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The good guys

Here’s a great little profile of our courageous colleagues at the Institute for Justice.

No time

Yes, I’m alive. Just swamped. Read my posts about John Varley and Cass Sunstein, if you haven’t already.

Last word on Sunstein (I hope)

My apologies to Liberty Corner which long ago gave me a link, but I overlooked returning it. Liberty Corner has posted at length an essay that Prof. Sunstein wrote some time ago about free speech. Sunstein’s ideas with regard to freedom of speech are indeed chilling. In Democracy And The Problem of Free Speech, and elsewhere, Sunstein argues that there is really no such thing as free speech. This is consistent with his “Red Queen” viewthat there is no such thing as an unregulated state. For him, what we think of as “freedom of speech” is just a situation of regulations, equally valid with any other situation of regulations. “Freedom of speech” is really just a bunch of laws that say things like, you can’t beat someone up for speaking his mind, and stuff like that. So there’s no real reason we can’t just change these regulations if “society” decides it’s worth while. So we can redistribute free speech rights, by shutting down some people’s speech and taking money and giving it to other people so that they can buy time on radio stations and so forth. If “society” decides that, say, Republicans get too much air time, then if “society” decides to silence the Republicans for, say, three hours a day, and give exclusive air time to Democrats, then this would not be a deprivation of liberty, because there was really no liberty to begin with.

There are two things, at least, wrong with Sunstein’s argument. First, it is simply not true that rights depend inherently on the law. This is Sunstein’s view of property—and I and others have criticized it heavily without getting any reply from Sunstein—as well as of freedom of speech. For him, there is no philosophical difference between a law that prohibits you from confiscating the goods of a person who expresses a viewpoint you disagree with, and a law that says that you are required to hand over your earnings to someone you disagree with. Both, he would say, are simply laws facilitating speech, and therefore they create the right to free speech. We could extend this argument further: there is no essential philosophical difference between a law prohibiting slavery and a law requiring slavery: both are just different schemes of rights created by different laws, as “society” deems fit. By what criteria is “society” to make that judgment? Sunstein doesn’t tell us, and the fact that he believes there is no such thing as an unregulated state suggests that there is really no way to make that determination at all. There is no state of nature, so there is no way to judge the rightness and wrongness of political action from the outset; our consciousness is determined by the society around us, so there is no “natural” way to judge the rightness or wrongness of a law. If that’s the case, then, we base these preferences on whim, or emotional impulse, or something like that.

According to Sunstein’s argument—if not according to Sunstein himself—if “society” decides to reduce all black people to slavery by changing the legal structure on which their so-called “freedom” depends, it may do so, and that doesn’t deprive anyone of freedom, because there was no freedom to begin with; as Sunstein puts it, “ [The] private or voluntary private sphere...was actually itself a creation of law and hardly purely voluntary.” Democracy And The Problem of Free Speech 30 (1993). So on what grounds is a person to object? Surely he can’t say “No, that would deprive them of their freedom, and that’s wrong!” And he couldn’t say “but a person has the right to his own freedom, valid against oppression by the majority,” because Sunstein “seek[s] to defend…a conception of freedom, associated with the deliberative conception of democracy, and oppose it to a conception that sees consumption choices by individuals as the very embodiment of freedom....” In other words, freedom is what happens when the majority votes on your rights—not what happens when you are by yourself, doing what you want. So our hypothetical abolitionist would be forced to try to convince “society” not to institute slavery—would have to sell them this “constitutive commitment”—on the basis of some a-logical personal preference; mere personal taste.

Now you can see why I began my criticism of Sunstein with the passage from Locke—that for Sunstein, all government is absolute monarchy because no man is born free. He “distinguish[es] between two conceptions of sovereignty. The first involves consumer sovereignty; the second involves political sovereignty. The first ideal underlies enthusiasm for ‘the Daily Me.’ The second ideal underlies the democratic challenge to this vision, on the ground that it is likely to undermine both self-government and freedom, properly conceived.” That is to say, individualism is a threat to collective government, which, he says, is the “proper conception” of freedom. The individual really has no standing against this “proper conception” of freedom, because the fundamental issue is what the collective decides. All government is absolute “democratic” tyranny.

In the final analysis, Sunstein’s anti-individualism leads him into a form of “democracy” absolutely alien to American institutions. According to our framing documents, the right of the people to vote on stuff is a derived principle, not a fundamental one. Individual freedom is the fundamental principle. Because all people are free to start with—yes, and unregulated—they can decide to create a government to protect that freedom from interference. They decide that this government may run democratically because this will prevent the government itself from getting out of hand and undermining its reason for being. They do not decide to create a government in order to “give” them rights. (If that were the case, where would they get the right to do that, before government is there?) As Abraham Lincoln said of Stephen Douglas, Sunstein is using the sort of argument that would convince you that a horse chestnut is the same as a chestnut horse. Your freedom depends on your submission to the rule of the government? While in most cases it is a silly exaggeration to liken a person’s work to the awful doctrines of Hitler or Stalin, Liberty Corner is actually not far from right in doing so with Cass Sunstein, a polite apologist for slavery.

