Category Archives: Political Philosophy/Theory

Moralism, Nationalism, and Identity Politics

In a previous post, I began discussing moralism, which I take to be a commitment to the view that some acts must be forbidden, socially or legally, because they are (a) judged wrong by the general populace, (b) in some way opposed to the continued survival of the community qua a somehow unified group (I had said “general populace,” but this is clearer), or (c) simply immoral even if no one is hurt by them.

I have been seeing, once again, posts on social media about the loss of national identity (and praise for a few places that seem to still have such). My response to such posts is always the same: why would anyone value a national identity? That is the same response I have to those who seem to identify with a political party, ideology, racial or cultural groups, groups with the same sexual preferences, etc. I always wonder why anyone thinks that a group has any independent substantive value rather than just being a set of people that happen to share something in common.

Identifying with a group could just be recognizing that one has something in common with others (those also in the group), but it—or “taking a group identity”—has become something more. It is, we might say, an entryway into valuing that group for its own sake—that is, it’s the starting point to thinking of the group as having some value above and beyond the value of the individuals in the group. Nationalism is no exception—the whole point (it seems to me) is to encourage people to think of the nation as an entity of moral value all its own. Granted, that value is meant to be somehow good for the people within the nation, but how that works is mysterious. (But not to the point here.)

What do those who bemoan a loss of national identity (or who seek to revive such) want? They want to convince others to live as they think all ought to live. Or at least how all who live here ought to live. This looks like the first sort of moralism—they believe those who act differently are somehow acting wrongly. But what is it that they do wrong? So far as I can tell, it is nothing more than the refusal to live as the advocates of nationalism want.

Why are advocates of nationalism so concerned about people acting differently? This is where the second sort of moralism comes back in: what nationalists want is to be assured their group will survive; they thus fear anyone not going along with them as it means their national group does not have the allegiance of everyone and is thus threatened. It is the survival of the group that matters, after all, not the survival of the individuals within the group.

To be clear, so far as I can tell, nationalism is no different from any other form of political identity. Each group wants all of its members to “fall in” and be what the group is self-portrayed as. Those who act differently or in any way challenge the supposed identity of the whole are a problem to be dealt with, perhaps excised from the group, excommunicated, shunned, cancelled, or deported; perhaps (the topic for a future post) jailed or killed. Here I note only that I prefer the liberal ideal: I like that we live in a society with people who have different backgrounds, beliefs, religions, heritages, skill sets, etc. 1000 flowers blooming is far more attractive than 1000 clones.

Is it Useless or Wrong for Libertarians to Vote For Pro-Liberty Candidates?

Some libertarians believe that voting is wrong because it makes you complicit in the state’s oppression. This argument goes back to 19th century abolitionists, most notably William Garrison and Wendell Phillips, who argued that even voting for an abolitionist, anti-war candidate makes you complicit in the oppression of the state. This is because all government officials have to take an oath to uphold the pro-slavery Constitution, and judges have to enforce its pro-slavery provisions, such as the one that “required states to return runaway slaves to their master (Art. 4, sec. 2)”. An oath, according to Phillips,  is a “contract between him [the official] and the whole nation.” Even if the official’s aim in seeking office is to ultimately bring about a Constitutional amendment to end slavery, he has to support the Constitution till he succeeds (Garrison). So if you vote for a candidate, you will be partly responsible for his pro-slavery oath and actions. “What one does by his agent he does himself” (Phillips).

Garrison’s and Phillips’ arguments work, if they do, only if they are right that the Constitution is pro-slavery. But if it is anti-slavery, as Lysander Spooner and Frederick Douglass argued, and your candidate shares their belief, your vote for him does not make him – or you – complicit in supporting oppression.

However, even if the Constitution is pro-slavery, and your candidate believes that it is, he also knows that the Constitution allows speech critical of slavery, and thus of the Constitution. The Constitution also provides a process for amending it, and allows people to run for office in order to amend it. In other words, even if the Constitution is pro-slavery, it contains within itself the seeds of its own reform. So fidelity to the Constitution by someone committed to doing his part in ending slavery does not entail support for its pro-slavery provisions. Rather, it entails a rejection of these provisions. Hence, if this is why an anti-slavery candidate runs for office, he is not complicit in the oppression of the state, and neither is the voter.

