Liberty Against Anarchy

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Surveying the efforts of Free State Project immigrants to New Hampshire to “turn the state into a real-life Libertopia,” Mother Jones (September/October 2011) concluded that there was a “problem with attempting to create a libertarian utopia: No one — least of all libertarians [themselves] — can agree on what it looks like.” You see, some libertarians want even such basic government functions as the police “converted into purely voluntary organizations,” while others simply “believe the problem is too much government, not the existence of government itself.”

"‘Tis news to thee," a libertarian Prospero might respond. But while the debate of anarchism vs. limited government has long divided the movement, champions of a social theory should be able to explain to others what practice it logically leads to.

This was one of the issues that I would have liked to have discussed with Roy A. Childs, Jr. Childs (1949–1992) was a libertarian activist and essayist, known and loved by countless other libertarians — and readers of Liberty. Roy wasn’t the first person to make the case for “free market anarchism” — he was just the most articulate. (On anarchism before Roy, see R.W. Bradford, “In the Beginning, There Were Anarchists,” Liberty, June 1999.) Roy's untimely death ended any possible correspondence. But I continue to think of Roy, and I continue to want to write him as I do here.

* * *

Dear Roy,

We had “met” only once — in 1991, when you returned my phone message . . . at 2:42 AM. You very courteously asked your fellow New Yorker if you’d caught him “at a bad time.” Alas, I remember only two other things about that conversation: some disappointment when you told me you never received the mailed copy of my “Leonard Peikoff vs. Philosophy,”1 but great joy that I was actually speaking with Roy Childs.

I’m writing now to respond to what has become almost the locus classicus of contemporary libertarian anarchism: your 1969 “Objectivism and the State: An Open Letter to Ayn Rand.”2 For many, it was their introduction to — and entrance into — the advocacy of the “establishment of competing agencies of defense.” You yourself eventually abandoned anarchism but never rebutted the essay in detail.3 That is what I will now do, because all the “anarcho-capitalist” polemics since have been little more than its echoes.

You came right out with it: a “monopoly” government limited to retaliatory force could not continue as a “monopoly” government without initiating force, thereby violating that limit, its animating principle. Your foundational argument:

The quickest way of showing why it must either initiate force or cease being a government is the following: Suppose that I were distraught with the service of a government in an Objectivist society. Suppose that I judged, being as rational as I possibly could, that I could secure the protection of my contracts and the retrieval of stolen goods at a cheaper price and with more efficiency. Suppose I either decide to set up an institution to attain these ends, or patronize one which a friend or a business colleague has established. Now, if he succeeds in setting up the agency, which provides all the services of the Objectivist government, and restricts his more efficient activities to the use of retaliation against aggressors, there are only two alternatives as far as the “government” is concerned: (a) It can use force or the threat of it against the new institution, in order to keep its monopoly status in the given territory, thus initiating the use of threat of physical force against one who has not himself initiated force. Obviously, then, if it should choose this alternative, it would have initiated force. Q.E.D. Or: (b) It can refrain from initiating force, and allow the new institution to carry on its activities without interference. If it did this, then the Objectivist “government” would become a truly marketplace institution, and not a “government” at all. There would be competing agencies of protection, defense and retaliation — in short, free market anarchism.

“Suppose” — bull’s-eye. The fault in this thought experiment is a supposition that has no real-world referent. When confronted with any violent action of a citizen, including the self-proclaimed “use of retaliation” by anarchists, the policeman — i.e., the “night watchman” minarchist state — can’t just mystically intuit whether that force is offensive or defensive. His only course (if he is to remain a rights-enforcing entity) is to proceed with a standard investigation. When anarchists (if they are to remain anarchists) object to this “interference,” there can be no doubt what they are asserting: that a police investigation of a possible initiation of force is itself an initiation of force. With that, we have abandoned any hope of a legal system. It is an argument against, not the “monopolization” of the police function, but the police function itself: the assertion holds even if the “police” in question are themselves an anarchist “agency of defense.” The proper, sufficient answer: a police investigation of a possible initiation of force is no more obviously a coercive act than a possible initiation of force is a noncoercive act.

If anyone requires a Sanchez-and-Jimenez sketch, fine: the police encounter Sanchez dragging a bound Jimenez down the street. When questioned, Sanchez retorts, “Laissez-nous faire— leave us alone! All you need to know is that this man initiated force against me and I am now retaliating. I will presently imprison him in my basement.” Meanwhile, Jimenez is screaming that he’s being kidnapped. Now, is anyone going to insist that it’s an initiation of force for the police to take both into custody? Why — because this is a “private” matter between Sanchez and Jimenez? Private, “marketplace” matters are nonviolent (e.g., economic, religious, sexual, artistic) relationships between consenting adults, which is why coercion against them is said to “initiate” force. When two parties are trading fire instead of goods or ideas, privacy has fled the scene.

Simply “being rational” is not a substitute for police investigation, trial by jury, and the other features of a legal system that is universal and therefore impartial.

Consequently, even though a private firm (e.g., a bodyguard service) may advertise “protection” or “defense,” its first punch or shot becomes that “violent action of a citizen.” Yes, there is peace and mutual agreement — a private, capitalistic relationship — between you and your “friend or a business colleague,” but not between you two “retaliation”-seekers and those “aggressors.”

Logically, Roy, this “Q.E.D.” has no point of purchase. It is nothing more than a floating abstraction — a cloudy concept.4

Anarchism as a revolt against nature

Failure to distinguish what can and cannot be private has been central to most of the controversies surrounding “free market anarchism.”

Consider your response to one of Ayn Rand’s objections to it. She had written, “The use of physical force — even its retaliatory use — cannot be left at the discretion of individual citizens.” What you made of this is truly remarkable, demanding it be quoted in full. In your reply to Rand, you wrote:

This contradicts your epistemological and ethical position. Man’s mind — which means: the mind of the individual human being — is capable of knowing reality, and man is capable of coming to conclusions on the basis of his rational judgment and acting on the basis of his rational self-interest. You imply, without stating it, that if an individual decides to use retaliation, that that [sic] decision is somehow subjective and arbitrary. Rather, supposedly the individual should leave such a decision up to government which is — what? Collective and therefore objective? This is illogical. If man is not capable of making these decisions, then he isn’t capable of making them, and no government made up of men is capable of making them, either. By what epistemological criterion is an individual’s action classified as “arbitrary,” while that of a group of individuals is somehow “objective”?

Rather, I assert that an individual must judge, and evaluate the facts of reality in accordance with logic and by the standard of his own rational self-interest. Are you here claiming that man’s mind is not capable of knowing reality? That men must not judge, or act on the basis of their rational self-interest and perception of the facts of reality? To claim this is to smash the root of the Objectivist philosophy: the validity of reason, and the ability and right of man to think and judge for himself.

I am not, of course, claiming that a man must always personally use retaliation against those who initiate such [force] against him — he has the right, though not the obligation, to delegate that right to any legitimate agency. I am merely criticizing your faulty logic.

Sorry, but this is a parody of Rand’s writings on independent judgment and its corollary, individual liberty. The issue is not Sanchez’s deciding the next line of his poem or what color to paint his house. Here the “right of man to think and judge for himself” translates into Sanchez’s deciding how he’ll use force against Jimenez’s life, liberty, and property — again, hardly a private, “personal” matter. No coherent concept of liberty grants a man the “freedom” to do to others whatever he wants — even if he issues a two-minute statement assuring the public that what he did was based on his own “self-interest and perception of the facts.” (But if Sanchez does have that “freedom,” does Jimenez have it, too?)

Individual liberty is a social responsibility.

Simply “being rational” is not a substitute for police investigation, trial by jury, and the other features of a legal system that is universal and therefore impartial. Sanchez’s being “objective” (i.e., disinterested) regarding a conflict to which he’s a party is a flat-out contradiction — and another misrepresentation of a Randian concept.

I’m struck by the irony in your presenting the case against limited government as an attempt to correct an error, a “contradiction,” within Objectivism. Consider this exchange from the original (1936) version of Rand's novel We the Living:

Andrei: “I know what you’re going to say. You’re going to say, as so many of our enemies do, that you admire our ideals, but loathe our methods.”

Kira: “I loathe your ideals. I admire your methods. If one believes one’s right, one shouldn’t wait to convince millions of fools, one might just as well force them. Except I don’t know, however, whether I’d include blood in my methods.”

Andrei: “Why not? Anyone can sacrifice his own life for an idea. How many know the devotion that makes you capable of sacrificing other lives? Horrible, isn’t it?”

Kira: “Not at all. Admirable. If you’re right. But are you right?”

This is often adduced as an example of Rand’s possible early flirtation with Nietzsche, though the closer comparison would be with Max Stirner, whose version of “egoism” posited that “the” (each?) individual retains “even the power over life and death.” Declaring that “we owe each other nothing,” he included murder as an acceptable act under his anarchism.5

Your anarchism, while purportedly rejecting coercion, also rested on the notion that “the” (each?) individual has a right to use force against others if one believes one is right — with no responsibility to prove anything to anyone else. Said notion is an element of the Stirnerite paradigm of me-subjectivism, the sacrifice of others to oneself, and anarchism, which is as anti-Objectivist as the Marxist paradigm of we-subjectivism, the sacrifice of oneself to others, and statism. This false dichotomy stands in opposition to Rand’s philosophy of objectivity, the value of each individual, and limited government. In the 1959 edition, Rand excised that foreign element, removing it from the body of Objectivism. With your "Open Letter" to Rand, you reintroduced it — with the same ethical premise leading to the same political practice.

In The Fountainhead, Rand's hero, Howard Roark, declared: “I recognize no obligations toward men except one: to respect their freedom . . .” Thank you, Mr. Roark: “Individual liberty” is a social responsibility. This equation has always been regarded as an abominable contradiction by those for whom privacy must obtain without context — the hobgoblin of “market anarchist” minds. Just as the egalitarian wishes to extend equality from the political realm to the socio-economic one, the anarchist wants to take privacy in the opposite direction. And just as the egalitarian condemns limited government as “economic royalism,” the anarchist condemns it as “law-and-order socialism.” But force, as we’ve seen, is no more anyone’s private business than wealth is everyone’s equal right. Roy, your confusion on this point exemplified, not refuted, Rand’s insight that self-styled “anarcho-capitalists” actually accept the “basic premise of the modern statists — who see no difference between the functions of government and the functions of industry, between force and production, and who advocate government ownership of business — [and merely] take the other side of the same coin and declare that since competition [i.e., privatization] is so beneficial to business, it should also be applied to government.”

A multitude of agencies acting on warring valuations of force is not peaceful cooperation under the rule of law, but armed struggle to establish a rule of law.

Unlike the institutions of civil society (e.g., a church), political society (subsuming everyone) is not a conventional, contractual union, whose private morality doesn’t constrain those who don’t join. It is the natural order we are born into, and its natural laws governing the use of force are not “products” or “services” one is free to reject. Is anybody is going to contend that it’s a contradiction to say individuals may do as they choose and must obey the noncoercion principle — that is, in effect to affirm that liberty really does entail the “freedom” and “privacy” to use force however one wishes? If not, it is not a contradiction for a public (“monopoly”) morality to have a public institution. It is precisely the socialization of law — the monolithic imposition of the noncoercion principle — that conversely creates the privatization of everything else.

(Consequently, when a man initiates force, he doesn’t just incur a “debt which he must repay to the victim,” as you said, but a debt that he also owes to society for breaking its laws. Crime cannot be a private matter between the assailant and his victims — or their “heirs.”)

Anarcho-anticapitalism

To repeat: you say, “There would be competing agencies of protection, defense and retaliation.” Why? Morally, we’ve seen that these “competing agencies” would no less than a “monopoly” government “initiate force” as anarchists themselves conceive it. So why would there be such “agencies” practically? Because the withdrawing of the policeman would allow them to arise? Only in the way it would allow all manner of “agencies” to arise. When the rights-enforcing policeman goes, he takes the market with him. There is no longer the universal administration of laws against aggression, the framework of a free market. The resultant anarchy is no more capitalist than communist, no more Rothbardian than Bakuninite . . . or Stirnerite or majoritarian or theocratic or anything else. What happens among a multitude of “agencies” (and nonaligned individuals) acting on warring valuations of force is not peaceful cooperation under the rule of law, but armed struggle to establish a rule of law (of whatever kind) — not market competition, but martial combat.6

The projection that most “agencies” would provide only “protection, defense and retaliation” assumes that almost all of the population had turned libertarian, a conversion evidently effected by the mere elimination of limited government. If we’re making armchair pronouncements, how much more breath does it take to proclaim that in the absence of the rights-enforcing policeman everyone will turn libertarian, thus nullifying any need for even those “agencies”?

Actually, Roy, you came pretty close to doing just that. In "The Nature of Government" (in The Virtue of Selfishness), Rand had posed a scenario:

Mr. Smith, a customer of Government [i.e., Protection Agency] A, suspects that his next-door neighbor, Mr. Jones, a customer of Government B, has robbed him; a squad of Police A proceeds to Mr. Jones’ house and is met at the door by a squad of Police B, who declare that they do not accept the validity of Mr. Smith’s complaint and do not recognize the authority of Government A. What happens then? You take it from there.

And you countered:

Unfortunately, though this poses as a convincing argument, it is a straw man, and is about as accurate a picture of the institutions pictured by free market anarchists as would be my setting up Nazi Germany as an historical example of an Objectivist society.

The main question to ask at this point is this: do you think that it would be in the rational self-interest of either agency to allow this to happen, this fighting out conflicts in the streets, which is what you imply? No? Then what view of human nature does it presuppose to assume that such would happen anyway?

By “anyway,” did you in fact mean “ever”? So, if all sides — if all people — are veritable embodiments of “rational self-interest” (which, for Objectivism, is an ethic, not an instinct), why even “picture” institutions whose very existence would be a testament that some men are not angels?

To the degree you didn’t dismiss the issue, you wrote only:

Obviously, there are a number of ways in which such ferocious confrontations can be avoided by rational businessmen: there could be contracts or "treaties" between the competing agencies providing for the peaceful ironing out of disputes, etc., just to mention one simplistic way. Do you see people as being so blind that this would not occur to them?

Fundamental breakdowns in mutual consent will be handled by . . . mutual consent. Perhaps now we should just concede your point: if only “rational businessmen” will be involved, why indeed assume that such confrontations would happen “anyway”?

That said, we must note that elsewhere in the letter you yourself assume the possibility of “defense agency” clashes:

Now, if the new agency should in fact initiate the use of force, then the former "government"-turned-marketplace-agency would of course have the right to retaliate against those individuals who performed the act. But, likewise, so would the new institution be able to use retaliation against the former "government" if that should initiate force.

All that’s needed is for those acts of aggression to occur simultaneously and we have a conflict more harrowing than the one Rand imagined.

You should have judged her scenario by the standard you began with: if each of the “agencies” — Police A and Police B — is a “truly marketplace institution,” why is anyone obligated to recognize either? We are free to reject the services of a private butcher or baker or LED-maker, so why can’t we reject those of a “private policeman”? But if this entity doesn’t obey our (including Mr. Jones’) demand to be left alone, how is he a private anything? To belabor the obvious: “private policeman” is a contradiction, “public policeman” a redundancy.

