Justice Scalia Explains Textualism And Originalism Without Explaining WHY We Must Rely Upon Them.

Scalia is a bit of a personal hero. I adore his clarity.

He appeared on Fox the other day, and explained Textualism and Originalism. (See wiki.) But I was frustrated that he kept stating what he believed, and how these things SHOULD be interpreted, but now WHY they should be interpreted that way.

Now, I’m sure that’s because it’s obvious as the summer sun to him.

But to the average person, it isn’t.

The reason we should (and a new constitution should mandate) that we apply the original meaning to the precise text, is to prevent the court from circumventing the legislative process and effectively writing new law without the legislative process. Further, it prevents creative destruction of the constitution through reinterpretation, rather than legislation. And emphasis on originalism forces lawmakers to write clearer laws.

The constitution contains a process by which it can be modified. That process achieves it’s goals. But our nation has been lost through the reinterpretation and creative expansion of the law via the courts, where the majority would not have approved such laws had they been subject to the constitutional amendment process.

Any law that would modify the original intent of the constittuion, and the text, should be subject to the requrement that the amendment process be followed.

This violates the democratic socialist secular humanist proposition, that the legislature, endowed by the people with power, can enact any law that they wish.

Of course, this makes no sense, because, that is the very meaning of the ‘rule of law': limits on what laws can be enacted.

And it assumes, incorrectly, that we are wiser than we are.

Behind Paul Krugman’s Daily Straw Men

Paul,

1) THE ART OF CREATING AND ATTACKING STRAW MEN
You have mastered the strategy of creating then attacking straw men, and in doing so crafting the typical progressive implication that emotions, stupidity and irrationality drive political behaviors. (See Paul Jonson’s Intellectuals, Thomas Sowell’s Intellectuals and Society, and Richard Posner’s Public Intellectuals. All of which discuss this tactic.) Among economists you have singular mastery of this rhetorical device.)

2) CONVENIENTLY IGNORING NON-MONETARY COSTS
In your straw men, you consistently fail to acknowledge that the superior economic productivity of certain countries requires that their citizens pay substantial non-monetary costs. These non monetary costs which we refer to as:
a) TRUST (bearing risk in order to contribute to the commons),
b) CONFORMITY (abstinence from privatization of payments on the common property of manners, ethics and moral norms) and;
c) PERSONAL DISCIPLINE (abstinence from involuntary transfers, and exchange of temporal satisfactions for inter-temporal capital accumulation), all of which are a paid in opportunity costs.
These non monetary costs are far higher costs than monetary costs. That is why they are so scarce on this planet. Few civilizations have managed to break the familial and tribal preference, and only Christendom has both forbidden cousin marriage, and given women property rights – both of which are needed to accomplish the unintuitive but necessary environment for a high trust society.

So, as an economist, either you fail to grasp the basic concept of opportunity cost to the individual, or you falsely apply an infinite discount to the very high cost in opportunities, of those norms, all of which prevent privatization of the commons of norms, that allow us to create the high trust society, that in turn makes the west more productive than ANY other culture.

This ignorance a product the most common progressive error: the false consensus bias rampant among progressives, and the denial of the existence and necessity of moral capital: habitual behaviors of self-denial.

3)
a) Humans object to involuntary transfers. They object to involuntary transfers by violence, to theft, to fraud, and to ‘Cheating’.
e) All human beings dramatically reject ‘cheaters’ (people who privatize the commons, or who engage in theft, fraud and violence) much more vehemently than they pursue their own welfare. Humans will pay very high costs to prevent ‘cheating’ (involuntary transfers),
f) And they will pay that high cost whether the cheating is performed against an individual, a group of numerically allocated shareholders, from the unallocated physical commons, or from the un-allocatable (non numeric) commons of moral capital: manners, ethics, morals and norms.

b) DIFFERENT CONCEPTS OF PROPERTY, MORALITY, AND REPRODUCTIVES STRATEGY BETWEEN LEFT AND RIGHT

d) All human societies allocate individual and communal property differently, and the left and right in each society place very different values on moral and ethical norms that require restraint from privatization of the commons. (That commons which Jonathan Haidt among others calls Moral Capital).

c) All human societies stack their preferences for decision making differently – the north of Europe is biased for the commons, and the south of Europe is biased for the family, (as demonstrated by Edward Banfied).

5) The straw man you create, is either an error or a deception or both. I cannot judge, despite following you for years. But that straw man ignores the cost and consequences of behavioral capital. It ignores the basic nature of man. It ignores:
a) the NECESSITY of that basic nature of man, in order for an economy to function using prices and incentives, and
b) the necessity of that nature of man for an efficient economy to function through the existence of property, and the existence of trust, and the absence of corruption (privatization of the commons and non-value added toll-collecting).

Behavior matters, as Sowell illustrates by the example of the conquest of France by Germany in six weeks, despite the vast superiority of French forces and equipment. Behavior matters, as the difference the north and south of europe demonstrates. An economy consists of institutions both formal and informal. And to base one’s arguments entirely upon formal institutions, and a so called efficiency while ignoring the vast costs in opportunity costs, discipline and risk absorption of creating the informal institutions.

6) Human beings are redistributive when the very high costs of norms are paid equally. Then the results of adherence to those norms (money) can be distributed. But that is because money is of little value and cost compared to the deprivations paid to establish those norms. This is the problem of ‘getting to Denmark’. The world cannot ‘get to Denmark’ without breaking up into Denmarks, and creating the norms of Denmark. Human willingness for redistribution is inversely proportional to ‘cheating’. And cheating depends upon a homogeneity of norms, since diversity of norms is by definition theft of forgone opportunity costs from one group by another. It is privatization of someone else’s common. Small homogenous societies are egalitarian. Large diverse societies are not. This is very simple economics of human behavioral opportunity costs.

7) It is far easier to construct such straw men as you do, than to take on the heady labor of analytically deconstructing and refuting such straw men. If it were not, you would be more readily refuted. And, economically speaking, since it is cheaper to produce and distribute your intellectual product constructed of straw, than it is to produce and distribute the refutation of that product made of logical bricks. Just as the children’s story of the Three Little Pigs demonstrates with utter clarity. One can build many straw men cheaply. So, it is obvious why those of us capable of refuting them with logical bricks devote our time elsewhere and hope the market eventually accomplishes through awareness what we cannot afford to accomplish through costly daily deliberate action.

So, That is economics. Macro economics as you advocate it, is simply monetary manipulation for short term gain. Nothing more. It is an abstraction useful for aggregates that represent statistical categories that assume the underlying distribution of humans is relatively equal without acknowledging the ongoing costs of maintaining that statistical distribution of categories. You are discounting what you consider externalities, in order to make your model fit your conclusion. That is what you are doing. And that is all that you are doing.

8) I understand that your sentiments are those of a mystical collectivist in the marxian and freudian “Era Of Superstition” as Hayek termed your philosophy. I understand why you ignore larger environmental causes of economic circumstances like the uniqueness of the American position post-war. And I understand why you limit your empirical analysis to postwar data sets in order to avoid refutation of your ideology – the refutation of which in turn poses a problem for your sentiments. But you must at some point if you are honest, confront both your avoidance of empirical evidence, and the historical record. The historical record which demonstrates that no body of people have held land, and therefore been able to create a monopoly of the institutions we call government and norms over that body of land, while holding the sentiments that you naturally ‘feel’ — and fell prior to cognition, and contrary to evidence.

The depth of this criticism is damning to your ideology. You must prove that such a thing is possible without resorting to dictatorship.
(as Sowell has argued in Knowledge and Decisions, and Hayek has argued in The Constitution Of LIberty. Unfortunately these men lacked the data that Jonathan Haidt now possesses, and Jonathan Haidt lacks the knowledge of microeconomics, and Propertarian reasoning that would tie micro economics and politics to our genetic behaviors and moral preferences. Thankfully we now have that knowledge. Which is what I do)

Your selective empirical positivism is supportive of your straw men. That is all. And you sell your straw to willing customers, who simply want to use it to gain political power, in order to extract privileges, and nothing more.

9) EUROPE MISTAKENLY BELIEVES FEDERATION BY IMITATING THE UNITED STATES, WHEN IT’S THE UNITED STATES THAT SHOULD BREAK INTO SMALLER STATES
Given the expanding polarity of the United States due to our First-Past-The-Post electoral system, and the introduction of women into the labor and voting pools, and the consequential dissolution of the nuclear family, and its emerging consequences, it is quite evident that not only do we, and the world, not need a united Europe, but that we we have likely proven the argument of the economic historians, and political philosophers, that small states with their own currencies are not only more pacifist, but more possibly democratic and redistributive, and that by consequence, the United States should desire to dissolve into Joel Garreau’s Nine Nations Of North America.

After all, while NY money may end up in Alabama, it is not the people in Alabama who vote for higher taxes and greater regulation. And the people of the south, southwest and center despise the declining rust belt, and the NY/DC one-size-fits-all monetary, cultural, and war machine.

