, the "ass" in "the law is an ass" is "ass" qua donkey. The law is a stubborn, single-minded entity. And like the common ass, is quite useful for certain tasks, though you wouldn't ask ius or lex to pen a sonnet.
Substituting one form of dominion for another invites spiteful retribution under the petticoats of Lady Justice. Equality under the law, a fine principle, demands that any two fit people have access to the marriage contract in the eyes of the state. The principle here is not that gay people are great and deserve special protection, it's that under the US Constitutional order, all constituents are equal before the law. If it seems as if I'm repeating myself, it may be because this fairly obvious little slice of jurisprudence seems utterly lost in these discussions. This is a founding principle carried over from the Enlightenment that appears to be buried in the din of bristly moralizing on both sides.
But people, while severing the tether that forces that ass to discriminate is consistent with good statesmanship, it's an error of the same type that pinions this dumb creature to the task of discriminating along new dimensions. It was an act of justice to lift the statutes that imposed segregation. But consider the cost of yoking business owners to the common will: some people obtain the obligation to enter into contracts they would have not otherwise entertained. This is perverse. The antidote to oppression is liberty, not coercion.
So yes, it's obvious on its face that consenting people should have the right to voluntarily enter into mutually agreeable contracts. That's just as blatantly, obviously true for marriage as it is for cake decoration services and renting out the privately-owned grounds of a bed and breakfast.
Everyone deserves the right to say "no", even if—no, especially if—the answer may be frustrating for others. The alternative is illiberal and unjust.
Tuesday, June 11, 2013
Euvoluntary Discrimination
Seen from the lens of correcting historical injustices, authors of anti-discrimination statutes intend to restore justice. Granted, it's some sort of statistical justice, conflating individuals across generations, but justice all the same.
Interestingly, concerns about discrimination are limited to a subset of statistical classes and restricted in their application to instances of BATNA disparity (eg lending, employment, higher ed access). I'm free as a bird now to limit my friendships and romantic entanglements to MA Icelandic redheads with Aleutian huskys between the ages of 25 and 37 should it so suit my fancy.
But woe be to me if I elect to organize. Suppose I wanted to create the Fraternal Order of MA Icelandic Redheads with Aleutian huskys between the ages of 25 and 37. All of a sudden, the moral intuition changes. Why? Why did Augusta's race and gender restrictions so deeply offend people? What's so offensive about a heterosexual-only rule in the Boy Scouts? What is the BATNA to membership at a prestigious golf course? To wearing fabulous neckerchiefs and plenty of flair?
Is it unseemly to ask for elaboration? Is it not enough that a disparity, an injustice exists?
It tends to occur to me that there is genuine injustice in discrimination coupled with coercion. Jim Crow legislation was abominable because it forced segregation on unwilling participants. Fraternal orders involve no explicit coercion. Same for lending. A bank that refrains from making a loan based on irrelevancies like complexion loses valuable business. Ditto employers.
But I don't think the absence of coercion mollifies the moral instincts of the modern median voter. Perhaps BATNA disparity has something to do with it, but even something as terribly competitive as the entire labor market there doesn't seem to be much of a BATNA argument to make, especially for low-skilled labor.
Or maybe the institutional game theory is wrong and it really is pretty easy to sustain a long-lived conspiracy among legion business elites over the course of decades, if not centuries. OPEC can't do it with fewer than a dozen members for more than a few years and without the threat of military invasion, but the whole stinking Chambers of Commerce have no problem over the arc of all capitalism. What probability should I assign this?
At any rate, identifying a problem is a lot different than actually solving it. It's nice that instead of jumping on the trampoline of having the state intervene in the BSA, folks are using the morally superior tactic of shame. It's interesting to me why shame isn't more widely employed in disciplining wayward organizations.
Interestingly, concerns about discrimination are limited to a subset of statistical classes and restricted in their application to instances of BATNA disparity (eg lending, employment, higher ed access). I'm free as a bird now to limit my friendships and romantic entanglements to MA Icelandic redheads with Aleutian huskys between the ages of 25 and 37 should it so suit my fancy.
But woe be to me if I elect to organize. Suppose I wanted to create the Fraternal Order of MA Icelandic Redheads with Aleutian huskys between the ages of 25 and 37. All of a sudden, the moral intuition changes. Why? Why did Augusta's race and gender restrictions so deeply offend people? What's so offensive about a heterosexual-only rule in the Boy Scouts? What is the BATNA to membership at a prestigious golf course? To wearing fabulous neckerchiefs and plenty of flair?