Instead, you continued to view the impasse mostly psychologically. Addressing Rand, you said:

One legitimate answer to your allegations is this: since you are, in effect, asking “what happens when the agencies decide to act irrationally?” allow me to ask the far more potent question: “What happens when your government acts irrationally?” — which is at least possible. And which is more likely, in addition, to occur: the violation of rights by a bureaucrat or politician who got his job by fooling people in elections, which are nothing but community-wide opinion-mongering contests (which are, presumably, a rational and objective manner of selecting the best people for a job), or the violation of rights by a hard-nosed businessman, who has had to earn his position? So your objection against competing agencies is even more effective against your own “limited government.”

This somehow fails to notice that in your opening thought experiment such “irrationality” — the refusal to recognize the authority of another “police” body — is the very origin of the first anarchist “agency” (whose viability is supposedly confirmed by the experiment's plot point [“b”] where the government police force doesn’t return this “irrationality”). But what it really misses is that the conflicts between the innumerable Smiths and Joneses will be ones not mostly of “irrationality” (of whatever type), but fundamentally of different concepts of justice whenno one concept is codified as law, which (rather than universal rationality and the “absence of the initiation of force”) is the essence of anarchism. What’s left for an “answer” is the claim that a public officeholder under limited government would be more likely to violate rights than a “hard-nosed businessman” anarchist because the former puts himself up for election, whereas the latter puts himself up . . . for sale.

Childs talks about “governments” as if there were no difference between Nazi Germany and an Objectivist society, i.e., between tyranny and government per se.

That would be crazy enough if it were true, but what’s actually crazier is that it’s not. Think about it: Is he for sale? Why does he have to “earn” his position? Certainly not because there’s still a policeman around to enforce competition, i.e., to protect the people’s right to take their money where they want. The only “competition” between such “businessmen” will be over who steals those people’s wealth. When the policeman withdraws, the millionaire’s money becomes paper and his gold a target. Just as egalitarianism doesn’t establish equality in the socioeconomic realm but does destroy it in the political realm, so anarchism doesn’t establish private enterprise in the political realm but does destroy it in the socioeconomic realm.7

Your assumption here — the capitalist economy will survive without a capitalist government — is one that is in fact shared by some leftist critics of “free market anarchism,” e.g., Mark Paul: a “rich man’s anarchy.”8 We should recall Engels’ January 24, 1872, letter to Theodor Cuno, where he (purportedly) contrasts the Marxist position with that of Bakunin: “[He says] the state above all must be abolished; then capital will go to hell of itself. We [say] the contrary.” Ultimately, these are merely contrary characterizations of the same means to the same end. Any abolition of limited government — statist or “anarchist” — will reap only astrongman’s despotism.

What is the “market”?

It’s not too hard to see how confusion over what constitutes the “market” arises. When a government denationalizes medicine, we say there is now a “free market in medicine.” So, we develop a formula: Where the state isn’t, the market is. Well, then wouldn’t 0% state be 100% market, i.e., “free market anarchism”?

No. As stated, the free market exists, not in the absence of all government, but in the presence of limited government — the rights-enforcing policeman. Political society is the primary, the yin whose conception — formation — outlines the yang of civil society. Several points in the letter evinced your failure to understand this:

  • “There is such a thing as the division of labor, the free market — and that can provide all the food man needs. So too with protection against aggression.”
  • “There is nothing particularly difficult about [understanding the prohibition of the initiation of force], and no reason why the free market could not evolve institutions around this concept of justice.”
  • “You would not argue that since there are needs for objective laws in the production of steel, therefore the government should take over that activity. Why do you argue it in the case of protection, defense and retaliation?”

The free market cannot provide protection against aggression because there is no such market until government provides protection against aggression; only then can a free (as opposed to black, underground, vulnerable-to-sundry-sources-of-coercion) market provide food and man’s other socioeconomic needs. The free market cannot “evolve” an institution of retaliatory force because there must first be such an institution to permit that market. Thus, government does not “take over” (from an “anarcho-capitalist” Eden?) protection, defense, and retaliation; its universal performance of these — and only these — is what defines the “free market.”

Just as egalitarianism treats socioeconomic products and services — i.e., what we don’t have a right to — as political rights, so anarchism treats political rights — protection, defense, and retaliation — as “services which . . . can be offered [or denied] on a market at a price.”9

Disputes and conflicts

There were a few other points that I might as well address, such as:

Another interesting argument against your position is this: there is now anarchy between citizens of different countries, i.e., between, say, a Canadian citizen on one side of the Canadian-American border and an American citizen on the other. There is, to be more precise, no single government which presides over both of them. If there is a need for government to settle disputes among individuals, as you state, then you should look at the logical implications of your argument: is there not then a need for a super-government to resolve disputes among governments? Of course the implications of this are obvious: theoretically, the ultimate end of this process of piling government on top of government is a government for the entire universe. And the practical end, for the moment, is at the very least world government.

We are talking about the need for a “given territory” to have a single government to ban coercion. “[D]isputes among individuals” — crimes — are investigated in the jurisdiction where they occurred. This would be meaningless under “free market anarchism,” whose whole premise is that no territory should be the jurisdiction of anyone or anything. There is now no anarchy between nations because there is no territory between nations — only borders. As for “disputes among governments,” what discord did you imagine limited governments would have? Even in our time, what intolerable “disputes” have occurred between the Canadian and American governments?

You continued:

Also, you should be aware of the fact that just as conflicts could conceivably arise between such market agencies, so could they arise between governments — which is called war, and is a thousand times more terrible. Making a defense agency a monopoly in a certain area doesn't do anything to eliminate such conflicts, of course. It merely makes them more awesome, more destructive, and increases the number of innocent bystanders who are harmed immensely. Is this desirable?

As pointed out, market agencies are entities between whom there is no possibility of violence, e.g., McDonald’s and Burger King. Entities between whom such “conflicts” are conceivable are not actual market competitors, but potential martial combatants. Despite your semantic protest that the “theory which we [anarchists] advocate is not called ‘competing governments’ … since a government is a coercive monopoly,” this possibility of “conflicts” (i.e., the “ferocious confrontations” you denied earlier) among anarchist groups parallels the political relationship among states (hence your comparison), not the economic relationship among businesses — anarcho-government, not “anarcho-capitalism.” Indeed, it was only your narrow and out-of-focus definition of the “market” — absence of all “monopoly” — that allowed you to apply that term to a state of civil war.

Are we to believe that war is the health of any state? Whatever happened to “If goods don’t cross borders, armies will”?

How then did you maintain that the elimination of “monopoly” governments alone would end all war — by defining war as that which occurs only “between governments”? At the very least, “[m]aking a defense agency a monopoly in a certain area” prevents jurisdictional armed battles within that area. But talk about not recognizing the “logical implications” of one’s own argument: with your assertion that “market protection agencies could perform more efficiently the same service as is supposedly provided by ‘government,’” you were actually telling us that it’s the military “conflicts” of these anarchists that would prove to be “more awesome, more destructive” — or did you seriously believe their mercenary forces would pursue “efficiency” with less destruction?10 By the way, notice how now you are talking about “governments” as if there were no difference between Nazi Germany and an Objectivist society, i.e., between tyranny and government per se — the frozen-abstraction fallacy. Are we to believe that war is the health of any state? Whatever happened to “If goods don’t cross borders, armies will”? Since goods will cross the borders of limited governments, what other feature of minarchism is so intrinsically militaristic as to favor the adoption of anarchism (whose “conflicts” you simply didn’t label war)?

Indeed, by the end of the letter you were reduced to the mantra that government is government is statism:

And there is the major issue of the destructiveness of the state itself. No one can evade the fact that, historically, the state is a blood-thirsty monster, which has been responsible for more violence, bloodshed and hatred than any other institution known to man. Your approach to the matter is not yet radical, not yet fundamental: it is the existence of the state itself which must be challenged by the new radicals . . .

This is the only alternative to continuing centuries of statism, with all quibbling only over the degree of the evil we will tolerate.

This merely magnifies the false dichotomy discussed before: Marx or Stirner, socialization of production or “privatization” of force, statism (“world government”) or anarchism. But limited government is the logical opposite of unlimited government, and a “degree of evil” isn’t what separates the protection of rights from their violation, i.e., Rand and stopping Sanchez’s dragging off Jimenez from Marx and the liquidation of millions. And yet your either-or appears to be at the heart of it, doesn’t it, Roy? If the “free market” can’t provide the “services” of protection and retaliation, doesn’t that undercut the argument that capitalism can provide for “all of men’s needs”? — that seems to be the worry. And won’t only anarchism (with no stateat all) guarantee a sterile society in which the spore of statismcan never germinate? — that seems to be the reassurance. This is yet another example of what happens to political philosophy when definition and context simply aren’t addressed.

(And “historically,” the anarchy of the epoch before the rise of the nation-state was itself violent, bloody, and hateful enough to utterly negate its appeal as an alternative to [even somewhat] limited government, e.g., Thomas Sowell on the legacy of 19th-century liberalism: “The last great war to ravage the whole continent of Europe ended 85 years earlier, at Waterloo — and such horrors were considered permanently behind us.”11)

Political philosophy per se relates to another claim in the letter. Basically, you felt you were no more obligated to detail the workings of anarchy’s political society than Rand was those of minarchy’s civil society:

I do not intend to undertake a full “model” of a free market anarchist society, since I, like yourself, truly cannot discuss things that way. I am not a social planner and again, like yourself, do not spend my time inventing Utopias.

This confuses political philosophy (whose very purpose is to model — to explicate — political society) with “central planning” (the socialist state’s conceit for its coercing of civil society). As Friedrich Hayek and others have explained, no one can fruitfully discuss what would best serve the socioeconomic needs of a population because no man (or relative handful of men) can supply the requisite omniscience, viz., the calculation of an almost infinite number of factors past, present, and future (which is why, in contrast, Hayek speaks of the market’s coordination of information as a “discovery process”). But philosophy doesn’t demand omniscience. “Philosophy, as Ayn Rand often observed,” Leonard Peikoff writes, “deals only with the kinds of issues available to men in any era”12 — i.e., a set of common facts that require only observation and abstraction. This is why a single philosopher can generate a hundred rational principles but a hundred bureaucrats cannot generate a single rational price. It is why conservative anti-“rationalism” is appropriate towards socialist “central planning” but not liberal political philosophy — and that is why we reject both conservatism (which, ultimately, believes that men are incapable of abstracting from concretes — like beasts) and socialism (which, again, believes that some men are capable of knowing all concretes — like gods), and embrace classical liberalism. With it, we plan (i.e., align with natural law) a political society that doesn’t “plan” civil society.

This is why a single philosopher can generate a hundred rational principles but a hundred bureaucrats cannot generate a single rational price.

The fact is, you were not “talking about principles whose practical applications should be clear.” Again, anarchism qua anarchism can say only that there will be no “monopoly” government, no one law; the proposition of consequent universal noncoercion (i.e., the “free market”) is without foundation. Eventually, you conceded all this when, in your recantation of anarchism, you acknowledged the intellectual deficit signified by your having “never written anything about how free market anarchism would work.” It was evidently the forever-fluid nature of this ideal that ultimately crystallized your conviction that “anarchism functions in the libertarian movement precisely as does Marxism in the international socialist movement: as an incoherent and therefore unreachable goal that inevitably corrupts any attempted strategy to achieve it.”13

Check your premises

Roy, while it failed to prove its case, your letter to Ayn Rand succeeded in one vital way: it encouraged people to critically review, rather than passively accept, what she presented as a comprehensive philosophy “for living on earth” — something that cannot be appreciated enough given the cultish elements that sprang up around (and still cling to) Objectivism. It inspired my own questioning of Rand’s propositions, including even the noncoercion principle itself.14 Think about that: one can never — in any context — initiate force? Wouldn’t that make noncoercion a Kantian categorical imperative, as opposed to an Objectivist contextual principle? And if emergencies constitute an “exceptional” context, what would constitute an emergency situation for a government — the inability to raise a sufficient volunteer army in the face of a blitzkrieg? “Even so, this would not give the rest of the population a right to the lives of the country’s young men.” OK, why not?15 Objectivism will go nowhere if it cannot answer the questions it raises.

You ended: “Let us walk forward into the sunlight, Miss Rand. You belong with us.” Roy, you walked forward no matter who did or didn’t join you.

Yours in reason,

Barry Loberfeld

 

Notes
1. http://www.abcdunlimited.com/ideas/philosophy.html.
2. http://www.isil.org/ayn-rand/childs-open-letter.html.
3. “Anarchist Illusions” in Liberty Against Power: Essays by Roy A. Childs, Jr. (1994) is the introductory fragment of a never-continued work.
4. The thought experiment clouds your own (implicit) premise, which is that a limited government, even if it protected contracts and retrieved stolen goods perfectly, would still, as a “monopoly,” have to initiate force to suppress “competition” with these “services.” Instead, it raises an entirely different issue: what happens when we don’t have a government that in any way defends individual rights? Whether by neglect or direct violation, a failure to protect rights at all is not what we generally mean by “limited government.” Rebellion against such failure does not lead inexorably to rebellion against government per se (see AMERICAN REVOLUTION), and people’s having to take the law into their own hands is not a “night watchman” state, but a state of anarchy.
5. http://plato.stanford.edu/entries/max-stirner/.
6. In It Usually Begins With Ayn Rand (1971, pp.166–69), Jerome Tuccille related how he “went off to address a class of left-wing anarchists at Hunter College in New York City.” He mentions that “there to lend me moral support was a grouplet of right-wing libertarians.” At one point, a member of this “grouplet” asked these “left-wing anarchists” a question:
“I just want to know one thing. If we were living in an anarchist society and you people had your commune organized the way you wanted it, what would you do about private-property owners who didn’t threaten you in any way? Suppose there was a capitalist community five miles away that left you alone and minded its own business — would you co-exist with it or would you try to suppress it?”
Perhaps it was a reaction against the anarcho-capitalist and his little market place, perhaps they really meant it; I have no way of knowing for sure. But to this question there was a universal outcry from the class at large:
“We’d come in and kick shit out of you, man!”
“We’d beat your ass in!”
“We’d rip you off, baby! Just like that!”
I slowly started to gather my paraphernalia.
If these folks didn’t “forbid capitalist acts between consenting adults” (as Robert Nozick put it), they wouldn’t be left-wingers — they’d be capitalists. (“[P]erhaps they really meant it” — unbelievable. But note that the interlocutor came prepared; his question is from John Henry Mackay’s The Anarchists: A Picture of Civilization at the Close of the Nineteenth Century [1891].)
7. Hence the absurdity of affirming that anarchy’s citizens “would of course have the right” to do anything. Rights would be universally guaranteed neither formally nor practically; self-control of person and property would be determined solely by one’s luck in repelling predators. The old statists of the Left called the market a “jungle,” and the new anarchists of the Right call the jungle a “market.”
And how would one “be able to use” retaliation? Under minarchy, one is “able” to go to church, for instance, because there is governmental protection of, but not interference with, this activity. Without that protection, what practically guarantees that one is “able to use retaliation” without being stopped by anyone, including the party one alleges one is “retaliating” against? And morally, why should one “be able to use retaliation” without governmental interference — a question that returns us to my answer to your original thought experiment.
8. “Seducing the Left: The Third Party That Wants YOU,” Mother Jones, May 1980.
9. Your full statement: “We [anarchists] most emphatically do not accept the basic premise of modern statists, and do not confuse force and production. We merely recognize protection, defense and retaliation for what they are: namely, scarce services which, because they are scarce, can be offered on a market at a price.” The very invocation of scarcity confuses force — retaliatory and aggressive — with production, since scarcity is an attribute of all human action. By this reasoning, we must also recognize assassination-for-hire (à la Murder, Inc.) and other “dirty deeds done dirt cheap” for “what they are: namely, scarce services which, because they are scarce, can be offered on a market at a price.”
10. Then again, you also said: “Note that what is in question is not whether or not, in fact, any free market agency of protection, defense or retaliation is more efficient than the former ‘government.’ The point is that whether it is more efficient or not can only be decided by individuals acting according to their rational self-interest and on the basis of their rational judgment.” All right, so which in fact will the “free market agency” pursue with unmatched capability: (a) the objective implications of the noncoercion principle (e.g., freedom of religion, speech, assembly), or (b) the subjective “consumer preferences” of its clients — unless, as noted, it sees its greatest profit in (c) the plundering of its subjects?
11. Compassion versus Guilt, 1987, p. 238.
12. “Fact and Value,” The Intellectual Activist, 5:1, May 1989. Though “Leonard Peikoff vs. Philosophy” is critical of the essay, Peikoff is correct on this point.
13. Liberty Against Power, p. 181.
14. That questioning appeared in this very journal in June 1999. A version can be found at http://www.abcdunlimited.com/ideas/anarchy.html.
15. http://aynrandlexicon.com/lexicon/draft.html. Rand doesn’t say; she just states that a lack of "volunteers in the face of foreign aggression" has never happened in a free (“or even semi-free”) society, the implication being that therefore it would never happen. So, first she concedes the possibility of a situation and proscribes one alternative that could be taken in it, only to then virtually deny the possibility, rendering the proscription moot.




