Arbitrary Legality Makes Bad Laws

Recently, out of curiosity, I scanned the daily jail log for Curry County. I had never done so before and probably won’t do it again. Afterward, I felt guilty and was ashamed of myself.

I learned something interesting, though. Half of the people — five out of 10 — booked into the jail that particular day weren’t even accused of having done anything wrong; only things that have been arbitrarily declared illegal.

What’s the difference?

An act that violates an individual’s life, liberty, or property is wrong; a real crime, whether or not the law considers it a crime. These acts are wrong in and of themselves. The Latin term for this is “mala in se.”

Those booked into the jail that day and accused of having actually harmed someone were claimed to have either harmed others physically or to have violated someone’s property rights. Your main responsibility as a human is to respect the rights of others, so I have no sympathy for anyone who chooses to violate others.

This is assuming they actually did what they are accused of, which isn’t necessarily a reasonable assumption to make these days.

The other half of those jailed weren’t even suspected of harming anyone. The only justification for caging them was that they had offended the government in some way. Either they refused to identify themselves to a government employee, didn’t have the required permission papers, had forbidden substances, or tried to avoid being apprehended and kidnapped by an armed government employee. This makes these inmates political prisoners, not criminals. Even if I believed in punishment and imprisonment instead of justice, I wouldn’t believe these people deserved it. They are the real crime victims.

I understand why government would like for you and me to think of those things as crimes, but they aren’t They can’t be. Instead, these acts are “crimes” only because someone wrote legislation designating them so — a made-up rule with no ethical foundation. “Crimes” only because government employees say so. The Latin term for these acts is “mala prohibita.”

If you get aroused by punishing others, you probably don’t care. “It’s the LAW! It has to be obeyed,” you might insist.

Still, if you want your laws to be respected, you’ll first need to make them respectable. A good beginning is to get rid of all those laws based on nothing but the empty opinions of politicians.

This would eliminate all of your counterfeit mala prohibita “laws.”

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Policing the Public Schools: How Schools Are Becoming Even More Like Prisons

In his book, Free To Learn, Boston College psychology professor Peter Gray makes the connection between school and prison. He writes: “Everyone who has ever been to school knows that school is prison, but almost nobody beyond school age says it is. It’s not polite.” It’s a prison in that young people are compelled to attend school by law, are unable to voluntarily leave, are told what to do and when, and are required to consume a standardized curriculum.

As if schooling was not already jail-like enough, adding armed police officers to the mix confirms the metaphor. In public schools across the country, police officers are increasingly present, costing taxpayers millions of dollars for a vague notion of safety. In fact, some estimates suggest that over two-thirds of high school students currently attend a school with a police officer on site.

Increased School Security

While some school districts, particularly urban ones, have had school safety officers present for a while now, concern about school shootings is driving an increase in numbers. Tennessee, for instance, is dedicating $50 million to put a police officer in every school, reaching beyond populated districts into rural communities. The Tennessee bill received bipartisan support and was signed into law by the governor this month, joining the ranks of other states that are implementing similar policies.

After the horrific Parkland school shooting in Florida last year that left 17 people dead, the state legislature mandated an armed guard in every public school. Nevermind that Parkland actually had an armed guard at its school who didn’t enter the school to engage the gunman during the shooting. He subsequently resigned.

Armed guards and police officers at schools are no guarantee of school safety and, in fact, may cause more harm than good. Northeastern University criminology professor James Alan Fox explains in his recent USA Today commentary: “Transforming schools into armed camps does more to elevate fear than alleviate it.” He adds that while school shootings are devastating, they are incredibly rare. “Although the sense of safety of schools has been shaken,” says Fox, “it is important not to view such occurrences as the ‘new normal,’ as some have suggested.”

