Marriage And Civilization

I'm disappointed, but not terribly surprised, with the Supreme Court's decision regarding gay marriage.

This is a political body whose decisions have always had less to do with Constitutional considerations than with the prevailing ideological bias of the Justices.  It is a body which, in various incarnations, has upheld slavery (Dred Scott v. Sandford, 1857:  African Americans cannot be citizens; North Carolina v. Mann, 1830:  slave owners had absolute authority over slaves), segregation (Plessy v. Ferguson, 1896:  "separate but equal" was just fine but dandy), abortion (Roe v. Wade, 1973) and the internment of Japanese-Americans during WWII (Korematsu v. United States, 1944).  This is a body whose first significant act of jurisprudence was to arrogate to itself powers not explicitly authorized in the Constitution (Marbury v. Madison, 1803:  the power of judicial review).  This is a body whose activity has increasingly overstepped the bounds of jurisprudence and trod on legislation (Griswold v. Connecticut, 1965, Roe v. Wade, and many others).

It is also a body that is woefully ignorant of human nature and history.

It is in the nature of government to expand on its power.  It must therefore be in the nature of separate branches of government to expand on their power.  This is why the Constitution was drafted in such a way as to limit the power of each branch, for each to impose checks on the others.

The problem is, as the liberals and anarchists frequently put it, the Constitution is "just a piece of paper."  It has no real power unless We the People adhere to it and insist that our government do the same.  And this is something that We the People have been lax in doing almost from the start, but with increasingly bad results as this era of progressivism has dawned and washed over the nation.  In the wake of the enactment of a permanent income tax, legislators, always preoccupied with reelection, became concerned primarily with voting Treasury largess back to their home districts in pursuit of reelection.  And the people, realizing that the taxpayers could now foot the bill for anything they wanted, happily threw aside their liberties in pursuit of security and ease.

Feedback loops have grown and intensified over the generations, reinforcing these problems, leading today to right where we are now.  Presidents are no longer just Commanders In Chief with the power to propose, sign into law or veto legislation; they are now policymakers by proxy, using their power to appoint Justices to stand in for the legislative power Constitutionally denied to them.

There are a number of approaches to understanding the actions of the Court, but none has the explanatory power of the Attitudinal Model.  One of the political scientists who wrote the book on the model, Jeffrey Segal, was my political science professor back in the early 90s, and the book was one of our course texts.  In it, he and coauthor Harold Spaeth performed an analysis of Court decisions, taking in the biases of the Justices, and found that they could predict to a very good degree of confidence the outcomes of Court cases throughout history.  The more recent edition of the book, The  Supreme Court and the Attitudinal Model Revisited, covers even more history, virtually the entire series of SCOTUS cases, and finds that this expanded data set strengthens their conclusions.  To be sure, the model has its critics, but given its explanatory power, the criticism amounts to little more than quibbling about special cases.  If we regard the ideological attitudes as the primary mechanism driving Court decisions, and allow for group dynamics (face-saving, consensus-building, favor-trading) to play their role in how the Justices work together (and fail to do so), then we can arrive at a very clear, very complete picture of how things happen at Court.  And given that their model accurately predicted the outcome of Bush v. Gore, 2000, their model passes the test of falsifiability and qualifies as a true theory.

Segal and Spaeth offer, early in the book, a comparison between different models of jurisprudence and explain the shortcomings of each with regard to predicting outcomes.  From chapter 2, "Models of Decision Making," page 59:

Akin to equivocation about the First Amendment is the longstanding rule that the Constitution's absolute prohibition on laws impairing the obligation of contract is not to be read literally.  Rather, the Court will uphold such laws, so long as they are reasonable.  "Laws which restrict a party to those gains reasonably to be expected from the contract are not subject to attack under the Contract Clause, notwithstanding that they technically alter an obligation of contract." 

Rights not explicitly found in the Constitution, such as travel and privacy, are currently upheld with the strictest scrutiny.  This is not to say that the justices decided these cases incorrectly.  We only note that if the Court can regularly read rights out of the Constitution that it explicitly contains while simultaneously reading into the Constitution rights that it does not explicitly embrace, then the plain meaning rule fails as an explanation of what the Court has done.  Indeed, not only has no one systematically demonstrated that plain meaning influences the decisions of Supreme Court cases, no proponent has even suggested a falsifiable test for this component of the legal model.

Later in the same chapter, in the discussion on the normative view (page 61), with my own emphasis added:

While Supreme Court justices generally deny that their own opinions go beyond a fair-minded interpretation of the text of the Constitution or the intent of the Framers, elementary common sense establishes the opposite.  In 1905, the Supreme Court declared that New York did not have the right to limit the hours bakers could work.  The case, Lochner v. New York, rested on a right to contract that the Court found implicit in the Fourteenth Amendment's due process clause.  Of course, the amendment says nothing about the right to contract.  Moreover, the liberty guaranteed by the amendment is certainly not absolute.  For these reasons, among others, Lochner received heavy criticism, and thirty-two years later the Court overruled it. 

In 1965, the Court overturned a Connecticut law that prohibited anyone in the state, married or otherwise, from using contraceptives.  The Court's majority opinion, written by Justice Douglas, created a general right to privacy. The decision did not rest on any specific constitutional clause, but instead on the "penumbras and emanations" of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments.  Like the right to contract, the right to privacy can nowhere be found in the Constitution.  Neither, for that matter, can the right to marry or bear children. 

The arguments for and against interpretation of the Constitution bound to the intent of the Framers have dominated legalistic critiques of the Supreme Court in past years.  This partially results because the Court struck down antiabortion laws in forty-six of the fifty states in Roe v. Wade and nearly overruled this decision in Webster V. Reproductive Services.  The Roe opinion, like those in Lochner and Griswold, has only imperceptible ties to the text of the Constitution or the intent of the Framers.

Much of the rest of the book is concerned with the details of how the Attitudinal Model works and in studying specific Court cases in light of this operation.  In the section on Roe v. Wade, the authors make the point, manifest to anyone who has read the Constitution, that the Court's powers are defined by Article III, and that this article empowers the Court to rule only in matters of law, not of rights.  Although progressives frequently point out that the Ninth Amendment declares that not all rights have been enumerated in the Constitution nor are necessarily known to people in any historical epoch, the Ninth does not grant the power of discovering rights to the Court.

The reasoning behind conservatives' accusations of judicial activism, or "legislating from the bench," is pretty straightforward.  The separation of powers is intended to prevent one branch from intruding on the operation of another.  Congress drafts and passes laws.  The Courts rule on whether laws are being violated.  In simpler terms, the legislature creates a legal standard, and the courts uphold that standard.  For the Court to rule on matters of rights is to overstep the limits placed by Article III in a particularly heinous way:  it not only upholds the standards, but also creates them.  Creating those legal standards is an activity we entrust our elected officials with.  The Court's activity is, by design, removed from the democratic process; SCOTUS is the least democratic body (in a representative sense) in the entire government apparatus, at least as spelled out by the Constitution.  (We'll leave aside, for a later time, the vast body of regulatory agencies not spelled out by the Constitution.)

It follows that the Ninth Amendment is intended for Congress, not the Court, to act on.  If a new right is "discovered," then it is incumbent upon Congress to enshrine the right into law, thereby creating the legal standard, which the Court can then uphold.

