Roberts Affirms the Total State Model

Yesterday, the Roberts court affirmed the Obama defense of the so-called “Affordable Care Act.” To me, it is not a particularly surprising result. Two years ago, I noted that the Obama Admin’s principal argument relied on the classification of the mandate as a tax and that the legislation–all 2000 pages plus–was carefully crafted to categorize any penalty as an excise tax. As I wrote at the time, Obama–his “socialist” caricature notwithstanding–wasn’t arguing the case by making appeals to the Communist Manifesto. He was merely relying on past American constitutional precedent. He had “the firm’s” legal team carefully draft the new rules of the health care political economy to pass compliance strictly with the firm’s monopoly power to tax.

And it passed the compliance test. Indeed, John Roberts used this decision to affirm the role of his court to be the adjudicators of compliance and not the arbiters of constraint. Really, the judiciary is the only possible monkey wrench in a model of total government by political competition/rent-seeking. Yesterday, Roberts proclaimed that the role of the judiciary is not to save us from democracy, which, of course, means “the firm.”

We simply pose a simple question to Mr. Roberts: who wrote that 2000 page piece of legislation? Who could compose an entire model of political economy from the mere power to tax in a fully “compliant” manner. Justice ain’t that blind, sir….

Incredibly, there are some so-called libertarians who are hailing this decision as a bulwark against the future regulatory State because of some speculative nonsense that Roberts has now taken the “commerce clause” off the table. Sheeeeyyyyyytttttt. The regulatory state ultimately derives from the power to tax. The Firm more or less is the regulatory state. It is not going anywhere.

Let us dispense with the romance and the delusion. Politics is a rent-seeking game. Richard Posner and the Chicago School had it wrong. It is not a game where nothing is being redistributed, that is, where outlays = rents. Tullock and the Virginia School have the better model but resorted to a ridiculous “inefficient market hypothesis” to try to save liberalism in a public choice context when it became apparent that rents >> outlays. Tullock, himself, in explaining why he couldn’t convert to the libertarianism, more or less admitted that he simply preferred the blue pill to the red pill–he was too married to the institutionalism he was critiquing to defect.

If we accept that firms can arise in a “free market” of horizontal trading partners because a hierarchy of economic governance can sometimes prove to maximize economic rents relative to a regime of horizontal trading partners–as a consequence of the frictional costs of bargaining–we have to accept the reality of “firms” in political competition. It is indefensible to hold a position of firms as a consequence of economic rent-seeking in a free market but no firms as a consequence of rent-seeking in political competition. Yes, we can think of political parties as “firms,” but the actual firm is the State.

Today we know(or we should know) that Madisonian Democracy is a horribly flawed political concept. The idea that high institutional frictional costs constrain political competition/rent-seeking is just wrong. On the contrary, the high institutional transaction costs are what actually guarantee the emergence of “the Firm.” Equal competitive agents(“gangs”) fighting over rents in a highly frictional environment can be literally infinitely wasteful. To avoid this, you thus have a type of hierarchical, economic governance that emerges–the Firm.

John Roberts, “evil genius,” I think not. I think the evil geniuses are these libertarian think tanks and mags that keep propagandizing “proper role of government,” “limited government,” and demonstrate infinite capacity to find “silver linings” in libertarian-conservative fusionism. You doubt the “State as Firm?” Well, sometimes you just have to actually give a demonstration of the empirical reality. Below is just the “legislative component” of “the Firm.” Do you see any silver linings, any evidence of limited government, any evidence that it matters one fuck whether it is the monopoly power to tax or to “regulate” regarding the ends of our Firm?