Over-Criminalizing Students

Rather than deterring mass shootings, armed guards at schools often end up over-criminalizing students. Some studies have suggested that police presence at schools leads to more arrests for non-violent crimes and does not improve student behavior. These arrests and other extreme disciplinary measures can thrust children into the criminal justice system at a very early age, helping to fuel what is known as the “school-to-prison pipeline.” Often, it is poor and minority children who are fed into this pipeline by school personnel at startling rates and at young ages, making it difficult to ultimately escape the path to prison. In 2016, for example, 50,000 preschoolers were suspended or expelled from school, with black preschoolers expelled or suspended at twice the rate of their peers.

Prison-like schools may be just the latest factor prompting more parents to opt-out of public schools altogether. How similar to prison do schools need to become before it’s polite to call them what they really are?An article in this week’s Seattle Times explains that more black families in the Seattle area are choosing to homeschool their children, at least partly due to the over-criminalization of black children in Seattle schools, where they are six times more likely to be expelled than white children. Other areas are seeing similar upsurges in homeschooling.

In Tennessee, the most recent state to pass the universal school police officer law, public school enrollment rose by less than 1 percent between 2012 and 2017. According to data I obtained from the Tennessee Department of Education, the number of homeschoolers nearly doubled during that same time frame, from 4,614 homeschoolers in 2012 to 8,843 in 2017.

Parents may be increasingly choosing education freedom over force for their children. That is, when they can choose. In their just-released study, Corey DeAngelis and Martin Lueken find that school choice improves school safety. They write: “We find that private and public charter school leaders tend to be more likely to report ‘never’ having safety problems at their schools than traditional public school leaders.” Providing more choice mechanisms that enable parents to opt-out of assigned district schools could ensure school safety better than armed guards and locked classrooms.

How similar to prison do schools need to become before it’s polite to call them what they really are?

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Dan Moller’s Governing Least

Michael Huemer’s The Problem of Political Authority is definitely my favorite work of libertarian political philosophy.  Dan Moller’s new Governing Least, however, is definitely now my second-favorite work of libertarian political philosophy.  The two books have much in common: Both use common-sense ethics to argue for libertarian politics.  Both are calm, logical, and ever-mindful of potential criticisms.  Both strive to persuade reasonable people who don’t already agree with them.  Both are packed with broader insights.  And despite these parallels, both are deeply original.

So what’s most original about Moller’s position?  Instead of focusing on the rights of the victims of coercion, Moller emphasizes the effrontery of the advocates of coercion:

[I]n my account libertarianism emerges from everyday moral beliefs we have about when we are permitted to shift our burdens onto others. In fact, my account intentionally downplays the role of rights, and is motivated by doubts about what we may demand of others, rather than outrage about what others demand of us.

The effrontery is most blatant when you speak in the first person:

Imagine calling a town hall meeting and delivering the following speech:

My dear assembled citizens: I know most of us are strangers, but of late I have fallen on hard times through no fault of my own, by sheer bad luck. My savings are low, and I don’t have friends or family to help. Now as you know, I’ve previously asked for help from you as private citizens, as a matter of charity. But unfortunately that hasn’t been sufficient. Thus, I’m here now to insist that you (yes you, Emma, and you, John) owe me assistance as a matter of justice. It is a deep violation if you don’t work additional hours, take fewer vacations if need be, live in a smaller house, or send your kids to a worse school, in order to help me. Failing to do so is no less an injustice than failing to pay your debts.

Moreover, calling this an injustice means that it’s not enough that you comply with your obligations by working on my behalf. No, I insist that you help me to force your fellow citizens to assist me. It doesn’t matter if these others say to you that they need the money for their own purposes, that they prefer worthier causes, or if they’re just hard-hearted and don’t care. To the extent you care about justice, you must help me to force these others to assist me whether they wish to or not, since that is what is owed me in light of my recent bad luck.

Could you bring yourself to make this speech?