What this means is that decisions like Griswold, Roe and today's ruling, Obergefell v. Hodges, are inherently unconstitutional.  And, as might be expected, the breakdown of the votes confirms the Attitudinal Model:  the four most liberal Justices sided with swing vote Justice Kennedy, the author of the opinion, and the four most conservative Justices dissented.  Chief Justice Roberts wrote, in one dissent, “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

The National Review was quick to point out that Kennedy's decision on this matter contradicts his previous arguments in U.S. v. Windsor, 2013, in which he argued that marriage is not a matter to be defined by the federal government for the states, but one to be defined by each state for all within each state’s jurisdiction.  His position on the "right to marry" appears situational, depending on whether the issue is the question of existing states' statutes permitting it, or the federal government prohibiting it:  sometimes the states are the highest authority, and sometimes the federal government is.  Here, we can regard "situational" as identical to "attitudinal," because the outcome is the same.  It is similarly no surprise that Justice Kagan, who during her confirmation process, insisted that her liberal bias would play no role in her decisionmaking, aligned here with Kennedy.  (Kennedy is regarded as a "swing vote" by virtue of having voted with both conservative and liberal majorities in previous cases, but a quick look at his Conservapedia profile demonstrates that he sides with liberals one-third again as often as with conservatives, suggesting he tilts about two-thirds to the left.)

What the Obergefell decision "creates" is an untrammeled right for gays to marry each other.  The text of the decision argues that there is a right to marry, and that gays are no less party to this right than straights.

Let's examine this assertion in detail.

First, we need to establish whether there is a fundamental right to marry, for either straights or gays.

There is a long history of precedents that the Court can fall back on in making the case that marriage is a "fundamental right."  The question, then, is whether these precedents are valid.

On the question of the general validity of precedent, Segal and Spaeth offer this (p. 77):

Though precedent, like plain meaning and intent, looks backward, it does not appreciably restrict judicial discretion, for a number of reasons.  First, and most basic, precedents lie on both sides of most every controversy, at least at the appellate level.  If losing litigants at trial did not have authority to support their contentions, no basis for appeal would exist.  Even judges themselves recognize this fact.  Judge Frank M. Coffin of the U. S. Court of Appeals for the First Circuit said:  "Precedent is certainly real and we learn to live with it.  But if precedent clearly governed, a case would never get as far as the Court of Appeals:  the parties would settle."   

That view was echoed by Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit, in Chicago...   

As further evidence that precedents exist to support the contentions of both parties, merely consult any appellate court case containing a dissenting opinion.  This, as well as the majority opinion, will likely contain a substantial number of references to previously decided cases.  Reference to these cases will undoubtedly show that those cited by the majority support its decision, while those specified by the dissent bolster its contrary judgment.  The same can be said for cases without dissent, as any reading of the litigants' briefs will demonstrate.

But this argument won't satisfy those for whom precedent is paramount; those for whom, say the role of Griswold as precedent in Roe makes the difference between a valid decision and an invalid one.  What we need, in addition to doubt cast upon precedent in general, is something specific with which to attack these particular precedents.  And I think I can manage that by delving into the question of what "rights" really are.

Browse any online dictionary and you're likely to see a "right" defined as "a moral or legal entitlement to have or obtain something or to act in a certain way," or variations thereupon.  To get to a properly nuanced meaning, you have to find documentation specific to a political context.  The Stanford Encyclopedia of Philosophy entry on Rights provides perhaps the most nuanced discussion, but it actually confuses the issue in great measure by conflating "rights" with "privileges" throughout, by way of relying on the Hohfeldian definition of "privilege," which is actually more akin to "liberty" (which the article does at least acknowledge):

You have a right to pick up a shell that you find on the beach. This right is a privilege:
A has a privilege to φ if and only if A has no duty not to φ. 

To say that you have a right to pick up the shell is to say that you have no duty not to pick it up. You will not be violating any duty not to pick up the shell should you decide to do so. Similarly your right to sit in an empty seat in the cinema, and your right to paint your bedroom red, are also privileges. Privilege-rights mark out what their bearer has no duty not to do. When a US President invokes “executive privilege” to resist an assertion that he has a duty not to conceal evidence, he is invoking a Hohfeldian privilege. 

Similarly, a license (to drive, to perform surgery, to kill) endows its holder with a privilege to engage in the licensed activity. 

(Some writers on rights have preferred to speak of “liberties” instead of “privileges” (e.g., Steiner 1994, 59–60). Others have given these two terms different definitions (e.g., Thomson 1990, 53–55). To avoid confusion, this entry will always use “privilege” and never “liberty” to refer to the incident defined above.)

The Wiki on Rights defines them, at the outset, as "legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory."  It then goes into some detail delineating the various conceptions of rights at play in politics.

Some of these conceptions are of little use in this specific debate, as in the distinction between "natural" and "legal" rights; the Obergefell decision purports to create a legal right, but in doing so obviously oversteps Constitutional authority, whereas there appears to be no natural right to marriage at all, for reasons we'll get into shortly.  The "claim rights" versus "liberty rights" distinction also seems somewhat moot, since what we are referring to as "gay marriage" isn't actually forcibly prohibited by any state; states are simply refusing to recognize the marriages of people who engage in such marriages.  You have always been "free" to marry in the sense that you could travel to a state where it was legal and have the ceremony performed; but your home state may not have been under any obligation to recognize the result.

The distinction that appears to have the most merit here, and which indeed is at the heart of libertarian (and often conservative) politics is the distinction between negative and positive rights.  

Positive rights are permissions to do things, or entitlements to be done unto. One example of a positive right is the purported "right to welfare." 

Negative rights are permissions not to do things, or entitlements to be left alone. Often the distinction is invoked by libertarians who think of a negative right as an entitlement to non-interference such as a right against being assaulted.

The Wiki on Negative and Positive Rights goes into detail on this distinction, particularly the problem of when these kinds of rights come into conflict.  This problem is actually the central problem that libertarianism seeks to resolve.

Negative rights are obviously the purest form of rights, in that they do not impose an obligation on anybody else, and therefore promote liberty to a greater degree than any other kind.  They also seem to be most consistent with the intent of the Founders, as an examination of their conception of civil rights will demonstrate.  We can often regard rights as falling into two main categories:  property rights and civil rights.  "Property rights" are those rights that give you exclusive claim to your own property.  You can sell, destroy, give, alter, damage, or abandon property as you see fit.  Nobody else can engage in any of those activities, without your permission, without committing a crime.  Property law implicitly acknowledges that property rights are negative rights.

What about civil rights?

The expression "civil rights" is often construed to refer to equality-oriented legislature, mostly enacted in the mid-20th century, intended to bring African American (and other minority group) citizens up to legal and social parity with the white majority.  However, the expression has a deeper and older meaning, rooted (like the concept of negative rights itself) in the Enlightenment-era thinking that informed the Revolutionaries and Framers of the Constitution.  Much debate at the Constitutional Convention centered around whether there was any need to include a Bill of Rights in the Constitution.  Some thought that doing so would create redundancy (as they saw the Constitution itself as a sort of Bill of Rights); others thought it would create uncertainty for future generations by way of unnecessarily limiting the Constitution's protections to rights that were then known and agreed-upon.  The Anti-Federalist faction insisted that a separate Bill was required in order to cleanly establish what liberties government might not infringe upon.  Thomas Jefferson wrote that at least drafting a Bill would allow for protections of such rights as were enumerated:  "Half a loaf is better than no bread."

The underlying debate was, as it is now, the amount of power the federal government should have over our everyday lives.  The drafter of the Constitution's first draft, John Rutledge, argued that the federal government should have limited power, and that the Constitution should explicitly set the boundaries.  Although disagreement as to the limits of power continues to this day, Rutledge's basic premise remains enshrined in the division of powers and in the clause that asserts that all powers not expressly provided for the federal government revert automatically to the states and to the people.  The objections of at least some of the Anti-Federalists were mollified, to at least some degree, by the inclusion of the Ninth Amendment among those listed in the Bill.