Coulda been

One other interesting thing Varley said: during the years he was working in Hollywood, surrounding the production of Millennium, he was offered several screenwriting opportunities, including Star Trek III, which he turned down because he doesn’t like Star Trek. Can you imagine, a Varley Star Trek movie?

On the Sunstein side of the street

Well, Prof. Sunstein left without responding substantively to our criticisms, unfortunately.

Before going, however, he said that his “constitutive commitments” are “commitments in the sense that they’re taken (politically, that is) to be binding, and not to be subject to change with the political winds,” and that they are “‘constitutive’ in the sense that they help define, and hence constitute, the nation’s self-understandings.”

My example of a “constitutive commitment” was Jim Crow, and I think Prof. Sunstein’s comments here show that I’m right. I think Orville Faubus or George Wallace would have said that segregation was “binding and not subject to change with the political winds,” and would certainly have seen it as “constituting their self understanding.” (Remember “Segregation now, segregation tomorrow and segregation forever”?)

Now, perhaps Prof. Sunstein would say that segregation was a “constitutive commitment,” since he doesn’t claim that these “commitments” are always good things—just that they’re something stronger than a particular policy. (Really, couldn’t he have just used the term “principle” and saved the syllables?) But the reason that I use this example is because reveals the problem with governing on the basis of such “commitments.” First, they are (Sunstein admitted) not law. So when they are explicitly contrary to law, they reduce the society that follows them to lawlessness. Second they are extremely difficult to eradicate when they are unjust. And third—aha, you see it, don’t you—third, they can be unjust, which means that principles of justice must precede such “commitments.” And if that is the case, then there must be a standard of justice by which we can determine whether political commitments are right or wrong. Yet that is precisely what Sunstein denies throughout his work; he insists that there is no such thing as a neutral state by which we can determine the rightness or wrongness of innovations.

One final note—I’m not sure whether Prof. Sunstein agrees with Oliver Wendell Holmes’ senseless statement that a Constitution is written for people of fundamentally differing values, but I would assume he does, since heaven knows he’s no fan of Lochner. If, indeed, he does, how does he square this with his notion of “constitutive commitments,” let alone with the idea that such commitments might be unjust? As is true of Holmes, so it is true of Sunstein—his legal theory is reduced to rubble because he builds it on a faulty foundation of moral relativism—which in practical politics means, the rule of the strongest party.

John Varley

It was a delight meeting John Varley in San Francisco today. He spoke about his forthcoming collection of short stories, as well as some other projects he’s working on: a sequel to Red Thunder, of which he says only about 100 pages is done, and a story he’s calling Phuzzy, which he said was “about time travel and a baby mammoth.” I asked about progress on Irontown Blues, the projected final installment of his “metal series,” which began with Steel Beach, (which I consider his finest novel), and continued with Golden Globe (which won the Prometheus Award for best libertarian science fiction novel). He said he has still only finished the first chapter, and has it sitting waiting for further inspiration.

He said something that interested me. “I almost never read science fiction,” he said. “I find that when I do, either the story is so bad I get depressed, because I think ‘there’s a great idea that’s been used so badly, and now I can’t do it.’ Or it’s so good, that I get depressed, because I think there’s no way I could write that well. But recently, I participated in a collection of short stories based on the songs of the folk singer Janis Ian, and I bought the published book and decided to read all the way through it, and there were three stories in there that I really loved. One was by Orson Scott Card, another was by Howard Waldrop, who is a long time friend of mine and is the funniest man I’ve ever met, and the other was by Kage Baker.” Baker was next to him at the table, and was there signing her new book. “Kage Baker is the best writer I’ve read in a long time, and if this is the state of the art of science fiction today, then we’re in very good hands. I went out and bought a bunch of her novels and I love the plots and I love the characters. I can’t say enough good things about her work.” I’d never heard of Baker until this, but with such high praise from a writer I so much admire, I’ll have to check her work out. Her newest book is called Mother Aegypt.

Libertarian Bookworm

I’m off to San Francisco to attend a book signing by my favorite writer, John Varley. So, although it’s sort of cheating, for this weekend’s Libertarian Bookworm, check out my review of his latest novel, Red Thunder.

Hey

What was I supposed to do, tell her no?

tim has a crazy girlfriend

well, hello there. this is tim's girlfriend, erin. i have one thing and only one thing to say... I love Tim.

Helpful government

Only seven hundred? Check out the California handbook on occupational licensing requirements.