The fundamental objection to Moller’s position, he thinks, is to claim that governments have “emergent moral powers.”  But Moller firmly denies this.  Governments are just groups of people, so they are morally obliged to follow the same moral principles as everyone else.  While this may seem like libertarian question-begging, there’s nothing uniquely libertarian about it:

It is notable that many who wish to block rights-based objections to state action are nevertheless eager to enter their own moral objections to what the state does. Many of those unsympathetic to attacks on taxation rooted in individual rights also portray the absence of welfare provisions or various immigration policies as “unconscionable.” There is nothing inconsistent about this; the one set of moral claims may be right and the other confused. But the objection then cannot be based on the emergent moral powers of the state. We cannot both reject appeals to individuals rights on the general grounds that morality has nothing to tell us about what may emerge from government institutions, and then do just that, substituting our own preferred brand of interpersonal morality. Once we notice this, support for emergence should shrink drastically, since it will only come from those who think there are no policies of the state that can be rejected on fundamental
moral grounds. The non- emergence assumption per se has no particular ideological leanings.

But doesn’t common-sense morality admit that rights to person and property are not absolute?  Of course; exceptions abound.  Moller sternly emphasizes, however, that these exceptions come with supplemental moral burdens attached.  In his “Emergency” hypothetical, for example, you steal $1000 under duress.  What then?

I propose the following non-exhaustive list of residual obligations for cases like Emergency:

Restitution: although I didn’t do wrong, I must repay the $1,000 if possible, perhaps in reasonable installments.

Compensation: to the extent you are otherwise harmed by my actions, I should attempt to compensate you. For instance, if I smashed your windows getting in or forced you to incur some loss because you had to come home at short notice, I must compensate you at some reasonable rate.

Sympathy: it is incumbent on me to convey, if not an apology for my (permissible) actions, at least sympathy for the harm I have caused you. (“I’m very sorry I had to do that” would be the natural if slightly misleading phrase.) I cannot offer a Gallic shrug at your distress and announce, “I did nothing wrong— it’s your problem” as you survey the wreckage of your home. To do so would exhibit a serious character flaw.

Responsibility: my obligations are not just backward looking, but forward looking. If I can reasonably foresee that some action of mine will put me in the position of facing an emergency that will then render it permissible to harm you, I must take responsibility to avoid such actions if possible. I should not think that I have less reason to take responsibility because I can avoid harms by transferring them to you instead. And failing to take responsibility weakens my claim to impose costs on others when the time comes.

A related principle is worth mentioning as well:

Need: my warrant for harming you depends on how bad my situation is. I cannot harm you if I am doing fine already merely in order to improve my position still further. I may be permitted to take your $1,000 to avert a physical threat, but not in order to make a lucrative investment in order to get even richer.

The political implications are expansive, starting with:

A welfare state justified in virtue of overriding reasons to promote the good of the beneficiaries incurs these residual obligations. Flouting them amounts to unfair burden- shifting. What would it look like actually to satisfy them? For starters, if I were the beneficiary of some emergency medical procedure that a third party compelled others to contribute to— say a state agency— I would be obligated to
repay those charged for my benefit, possibly with some compensatory surcharge. If unable to pay, I would be required to pay in installments, with the agency keeping track of my income and tax records to ensure that my repayment were in line with my means…

Moreover, in repaying, my attitude toward my fellow citizens ought to be one of gratitude for coming to my assistance, as opposed to viewing these services as entitlements due to me as a matter of citizenship. This may seem curious: by hypothesis, the services I received made it past the threshold, meaning that the wealth transfers involved were permissible, and since I am repaying, they won’t
even be net transfers in the long run, barring misfortune. Depending on how badly I needed aid, aiding may even have been obligatory on a third party. Why should I express gratitude for others fulfilling their duties? Consider the Gallic shrug— that supreme expression of indifference at someone else’s misfortunes, while disclaiming all responsibility for rectifying them, frequently encountered
in Parisian cafés. Why shouldn’t I shrug my Gallic shrug at the rich complaining about their tax bill, and point out I merely got what I was entitled to, as would they in a similar situation?