The philosophy of the Framers, then (with some dissent, as in the case of Alexander Hamilton), was that the individual citizen should remain sovereign, and that the federal government should only operate within the bounds permitted to it.  This concept is the basis for civil rights:  the sovereignty of the citizen.  "Civil rights" are those rights which protect you from government, and to a lesser degree, from other citizens.  They are the rights that defend your sovereignty.  We'll examine a few in turn to see how this works, bearing in mind two key points:

1.  "Freedom of conscience" isn't specified in any one Amendment, but is rather distributed over various aspects of the First.  This is the freedom you have that prohibits the state from indoctrinating you.

2.  The "right to keep and bear arms" isn't intended solely to provide a person with the means to hunt, protect his property and repel invaders; it is also intended to provide the citizen with a means of resisting government tyranny.  

Your right to free speech, then, protects you as a citizen by protecting you from government abuse in the event that you criticize it, and enables you to participate in the political process by sharing your views with other citizens.  Your right to speak freely exists not because the government, or the market, must provide you with a voice, but because the government cannot legitimately silence you (at least not without first employing due process to the fullest extent).

Your right to worship freely protects you as a citizen by protecting you from forcibly-imposed beliefs.  It exists not because the government, or the market, must provide you with a place of worship and religious practices, but because the government cannot legitimately deprive you of these things.

Your right to keep and bear arms protects you as a citizen by preventing the government from maintaining a total monopoly on the use of force.  This right exists not because the government, or the market, must provide you with weapons, but because the government cannot legitimately disarm you (again, without due process).

Your right to be safe and secure in your home protects you as a citizen by guaranteeing that your home will not become utilized against your will by the military, nor searched without your consent (or duly-procured warrant).  This right exists not because the government, or market, must provide you with a home, but because government cannot legitimately violate your home.

What this all ultimately means is that you are born with your rights.  Indeed, you are conceived with them.  They are "human rights," and as such are your endowment as a human being, not as an American or even a post-natal human.

I believe it is safe to generalize "rights" as "positive rights" on this basis, and to then move on to the question of whether marriage is, or has ever been, a right.

If we define a "right" as a liberty that is yours by default (one that doesn't have to be granted by any authority, but which can still perhaps be forfeited through act of your own), and one that imposes no claim on anybody else, then we can distinguish this from "privilege" by defining the latter as either a liberty that must be granted to you, or one that imposes some obligation on someone else.

Marriage doesn't fall into the first category at all.  It both requires some kind of authorization and imposes an obligation on others.  To understand why, we must now resort to paleoanthropology, and here I must synthesize various writings, notably Guns, Germs and Steel by Jared Diamond, The Moral Animal by Robert Wright, Before the Dawn by Nicholas Wade, and After the Ice by Steven Mithen.

This is the picture that emerges from the study of the rise of civilization from its foraging / pastoralist roots. Prior to the advent of civilization, norms such as private property and formalized marriage were essentially absent, because of the way human groups lived. A group was small (typically < 100 individuals), and everybody knew everybody else. Everybody was in fact related to everybody else. The group was highly mobile, so possessions were minimal. The group moved over a wide range, and didn't defend a fixed territory (but did maintain a roving group territory centered on the group's current location). Hierarchy existed, but it was informal by modern standards (although in most cases, much more rigid and unforgiving of transgression). Nonetheless, there were rules, and people had to abide by them in order to remain in the group. Religion didn't exist in any formal capacity because religion, like trade and government, requires permanent apparatus of the sort that couldn't be carried around in that natural state.  (A sort of proto-religion very likely existed prior to the initial waves of migration out of Africa, about 50,000 years ago, given how universal religion has been among human societies, but here we're concerned with organized religion, which is regarded as dating back to the onset of the Neolithic Revolution, some 11,000 years ago.)

Under those conditions, kinship bonds were sufficient to maintain peace and order within the group with a minimum of hierarchical rigor.  A biological feature known as "kin selection," operating through a mechanism called nepotistic altruism, sufficed to maintain those kinship bonds.  Kin selection works to promote group cohesion by encouraging individuals to share and risk their lives for each other.  If you die by risking your life to save someone else, or by sacrificing too much of your resources in assisting them, then at least some of your genes will survive (in them), and that's enough to maintain the genetic feedback that kept the kinship instinct active.

Humans have an extraordinarily long childhood, because our infants are born in a quasi-altricial state. This is due to the competing demands of an upright posture and childbirth on the female pelvis, a condition unique in the animal kingdom.  In a fission / fusion, sexually-dimorphic animal such as any of the higher primates, the group forages as it moves and the gender groups support each other by sharing resources as needed.  That works in the apes, but as humans moved on to a more carnivorous diet, the male gender group became more oriented on hunting, while the female gender group maintained the gathering lifestyle.  So the fission / fusion arrangement evolved such that the males moved out to hunt during the day, leaving the gatherers and the childbearers to socialize and accomplish their work, and at the end of the day both groups reunited.

The problem was that a woman with a child, or more than one child, could not provide enough material for herself and for her children.  Even borrowing material from other females was problematic if they too were pregnant or had children.  So another mechanism had to be innovated: pair bonding.  To ensure male parental investment, a social structure had to come into existence that encouraged the men to fall in love with the women and take care of them, even at risk to themselves.  (Note that pair bonding is not a common feature of other apes, but is universal among humans.)  Pair bonding worked because the males and females were essentially segregated from each other most of the time, limiting opportunities for infidelity (which would gravely undermine the males' incentive for parental investment).

All this worked fine in the natural state, but faced serious problems once groups began settling down into urbanized settings and developed a new, civilized form of division of labor.  In this setting, the fission / fusion arrangement was quickly eroded, and males and females found themselves mixing much more freely.  Private homes were constructed, and couples, both licit and illicit, could escape prying eyes to engage in reproductive activity.  In order to promote fidelity, a whole new system of stigmas and incentives had to arise.  That is what marriage and religion came into existence to promote.  In all civilizations, marriage came about as a means of not only promoting parental investment, but seeing to the generational transfer of values (thereby maintaining cultural identity over time).  At the same time, the demand for group cohesion intensified, because now people were having to settle onto much smaller group territories among people unrelated to themselves.  Kin selection gave way to "group selection," promoted by reciprocal altruism.  Now it's not just genes that encourage us to do unto others, but cultural affinity.  We regard as "kin" those who are like ourselves culturally, those who are willing to reciprocate in turn at some later time.  Simultaneous with these developments, private property and all the pertinent legal apparatus came into existence, so naturally marriage also incorporated the joint ownership and the inheritance of property.

Religion's role is to promote group cohesion from the bottom up, so to speak.  It creates a society or subsociety, within the context of civilization, in which people come together in common practice.  They all watch each other, all impose stigma, approval, disapproval and taboo on each other, in order to keep the whole engaged in behaviors that are seen as beneficial to the group.  (This imposition of shared norms and values is morality.  A "personal code" is not morality, because it doesn't involve peer pressure.  Nobody else is going to steer you back onto the path if you wander off, and that's why so many people with a "personal morality" are able to simply rationalize their misbehaviors and never return to the straight and narrow.)

At the same time, governments come into existence in order to promote group cohesion from the top down.  Government pressure, unlike peer pressure, is formalized and carries specific penalties for failure to comply.  One reason for this is to codify the rules of the group so that new entrants can be quickly apprised of the culture they're joining.

Civilization has changed a great deal since then, but the requirements for group cohesion and fidelity have not. As long as those requirements remain, marriage, religion and government will have to continue to operate in the same roles that they evolved to fill.  Civilization is inherently less free than the natural state.  Them's the breaks.  The tradeoff is relative stability and vast population growth.  Murder rates and rape rates and violent crime in general are far less frequent in civilization than in the natural state (a fact to which Diamond, and also Steven Pinker, have devoted a great deal of attention).  So in part, what we're trading for, by sacrificing some liberty, is a freedom from violence.

Beyond this, the fact remains that we're largely still adapted to the ancestral environment, and this means our children still require an appropriate set of parents: one from each gender. The absence of fathers from a home is one of the most significant predictors of delinquency, poverty and later tendencies toward violent crime.

