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Structural Racism and Individual Choice

A story this week in the New York Times about the Minneapolis school district raised some interesting questions about racism, liberalism, and individualism.  The story explains how Minneapolis school officials “assigned families to new school zones, redrawing boundaries to take socioeconomic diversity — and as a consequence, racial diversity — into account.”  This is in response to legitimate concerns that Minneapolis, described in the story as “among the most segregated school districts in the country,” has tangible gaps in academic performance by race.  “Research shows that de facto school segregation is one major reason that America’s education system is so unequal, and that racially and socioeconomically diverse schools can benefit all students.” 

The article elaborates on the problem: “Research has shown that integration can deliver benefits for all children.  For example, Black children exposed to desegregation after Brown v. Board of Education experienced higher educational achievement, higher annual earnings as adults, a lower likelihood of incarceration and better health outcomes, according to longitudinal work by the economist Rucker Johnson of the University of California, Berkeley. The gains came at no cost to the educational achievement of white students.  Other research has documented how racially and economically diverse schools can benefit all students, including white children, by reducing biases and promoting skills like critical thinking.  Racially segregated schools, on the other hand, are associated with larger gaps in student performance, because they tend to concentrate students of color in high poverty environments, according to a recent paper analyzing all public school districts.”

So the plan is to increase integration, not necessarily by bussing black students to predominantly white schools, but by bussing white students to predominantly black schools.  Predictably, not every family is enthusiastic about this.  But what I found interesting about the story is that it highlights the ways in which a structure can have outcomes that are racist even if individual actors within that structure aren’t racists.   Many people bristle at the terms “structural racism” or “institutional racism” because they take them to imply that individual actors are racists.  People who use these terms typically don’t mean to imply this (though some do), but this distinction can get lost in the shuffle.  One specific anecdote in the article is helpful here.

Heather Wulfsberg, of Minnetonka, had her daughter reassigned to North High School.  She appealed this decision, but let’s see why.  Wulfsberg, “who is white, had intended to send her daughter, Isabella, 14, to Southwest High, a racially diverse but majority white public school that is a 10-minute bus ride from their home.  The school offers an international baccalaureate program, as well as Japanese, which Isabella studied in middle school. Isabella’s older brother, 18, is a senior there, and Ms. Wulfsberg envisioned her children attending together, her son helping Isabella navigate freshman year. So Ms. Wulfsberg appealed the reassignment to North, citing her son’s attendance at Southwest, and her daughter’s interest in Japanese. (North offers one language, Spanish.)  She was also concerned about transportation. There was no direct bus, and Isabella’s commute could take up to 55 minutes. She would also have to walk from the bus stop to school through an area where frequent gun shots are a problem.”

If Wulfsberg had said something like “I can’t bear the thought of my daughter going to a majority-black school,” it would be clear these are unsupportable reasons.  But the preceding paragraph gives all perfectly legitimate reasons.  Isabella can’t continue learning her language.  She would spend 2 hours a day on the bus.  Is it reasonable to force Heather to do that to Isabella?  I don’t see that it is.  And Heather didn’t either, so Isabella is going to private school.  On the community Facebook page, Heather was called a racist.  ““They were like, ‘Your cover is, you want academics for your kids, and underneath this all, you really are racist,’” she recalled. “It’s a very scary feeling to do a self-examination of yourself and think, ‘Am I?’”  She paused, reflecting. “But I don’t believe I am. I really don’t.””

I have no idea whether she is or not, but she certainly can’t be called a racist for the reasons given here.  So in this case, the parents in the community Facebook group were in fact using something about structural racism as a personal accusation, precisely what the coining of the term was meant to avoid.

It’s possible of course that both (a) the evolution of American public schooling has been heavily influenced by racism and yields outcomes that are demonstrably unequal and (b) parents like Heather aren’t motivated by racism at all.  But then we’re stuck with a conundrum: what’s the fix for (a)?  If the answer is “Isabella’s good must be sacrificed for the greater good of helping ameliorate racial inequality in schools,” you’re certainly in for rough time getting Heather to agree.  Another approach might be systemic: since the outcome problems are systemic, it wouldn’t be crazy to think the solution would be systemic as well.  The anarchist response “don’t have public schools at all” is probably correct, but politically unfeasible.  But even if we have public schools, there’s no reason they have to be structured the way they are.  One reason for the disparity in schools is that in most districts, local property taxes pay for the schools, so wealthier suburbs have better schools than poorer areas (this affects poor white areas too of course).  So maybe don’t tie school funding to local property taxes.  Or maybe don’t have school districts be drawn like Checkpoint Charlie.   Any rigidly drawn district would have some families living at its fringes – why prohibit those kids from attending school in the next district?  The classic pro-choice argument is: figure out what the state government spends per pupil, and then give that money to the families to spend on whichever school they think is best, public or private.  This would eliminate geography-based funding discrepancies.   We address the problem of people not being able to afford food not by having state-run farms and grocery stores, but by giving people money for food.  Why not give them money for school?