This complaint would be apt if appropriate moral responses were a function solely of whether our acts are required or permissible. But there are all kinds of inappropriate moral responses even when what we have done is permissible or when what the other has done was required. If we are to meet for lunch and an urgent business affair obtrudes itself, I may be permitted to skip our lunch, but
I shouldn’t treat putting you out lightly. What makes a Gallic shrug a vice here is that beneath the outer layer of permissibility there remains an inner structure whereby you have been harmed for my sake, which ought to be a source of concern, leading to some appropriate expression of regret if I am a decent person.  And the same is true in the case of welfare services. This is easy to ignore because
of the opaque veils of state bureaucracy. But behind the faceless agency lie people who are harmed for the sake of benefiting me.

Governing Least manages to be at once readable and dense.  And though you can’t tell from the passages I just quoted, Moller also repeatedly appeals to and grapples with cutting-edge social science.  What, for example, should philosophers think about Greg Clark’s work on the long-run heritability of social status?  Moller’s take will surprise many of you.

Last question: Why do I still prefer Huemer to Moller?  Intellectually, because Huemer’s appeal to individual rights is just more clear-cut than Moller’s objection to “burden-shifting.”  Furthermore, Huemer focuses on the broader case for libertarianism, while Moller self-consciously focuses on opposition to the welfare state.*  And while Moller’s book is beautifully written and well-organized, Huemer’s is stellar on both counts.

Thus, if you’re only going to read one book of libertarian political philosophy, I still say you should read The Problem of Political Authority.  If you’re willing to read two such books, however, read Governing Least.  I loved it.

* Moller: “I also ignore the many noneconomic causes that libertarians have sometimes taken up, like free speech, gay marriage, and drug legalization. This is the fun part of libertarianism and requires little heroism to defend. Many disagree with such policies, but few think their sponsors cruel or ungenerous, while resistance to the welfare state and programs intended to foster economic equality evoke precisely that response.”

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Pardoning Assange Would be the First Step Back Toward Rule of Law

On April 11, the ongoing saga of journalist and transparency activist Julian Assange took a dangerous turn.  Ecuador’s president, Lenin Moreno, revoked his asylum in that country’s London embassy. British police immediately arrested him — supposedly pursuant to his “crime” of jumping bail on an invalid arrest warrant in an investigation since dropped without charges but, as they admitted shortly thereafter,  actually with the intent of turning him over to US prosecutors on bogus “hacking” allegations.

The US political class has been after Assange for nearly a decade.

In 2010 WikiLeaks, the journalism/transparency service he founded, released information revealing US war crimes in Iraq and Afghanistan, as well as State Department cables exposing — among other things — Hillary Clinton’s attempts to have American diplomats plant bugs in the offices of their UN counterparts (Clinton, at one point, tried to raise the possibility of having him murdered for embarrassing her so).

In 2016, WikiLeaks released Democratic National Committee emails — provided by an as yet unidentified whistleblower — exposing the DNC’s attempts to rig the Democratic presidential primaries in Clinton’s favor.

At no point has Assange been credibly accused of a crime. He’s a journalist. People provide him with information. He publishes that information. That’s an activity clearly and unambiguously protected by the First Amendment.

Even if Assange was a US citizen, and even if his activities had taken place in territory under US jurisdiction, there’s simply no criminal case to be made against him.

So they’re manufacturing one out of whole cloth, accusing him of “hacking” by asserting that he assisted Chelsea Manning with the technical process of getting the 2010 information to WikiLeaks.

But once again: Assange is not a US citizen, nor at the time of his alleged actions was he anywhere that would have placed him under the jurisdiction of the United States.

Even if he did what he’s accused of doing, the current state of affairs is the equivalent of the city government of Chicago asking Norway to extradite a French citizen on charges of not cutting the grass at his villa in Italy to the specifications of Chicago’s ordinance on the subject.

There are certainly criminal charges worth pursuing here.

The US Department of Justice should appoint a special counsel to probe the Assange affair with an eye toward firing, seeking the disbarment of, and prosecuting (for violations of US Code Title 18, Sections 241, Conspiracy Against Rights, and 242, Violation of Rights Under Color of Law) the DoJ bureaucrats who hatched this malicious prosecution.

The first step in the process, though, is for US president Donald Trump to pardon Julian Assange for all alleged violations of US law on or prior to April 11, 2019.