We don’t have slavery any longer, but Garrison’s and Phillips’ rejection of electoral politics is still influential. Contemporary libertarians who reject electoral politics sometimes argue that to vote for a candidate, even a pro-liberty candidate, is to participate in the oppression of the state because no candidate is consistently libertarian. So if you vote for such a candidate, you are partly responsible for her oppressive actions. However, if your reason for voting for an imperfectly libertarian candidate is to defeat the anti-liberty candidate and reduce oppression, how can it make you complicit in the former’s oppressive actions? And even if it does, how can allowing the far more anti-liberty candidate to win not make you even more complicit in the perpetuation of oppression?

No doubt the anti-voting libertarian would reply (and I would agree) that there Is a difference between doing x and letting x happen. Letting someone drown when you can easily save her is not morally equivalent to throwing her into a river tied to a rock. But it is, nonetheless, wrong to sit on your hands instead of trying to save her. Likewise, under analogous circumstances, that is, when voting is easy and the pro-liberty candidate has a good chance of winning, I believe not voting for her is mistaken. And if  there’s nothing else you are doing to further your pro-liberty values, your not voting for her is wrong.

My brief in favor of voting might seem naive, since one vote makes no difference to a candidate’s chances of winning in a Presidential election. But not all elections are Presidential and not all “one votes” are truly one. If the race is a local one (county or municipal), and influential libertarians vote and defend voting for a local libertarian candidate, many others will also vote, and the candidate could win. This might also be possible in a state election. In any case, there’s a ‘performative’ contradiction in influential libertarian bloggers telling a readership of hundreds or even thousands that one vote doesn’t make a difference, as though every person’s “one vote” stays in its own corner instead of getting added up to every other person’s “one vote” to make hundreds or thousands of votes for the pro-liberty candidate. If the “one vote” argument were sound, it would apply as well to arguing for libertarian principles in books, blogs, or articles, since no one book, blog, or article makes a difference to people’s understanding of or support for libertarian principles (just think of how many have argued for these principles over the last 350 years, and how few they have persuaded).

In any case, victory at the polls is not the only goal of voting. Strong electoral support for a libertarian candidate even in a Presidential election can bring libertarianism to people’s attention the way blogs, articles, or books do not.

Libertarians are right that most people should not vote because they are ignorant of the issues, or because their views are mistaken, or because they can do more good by using their time for other ends. But they are not right to discourage libertarians from voting for pro-liberty candidates. Insofar as they do this, they play a significant role in the victory of the anti-liberty candidate, and become complicit in his oppression. They are like the non-rescuer who urges other people not to rescue the drowning victim. Libertarians are also wrong to discount the possibility of positive results from an electoral victory. Slavery was ended not by the intellectual and moral groundwork laid by abolitionists alone, but also by the electoral victory and actions of an imperfectly anti-slavery President, Abraham Lincoln.

What Shouldn’t Be Surprising about Democracy

The following is a guest post from John Hasnas of the McDonough School of Business at Georgetown University.


One of the drawbacks of not being a committed supporter of democracy is that one loses the ability to be continually surprised by the discovery of the obvious. Currently, the intelligentsia is shocked to find that significant percentages of the public 1) subscribe to “conspiracy theories”–the current euphemism for beliefs held without supporting evidence and in the face of strong disconfirming evidence–and 2) don’t seem committed to the preservation of democratic institutions. But to those of us who view democracy dispassionately rather than as true believers, there is nothing surprising about this at all. It is precisely what we would expect. 

1) Under democracy, the person or policy that receives the most support prevails. But majority support has no necessary connection to the facts of reality. For example, a majority that wanted to stop illegal immigration could vote for a politician who promises to build a wall across the southern border of the United States, even though, as a matter of fact, this would have almost no effect on illegal immigration. Or a majority that wanted to help the poorest members of society could vote to raise the minimum wage to $15 per hour, even though this would reduce employment for the poorest unskilled workers.

When we make decisions for ourselves, most of us pay close attention to the facts of reality. We look both ways before we cross the street. When we drive, we stop at red lights and refrain from driving 90 miles an hour through residential streets. We consider how much money we make in deciding how much money to spend. We comparison shop, consider the prospects for return before making investments, perform regular maintenance on our cars and homes, and purchase automobile, life, health, and homeowner’s insurance. We don’t just walk up and take other people’s stuff. 

We do this because each of us would personally suffer the consequences of ignoring the facts of reality. Failure to look both ways means that we might be hit by a car. Reckless driving means that we might crash. Profligate spending means that we might go bankrupt. Failure to comparison shop, invest carefully, perform necessary maintenance, and purchase insurance means that we may suffer financial losses. Failure to observe property rights means that we may be punched in the nose. 