Objectivity, Rigor… and Irony.

Back in September the Urban Institute published a ‘blog post arguing that “Equitable Research Requires Questioning the Status Quo”. The author—Lauren Farrell—argued that both “objectivity” and “rigor” were “harmful research practices” that should be rectified.

Not surprisingly, this has generated a flurry of responses from persons with more conservative leanings eager to defend “objectivity” and “rigor” in research. Also not surprisingly, some of these responses have been hyperbolic. Writing for Persuasion, Zaid Jilani claimed that these claims were “emblematic of the struggle between truth and social justice that is taking place across many left-leaning institutions in the United States.”

There’s a certain irony to this response to Farrell’s argument, for in their rush to defend objectivity and rigor many of their putative proponents have abandoned both.

Farrell writes that an appeal to objectivity

“…allows researchers, intentions aside, to define themselves as experts without learning from people with lived experience.  Objectivity also gives researchers grounds to claim they have no motives or biases in their work. Racism, sexism, classism, and ableism permeate US institutions and systems, which, in turn, allows for research that reproduces or creats racist stereotypes and reinforces societal power differences between who generates information… and who is a subject…”

With respect to rigor, she writes that

“…researchers often define rigor as following an established research protocol meticulously instead of ensuring data are contextualized and grounded in community experience”. This understanding of rigor, she holds, “does not guarantee trustworthiness or accuracy.”

It might be that some of Farrell’s critics have been “triggered” by her use of certain words (“objectivity”, “rigor”) without paying attention to how she is using them or her intended message. If these terms are removed, Farrell’s claims become utterly anodyne. To paraphrase:

“…researchers should not define themselves as experts without learning from people who have direct experience of the subject the researchers are studying. They should recognize that their work might be motivated by pretheoretic commitments or be biased in some way…” 

And

“…researchers should recognize that established research protocols might not lead to results that are trustworthy or accurate unless the data that they gather are placed in proper context and accurately reflect the experiences of the persons who are the subjects of research.”

But these claims shouldn’t be controversial. Consider how they’d apply to Nancy MacLean’s much criticized work Democracy in Chains. (MacLean argues, in brief, that James Buchanan and public choice theory was at the heart of a stealthy conspiracy funded by the Koch Brothers to protect the privilege of rich white men.) For Farrell, MacLean should not have defined herself as an expert in this area without learning from people who knew and worked with Buchanan to ensure that she was getting her facts right. She should also recognize that her interpretation of documents and events might be biased by her ideological antipathy to libertarianism—and taken pains to correct this. And she also should have recognized that despite her extensive documentation of her sources her adherence to this established research protocol of her discipline (history) is no guarantee that her work will be trustworthy or accurate unless her data is placed in proper context and reflects the experiences of those who are the subject of her research.

But isn’t the problem with Democracy in Chains that MacLean failed to be objective and rigorous? If so, how could her methodological failures support Farrell’s rejection of “objectivity” and “rigor”? The answer is simple. Although Farrell takes herself to be rejecting “objectivity” and “rigor” what she is really arguing against are appeals to these values that mask poor research methodology.

To be sure, she should have been clearer about this. But to rush to condemn her for rejecting “truth” in favor of “social justice” on the basis of this ‘blog post is to commit the very errors in research that she decries.

Regressive Regulations and structural racism

The CDC released data last month showing how women fled NYC at the height of the pandemic to give birth, largely as a reaction to fear of overwhelmed hospitals as well as restrictive birthing policies.

What’s interesting about the data, from my perspective, is how clearly it demonstrates that it’s those with wealth who can avoid the limitations regulations create. New York State has regulated birth centers out of existence, largely through the burdensome and outdated Certificate of Need (CON) process, resulting in fewer options for precisely those people who can’t buy themselves out of these limitations.

Predictably, from the CDC data, white women were most likely to successfully escape the city. Black and Hispanic women were left behind, likely as a result of less flexible employment and fewer financial resources overall. Meanwhile, at the same time women downstate were desperate to find safe places to give birth during a pandemic, New York was prosecuting midwives who served an upstate maternity desert of low-income Mennonite women. The absurdity of the entire situation should be obvious, but in reality it demonstrates one of the primary ways in which regulations have regressive effects.