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Defending Capitalism against Ayn Rand

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The titles that Ayn Rand assigned to the three parts of Atlas Shrugged proclaim her insistence that logical contradictions cannot exist in reality. By contrast, the title of the magnum opus of the ultimate charlatan in Atlas Shrugged, Simon Pritchett, is The Metaphysical Contradictions of the Universe. Francisco d’Anconia and Hugh Akston explain to Dagny Taggart that whenever someone thinks he has encountered a contradiction, he must check his premises, and he will find that one of them is wrong (I.9, 7, 10).1

In this essay, I will follow d’Anconia’s and Akston’s advice. I will show that a fundamental contradiction pervades Atlas Shrugged because Rand failed to check her premises. She thought that the heroes she created were exemplars of pure, uncorrupted capitalism. In fact, the heroes she created in Atlas Shrugged came from her sense of life, which was not only un-capitalist but anti-capitalist. I will also show that this contradiction is extremely fortunate because it illuminates why capitalism is the most efficient and humane economic system ever implemented.

Rand often emphasized the importance of a person’s “sense of life” and of art as its expression (e.g., Rand 1975: 31, 33, 44). She defined her sense of life and its artistic expression most clearly in an essay she wrote on Victor Hugo (1975: 153–61). In it she said, “Victor Hugo is the greatest novelist in world literature” because his characters are “a race of giants,” who are not concerned with “penny ante.” “‘Grandeur’ is the one word that names the leitmotif . . . of all of Hugo’s novels — and of his sense of life.”

The heroes Rand created in Atlas Shrugged came from her sense of life, which was not only un-capitalist but anti-capitalist.

In Atlas Shrugged, Rand created heroes who embodied her sense of life and described how such heroes would fulfill their heroic natures if they engaged in economic activities. She thought that the sum of their economic activities and interactions provides a template of what laissez-faire capitalism would be like. She was wrong. When the heroes who embody her sense of life engage in economic activities, they function like Communist administrators, not capitalist businessmen.2

To paraphrase Rand, “Grandeur is the one word that names” the sense of life of Communist economies. They had no concern with anything “penny ante.” In the 1980s, when the economy of the Soviet Union was disintegrating, it was producing between 1.5 and two times more steel and cement than the United States and generating more electricity; it also had 2.5 times more machine tools. However, buttons, clothespins, babies’ pacifiers, and thermometers were always extremely difficult to find in the Soviet Union (Shmelev and Popov 1989: 82, 132, 144). Toilet paper and toilet seats were such rare and precious commodities that when McDonald’s opened a restaurant in Moscow, in 1990, its employees had to guard its restrooms to prevent customers stealing toilet paper and toilet seats (Goldman 1991: 166). The Soviet Union’s heroic economy also did not provide contraceptives or a single practical guide to contraception. As a result, Soviet women averaged at least four legal abortions during their lives; and the average was higher in the non-Muslim regions of the Soviet Union. In addition, large numbers of illegal abortions were performed. Anesthetics could be obtained only by a large bribe (Feshbach and Friendly 1992: 208–9).

In Rand’s novel The Fountainhead, the villain, Ellsworth Toohey, completely destroys Catherine Halsey’s soul, and the visible sign of her corruption is that her mouth has adapted to giving orders, “not big orders or cruel orders; just mean little ones — about plumbing and disinfectants” (IV.10). Toohey has turned her into the opposite of a Communist. The Communists gave big, cruel orders and had no concern with mean little considerations. The heroes of Atlas Shrugged are heroic because, like Communist bureaucrats, they produce or maintain impressive products, not mean little ones. It would be unimaginable for a Rand hero to be a manufacturer of “penny ante” products, such as disposable baby diapers, menstrual tampons, or dependable contraceptives. But these distinctively 20th-century inventions improved the quality of life immeasurably by freeing people from preoccupation with brute, animal existence.

Most services would be included among “mean little” occupations. The Communists’ heroic obsession with production caused them to ignore services, which, with a few exceptions, they did not even include in their gross domestic product statistics. In fact, Marxists always used the term “the means of production” as a synonym for “the economy.” In modern capitalist countries, most businesspeople provide services. With one exception that I will discuss below, the only service that a hero in Atlas Shrugged provides is running railroads. This is clearly not a “mean little” occupation, and it was one of the few services that the Soviet Union included in its gross domestic product statistics (weight of freight times kilometers carried).

Moreover, Rand ignored all services in her representation of history (1963: 10–57) as a battle between Attila and the Witch Doctor and their antithesis, the Producer. Indeed, her practice of using “industrialist” as a synonym for businessperson excludes businesspeople who produce “penny ante” products, along with those who provide services. In his long speech in Atlas Shrugged, John Galt (i.e., Ayn Rand) says, “Productiveness is your acceptance of morality . . . productive work is the process by which man’s consciousness controls his existence, a constant process of . . .  shaping matter to fit one’s purpose, of translating an idea into physical form, of remaking the earth in the image of one’s values;” and, “the industrialists, the conquerors of matter” “have produced all the wonders of humanity’s brief summer” (III.7).

It would be unimaginable for a Rand hero to be a manufacturer of disposable diapers, tampons, or dependable contraceptives.

It is true that the great philosopher Hugh Akston owns a diner and cooks its food, which he does with extraordinary skill, making “the best-cooked food she [Dagny] had ever tasted” (I.10). However, Rand does not let this fact affect her conceptualization of productive work when Galt tells Dagny, “We take nothing but the lowliest jobs and we produce by the effort of our muscles” (III.1).3

In her short story “The Simplest Thing in the World” (1975: 173-85), Rand depicts a writer of fiction who cannot make a living because he has the same sense of life as Rand. The writer decides he has to create the type of story that will sell: “a simple, human story,” which consists of “lousy bromides.” “It mustn’t have any meaning,” and its characters must be petty because “[s]mall people are safe.” However, he is incapable of writing such a story. Every time he tries, his sense of life thwarts his conscious efforts, and he starts composing a story about heroes. The reason, as Rand explains in her introduction, is that his “sense of life directs . . . and controls his creative imagination.” To exemplify this fact, he begins to write “a story about a middle-aged millionaire who tries to seduce a poor young working girl.” He is “a big tycoon who owns a whole slew of five-and tens [i.e., discount stores].” But the author cannot write this story. As he develops the story in his mind, his sense of life makes him forget about the girl and transform the villain into a hero. As part of the transformation, he says to himself, “to hell with the five-and-ten!” The hero now builds ships because he is driven by “a great devotion to a goal.” He is motivated by “a great driving energy . . . the principle of creation itself. It’s what makes everything in the world. Dams and skyscrapers and transatlantic cables.” “[H]e wants to work — not to make money, just to work, just to fight” (emphasis added). So, an author with Ayn Rand’s sense of life could not make the hero of his works a retailer, no matter how successful he might be; not even Sam Walton, who founded Walmart and built it into the company with the greatest revenue of any company in the world.

Because the Soviets had the same sense of life as the author in this short story (i.e., the same as Rand), they were extremely proud of the enormous hydroelectric dams they built, and their retailing was horribly inefficient. In the Soviet Union, people had to wait in long lines for any purchase. If someone had time to spare, he would wait in a line to buy something he did not need, in order to barter it with someone who had waited in another line to buy something else. When McDonald’s opened its first restaurant in Moscow, it set all records for number of customers: 40,000 to 50,000 a day, even though its food cost twice as much as the food in state-run cafeterias. It had twenty-seven cash registers. In Communist countries, the length of a line of customers showed how valuable the merchandise was at the end of that line. So, McDonald’s had to have ushers to tell customers not to go to the longest line (Goldman 1991: 166–7; Blackman 1990).

The opening of this first McDonald’s — an event that, as much as any other, marked the end of Communism — illustrates another serious defect in Communist-Objectivist ideals. A small notice in a Soviet newspaper drew 27,000 applicants for jobs as counter clerks, even though the anticipated salary was only average by Soviet standards. Those who were chosen had to be trained to smile at customers and speak politely to them. Their training was so successful that customers could not believe that the clerks were Soviet-raised Russians (Blackman 1990; Goldman 1991: 166–7).

An author with Ayn Rand’s sense of life could not make the hero of his works a retailer, no matter how successful he might be.

Rand used “grocery clerk” to symbolize the antithesis of her ideal (1964: viii; 1975: 84). In her first novel, We the Living, when the heroine, Kira, sees her future lover Leo for the first time,she observes that “[h]is mouth . . . was that of an ancient chieftain who could order men to die, and his eyes were such as could watch it.” However, Leo says to Kira, with bitter humor, “I’m nothing like what you think I am. I’ve always wanted to be a Soviet clerk who sells soap and smiles at customers” (I.4). Again, Rand reversed Communism and capitalism. Men who could order others to die and watch their death calmly characterized Communism. Smiling clerks, who sell unimpressive products, characterize capitalism.

When Nathaniel Branden was the official Objectivist expert on psychology, he wrote, “[P]roductive work is the process through which a man achieves that sense of control over his life which is the precondition of his being able fully to enjoy the other values possible to him … [P]roductive . . . achievements lead to pride” (“Self-Esteem: Part IV,”The Objectivist, June 1967). Branden, as he himself later realized, was exaggerating. But he was exaggerating a truth. A feeling of control over one’s life and pride in productive achievements are certainly wonderful feelings. They can derive directly from the type of work done by Communist administrators and the heroes of Rand’s novels, especially if, like Howard Roark, they have an uncapitalist indifference to money and accept only those projects that appeal to them. However, a feeling of control over one’s life and pride in achievements do not follow directly from the type of work that most people in a capitalist society do: salesmen, accountants, insurance brokers, bank clerks, and manufacturers of “penny ante” products, like clothespins and underpants.

Nearly all readers of Rand’s novels, even those who disagree with her philosophy, recognize that she was a brilliant novelist. But not even her brilliance as a novelist could have made a gripping, inspirational novel about the work that is done in distinctively capitalist occupations, occupations that do not exist in Communist countries, such as advertising or being a real estate agent. In fact, the first jobs of the odious Wesley Mouch were in advertising (Atlas II.6).

Let us consider briefly the novelist whom Rand (1975: 119) regarded as the best of the naturalists, Sinclair Lewis. When Lewis wanted to write novels about admirable protagonists, he made them a dedicated research scientist (Martin Arrowsmith) and the president of a car company (Sam Dodsworth), who began his career as assistant manager of production. When Lewis wanted a pathetic protagonist, he made him a real estate agent (George Babbitt). Babbitt, like Dodsworth, is successful at his work. But Lewis says in the first chapter that Babbitt “made nothing in particular, neither butter nor shoes nor poetry;” and he “detested the grind of the real estate business, and disliked his family, and disliked himself for disliking them.”

The discussion so far illuminates a crucial benefit of the love of money. It entices people into occupations that they may not find interesting or inspiring, but are socially necessary; and it exerts constant pressure on business owners to provide what the public wants, not what they enjoy doing.

In all of Rand’s novels, only one business owner completely embodies the capitalist ethos. That is the press tycoon Gail Wynand, in The Fountainhead, who becomes fabulously rich through selfless service to the public, by providing it with what it wants: a lowbrow, sentimental, lurid newspaper. As he says (IV.11), he has led a life of “[s]elflessness in the absolute sense.” He “erased [his] ego out of existence” by following the principle, “Give the greatest pleasure to the greatest number.” However, according to Rand, Wynand is guilty of the most horrible sin in her moral universe: betraying himself.

Men who could order others to die and watch their death calmly characterized Communism. Smiling clerks, who sell unimpressive products, characterize capitalism.

Wynand’s opposite is Nathaniel Taggart, in Atlas Shrugged, who is supposed to be the archetypal capitalist. As Dagny recalls (I.8), “He said that he envied only one of his competitors, the one who said, ‘The public be damned!’” Nothing could be more antithetical to the motivation of a successful business owner in a capitalist society. This is the ethos of the head of a production unit in a Communist economy, who derives exhilaration and pride from productive achievement without regard to providing the public with what it wants.

Rand’s story “The Simplest Thing in the World” is an excellent illustration of this point. It assumes that an author with Rand’s sense of life is compelled to create a protagonist who does not work for money and therefore chooses to build ships instead of discount stores. This contrast is factually accurate. Someone motivated by money would not consider shipbuilding as a business career since, in economically advanced countries, shipbuilders can stay in business only by means of tariff protection or government subsidies or both. But he would certainly consider the business of discount stores, since they have proved to be the most profitable (i.e., socially useful) branch of retailing.

The economic role of money in constantly driving economic participants to provide the public with what it wants is related to an admirable moral attribute of the free market. It is completely democratic and non-coercive; no one can interfere with other people spending their money on what they want. In her essay “What Is Capitalism?” (1967: 17, 20) Rand showed that she was fully aware of this fundamental attribute of capitalism (the italics are Rand’s):

[T]he works of Victor Hugo are objectively of immeasurably greater value than true-confession magazines. But if a given man’s intellectual potential can barely manage to enjoy true confessions, there is no reason why his meager earnings, the product of his effort, should be spent on books he cannot read.