Things are different when we vote. Because voting one way rather than another imposes no direct consequences on us personally, there is little reason to consider the way the world actually works. Thus, we are free to indulge our imagination and vote for the way we want the world to be. We can imagine that a big, beautiful wall across the southern border will stop illegal immigration, so we vote for the politician who promises to build it and have Mexico pay for it. We feel compassion for low skilled, low wage workers, so we vote to give them all $15 per hour. 

The incentive structure of democratic decision-making encourages people to indulge their fantasies and vote in ways that make them feel good about themselves. This good feeling can be obtained by signaling that one cares about the poor or that one cares about family values, or that one supports his or her team or that one is a loyal member of the tribe. There is no need for one’s vote or other political activities to be tied to the facts of reality to obtain these psychological benefits. After watching large segments of the population believe that a border wall will stop illegal immigration, that Russian interference determined the outcome of the 2016 election, that the Chinese pay tariffs rather than American consumers, and that deficits don’t matter, can it really be surprising that many people believe that there was widespread voter fraud in the 2020 election? Since the believer suffers no personal harm from indulging in such a belief and can gain significant psychological benefit from doing so, how can we be surprised by the prevalence of political conspiracy theories?

2) And it surely should not be surprising that the abstract support for “democratic institutions” disappears when one’s side loses an election. In the first place, supporting democracy in the real world borders on the irrational. A commitment to democracy requires one to believe that the policy of the candidate who receives the greatest number of votes should be adopted. But when one votes, he or she is expressing a personal belief about the desirability of a proposed policy. If our committed democrat’s opponent receives more votes, he or she must now simultaneously believe that the policy of the candidate he or she opposed should be adopted based on the belief that social policy should be determined by the democratic process and that the policy of that candidate should not be adopted based on his or her personal belief. 

Imagine that a candidate runs for President on a platform of building a wall across the southern border of the United States, temporarily banning Muslims from entering the United States, and imposing tariffs on products manufactured overseas. Also imagine that Debbie Democrat, a firm believer in democratic governance, strongly opposes all of these measures and believes that their adoption is both immoral and would be disastrous for the country. Accordingly, she votes for the opposing candidate. Assume however that after the votes are counted, her candidate loses. Debbie Democrat is now in the uncomfortable position of simultaneously believing that a wall should be built across the southern border of the United States, Muslims should be temporarily banned from entering the United States, and tariffs should be imposed on products manufactured overseas based on her belief that social policy should be determined by the democratic process and that none of these measures should be adopted based on her personal belief that they are immoral and counterproductive. 

How surprising can it be that the losers of an election will try to obstruct the will of the majority whether through protests, lawsuits or other procedural impediments, civil disobedience, or even intimidation and violence? What wouldbe surprising would be for Debbie and those who voted with her to say, “Well, we lost the election, so we should do all we can to help put the will of the people into effect and support building the wall, banning Muslims, and imposing tariffs at least until the next election.” 

For most people, democracy is like religion. Belief that democracy is a morally justified and necessary form of government is accepted as a matter of faith. It is only we few heretics who actually examine democracy’s features. We are the ones who notice that democracy is a zero sum game; that under democracy, all must conform their behavior to the will of the majority, and that this makes democracy a winner-take-all game that creates an incentive to defeat one’s opponents at all costs.

In Chapter 10 of his 1944 book, The Road to Serfdom, Freidrich Hayek explained why, in a winner-take-all political system, adherence to principle is self-eliminating. The politician whose commitment to principle prevents him from doing what is necessary to gain power is washed out of the system, or as Bill Clinton more succinctly put it when asked why he lied during the 1996 Presidential campaign, “You gotta do what you gotta do.” In a democracy, any politician whose commitment to abstract moral or political principles prevents him or her from doing what will generate the most votes, loses. This makes politicians’ explicitly hypocritical behavior and application of double standards, which is so shocking to democracy’s true believers, such a mundane observation to us. It is also why we know that it is pointless to exhort people to eschew “whataboutism” as a form of political argument. Far from an aberration, such argumentation is baked into government by electoral majority. 

Many intellectuals seem surprised that Republican politicians who were running for their lives from a mob whipped up by President Trump on January 6 could vote overwhelmingly not to impeach Trump less than three weeks later. But to those of us with a realistic view of the incentive structure of democracy, nothing could seem more natural. You don’t get to make policy if you don’t get elected. So, in the words of Bill Clinton, “You gotta do what you gotta do.”