Assange is a hero. Time to stop treating him like a criminal.

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Mistakes and Wrongs

I’ve made so many mistakes over the course of my life. And I’ve committed so many wrongs.

Many of my mistakes haunt me when I think of them. Each one undoubtedly set my life on a different course. When I think of them I sometimes want to punch myself in the face and mutter “Stupid, stupid, stupid!”

If the “many-worlds” interpretation of quantum physics is correct, there are countless versions of me out there who didn’t make the same mistakes I’ve made (they made other mistakes). I wonder what those versions are experiencing as a result. What mistakes did I avoid making?

And when I think of the wrongs I’ve committed… if I believed in punishment rather than justice, as so many do, I would probably kill myself.

I never did anything like robbery, rape, kidnapping, or murder, but wrong enough that I wish I hadn’t done them.

One good thing is that I haven’t committed as many wrongs since my early 20s or so. I’m sure I’ve committed smaller wrongs, but nothing I dwell on. I’ve focused more on making mistakes since then.

No matter what anyone else thinks of me, I’m my own worst critic. But the cats love me.

I do think I’m getting better with the passing years. Coming to understand rights and responsibilities was a big part of that improvement. The best anyone can do is to be a better person than year-ago you was.

I also have to remember that in very real ways, I am not that same person I was. Not only have all my cells been replaced since then, but my mind has other contents. I’m a different person than I was when I was 20 or 30, and certainly different than when I was a teen. At some point you’ve got to let the past be the past and move forward. Remember and enjoy the good parts of the past; let go of and forgive yourself for the bad parts. That will help make you a better person, too.

Now, if I could really convince myself of this and put it into action. It’s a process.

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Some Men Just Want to Watch Mexico Burn

In the introduction to La Vida, famed anthropologist Oscar Lewis unfavorably compares Puerto Rico to Mexico:

But perhaps the crucial difference in the history of the two countries was the development of a great revolutionary tradition in Mexico and its absence in Puerto Rico.  Puerto Ricans sought greater autonomy from Spain during the nineteenth century, but they were never able to organize a revolutionary struggle for their freedom, and the single attempt along this line, at Lares, was short-lived and never received mass support.  By contrast the Mexicans fought for their independence from Spain between 1810 and 1821, drove out the French in 1866 and later produced the great revolution of 1910-20 with its glorious ideals of social justice.  In the course of these struggles great heroes emerged, men who have become symbols of the Mexican spirit of revolution and independence.

La Vida was published in 1965, just 45 years after the end of the Mexican Revolution.  Lewis personally knew many Mexicans who lived through it.  But what actually happened during this “great revolution” with its “glorious ideals of social justice”?  The best paper I could find on the topic is Robert McCaa’s 2003 paper “Missing Millions: The Demographic Costs of the Mexican Revolution” (Mexican Studies 19, pp.367-400).  After a detailed review of earlier estimates, McCaa deploys new techniques to reach a grim conclusion:

The human cost of the Revolution was paid mainly in blood. Of a total demographic cost of 2.1 million, excess deaths accounted for two-thirds,  lost births one-fourth, and emigration considerably less than one-tenth of the total… The best two-sex inverse projection to 1930, taking into account the age and sex distribution of the population in that year,  points to some 3 million missing as of 1921. Census error in the 1921 enumeration reduces this figure by 1 million. Two-thirds of the remainder was due to one factor: excess mortality (1.4 million deaths), with 350,000 more male deaths than female. Lost births were substantially less at 550 thousand. Smaller still, at less than 10 percent of the total loss, was emigration to the United States, with the persisting number of male “refugees,” generously defined, slightly more than 100,000, and females about three-fourths of this figure.

The basic history of the Mexican Revolution, moreover, was hardly “heroic”:

[O]nly six months passed between Francisco I. Madero’s pronouncement of revolution (November 20, 1910) and the overthrow of the old dictator Porfirio Díaz. The resignation of Díaz came in late spring 1911 and was accomplished with little violence or destruction. The fighting scarcely began until 1911… Victory at Ciudad Juárez came to the revolutionaries on May 10, 1911, after a siege lasting only a couple of days… Although the fall of Díaz was achieved due to uprisings throughout the republic, the cost of the Revolution, to this point, was probably only a few thousand deaths.