The tribal mentalities attack this principle . . . by a question such as: “Why should Elvis Presley make more money than Einstein?” The answer is: Because men work in order to support and enjoy their own lives — and if many men find value in Elvis Presley, they are entitled to spend their money on their own pleasure.

It is the Gail Wynands who provide true-confessions magazines and Elvis Presley CDs.

At this point, many readers will object that Ayn Rand appreciated the value of money. She ended Atlas Shrugged with its hero tracing the sign of the dollar in space, made a gold dollar sign Atlantis’ “coat of arms, its trademark, its beacon” (III.1), and herself often wore a gold dollar sign pinned to her dress.

Yet in The Fountainhead, Toohey asks Peter Keating about Roark (II. 4), “Does he like money;” and Keating replies No. But long before that, the reader has learned that Roark’s abnormal indifference to money is one of the essential characteristics that make him the hero of this novel. Indeed, in “The Simplest Thing in the World,” Rand assumed that an author with her sense of life must write only about heroes who do not care about money.

Rand assumed that an author with her sense of life must write only about heroes who do not care about money.

In Atlas Shrugged, Rand sometimes has her heroes claim that their goal is to make money. At the opening of the John Galt Line, which is by far the greatest achievement of both Dagny and Hank Rearden (I.8), a reporter asks Dagny her “motive in building that Line.” She answers, “the profit which I expect to make.” Another reporter cautions her, “That’s the wrong thing to say.” But she repeats it. Yet before her trip begins, she looks at the crowd that has gathered and notices that they are there, not because these people expect to make a profit, but “because the sight of an achievement was the greatest gift a human being could offer to others.” The description of the ride on the John Galt Line is the most exhilarating fiction writing I can recall reading; and I have read a great deal of narrative fiction, in ancient Greek, Latin, English, and French. For Dagny, “It was the greatest sensation of existence; not to trust, but to know.” “She felt the sweep of an emotion which she could not contain, as of something bursting upward.” And what about the engine drivers? Every one of them who was available volunteered to drive the train despite persistent warnings of danger. Surely, they were not motivated by money.

At least in their economic interactions, money should be the primary consideration of the heroes of a novel that ends with the dollar sign traced in the air. In Part I, Chapter 1, Dagny’s parasitical brother James says to her, “I don’t like Hank Rearden.” Dagny replies, “I do. But what does that matter, one way or another? We need rails and he is the only one who can give them to us.” James Taggart, typically of him, replies, “You have no sense of the human element at all.” This conversation crystallizes capitalist and uncapitalist mentalities.

Nevertheless, the economic decisions of the heroes of Atlas Shrugged are constantly motivated by the human element. That is true even of the one major character in Atlas Shrugged who is a pure capitalist, Midas Mulligan. He says he joined the strike because of a vision, in which he “saw the bright face and the eyes of young Rearden . . . lying at the foot of an altar . . . and what stood on that altar was Lee Hunsacker, with the mucus-filled eyes” (III.1). In Part II, Chapter 3, Francisco asks Rearden: did you want the rail you made for the John Galt Line used by your equals, like Ellis Wyatt, and by men such as Eddie Willers, who do not match your ability but who “equal your moral integrity” and “riding on your rail — give a moment’s silent thanks”? Rearden answers Yes. Francisco then asks, “Did you want to see it used by whining rotters?” Rearden answers, “I’d blast that rail first.” Francisco then explains that by "whining rotter" he means “any man who proclaims his right to a single penny of another man’s effort.” But no economy, whether socialist or capitalist, could function for one day if producers acted in this way. In Part II, Chapter 10, Dagny says that Nathaniel Taggart, supposedly the archetypical capitalist, “couldn’t have worked with people like these passengers. He couldn’t have run trains for them.” But no one running a train line, even in a socialist economy, could possibly consider the moral worth of its passengers, or any consideration besides their paying for the ride.

No one running a train line, even in a socialist economy, could possibly consider the moral worth of its passengers, or any consideration besides their paying for the ride.

I will conclude with the most frequently quoted explanation of why the market is the most effective means of providing people with what they want. It is by Adam Smith, in Book I, Chapter II of The Wealth of Nations: “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard for their own interest. We address ourselves . . . to their self-love.” Butchers, brewers, and bakers had a very low priority in Communist countries. When McDonald’s opened its first restaurant in Moscow, it had to train its own butchers (Goldman 1991: 166). It is also unimaginable for an Ayn Rand hero to be a butcher, brewer, or baker. The self-interest and self-love that induces people to become butchers, brewers, and bakers and to perform those jobs well is totally different from the heroic self-love of Rand’s heroes. It is an unheroic desire to support themselves and their families in comfort and security.

In her essay “What Is Capitalism?” Ayn Rand showed that she understood as well as Smith why love of money is wonderfully socially beneficial. In her fiction, however, her anti-capitalist sense of life obliterated that knowledge.

***

Footnotes
1. I cite passages in Rand’s novels by the part of the novel in which they occur and the chapter in that part. I do not cite page numbers because there are many editions, and each has different pagination from the others.
2. I write “Communist” with a capital “C” to indicate a member of a Marxist-Leninist Communist Party. Many people have championed a communist society (with a small “c”), beginning with the first two extant projections of an ideal society: Plato’s Republic and Aristophanes’ Ecclesiazusae, both from the 4th century BC.
3. Several of the heroes provide services while they are in Galt’s Gulch. But these jobs are merely stopgaps until they return to the world and use their talents again in their real work.

Bibliography
Blackman, Ann 1990: “Moscow’s Big Mak Attack.” Time (February 5).
Feshbach, Murray and Friendly, Alfred Jr. 1992: Ecocide in the USSR: Health and Nature under Siege. London: Aurum Press.
Goldman, Marshall 1991: What Went Wrong with Perestroika. New York: W.W. Norton & Company.
Rand, Ayn 1963: For the New Intellectual. New York: Signet.
Rand, Ayn 1964: The Virtue of Selfishness. New York: Signet.
Rand, Ayn 1967: Capitalism: The Unknown Ideal. New York: Signet.
Rand, Ayn 1975: The Romantic Manifesto, revised edition. New York: Signet.
Shmelev, Nikolai and Popov, Vladimir 1989: The Turning Point: Revitalizing the Soviet Economy, translated by Michele A. Berdy. New York: Doubleday.


Editor's Note: This article is part of a much longer monograph with the same title. It can be obtained from the author at stevenfarron@gmail.com.



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The Paradoxical Comfort of Bureaucracy

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Back in the days when your grandfather was still looking at your grandmother with inquisitive lust, I spent about 18 months on an aircraft carrier. I was a draftee in the French Navy, untrained for anything and possibly the lowest man on the totem-pole. I was 21 when I got out. In good time, I attended the university and graduate school in the US and I became a scholar in organizational theory (a pretty good one if I say so myself).

But my brief military experience remains vivid in my memory. In part, that's because everything you do at 20 tends to live in the brain in Technicolor and in Panavision. In part it's alive in my mind because interesting things happened there. When I write now about my naval period, I feel almost forced to apply a bit of organizational analysis to my memories. It's a slightly disturbing experience because being a small cog in a bureaucratic organization, a state organization at that, unexpectedly fails to evoke bad feelings.

It's disturbing because life and work within a bureaucracy is at the antipodes of libertarian utopian imagery. It's disturbing, additionally, because government routinely acts as the principal agent of routine state oppression in societies with a constitutional government such as the US. This malaise is also an opportunity. I believe that people who think of themselves as libertarians, even those with a mere libertarian bent, don't spend enough time thinking about disconfirming evidence, about experiences that run counter to their main existential choices. Here is a brief analysis, one that may speak a little to the issue of why some people are attached to bureaucracies in spite of their libertarian leanings.

In the navy, for days and weeks on end, I lived in an environment made entirely of steel except for the small patch of linoleum I cleaned every morning and the occasional spare piece of rubber connection. To be completely accurate, I have to specify that there were also plastic curtains around the bunks and part-cotton sheets inside. And the metal surroundings were all not especially unpleasant. Perhaps, if you are going to venture on the treacherous ocean, it's good to do it in a vessel made of thick sheets of steel joined together by large and visible steel nuts and bolts.

I felt the same about the organizational environment as I did about the physical environment of the ship. In general, I felt safe on the aircraft carrier. There were several reasons, some of which it costs me to remember because doing so constitutes a confession of sorts.

First, there were well-thought-out and well-rehearsed routines for everything, at least for everything that I knew then and, to a large extent, even for what I now know. (I never experienced naval combat, but I think the same principle prevailed there.) You could believe that whatever happened, the people doing something about the whatever would not be improvising a response. You could also be confident that their response would be familiar — familiar to them, that is, however alien it seemed to you.

Perhaps, if you are going to venture on the treacherous ocean, it's good to do it in a vessel made of thick sheets of steel.

Even my living-quarters close neighbors, the bosun's mates who were operating under the influence of alcohol most of the time, projected an air of competence. Bringing two small boats smoothly side by side in a choppy sea did not seem to tax the young guys who I would have bet could probably not negotiate the gangway to get themselves ashore for a fresh drink.

The second behavioral factor contributing to this feeling of safety was chronic overstaffing. I think that personnel redundancy is a general organizational principle in navies, military organizations, as opposed to merchant fleets, for example. The aircraft carrier is a special case because of its multiple functions. So I will focus on the case of a small destroyer that is similar in size to many cargo-ships of the pre-container period. My considered, serious guess is that the crew of a destroyer was at least three times larger than the crew of a freighter of similar tonnage. Or, to put it another way, the captain of a small freighter of the day could easily have boasted: “I can run this destroyer with my eighteen men. Just put ashore its current excessive crew of sixty. We will do the job, no problem. Perhaps, leave one gunner behind; no big deal.”

Overstaffing is a luxury that ensures that few if any organizational members will be stressed by overwork, except perhaps at the very top. There were telling details supporting this perspective, details that would have bespoken laziness in any framework other than a military one. Thus, when the officer on watch on the bridge made an announcement over the ship's public address system, he did not conclude his address with a greeting or introduce himself or give a summary, nor did he hang the mike himself. He had an enlisted gopher standing by to make these small gestures for him.

Another way to speak of overstaffing is to refer to underwork. My boss was the Chief of Operations, the third ranker on board. He had one full yeoman, a guy who had signed up voluntarily and who had been more or less trained by the navy. I, a draftee, had received no training beyond boot camp. My boss agreed early in our acquaintance that his assistant-yeoman, myself, was to deliver each day a given, limited amount of work. The amount was one single typed stencil. That would have been the amount of typing a careful, well-trained professional typist (working on terra firma) could easily have supplied in one hour. The key to understanding the apparent waste is this: At any one time, my boss the Operations Chief knew that he could put seaman Delacroix to work to do the urgent or the unexpected — hand-carry a message, sharpen his pencils, or pick up his laundry in a raging storm — without sacrificing any other aspect of his, the Chief's, responsibilities. So the abundance of underutilized work capacity was a source of comfort for all aboard ship; it implied that those with serious responsibilities were unlikely to be overwhelmed by them.

The principle of overstaffing, or of an underutilized work force, ran throughout and up and down the complex organizational chart of the aircraft carrier. There were three apparent exceptions. First, some menial functions might be understaffed for a short time. Second, one crucial but rarely performed task apparently failed to command sufficient personnel. Third, the most industry-like subpart of the ship's organization seemed to be perennially short of qualified bodies.

First, the menials. It might happen occasionally and for a brief period that some small functional department was short one man. That would always be in areas of activity where overworking the remaining men, by giving each the equivalent of half a civilian work load, for example, would not seriously endanger other operations. I am literally referring to peeling potatoes and to cutting hair while at sea. It was common practice among petty-officers to bribe the crewmen thus rudely put upon, with a couple of bottles of beer. (Yes, there was and there is alcohol on French naval ships. Their crews may not shoot straight but they are not stressed!)

A second exception to the rule of underutilization of personnel still puzzles me a little. There was only one old senior petty-officer on board who was able to steer the huge ship through certain narrow harbor entrances in very stormy seas. This scarcity perplexes me because the task was in no way comparable in its importance to peeling potatoes, for instance. The preservation of extremely expensive matériel and possibly the safeguarding of many lives demanded that this skill be available.

Yes, there was and there is alcohol on French naval ships. Their crews may not shoot straight but they are not stressed!

I have no solid explanation for this queer penury. Here is my best guess though: most of the functions to be performed on the ship could be reduced to small gestures that could in turn be described concretely and thereby routinized. Most of those functions could be reduced to routines that were easy to learn even for the moderately gifted. Producing in advance of need a ready supply of people to perform those functions was not a big deal. Those common functions demanded only carefulness for successful performance. By contrast, the ability to drive a gigantic floating object battered by winds and contradictory wave conditions through a narrow passage depended on tacit knowledge.

Tacit knowledge is knowledge that is difficult to transfer deliberately. It's what can be learned but cannot be taught, or only taught to a limited extent. Tacit knowledge is found also in art, in dress-designing, in bread-baking and of, course, in the brewing of beer. I mean with respect to the latter that it's easy to brew beer and fiendishly difficult to brew good beer. Because much of tacit knowledge cannot be taught, precisely, it may often be in short supply. Alternatively, it may occur naturally more commonly than is objectively necessary (as with artists, for example). Such oversupply does not receive much notice, naturally. Only shortages are noticeable.

The third exception to the principle of overstaffing keeps sticking in my mind because it does not make obvious sense in spite of my best efforts.The flight deck crewmen often complained of overwork. Their jobs were both essential (obviously, we were on an aircraft carrier) and as minutely divided and routinized as anything, anywhere on earth. So, if the principle of overstaffing did not apply to them, it was not because their work relied on tacit knowledge that was hard to find. Neither were they expendable like the potato jockeys I evoked earlier. I just don't know for sure why they said they were overworked. This want of an explanation mars my nice analysis, but I must almost leave it at that. I say “almost,” because I sometimes had the thought that being overworked — or proclaiming oneself overworked — was cool for flight deck personnel but not for other crewmen.

They, the flight deck crewmen, had to work day in and day out with pilots whose own exalted status was likely to create different emotions around them. Come to think of it, I had an intuition about that cultural proximity factor right then. I spent much time observing landing and takeoff maneuvers on the flight deck from a safe spot. And I was well aware of aviation crewmen’s complaints about overwork. Nevertheless, their complaints never troubled my own sense of comfort, although my tiny office, with me inside, bent over my typewriter, could have easily been wiped out by a single misdirected landing.

I hope the reader understands that the few preceding paragraphs constitute a kind of regrettable but real declaration of faith in well-designed bureaucracy. Of course no one asked that particular bureaucracy to be efficient. It was expected only to be effective, to get the job done, almost irrespective of cost.


Editor's Note: This essay is adapted from Delacroix's as-yet-unpublished memoir, “I Used to Be French: An Immature Autobiography.”



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The Student Loan Bubble

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The left-leaning web site ProPublica specializes in long-form journalism — labor-intensive, 3,000-plus-word articles dedicated to serious treatments of big subjects. Think of the long pieces that appeared in The New Yorker during the 1970s and early 1980s and you get the idea. While I find ProPublica’s reflexive and unexamined bias in favor of statist schemes irritating, I do read its articles. They are usually earnest and sometimes worthy efforts.

Lately, a ProPublica article about a semiliterate gardener’s struggles to manage his dead son’s unpaid college loans got some traction in the mainstream media. (While I don’t understand ProPublica’s business model completely, it seems to involve licensing its long stories to other news organizations.)

This gardener’s woes fit neatly into the mainstream media’s narrative that student loans are an evil, evil thing about which Good King Barack needs to do something. And, by “do something,” moronic opinion-shapers mean without saying: subsidize borrowers’ bad choices with capital redistributed from taxpayers.

This proposition is wrong on many levels. It also reflects faulty assumptions and bits of specious logic that are worth some examination — because they explain many of the problems that plague America today.

First, a quick review of ProPublica’s telling of the gardener’s tale.

Francisco Reynoso lives in Palmdale, California — a dusty far suburb, north of Los Angeles. He doesn’t speak much English (though he is a naturalized citizen) and earns about $20,000 a year from his labors. While the story doesn’t offer many details about Reynoso’s work, in southern California “gardener” is often a euphemistic way to describe a causal day laborer — the kind of guys you see milling around Home Depots and such outlets, looking for work.

On this meager income, Reynoso supports his wife and daughter. He used to support a son, too. But, in a tragic turn, that son — Freddy — died in a one-car accident in September 2008.

Freddy had recently graduated from Berklee College of Music, a school in Boston that combines elements of a conservatory with the rigors of a traditional four-year college.

It was a bit strange that a gardener’s son had matriculated to a place like Berklee. It’s no community college . . . or even a state university. Rather, its reputation has long been as a pricey second-tier Julliard. The school’s comprehensive fee is nearly $50,000 each academic year.

A lazy person might describe Freddy’s enrollment at Berklee as a version of “the American Dream.” The son of a laborer enters a world traditionally reserved for the elite, etc. But it sounds like Freddy never really entered that world. In 2005, after he’d been admitted to Berklee, the young man needed to borrow significantly to enroll. Reynoso cosigned on a series of student loans that allowed Freddy to attend. By 2008, when Freddy was finished at Berklee, he moved back to Palmdale and was driving into Los Angeles most days. Trying to find work. According to his family, Freddy was driving back from the city on the night that he ran off the highway, rolled the car, and died.

As a father, perhaps Reynoso should have told Freddy that borrowing hundreds of thousands of dollars to get a degree in music was a bad financial decision.

The principal amount of the money Freddy and his father had borrowed was nearly $170,000. With interest and fees added, the amount they’d have to repay would be closer to $300,000. The lenders didn’t mind much that Reynoso didn’t have the means to repay those amounts because, as we’ll see in more detail later, various government subsidies that support the student-loan market make rigorous underwriting unnecessary.

So, lenders lend. But why do borrowers borrow? Why did a gardener making little more than minimum wage agree to guarantee so much in college loans? His answer: “As a father, you’ll do anything for your child.”

It may not seem sporting to criticize a simple man’s devotion to his son . . . but what if that devotion is ignorant and misguided? According to a survey of music industry salaries produced by Berklee itself (and based — tellingly — in the “Parent Questions” section of its web site), most of the jobs its graduates pursue offer starting pay of less than $25,000 a year. That’s not enough income to support the debt service on nearly $200,000 in student loans.

As a father, perhaps Reynoso should have told Freddy that borrowing hundreds of thousands of dollars to get a degree in music was a bad financial decision. Some people are poor because they make bad financial choices. An unintended consequence of government programs that give material support to such poor people is that they’re free to make more bad choices. In the hands of Francisco Reynoso, Freddy’s government-subsidized student loans were a loaded gun . . . or a hangman’s rope.

A few months after Freddy’s fatal accident, collectors started calling Reynoso to demand payment on the student loans for which he’d cosigned.

The loans that allowed Freddy to attend Berklee fell into several categories — as they do for most borrowing students. There were some direct government loans, which carry the lowest interest rates and most favorable terms for the borrower. In most situations, they don’t require parents to cosign. But there are limits to the amounts available on these favorable terms; in most cases, a student can only get a few thousand dollars each academic year in this “cheap” money.

After that, a borrowing student needs to go to so-called “private” lenders. These are banks and specialized finance companies that offer loans with higher interest rates and less-favorable terms for borrowers. But the “private” loans are still subsidized heavily by the government and share unique traits with the direct government loans — most importantly, the loans cannot be discharged in bankruptcy.

(A personal aside: When my oldest child was getting ready to leave for college, we reviewed her finances and found we were a little short on the cash she would need for her comprehensive fee. She shook off the shortfall as no big deal; the college was happy to help her apply for student loans. I advised her only to borrow as much as was available in direct government loans and to avoid the higher-interest private loans at all costs. She rightly noted this advice was ironic, coming from someone who advocates against such government programs; but she heeded the irony and will graduate next year with a nominal amount of relatively cheap debt to repay.)

This is the major reason why the “private” student-loan lenders don’t bother with rigorous underwriting. Since the loans can’t be discharged in bankruptcy, the lenders or their agents can hound borrowers and cosigners for repayment endlessly.

In Freddy’s case, he borrowed about $8,000 in private money from Bank of America and about $160,000 from a company called Education Finance Partners. Neither lender kept the loans for long; as is typical in the market, the “loan originators” sold Freddy’s paper to other firms that focus on servicing debt or bundling it with other student loans and “securitizing” those bundles.

According to ProPublica, Bank of America sold the loan it made to Freddy to a student-loan financing specialist called First Marblehead Corp.; Education Finance Partners, which has since declared bankruptcy, sold the loans it made to Freddy to a unit of the Swiss banking giant UBS.

The loans purchased by UBS may have been sold, in turn, to the Swiss National Bank (analogous to the U.S. Federal Reserve) when the National Bank made a Fed-style bailout of UBS in 2009. Details are sketchy because of Swiss privacy laws.

So, if the ownership of the debt was unclear, who were the collectors calling Reynoso for repayment? A separate company, called ACS Education Services, which owns some student debt and contracts with other lenders to manage and collect on their loans for a fee. ACS is a unit of Xerox Corp. and one of the bigger players in the student-loan servicing market.

But Freddy was dead — and one might think that that fact would have an effect on the lenders’ collection efforts. Some student loan companies have a policy of canceling loan balances when a borrower dies. (Direct student loans from the government are generally cancelled if the borrower dies.) But, since Reynoso had cosigned for his son’s “private” loans, the lenders have the legal right to pursue payment from him.

A fundamental fraud lies beneath all this do-gooder claptrap. And that fraud may eventually destroy the foundations of many schools.

It’s easy — and emotionally satisfying, perhaps — to focus outrage at lenders like Bank of America and Education Finance Partners, or behind-the-scenes operators like First Marblehead or ACS Education Services. The establishment Left and media outlets like ProPublica certainly focus on them.

But these lenders and finance outfits are really just service providers, working the levers of government to find ways to make a few points here or there while helping to facilitate state-sponsored transactions.

The core transaction in the ProPublica story was between Freddy Reynoso and the Berklee College of Music. Freddy was pursuing a dream of being a professional musician and Berklee was selling an expensive credential that might help in that pursuit.

Freddy died. But Berklee is doing well. It has an endowment of nearly $200 million and is in the midst of an ambitious expansion of its campus — which at present comprises of some 21 buildings in the Back Bay area of Boston. The College’s website described the opening of one new building in this way:

Adorned with bright colors, the unique and hip space has an industrial feel, in step with Berklee’s cutting-edge sensibility. The building also houses the Berklee Writing Center, Berklee’s English as a Second Language Program, an Africana Studies Room, conference and seminar rooms, and a café.

More hip space in the Back Bay is in development. And Berklee has recently opened a satellite campus in Valencia, Spain.

According to a September 2011 report from the Center for Social Philanthropy and the Tellus Institute, Berklee President Roger H. Brown makes more than $550,000 a year. And five other senior administrators make more than $300,000 a year. It’s good money — although, by elite college standards, it’s not that much.

President Brown’s official biography recounts sanctimoniously the work that he’s done in places like Thailand and the Sudan for various humanitarian outfits (some connected with United Nations). It boasts about the big child-daycare company he started with his wife, but it doesn’t mention the years he spent working for Bain & Co.

I’m sure Mitt Romney will understand.

Of course, the bio focuses on the efforts Brown has made to move Berklee closer to the first-tier of private colleges:

In 2007, Brown launched the college’s first capital campaign with a goal of raising $50 million. He has initiated Berklee’s Presidential Scholars and Africa Scholars programs that provide full-ride scholarships to give top musicians around the globe a Berklee education. He has overseen the expansion of the City Music Program beyond Boston in an effort to provide educational opportunities for talented but economically disadvantaged urban youth. . . . Brown worked with the city of Valencia, Spain, and the Generalitat Valenciana to create a Berklee campus in Valencia.

He’s the very model of a modern major-general. Working the levers of government in Spain to set up a ritzy international campus. Overseeing the expansion of programs to provide for the disadvantaged. Initiating programs to give scholarships to top musicians around the globe.

But a fundamental fraud lies beneath all this do-gooder claptrap. And that fraud may eventually destroy the foundations of schools like Berklee College of Music.

For decades, striving institutions of higher education have been working the levers of government — and, specifically, the student loan market — to redistribute capital from the lower and middle classes into their self-styled “elite” pockets. A regressive racket if ever there was one.

The pieces are all present in Freddy Reynoso’s story. Nearly $200,000 was taken from people who can’t afford it, facilitated by banks and the federal government, and transferred into the coffers of a music college already sitting on an endowment of several hundred million. If the sanctimonious Roger H. Brown really wanted to help disadvantaged youth, he should have given Freddy Reynoso a free ride. But why should he do that? Uncle Sam is willing to arrange for Berklee the pretense of high-minded altruism and the profit margins of a payday lender.

Roger H. Brown won’t stop this deal. So Uncle Sam needs to.




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Fungible Semantics: The Roberts Decision

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Tax: A contribution for the support of a government required of persons, groups, or businesses within the domain of that government.

Penalty: A punitive measure, regulatory in nature, established by law or authority, to deter certain conduct.

A Supreme Court decision upholding the constitutionality of the healthcare mandate based on the government’s taxing authority?

Well, why not? The tax code has been dragooned into service to influence and shape social behavior for over a hundred years, from a dollar-a-pack cigarette tax, to mortgage relief to encourage home ownership. In addition to the collection of revenue to bankroll government it evolved into an instrument for social engineering and stealth workarounds to advance social policy. Which of the following statements is true?

A tax raises revenue, a penalty raises revenue, therefore a penalty is a tax?

A tax influences behavior, a penalty influences behavior, therefore a tax is a penalty?

That’s right — neither is true. These syllogisms illustrate a well-known logical fallacy that can be found in any college textbook on logic. How, then, could a superior jurist like John Roberts persuade himself that a penalty is a tax? Well, the Chief Justice opined that the penalty for noncompliance with the mandate ($695) was too weak to constitute a deterrent, and must therefore be a tax! This left many to wonder if he had intentionally confounded these two concepts, and thus rewritten the mandate so the Affordable Care Act would pass constitutional muster.

The logic was so bizarre and flawed that some, like Charles Krauthammer, suggested that Roberts resorted to this semantic legerdemain to avoid politicizing the Court and weakening its prestige. But this is to forget that the Constitution was born in crisis and the Court has weathered more violent partisan storms than those of the current climate: just read some of the broadsides in newspapers written one hundred to two hundred years ago. To my knowledge, no Congressmen have been caned to within an inch of their lives in the well of the Senate (though, no doubt, some have deserved it), and no cabinet secretaries killed in duels in the past 100 years. A good rule of thumb: follow the law and let the chips fall where they may.

Misconstruing what is obviously a penalty as a tax may seem a harmless bit of hocus pocus, but playing hard and fast with meaning and general disregard for semantic precision has resulted in a Supreme Court decision that could have unfortunate consequences for the American economy. Or as one editorialist (James Delong) put it:

The ACA is a complex and incoherent law drafted in haste and secrecy, written largely by the healthcare industry to promote its own profits by bringing more people into a government-administered system open to capture and looting. It is defended by an administration trapped by the imperative of defending its handiwork. The product is a Rube Goldberg regulatory system that cannot be made rational, workable, or intelligible, and is a delicious (to Republicans) promise of an endless stream of outrages.

It is all very well for the Chief Justice to defer the issue of constitutionality back to elected officials, but as Ronald Reagan once remarked, “The nearest thing to eternal life we will ever see on this earth is a government program,” and it will be difficult to impossible to repeal the healthcare law even if Mitt Romney is elected president, unless there are significant Republican majorities in both houses of Congress. The stakes were high, very high. This could be the worst Supreme Court decision since Kelo v. City of New London, and it is fair to ask if, during his stormy sessions with the brethren, Justice Roberts experienced some sort of mental lapse.

In the last century or so, no Congressmen have been caned to within an inch of their lives in the well of the Senate — though, no doubt, some have deserved it.

The original sin was, of course, using the tax system as a quick-and-dirty tool to improvise policy, to encourage (say) petroleum exploration or to discourage the use of tobacco, thereby exempting government from the strenuous work of writing carefully crafted long-term programs to advance a coherent policy. The Constitution says that

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . .

The framers did not say that the collection of taxes could or should be used to influence economic behavior or placate special interests, and in this they showed some foresight: broadening the concept of taxation to, for example, provide incentives for certain economic entities, has resulted in a Byzantine tax code so complicated and unwieldy, so corrupted by influence-peddlers and lobbyists, it has become a national embarrassment, and a general disincentive to business and entrepreneurship. Using the sacrosanct tax code as an ad hoc tool to implement policy (rather than enact problem-specific programs) has produced some very bad tax law.

Another institutional casualty, perhaps more fatal than the debasement of the tax system, has been the English language. A general contempt for the elegance and precision of English, e.g. twisting of meaning out of all recognition, demonstrates the dangers that George Orwell warned us about over 60 years ago in his essay, Politics and the English Language. The decline of English, he observed, had entered a deadly spiral:

it becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.

It was Orwell’s belief that words and semantic distinctions matter, that mangling language to suit one's purposes eventually leads to a world where black is white and up is down. How prophetic! We need language to map the world as it is, not as we would like it to be, and a breach of semantics can be even more lethal than a breach of law. Using imprecise language to conceal real meaning is a sure path to chaos. Orwell was talking about communist pamphleteers and flannel-mouthed journalists at the time, but it applies equally to any abuse of language, and that includes the recent decision by Chief Justice Roberts to call a penalty a tax.




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Check Your Premises!

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Ah, NPR — how we love to hate you . . . and guardedly to love you. Love you for such gems as “Car Talk," “A Prairie Home Companion,” and “Freakonomics.” Hate you for the smug sanctimoniousness that passes for “objective” reporting, riddled with questionable premises axiomatically postulated.