Certified professional midwives, licensed in 35 other states, are illegal in New York. As a group they tend to serve underserved communities, including low-income rural communities and communities of color. So when low-income New Yorkers looked around for out-of-hospital birthing options during a global pandemic it turns out they couldn’t find any, not because of a market failure, but because of simple and obvious government failure.

There’s a broader lesson here for classical liberals. Most people acknowledge that classical liberalism has a diversity problem, but it’s been hard to know what to do about it. I think one clear way libertarians and classical liberals can appeal more strongly to diverse populations, including women and people of color, is by emphasizing the way government regulations overwhelmingly harm the most vulnerable among us. While there’s been a lot of work done in this area in terms of criminal justice reform, the drug war, and immigration, women’s issues haven’t yet really gotten as much attention. And regulation in particular is still often discussed as an efficiency issue rather than a justice issue. Yet government-imposed barriers place real and disparate burdens on women and communities of color, creating serious impediments to accessing diverse providers on the one hand and wealth building among would-be entrepreneurs on the other.

Afghanistan and sovereignty

The US administration has justified the withdrawal from Afghanistan by saying that the United States should not fight a civil war in another country. That war should be fought, they think, by the people themselves, not by a foreign power. Both Democrats and Republicans share this view, as apparently does the general public. Critics of the withdrawal object to the way the withdrawal was implemented, not to the withdrawal itself. They blast the failure of the government to evacuate Americans and others before withdrawal. But, all seem to agree, withdrawing is the right decision. The underlying idea seems to be that Afghanistan is a sovereign country, and that once the Al Qaeda terrorist threat was neutralized, the United States had no business remaining there. Afghan political problems should be solved by Afghans.

I think this is the wrong way to look at this tragedy. I will state my dissent in the starkest possible form: Afghanistan has no business being a sovereign state. If the only possible outcome of the political process is the rule of the Taliban, then the country is not a legitimate state, because the Taliban, one of the worst regimes of recent times, is not entitled to rule. I hope I don’t need to document what we can expect of Taliban rule. The Taliban will kill, torture, and terrorize everyone, women in particular. Saying that these atrocities are an incident of sovereignty or self-determination is too grotesque to be taken seriously. This is true even if the Taliban allows all Americans and others to safely evacuate, and even if Afghanistan (improbably) does not allow anti-Western terrorists to operate in its territory. For the focus is not us but them, the Afghans, who will be killed, tortured, and terrorized by these monsters.

What solution then? If the so-called international community is serious about human rights and human security, then it should send an international force, defeat the Taliban, and set up an international administration to rule the country in accordance with minimal international standards, as long as necessary, forever if need be.  The mistake of the US intervention is not that the United States was disrespectful of Afghan sovereignty. The mistake is that the United States was too respectful of Afghan sovereignty.

The Shaky Pullout from Afghanistan

Joe Biden is on track to do what his two predecessors failed to do: get out of Afghanistan. They failed to achieve this goal due to the worsening security situation and the incapacity of the Afghan forces to take over. After many more years and countless billions spent, it is still unclear that the Afghan National Army (ANA) has the capacity to keep the Taliban from taking over more territory, let alone maintaining control of the capitol. As recently as March, John Sopko, Special Inspector General for Afghanistan Reconstruction, said “the Afghan government’s fears for its survival are only exacerbated by the knowledge of how dependent their country is on foreign military and financial support. If the goal of the reconstruction effort was to build a strong, stable, self-reliant Afghan state that could protect our national security interests as well as its own—it is a mission yet to be accomplished.

According to Biden, however, that is not the American goal. They did not intend, despite 20 years of evidence, to “nation-build” in Afghanistan. Their goals were 1) “get the terrorists who attacked us on 9/11” 2) “deliver justice to Osama Bin Laden” and 3) “degrade the terrorist threat” to reduce the possibility of Afghanistan becoming a base for terrorist organizations in the future. If these were the goals, they were arguably achieved by May of 2011 when President Barack Obama ordered the successful strike against Bin Laden. 

There is a possibility Obama, or perhaps President Donald Trump would have had to reopen the mission, as Obama did in Iraq in 2014, when the Islamic State (IS) spread across the globe . If that were the case, they would have to remain to this day as the threat from IS Khorasan in the country, let alone the region, remains significant.

Instead, Biden decided to honor the deal struck between Trump’s Administration and the Taliban to completely remove the US presence from the country, albeit on a slightly slower timeline. And what was the reasoning? He determined it is not in the “national interest of the United States of America to continue fighting this war indefinitely.”

He has a point. If the mission has yet to be completed after 20 years, it won’t be completed without a big change within the foreseeable future. Furthermore, he had a front row seat to Obama’s failure to end the war using a troop surge. