And Just Where Is The Constitutional Authority For FEMA, Congressman Paul?

My statement back during the time of Katrina, which was a rather risky political statement: why do the people of Arizona have to pay for me to take my risk... less people will be exposed to danger if you don't subsidize risky behavior... I think it's a very serious mistake to think that central economic planning and forcibly transferring wealth from people who don't take risks to people who take risks is a proper way to go. -- Ron Paul, The Charles Goyette Show, March 30, 2007

Herewith, a notice from Congressman Ron Paul's office assuring constituents in the Texas 14th Congressional District, which by the way includes Galveston, that "getting help to everyone affected [by Hurricane Ike] is his utmost priority."

The Congressman’s office is acting as a liaison between Federal agencies and constituents to ensure that available assistance is as accessible as possible, and that FEMA and other government agency activities are appropriate, efficient and helpful to Texans.

You can, of course, make an argument even as a libertarian -- I know this because I make it, myself, from time to time -- that standing on principle is sometimes simply foolish. I, for one, will gladly accept any federal largess that comes my way, too. I'm a libertarian, not an idiot.

Even so, it might be amusing to hear the good congressman explain the differences between federal aid following Katrina and federal aid following Ike.

Anarchy, State and Ignorance - Part II

The whole point of certified public accountancy is the notion that a business cannot be expected or trusted to perform an objective accounting of its performance, at least not sufficiently free of the risk of conflict of interests to satisfy current or potential investors or creditors. The hallmark of a just judiciary is disinterested objectivity. People trust the compliance certification services of Underwriters Laboratories and give greater weight to product reviews and comparisons from Consumer Reports because they understand that the very raison d'être of these organizations is their objectivity and lack of conflicts of interest.

That is not to say that any of these organizations or activities are perfectly or completely bias free. Rather, insofar as the absence of bias is an ideal objective, it is merely the case that they approach it far better, on average, than organizations and institutions that are trusted not only to provide a product or service but also to self-certify the quality of their product or performance.

If you want a diverse, competitive market collectively striving for excellence in education at all levels, separate teaching from testing.

If you want the testing and certifications of academic achievement as free from bias and conflict of interests as possible, separate the testing and certifying function not only from the teaching function, itself, but also from government at all levels.

I doubt I’ll get any serious argument on this blog when I merely assert without arguing that the U.S. Department of Education is a captive regulator to all intents and purposes controlled by the education industry, specifically including state departments of education, university schools of education and, of course, the public teachers’ unions. Similarly, state and local public school systems and individual school PTA’s and such are to all intent and purposes controlled by the very personnel they are supposed to be governing or monitoring. If you want to argue against these assertions, feel free. But I take them as a given.

(It must be said, however, that state departments of education have not always been entirely captive regulators. Indeed, I’m no economist or political scientist but my best guess is that many if not most governmental regulatory agencies, the politics motivating their creation aside, began as relatively disinterested organizations. Corruption typically takes time; however, I believe it eventually, inevitable will occur.)

Anyway, say what you will about the No Child Left Behind program (and I’ll gladly join you in various criticisms), every time I hear a teacher, any teacher (including the good ones) complain about “teaching to the test” I want to jump up and down shouting for joy. Sure, standardized tests have all sorts of problems and, yes, deciding what should constitute the core curriculum in many subjects is a contentious and ultimately subjective matter. I might prefer that every high school graduate read, say, Hamlet and Twelfth Night rather than Macbeth and The Tempest, but I’d sure as hell prefer that they have read one or the other rather than neither.

If we looked not to diplomas and degrees from schools that have, to put it mildly, all sorts of conflicts of interest but to independent testing agencies, different in important ways from and yet similar to the organizations that administer standardized college and professional school exams now, we would go a long way toward creating an entirely different sort of educational system. Such a system would be largely indifferent to how you learned (or how much time you spent learning) algebra or, yes, let’s get it out and be done with it, biology, English literature or conversational Spanish, focusing only on whether you passed whatever standard (and therefore admittedly somewhat arbitrary) benchmark involved. It wouldn’t matter whether you were home schooled, publicly educated or attended the Toniest of upper class prep schools. Oh, and I’ll save the argument for another day, but I’d say roughly the same sort of system should apply to higher education, as well.

I continue to believe in a system of tax funded, voucher supported, primarily privately operated schools, contra what appears to be at least one of my co-bloggers position on the subject. To be sure, we are all here capable of educating our own children or, at least, of paying for someone else to do it, but it isn’t the fault of children born in the inner city or squalid, rural trailer parks or, for that matter, of legal immigrants who will eventually join the middle class or better but whose children need education today. I would no more condemn them to ignorance than deny them food, shelter or medical attention simply because they are unfortunate enough to have parents who cannot or will not provide better.

On the other hand, I also firmly believe that the overwhelming majority of parents want the best education for their children they are capable of receiving and that, given even the minimal required resources to do so, that self-same overwhelming majority are best situated to determine how best to accomplish that. It doesn’t bother me in the slightest that many will opt to include rigorous religious education as part of their children’s overall education, nor that I would disagree with much of that religious education, nor that some of it might well conflict with evolutionary theory. You want certification that you have studied introductory biology? Take and pass the test. (Or one of several available tests in a market similar in that sense to the alternative availability of the ACT and SAT.) Potential employers, universities, etc. could and would establish their own standards based on such test results for purposes of employment, admissions, etc. Indeed, employers and schools would have good reason to care about the integrity and independence of the testing agencies and the rigor of their tests and the market pressures to maintain and improve that objectivity and rigor would tend to prevent educators’ inevitable attempts to co-opt the tests.

I may write a third post providing some more detail of the system I envision. By way of shortstopping certain sorts of criticism for now, let me just say that I don’t see this as a panacea but merely as a preferable system to the one we now have There are, no doubt, all sorts of details to be worked out and problems obvious even to me in this alternative approach. Feel free to name them if you wish. What I would be particularly interested in reading, however, is anyone who wishes to argue that the present system, the one we have now, is preferable, and why they believe that is so.

Anarchy, State and Ignorance

Your children are not your property. They’re not mine, either, thank Gawd, and just as important, they’re not the state’s property, either.

One of the problems of framing political theory in terms of fundamental or natural property rights (the naturalist fallacy aside) is that once we begin thinking of a person as having property rights in himself, it’s a small leap to thinking that one person can have some sorts of property rights in someone else. (Yes, I know, there are ways around this, but that doesn’t make it any less a problem, and an entirely avoidable one, at that, if we just abandoned the notion of property existing outside a legal system, itself a function of the ideally minimal state. But that’s another rant for another thread.)

Positive Liberty readers will have noted a certain amount of crankiness lately when it comes to schooling, education, creationism, Intelligent Design theory, Darwinian evolutionary theory, home schooling, etc. People do care about what is taught in schools and people do care about their children’s education and want excellent schools. Tempers flare, intemperate statements are made, feelings get hurt, my jokes get even dumber than usual, and so on.

Of course, when I say “people” I don’t mean everyone. There are many people who really don’t give a damn about excellent schools (we call these people NEA members) and there really are parents who don’t give a damn about their children's education.

There are people who believe that the Bible is the inerrant word of God not only about matters spiritual but matters historical, too, including natural history. And there are people who believe that with the empirical sciences in one hand and Occam’s straight razor wielded deftly enough in the other they can whittle down language and the reality to which it ideally relates to a tidy little material ontology with a surprisingly handy analytic framework undergirding and making sense of both. We call the first sort fundamentalists and we call the second sort Richard Dawkins. They have much in common, not the least of which is an almost invincible ignorance of each other’s area of interest and expertise. But that’s another rant for another thread.

Suzanne Scholte Wins Seoul Peace Prize

I’m very pleased to report here that Suzanne Scholte, a friend, fellow William & Mary graduate and the wife of my college roommate, has been chosen as the ninth winner of the biennial Seoul Peace Prize. As the linked article notes, several former winners have subsequently been selected to receive the Nobel Peace Prize as well. My heartfelt congratulations to Suzanne and to her family.

In Muted Defense of Gridlock

In Mr. Babka’s “Why I Don’t Want United Government,” reader Jeff Hebert makes some very interesting comments, including the following excerpt:

I find it very surprising that anyone seriously concerned with libertarian issues would support a Republican President this time around. The Bush Administration has had a sustained, hard push over the last eight years to make the “Unitary Executive” doctrine the de facto law of the land. It’s hard for me to imagine anything worse for our liberties than a chief executive with the powers and privileges of a monarch, and yet that’s exactly what Cheney, Bush, Yoo, and company have been working steadily towards.

John McCain has surrounded himself with people who hold the most extreme neo-conservative views in the party. He’s not just going to be four more years of Bush, he’s going to be four more years of the worst parts of Bush. If the idea of “anything’s legal if the President does it” doesn’t scare you way, way worse than universal health care (plenty of other Western countries have it and yet shockingly their nations have not imploded), expanded union power (ditto), and some changes to the way the FCC works, then I would respectfully suggest that your priorities are way out of whack.

We’ve been witness to a full frontal assault on the concept of separation of powers and the enshrinement of a monarchical executive, largely unnoticed by the vast majority of the country. When asked what he would do with his first 100 days in office, Obama said “I would call my attorney general in and review every single executive order issued by George Bush and overturn those laws or executive decisions that I feel violate the constitution.” That’s exactly what I want to hear.

I certainly agree with much of Mr. Hebert’s characterization of both the Bush Administration and of John McCain. If we were discussing Obama versus a third Bush term, I'd be more inclined to agree as well with more of Mr. Hebert’s reasoning. As matters stand, however, and subject to change on a daily basis, Democrats are likely to increase their control of both the House and the Senate, so the question becomes not which candidate successfully pursuing his agenda poses the greater threat but which candidate is least likely to successfully push his agenda.

I'm no McCain fan or supporter. The man is an autocrat and, from just about every insider report I've ever heard, one of his many homes is in Cloud Cuckoo Land. The question is whether giving McCain yet another residence, this time on Pennsylvania Avenue is more likely to perpetuate or worsen Bush’s imperial presidency versus what sort and how much damage is likely to occur in an Obama Administration.

I continue to believe that what genuinely troubles the Democratic Party is not the immense and increasing power of the presidency but merely the fact that it’s not currently theirs to use. I agree with Mr. Hebert that there are worse things than socialized medicine. Perpetual war, for example, springs to mind. Furthermore, as offensive as a return of the Fairness Doctrine would be, it isn’t exactly like John McCain is a staunch defender of free speech. But, whining from progressives aside, there is absolutely nothing I know about Obama to lead me to believe he would be cautious in his use of executive power once it was given to him or, frankly, that he would not pursue a far more leftist agenda than he has so far proposed. Like McCain, he is not a man who tosses and turns late at night fretting with self-doubt.

Speaking of which, does Mr. Hebert really like to hear a candidate promise to “overturn those laws or executive decisions that I feel violate the constitution”? Feel? Okay, so maybe Obama was speaking somewhat informally or imprecisely. But just how does he plan to go about overturning not merely executive decisions but laws as well? Let's at least hope not by fiat.

The key to winning the presidential election in the U.S. continues to lie in campaigning sufficiently close to whatever the political middle happens to be to wrest away swing state (electoral) votes from your competition. If Obama announced his intention to press for legislation requiring universal “public service” nonmilitary conscription of 18 year olds and a 50% increase in all marginal tax rates, he’d win Massachusetts just the same but he’d lose Virginia for sure and probably Ohio, too. If McCain announced his intention to reinstate the military draft and abolish the Department of Education, he’d still probably win Mississippi and Arizona but lose Virginia and Ohio. Okay, so maybe my examples can be argued, but there are dead certain red states and dead certain blue states and a slowly shifting handful of swing states where the battle will be waged.

But none of that has anything to do with how the winner governs. Politicians all lie. Maybe not all the time but whenever necessary. If McCain really gave a damn about Obama’s lack of experience he sure as hell wouldn’t have picked Palin as his running mate. If Obama really gave a rodent’s hindquarters about change he wouldn’t have picked long-term Washington insider Joe Biden. They’ll both do and say what they believe they need to do and say in order to get elected. Once elected, they’ll do what they bloody well want to do.

Unless another branch of government stops them.

I hesitate to make the next point, but sooner or later it must at least be put on the table. If it is true, and it is, that Obama’s race is a factor in the election, then it is also almost certainly true that Obama’s race would be a factor in Congress’s relationship with his presidency. I don’t know how that would play out and I am not accusing Obama of anything so crass as “playing the race card” either now or should he be elected. I do think, however, that members of Congress will have to weigh one more factor in any decision to oppose or criticize a President Obama and that is whether such criticism or opposition even hints of racial animus.

Perhaps not. Perhaps even raising the issue shows a disconcerting oversensitivity to such matters on my part. Even so, all other factors being equal, I must believe there is a far greater likelihood of a Democratically controlled Congress standing up to a white Republican president than a black Democratic president regardless of the merits of whatever issue is under consideration.

Libertarians aren’t going to get minimal government any time in the foreseeable future, so minimally damaging government is the best they can hope for. Minimally damaging government tends invariably to be government that does the least regardless of how big it already is, so maximal gridlock is the best possible outcome from a libertarian perspective.

But best possible outcomes can be nearly as far removed from ideal outcomes as worst possible outcomes. I haven’t decided to vote for or otherwise support McCain. Far from it, in fact. But I certainly can understand how other libertarians, perhaps reasoning as I have here, might decide that, contra Mr. Hebert’s comments, voting for McCain is the most proactively libertarian thing they can do this time around. Doubtlessly (well, hopefully, anyway), they’ll be holding their noses as they do so.

This much I do know, though. If monopolies and collusive oligopolies really are bad for the general public, then undivided government and political “bipartisanship” ought to be prohibited on antitrust grounds. And that would still be true even if the president and every member of Congress were self-styled “Libertarians.”

Just Wonderin'

Mind you, I don't pay any credence to the rumors over presumptive Democratic presidential nominee, presumptive president, presumptive messiah and just plain presumptive Barack Obama's citizenship qualifications, but if by any stretch of the imagination it turned out after he won that he wasn't constitutionally a natural born citizen, shouldn't that mean the Republicans can run this guy in 2012?

Selfishness, Egoism and Altruistic Libertarianism

It is a cliché among many psychologists and economists that human beings behave self-interestedly. Moreover, since Adam Smith’s somewhat theological, somewhat anthropomorphic “invisible hand” metaphor, it has been almost an article of faith within the latter discipline that the collective, societal result of individual self-interested behavior is ironically salubrious.

It is a faith to which I also ascribe, although like all but the most zealous of religious fanatics I season that faith with the occasional heresy here and there. Crucially, however, it needs to be noted at the outset that not just any sort of self-interested behavior contributes to the common wealth and greater good. Specialization and trade, voluntary association, bargained-for exchanges, common rules and some sort of enforcement mechanism to address rule breaking are all necessary elements for human society to flourish economically, for the invisible hand to prove, as it were, optimally dexterous.

Most importantly, “self-interested” is not synonymous with “selfish.”

Discussions about selfishness elsewhere on this blog got me thinking about these things. I am no Ayn Rand scholar, nor do I purport to be an Objectivist. Undoubtedly, however, Rand’s followers constitute a significant and vocal segment of the libertarian community. (It’s a non-gated community, after all, noted for its lack of zoning regulations, restrictive covenants or entrance requirements.) Anyway, given that Rand published a collection of essays entitled The Virtue of Selfishness: A New Concept of Egoism, it should be clear just from the title’s use of the word “egoism” that she or Nathanial Brandon, as the case may be, intended to give the word “selfishness” a special, technical meaning in the overall context of Rand’s worldview.

But selfishness and egoism are two separate things, a fact I assume Rand understood perfectly well when she deliberately invoked the apparent contradiction of selfishness as a virtue for its rhetorical impact. Whatever Rand’s standing as an intellectual and participant in the history of political philosophy, she was also certainly a polemicist with a particular political agenda in opposition to what she correctly perceived as the 20th century’s greatest threat to humankind; namely, the threat of collectivism. You simply cannot read Rand fairly without bearing that in mind.

The important point is that selfishness is a common language concept, not a technical term. Anyone fluent in English knows what it means and knows, more importantly, that it entails a negative moral judgment. Selfishness is by definition a bad thing. It’s using up all the hot water in the shower when others are waiting, eating up all the cookies instead of sharing them with friends or family, and so forth. (Except, perhaps, at the Ayn Rand School for Tots, although Ms. Sinclair couldn’t have really been much of an Objectivist since the first thing she did was violate Maggie's pacifier property rights.)

Selfishness moreover logically entails and presupposes that there is some preexisting community to which the individual belongs and some moral commitment to that specific community. I, for example, live with my family in a household where there is a finite supply of hot water and cookies. If I stand in the shower for an hour shoving one increasingly soggy chocolate chip cookie after another into my mouth until both supplies are exhausted, I am acting selfishly relative to my family. It is less clear that I am being selfish when I buy the last package of cookies at the store, thus depriving the next cookie junkie from his or her fix, or when I purchase the big, heavy-duty water heater for my house. It is less clear, still, that it is properly called selfishness to eat any of those cookies or use any of that hot water knowing that many millions of people across the globe have neither cookies to eat nor any hot water to shower with.

To be sure, there are those who claim that the last is selfish, although the overwhelming majority don’t really believe it based on how they, themselves, actually live. The notion that we as individuals have moral obligations to humanity at large is, to put it mildly, very problematic. The point, in any case, is that we wouldn’t be inclined to call all sorts of behavior like eating a cookie selfish simply because every cookie eaten is, necessarily, a cookie no one else can eat. The morality of sharing does not require splitting my cookie into several billion pieces so everyone can have some.

Egoism, by contrast, is not an ordinary language word or concept. Mothers don’t scold their children for being egoists when they selfishly eat the last cookie. Indeed, if you peruse its Stanford Encyclopedia of Philosophy entry you will discover that there is not even a single technical sense of the term.

We pause now while I grind a philosophical axe for a moment. There is a critical difference between, on the one hand, the theory of psychological egoism, the theory that claims it is simply a fact that human beings always and under all circumstances behave self-interestedly and, on the other, ethical or rational egoism. These theories contend that morally right behavior or rational behavior, respectively, simply is self-interested behavior.

These latter may be right or wrong and are certainly subject to criticism, but at least they both admit of the possibility of unethical or irrational behavior. That is to say, the ethical egoist acknowledges that people are capable of behaving other than self-interestedly, she simply argues that they shouldn’t. So, too, the rational egoist doesn’t claim that we always act rationally, i.e., self-interestedly, but only that we should or that it is only when we do that our actions deserve the appellation “rational.”

Psychological egoism, by contrast, obliterates the normative force of self-interested behavior, whether for good or bad. Indeed, it obliterates normative considerations in the same way all strong forms of determinism do: if “ought” implies “can” but one cannot act differently than one does then it is absurd to claim that one ought to have acted differently. Moreover, if all behavior is, by definition, self-interested, then it is a fair question to ask of this non-falsifiable metaphysical theory what sort of substantive claim, if any, it really is making.

Axe grinding concluded, I’m reasonably confident that Rand was an egoist in both the ethical and rational egoism senses. In retrospect, however, it is perhaps unfortunate that she chose to use “selfishness” as a rhetorical device to describe her egoism because it opens both Objectivism in particular and libertarianism in general to the sort of prejudicial criticisms Mr. Hanley recently bemoaned.

In fact, Rand aside, there is nothing at all incompatible about libertarianism and altruism. Not, at least, if altruism is understood not as Rand technically used the term but simply as the opposite of mere selfishness. It is hardly altruistic, in the ordinary sense of the term, to coerce other people to behave in supposedly selfless ways in order to achieve your personal vision of the greater collective good even if that greater good is thereby realized. But it is unarguably immoral to coerce others using that rationale when, in fact, it becomes painfully obvious that the exact opposite results.

Indeed, if we’re looking for a single lesson from the history of the 20th century, we could do much worse than conclude that, no matter how noble their advocates’ intentions may have been, collectivist social and economic orders yield disastrous results. Obviously, therefore, noble intentions are no guarantee of success. Libertarianism has never claimed that in a libertarian world order everyone will win and "all must have prizes." In fact, as far as I know, only utopian collectivists and Lewis Carroll's Dodo have made that claim.

But then Carroll, of course, knew he was talking nonsense.

Democratic ’08 Ticket: O.- B., But No GYN

Two or three semi-random thoughts on Obama’s selection of Joe Biden. First, my son’s intelligence (read: information, not I.Q.) from working this summer on a “Blue Dog” Democrat’s re-election campaign turned out to be entirely accurate. (Note to Self: Remember to listen to son occasionally in the future.)

Second, given Biden’s solidly liberal record, Obama has determined that he does not need to position himself to appear closer to the political middle in order to win. (Yes, I know there are even more liberal Democrats Obama might have chosen, but a quick perusal of the infallible, inerrant and entirely trustworthy Wikipedia entry leads me to the conclusion that a “moderate liberal” is someone who purports to oppose the Castro regime in Cuba.) It suggests, also, that Obama thinks (I think correctly) that he is vulnerable regarding foreign affairs and that Biden will provide additional credibility.

Most intriguingly, however, is that Obama chose a man. Hey, black men got the vote before white women did, too, so he’s just being traditional, right? Seriously, though, and aside from ensuring that Hillary Clinton will now work tirelessly, day and night, to see to it that Obama loses in November, does Obama believe that too much demographic “change we can believe in” is a loser in the general election? Does he believe (I suspect correctly) that liberal white women can be taken for granted come November just as black voters have historically been taken for granted by the Democratic Party? Does he believe that there really aren’t any sufficiently qualified women out there? (Hillary included?)

Finally, does he really believe Joe Biden is the best qualified man not merely to help him win the White House but to serve as Vice President? Nah, whatever else is going on, it sure as hell couldn’t be that. Could it?

Ezra Levant Update

Back in January, I urged readers to check out the blog of Canadian journalist Ezra Levant. Levant was subjected to a year-long investigation by the Alberta Human Rights and Citizenship Commission following a complaint by the Edmonton Council of Muslim Communities over his publication in the Western Standard of the Danish Muhammad cartoons that had so many other publishers cringing in fear. I'm happy to report that the complaint has finally been dismissed and, as a friend at a forum site I frequent said, Canadians are at least tentatively embracing free speech.

As can never be noted too often, speech about which we already approve doesn't need legal protection.

More to the point, I would refer readers again to Mr. Levant's web site and specifically to his taping of the complaint hearing interview available here. I will repeat what I said originally: Levant’s responses to the bureaucrat seated across the table from him during the taped hearing is precisely how free people should deal with government officials under such circumstances.

Congratulations, Mr. Levant.

Patent Nonsense

One of the things that distinguishes intellectual property from the more intuitively obvious tangible variety is that the very notion of intellectual property requires a justification in the sense that tangible property almost never does. Utopians of one variety or another have tried, almost always with disastrous consequences, to abolish the institution of private property, but as far as I know there has never been a society that has denied the existence or necessity of property rights of any sort at all. Typically, their alternative has been to assert some sort of collectivist or communitarian ownership; but while it may be that the clan or the tribe “own everything in common” or the “people (collectively) own the means of production,” woe be any rival clan or tribe or people who happen by and start asserting similar property rights in the same stuff. Wars have been known to start that way even in utopia.

The obvious thing about tangible property is that, being stuff, it’s there whether we call it property or not. That is, whether ♫ This land is my land (or) this land is your land ♫, this land is here whether we say so or not, let alone whether ♫ This land was made for you and me. ♫ And so are its flora and fauna and minerals and water running through it or beneath its surface, etc.

How human society has gone from the realization that the world is filled with stuff to the notion that some of it is our stuff (or your stuff or, most importantly, my stuff) is an interesting topic, but not one with which I wish to concern myself here in any detail. If you care, I’ll merely note in passing that I reject all “natural right” theories of property, personally, especially including the so-called Lockean “labor + stuff = property” theory.

Still, I constantly run across fellow self-described libertarians who believe in one sort of natural rights theory or another and a fairly large number of them believe that their theory justifies the notion of tangible personal property (whether, forgive the legalism here, real or chattel) but not intellectual property. Intellectual property – by which I mean here the usual unholy trinity of patents, copyrights and trademarks – is on this account the equivalent of a state enforced and, worse yet, state created monopoly. To which I respond:

Yes, that’s true. Exactly like the state-created and state-enforced monopoly any owner of any sort of property whatsoever enjoys versus any non-owner. To be sure, the land would still be there with or without a state enforced legal system, but it wouldn’t be anyone’s property. Not in anything like the sense we mean by property now, that is. All of our philosophical twaddle about what should or shouldn’t or can or can’t be deemed property aside, the ownership of a patent or trademark is no different from the ownership of an automobile or a condominium. They are all creatures of the state or, more specifically, of a state enforced legal system one of the principle justifications for is the sorting out of competing claims over the same resources.