It’s not that interviews with the likes of David Axelrod or public sector union bosses are slanted — after all, we expect left-wing boilerplate from them. It’s the public affairs programs, such as “Talk of the Nation” and the “Diane Rehm Show,” which, while pretending to be objective, are blinded by their own unquestioned assumptions. This is particularly evident when the host — be it Rehm or Neal Conan — in an effort to be balanced during roundtable discussions with a potpourri of commentators, plays devil’s advocate. The questions of these devil’s advocates often lack conviction or show a gross misunderstanding of the opposing viewpoint. And they are seldom followed up — after what are invariably short, pro-forma answers.

On Fridays, Rehm hosts a roundup discussion of the week’s news. Recently, the subject was the presidential campaign. At one point she asked the panel whether Mitt Romney’s record at Bain Capital was “fair game” — for an attack by the opposition, I suppose. Instantly, my BS radar quivered, since it’s a given that a candidate’s record should be analyzed and critiqued. The question turned out to be the opening salvo for a nitpicking attack on Romney’s Bain record, private equity in general, obscene profits, and “excessive” wealth. There was no parallel inquiry into whether Barack Obama’s record as a community organizer was “fair game.”

Examine the hidden premises.

In the first instance, the assumption is that work in venture capital and leveraged debt — making a profit by dismembering noncompetitive industries, extracting their residual value, and eliminating the jobs they provide — is problematic, perhaps nefarious. Never mind that failing companies might be better off dissolved, and their assets better employed in a different sector of the economy. Never mind that the benefits to the economy would likely increase employment by making business in a given sector more competitive, despite the short-term loss of jobs. To see this in another way: why should productive capital be wasted subsidizing a dying enterprise producing unwanted goods by overpaid workers at uncompetitive prices?

Although the companies that Bain Capital nurtured back to health and profitability — because, in the judgment of the investors, they showed promise — were dutifully mentioned, the focus of the discussion remained on the euthanatized companies and their lost jobs. Eager to administer the coup de grace, the commentators piled on “excessive” profits and wealth, ignoring whether or not these were acquired honestly through hard work and brains.

Why should productive capital be wasted subsidizing a dying enterprise producing unwanted goods by overpaid workers at uncompetitive prices?

In the second instance — the unasked question (and probably why it wasn’t asked) — the assumption is that work as a community organizer is always noble and beyond criticism. Perhaps it is, but does it qualify a candidate for the presidency, where judgment, leadership and knowledge are paramount?

Mitt Romney’s record — whatever you might think of his policies — at Bain & Company, Bain Capital, and the Salt Lake Winter Olympic games, as well as in the governorship of Massachusetts, demonstrates the sort of judgment, leadership, and knowledge that one expects from a first-class commander-in-chief. In contrast, Barack Obama showed a striking lack of judgment and a foolish naiveté when he promised to close the Guantanamo prison, to have the most open and accessible administration to date, and to do a lot of other things that he has not done, three and a half years into his presidency. The May 26 issue of The Economist displayed its inimitable sense of humor and irony when it reported that

“Barack Obama accepted an award honouring his administration’s commitment to transparency on March 28th 2011. It was given by a coalition of open-government advocates. But the meeting was closed to reporters and photographers, and was not announced on the president’s public schedule. Occasionally life provides perfect metaphors.”

The article then very seriously ups the ante:

“Yet perhaps none of Mr Obama’s transparency promises has rung hollower than his vow to protect whistleblowers. Thomas Drake, who worked at the National Security Agency, was threatened with life imprisonment for leaking to the Baltimore Sun unclassified details of a wasteful programme that also impinged on privacy. The case against him failed — ultimately he pleaded guilty to a misdemeanour charge of ‘exceeding authorised use of a computer’ — but not before he was hounded out of his job. Mr Obama’s administration tried to prosecute him under the Espionage Act, a law passed in 1917 that prohibits people from giving information ‘with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation’. Mr Obama has indicted six whistleblowers, including Mr Drake, under the Espionage Act, twice as many as all prior administrations combined, for leaking information not to a ‘foreign nation’ but to the press.”

Finally, to tie the ribbon properly, The Economist contrasts the Obama administration’s secrecy with the new sunshine policy of Georgia’s Republican administration, which opens vast public access to government files. All this from a newspaper that endorsed Obama over McCain in 2008.

As to leadership, President Obama abdicated any vestige of it when he ignored the balanced-budget recommendations of the bipartisan Simpson-Bowles commission and subsequent Super Committee — both of which he had commissioned. And he left the design of health reform in the capable hands of Harry Reid and Nancy Pelosi.

Obama’s knowledge of community organization might be beyond question, but if his role as a teacher of constitutional law at the University of Chicago meant anything, warning bells ought to have chimed in his head as he signed into law the Patient Protection and Affordable Care Act, otherwise known as Obamacare — as became evident to constitutionalists on June 28 when the Supreme Court’s minority issued vigorously dissenting opinions to the majority’s ruling on its constitutionality.

His lack of economic knowledge is even more abysmal. The Diane Rehm Show referenced above was aired as a follow-up to the Democrats’ critique of Romney’s stint at Bain. TV spots, print advertisements, and an Obama address have caricatured private equity, financiers and of course the Republican candidate as “vampires” and “vultures.” A conflict between profits and unemployment was insinuated. Referring to these attacks, The Economist agreed with Romney’s oft-stated comment that Obama has no idea how the economy works or how jobs are created, and in its June 2 issue opined, “Mr Obama is guilty not of rhetorical excess but of economic muddle. That is far more worrying.”

But back to NPR.

The then soon-to-be-expected Supreme Court ruling on the legality of Obamacare supplied the theme for another recent Diane Rehm roundtable discussion. To the NPR powers-that-be, the constitutionality of the law must have seemed indefensible. So once again, they changed the premise and reframed the debate to stack the deck in their favor. Instead of focusing on the substance of the upcoming decision, discussion focused on the haplessness of five to four decisions and the desirability of broader consensus among the justices. This was chewing on the sizzle instead of the steak. Ironically, even though Obamacare was upheld, it was still a five to four decision.

Conan asked his audience whether NPR offered good value to its listeners, thereby subtly shifting the premise of the argument and justifying the subsidy. He received nothing but paeans of praise for NPR — from its own listeners, of course!

On June 15 President Obama displayed a presidential quality that is anathema to lovers of liberty: a lust for power. Bypassing Congress, he ordered the Department of Justice not to enforce certain measures of immigration law, in effect passing the so-called DREAM act by executive order. On the day it happened, Diane Rehm’s Friday roundtable discussion focused on the decree’s compassion, on Congress’s ineffectiveness, on the Republicans' immigration policy muddle, and on the consequences of the president’s move on the political campaign — in particular, how it stole the thunder of Florida Republican Congressman Marco Rubio, a Cuban-American vice-presidential hopeful whose modified DREAM act had a good chance of being enacted, in a conventional manner. In short, she focused on everything except the executive order’s legality.

A Fox News discussion, on the other hand — and virtually at the same time — questioned the constitutionality of the president’s decree, almost to the exclusion of every other aspect.

On another show, NPR itself was the subject du jour. Whenever the nation’s budget is up for discussion, NPR’s subsidy — relatively small as it is — becomes a point of contention for some Republicans. But the animosity conservatives harbor towards public radio for their leftward slant is almost beside the point. Their more basic concerns are twofold: is the subsidy a proper function of government; and can we afford it?

Those questions are about fundamental premises. Yet they were completely ignored when Neal Conan tackled the subject on NPR’s “Talk of the Nation.” Conan’s show is sometimes a Gatling gun of vox populi sound bites on whatever the current concern happens to be. During these broadcasts he poses a provocative question and solicits callers for their opinions, granting each of them only a few seconds, and seldom engaging them or directly commenting on what they say. On that day Conan asked his audience whether NPR offered good value to its listeners, thereby subtly shifting the premise of the argument and justifying the subsidy. He received nothing but paeans of praise for NPR — from its own listeners, of course!

Premises are not confined to words. Tone can convey its own hidden premises, and Conan is a master of the craft. Merely by the length of his silence and the inflection on the few words he uses to break it following a caller’s comment he can indicate his approval, disapproval or neutrality. The last is the quality he always strives to project, but the careful listener can often almost hear him muffling a censorious tut-tut-tut.

He doesn’t hold a candle, however, to the archly supercilious Nina Totenberg, NPR’s legal affairs correspondent. It’s never difficult to determine Totenberg’s likes and dislikes, which — you can be certain — are always evident, especially when combined with her East Coast Brahmin accent, which lends a certain emphasis to her tone. She can infuse with utter contempt the utterance of a name or story she disapproves; and she can manage to give weight and portent to anything she considers noteworthy, no matter how trivial or anodyne, by the intonation of her voice.

* * *

Writing is seldom objective; reportage never is. Putting an idea into prose requires choosing words to convey the thought, while even selecting what constitutes a news story, deciding how to report it, or how much context to include, invariably slants it.

This seems such a simple observation. Yet most news organizations are loath to recognize or admit it, and don a mask of faux objectivity that few people see through. With one exception: the aforementionedEconomist.

The Economist is an English weekly news magazine in continuous publication since 1843, with a circulation of 1.5 million. Itcalls itself a “liberal newspaper”, but it is not “liberal” in the American sense. Rather, it is “classical liberal”, sometimes advocating radical libertarian positions. Its June 11 issue carried a critique of charitable tax breaks as a cover story. It advocates the legalization of drugs and open immigration, has criticized the “corporate social responsibility” movement from an ethical perspective, and has strongly defended securities short selling and naked speculation as beneficial practices.

Ironically, the journal’s editorial stance results in much more objective reporting than that of an “objective” source such as NPR — for one thing, because a reader knows up front where The Economist is coming from. Contrast with The New York Times (the “newspaper of record”), with a print circulation of 1 million. The NYT has always considered itself the epitome of objectivity, yet a large majority or readers view it as “liberal” (in the American sense). This view was confirmed in a mid-2004 editorial by the then-public editor, Daniel Okrent, in which he admitted that the newspaper did have a liberal bias. But this bias is not the paper’s stated policy position. Both the NYT and NPR would benefit hugely from such a disclosure, as they would no longer draw accusations of hypocrisy. But don’t hold your breath.

One unexpected bonus from The Economist’s openly classical liberal bias is that they can use humor to drive the point of a story home. Reporting on Zimbabwe’s upcoming elections under President Robert Mugabe’s tyrannically corrupt administration, The Economist offered a photograph of an elderly, loincloth-clad shepherd leaning on his crook, next to a coffin under a tree; nearby, a cow grazed. The caption read: “Four votes for Mr Mugabe.”




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Prosecutorial Indiscretion

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On June 15, 2012, hundreds of thousands of foreign nationals living illegally in the United States turned on their television sets to hear that they had become eligible for (1) a renewable two-year deferral of removal from the country and (2) a work permit.

While this may seem like a big change for those immigrants, the focus here will not be on what it might do for them, but how it was done, and why.

How do you think it was done? Choose one of the following: (a) Congress passed a new law and the president signed it, (b) the Supreme Court struck down an existing law, (c) the president issued an executive order, or (d) none of the above.

If you chose (c), it would be understandable, as it was President Obama who announced this change in front of the cameras outside the White House. There was, however, no executive order. An executive order cannot be used to overturn an existing law. On September 28, 2011, President Obama told a group of Hispanic journalists that “this notion that somehow I can just change the laws unilaterally is not true. The fact of the matter is there are laws on the books I have to enforce.” The rest of the transcript is here:

http://blogs.suntimes.com/sweet/2011/09/obama_on_dream_act_cant_just_c.html

The correct answer is (d), none of the above, which leaves the question, “Then how?”

On June 15, Janet Napolitano, Secretary of the Department of Homeland Security, sent a memo to three of her underlings directing them to “exercise prosecutorial discretion” in the cases of certain “low priority” illegal aliens, “effective immediately.” (Yes, she ordered them to exercise discretion.) The memo enumerates the criteria to be used to determine which illegal immigrants will get the deferrals and work permits. The memo is here:

http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

That’s right; it was done by interoffice memo.

It seems odd, doesn’t it? When I hear of prosecutorial discretion, I think of cases in which discrepancies in the chain of custody of a bag of pot lead the prosecutor not to bring charges or perhaps to drop charges, that sort of thing. But in this case, according to the June 15 New York Times, “more than 800,000 young people” are now eligible for deferrals and work permits because an unelected bureaucrat fired off a memo. Upon reading that, I had three thoughts: first, “That’s quite a few people.” Then, “That’s a pretty sweeping change.” And finally, “That’s some discretion.”

In any case, that seems to be how it was done. But why was it was done in just that way?

What follows is an informal examination of the power of prosecutorial discretion in the United States that may help explain the Secretary’s memo.

I once stayed with a friend who lived in the country just outside Düsseldorf. To go into town, I had to walk a few hundred yards to the end of a narrow lane and then cross a road to get to the bus stop. There was a crosswalk with a signal light activated by a button.

The first time I went to town, I walked down the lane, pressed the button and waited. Then I waited some more. With nothing but time on my hands, I looked down the road toward town and saw a straight, empty road that disappeared into some trees about of a quarter mile away. There were neat fields on either side. I turned my head and looked the other way and saw the same thing, fields and all. I then looked across the road toward the bus stop. After a minute or so, the light changed and I crossed.

On my second trip to town, I pressed the button, looked both ways, and, seeing exactly what I had seen before, quickly crossed the quiet, two-lane road.

In the shade of the bus shelter sat a German woman who did not approve of what I had done. I could tell that she did not approve because she told me so. Though my German is limited, I pieced together her strasse, verboten, and dummkopf, along with her gestures and facial expressions, and got the message. As I stood listening, I was reminded that German could do with more vowels and less phlegm. I was also reminded that I was not in Kansas.

Under the signs that tell pet owners to use plastic bags one often finds a fresh reminder of American pragmatism that would make William James proud.

Americans tend toward pragmatism. An American might say, “The purpose of the light is to prevent people from being run over by cars. If there are no cars, then the light, pragmatically speaking, has no purpose.”

Germans tend toward what might be called legalism. A German might say, “The purpose of the light is to tell the pedestrian when it is permitted to cross the street and, more importantly, when it is forbidden to cross the street.” To the German, the cars have nothing to do with it. While this is a simplification, it is not wrong.

In Southern California, where I live now, American pragmatism is on display for all to see. Each citizen sifts all rules, regulations, and laws through a personal pragmatic filter that removes those that are without purpose or of low priority.

A few examples will make the point. Speed limit signs are, of course, viewed as suggestions. Simple rules of the road regarding merging, tailgating, and signaling lane changes are ignored more often than not. Bicyclists are generally oblivious to traffic lanes, signs, and signals. Many locals feign surprise when told that the recreational use of marijuana is not legal. Only tourists stop at the signs that read “STOP”; locals just glide through. Under the signs that tell pet owners to use the plastic bag provided in the little dispenser one often finds a fresh reminder of American pragmatism that would make William James proud.

A German might ask, “What about the police?” In general, the police exercise a great deal of discretion. They use their personal pragmatic filters to screen out low priority violators and violations. Germans are surprised to see that people continue to disobey many laws even when the police are watching. Some of these violations, like dope smoking, depend on the jurisdiction, while others, like breezing past stop signs, are universal. What really shocks the Germans is that the police disobey many laws themselves. Those who doubt this can follow a squad car through traffic in Southern California and count the violations.

Some Germans find all this pragmatism bracing. Once, when I was camping in Zion National Park, a German with an RV and a sunburn walked up to me. In a beer-fed state of shirtless ecstasy, he threw out his arms and shouted, “Everything in America feels so free!” Most Germans, however, are appalled by our pragmatism. To them, it just seems stupid. I know this because they have told me.

The legal systems of the two countries reflect the difference between pragmatism and legalism. In the United States, as Rebecca Krauss explains in her essay The Theory of Prosecutorial Discretion in Federal Law: Origins and Development,“Prosecutorial discretion is a central component of the federal criminal justice system. Prosecutors decide which cases to pursue and plea bargains to accept, determining the fates of the vast majority of criminal defendants who choose not to stand trial.” She concludes the paragraph by pointing out: “In Germany, however, a rule of compulsory prosecution constrains prosecutorial discretion, checking the prosecutor’s ability to pick and choose which cases to pursue. No comparable regime restrains American prosecutors.” The entire essay can be found here:

http://erepository.law.shu.edu/circuit_review/vol6/iss1/1

Generally, then, in Germany, citizens obey the laws, the police enforce them, and the prosecuting attorneys, if the evidence is sufficient, take cases to trial. By contrast, in the United States, the pragmatic citizenry exercises what might be called perpetratorial discretion, deciding which laws to obey; police exercise enforcement discretion, deciding which offenses and offenders merit citation or arrest; and prosecuting attorneys exercise prosecutorial discretion, deciding which cases will be brought to trial. While this is an exaggeration, it is not wrong. (In China I was told, in response to a question about driving with my headlights on during the day, that “any behavior that is not explicitly permitted should be considered to be prohibited.” They make Germans look like softies.)

There is another connection between American pragmatism and Secretary Napolitano’s use of prosecutorial discretion. Pragmatism is at the root of the illegal immigration problem.

It is obvious that for millions of foreign nationals to reside illegally in the United States, millions of foreign nationals must be exercising perpetratorial discretion and knowingly disobeying what they deem to be low priority laws that cover border crossings and residing in the country without authorization.

In the United States, the pragmatic citizenry exercises what might be called perpetratorial discretion, deciding which laws to obey.

In order for them to stay, of course, it is also necessary for millions of American citizens to exercise their own perpetratorial discretion and knowingly disobey low priority laws that ban hiring illegal aliens. So, undocumented immigrants are hired to pick crops, mow lawns, frame houses, flip burgers, clean hotel rooms, assemble mobile homes, and take care of wealthy people’s children. It is not difficult to find workplaces in Southern California where most of the employees are in the county illegally. Both those doing the hiring and those being hired are getting what they want. As they see it, pragmatically speaking: no harm, no foul.

In addition, entire municipalities, counties, and even states are exercising enforcement discretion, looking at (or not looking at) the offenses and the offenders and deciding that immigration regulations are low priority laws that do not warrant action. Sometimes, the federal government even gently thwarts the efforts of smaller jurisdictions to give these laws a higher priority. Put another way, the crosswalk light says, “Don’t walk,” but there are few, if any, cars.

The consequence of all this perpetratorial and enforcement discretion is that there are very roughly estimated 11 million illegal immigrants living in the United States. What could be a more fitting a punch line to this droll tale than to have the welcome mat put out for 800,000 of these immigrants with an act of mass prosecutorial discretion?

But back to the question: why was the memo sent?

The memo was sent so that the president could announce the good news in front of cameras on the White House lawn. He was pandering for Hispanic votes. Secretary Napolitano could not have sent the memo without his approval. He gave his approval because he wants to keep his job and, for that to happen, there must be a strong Hispanic turnout. The memo will help him get that turnout.

If the release of the memo and its theatrical announcement were not a reelection stunt, the policy could have been quietly announced to the press long ago.

Oh, wait. It was.

According to the Los Angeles Times (August 18, 2011), “The Obama administration announced Thursday that undocumented students and other low-priority immigration offenders would not be targeted for deportation under enforcement programs. . . . The move means that those who are in deportation proceedings will have their cases reviewed and, if they are set aside as low-priority, could possibly be given work permits.” Here is the entire article:

http://latimesblogs.latimes.com/lanow/2011/08/dream-act-students-not-targeted-for-deportatiom.html

So, in effect, the change had already been quietly launched last August. The June 15 memo and White House announcement really were a political circus act.

There is a more serious problem with this memo. Prosecutorial discretion has traditionally been used by government attorneys to quietly decide if individual cases should be tried. If the circumstances of a specific undocumented immigrant’s case were such that the attorney in charge of the case judged deportation to be inappropriate, that attorney already had the discretion to defer removal. With this memo, there is not much discretion left. The criteria for deferring removal are enumerated. Discretion has also ceased to be discrete. Prosecutorial discretion has been transformed into a mass political weapon launched by the president from the White House lawn. Its purpose is not only to win millions of votes and the election in November, but also to circumvent the legislative process.

The memo was sent so that the president could announce the good news in front of cameras on the White House lawn. He was pandering for Hispanic votes.

Since the failure of the DREAM Act to pass the Senate, one of the president’s slogans has been, “We can’t wait for Congress to act.” With this memo, we now see what the slogan means. Executive impatience with the legislative and judicial branches of government has a long and colorful history. Historically, many elected executives have become so impatient with the separation of powers that they have arrogated legislative and judicial powers to themselves. While using prosecutorial discretion to alter, practically speaking, the status of 800 thousand people under existing law in order to win an election may not sink to the level of abolishing the legislature, it is an unfortunate step in that direction.

In her essay (see link above), Rebecca Krauss makes three points about this expansion of prosecutorial power. First, far from being embedded in the constitution, prosecutorial discretion does not make its first appearance in American case law until 1961. It has been cited with increasing frequency ever since. Second, prosecutorial discretion is not subject to normal judicial review, and is consequently outside the balancing framework of the separation of powers. Third, the rapid growth of prosecutorial discretion in both its breadth of scope and its frequency of use has been of increasing concern to legal scholars. Summing up these points, Krauss writes:

The Framers’ “constant aim [was] to divide and arrange the several offices [of government] in such a manner as that each may be a check on the other,” yet the other branches of government provide almost no check on prosecutorial powers. Rachel Barkow has remarked that “[o]ne need not be an expert in separation-of-powers theory to know that combining [modern prosecutorial] powers in a single actor can lead to gross abuses.”

The Napolitano memo was an abuse of prosecutorial discretion. While it may have been legal, it was an electioneering gimmick and a contrived expansion of prosecutorial discretion. Some day, the shoe may be on the other foot. What if a future president, exercising prosecutorial discretion, deems an array of federal gun control laws to be “low priority,” and directs the responsible authorities to defer all action in enforcing those laws and in bringing such cases to trial? What do you suppose the New York Times editorial page will have to say about prosecutorial discretion then? Or suppose a president deems the laws that defend private property to be “low priority” and has one of his secretaries fire off a short memo that suspends “effective immediately” all enforcement of private property rights? What do you suppose libertarian journals will have to say about prosecutorial discretion then?

Our democracy is an untidy system, with its checks, balances, two houses, three branches, and 50 states. It’s full of squabbles and compromises, contradictions and delays. It is that way by design.

Tyrannies are neat. All you have to do is send a memo.




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Why the Moneyed Media Should Pray for Obama's Defeat

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Everybody knows that the Moneyed Media (also known as Mainstream Media) are in trouble. The press, in particular, is doing badly. Readership and advertising income are down. The Pew Research Center for Excellence in Journalism reports that it's so bad they are going to rename themselves the Observatory of Media Mediocrity. Nah, actually, they report that 2011 newsstand circulation was down 43% since 2008. Overall circulation was down "only" 6% thanks to cut-rate subscription rates. Magazine ad pages went down 46% in the same period. Newspaper advertising and circulation, on average, went down about 50%. In short, a bloodbath.

Is it because Americans watch more TV? Nope. According to Nielsen's annual "Television Audience" report, a growing percentage of households in the 18-to-49 core demographic that advertisers so covet do not even own a TV set (about 3% this year, vs. 1% last year). If they ever want to watch a show or a movie, these people play a DVD on their computer or, increasingly, stream video from Hulu, Netflix, or the like. They are exposed to a few ads, but that's nothing in comparison to the 35% of airtime devoted to commercials that cable viewers get to swallow. And of course, all the news and infotainment spewed by network TV never reach these unplugged eyeballs. Even among the declining TV owners, the big networks and their affiliates saw their prime-time audience decline 12% since 2005. Live ratings of programs have been decreasing constantly for the last three years.

All these factors are a good reason to stop calling Big Media "mainstream." They still have income, a payroll, and some notoriety, though, which is why they can be called "the Moneyed Media."

What are the causes of this decline? According to every media consultant I've read, it's because of this darn internet. The ponderous Paperosaurus Rex and Teeveelociraptors are in competition with the small, nimble Internet mammals, and the old beasts are losing.

The modern-liberal media outlets show a disconcerting uniformity and are rarely critical of the Obama administration, except when considering the most irrelevant subjects.

According to the consultants' narrative, professional journalists see their carefully researched stories ripped and copied to multiple sites. Cheap local TV with underpaid, half-starving crews gains an undeservedly equal footing with the major networks, thanks to their websites. And the world mourns the death of Real Investigative Journalism, since these blog writers that now pass for journalists don't leave their mom's basement to go track toxic iPad factories in China or children killers in Africa.

Yes, granted: these factors certainly count. But isn't there another big reason for America's disaffection with the Moneyed Media?

Let's look again at the Pew report mentioned above. In 2011, the only national newspaper that increased its circulation was the Wall Street Journal, a resolute opponent of state intervention in the economy. The WSJ may not be every libertarian's cup of tea, but we have to give them this: they are, with Investor's Business Daily, one of the few national conservative dailies left in the country.

Similarly, Fox News has a notable anti-liberal slant, and gathers almost four times as many watchers as the combined CNN, MSNBC, and HLN (5.7 million vs. 1.5). Are we seeing a pattern here?

Fox and the WSJ are rare exceptions. In their enormous majority, the Moneyed Media are consistently modern-liberal. In 2007, the aforementioned Pew Research Center surveyed journalists and found that about 80% of these professionals identify themselves as liberals or at least as Democrats. Only 8% identify themselves as conservative (which would, presumably, include libertarian or classical liberal). It is a truism that most newsrooms are staffed with liberals and that a conservative journalist has very few employment opportunities in the Moneyed Media.

Now, let's put ourselves a second in the Birkenstocks of Dave Democrat and Lisa Liberal. They want to read a paper or a magazine during their train commute, and after their tofu and granola dinner, they want to watch some political commentary TV. They won't watch Fox or buy the WSJ, of course. But once past this initial filter, hundreds of publications and shows compete for their attention, from the allegedly moderate ones that Dave Democrat might favor to the rabidly leftist ones that Lisa Liberal may prefer. Lisa is even suffering from an embarrassment of riches: recall that only 19% of Americans call themselves liberal, yet a disproportionate share of the media caters to them.

The modern-liberal media outlets show a disconcerting uniformity and are rarely critical of the Obama administration, except when considering the most irrelevant subjects, such as Michelle's wardrobe or the antics of Secret Service agents. A grayish, soothing conformism oozes from all these mouths that babble without actually saying anything important, spewing a verbiage that carefully avoids important problems. It's a nice, relaxing way for Dave and Lisa to reinforce their biases, but it's pretty boring.

At the end, Dave will browse the Democratic Underground on his iPad while Lisa will read Daily Kos. At least, the crazy comments sometimes elicit a smirk.

And here lies the problem of the Moneyed Media: it's all the same leftist drivel, a uniform river of meaningless information that never evokes crucial problems.

The Moneyed Media carefully minimize all the news items that could harm or ridicule Obama and his peons. And yet, what golden material the Obama administration offers! The shady, undocumented past — even his student records are sealed. The illegal alien relatives. The DOE subsidies and loans to dubious firms, with taxpayers' money ending up in the pockets of rich Democratic donors. The gun-running scandals, which NBC News didn't mention until mid-June. The runaway regulations. The EPA undoing congressional laws. The beyond-reason deficit. The laws and court decisions that are ignored — sorry, "not enforced" — except in the case of medical marijuana, against which the law is sternly invoked. The continuing unemployment four years after the financial crisis started. The lawsuits against states. The gleeful, careless waste of money by the federal administration. The secret meetings while golfing. Why, if Nixon had done any of this, popular culture would still reverberate from the outrage!

If only half of Obama's stupid gaffes had been uttered by Bush I or II, they would be sarcastically recounted daily on every channel, in every paper.

And the gaffes, the gaffes! Whenever Obama strays from his teleprompter, hilarity ensues. "I've now been in 57 states" during the campaign was a howler by itself. Then we had "I don't speak Austrian" — yeah, I hope you speak Australian at least. We heard a Navy member being called a "corpse-man." We saw the president, parading at a goofy show, disparage his own bowling, comparing it to the Special Olympics — how classy. Oh, but that's OK, because "We're the country that built the Intercontinental Railroad." Too bad the country is inhabited by working-class voters, because "they get bitter, they cling to guns or religion or antipathy to people who aren't like them." Then we basked in his wisdom: "Middle East is obviously an issue that has plagued the region for centuries." But don't think he is unpatriotic: to a veteran crowd, he said, "I see many of the fallen heroes in the audience here today as we celebrate Memorial Day." And there are many more. If only half of these stupid things had been uttered by Bush I or II, they would be sarcastically recounted daily on every channel, in every paper, and used as icebreaking jokes by every attendee of conferences.

And then there are unexplainable acts that occupy a class by themselves, Obamaisms that, by their weirdness, leave any Bushism far behind. Bowing to the Saudi king. Bowing to the Japanese emperor. Giving a speech during "God Save the Queen" at Buckingham Palace. You can treat these awkward moments as fodder for comedy or for indignation, but they certainly deserve better than the silence that greeted them in the Moneyed Media.

You see, our talking heads are being protective of this "mainstream African-American who is articulate and bright and clean and a nice-looking guy," in the immortal words of Joe Biden. (And speaking of comedy, Biden's bloopers would have launched a hundred standup routines in a less leftist America.) But this unflinching support makes the heads uninteresting drones who can no longer connect to an audience or a readership. The public is bound to notice mindless idolatry, at some point. And it has. It pays less and less attention to the babbling poseurs in the Moneyed Media. That's why business is down.

The remedy is obvious. Since all these fine intellects in the newsrooms are currently paralyzed by unconditional devotion, let's turn the love into rage. Let's replace blatant self-censorship with thundering, fact-exposing editorials. In a word, let's have a Republican president. Faced with the fall of the One, all the creative energy currently spent in covering up scandals and making media boring will suddenly get channeled into the pursuit of truth. If the present GOP favorite is elected, we won't see much difference (alas) in the level of statism, but we'll immediately be regaled with the slightest nuggets of scandal unearthed from a boring Mormon life. After four years of self-muzzling, our media will once again learn to analyze documents, discern truth, and expose coverups. The moneyed media will be back in business.

But of course, they will fight tooth and nail against it.




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Like the Father or the Dog Just Died

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Leading up to Father’s Day, I count my victories in small bites. This month, it was a button.

While filling in my son’s information on ePACT, an online emergency preparedness resource for families, I noticed that on the mother’s page there was a button for "same address as child." For the father, there was no such button. I wrote a letter. Now fathers have a button too. A button-sized victory for dads everywhere. Well, for dads in British Columbia anyway.

There’s still a part of me that feels ridiculous writing complaint letters about these sorts of things. Two years ago, I would never have noticed the discrepancy. Who cares about a button? But after two years as a single dad — two years of dealing with gender-role stereotypes at nearly every level — there I was, not only noticing but writing letters.

Unfortunately, not every institution is as responsive as the nice folks at ePACT. There is, to pick on the local 800-pound gorilla as an example, Revenue Canada. Its policy for the Canada child tax credit explicitly and unabashedly discriminates based on gender: “If there is a female parent who lives with the child, we usually consider her to be [the primary caregiver]. However, if the male parent is primarily responsible, he must attach to Form RC66, Canada Child Benefits Application, a signed note from the female parent that states he is primarily responsible for all of the children in the household.” And if the female parent will not provide a signed note, then the burden of proof on the father is somewhere between that of a criminal trial and the Spanish Inquisition.

In my case, a sole-custody court order was deemed insufficient to prove that I have “primary responsibility” for my son. I was asked to provide letters from his school, from his afterschool activities, and from community leaders such as doctors and lawyers. For a mom, it’s automatic. For a dad, it’s a two-year treasure hunt.

But resistance is futile, so I tried to comply. In doing so, I noticed that my son’s elementary school had changed his student information from “Father has sole custody” to “Mother has sole custody” despite the fact that the school had a copy of the court order. Like ePACT, the school is full of good people. The teachers, the principal, everything about it is great, and it was apologetic about the error — a simple accident, not conscious discrimination. But even as an accident, it says volumes about social expectations. People assume that the mother is the caregiver to such a strong extent that it changes what they see on the page.

It’s somehow become socially acceptable (again) throughout North America to devalue a human being purely because of an identity-characteristic such as gender.

Dealing with this over and over has made me hypersensitive, a bit like a feminist in the 1980s. When my son’s teacher corrected his grade-one essay about his family from “My family is my dad, my mom, and . . .” to “My family is my mom, my dad, and . . .” I asked the teacher why. She told me I was “ridiculous” and “offensive” to bother her with such an issue. She was both right and wrong. It is ridiculous to complain about a simple swapping of the word order — though not that dissimilar from the campaign 20 years ago to change “businessman” to “businessperson” — yet when you correct a child you’re telling him he’s wrong, that he made a mistake. Why is it a mistake to put “dad” first?

When did it become such a bad thing to be male? Why has “testosterone” become a dirty word? Thinking about these things, I started to do something men don’t often do: I talked, communicated. First during poker games with friends who happened also to be single fathers. Then through a website I started for single dads, initially as a fitness site for dads with little spare time. And finally through systematic research for a book that grew out of this frustration.

What I’ve seen coming out of all this talking is that it’s somehow become socially acceptable (again) throughout North America to devalue a human being purely because of an identity-characteristic such as gender. In the US, President Obama's method of counting civilian casualties excludes all military-age males, within a strike zone, who have not been explicitly proven innocent. Meaning that it’s official government policy that in certain situations the simple fact of being male makes you guilty until proven innocent.

Here in Canada, we have a Ministry for the Status of Women — a cabinet-level government ministry — that publishes reports of journalists who write articles discussing the gender discrepancy that’s leaving boys behind in schools, and reframes this as a “hate” issue against women. A report from 2003 titled School Success by Gender: A Catalyst for the Masculinist Discourse, for example, argued for greater government monitoring of websites that seek to help boys in school or give fathers support in custody disputes. "Some masculinist groups use the Internet as a vehicle for hate-mongering against feminists. This accessible and virtually universal medium gives them the opportunity to say and post almost anything. It is no accident that this medium is being used by those on the extreme right, pedophiles and pornographers.”

This is not a fringe group writing. It’s a report for a government ministry associating men with pedophiles and pornographers simply because they are seeking each other’s support — something that women do far more naturally than men for reasons of culture and history. If men are forming support groups, if they’re seeking a greater role in caring for their sons and daughters, if fathers are engaged with their sons’ education and well being, then those are all good things. They should be encouraged. It means we’re slowly moving to a post-gender society. Ironically, however, all the institutions we’ve put in place to help enable that transition are precisely the ones that are now causing the greatest obstacles.

The philosopher Ivan Illich once pointed out that every institution gradually becomes counterproductive to its original intentions: the medical industry causes illness, educational institutions induce ignorance, the judicial system perpetuates injustice, and national defense makes a nation less secure. Similarly, the fight for gender equality has now made it almost politically incorrect to acknowledge equality among parents.

So let me put my cards on the table before I get added to the ministry’s list of “certain writers acting as the customary spokespersons for the masculinist discourse.” I’m not a misogynist. I’m not anti-feminist. I like feminists, and I have read more feminist literature than any man I know. I don’t agree with all of it. I tend to prefer French deconstructive feminists, such as Luce Irigaray, and literary ones such as Gayatri Spivak, over the more combative ones, such as Andrea Dworkin and Catherine McKinnon,who once wrote that "to be rapable, a position that is social not biological, defines what a woman is." Which inevitably implies that to be a rapist defines what a man is.But I’ve read them all, I appreciate them all, and I think it’s time for men to start learning from them all.

That's because it is time for a masculinist discourse to complement feminist discourse, especially in family matters where the unofficial policy often seems to be mirroring the official “guilty until proven innocent” approach to defining war casualties based on gender. We don’t need men shouting words like “feminazi,” which is the way masculinists are caricatured — but it's worth pointing out that to be a good feminist you also have to be a masculinist (and vice versa). I’m not suggesting that everyone needs to become as hypersensitive as I am now to missing buttons for the dad’s address or the constant bombardment of “man as idiot” commercials on radio and TV. But we do need to start some sort of conversation about gender that is rooted in today rather than in history. I have a son, and to me that trumps any notion of historical wrongs. I don’t want him to grow up voiceless, any more than a feminist 30 years ago wanted her daughter to grow up second class.

And if not for your sons who will one day become fathers, then do it for the girls. Because if you assume men cannot raise healthy, well-adjusted, and confident children just as well as women can, then you’re also implicitly re-opening the question of whether a female firefighter can perform certain rescues as proficiently as a stronger male counterpart.

In the song "Everybody Knows," Leonard Cohen sings the line, "You've got that broken feeling, like your father or your dog just died." Within family matters in North America it does sometimes seem that this is the status that fathers are assigned. So on this Father’s Day, let’s give the dads a promotion. Fathers are wonderful. They’re just as cool as mothers.




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Tort Reform vs. “Loser Pays”

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The concept of reforming the American legal system to adopt the “loser pays” system used in most foreign countries, by which the loser pays the winner’s attorney’s fees, is popular among libertarians. “Loser pays” is proposed as a means of deterring frivolous litigation and solving the problem of excessive lawsuits. When Texas recently adopted the system, it was championed as a victory for small business. I have seen John Stossel advocate it, and in Liberty I have seen Gary Jason endorse it in a comment on one of my essays. “Loser pays” is a policy that might seem reasonable to a non-lawyer layperson. To a lawyer like me, unfortunately, it looks like a policy with unintended and unfavorable consequences — and a policy that has little chance of accomplishing its purpose.

The idea that it will deter frivolous litigation hinges on the idea that the frivolous litigant will lose. Yet if frivolous litigants actually stand a good chance of winning, then “loser pays” deters nothing except poor people, who would find it riskier to access the justice system. In torts lawsuits, the laws are such that bad plaintiffs with bad suits often have a good chance of winning. For instance, Liebeck v.McDonald’s was a lawsuit in which a woman sued McDonald’s because she spilled hot coffee and burned herself, for which McDonald’s was held liable at trial for millions of dollars (mostly punitive damages) and ultimately settled the appeal. This is the quintessential bad lawsuit, and it was held up as a poster child for tort reform. Yet the plaintiff won at trial, on the argument that the coffee was excessively hot and the cup’s warning label was too small.

This lawsuit could have been stopped by reforming the law, that is, by creating a bar to punitive damages whenever there is a warning label. Because the case settled, it would have been unaffected by “loser pays.” Under “loser pays” the risk of having to pay McDonald’s’ legal defense fees if the plaintiff lost might have factored into her calculation of whether or not to sue. But she won the case at trial, and if cases like this happen, then who really expects plaintiffs with bad cases to be excessively afraid of losing? As I will explain below, you don't win a lawsuit because of the rationality of your claim but because of the emotions of the jury. So if a tort plaintiff can reach a jury, the jury trial system will be favorable to stupid lawsuits. The best solution is to reform the tort laws so that plaintiffs with ridiculous cases have no legal way to reach a jury.

You don't win a lawsuit because of the rationality of your claim but because of the emotions of the jury.

Meanwhile, “loser pays” is likely to scare poor people with valid claims away from court, by inspiring the fear not only of losing but also of paying the huge legal fees of a wealthier opponent’s high-powered law firm. The landmark civil rights litigation that helped to end Southern segregation might never have been filed in a “loser pays” system.

As for frivolous suits — There are already legal ethics rules and civil procedural rules that forbid and punish lawyers for bringing “frivolous”, “vexatious”, “abusive” suits, and there are provisions that enable judges quickly to dismiss baseless or groundless claims. “Loser pays” will add little to the tools that are already there to deal with the frivolous. In fact, the only way to prevent bad litigation is to eliminate the bad laws that form the legal basis of bad lawsuits.

Let me clear: I am an advocate of tort reform, just not of “loser pays” in particular. There are many tort reform policies to choose from that would reduce unnecessary or harmful litigation without toxic side effects. We could, for instance:

1. Reduce the percentage of the tort plaintiff’s contingent fees that are considered “reasonable.” Legal ethics rules ban lawyers from charging “unreasonable” fees, but a whopping 30% is considered reasonable, and 30% is the typical rate. I think a cap of 5% as “reasonable” would cut the amount of frivolous litigation in half. In this way, torts plaintiff lawyers would enter their practice with some other goal than becoming multimillionaires by exploiting the tragedies of their poor clients.

2. Eliminate class actions. The whole concept of class actions has always bothered me. To say that someone else has the right to litigate my claim without my consent or involvement, just because our claims are identical, is absurd, even if there are requirements of judicial consent and competent representation and the ability to opt out. Judicial efficiency, which is the valid motive of class actions, is not an excuse to let someone else litigate my case. Because class actions have millions of plaintiffs but only one law firm, the lawyers often make millions while the plaintiffs each get a few cents.

Now, there is already a rule in legal ethics codes that bans lawyers from representing multiple clients who have conflicts of interest with one another — something I believe most class action clients have, because each client’s claim is slightly different and might benefit from the case’s being tried differently. The conflict of interest rules are considered to be among the most important, yet class actions have a loophole. So instead of effecting a statutory ban, I propose simply to close the loophole and force class action lawyers to vet every member of the class for conflicts of interest. Any conflict would remove that class member. This would sharply reduce the volume of class action litigation.

3. Change the products liability tort standard from strict liability to negligence. Products liability cases are typically tried under a theory of “strict liability,” which means that fault (i.e. blame) need not be proven. Strict liability is an affront to logic, an abomination. While some see the purpose of tort law as deterrence, I see it as compensatory justice, which means that damages are supposed to restore a victim to the condition he or she would be in, had the defendant not made a bad decision. I view tort law and contract law as twin aspects of free will and personal responsibility, as recognized by law: contract law means that your choices will bind and control you, whereas tort law means that someone else’s choices will not be allowed to ruin you. If defendants have not made bad choices, there is no reason to make them pay.

If a tort plaintiff can reach a jury, the jury trial system will be favorable to stupid lawsuits.

Although a layperson might think of negligence as something that happened to cause an unintended accident, the better understanding is that it consists of the choice to be careless and risk-prone. The strict liability standard has been justified on the grounds that product defects are technologically complicated and it would be too difficult to prove negligence, but this is no excuse for bad law. We should force plaintiffs to prove negligence. Then everyone will benefit from cheaper prices, because manufacturers’ litigation costs will decrease.

4. Reform the standard of negligence for medical malpractice, so as to create a safe harbor. Medical fees skyrocket when doctors are forced to pay huge medical malpractice insurance premiums, and the practice of medicine is compromised when doctors based their decisions on fear of being sued, not the health needs of their patients. My safe harbor proposal is that if a medical practice or hospital had a written policy of procedures designed to prevent the type of malpractice that is at issue in a case, and the policy was implemented and regularly enforced and internally audited for compliance, then negligence cannot be proven. Similarly, if a surgeon or delivery obstetrician had a checklist of risks to prevent, a list that multiple doctors double-checked at the time of the surgery or childbirth, and the negligence at issue was on the list, then the doctor would have entered a safe harbor.

This is simply common sense: if the doctors were taking every possible systematic action to limit risk, then they were not negligent. Such precautionary policies would protect patients from accidents far more effectively than the tort lawsuits that drive up medical costs. Such a negligence test would cut frivolous lawsuits. State legislatures can codify my safe harbor rule, but clever judges could tacitly incorporate it into preexisting common law med mal negligence standards.

5. Put a statutory dollar limit cap on damages. My understanding is that a civil trial is really just a popularity contest in which the jury votes for the lawyer it liked the most. Instead of faithfully interpreting the judge’s instructions to the jury (which are often so technical that only a lawyer could properly apply them), the jury awards lots of money to the party it likes and punishes whichever parties it disliked, by making them pay huge damages. Usually poor old helpless plaintiff Mr. P, the janitor with a wife and five children who is suing because he broke his leg, is more sympathetic than the rich big business defendant Corporation D, especially when Mr. P’s lawyer slyly insinuates that D cut corners on safety in order to make a profit. This is the open secret, the 800-pound gorilla in the room, when people talk about tort lawsuits and tort reform. This is also one reason why “loser pays” is ridiculous: from a practical, pragmatic, no-nonsense point of view there is no reason to believe that the loser is the one who deserved to lose.

The right to a jury trial in cases that are “at law” (i.e. where the plaintiff seeks money) is constitutionally “inviolate,” and I leave for another essay the question of whether jury trials should be comprehensively reformed. However, at a bare minimum justice demands that we solve the problem of headstrong juries by removing jurors' discretion to award damages in excess of what the intent of the law indicates, simply because they happen to feel sympathy for one side or another. Activist judges who do not faithfully apply the law are a problem, but so too are activist juries. A legislative statutory solution to place reasonable, honest dollar value caps on each of the different types of damages, or to lower the caps that already exist, is one feasible fix.

In conclusion: “loser pays” is far inferior to the American Rule, in which each party pays his own attorney’s fees regardless of who wins or loses the trial;but there are tort reform solutions available if voters elect legislators and judges who will use them.




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