Moralism, Community, and Civil Discourse

I’ve begun to think that one of the largest problems facing society is moralism, in a variety of forms. I want to try out this claim here. For the moment, take moralism to be a commitment to the view that some acts must be forbidden, socially or legally, because they are (a) judged wrong by the general populace, (b) in some way opposed to the continued survival of the general populace, or (c) simply immoral even if no one is hurt by them. I expect to return to this in future posts, but here want to discuss a possible relationship between moralism and our problems with civil discourse.

There are at least three ways to get someone else to believe or act as you. First, one can use force or coercion on the other, perhaps yelling at or bullying them. Second, one can appeal to the other’s emotions, perhaps getting them to feel bad if they don’t accept your view or do what you want. Third, one can use reason, trying to explain why what you want them to believe or do is what they actually should believe or do. All of these are ways that people “argue,” though only the last is “argument” in the philosopher’s sense. I take it as obvious that we should reject the first (as it treats persons as non-agents) and prefer the third (it alone treats persons as what they are, rational agents). Philosophers would prefer only the third be used; we sometimes find it hard to accept how much more prevalent and successful the second is. Advertising, public relations, and politics all rely on emotional appeals far more than reason. In doing so—in relying on appeals to emotions—they treat persons as agents, but not rational agents. This is better than coercion, but not as good as reason.

One sort of appeal to emotions I see a good bit of is an appeal to community. If we care about our community, we’re told, we’ll do this. If we care about each other, we’ll do that. This can be turned into a rational argument, of course: community is important, so we should do X which is necessary for community. Even then, we are rarely told why community is important or how X is necessary for it. Still less are we likely to be told how the particular community in question actually has the qualities of community that give it value. (Community can be a real value even if this particular community is not.). In most cases, the appeal is a form of the second type of moralism, where we are supposed to believe that the community requires what the appealer says—that absent our acquiescence the community will be endangered.

Generally, when one appeals to community, the goal is simply to get other people to do, believe, or live as one wants. It’s community as the appealer conceives it. If the appealer wants help with child care, the conception of community will be one where child care duties are shared, including by those who did not wish to have children. If the appealer believes women are or should be subordinate to men, the sought after community will be chauvinist. If the appealer is egalitarian, the sought after community will be egalitarian. If the appealer thinks people currently in the community are of more value than those elsewhere, the sought after community will be anti-immigrant. If the appealer thinks allopathic medicine, western education in STEM fields, or the like are necessary for decent or good lives, the sought after community will be one where those things are provided or even required of all.

Here’s the thing: if one is willing to appeal to emotions in this way to convince others to do, believe, or live as one wants, one does not value the other as a person. While appealing to emotions may be better than coercion, it still treats the other as less than oneself. It is manipulation with an assumption that the other is no more than a being to be manipulated to get what one wants. It excludes belief that the other should be reasoned with, that their reason matters. It thereby excludes, in the instance, belief in rational discourse with the other.

I expect to be discussing moralism further in future posts, but here hope only to have shown how continued reliance on moralism of one form prevents use of rational dialogue. This should be obvious: if we are genuinely committed to rational dialogue with our fellow citizens, we don’t coerce them and we don’t try to suade them with appeals to emotions, even if designed to protect our community as we see it.

The Saga of David Friedman

In my latest YouTube video, I chat with economist and legal scholar David Friedman on free-market anarchism; the Society for Creative Anachronism; tectonic geology; the quasi-anarchic legal systems of medieval Iceland and 18th-century England; being converted to anarchism by Robert Heinlein; how getting a Ph.D. in physics led to being an economist at a law school; the joys of fomenting war and exploiting one’s students; how he repeatedly achieved promotion through violence against his predecessors; how to make medieval armor both for humans and for turnips; how innovations in fireplace design facilitated adultery; and the perils of central planning for wizards.

Meanwhile, in a Parallel Election

I voted!

No, not in the u.s. election – Ἀθηνᾶ κρείττων!

Nah, I voted for which book we will read next in the Auburn Science Fiction and Philosophy Reading Group.

This was a more cheerful and civilised affair than the u.s. election in at least seven ways:

1.  Minority choices have no trouble getting on the ballot; any individual member of the group can nominate a book (or several), without having to collect multiple signatures on a petition.

2. The number of participants is small enough that any individual vote has an actual chance of making a decisive difference to the outcome.

3. Voting involves rank-ordering the candidates via an online Condorcet poll, so no one has to choose between voting for their favourite among the front runners and voting for their favourite absolutely.

4. We choose a new book every month or two, so there’s strict rotation in office with very short terms – no perpetually incumbent books.