-Curt Doolittle

(NOTE: Written in response to: “The Radicalizing Effect Of The Euro Disaster” but addressing Krugman’s argumentative structure more directly.)

I’ve decided to spend a little time constructing an argument to undermine Paul Krugman’s straw men. Below is the first draft, written in response to the above mentioned post. Over the next year I’ll keep using it as a mantra, distill it a bit, and try to popularize it among libertarians and conservatives. I really do not feel Krugman is challenged adequately on his reasoning. It’s almost always on his motives, or his style. But both his economic arguments and his political arguments are open to empirical and rational refutation respectively.

An Example Of The Sea Change In Libertarianism

‘AN EXAMPLE OF THE SEA CHANGE IN LIBERTARIANISM

(I posted this in response to a comment on The Skeptical Libertarian, which was critical of Tom Woods’ jibe that TSL was not skeptical enough of the government. It’s an opportunity to illustrate the current changes in the libertarian movement. These comments get lost if I don’t post them on my own timeline so I’ve copied it here for reference, and for those who might want to read it.)

1) LIBERTARIANISM IS A SENTIMENT AND WE HAVE CREATED A SPECTRUM OF INSTITUTIONAL SOLUTIONS
The ROTHBARDIANS are the anarchic WING of LIBERTARIANISM. Libertarianism describes a spectrum of political solutions of which Rothbardian Anarchism is only one permutation.

2) ROTHBARD”S INSIGHT
The Rothbardians were successful largely because Rothbard’s PROPERTARIANISM, in his Ethics of Liberty created a rational framework that could be used to defeat marxist arguments, where both conservatives and classical liberal libertarians had failed to provide such a rational framework. Marxism is philosophically rigorous. Rothbard made libertarianism philosophically rigorous. He then created a revisionist history to support his arguments.

3) THE PROBLEM WITH ROTHBARDIAN ETHICS
There is a tragic weakness in Rothbardianism that invalidates much of his reliance on Natural Law. THat is that human beings are twice as motivated to suppress ‘cheating’ in others as they are to create personal gain. Rothbardianism provides no vehicle for suppressing ‘cheating’. In particular, the export of involuntary transfers to third parties. Hoppe managed to repair much of Rothbardianism, but his written works do not successfully capture his oral arguments, nor is his rather turgid german prose as accessible as Rothbard’s. So Rothbardianism remains the gospel of the anti-state movement. (I’ve tried to capture these ethical problems on my site. But my work is quite philosophically dense and not accessible either.)

4) THE MISES INSTITUTE
These ROTHBARDIANS are concentrated in the Mises organization, which was purposefully constructed by Lew Rockwell. The Mises organization is trying to monopolize the language of libertarianism using Alinsky’s model for Marxism. The idea is to create a ‘religion’, because emotionally activated advocates are more effective, loyal and missionary than are rationally educated constituents. This strategy is not something they are shy about. (I’ve written about this frequently.)

5) THE NEED FOR ARGUMENTS
As part of their intellectual program, Rothbardians provide arguments against all state activities that we assume cannot be provided from the market. They acknowledge that market solutions produce DIFFERENT externalities than does government, but they state that market externalities are LESS BAD than government externalities.

6) TOM WOODS
When Tom Woods criticizes others, it’s in this context: he’s saying that the externalities produced by odd science are less bad than government regulations and mandates. This is somewhat hard to argue with. However, it is vulnerable to criticism because human beings have such high distaste for ‘cheating’. And they consider silly science and snake oil cheating, but are unable to determine which items are snake oil and which are not. And as Kuhn showed us, science is prone to paradigmatic error. So we rarely know when science is junk science or not.

7) GENERATIONAL SHIFT IN THE PROBLEM SET
We should note that there is a generational change in libertarianism at the moment. We are moving from a suite of intellectuals who fought against socialism to a suite of intellectuals who fight against redistributive social democracy, and another that more closely matches the white conservative movement, now that whites are acting as a minority. There is a certain surrender to demographic change going on.

Also, the polarization of the electorate due to the south abandoning it’s prohibition on the Republican party, and the reaction of whites to immigration that has made them a minority, has caused frustration with the government that has made the youngest generation of voters the most libertarian in history. But they are socially positive if institutionally negative. And this has created a problem for the Rothbardians.

In this changing generational environment the dominance of Rothbardians in the intellectual debate has caused a number of reactions.