Ah, say my opposition, but land and the stuff we find and trap or kill or take and make new stuff out of on the land (and sea) are quintessential examples of real resources; namely, natural resources. Patents and trademarks and copyrights are mere fictions.

I agree. But they are highly useful fictions, and if my libertarian confrères would get off their pseudo-Kantian high horses about absolute right and wrong and concentrate instead on the far more useful questions of pragmatic good or bad, I think they’d be more inclined to agree with my perspective. Which is as follows:

(1) The state of the law of intellectual property is in need of serious reform, but (2) we would all be better served by, for example, a reformed law of patents than by the entire abolition of patents. For you theorists, I will add (3) there are no serious theoretical reasons, ethical or otherwise, precluding us from, as it were, saving the baby even as we throw out the dirty bathwater here.

By way of giving an example of the sort of unnecessary and counterproductive infanticide I have in mind here, let me quote extensively from a recent Kevin Carson piece over at Art of The Possible. Carson makes his point by quoting a commenter there, and because I am too lazy to edit extensively I will do the same, as follows:

2) Eliminate drug patents. Patents are often justified by the allegedly high cost of developing drugs. But as frequent AoTP commenter quasibill observed, the main source of the expense is not developing the version of the drug that is actually marketed, but gaming the patent system. He challenged the popular misimpression, encouraged by smarmy drug company ads,

that what big pharma is researching is cancer meds. It’s not. In the rare instances that big pharma produces and markets such medicines, it has purchased them from small start-ups that themselves are the result normally of a university laboratory’s work. When big pharma cites to billions of research costs, what it is talking about is the process whereby they literally test millions of very closely related compounds to find out if they have a solid therapeutic window. This type of research is directly related to the patent system, as changing one functional group can get you around most patents, eventually. So you like to bulk up your catalogue and patent all closely related compounds, while choosing only the best among them, or, if you’re second to market, one that hasn’t yet been patented.

This work is incredibly data intensive, and requires many Ph.D’s, assistants, and high powered computers and testing equipment to achieve. But it is hardly necessary in the absence of a patent regime. In the absence of patents, (and of course the FDA), you could just focus on finding a sufficient therapeutic window, and cut out the remaining tests.

Patents also grossly distort the market, leading drug companies to focus most of their research on “me too” drugs that tweak an existing formula just enough to enable it to be repatented, and use it to replace the older version that’s about to go generic. Then the drug reps hit the hospitals and clinics, drop off some free samples and pamphlets, and (most M.D.s relying on drug industry handouts for their information on drugs that come out after they leave med school) the “me, too” drug becomes the new standard form of treatment.
The license cartels and drug patents are two examples of essentially the same phenomenon: First, the government creates a honey pot by enforcing a monopoly and making particular forms of service artificially lucrative. Then the market skews toward where the money is, as practitioners adopt the more lucrative business model and crowd out affordable alternatives.

Okay, so let’s clear the air here a bit. In the first place, whatever may be the truth about the claim that “[p]atents are often justified by the allegedly high cost of developing drugs,” the better question is whether we will have more and better drug research and development with patents or without them regardless of whether those patents go to “big pharma” or to “small start-up firms.” That is, we shouldn’t really care who the incentive of profitable patent rights is spurring on to do research, and that is true whether such research is on cancer drugs or toe fungus drugs.

If Mr. Carson or his commenter believe that there are better ways to encourage such research, they should by all means argue for them. I, however, know of no better incentive than self interest and until I am shown fairly compelling evidence to the contrary, I am not inclined to believe that removing the profit motive from drug research is likely to produce a better, more readily available or affordable pharmacopeia.

Now, that said, no one bothering to read this far should leave thinking I’m an apologist for the pharmaceutical companies. Their successful efforts some years back to retroactively extend the life of patent protection (and similar so-called “reforms” in copyright for the entertainment industry) constitutes nothing more than massive theft and the politicians who voted for such theft should all be horsewhipped. They all created and / or invented whatever they did when the state of the law provided a certain term of proprietary rights and they should enjoy the benefit of that bargain, but nothing more. If the case could be made for patents or copyrights of longer duration, whether for drugs or novels or whatever, fine. But such revised laws should take effect only prospectively. Retroactive extension deprives the public (you and me) of our rightful future expectations with regard to these properties, future expectations we have been paying for throughout the life of the original patents or copyrights. Moreover (okay, go ahead and get back on your Kantian high-horse for a moment here), fair’s fair and a bargain is a bargain.

I don’t deny that the current state of patent law should be extensively reformed (starting with repealing the patent extensions granted “big pharma” in the recent past). It is also true that, to use Mr. Carson’s phrase, patents “distort the market ... [skewing it] toward where the money is.” But, ignoring the emotive connotations of “distort,” it is true of all property schemes that they provide incentives toward certain sorts of behavior and against others.

Perhaps the current system does encourage gaming of sorts which we want to discourage, instead. Perhaps we permit new patents on new drugs that are too closely similar to previously developed drugs. I say perhaps. In fact, I don’t know whether it does or not. The point, however, is that there are all sorts of ways of changing the existing system short of simply abolishing it.

And replacing it with what? The milk of human kindness as a spur to research or, what I fear is the real intended replacement, more massive government control and funding?

Do you want more invention and innovation or less? Do you want more creative works of art or fewer? Those, I think, are the critical questions in any useful discussion of intellectual property. And at the risk of repeating myself, details aside, I know of no better means of getting more of both than by encouraging self-interest through the creation of private property interests in the fruits of such invention and creativity.

Do you?

What's Black And White And Red-Taped All Over?

When pondering whether politicians are being disingenuous or really are as stupid as they appear, remember that these two are not mutually exclusive. So when Dallas County commissioners squabble over whether the phrase “black hole” includes racist overtones and requires an apology, the mind reels at trying to discern whether this is a case of race bating on the part of the white commissioner, the black commissioner or both.

The context here was the loss or misplacing of files in the Dallas County central collecting office. White commissioner Kenneth Mayfield called the office a “black hole,” black commissioner John Wiley Price “corrected” Mayfield and called it a “white hole” and then “Judge Thomas Jones, who is black, to demand an apology from Mayfield for his racially insensitive analogy.” (Note to the incredulous: judges are elected in Texas.)

A black hole, the Dallas Morning News dutifully reported for its public school educated readership, is "the invisible remains of a collapsed star, with an intense gravitational field from which neither light nor matter can escape."

Lest you presume that I, being white, naturally side with Mayfield here, it occurs to me that it may be the case, known to him and his colleagues, that the personnel working at that office are predominantly African Americans, in which case his comment might indeed have been an intentionally elliptical racist innuendo. Of course, that credits the man with significantly more wit and verbal talent than the vast majority of politicians at any level have, but it can’t simply be rejected as a theory. I hasten to add that I know nothing at all about any of these men or about Dallas County’s bureaucracy. I do know something about bureaucratic inefficiency, though, and such knowledge includes the fact that incompetence and indifference are equal opportunity qualities commonly possessed by government employees of all shades. (Wait a minute! When I just said "shade," did I mean... oh, never mind.)

In any case, race bating and posturing, whoever may be at fault here, is a tiresome game. Sadly, however, there must still be a strong market for it among voters, else politicians wouldn’t supply it with such tedious regularity. Personally, I am in favor of politicians acting as idiotically as possible as frequently as possible in public. How else will the public ever come to understand what they (and, perforce, you and I) are paying for?

New Corn Laws Adam Smith Would Also Dislike*

Diamonds are scarce like every other economic good. Their scarcity, however, is vastly exaggerated by those in the business of marketing them as a luxury. If the cure for cancer were discovered tomorrow, however, and if it somehow required natural, i.e., not man-made diamonds, the demand for diamonds would skyrocket and they would legitimately command an even higher price.

Food, by contrast, is not a luxury but a necessity, at least in its most elementary forms. Moreover, the poorer you are, the more you will spend of whatever your income may be on food and the more vulnerable you will be to any sudden and significant increase in its price. Four dollar a gallon gasoline inconveniences middle-class Americans but a 75% increase in global food prices is catastrophic for poor people around the world.

Which is precisely what an unpublished World Bank study is being reported as claiming.

In the rush to report such things (and, yes, the rush to report such reports), it more often than not occurs that sensational conclusions such as this are not only misleadingly taken out of context but, once the data is actually made available, subsequently shown to be unsubstantiated by that data. That needs to be said here, as well.

Still, whatever the figure may be, whether it is 75% or the laughably and unbelievably small 3% the U.S. government has claimed plant-derived fuels contribute to recent food price increases, it takes no more than common sense (never in large supply, I grant you) and a passing grade in intro economics to realize that a new and large demand for a commodity will at the very least temporarily raise its market price. Moreover, at some point, if that demand continues or, worse yet, continues to grow, suppliers will not be able to meet such increased demand at whatever the former market price may have been.

U.S. energy policy (not unlike U.S. health care policy) is criminally broken. I mean “criminal” in a moral, not a legal sense, and yet the fact that alternative bio-fuels like ethanol are being mandated by our elected weasels in Washington artificially skewing both the energy and the food markets and contributing no end to the misery of the world’s poor probably should be a crime of some sort. It is, in fact, simply a forced redistribution of wealth for nothing more than the ephemeral political advantage of those office holders who temporarily placate their constituencies as a result, never mind the unintended and sometimes tragic consequences others must suffer.

But that is the political reality. Starving people in third world nations don’t vote in U.S. elections, whereas Kansas and Nebraska corn farmers do.

(* Yes, I do in fact know that when Adam Smith first wrote about corn laws the word "corn" was a generic term for grains.)

Torture By Any Other Name

I strongly encourage you to read Christopher Hitchens' first-hand account of the experience of waterboarding in Vanity Fair.

When news first broke that U.S. personnel were using this "enhanced interrogation technique," the ensuing discussions broke into two separate questions: (1) are such techniques torture and (2) regardless, are such techniques ever morally justified.

Much to the dismay of my former co-blogger Thoreau, I have steadfastly remained agnostic on the second question, perhaps to the point where the casual reader might have inferred that I was implicitly sanctioning such behavior in our current, endless War On Terrorism™.

No. I was not. I do not.

Nor have I sanctioned or do I sanction the despicable practice of extraordinary rendition in which the U.S. delivers prisoners into the hands of our less punctilious "allies" to be tortured.

I do not, nonetheless, rule out the occasional, exceptional case where the utilitarian calculus is overwhelmingly in favor of taking the risk torture might work versus the more likely harm to come if it is not attempted. Such scenarios are, ex hypothesi, immune to criticisms that they may not or will not work. Sometimes long shots are all you have.

But, as Thoreau has also pointed out repeatedly, the greatest care must be taken to ensure that the exception does not become the rule, that we do not become beguiled by fear into condoning that which is both rationally and morally beneath us as a people.

Returning to the first point, however, I must confess that in my personal, experiential ignorance of such things I considered it at first an open question whether waterboarding did or should qualify as a torture technique. But whatever initial benefit of the doubt we might once have given officials who either denied waterboarding is torture or attempted to hide behind bureaucratic euphemisms has long since passed. (Such officials, it hardly needs to be added, long ago forfeited any entitlement whatsoever to credibility, anyway.)

I have what I think is, under the circumstances, a modest and reasonable recommendation. Anyone who continues to assert or argue that waterboarding does not constitute torture should immediately be afforded the opportunity to experience it first-hand it as Mr. Hitchens did. If, having done so, he continues to wish to assert that waterboarding is not torture, we should consider his opinion for whatever we believe it is worth.

Otherwise -- that is, should he not avail himself of that opportunity -- he should politely but firmly be told to shut the f*ck up.

Forget “Taxation Without Representation” — New D.C. License Plates to Read “Money, Guns & Lawyers”

If you are an able bodied male resident of the U.S. between the ages of 17 and 45, are either a citizen or have declared an intention to become a citizen and are not already a member of the Armed Services (including the Reserves and the National Guard), Title 10 U.S.C. § 311 says you are, whether you know it or not, a member of the “unorganized militia.”

The unorganized militia doesn’t include any women nor does it exclude gay men unless Congress bought into the “gay men are sissies” (hence not "able bodied") stereotype back in 1903 when it passed the Dick Act. I know, I know!

I, by the way, served honorably in the unorganized militia without so much as a single blot on my escutcheon – and you have no idea how hard it was to keep my escutcheon blotless all those years – and yet I received nary so much as an Honorable Discharge – and you have no idea how boring an honorable discharge can be -- from those ingrates at the Department of Defense!

But to paraphrase Arlo Guthrie, I didn’t come here to talk about the militia, I came to talk about the Second Amendment. As my co-blogger and famed radio personality Jim Babka has already noted today, the Supreme Court’s 5 to 4 decision in District of Columbia v. Heller is a landmark ruling in the never-friggin’-ending struggle between individual liberties and state control.

At least one friend of mine who shall remain nameless but whose initials are RFC will probably be spending the rest of the day gloating to his many more "progressive" friends. And, indeed, notwithstanding the long, long litany of legitimate criticisms one can level at George W. Bush, lets not kid ourselves into thinking that the decision in Heller would have been the same if a Gore or Kerry nominee were sitting on the Supreme Court right now.

Of course, the reason I began with the business about the militia is because, for those of you who haven’t already memorized the Bill of Rights, the Second Amendment reads:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

As you can readily see, the Founders seemed to think there was or should be some sort of connection between keeping and bearing arms and a well regulated militia. Then again, they also seemed to think a comma was required after “militia,” so maybe we shouldn’t always defer to what they thought.

Still, much of the palaver over gun rights since roughly 1791 has swirled around whatever the nexus between militias and individual rights is or should be, and now the Supremes have finally stepped up to the plate, or firing range as the case may be, and answered the mail. (If you like that mixed metaphor, I have many others, too!)

Here, however, is where I feel required to make a few turd in the punchbowl comments. First, as I tried valiantly but vainly to explain some years ago to an otherwise extremely bright and knowledgeable Michigan law professor who shall also remain nameless, the Critical Legal Studies boys and girls had it right, not in their actual politics (which almost universally sucks) but in their understanding that the language of the law is almost limitlessly flexible and that just about any legal result desired can be effected by those with the power to do so.

What this essentially means is that, even before Marbury v. Madison, there are no correct Supreme Court decisions, nor are there or have there ever been any wrong ones either, even including, for example, Plessy v. Ferguson and Dred Scott. They simply are what they are and the wealth of 5 to 4 decisions over the years amply demonstrate that, over and over again, but for the opinion of one person the law of the land could and would have been vastly different. Argue about the morality or the desirability of this decision or that all you want, but save your breath when it comes to whether it was decided "correctly."

Second, never underestimate the power of the state and those who would use the state to do exactly what they want while telling you what to do and what not to do. Remember that when the largely pyrrhic victory against reverse discrimination in Regents of the University of California v. Bakke was first announced, the same statists who had originally latched onto the phrase “affirmative action” to justify racial quotas now latched onto Justice Powell’s probably careless assertion that “diversity” was a legitimate state interest. Thanks to Justice O’Connor’s subsequent “reasoning” in Grutter v. Bollinger, equal rights advocates have only twenty years now to try again.

My point – and, yes, I do have one – is simply that the Supreme Court, just like the federal government taken as a whole, has been and continues to be as much a threat to individual liberties as a protector. If you really want to maximize freedom, minimize government.

On The Road Again

The Atlantic recently posted a fascinating article by John Staddon entitled “Distracting Miss Daisy.” Staddon, who grew up in Great Britain, argues that the seemingly ubiquitous presence of stop signs and speed limits on U.S. roads actually distracts drivers’ attention, conditions them into relying more on compliance than concentrating on actual road conditions and leads, as a result, to more accidents.

These are the sorts of arguments that warm the cockles of a libertarian’s heart assuming, of course, that libertarian hearts have cockles. Staddon reminded me also of the perfectly obvious point – obvious once made, that is – that because seat belts and air bags reduce the “cost” of unsafe driving, drivers will on average be more reckless as a result. This is called “risk compensation,” but it is really just another example of the notion that, in general, the quantity demanded of any good will rise as the price of that good decreases. Lowering the driver’s odds of injury in case of an accident makes the prospect of such accidents that much more “affordable.” (Volvo drivers excepted, perhaps. I am convinced that Volvo’s much touted safety history is as significantly the result of safety-obsessed owners and drivers as it is of the car’s engineering. Compare the likely Volvo buyer with the likely Porsche buyer. I rest my case.)