This is inescapable.  Two mothers cannot function as a mother and a father.  Two fathers cannot function as a mother and a father.

But I digress.  The salient point here is that marriage evolved to perform a crucial social function, and that it evolved under the oversight of religious authorities.  Religion has always worked to encourage marriage, but it has also always worked to qualify those who would seek to marry.  Marriage has always required qualifications, usually in the form of a willingness to submit to the more rigorous norms of the married caste.  (This qualification would seem to meet the Diamondian definition of selection for docility, a prerequisite for being domesticated, and since it applies here to humans, it would also meet the Ardreyan definition for self-domestication.  If civilization is indeed a system entailing self-domestication of humans, then marriage is one of the most prominent pillars elevating it from the natural state.)

Religions have required their penitents to obey their rules, but also to attend training, be initiated into the mystical aspects of marriage, to seek counseling when things go awry.  There have, in short, always been barriers to entry, and these have helped maintain the integrity of the institution by discouraging dilettantes from entering it.  At the same time, these barriers--as most barriers tend to do--have served as barriers to exit.  Divorce has been frowned upon or prohibited by most religions throughout history.  The point of this is, again, to discourage facile entry to the institution, and also to maintain the structure that results, largely for the sake of the children who may have come into existence since the original forging of the bond.

This point is often lost on progressives who chortle over the "sanctity of marriage" while pointing out that divorce is now at least half as common as marriage itself, and that single mothers are on their way to becoming as common as married couples with children.  They seem to forget that up until the middle third of the 20th century, neither of these trends had become established, and that they are in fact largely the consequence of the liberalization of sexual mores that accompanied (and in some ways preceded) the rise of the counterculture in the 1960s, as well as of the rise of the welfare state (which eradicated the incentives to work hard, save money, and marry, particularly among black households).  These were factors beyond the control of religion, and largely beyond the control of society, taking place initially either at the hands of disaffected subsocieties or at the hands of an increasingly-powerful federal government.

As people increasingly sought sex outside of marriage, religion increasingly lost its ability to impose rules on procreation.  As the government made welfare entitlements increasingly available, families increasingly became broken, or failed from the outset.  What we're left with today is an "anything goes" mindset in which the notion of adhering to rules of conduct in order to engage in procreation is considered quaint, outmoded, even troglodytic.

And this is, I believe, the biggest part of the popular conception of marriage as a "right."  Nonetheless, for the vast majority of humanity, for the vast bulk of our history on this planet, marriage was always conditional, and was never regarded as a right.  Marriage was always a privilege, and even today this remains true.  States license marriage.  Some hasten to point out that a state will automatically issue a license to anyone who requests one.  This does not change the fact that the license is a condition for marriage, and rights do not have conditions.  Marriage is a privilege that is granted, at the very least, via petitioning of the state, and often enough with the additional petitioning of the religious authority.  It follows that not even straights have a right to marry.  They are granted the privilege of marrying by religious authorities that recognize the potential for mixed-gender couples to reproduce, and the state, in seeking to uphold its end of the bargain in promoting marriage, has always followed suit, until fairly recently in history.

So marriage appears to fail one of our two proposed tests:  it is not an unconditional liberty.  Does it impose an obligation on others?  The obvious answer is of course it does.  In addition to your having to seek the permission of your priest / rabbi / whomever, you also have to seek the permission of your intended.  Depending on the subculture you participate in, you're also expected to seek the permission of his / her family, and sometimes of the entire community.

Marriage has never been simply an arrangement between a man and a woman.  It has always also involved the community.  Civilization has a stake in the continuation of the society and in the generational transfer of norms.  This is precisely why governments also license marriage, and why they provide tax breaks and other financial incentives to those considering marriage.  Wedding ceremonies take place before crowds; you are married "in the sight of God and Man," in the words of some service providers.  Even if you choose a small, private ceremony, before a Justice of the Peace instead of a priest, you are still imposing the obligation to provide the service on the person performing the ceremony.  You are certainly imposing the obligation to marry you on the person with whom you're standing in front of that JP.

This touches on another topic I'll go into greater detail on in a later post:  the fact that products and services cannot qualify as rights.  

Suffice for now to point out that if you have a right to marry, then the Justice of the Peace is obligated to perform the ceremony, even if you cannot afford to pay for it.  If you have a right to marry, then the person to whom you're proposing cannot turn you down.  In the purest, most absolute sense of the word "right," if you had a right to marry, you would be born married.

These are the kinds of absurdities that result from a misapplication of the concept of rights.  Furthermore, since the legalization has taken effect well into the careers of many JPs--who may have taken their job years or decades before this became a possibility--it is likely that this will violate the beliefs and personal values of many such people, who will nonetheless be compelled to perform these ceremonies by the state.  Unlike the state's refusal to recognize a marriage, this is a use of force.  This does violate the non-aggression principle.

So, as has been the case numerous times in the past, the Supreme Court is simply out of its depth and is misconstruing the concept of rights.  As Segal and Spaeth have pointed out, when SCOTUS declares a right to exist, it is in fact legislating (a fact that is actually acknowledged, inadvertently perhaps, by many liberals who say things like "Roe v. Wade is the law of the land").  Obergefell v. Hodges is a bad decision because it creates a right, because it misrepresents what "rights" are, and because it prioritizes the nebulous concept of "social justice" over liberty, specifically over liberties already explicitly enumerated in the Bill of Rights (namely, the free practice of religion, which seems to be the most immediately threatened).

This ruling is symptomatic of a much broader problem in which the federal government has been utilized by progressive elements as a stage for redefining privileges as rights.  My objection here is part and parcel of the objection to judicial activism, but applies in particular to the distinction between federal and state governments.  The federal stage is, or should be, reserved for issues of civil rights and property rights.  All other matters fall on the states.  If marriage is not a right--for straights or gays--then questions of marriage and its definition do not belong at the federal level.  If government is to play a role in determining whether these kinds of arrangements can be recognized, then it should be done at a state level, where the democratic process can do its work.  Let the people in each jurisdiction decide whether they are willing to redefine marriage in this way.

If, as I'm concerned about, the advent of widespread gay marriage results in millions of children being raised in same-sex households, then it's entirely possible that long-term unintended consequences of this move could come back to haunt our nation, just as they have with the Sexual Revolution, the welfare state, and various forms of economic regulation.

This is the primary reason I oppose gay marriage.

However, I could be completely wrong about that impact, and I fully acknowledge this.  Simply deducing that fundamentally altering the structure of civilization's most atomic unit--the family--will do harm to society, on the basis that every other fundamental alteration ever put into play by progressive activists has done harm to society, is admittedly facile.  (Until enough children of gay couples have grown to adulthood to provide statistical significance in the study of outcomes, finding examples of unhappy children from such arrangements is just cherry-picking, despite the mountains of evidence that demonstrate that kinship bonds are strongest in biologically-related individuals.)

But this is why states' rights exists.  There is no clearer demarcation around communities of similar values than a state line.  If the people in State A want to vote to change marriage, and the people of State B don't, then the people on both sides of that state line should be able to impose laws that represent their respective moralities, and leave people on the other side of the line alone.  If the children of gay couples grow up to be, on average, no more screwed-up than the children of straight couples or single parents, then my concern will prove to be unfounded, and over time, more and more states will recognize this and perhaps vote in the same change.

However, it is the case with most unintended consequences that they're not manifest within a few years of their initiating event.  In the case of children raised by gay couples, I suspect that the problems won't be obvious until the next generation, when they're raising their own children.

In any event, my opposition doesn't extend beyond my own state.  I have no desire to attempt to convince people in other communities to share my norms, values or opinions.  All I really want is to ensure that, if the state is going to insist on intruding upon matters of tradition that have always (until very recently) been the province of religion, that it do so in a democratic way, rather than through executive order or judicial fiat, and that the moral diversity of the nation be respected by allowing each state to find its own way.