Is it unseemly to ask for elaboration? Is it not enough that a disparity, an injustice exists?
It tends to occur to me that there is genuine injustice in discrimination coupled with coercion. Jim Crow legislation was abominable because it forced segregation on unwilling participants. Fraternal orders involve no explicit coercion. Same for lending. A bank that refrains from making a loan based on irrelevancies like complexion loses valuable business. Ditto employers.
But I don't think the absence of coercion mollifies the moral instincts of the modern median voter. Perhaps BATNA disparity has something to do with it, but even something as terribly competitive as the entire labor market there doesn't seem to be much of a BATNA argument to make, especially for low-skilled labor.
Or maybe the institutional game theory is wrong and it really is pretty easy to sustain a long-lived conspiracy among legion business elites over the course of decades, if not centuries. OPEC can't do it with fewer than a dozen members for more than a few years and without the threat of military invasion, but the whole stinking Chambers of Commerce have no problem over the arc of all capitalism. What probability should I assign this?
At any rate, identifying a problem is a lot different than actually solving it. It's nice that instead of jumping on the trampoline of having the state intervene in the BSA, folks are using the morally superior tactic of shame. It's interesting to me why shame isn't more widely employed in disciplining wayward organizations.
Thursday, April 11, 2013
Meta-EE and the Constitution Part 11: Fifteenth Amendment
Of the "reconstruction amendments", the fifteenth stands apart a little bit. The 13th forbade property rights in human stock. The 14th established jus soli citizenship, provided equal protection under the law for freed slaves, lifted the ignoble 3/5ths clause, and excused the Federal government from responsibility for paying the debts of the Confederacy. The 15th addresses franchise.
To make a bolder claim, in a more perfect world, the 15th Amendment would be gratuitous. That is to say that franchise is a valuable possession when and only when political action is important. If the sovereign refrained from extending her authority beyond the scope of enforcing the rule of law, ensuring peace, and upholding justice, then the sub-composition of voting constituents would be close to irrelevant. It is when political elites have retained the authority to dispense special favors that minority voice becomes particularly urgent.
This concatenation is curious. Ex ante, you might imagine that political agents faced a binary choice: shall we trundle towards a limited government that preserves anonymity in the eyes of the law, or shall we take into consideration de facto injustice and attempt to broaden the scope of covenant action to circumclude private transaction? If you choose the former, franchise is mostly irrelevant. If you choose the latter, it is essential. However, the converse is not necessarily true. Just because you have (more) universal franchise does not mean your politics must then march down the boulevard to a civil law society. In 1870, it wasn't clear that the choice was inevitable. Still, if err you must, err on the side of caution.
Is the 15th meta-euvoluntary? I'm unwilling to claim that it had anything to do with the subsequent scope expansion of collective action and the attendant weakening of the political elites' chief duty of providing peace, easy taxes, and a tolerable administration of justice. If there's any claim over the euvoluntarity of this Amendment's meta-EE, it seems mostly retrospective and ex post. It turned out to safeguard the rights of a disadvantaged minority in the presence of weakened institutions. It's kind of lame to say, "well, it could have been worse," but if the shoe fits, you can't make it drink from a silk purse.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.One of the myths I'm in the middle of debunking elsewhere is that immigrants will be prone to voting themselves a welfare state once they get to America. To make a (very) long story short, the evidence I've gathered does not support this hypothesis particularly well. Along some margins, franchise restriction is occasionally irrelevant.
To make a bolder claim, in a more perfect world, the 15th Amendment would be gratuitous. That is to say that franchise is a valuable possession when and only when political action is important. If the sovereign refrained from extending her authority beyond the scope of enforcing the rule of law, ensuring peace, and upholding justice, then the sub-composition of voting constituents would be close to irrelevant. It is when political elites have retained the authority to dispense special favors that minority voice becomes particularly urgent.
This concatenation is curious. Ex ante, you might imagine that political agents faced a binary choice: shall we trundle towards a limited government that preserves anonymity in the eyes of the law, or shall we take into consideration de facto injustice and attempt to broaden the scope of covenant action to circumclude private transaction? If you choose the former, franchise is mostly irrelevant. If you choose the latter, it is essential. However, the converse is not necessarily true. Just because you have (more) universal franchise does not mean your politics must then march down the boulevard to a civil law society. In 1870, it wasn't clear that the choice was inevitable. Still, if err you must, err on the side of caution.