The House Legislative Component of The Firm

Committee Chairperson Ranking Member
Subcommittee
Agriculture Frank Lucas (R-OK) Collin C. Peterson (D-MN)
Conservation, Energy, and Forestry Glenn Thompson (R-PA) Tim Holden (D-PA)
Department Operations, Oversight, and Credit Jeff Fortenberry (R-NE) Marcia Fudge (D-OH)
General Farm Commodities and Risk Management Mike Conaway (R-TX) Leonard Boswell (D-IA)
Livestock, Dairy, and Poultry Tom Rooney (R-FL) Dennis Cardoza (D-CA)
Nutrition and Horticulture Jean Schmidt (R-OH) Joe Baca (D-CA)
Rural Development, Research, Biotechnology, and Foreign Agriculture Timothy V. Johnson (R-IL) Jim Costa (D-CA)
Appropriations Hal Rogers (R-KY) Norm Dicks (D-WA)
Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Jack Kingston (R-GA) Sam Farr (D-CA)
Commerce, Justice, Science, and Related Agencies Frank Wolf (R-VA) Chaka Fattah (D-PA)
Defense Bill Young (R-FL) Norm Dicks (D-WA)
Energy and Water Development Rodney Frelinghuysen (R-NJ) Pete Visclosky (D-IN)
Financial Services and General Government Jo Ann Emerson (R-MO) José Serrano (D-NY)
Homeland Security Robert Aderholt (R-AL) David Price (D-NC)
Interior, Environment, and Related Agencies Mike Simpson (R-ID) Jim Moran (D-VA)
Labor, Health and Human Services, Education, and Related Agencies Denny Rehberg (R-MT) Rosa DeLauro (D-CT)
Legislative Branch Ander Crenshaw (R-FL) Mike Honda (D-CA)
Military Construction, Veterans Affairs, and Related Agencies John Culberson (R-TX) Sanford Bishop (D-GA)
State, Foreign Operations, and Related Programs Kay Granger (R-TX) Nita Lowey (D-NY)
Transportation, Housing and Urban Development, and Related Agencies Tom Latham (R-IA) John Olver (D-MA)
Armed Services Buck McKeon (R-CA) Adam Smith (D-WA)
Emerging Threats and Capabilities Mac Thornberry (R-TX) Jim Langevin, (D-RI)
Military Personnel Joe Wilson (R-SC) Susan Davis (D-CA)
Oversight and Investigations Rob Wittman (R-VA) Jim Cooper (D-TN)
Readiness Randy Forbes (R-VA) Madeleine Bordallo (D-GU)
Seapower and Projection Forces Todd Akin (R-MO) Mike McIntyre (D-NC)
Strategic Forces Mike Turner (R-OH) Loretta Sanchez (D-CA)
Tactical Air and Land Forces Roscoe Bartlett (R-MD) Silvestre Reyes (D-TX)
Budget Paul Ryan (R-WI) Chris Van Hollen (D-MD)
Education and the Workforce John Kline (R-MN) George Miller (D-CA)
Early Childhood, Elementary and Secondary Education Duncan D. Hunter (R-CA) Dale Kildee (D-MI)
Health, Employment, Labor, and Pensions Phil Roe (R-TN) Rob Andrews (D-NJ)
Higher Education and Workforce Training Virginia Foxx (R-NC) Ruben Hinojosa (D-TX)
Workforce Protections Tim Walberg (R-MI) Lynn Woolsey (D-CA)
Energy and Commerce Fred Upton (R-MI) Henry Waxman (D-CA)
Commerce, Manufacturing and Trade Mary Bono Mack (R-CA) G. K. Butterfield (D-NC)
Communications and Technology Greg Walden (R-OR) Anna Eshoo (D-CA)
Energy and Power Ed Whitfield (R-KY) Bobby Rush (D-IL)
Environment and the Economy John Shimkus (R-IL) Gene Green (D-TX)
Health Joe Pitts (R-PA) Frank Pallone (D-NJ)
Oversight and Investigations Cliff Stearns (R-FL) Diana DeGette (D-CO)
Ethics Jo Bonner (R-AL) Linda Sánchez (D-CA)
Financial Services Spencer Bachus (R-AL) Barney Frank (D-MA)
Capital Markets and Government-Sponsored Enterprises Scott Garrett (R-NJ) Maxine Waters (D-CA)
Domestic Monetary Policy and Technology Ron Paul (R-TX) William Clay, Jr. (D-MO)
Financial Institutions and Consumer Credit Shelley Moore Capito (R-WV) Carolyn B. Maloney (D-NY)
Insurance, Housing and Community Opportunity Judy Biggert (R-IL) Luis Gutierrez (D-IL)
International Monetary Policy and Trade Gary Miller (R-CA) Carolyn McCarthy (D-NY)
Oversight and Investigations Randy Neugebauer (R-TX) Michael Capuano (D-MA)
Foreign Affairs Ileana Ros-Lehtinen (R-FL) Howard Berman (D-CA)
Africa, Global Health, and Human Rights Chris Smith (R-NJ) Karen Bass (D-CA)
Asia and the Pacific Donald A. Manzullo (R-IL) Eni Faleomavaega (D-AS)
Europe and Eurasia Dan Burton (R-IN) Gregory Meeks (D-NY)
Middle East and South Asia Steve Chabot (R-OH) Gary Ackerman (D-NY)
Oversight and Investigations Dana Rohrabacher (R-CA) Russ Carnahan (D-MO)
Terrorism, Nonproliferation, and Trade Ed Royce (R-CA) Brad Sherman (D-CA)
Western Hemisphere Connie Mack IV (R-FL) Eliot Engel (D-NY)
Homeland Security Peter T. King (R-NY) Bennie Thompson (D-MS)
Border and Maritime Security Candice Miller (R-MI) Henry Cuellar (D-TX)
Counterterrorism and Intelligence Pat Meehan (R-PA) Jackie Speier (D-CA)
Cybersecurity, Infrastructure Protection, and Security Technologies Dan Lungren (R-CA) Yvette Clarke (D-NY)
Emergency Preparedness, Response, and Communications Gus Bilirakis (R-FL) Laura Richardson (D-CA)
Oversight, Investigations, and Management Michael McCaul (R-TX) William R. Keating (D-MA)
Transportation Security Mike D. Rogers (R-AL) Sheila Jackson Lee (D-TX)
House Administration Dan Lungren (R-CA) Bob Brady (D-PA)
Oversight Phil Gingrey (R-GA) Zoe Lofgren (D-CA)
Elections Gregg Harper (R-MS) Bob Brady (D-PA)
Judiciary Lamar S. Smith (R-TX) John Conyers (D-MI)
Courts, Commercial and Administrative Law Howard Coble (R-NC) Steve Cohen (D-TN)
Constitution Trent Franks (R-AZ) Jerrold Nadler (D-NY)
Intellectual Property, Competition, and the Internet Bob Goodlatte (R-VA) Mel Watt (D-NC)
Crime, Terrorism, and Homeland Security Jim Sensenbrenner (R-WI) Bobby Scott (D-VA)
Immigration Policy and Enforcement Elton Gallegly (R-CA) Zoe Lofgren (D-CA)
Natural Resources Doc Hastings (R-WA) Ed Markey (D-MA)
Energy and Mineral Resources Doug Lamborn (R-CO) Rush D. Holt (D-NJ)
Fisheries, Wildlife, Oceans and Insular Affairs John Fleming (R-LA) Gregorio Sablan (D-MP)
Indian and Alaska Native Affairs Don Young (R-AK) Ben R. Luján (D-NM)
National Parks, Forests and Public Lands Rob Bishop (R-UT) Raúl Grijalva (D-AZ)
Water and Power Tom McClintock (R-CA) Grace Napolitano (D-CA)
Oversight and Government Reform Darrell Issa (R-CA) Elijah Cummings (D-MD)
Federal Workforce, U.S. Postal Service and Labor Policy Dennis A. Ross (R-FL) Stephen Lynch (D-MA)
Government Organization, Efficiency and Financial Management Todd Platts (R-PA) Ed Towns (D-NY)
Health Care, District of Columbia, Census and the National Archives Trey Gowdy (R-SC) Danny K. Davis (D-IL)
National Security, Homeland Defense and Foreign Operations Jason Chaffetz (R-UT) John F. Tierney (D-MA)
Regulatory Affairs, Stimulus Oversight and Government Spending Jim Jordan (R-OH) Dennis Kucinich (D-OH)
TARP, Financial Services and Bailouts of Public and Private Programs Patrick McHenry (R-NC) Michael Quigley (D-IL)
Technology, Information Policy, Intergovernmental Relations and Procurement Reform James Lankford (R-OK) Gerry Connolly (D-VA)
Rules David Dreier (R-CA) Louise Slaughter (D-NY)
Legislative and Budget Process Pete Sessions (R-TX) Alcee Hastings (D-FL)
Rules and the Organization of the House Rich Nugent (R-FL) Jim McGovern (D-MA)
Science, Space and Technology Ralph Hall (R-TX) Eddie Bernice Johnson (D-TX)
Space and Aeronautics Steven Palazzo (R-MS) Jerry Costello (D-IL)
Technology and Innovation Ben Quayle (R-AZ) Donna Edwards (D-MD)
Research and Science Education Mo Brooks (R-AL) Dan Lipinski (D-IL)
Investigations and Oversight Paul Broun (R-GA) Donna Edwards (D-MD)
Energy and Environment Andy Harris (R-MD) Brad Miller (D-NC)
Small Business Sam Graves (R-MO) Nydia Velazquez (D-NY)
Agriculture, Energy and Trade Scott Tipton (R-CO) Mark Critz (D-PA)
Healthcare and Technology Renee Ellmers (R-NC) Cedric Richmond (D-LA)
Economic Growth, Tax and Capital Access Joe Walsh (R-IL) Kurt Schrader (D-OR)
Contracting and Workforce Mick Mulvaney (R-SC) Judy Chu (D-CA)
Investigations, Oversight and Regulations Mike Coffman (R-CO) Jason Altmire (D-PA)
Transportation and Infrastructure John Mica (R-FL) Nick Rahall (D-WV)
Aviation Thomas Petri (R-WI) Jerry Costello (D-IL)
Coast Guard and Maritime Transportation Frank LoBiondo (R-NJ) Rick Larsen (D-WA)
Economic Development, Public Buildings and Emergency Management Jeff Denham (R-CA) Eleanor Holmes Norton (D-DC)
Highways and Transit John J. Duncan, Jr. (R-TN) Peter DeFazio (D-OR)
Railroads, Pipelines, and Hazardous Materials Bill Shuster (R-PA) Corrine Brown (D-FL)
Water Resources and Environment Bob Gibbs (R-OH) Tim Bishop (D-NY)
Veterans’ Affairs Jeff Miller (R-FL) Bob Filner (D-CA)
Disability Assistance and Memorial Affairs Jon Runyan (R-NJ) Jerry McNerney (D-CA)
Economic Opportunity Marlin Stutzman (R-IN) Bruce Braley (D-IA)
Health Ann Marie Buerkle (R-NY) Mike Michaud (D-ME)
Oversight and Investigations Bill Johnson (R-OH) Joe Donnelly (D-IN)
Ways and Means Dave Camp (R-MI) Sander Levin (D-MI)
Health Wally Herger (R-CA) Pete Stark (D-CA)
Human Resources Geoff Davis (R-KY) Lloyd Doggett (D-TX)
Oversight Charles Boustany (R-LA) John Lewis (D-GA)
Select Revenue Measures Pat Tiberi (R-OH) Richard Neal (D-MA)
Social Security Sam Johnson (R-TX) Xavier Becerra (D-CA)
Trade Kevin Brady (R-TX) Jim McDermott (D-WA)