5. The reading group is a purely voluntary association. If any members aren’t happy with the winning choice, and want to go off on their own to read and discuss a different book, the rest of us wouldn’t dream of trying to stop them, let alone telling them that by voting (or by not voting) they have committed themselves to reading the winning book.

6. All the books nominated look worthwhile, and I would be happy to read and discuss any of them.

7. Facebook has not been reminding me every few minutes to vote for the next book.

O idéal lointain!

Undemocratic Policing in Portland

Federal law enforcement officers in various agencies in the Department of Homeland Security have been deployed to police protestors in Portland, OR. This development in the protests against police, and the police responses to them, highlight two different kinds of problems: those that come from the decentralization of local agencies and those that come from the centralization of federal agencies.

The federal officers, dressed in camouflage, have been detaining people in unmarked minivans. At least some of them are not wearing badges that identity their agency. The badges other officers are wearing are small and difficult to read, especially when a group of officers grab you and toss you into a van before speeding off. Federal agents are also using chemical irritants to disperse protests. In at least one incident, they attacked two people who appear to be medics providing care to someone laying on a sidewalk. It is hard to discern any legitimate police goal that was achieved from shoving them to the ground and threatening to strike them with batons. In another particularly awful incident, a protestor is shot in the face with an “impact” or “non-lethal” munition. In yet another, federal police repeatedly strike a protestor, who seemingly posing no threat, with a baton and then spray teargas into his face.

When asked what justifies the use of federal forces in Portland, the DHS has pointed to destruction of federal property. The list includes a broken window and many instances of graffiti, which is of course a far cry from their claim that the city has been “under siege for 47 straight days by a violent mob.” Acting Homeland Security Deputy Secretary Ken Cuccinelli complains that Portland Mayor Ted Wheeler is “holding back” local law enforcement by not letting them “certain nonlethal tactics.” Meanwhile, the Portland police commissioner has said the federal officers should go home and that their presence is escalating the situation.

This is an unusual situation. Federal force is typically used to respond to protests only when local officials request it. The governor has called this political theatre. It looks worse than that to me. It looks more like the Trump administration probably violating the law to punish political enemies and to rile up his base. The administration has threatened to use similar tactics in other cities. And of course, since they are cities, they are Trump’s political enemies.

The situation demonstrates the importance of clearly marked law enforcement officers. One of the problems with “secret police” is the lack of accountability. If they violate your rights, who would you object to? Another is that it undermines one of the major justifications of a public police force, which is that a publicly accountable police force is supposed to give you reasons to comply and let the courts adjudicate the issue. But if you’re not sure who is tossing you into the back of a minivan, it is far from clear that you have a reason to comply. It is a different manifestation of the problem we see with no-knock SWAT raids in which people, fearing that their home is being invaded by criminals, use defensive force against unidentified officers. But this is probably not the main problem, which would remain even if the federal agents were more clearly identified.

The main problem is that the federal agents have little in the way of democratic authorization or other justification for their uses of force. The tactics to disperse protestors are clearly excessive. Further, the Trump administration is overriding the authority of local officials and police. The authority to deploy federal law enforcement to Portland apparently comes from regulations allowing CBP officers to operate with fewer constitutional restrictions in the “border zone” that extends 100 miles from the border. Though even that is unclear; the Trump administration has not explained the legal basis for these deployments. Like the Portland police commissioner, state and local officials have also requested that the DHS withdraw their officers.

A common complaint in criminal justice reforms circles is that the extreme decentralization of policing makes reform nearly impossible. With 18,000 police agencies, most reform efforts will need to occur independently all over the country. Another problem is that when officers are fired from one department, they often can find work at another nearby department. These are real problems, and they have contributed to the protests federal officers have been deployed to police.

But they are probably less significant than if the president was the head of a national police force in the way that the president is the head of the military. The Trump administration makes that clear. It’s true that local departments already have a less than stellar track record when it comes to policing protests. But police chiefs and commissioners don’t usually appear to be motivated to punish political opponents, in part because they’re not directly elected. And if they do punish political opponents, at least the voters in Portland or Chicago don’t have to worry about suburbanites who aren’t on the receiving end of the bad policing voting for a presidential candidate who promises to use the police to violate their civil liberties.

Another related problem is one of selection effects. People have long worried that eliminating residency requirements in local police departments will result in communities being policed by outsiders who lack local knowledge or sympathy with residents. When the agency doing the law enforcement is widely loathed, and staffed by people across the nation who simply accept that they are widely loathed, we can expect even less local knowledge and sympathy with residents. Using federal agents for local policing causes some of the same problems that having the military engage in domestic policing does.