The real fighting began as the revolutionaries trained their weapons on one another over the course of the following six years… Zapata, having waited four months to rebel against the hated Díaz, did not allow four weeks to pass before rebelling against the enormously popular Madero. In late November 1911, Zapata, “tired of waiting” for Madero to carry through an agrarian revolution, according to the conventional view, denounced Mexico’s first democratically elected president by proclaiming the Plan of Ayala. Yet, until 1912, Zapatistas did not pose a serious threat to the Madero government. Elsewhere regional bands (and bandits), some with plans, others without, escalated the plundering of the countryside, hamlets, and towns. As is well known, within two years of Díaz’s resignation the nation slid into chaos…

With the assassination of Madero on February 21, 1913 –- probably on the order of the Madero-appointed commander in chief of the federal army, Victoriano Huerta—civil war erupted. The usurper proved incapable of suppressing the many revolts… [A]fter the failure of the Convention of Aguascalientes to resolve the differences of regional warlords, an even bloodier phase of the Revolution began, as, once again, the victors turned on one another.The year 1915 was the year of hunger. Marauding bands destroyed the few crops that were sown, many before they could be harvested. Destruction continued into 1916, although with the defeat of the northern chieftain Pancho Villa at the Battle of Celaya in April 1915, the violence began to wane, however slowly. Devastation was made worse by the Spanish influenza epidemic of 1918/19, to be examined in detail below.

McCaa thoughtfully concludes:

Given the magnitude of the human losses caused by the Mexican Revolution, the silence of some scholars and disbelief by others is surprising…

For the Americas, both North and South, the Mexican Revolution was the greatest demographic catastrophe of the twentieth century. From a millennial perspective,the human cost of the Mexican Revolution was exceeded only by the devastation of Christian conquest, colonization, and accompanying epidemics, nearly four centuries earlier.

How then could as knowledgeable a scholar as Lewis credulously praise the sordid bloodbath that was the Mexican Revolution?  As a Marxist, he was obviously predisposed to positivity.  His gushing, however, would probably resonate with many non-Marxists, too.

What possesses anyone to so gush?  One could say, “You can’t make huevos rancheros without breaking eggs.  The war was tragic, but the results were great.”  Since we’re talking about Mexico, though, this seems absurd.  Sure, it’s a middle-income country, but violence remains a grave problem to this day.  And given its proximity to the U.S., gravity alone should have turned it into a peaceful, First World country by now.  The legacy of the Mexican Revolution is one of the better explanations for why this transformation has yet to happen.

In any case, people who admire revolutions rarely bother with counterfactual history.  What excites them is revolution itself.  Revolution is romantic.  The vision of tearing down the wickedness of the world, serving wrong-doers their just deserts, charging barricades with our brave leaders, and building a better world on top of the ashes is a thrilling story.  Counting corpses and asking, “What was it all for?,” in contrast, is a real downer.

If you share this romantic vision, you might even welcome my analysis: “Yes, I’m inspired by revolutionary idealism.  At least they tried.”  Yet calmly considered, this romantic vision is inexcusable.  Launching a bloody war without even asking, “How likely is this war to improve the world?” is as “romantic” as drunk driving at a playground.  Giving revolutionaries credit for “trying” is ridiculous.  If you combine brutality with wishful thinking about the consequences, your real goal isn’t to make those consequences a reality.  Your real goal is just to exercise brutality.

So why did Lewis gush over the Mexican Revolution?  Batman’s butler got it right: “Well, because he thought it was good sport. Because some men aren’t looking for anything logical, like money. They can’t be bought, bullied, reasoned, or negotiated with. Some men just want to watch the world burn.”  I’ve learned a lot from Lewis, but the less real-world influence people like him have, the better.

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