The Senate Legislative Component of The Firm

Committee Chairman Ranking Member
  Subcommittees
Agriculture, Nutrition and Forestry (5) Debbie Stabenow (D-MI) Pat Roberts (R-KS)
Commodities, Markets, Trade and Risk Management Ben Nelson (D-NE) Saxby Chambliss (R-GA)
Conservation, Forestry and Natural Resources Michael Bennet (D-CO) John Boozman (R-AR)
Jobs, Rural Economic Growth and Energy Innovation Sherrod Brown (D-OH) John Thune (R-SD)
Livestock, Dairy, Poultry, Marketing and Agriculture Security Kirsten Gillibrand (D-NY) Mike Johanns (R-NE)
Nutrition, Specialty Crops, Food and Agricultural Research Bob Casey (D-PA) Richard Lugar (R-IN)
Appropriations (12) Daniel Inouye (D-HI) Thad Cochran (R-MS)
Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Herb Kohl (D-WI) Roy Blunt (R-MO)
Commerce, Justice, Science, and Related Agencies Barbara Mikulski (D-MD) Kay Bailey Hutchison (R-TX)
Defense Daniel Inouye (D-HI) Thad Cochran (R-MS)
Energy and Water Development Dianne Feinstein (D-CA) Lamar Alexander (R-TN)
Financial Services and General Government Richard Durbin (D-IL) Jerry Moran (R-KA)
Homeland Security Mary Landrieu (D-LA) Dan Coats (R-IN)
Interior, Environment, and Related Agencies Jack Reed (D-RI) Lisa Murkowski (R-AK)
Labor, Health and Human Services, Education, and Related Agencies Tom Harkin (D-IA) Richard Shelby (R-AL)
Legislative Branch Ben Nelson (D-NE) John Hoeven (R-ND)
Military Construction, Veterans Affairs, and Related Agencies Tim Johnson (D-SD) Mark Kirk (R-IL)
State, Foreign Operations, and Related Programs Patrick Leahy (D-VT) Lindsey Graham (R-SC)
Transportation, Housing and Urban Development, and Related Agencies Patty Murray (D-WA) Susan Collins (R-ME)
Armed Services (6) Carl Levin (D-MI) John McCain (R-AZ)
Airland Joe Lieberman (I-CT) Scott Brown (R-MA)
Emerging Threats and Capabilities Kay Hagan (D-NC) Rob Portman (R-OH)
Personnel Jim Webb (D-VA) Lindsey Graham (R-SC)
Readiness and Management Support Claire McCaskill (D-MO) Kelly Ayotte (R-NH)
SeaPower Jack Reed (D-RI) Roger Wicker (R-MS)
Strategic Forces Ben Nelson (D-NE) Jeff Sessions (R-AL)
Banking, Housing, and Urban Affairs (5) Tim Johnson (D-SD) Richard Shelby (R-AL)
Economic Policy Jon Tester (D-MT) David Vitter (R-LA)
Financial Institutions and Consumer Protection Sherrod Brown (D-OH) Bob Corker (R-TN)
Housing, Transportation, and Community Development Robert Menendez (D-NJ) Jim DeMint (R-SC)
Securities, Insurance, and Investment Jack Reed (D-RI) Mike Crapo (R-ID)
Security and International Trade and Finance Mark Warner (D-VA) Mike Johanns (R-NE)
Budget Kent Conrad (D-ND) Jeff Sessions (R-AL)
Commerce, Science and Transportation (7) Jay Rockefeller (D-WV) Kay Bailey Hutchison (R-TX)
Aviation Operations, Safety, and Security Maria Cantwell (D-WA) John Thune (R-SD)
Communications, Technology, and the Internet John Kerry (D-MA) Jim DeMint (R-SC)
Competitiveness, Innovation, and Export Promotion Amy Klobuchar (D-MN) Roy Blunt (R-MO)
Consumer Protection, Product Safety, and Insurance Mark Pryor (D-AR) Pat Toomey (R-PA)
Oceans, Atmosphere, Fisheries, and Coast Guard Mark Begich (D-AK) Olympia Snowe (R-ME)
Science and Space Bill Nelson (D-FL) John Boozman (R-AR)
Surface Transportation and Merchant Marine Infrastructure, Safety, and Security Frank Lautenberg (D-NJ) Roger Wicker (R-MS)
Energy and Natural Resources (4) Jeff Bingaman (D-NM) Lisa Murkowski (R-AK)
Energy Maria Cantwell (D-WA) Jim Risch (R-ID)
National Parks Mark Udall (D-CO) Richard Burr (R-NC)
Public Lands and Forests Ron Wyden (D-OR) John Barrasso (R-WY)
Water and Power Debbie Stabenow (D-MI) Mike Lee (R-UT)
Environment and Public Works (7) Barbara Boxer (D-CA) Jim Inhofe (R-OK)
Children’s Health and Environmental Responsibility Amy Klobuchar (D-MN) Lamar Alexander (R-TN)
Clean Air and Nuclear Safety Tom Carper (D-DE) John Barrasso (R-LA)
Green Jobs and the New Economy Bernie Sanders (I-VT) John Boozman (R-AR)
Oversight Sheldon Whitehouse (D-RI) Mike Johanns (R-NE)
Superfund, Toxics and Environmental Health Frank Lautenberg (D-NJ) Mike Crapo (R-ID)
Transportation and Infrastructure Max Baucus (D-MT) David Vitter (R-LA)
Water and Wildlife Ben Cardin (D-MD) Jeff Sessions (R-AL)
Finance (6) Max Baucus (D-MT) Orrin Hatch (R-UT)
Energy, Natural Resources, and Infrastructure Jeff Bingaman (D-NM) John Cornyn (R-TX)
Fiscal Responsibility and Economic Growth Bill Nelson (D-FL) Mike Crapo (R-ID)
Health Care Jay Rockefeller (D-WV) Chuck Grassley (R-IA)
International Trade, Customs, and Global Competitiveness Ron Wyden (D-OR) John Thune (R-SD)
Social Security, Pensions, and Family Policy Debbie Stabenow (D-MI) Tom Coburn (R-OK)
Taxation and IRS Oversight Kent Conrad (D-ND) Jon Kyl (R-AZ)
Foreign Relations (7) John Kerry (D-MA) Richard Lugar (R-IN)
Western Hemisphere, Peace Corps and Narcotics Affairs Robert Menendez (D-NJ) Marco Rubio (R-FL)
Near Eastern and South and Central Asian Affairs Bob Casey, Jr. (D-PA) Jim Risch (R-ID)
African Affairs Chris Coons (D-DE) Johnny Isakson (R-GA)
East Asian and Pacific Affairs Jim Webb (D-VA) James Inhofe (R-OK)
International Operations and Organizations, Human Rights, Democracy and Global Women’s Issues Barbara Boxer (D-CA) Jim DeMint (R-SC)
European Affairs Jeanne Shaheen (D-NH) John Barrasso (R-WY)
International Development and Foreign Assistance, Economic Affairs, and International Environmental Protection Ben Cardin (D-MD) Bob Corker (R-TN)
Health, Education, Labor, and Pensions (3) Tom Harkin (D-IA) Mike Enzi (R-WY)
Subcommittee on Children and Families Patty Murray (D-WA) Richard Burr (R-NC)
Subcommittee on Employment and Workplace Safety Barbara Mikulski (D-MD) Johnny Isakson (R-GA)
Subcommittee on Primary Health and Aging Bernie Sanders (I-VT) Rand Paul (R-KY)
Homeland Security and Governmental Affairs (5) Joe Lieberman (ID-CT) Susan Collins (R-ME)
Contracting Oversight (Ad Hoc) Claire McCaskill (D-MO) Rob Portman (R-OH)
Disaster Recovery and Intergovernmental Affairs (Ad Hoc) Mark Pryor (D-AR) Rand Paul (R-KY)
Federal Financial Management, Government Information and International Security Thomas Carper (D-DE) Scott Brown (R-MA)
Investigations (Permanent) Carl Levin (D-MI) Tom Coburn (R-OK)
Oversight of Government Management, the Federal Workforce and the District of Columbia Daniel Akaka (D-HI) Ron Johnson (R-WI)
Judiciary (6) Patrick Leahy (D-VT) Chuck Grassley (R-IA)
Administrative Oversight and the Courts Amy Klobuchar (D-MN) Jeff Sessions (R-AL)
Antitrust, Competition Policy and Consumer Rights Herb Kohl (D-WI) Mike Lee (R-UT)
The Constitution, Civil Rights and Human Rights Dick Durbin (D-IL) Lindsey Graham (R-SC)
Crime and Terrorism Sheldon Whitehouse (D-RI) Jon Kyl (R-AZ)
Immigration, Refugees and Border Security Chuck Schumer (D-NY) John Cornyn (R-TX)
Privacy, Technology and the Law Al Franken (D-MN) Tom Coburn (R-OK)
Rules and Administration Chuck Schumer (D-NY) Lamar Alexander (R-TN)
Small Business and Entrepreneurship Mary Landrieu (D-LA) Olympia Snowe (R-ME)
Veterans’ Affairs Patty Murray (D-WA) Richard Burr (R-NC)

The Enforceable Obligations of IP & Copyright in Political Economy

In a previous post, I applied a consequential analysis of a “pro-life” moral rules regime–with respect to abortion– to infer abortion on demand was the only “defensible” libertarian position(note: a bit of subtlety, but decoration with the libertarian adjective intentionally limited the scope of AoD being the only defensible position within the libertarian sphere. I wouldn’t claim that AoD would be the only defensible moral position if the scope were broadened).

Frankly, it wasn’t that particularly difficult to debunk the “pro-life” libertarian position. You simply start with the examination of the moral claim that “you can’t protect liberty without protecting life.” Well, that’s a bullshit statement because you actually can’t enforce violations against life without first defining your moral constraints against liberty. There are two exceptions to this: pacifism and total violence. But pacifism isn’t enforceable–in the sense that the enforcement of its moral claims would itself be a violation–and total violence produces no enforceable claims(there is nothing to enforce).

Once we accept that there are moral constraints against moral claims of life(an obvious example would be “self-defense”) it is a straight-forward exercise to arrive at AoD as the only enforcement regime that is not burdened by ad-hoc pacifist obligations. If, on the other hand, we make allowances for such things as “the sanctity of life,” then we introduce ad-hoc pacifist obligations into the enforcement regime. With respect to modern Christian moral claims(Christianity is the typical moral foundation for “sanctity of life”), you will likely end up with an enforcement regime that places a burden of murder against any young female who does not carry any pregnancy to term while making an exception the size of a mountain for older women who have advanced beyond optimal childbearing years–in terms of the allowance for spontaneous abortions and “assisted reproduction technologies.”

It should be easy to see the regime consequences of enforcing these ad-hoc pacifist obligations: A Political Economy of Pregnancy Enforcement. This political economy certainly gives rise to “registration,” “inspection,” “direction,” “rule-of-law driven,” “enrollment,” “indoctrination,” “control,” etc….In other words, the enforcement regime has to be collectivized. Collectivization of an enforcement regime breeds an industry of political economy. This is axiomatic.

“Regime Consequences” regarding the enforcement consequences of moral obligations should be a staple of libertarian deconstruction. But this method is often dismissed because it perhaps smacks of “consequentialism,” which is generally a dirty word in libertarian circles. If consequentialism simply means that liberty is derived as the end product of a utilitarian calculation, then I’m in full agreement with hating that word. However, if we begin with a presumption of liberty and understand that reason only applies to means and not ends, then “consequentialism” is the only productive method available. Everything else is just bullshit.

The Regime Consequences of Enforcing the “Moral Obligations” of IP & Copyright

Let us understand why IP and Copyright have become a topic of bitter dispute. Today, a market process applied to the digitization of human ideas turns the latter effectively into a “public good.” By “market process” I simply mean a process of cooperative exchange that originates outside the State Regime of political economy. I mean it very much in the old French Liberal sense of “laissez faire.” By “Public Good,” I mean it literally in the neoclassical sense, that is a good that effectively is non-rivalrous and non-excludable. That Laissez-Faire is driving human knowledge to a status of a “public good” is short-circuiting quite a few moral foundations.