Another solution that I would have been happy with would be to see government get out of the marriage business altogether and allow religions to define it as they see fit.  Oklahoma was already moving in that direction, although there was a certain paradoxical resistance on the party of the gay community.  However, that initiative now appears to be moot.

Two questions remain:  do proponents of gay marriage have legitimate grievances, and it is correct to discriminate against gays in this (or any) regard?

Let's deal with the second question first, as it's more fundamental.  The answer, of course, is yes and no.  No in the sense that nobody should ever, for any reason, be discriminated against in a civil rights context.  We all have the same rights.  We have the right to be born, to participate in the market, to accumulate property, to participate in the political process, to defend ourselves, to pursue our own ideology.  Discrimination, in the context of rights, is absolutely forbidden.  On the other hand, the answer is also Yes in that privilege always discriminates.  There are always rules for membership in any group, whether the group be your nation, your community, your social club, your circle of friends, or your religion.  Marriage, as we have seen, has always been a privilege.  And those authorities who offer marriage to their members have always imposed membership requirements.  Discrimination, in the context of privileges, is mandatory.

And this brings us to the other question.  People in the LGBT community have long complained about their "dignity" and asserted that it's not right to make them feel as though they're second-class citizens.  And I fully agree.  Although I'm not certain there's a civil right to "feel dignity," I can find no obligation this imposes on anybody else, so it would at least appear to meet the qualification of a negative right.  In any event, gays have no less right to enter into contracts, participate in mutual association, and own property in joint than anybody else does.  And after having engaged in debate on the subject for a number of years, I find that these are the real goals of many gay activists.  The sanctity of marriage isn't a major concern; in fact, some have openly admitted that they see marriage as an institution to be destroyed altogether, and that agitating for gay marriage is simply a step in that direction.  (If nothing else, this fuels conservatives' arguments that progressives are simply hell-bent on destroying the pillars of civilization, and at least in this case, I tend to agree.)

I want to be clear on this:  gays should be able to cohabitate, share common property, and enjoy the same legal privileges that straights do, with respect to hospital visitation rights, inheritance of joint property, and so on.  The only reasonable limit I see to this proposition is the tax breaks that government issues to couples as an incentive for raising children.

However, marriage itself isn't required in order to provide these benefits.  Civil unions have been permitted in several states for years, and these allow same-sex couples to operate, legally, under essentially the same status as married couples, without intruding upon the tradition of marriage itself.

Up until yesterday's decision, I regarded civil unions as a much more achievable goal in all 50 states than gay marriage, and urged people to agitate on behalf of this arrangement instead.

Even so, there are activists who bristle at the fact that the label "marriage" would be applied to one arrangement and not the other.  These are the culture warriors who simply see "second class citizen" applied in any case where different labels are applied, even if the outcome is the same.

And to those people, my response is, "I don't particularly care."  You don't have any greater justification in pushing your way into a religious-traditional structure than the state did in the first place.  Government isn't here to make you happy.  It is here to protect rights.  You have no civil right to not be offended (because we do have a civil right to speak freely, and an anti-offense civil right would impose the obligation on everybody to curtail their speech).

That's pretty much my position.  Much has already been said on the unintended consequences of the decision, such as the fact that it justifies the implementation of concealed-carry laws in all states that don't currently have them.  Another very real prospect is the fact that now more people--some 4% of the population, at least--are now eligible for marriage throughout the nation, and these people will now also be eligible for the tax breaks afforded married couples.  If we assume that a significant portion of this population will in fact become married, then it will result in a commensurate reduction in tax revenues.

I'm not sure liberals saw that one coming.  If they did, they will likely have two possible responses ready:  either eliminate those tax breaks altogether, or find a way of increasing the tax burden on everybody else.

One more spectre looms on the horizon:  forcing clergy to provide marriage services outside of their beliefs.  A lawsuit has already been filed in Great Britain to accomplish this, and with that precedent having been established, it may be only a matter of time before it happens here.

Whither then, religious freedom?

Regulation and Deregulation, pt. 5

In order to rationally treat deregulation, we must therefore first examine other examples of deregulation and their consequences.  We’ve touched on examples in Germany and Poland, both of which produced outstanding results.  A more complex foreign example would be the rolling back of democratic socialism in India, which helped end the exceedingly corrupt, monumentally inefficient “permit raj” approach to licensing private industry.  China, too, has instituted market reforms, allowing for some measure of private ownership and investment.  It still maintains a stranglehold over society in a legal / social sense, but the Chinese people are unarguably freer today than they were 30 or even 20 years ago.  And it is no coincidence that China and India are both becoming major economic powerhouses in their respective quarters of Asia.  Regulation and central planning shackled their economies for decades; privatization and deregulation have brought prosperity and increased liberty.  And this is of course precisely what Hayek and Friedman predicted.  As Daniel Yergin recounts in The Commanding Heights, it took a great deal of courage for the social democrats in India to swallow their pride and reverse their position.  Prime Minister Monmohan Singh states, in the PBS video documentary of the book, that it was difficult to admit fault, especially given the reverence that many Indian politicians and bureaucrats felt for their first prime minister, Jawaharlal Nehru, who was the chief architect of the post-colonial economy.  The contrition expressed by the politicians, and the discomfort with which bureaucrats accepted the new rules of the game, comprised part of what Yergin terms “the agony of reform.”  However, once committed to that path, they found it only became easier, because the positive results were so encouraging.  One lesson we can take from this is to expect some chaos in the wake of deregulation; what matters most in any given instance isn’t the short-term pain but the long-term gain.  I would agree that if the latter is of less significant magnitude than the former, then that instance wasn’t worth the effort.  But we are only in a position to make this determination at some much later date, not while we’re still in the throes of that agony (to which an entire third of the PBS video documentary of Commanding Heights is devoted).  Unfortunately, another lesson from India is that corruption, once entrenched, becomes difficult if not impossible to eradicate.  Prevention seems to be more desirable than cure in this regard.

But to drive the point home to my American readers, I’ll focus on examples from our own country, preferably those examples that are recent enough to be within memory or the newspaper archives.  Probably the most well-known such example is that of the airline industry.  Yergin provides a great deal of detail about how the airline industry grew up under the aegis of federal regulation.  In keeping with Robbins’ theory on cartelization, Pan Am benefited substantially from federal regulations, becoming one of a handful of national carriers dominating the industry by preventing newcomers from getting a toehold.  High-tech, low-margin industries present formidable barriers to entry, and those firms that can most rapidly exploit economies of scale become predominant.  Before federal regulations come to bear on any new sector, market entrepreneurs with a profound economy-of-scale advantage can eventually become monopolies; Standard Oil’s history is one example.  Once the sector becomes regulated, the advantage shifts to those firms that can best exploit the regulations.  Firms can leverage any such pre-existing advantage via political patronage; firms that haven’t grown sizeable enough to thusly benefit can appeal to anti-trust sentiment, or to whatever other political expedient presents itself, such as a politician’s favor toward companies in his home state.  Where feedback loops present themselves (as through lobbying and political action), this process—the shift from market capitalism to political capitalism—is reinforced, and it accelerates.  At its culmination, there is no longer a free market (although pretense at such may remain for decades); there is only corporatism.  And this environment does not favor market entrepreneurs; it favors those who can wield the government’s force on their own behalf.  Once political power has been coopted by corporate will, it no longer serves the people.  This is the source of the military-industrial complex and the prison-industrial complex.  At its extreme, this tendency results in fascism.  In moderation, it results merely in loss of freedom of choice.