These two problems undermine the democratic authorization of centralized police forces. Of course, there are few proponents of a national police force. If this is right, though, it informs normative questions about consolidating police forces. Elinor Ostrom researched this question and found that people are more satisfied with more local police power. Using federal police to respond to protests is probably illegitimate because it gives non-locals too much say over local issues. Similarly, a police agency that has a jurisdiction much larger than a city is likely to suffer the same problem. People who live in the city and are likely to be heavily policed, for example, probably have very different views about what good policing looks like than those who live in the suburbs and enter the city just to work.

Theorizing about justice in real political systems is a game of picking our problems. Decentralization surely leads to problems of its own, ones that have partially caused recent protests. But they also look less serious than ones we could expect if the Trump administration had more control over local policing.

Proportional policing and criminal patrol

One of the (many) moral problems of policing in the US is that law enforcement strategies often fail a proportionality requirement. The principle of proportionality is often invoked in discussions of the morality of the use of force, whether it is force used to achieve military or police goals, or for individual self-defense. It is impermissible to use force that causes significantly more harm than the benefit caused by achieving one’s goal. Police are not permitted to shoot fleeing robbery suspects, for example. Proportionality also informs distributional concerns. Justice requires not just that we minimize errors in criminal trials, but that we achieve a particular distribution of errors. We tend to accept an increase in false findings of innocence as a cost of reducing false findings of guilt. A legal system that imposes costs on the innocent too frequently in the course of punishing the guilty will be disproportionate because the harm required to punish the guilty would be too great. Here I’ll argue that proportionality constrains not just use of force policies, but also the selection of strategies for enforcing law.

I’ve argued elsewhere that a proportionality principle constrains the tactics police officers are permitted to use when responding to protests and demonstrations. But there are some police strategies that fail a proportionality requirement even if officers rarely resort to physical force. Most strategies that rely on “filtering” are unlikely to meet the requirement.

Consider the stop and frisk strategy employed by the NYPD during the 2000s and early 2010s. This practice became intensely controversial because a majority of the New Yorkers stopped, questioned, and frisked where Black or Hispanic. At the time, Mayor Bloomberg insisted that officers stopped people based on their behavior, not their appearance. At the peak of stop and frisk, the NYPD averaged around 1200 stops per day which resulted in around 70 arrests, and only 2 on illegal gun possession charges. In other words, with a success rate of around 6 percent, the NYPD did not appear to have a great sense of which behaviors indicated criminal activity. Even putting aside the threat of force required in each stop, police stops are not trivial incursions into a person’s life. Around 94 percent of the people the NYPD stopped in a day who had to bear those costs were innocent. This means that the strategy, even granting that it reduced crime and successfully enforced legitimate laws (both of which are controversial), has a significant number of false “findings of guilt.” Given the huge number of innocent people stopped as part of the strategy, it is not proportional.

Similarly, consider the use of traffic stops for criminal law enforcement. The LAPD, like most police departments, uses traffic stops to find illegal guns and drugs. Even if this is a common way for officers to make arrests and remove illegal guns from the streets, it is unlikely that one can make accurate judgements about who is breaking the law simply by looking at the exterior of one’s vehicle. This leads to officers pulling motorists over for violating traffic laws just to examine the driver and the inside of the vehicle. There are serious concerns about racist police activity in this context too. Black drivers are less likely to be pulled over at night when the driver’s race is “masked.” Even if there weren’t concerns about racist enforcement, however, the concern about proportionality remains. The ultimate reason for the traffic stop is to investigate criminal activity, but most of the people stopped are innocent. Filtering strategies that rely on stopping large numbers of people, most of whom are innocent, to find a small number of guilty people, fail a proportionality requirement.

Evaluating these strategies in terms of proportionality is useful because it lets us avoid arguing about the presumption of innocence. You might think that these strategies undermine the presumption of innocence (I do), but that objection is less useful against strategies that rely on pretextual stops. Traffic laws, or anti-loitering laws, are tools for enabling more invasive police interactions. The goal is rarely to enforce the law that an officer witnesses one violating, but rather to look for criminal activity.

If this is right, then proportionality is also a tool for evaluating law enforcement strategies. This is useful because determining the just administration of law is separate from the question of which laws are just. Though the former has gotten less attention, it is still important. This kind of argument about proportionality plays a role in some of the work on policing I’m doing now.