Particularly among the libertarians. A pertinent example would be the recent Stephen Kinsella vs J Neil Schulman debate. Kinsella, who has experience in the legal aspects of the IP/Copyright regime, has recognized that the enforcement obligations of IP/Copyright spells doom for any meaningful sense of liberty. Thus, he has been busy reformulating “Austrian” foundations in terms of an anti-IP slant. Schulman, of course, is not interested in any this. He remains steadfast to the Objectivist moral foundation which places Intellectual Property at the epicenter of property rights and human reason itself.

Schulman will take the moral claims derived from the Objectivist foundation to the logical endpoint: a denial of “identity” itself without the recognition by others of the intellectual product of human reason. To me, this is an example of the logical endpoint of Objectivism managing to bump into the rear-end of Charles Taylor and the communitarians. Taylor’s theory of recognition is noted for denying the possibility of agent identity outside of a group context; and the group can only achieve its own identity via the recognition and acceptance by other groups. The communitarians have always denied liberalism’s category of the State as artificial, insisting instead on the ancient view that regarded “the Polis”(the State) as a natural fabric of civil society. In the liberal era, the struggle against the re-unification of the Polis with civil society is the underlying basis of “libertarian class theory.” The means of this unification, of course, is political economy. The communitarian dream of reunification will be wrought on the back of political economy. And no better foundation for this political economy than Intellectual Property. What Rand deemed the essential component of human identity, the thing she warned “the collectivists” would attack, is actually the thing the collectivists will use to forever reunify the Polis as a natural fabric of human society.

The One Public Good the State Managed to Produce–by Accident–Defines the 21st Century Political Economy Battleground

Our Progressive worshippers of authority are always chirping about the State and “public goods.” Of course, other than “defense,” there are very few actual instances of “public goods,” and most of the progressive chirping is an exercise in conflation between “public works” and “public goods.” But as we well know,the simple exercise of digging a ditch eternally binds one to moral obligation to the regime under the banner cry of “but who will dig the ditches?!!!”

Now our progressive friends are usually quite fond of informing us that the government(usually a specific government, the US Government) “invented” the internet. Now this is silly because there is no such thing as “the internet” as a single entity that was invented by any single agency. But in another sense, it is a half-truth in that the cumulative evolution of the packet-switch, global wide-area network required a ton of standardization up and down the IP stack. This standardization was an intentional, self-conscious, directed process that involved quite of(albeit largely informal) public-private “joint cooperation.” It is actually the one example of Hayek’s “planning for competition.” However, given that Western governments at the time mostly treated Telcos as public utilities, there was simply no other alternative process available. But a clinching factor was the adoption of TCP/IP– tcp/ip being one particular implementation of the OSI model–by the US Military in the early 1980s. TCP/IP has its origins in DARPA, but TCP/IP supplanted other OSI implementations around the world simply because it was adopted by the world’s preeminent global military superpower. Not because it was a superior implementation.

So the accurate statement regarding the internet is not that the Government is responsible for the existence of packet-switched, WAN networking, but rather that it is largely responsible for our particular implementation of it. Specifically, we can certainly give attribution to the US Military for the fact of a global tcp/ip standard.

The end product of this high degree of standardization in our packet-switched, WAN network is more or less an efficient “small network,” meaning the number of segments between any two arbitrary nodes approaches a small number(e.g. the “six degrees of separation” concept). Now the “public good” is not actually the network itself but the low-entropy product it is transporting: namely the digital transcription/copy/representation of human knowledge. Human knowledge effectively has become a public good. To state the three reasons for this:

(1) the efficiency from a high degree of network standardization: the global small network
(2) the low entropy of human language
(3) the relentless progression of Moore’s Law

The State finally plays a role in producing a “public good” other than defense. But the role was restricted to the resolution of coordination problems(an informal but vital role in the coordination of standards) that enabled the provision of the good and did not encompass the actual provision of the good itself. That is, the process of standardization was intentional, but the end product, our public good of consumable digital knowledge(not at all dependent on the State), was not intended.1 As soon as the “public good” became apparent, State actors revved up the political competition in the artificial exclusion to this good. In a real sense, when the State began passing its Digital Copyright Acts to enforce artificial exclusion to this good, it became clear which political critique, libertarian vs progressive, had the more accurate model of the State. Unfortunately, a political economy in the artificial exclusion to a public good of human knowledge is the very thing that can bring all of human economic activity under the political umbrella of State agency. In libertarian class terms, it is total war.

Plutocracy vs Oligarchy

Plutocracy is rule by a political class that for its own ends(usually identified as wealth). But plutocracy is not a condition where the political classes are united. Oligarchy is the condition of plutocratic unity. Generally, the political classes, globally speaking, are not united. What would unite them would be these secretly negotiated trade deals for a uniform “legal” standard in enforcing artificial exclusion to digital copies of human knowledge. It’s just another example of the consequences of “trade” serving “moral ends” and the extent moral ends can expropriated by agency. The extent of the expropriation can be seen by comparing Bastiat’s statement concerning trade and peace with that of the WTO. “Peace through Trade” can have a doublethink meaning. George Orwell provided us with the Oligarchical Collectivist interpretation of peace. Peace can also be a product of oligarchical unity.

The final coup d’etat is the militarization of the administration of the network. Currently, the administration of the internet is largely civil. But the US government’s blatant attempts to trigger a militarization of the internet serves the ends of a militarized political economy of network administration. The civil administration of the network is then supplanted by a corrupt, compliance standards regime that will in large part be engaged in the monitoring and blockage of “unauthorized traffic.” And what do you think will compose 99.999999999% of this “unauthorized traffic.” Of course, IP and copyright violations.

In case you haven’t noticed, DHS is significantly involved in the enforcement of IP and Copyright. The synthesis of political competition in the public goods of security and human knowledge that results in an equilibrium outcome of oligarchical unity not only represents the apex of Authoritarian porn but promises to turn a potential instrument of human utopia into a dystopian instrument of the most efficient and awesome spying and control mechanism possibly imaginable.

Methodology Matters

To bring this discussion back to the moral claims of J Neil Schulman, I conclude thusly: I reject Schulman’s moral claim regarding IP and Copyright because my methodology informs me that the regime consequences of the enforcement of his moral claim is oligarchical collectivism. The question of whether or not IP and Copyright require the State for enforcement is irrelevant. The State is going to use the enforcement of artificial exclusion to human knowledge as the means for a totalitarian outcome. If your own personal identity requires others to recognize your IP legal status claim regarding your mental constructions, then you need a new moral foundation.

1 An interesting discussion is to consider if purely organic market processes could likewise evolve something similar to our current internet implementation. Often, the “internet” is mistakenly identified as a type of “decentralized” network. But that’s an incomplete characterization. The “decentralizing” characteristics are emergent properties of a large degree of centralized standardization(=resolution of coordination problems). The more accurate adjectives would be “small network” and “resiliency” in place of “decentralized.”

In any event, the question is interesting but irrelevant. It’s now a matter of “path dependency.” It’s in place; it works; it does not require any type of formal State central body to continue to work. The interesting question now is the extent the State corrupts it by introducing compliance–i.e., standards as a function of “planning against competition”–into the network.

Free Market Fairness: A Bridge to Nowhere

Recently on Twitter, there was a common topic tweet “Libertarianismin4Words.” Well, I can sum it for you in 10 words, separating the Political from the Social:

Political: “The State is its own Agency”
Social: “Live and let Live”

Libertarianism has two century intellectual history behind it that more or less reduces to those 10 words above. But it’s a history that has engaged only a minority. We are reminded of this by the name of Roderick Long’s online library at the Molinari Institute: “A Heritage of Dissent.”

However, in recent times, particularly in the United States, there have been attempts to reposition libertarianism as a legitimizer of a “proper State.” Certainly, the libertarian-conservative fusionism would qualify. Academically, the rise of the Chicago School most assuredly qualifies. Measured in terms of recognition and public policy influence, one would have to categorically proclaim the program a great success. The Chicago School managed to capture the intellectual and public policy control of the American and International Financial System. For twenty years, Ayn Rand’s greatest disciple lorded over the international system of central banking. The Chicago School refashioned the Bretton Woods Global Agency into the Washington Consensus. Beginning with Jimmy Carter, a program of deregulation took shape that ended with the effective repeal of Glass–Steagall in 1999. Simply put, in terms of economic policy, the Chicago School, representing the “revival” of “classical liberal” economic thought, rose to a position of great if not dominating influence.

But as I write these words today, an examination of the actual regime consequences(you know the thing that actually matters) inform me that this revival, in terms of its policy results, has been an unmitigated disaster. What promised to be a rule of Augustus literally at the drop of the hat revealed itself to be the rule of Caligula. How can an ostensibly classical liberal policy regime result in (1) the greatest banking oligarchy in the history of human civilization (2) the application of political economy applied to the greatest spying apparatus ever assembled in human history, (3) an Executive branch more or less functioning as the CEO and Chairman of the Board for National Security State, Inc., unilaterally having declared itself exempt for any application of law to itself, and in broad daylight–as a demonstration point of its effectiveness as this CEO Agency-resurrected the pre-liberal legal notion of “outlaw.” Poof, like that, out in the open–and not buried secretly and denied publicly–is “due process,” the legal foundation(which in part rests on a presumption of liberty) of liberalism, gone. In short, how can a “classical liberal” economic regime underwrite an evisceration of legal/political due process?