As previously discussed, during the 1970s, Stagflation held the American economy in an iron grip.  There was no measure available to policymakers, at least in a Keynesian context, that could improve either inflation or unemployment without simultaneously exacerbating the other.  There were economists of the Chicago school arguing that the government’s price controls were the leading cause of inflation, and that competition would prove to be the necessary palliative, but opening up competition would in turn require deregulation, and this was absolute anathema to the Keynesian orthodoxy of the day.  It was simply not given due consideration under the Nixon administration (as demonstrated by his infamous statement “We’re all Keynesians now”).  “What is the effect of regulating the airlines?” asks Chicago economics professor Sam Peltzman in the PBS documentary.  “What is the effect of regulating the trucking industry?  What is the effect of regulating the railroad industry?  Very often it raises prices.  Instead of allowing competition, it suppresses competition.”  Alas, Peltzman was not on Nixon’s staff.

Supreme Court Justice Steven Breyer was not a Chicago economist in the early 1970s; he was a member of the competing, liberal Harvard school.  He supported a liberal Democratic administration, and was an acquaintance of liberal Democratic legislator Ted Kennedy.  Kennedy asked Breyer to head a Senate investigation studying the impact of federal deregulation of the airline industry.  What they found was that the leading firms of 1938—the time at which New Deal-era regulation had been applied to the airline industry—were still the leading firms in 1974.  Competition had had no effect on the dominant carriers, a telltale sign of their having benefited from the regulatory climate.  Members of the Civil Aeronautics Board were called to testify before the Senate panel.  The figures that emerged from testimony were troubling:  approximately 5% of the regulators’ time was spent controlling prices deemed too high, and the remaining 95% of their time was spent controlling prices they deemed too low.  The main thrust of regulatory effort was to ensure that prices remained artificially high.  And of course this was precisely how the leading airlines wanted it.  Contrast this with the “monopolist” practices of Standard Oil, who while dominating the US market, always labored to lower prices.  Monopoly itself doesn’t provide a useful distinction between market and political entrepreneurs; what matters, ultimately, is the presence or absence of the firm’s willingness to coerce the consumer using state force.

Englishman Freddie Laker, owner of the cut-rate airline Laker Airlines, pleaded his case with American federal regulators.  The system appeared, at least to him as an outsider, to be set up deliberately to favor Pan Am.  He was trying to get the market opened up to his firm, Laker Airlines, as well as to other competitors that had been shut out of participation.  The Transportation Department listened to Laker’s complaints, and then ruled that lowering prices (and thereby lowering barriers to third-party entry) would hurt Pan Am.  “The cause of all this is Panamania,” he replied:  the idea that “everybody should do everything for Pan Am.”  Nonetheless, Laker had patrons in government, such as Cornell economist Fred Kahn, named chairman of the Civil Aeronautics Board in 1977 by Jimmy Carter.  Kahn championed the idea of a much leaner, weaker regulatory structure.  At the time, the largest division of the Board was the Enforcement Department, which spent its budget by sending hundreds of agents into airports to seek out companies offering discounts…for which the Department fined them.  Because airlines couldn’t compete on the basis of fares, they competed in other ways, such as on the sumptuousness of their in-flight meals.  The Enforcement Department, in turn, issued fines to companies who charged less than the commanded rates for meals.  By the time Kahn was done with the deregulation of the airline industry, the Board was left with essentially no function, and so was decommissioned.  A free-for-all of competition ensued, with dozens of smaller and regional carriers coming into and going out of existence.  Some employees lost jobs, but were often able to rejoin other carriers (or, eventually, the same carrier), albeit sometimes at reduced salary.  This is the kind of course correction, “agony of reform,” that could have been avoided altogether had the market simply been left competitive in the first place.  But it’s to be expected that progressives will blame the job loss on deregulation, rather than on inefficiency in the market.  It falls to you, the reader, to determine on the basis of the above evidence whether the blame for job loss falls to the market or to government.  The net result for consumers today is unquestionably more competition.  Firms compete on the basis of fares and amenities, and prices have on average gone down considerably.  As happened during the era of steamboat travel, the price war in air travel has brought about an age of world travel, opening up flight to the masses.  Many competitors have lost, but the consumer has nonetheless won.

And while this is a major triumph for Chicago-school economics and conservative policymakers, it must not be forgotten that this triumph comes at the hands of liberal Democrats.  Jimmy Carter and Ted Kennedy are among the nation’s foremost practitioners of deregulatory economic improvement, giving the lie to Democratic claims that such measures are, always and everywhere, a bad idea for the economy and for the consumer.  Similar stories played out in the trucking and railroad industries.  While these are but a tiny subset of all economic activity, they in sum represent the bulk of the transport sector, and their mutual deregulation has arguably contributed to the massive, rapid growth of technology that began in the late 70s and continues to this day.  It could reasonably be argued, in other words, that the personal computer revolution and the rise of the Internet have, among their roots, the deregulation of domestic transportation.  Even the Wiki on Reaganomics acknowledges:

One controversial issue concerning Reaganomics is the issue of how much of deregulation which took place during the 1980s the Reagan administration was responsible for.  Economists Raghuram Rajan and Luigi Zingales point out that many of the major deregulation efforts had either taken place or begun before Reagan (note the deregulation of airlines and trucking under Carter, and the beginning of deregulatory reform in railroads, telephones, natural gas, and banking).

Carter and Reagan, therefore, both deserve credit for the win, but the theory itself long predated both.  Nonetheless, the results were positive, meaning that if we ignore the name and party of the individual occupying the Oval Office and focus just on the policies, the policies are fully-vindicated.  Carter was a successful deregulator, but he was unsuccessful at stimulating the economy or taming inflation, and that was because although he could be talked into deregulation of specific sectors, he could not abandon the strict Keynesian assumptions of the Democratic Party with respect to unemployment.

The agony of reform nonetheless rears its head in most if not all cases of deregulation.  History presents us with one clear maxim:  there are unintended consequences for all rapid changes.  Another Democrat, William Clinton, oversaw the Executive branch during most of the 1990s, replacing President George H. W. Bush largely on the basis of the latter’s inability to keep his “no new taxes” campaign pledge.  Bush had achieved the Oval Office on the strength of the performance of his direct predecessor, Ronald Reagan.  Reagan is of course the Right’s shining example of deregulatory, supply-side economics.  The 1980s were one long economic expansion, providing some of the best proof available of the validity of the Austrian (and related) schools.  At the end of that decade, another phenomenal proof was revealed:  the ability of capitalist prosperity to outcompete economic planning.  The Soviet Union, drawn increasingly into competition with the West on such fronts as defense spending and outer space, found itself unable to sustain its competitive participation while still operating a functional economy.  At its height, the USSR spent more than 60% of its GDP on national defense, an entirely unsustainable amount (and one that the government carefully hid from outsiders as well as its own people); in the early 80s, it froze domestic industrial output at 1980 levels, in effect creating a deliberate recession.  The constant focus on defense spending and economic planning left little in the way of economic resources to grow the economy or promote social development.  Slow economic growth was compounded by a burgeoning trade deficit with the West, itself the result of the inherent superiority of capitalism.  And the Reagan Doctrine—the supplying of arms to governments fighting against Soviet-backed revolutionaries or invaders—was compelling the Soviets to expend ever-greater amounts of men and materiel in their various military entanglements.