Is the 15th meta-euvoluntary? I'm unwilling to claim that it had anything to do with the subsequent scope expansion of collective action and the attendant weakening of the political elites' chief duty of providing peace, easy taxes, and a tolerable administration of justice. If there's any claim over the euvoluntarity of this Amendment's meta-EE, it seems mostly retrospective and ex post. It turned out to safeguard the rights of a disadvantaged minority in the presence of weakened institutions. It's kind of lame to say, "well, it could have been worse," but if the shoe fits, you can't make it drink from a silk purse.
Wednesday, March 27, 2013
They Go Together Like a Horse and Carriage
It seems like all voluntary domestic living arrangements should also be euvoluntary. It seems like the only EE condition we might butt up against is ex post regret, and it also seems like the way around regret is to preserve no-fault divorce as the default common law dissolution arrangement. It seems like the role of the state should extend no further than ensuring folks aren't being coerced or defrauded into entering into a marriage contract. It seems like as far as the government is concerned, there isn't ten cents' difference between a nuptial contract and, say, an insurance policy.
It seems like it should be that way, but that way it sure ain't.
I make a big deal out of political kayfabe, but I don't mean by this to claim that there isn't religious and corporate kayfabe as well. The reason I focus so closely on the bloviations of elected officials is that they enjoy an unchecked monopoly not found in either the pulpit or the boardroom. Well, at least in the US. Here though is an interesting example where religious kayfabe may well mask an underlying aesthetic objection to alternative forms of marriage. I think there's pretty good Biblical evidence to allow Christians to support a clear division between the roles of Leviathan and Pontiff (Matthew 22:21, eg.). I see no necessary tension between believing that (a) Leviticus 20:13 has something interesting to say and (b) the state should act as an impersonal arbiter of contract terms. When this division goes unobserved, when folks strive to resurrect collusion between the first and second estates, I find myself puzzled about the moral intuitions underpinning this urge. It seems possible that the moral dimension is Haidt's sanctity/degradation, which always struck me as girded by atavistic aesthetics rather than deliberate moral or ethical calculus.
If there's an issue of fiscal externalities, where a baker or a photographer can be sued in court for refusing to provide wedding services for a ceremony they find offensive, this highlights a flaw in civil law. If the problem is with children being raised in unorthodox households, we've got a reasonable empirical question that must be answered with good empirical analysis (instead of evidence-free appeals to imagination as seems commonplace). If the problem is a weakening of the national moral fiber or something, I think I'd like to see a better explanation of how it is that the boundaries of an optimal moral zone are simultaneously determined with political borders. In what sense did the Louisiana Purchase extend the particular sphere in which the median American voter was granted legitimate authority to impose moral calculus on others?
Look, there are reasons to debate the form and function of the relationship between contract arrangements and state enforcement. But let's not kid ourselves when it comes to the source of our disagreements. De gustibus non est disputandum, sed de gubernum fortitori est*. The scope of government is applied inappropriately when it's granted the authority to determine winners and losers in the game of matrimony just as surely as it's misapplied when determining winners and losers in mineral exploration or agricultural production. I can sort of understand some sort of (extremely cautious) state intervention in non-euvoluntary exchange, but intervention when the arrangement is, but for other existing public policy, entirely euvoluntary seems an untoward usurpation of the common presumption of liberty.
* My Latin is terrible, so that's probably grammatically incorrect. Apologies.
It seems like it should be that way, but that way it sure ain't.
I make a big deal out of political kayfabe, but I don't mean by this to claim that there isn't religious and corporate kayfabe as well. The reason I focus so closely on the bloviations of elected officials is that they enjoy an unchecked monopoly not found in either the pulpit or the boardroom. Well, at least in the US. Here though is an interesting example where religious kayfabe may well mask an underlying aesthetic objection to alternative forms of marriage. I think there's pretty good Biblical evidence to allow Christians to support a clear division between the roles of Leviathan and Pontiff (Matthew 22:21, eg.). I see no necessary tension between believing that (a) Leviticus 20:13 has something interesting to say and (b) the state should act as an impersonal arbiter of contract terms. When this division goes unobserved, when folks strive to resurrect collusion between the first and second estates, I find myself puzzled about the moral intuitions underpinning this urge. It seems possible that the moral dimension is Haidt's sanctity/degradation, which always struck me as girded by atavistic aesthetics rather than deliberate moral or ethical calculus.
If there's an issue of fiscal externalities, where a baker or a photographer can be sued in court for refusing to provide wedding services for a ceremony they find offensive, this highlights a flaw in civil law. If the problem is with children being raised in unorthodox households, we've got a reasonable empirical question that must be answered with good empirical analysis (instead of evidence-free appeals to imagination as seems commonplace). If the problem is a weakening of the national moral fiber or something, I think I'd like to see a better explanation of how it is that the boundaries of an optimal moral zone are simultaneously determined with political borders. In what sense did the Louisiana Purchase extend the particular sphere in which the median American voter was granted legitimate authority to impose moral calculus on others?