I. First, the other sects (Cato, Bleeding Hearts, Heritage, various others, including my Propertarianism) both congratulate Lew and his MIses organization for their success at promoting libertarian ideas, and adopt those communication strategies that the mises organization was visionary in employing on the internet.

II. Second, there is a limit to the number of acolytes that will adopt the anti-social rothbardian ideology. (although not the Hoppean version.) We are at that limit. The Mises organization is making changes to eliminate the ‘whacky factor’. This includes cleaning up their blog and limiting it to intellectuals. So the Mises org is adapting as well.

III. Third, and probably not as obvious, is that science has increasingly undermined the ‘progressive’ vision of human nature, and is on its way to confirming the conservative vision of human nature. We are slowly retiring the equality meme’s nonsensical environmental presumption in favor of the conservative genetic argument. The current argument is 60/40 and I suspect we will eventually conclude it is an 80/20 proposition. It may be too late, but the ideological tide has turned. This will make it possible to address institutional solutions rationally in a way that has been impossible for seventy years.

IV. Fourth, it is becoming obvious from the data that classical liberalism’s multi-house model cannot survive the addition of women to the voting pool. Men and women have different reproductive strategies and different moral codes which agrarian marriage and the nuclear family managed to accomodate. However, since males skew individualist, and women skew collectivist, we cannot use majority rule to accomodate both moral codes. We have no ‘houses’ which will allow the creating of exchanges rather than ‘takings’. The conservative think tanks are so enamored of the past that they cannot solve this problem. All think tanks, all ideologies, all movements, currently seek to gain a majority of like-minded individuals under majority rule, rather than to construct a government where these groups can conduct exchanges. The market allows us to cooperate on means if not ends. The population will need a means to do so as well. And to do so where ‘cheating’ is prohibited. This is why government will persist: as a means of prohibiting cheating.

TRENDS
For the first two reasons above, you should expect to see the eccentricity of the Rothbarian movement coming out of the Mises institute to be less supportive of heretical science, and more explicit in its use of arguments that discuss the differences in externalities between government and market solutions.

I do not know if they will be smart enough to try to move from a Rothbardian criticism-dominated, to a Hoppeian solution-dominated framework, and therefor provide an institutional solution that is competitive to and superior to that of the classical liberals. And I can’t imagine that they would try to co-opt the classical liberal wing (where the money is), and by doing so suggest the entire spectrum of libertarian institutional solutions, but they are the people who could successfully accomplish it if they tried. I just can’t see them being that pragmatic. You do not build an ideology then become a pragmatist. That would take new leadership.

The Heritage organization is data driven and has wide appeal. But it is not philosophically rigorous, and it does not recommend changes to the existing institutions that would accomodate contemporary reality. Cato is neither data driven nor philosophically rigorous, but corresponds correctly to classical sentiments. Rothbardianism and Hoppianism as well as Hayekianism are all philosophically rigorous systems of thought.

But Rothbardianism is not going to ever be acceptable to enough people to gain office and change institutions. It is a brilliant ideological strategy. It worked. We shoujld all congratulate Lew Rockwell on his vision. But Rothbardianism is not an institutional solution. Because a Christian people will not tolerate the rampant cheating present in the ‘ethics of the bazaar’ that Rothbard advocates. and they’re right to reject it. They spent too many centuries trying to escape it, and build the High Trust Society. Perhaps the only high trust society that ever existed.

Rothbard Must Be Understood In His Context

From No Comuna.

A subtle criticism of criticism of Rothbard.

Children and rights

In the Ethics of Liberty Rothbard explores in terms of self-ownership and contract several contentious issues relating to the rights of children. These include women’s right to abortion, the prohibition of aggression of parents against children, as well as the question of the State forcing parents to take care of children, including those with serious health problems. He also argues that children have the right to “escape” of parents and seek new guardians so choose to do so. Suggested that parents have the right to place a child for adoption, or even sell their rights to the child in a voluntary agreement. He also discusses how the current juvenile justice system punishes children for making “adult” choices, removes children unnecessarily and against their will from their parents, often putting them under bad care. In other writings Rothbard also supports the right of children to work at any age, in part by supporting his release of parents or other authorities.

A SUBTLE CRITICISM

Rothbard was trying to create an internally consistent theory of rights. He was successful in doing so. However, as with any theory of rights, we are certainly able to bend or break those rights to suit our tastes. There is a difference between perfection and pragmatism. But one must have a theory in order to make decisions.

I think it is useful to understand Rothbard in this light. He succeeded in creating an internally consistent theory of rights. If we deem it practical to violate those rights in order to achieve some good, then that is our choice.