After the United States announced its Strategic Defense Initiative, the Soviets had little choice but to counter with an initiative of their own…one which eventually broke the national budget.  And although the SDI program turned out to be practically infeasible, given the state of technology at the time, it met its objective by effectively ending the Soviet nuclear threat.  Faced with the inability to keep government operating without funds, and with communism under increasing attack elsewhere in the Soviet bloc, General Secretary (and later President) Mikhail Gorbachev began instituting substantial economic and social reforms in the late 80s, culminating with the adoption of a fully-democratic political system supporting an unplanned market economy.  The result for the United States was an end to the Cold War, and a commensurate reduction in the need for expanding defense spending.  Through the first of his two terms, Reagan had adhered largely to the campaign platform of reduced taxes and lowered government spending.  And this combination, in concert with Volcker’s contractionary monetary policy, helped tame inflation and bring about what was at the time the longest peacetime expansion in the nation’s history.  Democratic critics are fond of pointing out that although Reagan met many of his policy objectives during that first term, he nonetheless expanded government spending and raised taxes during the second term.  If we regard each term as a predominantly one-issue administration (taming the economy and ending the Cold War, respectively), then the pattern is explicable in terms of changing policy objectives.  Trickle-down economics worked, and once it was working, the President’s emphasis shifted toward defense.

Another factor to consider is the degree of support Reagan had from the predominantly Democratic congress.  They were willing to work with him on some measures, but the longer he was in office, the greater the resistance they offered.  By the start of his second term, he could no longer count on any great degree of cooperation.  As was the case with the Mellon’s Treasury policies, the pendulum swung against him, and he ceased making substantial economic progress.  The difference between his degree of success during his first term and that of his second comes down largely to the differing degree of indulgence granted him by a hostile Congress.

That was not a problem faced by Clinton.  Congress was still heavily Democratic during his first term, and he didn’t face the legislative resistance that Reagan faced.  He was generally more successful overall in getting his policies enacted, a fact which Democrats point to with deserved pride.  One fact that goes overlooked by Democrats is that most of his policies were far more in line with Reagan’s supply-side economic theory than with Roosevelt’s or Carter’s demand-side policies.  As previously discussed, Reagan’s tenure can be logically divided into two terms, each with a different focus (and therefore each with a different degree of observance of fiscal restraint).  Early in his presidency, Reagan cut taxes and cut government spending; later, he raised taxes and increased spending.  Clinton’s tenure offers a neat mirror-image of this approach.  During his first term, he raised taxes and increased spending.  Later, he lowered taxes and cut spending, continuing the former’s deregulatory streak.  The boom of the 1990s is frequently attributed to this tax cut and decrease in government spending.  It in fact is but another example of the success of the Mellon Doctrine.  And this is attested to by Clinton’s own policy wonks.  In February 1995, 18 months after the tax increase took effect, his Office of Management and Budget issued projections of deficits for the next five years, assuming the continuation of existing policies.  As shown in the following graph, the projection was an admission of defeat; the tax hike would not stave off deficit spending, and in fact deficits would increase well beyond $200 billion over the next five years.

(Source:  Office of Management and Budget and Congressional Budget Office data, cited in Forbes article '93 Clinton Tax Hike Didn't Lead To Budget Surpluses Of Late '90s.)

So why didn’t government spending exceed that limit during his tenure?  In part, because Clinton was faced by an adversarial Republican legislature during his second term, and this imposed strict fiscal restraint on the government.  Indeed, spending increased by only about 2.9% over the next four years.  This encouraged the institution of the 1997 tax cut, with the result that the economy expanded considerably.  In this result, Clinton’s presidency extended and continued Reagan’s results. 

However, Clinton was a Democrat, and as such was less committed to the idea of smaller government than had been Reagan.  While he was in office, Clinton oversaw some substantial increases to the size of government.  Regulatory structures such as FMLA, OSHA and NAFTA were either enacted or greatly expanded, with the net result that employers began seeking external labor markets.  In effect, it had become much more expensive and complicated to hire American workers, so corporations sought offshore labor.  While the offshoring phenomenon is decades old in the manufacturing sector, it had never touched on white-collar work before.  An interesting collusion of competing principles resulted:  India, having substantially deregulated and privatized its economy, and with a growing cultural emphasis on technology and education, suddenly became attractive as a vast pool of cheap labor.  It is now a growing economic powerhouse in the tech sector; a substantial majority of the world’s programming firms reside there today.  And while this is no doubt a considerable boon to the developing world, it presents another of those market-tilting distortions to those of us living in the United States who earn a living by programming computers.  Now we have to compete on the basis of wages against application developers who can survive at a much lower cost of living than we can.  The unintended consequences of regulation, once again, have unleveled the playing field in a fundamental way.  Clinton, as much as any one technology firm, is responsible for the trend in offshoring.  As such, he bears some responsibility for the intractability of the 2008 recession, by diminishing the number of domestic programming jobs available to unemployed programmers.

So Clinton, like Carter, produced wins and losses, achieving an overall mixed record.  Of all the presidents so far discussed, only Reagan appears to come off without any major losses.  Although he failed to accomplish all of his policy objectives, resulting in the eventual increase in marginal tax rates and the accompanying increase in government spending, there is at least no mismanaged recession, nor any major damage to any economic sector on the order of, say, offshoring.  Volcker’s contractionary Fed induced a sharp recession that the market nonetheless quickly recovered from; had the tax cuts and spending cuts not already been in place, that recession might have proven much more extensive and severe.

There is another example I can bring to bear here:  Vladimir Putin’s tax reforms.  When he took over the office of President of Russia, market reforms were well underway, and private industry was starting to take the reins of the commanding heights.  Like Reagan, he is often credited with successes that were already underway before he stepped into them.  And he actually halted and reversed some reforms, starting a wave of business nationalizations while satisfying personal agendas against politically-irritating entrepreneurs.  But among the first achievements of his tenure was to restore pension payments to retirees, and shortly thereafter got ordinary workers’ payrolls rolling again.  The biggest problem he initially faced was the budget shortfall.  The Russian tax structure was a horrific revenant of the Soviet era, with labyrinthine regulations, punitive marginal tax rates and an exceedingly bloated, inefficient bureaucracy.  Tax evasion was, quite simply, the norm all across Russia, and the sheer number of creaky bureaucratic moving parts made enforcement all but impossible.  The Russian tax agency recorded essentially $0 in collections the year he took over.  Putin’s reforms slashed the size and budget of the agency, dramatically reduced marginal tax rates, and lowered the incentive to evade payment.  And, as had taken place under Andrew Mellon in the United States, collections reflected the reasonability of the new rates, and revenue burgeoned overnight.

The writing team of Daniel Yergin and Joseph Stanislaw wrote in detail of the differences in technique and results between the American and European regulatory models.  Whereas many western nations adopted a welfare state and a socialistic, nationalizing governance structure, the United States opted to maintain industry and government in separate sandboxes, albeit connected via regulation.  Because the models are so different, it’s not possible to obtain one-to-one comparisons between features and results.  But it is possible to evaluate each model’s successes and failures in the context of the predictions of Keynesian and Austrian economic theories.  The Berlin of 1947, the Poland of 1989, and the Russia of 1991 are not the United States of the Stagflation era.  But in each of these cases, some form of Chicago-style shock therapy was employed, and in each case, the economy markedly improved immediately.  There is no feature of Keynesianism, short of sheer bloody coincidence, that can account for this, yet it is predicted exactly by the Austrian and Chicago schools’ theories.  Contrary to the ever-lovin claims of Paul Krugman, there is substantial empirical evidence in favor of their views, and against the view of his hero.  The most convincing argument he’s managed to bring to bear on the success of Reaganomics is that the economy had been in decline for so long that it was due for an expansive correction.  (This disregards the rather phenomenal coincidence of Britain’s Margaret Thatcher enjoying similar success after having employed similar methods.)  Meanwhile, the successes of airline / trucking / railroad deregulation, and the connection between Clinton-era regulations and tech offshoring, appear to have pretty much sealed Keynes’ coffin…it might perhaps be hoped, with Krugman trapped inside, lips extended in perpetual gesture of kissing the fossilized posterior of his progenitor. 