Look, there are reasons to debate the form and function of the relationship between contract arrangements and state enforcement. But let's not kid ourselves when it comes to the source of our disagreements. De gustibus non est disputandum, sed de gubernum fortitori est*. The scope of government is applied inappropriately when it's granted the authority to determine winners and losers in the game of matrimony just as surely as it's misapplied when determining winners and losers in mineral exploration or agricultural production. I can sort of understand some sort of (extremely cautious) state intervention in non-euvoluntary exchange, but intervention when the arrangement is, but for other existing public policy, entirely euvoluntary seems an untoward usurpation of the common presumption of liberty.
* My Latin is terrible, so that's probably grammatically incorrect. Apologies.
Saturday, May 5, 2012
With These Rings
Abstracting a bit from marriage as a social, cultural institution, one might make the case that the state's role in marriage is in contract enforcement. A marriage is a bit like a firm: the basic rules of organization are circumscribed by common law, but the specific arrangements are left to the founders of the organization. The state recognizes the contract and honors its terms, including implied boilerplate like rights of inheritance, powers of attorney, et al. The recent tussle over same-sex marriage has cast a spotlight on the common-law circumscriptions of the institution. I do think it's fair to ask what are reasonable limits on the type of marrigae contracts that can be written.
Luckily, the common law already provides some pretty good guidance. Adults of sound mind absent coercive pressures are able to write contracts. If you think of a family as a species of firm, you really have to seriously ask why organizational contracts are limited to a joint partnership of only one man and only one woman. What reason is there to prohibit plural marriage?
Lest I appear to be baking two cakes in the same oven, I must stress that this is indeed an entirely different question than same sex marriage. Plural marriage considerations question the validity of the prescribed form, but same sex marriage considerations are an appeal to what North, Wallis and Weingast refer to as impersonal exchange: that the class identity of the contracting parties is irrelevant. The only things that should matter are considerations of competence and duress. Plural marriages challenge the universe of contract forms that can be written. This is a categorically different question. But still one worth considering.
Down to the brass tacks of the EE, then. Once again, I don't know if I have a good answer for you. It strikes me that (at least in the language we use here) that what we observe is a violation of conventional capacity to trade. But this is exactly the point we're trying to address, so that objection just plain begs the question. Again here, I think it ultimately boils down to a question of aesthetics. Plural marriage is weird, so people (the median voter) opposes it. Polygamists are low status, so they're less likely (at least, for now) to garner much popular support.
So I close with these simple questions: is plural marriage non-euvoluntary? If so, what condition is violated? If not, why the continued ban? If you do end up grilling your friends, family or students about this, hold their feet to the fire. I expect you'll find their arguments end up teetering on a precipice of visceral revulsion and not much else. If I'm wrong about that, do please let me know.
Luckily, the common law already provides some pretty good guidance. Adults of sound mind absent coercive pressures are able to write contracts. If you think of a family as a species of firm, you really have to seriously ask why organizational contracts are limited to a joint partnership of only one man and only one woman. What reason is there to prohibit plural marriage?
Lest I appear to be baking two cakes in the same oven, I must stress that this is indeed an entirely different question than same sex marriage. Plural marriage considerations question the validity of the prescribed form, but same sex marriage considerations are an appeal to what North, Wallis and Weingast refer to as impersonal exchange: that the class identity of the contracting parties is irrelevant. The only things that should matter are considerations of competence and duress. Plural marriages challenge the universe of contract forms that can be written. This is a categorically different question. But still one worth considering.
Down to the brass tacks of the EE, then. Once again, I don't know if I have a good answer for you. It strikes me that (at least in the language we use here) that what we observe is a violation of conventional capacity to trade. But this is exactly the point we're trying to address, so that objection just plain begs the question. Again here, I think it ultimately boils down to a question of aesthetics. Plural marriage is weird, so people (the median voter) opposes it. Polygamists are low status, so they're less likely (at least, for now) to garner much popular support.
So I close with these simple questions: is plural marriage non-euvoluntary? If so, what condition is violated? If not, why the continued ban? If you do end up grilling your friends, family or students about this, hold their feet to the fire. I expect you'll find their arguments end up teetering on a precipice of visceral revulsion and not much else. If I'm wrong about that, do please let me know.
Friday, May 4, 2012
With This Ring
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