Obviously, the regime consequences of this classical liberal economic program(at least the Chicago School version of it) expose the very serious methodological flaws that underlie it. The source of the flawed method really begins with the 6-word political summary of libertarianism above: “the State is its own Agency.” The Chicago School, particularly the 3rd generation iteration of it(“efficient market hypothesis”), more or less dismissed this agency, or at the very least, seriously underestimated it. So we are now living the consequences of a flawed methodology.

The consequences of the Chicago regime suggest a reexamination of Milton Friedman’s thesis famously espoused in “Capitalism and Freedom.” Capitalism is a necessary condition for liberalism but not a sufficient one. Friedman used the example of fascism to falsify the sufficiency condition of capitalism. But we can now empirically include the Chicago regime as a falsifying example, too. We are now confronted with the possibility that capitalism’s necessity condition is challenged by observable regime falsification(for any given regime Ri). This perhaps serves as a clue that capitalism is not the primary logical condition or proposition in relation to freedom. Instead, our primary condition is really agency. Capitalism, like the State, suffers from an agency problem. A deductive argument that liberalism is a sufficient condition for capitalism relies on an implicit premise concerning capitalism and agency that perhaps is not justified. At the very least, an explicit examination of the relationship between agency and capitalism is in order. In this sense, I would suggest the Friedman Statement:

~C –> ~ L , where C=Capitalism, L=Liberalism

is not really the fundamental statement to prove or falsify. Instead, I would suggest something more along the lines of this sufficiency Statement as the more relevant one:

CM —> Agency, where CM=Capitalism serving moral ends.

Now let us also be specific by what is meant by “Agency.” I would define it, in this context, as means(institutionally speaking) that becomes its own ends. This thus puts it in direct competition with human agency(which we can represent as civil society, market society, etc). This is what is meant by the Statement, the “State is its own Agency.”

This brings us to a John Tomasi’s recent book “Free Market Fairness,” a volume largely intended for an academic/professional audience. Tomasi makes no bones in his objective to have “bleeding heart libertarianism” become the new standard of definition of libertarianism, particularly in the academic community. Libertarianism then is redefined as a bridge between “classical” and “high” liberalism, the bridge itself constructed from the foundation of “Free Market Fairness” as a social justice standard. But in reading through parts of the book–and putting aside all the intricate philosophical composition contained therein–Tomasi’s argument more or less reduces to: (1) an “opportunity society” lies at the heart of political legitimization (2) capitalism/markets serve as the superior means for the “opportunity society.”

Now I suppose one could label Tomasi’s effort as a 2012 version of Friedman’s “Capitalism and Freedom”(published on the 50th anniversary of the latter). However, I think Tomasi’s book may have been more persuasive if it had been published, say, in 1994, at the apex of the Chicago reign. Friedman’s 1962 book presaged the coming era of classical liberal economics. Tomasi’s book, however, comes on the heels of its ruin and presages something quit a bit different.

The first seven paragraphs of this post discussed the problem of capitalism and agency. And to be clear, what is meant by “capitalism and agency” is State Capitalism. Tomasi gives us an offering that poses political legitimacy as the moral ends of markets just time for the inauguration of a particularly un-golden age of State Capitalism. The disconnect between capitalism and political freedom is our current condition. Our age of State Capitalism–intertwined in a million different knots with a political economy of State Security–promises to sever the remaining myth: the relationship between capitalism and opportunity, or the “opportunity society.” To be more precise, we are about to be given an object lesson that there is no logical relationship between Capitalism and Markets. The collapse of this paradigm, of course, is conveniently timed with the maturation of our State Security Apparatus. The reason you have a National Security State, of course, is largely because of a loss of legitimacy. Our era of State Capitalism will be marked by a general decline in popular sentiment regarding legitimacy. But our “bleeding heart libertarians” seek to reposition libertarianism as the legitimizing face of State Capitalism. You know the thing that served to hollow out your political freedom while reneging on its bribe of eternal economic growth. Now that’s quite a historical turn.

The Artificiality of Tomasi’s Model
(i) A straight-forward critique of Tomasi’s model would begin by noting that there isn’t any real reason for unanimity–or a bridge, so to speak–between “classical liberals” and “high liberals” regarding the composition of primary goods(or, in classical liberal language, “property bundle”). The liberal methodology allows for divergences in what the ends of the so-called contract should entail. The “bridge” between the two is in regards to the violations: e.g, the suppression of dissent, the infringement of due process, the forcing of the citizenry to accept one particular moral foundation, the abridgment of free speech, etc.

The Tomasi “Market Research Program” is simply not an important problem in political theory. The actual problem is when you have an Executive Branch unilaterally resurrecting the pre-liberal legal notion of outlaw and not a single pep from our so-called liberal political class. And when you point this out to our “bleeding heart libertarians,” they will point to “markets” as evidence there is no significant abridgment of liberty. The current problem that presents itself is the apparent extinction of the liberal species. In its place we find moral obligation pencil-pushers for the regime.

(ii) John Rawls is overrated as a political philosopher. He managed to divine three rather markedly different versions of normative political obligation. His first version, for which he is primarily known for, was built over the proverbial house of cards. What agents should deduce in the “originalist position” was a major point of dispute within “High Liberalism.” The degree of the thickness of “the veil of ignorance” was another point of major contention within High Liberalism. In short, Rawls couldn’t even win over the “high liberals” which is why he more or less abandoned the “Kantian” foundations of his Theory of Justice in favor of an “overlapping consensus” developed in his second book, “Political Liberalism.” The “overlapping consensus” would form the foundations of the “Public Reason” model. Of course, what Rawls would call Public Reason, I would call “the Culture War.”

In his last book, “Justice of Fairness,” Rawls did another 180. In his first book, the political economy was only a secondary consideration. The economic system, whether,say, Capitalism or Socialism, was an empirical plug-in of sorts. By this I mean the economic system was not part of the normative theory. It was a positive consideration. However, by his third book, the economic system had now become an essential component of his normative theory. His theory of justice now required a type of propertarian democracy. However, I would point out that a propertarian democracy is more or less what we’ve had the past twenty years. In the early to mid 90s the United States enacted welfare reform(the scaling back of welfare capitalism) and pursued the ends of the “ownership society,” particularly in terms of home ownership. We experienced the “classical liberal” version of propertarian democracy. And we now see the agency outcome, the regime consequences(e.g., banking oligarchy), of such a moral end. That’s “strike three” for Rawls.

(iii) The primary criticism of Tomasi remains rooted in his neglect of competing and expropriating agency in political theory. His contention that markets are justified because they serve a moral ends of political legitimization is an anathema to the libertarian tradition. His version of capitalism serving moral ends creates a mile-wide invitation to an agency problem.

Conclusion

In the good ole days, the “classical liberals” made the causal relationship between economic liberty and political liberty a foundational point. These days, with the relationship between Capitalism and political liberty essentially severed, our “bleeding heart libertarians” have stepped in to the void with a subtle shift: it is economic liberty itself, or more accurately the proper set of divinely deduced bundle of economic liberties, that serves the ends of political legitimization. To the extent that this effort succeeds in becoming the new face of “classical liberalism,” it marks the official classic liberal divorce of economic liberty from political liberty. The standard of legitimacy is no longer the liberal legal traditions. It is now simply the degree of “opportunity” afforded by the political economy. The “Market Democracy Research” program is simply an effort to rationalize away the agency problem from political economy.

If you are a political cynic and you take your theory seriously enough, you should expect this type of expropriation. After all, we are now entering the media age of the “western dissident.” The western dissident will mark a species of agents not willing to trade away their political liberties for an economic pot of porridge. We will be in definite need of a morally legitimacy to alienate that type of dissident agency as criminal.

Swatting Down Wendy McElroy’s Refutation of Georgism

At The Daily Anarchist, principal contributor Wendy McElroy has published a two piece series that aims to first define Georgism and then refute it. The first part, the definition, is here. The refutation that follows is here.

As a defender of Georgism, I have published a number of posts on this blog knocking down these type of critiques that intermittently pop up. My principle argument is not that Georgism is the only position on land that is consistent with libertarianism but rather that Georgism is not inconsistent with libertarianism. In particular this usually means debunking the purported equivalency of Georgism with land collectivism, an oft-repeated refrain that simply isn’t accurate. This bogus equivalence lies at the heart of McElroy’s definitional critique. So once more, for the record, let me state unequivocally that:

the proposition of the right of equal access to land (p) DOES NOT EQUAL collective ownership(q)

p is neither a sufficient nor necessary condition for q. Hence, there is no logical relationship between the two propositions. The Georgist position is that the proposition (p) establishes the exclusionary use of land(=ownership) as a privilege that bears the market price of the opportunity cost of the use of the resource. Simple. As I sometimes put it, you are more or less buying your way out of “land collectivism” at the price of its opportunity cost. This contrasts with other enforcement models of private property that purport to be “private” while empirically demonstrating a thorough intertwining with collectivist enforcement.

Now some Georgists may emphasize the moral principle behind the enforcement model. However, I tend to emphasize the agency and “rent-seeking” problems it addresses. After all, Henry George didn’t divine his principle from the bowels of moral and theological introspection(of course, just to note, the concept of “ground rents” long preceded Henry George). No, he derived his principle from the observation of inequality and privilege that often seemed to be a product of matured governments(specifically compared to the less mature ones out West at the time). He was addressing an empirical problem regarding economic rents.