Staddon also makes the passing comment (no pun intended) that the use of stop signs at practically every secondary street intersection and our inexplicably popular 4-way stop intersections, however egalitarian they may be, waste a great deal of energy. I have no idea whether there are any studies out there to demonstrate our increased fuel consumption as a result, but anything that might cause a policy war between environmentalists and traffic safety fanatics (MADD springs to mind here) should certainly be explored.

The article is well worth a read, but I’m a bit dubious about the extent to which Staddon’s argument springs from anecdotal evidence of his experiences driving in the U.S. and in Britain. I don’t know what the actual accident rate comparisons would be, but my anecdotal experience of driving in the U.K. [insert lame joke about driving on wrong side of the road here] is that the British drive far more slowly than Americans do and that, outside London and its other major cities, there is far less traffic in Great Britain in the first place.

Moreover, driving behavior is at least partially influenced by culture. I lived in Italy for several years and can testify to the fact that neither the presence nor the absence of traffic signs has anything more than an aesthetic effect on Italian roads and highways. Whatever their intended purpose, they certainly don't influence Italian drivers in the slightest. In Germany, where I also lived, there are only two driving speeds throughout the entire nation: too damned fast and too damned slow. Germans are also indifferent to whether traffic signs are posted or not, having had the rules of the road drilled into them with a ruthless efficiency as part of the drivers’ licensing process. Besides, there’s very little crime in Germany, anyway, because ... wait for it ... it’s against the law.

I will pick one semi-major nit with Staddon’s article. He begins with an example from, of all places, my home town, as follows:

There is a stretch of North Glebe Road, in Arlington, Virginia, that epitomizes the American approach to road safety. It’s a sloping curve, beginning on a four-lane divided highway and running down to Chain Bridge, on the Potomac River. Most drivers, absent a speed limit, would probably take the curve at 30 or 35 mph in good weather. But it has a 25-mph speed limit, vigorously enforced. As you approach the curve, a sign with flashing lights suggests slowing further, to 15 mph. A little later, another sign makes the same suggestion. Great! the neighborhood’s more cautious residents might think.

Later in the article he continues:

Which brings me back to North Glebe Road in Arlington. It turns out that the speed signs do perform an important safety function: in wet weather, many drivers had taken the curve too fast; traffic authorities have substantially reduced accidents on the curve by adding the 15-mph warning sign, and they would be foolish to remove it, absent larger changes in American traffic policy.

Now, in the first place, I’ve been taking that curve at closer to 50 mph all my life. More to the point, I’ve spent the bulk of my life residing in the People’s Republic of Arlington. I guarantee that, whatever dubious and quite possibly cooked statistics Arlington’s bureaucratic weasels traffic authorities may have dished up, the fact is that those speed limits are set as they are because the “more cautious residents” in one of Arlington’s most affluent neighborhoods simply wanted to dissuade teenage drivers from racing near their million dollar plus homes. Not that Arlington’s totalitarian nanny state Democrats aren’t safety fanatics, mind you. If just two more speed bumps were added to the typical neighborhood street it would become perfectly flat again.

But I digress. Further proof, I suppose, that I shouldn’t drive and type on my laptop at the same time.

Some Notes on the Social Institution of Marriage

Some of the more vociferous recent discussion over at Positive Liberty – by which I mean at the blog, not in my threads where I largely concern myself with talking pandas and such – surrounds what counts as marriage and what, therefore, counts as an argument for or against marriages of any sort and marriages of every sort. As always, I take a vaguely Wittgensteinian approach to these sorts of questions, which is to say several things.

First, like any other word that did not begin its linguistic life and remain that way as a technically defined term (like, say, “quark”), the way we use that word is going to vary over time and from place to place.

Second, the ways the uses of a word vary will more likely suggest that what these different uses nonetheless have in common is more a matter of ‘family resemblances’ than of some essential core definition. Generally, the more philosophically interesting an ordinary word like “marriage” is, the more likely it is to include within its ambit some ‘second and third cousins’ whose resemblance to each other is vague at best. Moreover, it is likely to be ambiguous (see, e.g., William Empson on ambiguity) in ways that cause a great deal of conceptual confusion.

Third, we have it in our power to give any word a new use. But, that said, we are foolish if we don’t expect that doing so will have consequences and we are prudent to try to think through what those consequences may be.

Moving from Wittgenstein to the more prosaic ways arguments get confused, let’s remember (or at least pretend) that there is a vast difference between the normative and the positive. What I mean is this. If the hypothetical State of Homotopia affords a legal status to some long term homosexual unions that it does not make available to heterosexual unions and it calls those unions marriages, then it is true that homosexual marriage exists in Homotopia but heterosexual marriages do not as a matter of law. Whether that’s a good or a bad thing is an entirely different sort of question.

Moreover, what we might want to say about heterosexual unions in Homotopia that, but for the different legal status, act as though they were legally married is up for grabs, too. We can call them marriages-in-fact or quasi-marriages or nonlegal marriages or just plain marriages. But we need to be clear when we say that Henry and Frank and Betty have a family resemblance that Henry and Betty have similar ears, while Betty and Frank’s eyes look similar, etc. We owe it to ourselves and to those who disagree with us to try to be painstaking about that. Otherwise, we end up just spinning our wheels conceptually.

Now, let’s return to that prehistoric, stateless ‘state of nature’ that Rousseau so loved and Hobbes so loathed and movie makers like to stock with dinosaurs and towering black obelisks. Those dioramas at the Smithsonian and all those Indiana Jones movies, aside, we really don’t know how prehistoric people lived because – duh! – they’re prehistorical. Sure, we’ve got the archeological and paleoentological evidence and so forth, but all they add up to are grist for some likely stories.

And here is roughly the story we tell ourselves outside of Vacation Bible School where a different story might be told. Primitive men (and primitive women, too!) were probably hunters / gatherers at first, and the men probably did most of the hunting while the women did most of the gathering. This is because it is easier to care for small children while gathering than while hunting and, besides, testosterone poisoned males had to run off all that steroid induced energy somehow while estrogen enhanced females pondered such things as what sort of ‘treatment’ would dress up the cave opening.

There were, luckily for us, at least enough heterosexual primitive men and women in those early days to make a go of things, species-wise. (This is why heterosexuals enjoy the honorific among some in the gay community of “breeders.”) As the evolutionary biologists tell us, homo sapiens are just like every other species when it comes to being nothing more than a DNA replicating mechanism, so both males and females were hard-wired from even before they were a separate species (or from the very instant God’s intelligent design made them that way, it really doesn’t matter for this particular story) not only to desire sex but to want to see to it that their resulting progeny survived.

But this is a problem for human beings. We have a long gestation period as a species, at least the last part of which would make the independent survival of women doubtful. So would the years and years of care and attention human offspring require in order to survive. You can care for an infant or you can go hunt and gather, but you probably can’t do both at the same time very successfully. Besides, prehistoric women really were attracted to those big handsome lugs walking around yelling “Yabba Dabba Do” and bringing home today’s catch. But Fred, who, let’s face it, was probably doing Betty on the side when Barney wasn’t around, needed to know that Pebbles was really his daughter, so he needed to come to some kind of accommodation with Wilma a bit more permanent than the old clubbing / one night stand scene.

So men and women “naturally” pair-bonded and probably many of them discovered that there were all sorts of unexpected benefits (and detriments) to the arrangement. Did they call it marriage? No, probably not, if only because what we call marriage today is a far more complex and, having gathered millennia of historical baggage, ambiguous concept. But we can meaningfully call what they had marriages if we want to as long as we recognize that what we’re talking about is how our distant cousin Rufus still looks a bit like the rest of the family.

Were there homosexual prehistoric people who pair-bonded for some of those other benefits? Who knows? As Hobbes would have us believe, life was nasty, dull, brutish and short, so even heterosexual relationships probably fell rather short of the contemporary lip service given to concepts like “Till death do we part.” But it is certainly more likely than not that whatever prehistoric homosexual activity occurred did not contribute significantly to the way primitive notions of marriage and family developed into tribes and clans and so forth along the social ‘evolutionary’ ladder to the modern nation state.