So far, the results of regulation appear vastly underwhelming.  We will hear frequently that abuses or “market failures” have resulted from this act of deregulation or another; we will be told that every natural disaster to occur in the next decade is the fault of corporations who’ve bought government and successfully sought deregulation of their sectors.  I myself have heard that the BP Deepwater Horizon disaster was the result of deregulation of the oil industry.  Deregulation of the single most heavily regulated sector in our entire economy (and not coincidentally, people, the sector with the heaviest representation in the Washington lobby) caused the disaster!  Never mind that the National Committee report of the EPA’s findings in the incident argue exactly the opposite:  that it was regulatory failure—the ineffectiveness of 13 existing regulations—that allowed the incident to take place.  The report specifically blames the ineffectiveness of the EPA and the failure of its regulations to keep pace with technological changes in the energy sector.  It also makes no mention of any deliberate malfeasance on the part of the corporation.  The disaster took place as the perfectly innocent, yet perfectly lethal and destructive, confluence of many individual acts of negligence and unconcern, not as the result of any deliberate attempt to improve the bottom line at the expense of safety.  Among the Key Commission Findings:  “The Commission found that the Deepwater Horizon disaster was foreseeable and preventable.  Errors and misjudgments by three major oil drilling companies—BP, Halliburton, and Transocean—played key roles in the disaster.  Government regulation was ineffective, and failed to keep pace with technology advancements in offshore drilling.”

To be forewarned is to be forearmed.  If you know that the BP disaster was brought about not by deregulation, but by regulatory failure, you can avoid falling prey to the same assumptions that pathological ideologues cannot avoid.  If you know that the Great Depression was caused by government intervention, that the Obama stimulus plan is causing the Great Recession to drag on endlessly, and that the Reagan tax cuts provoked the precipitous expansion of the 80s, then you are heir to enough reason to be able to shrug off the progressives’ propaganda.  But in that case, you also undoubtedly harbor enough reason to be able to grant the occasional exception.  There are some few regulatory efforts that appear to achieve their desired ends without inflicting substantial damage on the economy.  The best measures are those that rely on the market itself, of course; this keeps spurious signals out of the feedback loops, and permits the market a modicum of self-regulation.  The category of regulation to which this model best applies is environmental regulation.  The technique which has produced the best results so far is “cap and trade.”

To understand how this works, we must first familiarize ourselves with externalities.  An externality is an activity performed by one actor that impacts one or more other actors outside of the market’s own mechanisms.  Pollution is an example; it has no economic value, and is essentially a byproduct of all economic activity (including that of ordinary individual households), but its accumulation poses hazards to everybody.  The cap-and-trade system was set up in order to treat this kind of externality as part of the market, and therefore as subject to economic activity.  In the case of atmospheric pollutants that contribute to acid rain, polluters are permitted to trade portions of the maximum allowable level of a pollutant.  The maximum, or “cap,” is the limit mandated by the regulatory body (in this case, the EPA); firms whose activity results in their exceeding their portion of the limit are compelled to purchase additional portions from other firms whose activity puts them below their own limits.  This brings pollution into the fold, so to speak, allowing market mechanisms to allocate it in much the same manner as those same mechanisms allocate resources.  Although there is still enforcement envolved—the “cap”—it isn’t more intrusive or oppressive than ordinary laws against pollution, which impact private citizens to the same degree.  The upshot is that firms are generally willing to work within this framework, as it permits a modicum of normal market activity.  And it has proven effective:  cap-and-trade regulation of nitrous and sulfurous oxide emissions from factories has reduced acid rain and brought about a return to health in many previously-ravaged ecosystems, while not excessively impacting either the operation or the profitability of the regulated firms.

So with all this in mind, we can now revisit the question of whether electrical deregulation has on balance proven to be beneficial or harmful to consumers.  As before, the answer is necessarily “time will tell,” but with the given that the agony of reform is temporary, and that market mechanisms have a way of correcting problems over time.  And, once aware of the pros and cons of regulation and deregulation in any specific context, consumers do still have the option of reinstating regulations, as Virginia has done in the electrical market.  And this brings me to the last of my caveats and warnings about the impact of regulation:  the fact that most regulation is written by unelected officials, behind closed doors, away from public oversight.  The democratic process is supposed to require constant interplay between the representatives and their constituencies.  As I’ve previously pointed out, our modern lobbying structure circumvents this interplay, shifting the relationship from constituency to lobbyist.  A more sinister aspect of this syndrome is the fact that the people we elect to craft our regulation don’t actually do the crafting.  Much regulation is written by organizations such as SEIU, the Service Employees International Union, who had a major hand in the drafting of the Obama health care bill.  This may be a perfectly acceptable situation to many liberals, who trust government implicitly.  It is absolutely horrifying to conservatives and libertarians and pretty much everyone else who regards his vote as going to a specific individual and not to entities who neither campaigned for votes nor face voter repercussions.  The same people who regard the encroachment of corporatism should find this situation onerous and threatening, but they are incredibly accepting of it, considering how unaccepting they are of corporate malfeasance.  There is an incredible disconnect here, one that I’m at pains to explain.  The best I can offer is that people seem remarkably susceptible to propaganda that fits into their worldview.

Still, while electrical rates have risen more than 21% across the board, rates in deregulated states have risen an additional 15% on average.  Electrical deregulation may well prove to be unsustainable and a bad idea for the consumer.  If this turns out to be the case, however, it does not bode ill for deregulation in general; it only demonstrates that sectors involving natural monopolies should remain regulated.  And this is a point that Milton Friedman, et al, have made in their own arguments…and one that Krugman seems perpetually poised to ignore utterly.

Choose your ideological authorities with care.

References

Wiki on Standard Oil

Wiki on John Rockefeller

Wiki on World War I

Wiki on Augusto Pinochet

Wiki on Milton Friedman

Wiki on the Chicago Boys

Wiki on Jeffrey Sachs

Wiki on Ludwig Erhard

Wiki on Murray Rothbard

Wiki on Monmohan Singh

Wiki on the Permit Raj

Wiki on the German Economic Miracle

Wiki on the Great Depression

Wiki on New Economic Theory

Wiki on Stagflation

Wiki on the Business Cycle

Wiki on Kondratiev Wave

Wiki on Reaganomics

Milton Friedman video:  The Robber Baron Myth

Burton W. Folsom book:  The Myth of the Robber Barons

Burton W. Folsom book:  New Deal or Raw Deal?

Daniel Yergin book:  The Quest:  Energy, Security, and the Remaking of the Modern World

Daniel Yergin book:  The Prize:  The Epic Quest for Oil, Money & Power

Daniel Yergin / Joseph Stanislaw book:  The Commanding Heights:  The Battle for the World’s Economy

Lionel Robbins book:  The Great Depression

Lionel Robbins book:  A History of Economic Thought

Eric Rauchway book:  The Great Depression and the New Deal:  A Very Short Introduction

Murray N. Rothbard book:  America’s Great Depression

Milton Friedman video (on Phil Donahue show), discussing minimum wage

Milton Friedman video:  Real productivity vs. government employment

Meet the Press interview with Ron Paul on his budget proposal

Paul Krugman essay on Milton Friedman:  “Who Was Milton Friedman?”

Objective Standard review of New Deal or Raw Deal?

Mises.org review of New Deal or Raw Deal?

Greg Mankiw weblog article:  “Spending and tax multipliers”

Amelia Hamilton article:  “How government regulation destroys competition and creates monopolies”

Charles W. Upton lecture (Kent State):  “What Causes Monopolies”

Houston Chronicle weblog (“Fuel Fix”) entry on electrical buyback:  “Solar panels become cash cow for some Texans”

President William Clinton’s Office of Management and Budgetprojections for 1996 deficits 

United States House of Representatives Joint EconomicCommittee report on the Reagan Tax Cuts

gCaptain Maritime & Offshore reprint of NationalCommission’s summary of the National Committee Report on the BP DeepwaterHorizon Oil Spill

National Committee Report on the BP Deepwater Horizon Oil Spill