McElroy commits a potential logical fallacy by claiming that the empirical modern absence of Georgism is evidence of its illegitimacy. I would contend that’s a rather peculiar argument for a libertarian to make because the same argument can be used to discredit libertarianism itself given its own empirical problem: namely, where is it? Historically, its nonexistent, sans a belated reference to medieval Iceland. I would be careful about wielding that tool.

Given that I methodologically adhere in large part to the old French liberal class conflict model–the ancient and modern(liberal) notions of liberty are in conflict and this conflict is defined by the struggle between rooting economic life in the polis(the ancient version) vs modern (liberal) view of the State as artificial and a compliance mechanism only(but not the source of compliance)–I would expect Georgism to be buried as the ancient version progresses in influence. In the modern parlance, we would recast this conflict in terms of the public choice rent-seeking model. Contra McElroy, it is the absence of Georgism(or ground rents as the fiscal source of government) that gives credence to the class theory method. If, instead, we saw that governments derived their fiscal source(and public financing) from ground rents, then the French liberal class model would clearly be an invalid method. So from my methodological framework, the absence of Georgism is a source of confirmation.

Now McElroy, who from my understanding, dismisses the class theory method–or at least used to–apparently applies a different method. Of course, she has to resolve how government and public institutions can select the correct private property enforcement model while nonetheless driving us relentlessly toward a total collectivist outcome. This tells me either: (1) Lockean property rights are a foundation of the Total State or (2) they provide no effective constraint mechanism against the Agency of the State.

Refuting the Refutation

Now let us consider McElroy’s 3-point refutation:

(i)As a matter of principle, you cannot claim a right to something you do not own – land – simply because you mix it with something you do own – your labor.
“If this is true, then it proves more than I believe Georgists wish to accept.”

Unfortunately, I expect more out of a scholar such as McElroy. Most libertarians today recognize the weakness of Locke’s arguments from the Second Treatise. Reference, for example, de Jsasy or Nozick. Indeed, it was Nozick who gave us the revised “Lockean Proviso” which makes a clear case that legitimate recognition of agent claims to property or labor are constrained by a condition that the private property regime makes no one worse off relative to the absence of such a regime. Indeed, it is this revised proviso which I identify as the “libertarian principle.” The dreaded conclusion that McElroy warns against is what I consider to be the foundation of any libertarian social order.

Now, to be fair, McElroy later contends in her first point that “the libertarian principle”(although she doesn’t refer to it by that identity) would emerge naturally and spontaneously from a free market in property. Frankly, it’s not my objective to argue this point. I will only point out that empirically this doesn’t occur. Of course, it may have something to do with the fact that a spontaneous market in property is not our only agency. There is that pesky agency known as “the State” that keeps intruding on our hypothetical models. The positive fact is that if we show the State, we show libertarian violations in the Lockean property model. Period…

But the point remains that natural resources belong equally to everyone.
“Again, I doubt that Georgists wish to follow this argument to its logically conclusion”

I have already discussed this. McElroy is engaging in a straw man argument. There is no logical relationship between the proposition of the right of equal access to land and collective ownership. Hence, there is no logical argument to follow to its conclusion.

Justice requires there to be an authority to distribute the ‘unfair’ advantages enjoyed by those who use and occupy land.
“Who is to decide whether it is to be prairie value or market value? Whether a land tax is to be permanent or be liable to increase?”

This is the argument, borrowing apparently from Auberon Herbert, that warns against the Real Estate Appraiser becoming the total source of Statism. Really, a bit of a vacuous argument. Real estate appraisal methods have emerged as a product of convention and are not an arbitrary thing. If I were to compose a list of the foundational threats of total Statism, the modest real estate appraiser would come in low on the list, somewhere next to the dreaded landscapers. Humor aside, the obvious flaw with Herbert’s argument is that the Real estate appraiser and the tax assessor already exist as long-standing staples in the Lockean scheme. To aim your guns at this agency is also to shoot at your own foot.

What is Required to Refute Georgism

I’ve grown tired of the recycled arguments against Georgism that usually derive from the same flawed method of argument: Georgism leads to a contradiction in my moral foundations regarding property. That’s not a method of rational argument. It’s a characteristic of a religious argument. If you want to refute Georgism you are going to have to do it rationally. The rational method has to demonstrate that land rents are quasi economic rents. This is going to be a bit difficult to demonstrate because of the many counter-factual examples that demonstrate ground rents closely approximate a shift of producer surplus to public surplus without any deadweight loss or loss of consumer surplus. Your theory is essentially going to have to encapsulate a Quantum Theory of Economic Rents, meaning institutional apparati determine the observed behavior of rents. Of course, in many ways I do hold to a quantum theory of economic rents. It’s just that there is yet to be sufficient evidence that ground rents demonstrate quantum properties(which, of course, is ultimately a statement on our institutions).

The Last Stop of the “S-Train”

Recently, I’ve been involved in a couple of twitter spats with self-described libertarians. One was over immigration; the other was over Bradley Manning. The former was civil, the latter was not. In each instance, the crux of the opponent’s argument reduced to a paramount presumption of the “rule of law” over any rational challenge. Of course, from a libertarian perspective, I find an appeal to an unchallengeable presumption of the rule of law to be foreign to the tradition. Interestingly, by pointing this out–particularly in referencing Thoreau–I incurred the charge of “anarchist.” Now, that’s an accurate charge, but the actual intent and implication of the charge was this position thusly placed me outside the libertarian tradition. In the case of the immigration “debate” that I had with the Social Media Director of Conservative Daily News, I was told I should be commenting on anarchism, not libertarianism. In the case of the Bradley Manning “spat” I had with Doug Mataconis, the charge was additionally gift-wrapped with the insult.1

Ah so you’re one of those idiotic anarchists. This conversation is over, moron

Anarchism is not a rational philosophy. I don’t care to converse with those who follow it.

So-called libertarians who condone traitors are worthless anarchists

And you have shown yourself to be an irrelevant anarchist who the rest of us can laugh at

Now, the context, which can be viewed here, is that insults came after lengthy twitter deconstructions of Mataconis’ stated reasons why Manning is guilty of espionage and treason. The challenges would simply terminate with Mataconis’ appeal to the insult. Now when I pointed that I was relying on a number of liberal and libertarian authors(“Locke, Hume, Hobbes, the radical french liberal economists, proudhon, spencer, tucker, george, nock,etc”) Mataconis responded:

I’ve read them too, bucko. I also understand reality, unlike you

But you can’t claim to have read and understood these authors(implying a firm understanding of both the liberal and libertarian tradition) and make a statement like:

“Anarchism is not a rational philosophy. I don’t care to converse with those who follow it.”

To make such a statement indicates either: (1) gross incompetence(stupidity=incapable of understanding what you have read), (2) lying(hasn’t actually read what is claimed to have been read) (3) repudiation (4) doublethink

Why? Because political obligation in liberal political theory–the social contract– is derived from an agent rational calculation that measures between (i) the compliance problem of anarchy vs (ii) the minimum amount of liberty an agent is willing to concede(constraint against “means”) to resolve this compliance problem. It’s a hypothetical contractual bargain. Anarchy is treated as the natural human condition. The State is an artificial construct, meaning it’s a tool, an invented device as means to an end. In this “bargain,” anarchy has to necessarily be a rational bargaining outcome in the total set of outcomes–by definition– because anarchy, specifically the constraints against it, is the thing rational agents are minimizing against(the degree they are willing to give up) to obtain the “cooperative surplus.” If “anarchy” is “irrational,” then the entire methodological foundation of liberalism collapses because agents are stripped of agency. The very notion of “bargaining” then becomes absurd. The State is no longer means, it is ends. Agency itself is the product of ends.

Now it may not be rational to choose anarchy over the State. But with Locke, for example, “anarchy” was only a sub-optimal arrangement(not one of total war). Where the confusion often arises is over Hobbe’s “war against all.” Hobbe’s “war against is all” is the foundation for Leviathan as the product of human agency. Hobbe’s view of anarchy or the State of Nature is not that it is irrational, but rather that it suffers from an intractable compliance problem. The compliance problem does not affect human agency, however. Politics is a bargain between exclusively rational agents. Leviathan is the product of this agency. Hobbes arrives at Leviathan from Human Agency because he does not neglect to extend the compliance problem to the compliance agency itself. Hence, no separation of powers bullshit. It is Leviathan.

One pet-peeve of mine is how the communitarians will often try to sneak in Hegel through the backdoor of Hobbes. That is, the “War of all against all” is why humans have “contracted away” human agency and why we have agency only as ends. Except, of course, for the cherry picking of those aspects of liberalism(human agency) that they find preferable. So, the State is Us and We are the State until “We” need to keep “Our” hands off of what “I” consider fundamental.