Now, unless you ascribe to notions of historical inevitability, which I certainly do not, we can probably agree that the civil, social institution of marriage, its subsequent historical religious context aside, could have developed other than it did or, at the very least, that it could now be structured differently than it is without dire social consequences.

So, for example, I have harped fairly consistently that the notion of marriage as status, derived as so much of contemporary western culture does from feudal society, is a remnant of that feudalism and should be replaced with the notion of marriage as contract. (In a nutshell, a legal status differs from the private legal relationship arising by contract in that, typically, the parties involved cannot rescind or revise the legal relationship except, if at all, with state permission. Citizenship is a status. Unfortunately, so occasionally and for some purposes are what the Supreme Court has sometimes called the suspect classifications of race and, increasingly, gender. It’s a complicated topic better left for now to a more full discussion elsewhere.)

But replacing status marriage with contract marriage, regardless of its historical baggage, need not and should not change the legal status of parent and child as a general and sociologically normative rule. (By which I mean the rebuttable but strong presupposition should be that those who sire and bear children are responsible to raise them and should be accorded the requisite legal authority to do so. A legal authority, I hasten to add, to which there must be limits to protect the legitimate interests of children whose parents significantly neglect or abuse them. And, yes, what counts as significant neglect or abuse is open to debate. Yes, too, we can and do make categorical exceptions such as that sperm bank donors have neither rights nor responsibilities regarding their subsequent progeny.)

It should be noted that, as a practical matter in an age of heterosexual serial monogamy and “blended families,” we have already significantly divorced or uncoupled (puns intended) our notions of marriage from our notions of parenthood. Whether Heather has a mommy and a daddy, two mommies, one daddy or a Hillaresque village raising her really has nothing to do with the matrimonial status of any of Heather’s custodial care providers.

* * * * *

I close this with a few observations regarding Mr. Kuznicki’s concerns regarding what he took to be Jennifer Roback Morse’s argument on homosexual marriage. Note that I do not address or much care what her actual argument is but only his responses. As discussed above, I think that it is almost certainly true that marriage grew up “organically” around childbirth and parenting, “whether children are a part of any individual marriage or not.”

Mr. Kuznicki continues:

Others presumably are welcome to the institution, but there’s a clear element of risk to allowing just anyone in: The long history of allowing infertile heterosexual couples to form marriages is all the evidence we need to continue doing as we’ve always done, and letting them get married. The same can’t be said for same-sex couples.

Homosexual marriage, of course, does not grow up around having children. Children have to be grafted onto a same-sex pairing — by the state — and this in itself is an indication that the government is trying very hard to make equal two things that simply wouldn’t be equal in any other case.

And then there are the thought-police issues, which bother me even more. It’s far from clear to me that the state “must” protect homosexual unions if they are ever to work. But this is indeed how it’s turning out in practice. Much of this protection is just the usual PC nonsense that we’d all be better off without, as in the Canadian case. Yet this sort of protection is supposedly extraneous to any proper marriage contract itself — isn’t it?

First, what is that clear element of risk? That people will stop having or raising children? Put me in the skeptical column. As he mentions, there is a long history of marriage of infertile heterosexual couples with no significant if any adverse consequences. Moreover, among the some more than 90% heterosexual population – I’m not wedded to that percentage; plug in your own number if you wish. – we have quite a bit of evidence of children being “grafted” onto or into heterosexual families by virtue of adoption and blended marriages.

The quintessentially libertarian position, in any case, is that the burden must fall on the state not before it permits some exercise of individual freedom but before it prohibits it. It is, by contrast, the quintessentially conservative position (of the Burkean variety) that tampering with long established traditions and institutions is so inherently risky that we must apply the social equivalent of the precautionary principle before proceeding.

Nonsense. In fact, what history (and biology) teaches is that human society is remarkably resilient and adaptable. (Besides, as the standard objection to Burke and Wm. F Buckley. Jr. goes, wherever it is one decides to stand athwart the world yelling "Stop!" is ultimately entirely arbitrary.)

As to “the usual PC nonsense that we’d all be better off without,” however, I can only add “Hear, hear!”

I end with an admission and a question. The hardly surprising admission is that I am predisposed to intense skepticism regarding those nether regions of academia known as [Insert Your Demographic Grievance Here] Studies departments. I wonder, however, whether there has been much sharing between the Women’s Studies people and the Gay Studies people over the extent to which gay and lesbian sexual behavior (which I have been told is rather different as between gay men and lesbians), as it relates or compares to heterosexual sexual behavior, is better explained in terms of sex or sexual orientation. I think the very likely answer is sex, not sexual orientation, and that, if so, that fact is highly significant to these sorts of discussions.

The Ethics of Public Health and Safety Officials

Today’s (UK) Independent Online runs a story entitled "Threat of world Aids pandemic among heterosexuals is over, report admits." While noting that the now over 25 year old disease continues to kill “more than all wars and conflicts,” the far more newsworthy (in the sense of new and unusual) part of the story is as follows:

In the first official admission that the universal prevention strategy promoted by the major Aids organizations may have been misdirected, Kevin de Cock, the head of the WHO's department of HIV/Aids said there will be no generalized epidemic of Aids in the heterosexual population outside Africa.

This is, to be sure, not good news for homosexuals or Africans; but it is, that sad fact notwithstanding, well past time the epidemiological realities of HIV/Aids risk were acknowledged. Just in case there is an outbreak of candor going on among public officials (yes, I know), perhaps someone could say the same thing about resources misspent through the generalized screening for possible terrorist suspects to avoid profiling.

This is a delicate topic. When the “pink disease” was first detected among a handful of homosexual men in Los Angeles in the early 1980s, this originally named Gay Related Immune Deficiency began to attract serious general public attention in the U.S. only after cases of heterosexuals contracting the disease (e.g., female sexual partners of AIDS patients and blood transfusion recipients) were documented. I speak here purely anecdotally, but my impression in the early to mid 1980s was that the U.S. shifted rapidly from a state of almost complete indifference over the plight of homosexuals and IV drug users to a state of panic over their own risk.

Of course, the medical community was mostly ignorant of the nature of HIV/Aids, itself, in the 1980s. But a decade later we had a much better understanding of the retrovirus and, thankfully, much better available treatments. Most relevant here, however, we also had ample epidemiological evidence leading to an almost overwhelmingly obvious conclusion: white, heterosexual male, non-IV drug users -- in other words, the demographic group who wielded the most power in the U.S. and, indeed, in the world – faced just about the smallest real risk of contracting HIV/Aids possible.

Counter-factual arguments being what they are, there is no way of telling whether public support and, more to the point, public funding for HIV/Aids research would have been nearly as extensive in the past quarter century if the general public had known that claims of the universal risk of contracting HIV/Aids were, although true, highly misleading.

Certainly, however, it is at least not unreasonable to suspect that support and funding would not have been as extensive, and perhaps not nearly as extensive, which raises the following interesting ethical question: Is misinforming or misleading the public ever ethically justified on grounds of public health and safety?

By way of addressing this issue somewhat obliquely, let’s ignore for now concerns about giving undeserved ammunition to homophobes and drug warriors whose worldview continues to include the belief that HIV/Aids is God’s punishment for being gay or using drugs. (In passing, I have yet to hear from those who hold that view how it is that God is so piss-poor at punishing junkies and queers that all He can manage to do is put them in a higher risk category?!?) Let’s consider Africa, instead.

A month or so ago, the Onion ran an almost throw away one-liner in the crawl below one of their Onion News Network videos. It read:

ABC cancels new reality show Who Wants To Save Africa? after second episode.

Indeed. (And, yeah, it’s so painfully true that it is funny.)

Of course, you’d be hard pressed to come up with ways in which sub-Saharan Africa isn’t a basket case, and even if you could magically eliminate HIV/Aids from the continent, Africa’s public health record would still be abysmal. But, no doubt about it, HIV/Aids has been epidemic in Africa’s general population to an extent unlike everywhere else. Why?

Dr. de Cock (I know, I know!) says:

It is the question we are asked most often – why is the situation so bad in sub-Saharan Africa? It is a combination of factors – more commercial sex workers, more ulcerative sexually transmitted diseases, a young population and concurrent sexual partnerships.