Returning to Mataconis’ statement regarding Anarchism, it should be seen as an example of (4) doublethink. Mataconis has been blogging on libertarian matters for a number of years, but you really won’t find any deconstruction of anarchism from him. You would think so, given the hostility of the dismissal. But the hostility in this matter can be likely explained by the fact that is not difficult to debunk assertions of the preeminence of the rule of law against rational challenges. Certainly, in the case of Manning, the contention that his voluntary contractual agreement to join the Military establishes his treason and guilt in this matter,regardless, is challengeable in the following way:

(1) contractual agreements impose obligations on both parties to the contract. There is a commitment to be met by both parties. If either party fails to meet those obligations, then the other party is released from further obligation. In some cases, the aggrieved party may try to collect compensation for the contractual breach. We can talk about Manning’s contractual obligations to the US Military, but the US Military is obligated to meet its own commitment to how it conducts itself in warfare. Specifically, (a) the Hague Convention of 1907 (b) the Geneva Conventions of 1949 (c) Protocol I Additions to the Geneva Conventions. These set of agreements define the boundaries of war crimes. If the US is engaged in war crimes, then the soldier is no longer bound by his commitment. But particular to this case we have:

(2) The Nuremberg Principle: A principle the US played a major role in fashioning that establishes that a soldier’s contractual obligation to his/her government(whether involuntary or voluntary) is not a defense against war crimes.

This, of course, is a rational argument that the US governments own legal commitments preclude any prosecution of Manning if it can be shown a formal or informal policy of war crimes. Of course, this rational argument would have absolutely no legal weight in a US Military court. But it probably would have weight in an “international court.” So, it is a demonstration, once again, of the “commitment problem.” The US government can’t be expected to enforce its own commitments. To get an enforceable commitment, you have to climb up another rung on the ladder–in this case, to an international court. So you need an Agency C to enforce the commitments between A and B.

Mataconis is worried about the commitment problem of A–in this case, Manning–in terms of the “rule of law.” But what he should be worried about is the commitment problem of B. Indeed, the preeminence of the rule of law applied to A illustrates a problem I’ve developed concerning the phrase. The implication is that a “proper” human agency is a product of the rule of law. But the “commitment problem” is a demonstration that rational agency is certainly not a “rule of law” ends.

The phrase “The Rule of Law is the legal sanction of the Rule of Men” is meant as a critique. But it is also a truism. It can be recast as a statement, “Law is the product of human agency.” And no system can escape that. Indeed, I’m not sure why you would want to. The servility of human agency to “necessity” not subject to rational challenge is a root cause of injustice and exploitation. Any attempt to root political obligation in “the rule of law,” which is often a favorite refrain of our “limited government” or “proper role of government” libertarians, eventually will have to resort to treating human agency as ends to necessity at some point. The difference between the communitarians and the “limited government libertarians” is that communitarians will acknowledge human agency as ends up front while “the libertarians” will keep it in their back pocket as a last resort.

Of course, as Doug Matacanis would say, this is all just philosophical bullshit. The important standard is “reality.” But this is just Orwell. The subjugation of reason to the immediate context is the foundation of Orwell’s version of totalitarianism. Orwell’s pessimism stems from the ease governments could simply control reality. I’m not surprised, then, when the likes of Mataconis demonstrate their seriousness by supporting the “Simpson-Bowles” fiscal accountability plan. The old Soviet regime has Lenin and Stalin’s tomb. We have our two eternally regurgitated republicrat stiffs on ice periodically de-thawed from the meat locker to deliver us a “serious plan” to redistribute the accountability from the invented realities of the political class.

Several years ago, Charles Johnson penned an essay “Take the A Train” which argued that “minarchy” and “anarchy” did not coherently converge to the same thing. This post is sort of a demonstration of that point cast in terms of the relationship between human agency and law. Therein we find the actual convergence point for all forms of Statism: “traitor.” No matter the form or the occupants, the “S Train” terminates to “traitor” at some point.

1 To be fair, I returned the favor a couple of times.

Is Liberty the Mother or Daughter of Order? It Depends on Your Presumption

The target of my criticism in my previous post responded to my critique in an update. Unfortunately, the author, Fritz, chose to close comments so I will publish my rejoinder here. The short of it is that the failure the author accuses me of–not sufficiently researching his true position and thus mischaracterizing it–is the thing he is actually guilty of with respect to criticizing my position. Succinctly stated, the author largely wastes his time with a straw man counter-attack. When I wrote that the definition of liberty is “do what you want, constrained only by the harm to others,” the author assumed that I was a subscriber to some type of moral universality of “platonic forms” before proceeding with a lecture on the distinction between a moral theory and a social theory. All very nice, but he is arguing against archetypes constructed in his own head.

Just as this particular blogger has his litany of posts regarding moral foundations, social theory, etc, I have my mine. If you read them you find that I am more or less a moral non-cognitivist contractarian. I am skeptical of any normative claims of regarding libertarian property rights regimes, etc. I place the primary value on coherence, not purity. Thusly, I separate libertarianism as political critique from a libertarianism as a social theory. I subscribe to the coherent political critique that stems from the 19th century French Liberal class critique(Thierry,Comte,Dunoyer, Say, Bastiat, etc) of political economy. I synthesize this with the methodology of modern rational choice.

And the social theory is indeed a social theory, not a moral one. Non-coercion(NAP) is useless as a basis for a social theory because all social interactions and contractual arrangements are coercive in that they necessarily impose moral constraints on agents as pure maximizers. Instead, I look to the Justice of Mutual Advantage as the foundational basis of the social theory. This is hardly radical in and of itself since liberalism, as a political theory, more or less roots political obligation in a rational JMA calculation. Libertarianism, in positive sense, observes that the State inherently violates the JMA constraint. It thus looks to alternative institutional means as the enforcement mechanism for justice. By justice, in an institutional sense, I mean a regime that is mutually beneficial to everyone(i.e., better off with the regime than without it).

Now since liberalism gives us civil society as natural and the State as artificial, if we subtract the State, we are left only with civil society. Obviously, civil society then has to be the source of governance. If we are actually interested in JMA regimes, then empirical observation has demonstrated that society is where they have to come from–both as the institutional source and the enforcer.

Framing the libertarian position in this manner provides a bit of clarity in regards to the typical claims of a Utopian or a Nirvana Fallacy objection. Is the Nirvana Fallacy the position that JMA regimes can emerge from civil society alone or is the fallacy inherent in the JMA objective itself. Or thirdly, does JMA have to be tempered by other principles of justice? Once we actually define the composition of the so-called Nirvana Fallacy, what the specific “unrealizable alternative” actually is, then we can actually begin to frame a coherent debate.

If the objection is to JMA itself, then the objector essentially repudiates liberalism and its social contract methodology to begin with. This is rooted in a simple moral objection.

If the objection is that JMA regimes cannot emerge from civil society alone, but the objector nonetheless accepts JMA, then the objector is forced to confront the problem that the State is a violator of the JMA constraint.

If the objection is that JMA must be tempered by other principles of Justice, then the objector still nonetheless has to introduce these “tempering justice principles” through the front-door of the social contract, meaning that they have to be (hypothetically) shown not to violate the JMA constraint.

The point: can a clever deconstructionist demonstrate that any deviation from the status quo is guilty of the Nirvana Fallacy. Answer: Yes. Translation: The Nirvana Fallacy can more or less be reduced to “leave well enough alone.”

Frankly, I don’t think “leave well enough alone” is a convincing counter-argument to libertarianism.

Does Order Come From Liberty or Does Liberty Come From Order?

In general, we can distill the essential differences between the libertarian and conservative worldview down to who is the rightful parent in the Liberty vs Order relationship. Is liberty the mother or the daughter of order? This former is the liberal position; the latter is the republican(communitarian) one1. The author here is claiming that not only is the conservative worldview the correct one but that the conservative position is the “true libertarian” one. I consider this an expropriation, and it merited a rebuttal.

Let us re-summarize the blogger’s argument:

(i) Libertarian moral foundations cannot be the foundation for liberty because libertarian moral foundations are artificial mental constructs that sow conflict and strife, not peace and cooperation

(ii) libertarians must respect evolved social norms because the norms have evolved for the purpose of creating the necessary order for cooperation and peace–and this is liberty

(iii) (ii) is given a Hayekian spin

My previous post addressed (ii) and (iii). It didn’t address (i). For starters, I’m the wrong type of libertarian to be a model for (i)–which I gather is supposed to imply morals deduced by means of abstract reasoning. I am more or less a moral non-cognitivist. I do not subscribe to “Natural Rights” nor to the proposition that reason is the source of moral judgements. Reason is a means to secure our moral ends but not source of the ends. So I say, of course, morality is relative; the “value” of moral judgements(“values”) are measured relative to a given moral foundation. A fancy way of stating this is that value judgments V are Statements S that have no truth content.

Now I do subscribe to the “presumption of liberty.” Following Anthony de Jasay, we can say that the “presumption of liberty” is an essential component of logical argument–of constructing an argument–so that an argument for liberty does not necessarily presume a preference for liberty. In this sense, the “presumption of liberty” is not a subjective value judgment.

But to get to the point, there simply is no such thing as “libertarian moral foundations” L. They are shared presumptions, such as the presumption of liberty(if you ascribe to the presumption of innocent before guilty, then you ascribe to it as well…so it’s not just “libertarians”), shared arguments, shared outlooks, but these things do not stem from a single moral foundation L. If we required them to–that everyone share L–then libertarianism would indeed be moral theory and not fit for social application(other than functioning similar to a religious industry).