Sexual behavior is obviously important but it doesn't seem to explain [all] the differences between populations. Even if the total number of sexual partners [in sub-Saharan Africa] is no greater than in the UK, there seems to be a higher frequency of overlapping sexual partnerships creating sexual networks that, from an epidemiological point of view, are more efficient at spreading infection.

Which is to say that there are not only political and economic differences but also social differences in much of African culture which make the spread of HIV/Aids that much more intractable.

Here is the reality, though. As terrible as HIV/Aids is, it is only one of the terrible ways people die needlessly in Africa or, for that matter, around the world. As reason’s Ronald Bailey recently wrote in a report on the 2008 Copenhagen Consensus Conference, “[T]he number 1 priority identified by the experts in the 2004 Copenhagen Consensus was combating HIV/AIDS. That dropped to number 19 in the 2008 ranking."

Ceteris paribus, the same must be said of the U.S., as well.

There are, to be sure, all sorts of objections that can be raised in good faith to that perspective. I wouldn’t be a bit surprised if the medical research focusing on a cure for HIV/Aids didn’t yield important findings for other diseases and disorders. I suspect that the rise of HIV/Aids in the U.S. actually contributed positively to the struggle for gay civil and human rights, ironically enough. Whether disingenuous or not, suggesting that the entire population was similarly at risk for HIV/Aids diminished the stigma unfairly attached to those who, for whatever reason, contracted it. These are certainly collateral benefits to the emphasis in HIV/Aids research and public health policy in the past twenty-five or so years.

But every benefit has a cost, and every tradeoff is susceptible to the reasonable question, was that a good deal? Put differently, only progressives – and not very bright progressives, at that – whine at this point “Well, it shouldn’t be a case of ‘Either / Or.’ We should be able to support HIV/Aids research and treatment and address all those other health and safety problems, too. You’re arguing a false dilemma.”

It may be a false “dilemma,” but it is a very real tradeoff. A dollar spent on X is necessarily not a dollar spent on Y.

So, too, with our most recent insanity, the War On People Living In Caves Terrorism and its most strikingly absurd manifestation in commercial air travel. Randomly searching the luggage and persons of geriatric Lutheran women from Minnesota will not increase air safety any more than police All Points Bulletins advising to be on the lookout for suspects “of no particular demographic characteristics” will help apprehend the bad guys. To all intent and purposes, such women are the statistical equivalents of the white, heterosexual male, non-IV drug users in the case of HIV/Aids.

Yes, there’s a real and vitally important difference between describing someone who has actually committed a crime and targeting people simply because there is a statistically significant correlation between their demographic characteristics and the commission of a potential crime. (And, yes, police engage in the sort of racial profiling that no court can prohibit because, for better or worse, it’s the same sort Jesse Jackson and Chris Rock engage in. And, yes, it’s a bad thing and one of the reasons why, comparatively speaking, being black in America still sucks.)

And there’s “always the possibility,” the ever incompetently vigilant TSA will tell you, that Osama Bin Laden could recruit some Prairie Home Companion grandmother to pack some C-4 up her, well, you know to blow up that puddle jumper from Omaha to Ft. Worth, too. Absolutely true. Here are some other possible occurrences: invasion by space aliens, commercially viable cold fusion energy using ordinary household products, George W. Bush winning the Nobel Peace Prize, my wife finally unpacking and sorting the stuff in the garage (Ouch! Sorry, dear!), a Pauly Shore movie not sucking, and, well, you get the picture.

Exaggerating the risk from or to Group A while discounting the risk from or to Group B always has attendant costs, costs that could otherwise be used to address some of those other perhaps even more important health and safety issues. In some cases, those attendant costs have been unconsciously, obscenely high.

So I return to the original question. Is misinforming or misleading the public ever ethically justified on grounds of public health and safety? When public support for a policy objective, any policy objective depends on deliberately misinforming the public, part of the non-economic attendant costs of that lie must surely be harm to the very core of popular sovereignty.

It remains to be seen whether we will abandon the rewards and risks of genuine popular sovereignty for the promise of health, safety and happiness from our paternalistic nannies. Reality is always a mixed bag, but many recent trends suggest we are well down the road toward making a very bad tradeoff.

I Ponder Again How To Cast My (Meaningless) Vote

Even ignoring the fact that John McCain is barking dog mad, I probably owe my support to Barack Obama. Obama did, after all, manage to wrest the Democratic nomination from its presumptive heiress, a woman who has been working tirelessly to return to the White House even while her husband was facing an eviction notice. I am on record (somewhere) that I’d sooner vote for Osama Bin Laden for President than for Hillary Rodham Clinton, and not only because he looks more fetching in a pantsuit.

People decry big money contributions to political campaigns, and the abomination that is McCain-Feinberg aside, it’s silly to argue that free speech isn’t more valuable to those who can afford to buy more of it. And yet, as reason's Matt Welch recently nailed it:

[Is] there a political tic more nauseating, more unintentionally telling, than a stump speecher [sic] wowing the crowd with heartwarming tales about how some poor Iraq vet, or three-job-having pensioner, or one-armed child eating Puppy Chow straight from the bag, pooled together enough pennies with their last usable fingers to donate to a fucking millionaire's political campaign? If any of these stories are remotely true, it says something mildly worrying about the priorities of certain po' folk, but something straight-out monstrous about the egos of politicians who'd rather pocket the 37 cents (and the infinitely more valuable anecdote) than fold the copper back into the helping hand and say "You know what? I've got enough, thanks. Anything I can help you with?"

Make no mistake, folks. Obama would pocket the 37 cents, too. (And, yes, so would McCain.) Still, Obama has done what, let’s be candid, no white male candidate could have done and kept America, at least for now, from the clutches of that harridan from Hell. Surely, the only person in America today who hates Barack Obama more than Hillary Clinton is Bill, who knows first-hand how little time presidents have to keep track of their spouses.

Obama now faces the vexing decision whether to invite Hillary onto the Democratic ticket as the Vice Presidential candidate. This should be a no-brainer:

Gas Rationing ... (wait for it... ) In Iran?

I don’t know about the ‘Arab Street,’ but according to Azadeh Moaveni, the ‘Iranian Bus’ thinks a U.S. Invasion might not be such a bad thing. Of course, the woman on the bus doesn't really mean it, but what U.S. citizen these days hasn’t wistfully imagined some Deus Ex Machina could magically cure us of our incompetent leadership? (As opposed, let’s be clear, to merely replacing it with new lying weasels next January.) Why should Iran be any different?

Look, I’m no Sharon Stone or anything like that, but maybe it’s karma that we get not only the government we deserve but the enemies we deserve, as well. How else to explain, for example, that the Iranian government controls bread loaf prices but not loaf sizes? Now there’s brilliant economic policy for you. Then, too, how else to explain their President Mahmoud Ahmadinejad, possibly the only foreign leader George Bush might actually beat fair and square in a game of Trivial Pursuit, even the International Edition.

Anyway, the Moaveni piece is well worth a read. We are more than a generation away now from the fall of the Shah. Most Iranians today have no memories of the Pahlavis on the Peacock Throne or their SAVAK enforcers, but plenty of bad memories of life under the Ayatollahs. Maybe if we just left these people alone ....

Top 10 Surprises in McClellan White House Book

From the home office at the Crawfish Ranch, the Top Ten surprises in Scott McClellan's new White House exposé, What Happened: Inside the Bush White House and Washington's Culture of Deception, are:

10. Cabinet meetings scheduled in president’s calendar as “keggers”

9. George Stephanopoulos’s secret stash of hair grooming products left behind podium includes "industrial strength mousse"

8. Flight jacket worn during “Mission Accomplished” speech borrowed from Indiana Jones

7. Karl Rove quit in disgust when polls showed public thought Cheney more evil

6. After hunting accident, Vice President Cheney’s wife Lynne heard to comment “His gun still fires? News to me.”

5. No one on White House staff has ever seen vice president between dawn and sundown

4. President overjoyed that The Hottie & The Nottie finally released on DVD

3. Staff panicked when president rehearsed Axis of Evil speech and kept saying “Iraq, Iran and North Dakota”

2. Secret Service code name for Vice President? “Mr. Burns”

And the number one surprise in Scott McClellan’s new White House “Tell All”:

1. President still pondering last minute third term run