And the social theory does not require shared moral foundations because JMA is rooted in a strategic calculation regarding cooperation–minimizing the price to be paid to gain the cooperation of others. We empirically verify this everyday with the observation of trade.

So the author’s argument (i) is rejected because the premise is false.

I will re-summarize the argument against (ii). It is flawed both conceptually and empirically. The conceptual flaw is the presupposition of the “order” itself as a static thing or a thing has settled into a final equilibrium. The blogger rejected having his position characterized as a “traditional ought” in terms favoring the order equilibrium. Instead, his claim for this settled thing appealed to its instrumental value regarding the produced consequences of cooperation and peace. The consequences are what he defined as liberty. But this violates the “Presumption of liberty.” The equilibrium is simply an arbitrary stopping point, and a presumption of order(or authority) is placed on any non-approved action disturbing the order. The problem with treating liberty as ends (instead of means) can be aptly demonstrated by Peace and Cooperation operating under a Presumption of Authority. If you click on my link to “The Theory and Practice of Oligarchical Collectivism” and read my brief introductory comments, you see that Orwell was describing a regime whose political and social hierarchy were in eternal equilibrium. This produced the de facto results of peace and cooperation. So, Big Brother would have to be classified as an example of “True Libertarianism.”

The empirical flaw with (ii) is that there is no such thing a single culture or norms C. I’m not merely referring to the different cultures across nations or continents. Any Culture C is composed of embedded subcultures(or counter cultures), each having their own informal set of institutions and norms. The reason I referenced Thaddeus Russell’s work,”A Renegade History of the United States,” is because it directly refuted our blogger’s contention that such things as abortion or homosexuality can only become accepted value norms via the coercive power of the State. Russell’s volume throughly debunks that canard by documenting the cultural norms of a large number of early Americans(the working classes, lower classes and slaves) who did not share the puritan norms. Homosexuality, abortion, interracial sex, drunkenness, leisure were accepted values of these classes. And as Russell chronicles, the governing classes devoted a great deal of concern with forcing these social convention rules regimes to conform with “republican virtues.” The emergent thesis from Russell’s book is that much our social freedoms originated from these alternative social convention regimes. So Russell’s scholarship counts as historical disproof of our blogger’s contention regarding homosexuality and abortion.

Conclusion

The difference between “Liberty is the Mother of Order” and “Liberty is the Daughter of Order” can be cast thusly: (i) the former treats liberty as means and operates according to a presumption of liberty (ii) the latter treats liberty as ends and operates according to a presumption of authority. The first is liberal and libertarian. The second is republican and communitarian. To claim that “true libertarianism” is (a) communitarian and (b) respectful of the presumption of authority is a gross expropriation. Any appeals to some Nirvana fallacy against (i) is rejected as nothing more than a mere Statement that the Status Quo is the final reality.

Addendum

In anticipation of the blogger Fritz’s objection that his conception of liberty has to count Big Brother within the classification of “true libertarianism,” I will preemptively quote this from his website: “not all social regimes are regimes of liberty. Liberty requires voice — the freedom to dissent — and exit — the freedom to choose one’s neighbors and associates.”

Of course, “exit and voice” in Fritz’s conception are still subject to the presumption of authority. As Fritz himself demonstrates here: Illegal Immigration: A Note to Libertarian Purists

It is anathema to them that the United States exists primarily for the purpose of protecting its citizens and their liberty rights. (Well, it did exist for that purpose originally and for a long time, and it still does to some extent.) Libertarian purists seem to believe that, somehow, defense would be unnecessary and rights would be enforced even if the United States did not exist as a coherent, delimited entity. Good luck with that!

Exit and Voice operate under a presumption of authority that places a burden on the exerciser that the exercise of these “rights” does not disrupt the existence of the State as a coherent, delimited entity. Chuck Schumer would absolutely concur…

1 Please note: liberal and republican refer to the respective political philosophies/traditions and not to partisan politics or parties.

Saving Liberty from the “True Libertarians”

I consider Thaddeus Russell’s “A Renegade History of the United States” to be a particularly important contribution to libertarian scholarship(even though Russell doesn’t explicitly identify as a libertarian). A mere reference to Russell’s work punctures the assumptions implicit in this post that attempts to equate true libertarianism with Burkean conservatism. From the post, “Not Guilty of Libertarian Purism”:

A “true” libertarian respects socially evolved norms because those norms evidence and sustain the mutual trust, respect, forbearance, and voluntary aid that — taken together — foster willing, peaceful coexistence and beneficially cooperative behavior. And what is liberty but willing peaceful coexistence and beneficially cooperative behavior?
If socially evolved norms include the condemnation of abortion (because it involves the murder of a living human being) and the rejection of same-sex “marriage” (because it mocks and undermines the institution through which children are born and raised by an adult of each gender, fate willing), the “true” libertarian will accept those norms as part and parcel of the larger social order — as long as it is a peaceful, voluntary order.

The “pseudo” libertarian — in my observation — will reject those norms because they interfere with the “natural rights” (or some such thing) of the individuals who want to abort fetuses and/or grant same-sex “marriage” the same status as heterosexual marriage. But to reject and reverse norms as fundamental as the condemnation of abortion and same-sex “marriage” is to create strife and distrust, therefore undermining the conditions upon which liberty depends….

The pseudo-libertarian … is afraid to admit that the long evolution of rules of conduct by human beings who must coexist might just be superior to the rules that he would arbitrarily impose, reflecting as they do his “superior” sensibilities. I say “arbitrarily” because pseudo-libertarians have not been notably critical of the judicial impositions that have legalized abortion and same-sex marriage, or of the legislative impositions that have corrupted property rights in the pursuit of “social justice.”

Now as an admirer of both Hayek and de Jasay, I take the idea of the “ordered anarchy of social convention” very seriously. However, this author commits two related fallacies in his equation of his version of Burkean conservatism with libertarianism. The first fallacy is that an evolutionary social convention rules regime is not subject to evolutionary adaptation. We can identify this fallacy then as the argument from tradition. The second fallacy is not so much a logical one as an empirical one: the “tradition” is not the actual tradition.

The empirical fallacy is demonstrated by Russell’s volume. The so-called purported “tradition” was not the actual social convention rules regime. As Russell documents, state actors have devoted a great deal of concern with forcing social convention rules regimes to conform with “republican virtues.” And this fact leads us back to the first fallacy that destroys the “Burkean” claims of conservatives. Indeed, it is this fallacy that prompted Hayek to famously reject conservatism. 1

We can define the Burkean objection as offense to a “rationalist ought” in contrivance against the social convention rules regime. But the converse of this is a “traditional ought” in contrivance against the social convention rules regime. The latter is how Hayek defined conservatism and this is why he rejected it. Our blog author, who plasters Hayek across his his blog, is an expropriator. Hayek’s later identity as a “whig” was a statement of rejecting the claims of both the “rationalist ought” and the “traditionalist ought” against his increasingly evolutionary social framework methodology.

I often rail against conservative pollution of libertarianism. For good reason. It denies liberty while portraying itself as the true heir of liberty. Liberty is simply defined as “do what you want, constrained only by the harm to others.” But there is a faction of those who argue that “do what you want” is in and of itself harmful to others. I count our conservative blogger among the deniers. Quoting his own words(taken from his sidebar):

John Stuart Mill opined that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” But who determines whether an act is harmful or harmless? Acts deemed harmless by an individual are not harmless if they subvert the societal bonds of trust and self-restraint upon which liberty itself depends.

It is quite a farce that those who deny the essential meaning of liberty to nonetheless claim to be the true libertarians. But is perhaps sadder that these deniers are cast as an example of “the pure libertarian critique” against the claims of “social justice” by the “bleeding heart libertarians.” I’m not sure which is the more egregious violation: our conservative calling the bleeding heart libertarians “left-statists” or the bleeding heart libertarians citing this blogger as an example of the hard-core libertarian argument. Coherence is not the valued currency of argument here.

For the record, and I repeat, the argument against the Bleeding Heart libertarians, the state-sanctioning variety, is demonstrated through their own violations of the liberal method. It is perfectly legitimate to use the liberal method to normatively argue political obligation to a Social Justice Regime. However, use of the liberal method obligates one to a consideration of the termination of political obligation. Specifically, when the regime exhibits the characteristics of a police State, including the Executive Branch’s resurrection of the pre-liberal concept of outlaw, the political obligation fails the rational test. The Bleeding Heart Libertarians cover up their liberal incoherence with endless syllogistic hypotheticals of market violations. Red Herrings. For a liberal, the pre-eminent consideration should be the reform or correction to restore the rational basis for political obligation.

“True Libertarianism” does not reside at the midpoint of a debate between methodologically incoherent conservatives and methodologically incoherent liberals. Of course, there is no such thing as “true libertarianism” to begin with. What is within our grasp is coherent libertarianism to deconstruct the incoherent bullshit….

1 The conservative bloggers blog byline “Gay “marriage”: a tyranny of a minuscule minority” actually demonstrates the tyranny of the “traditionalist ought.” It was the violent protectionist attacks by the State on the counterculture gay social rules regime that prompted the movement to try to incorporate itself into the “regime of republican virtues.”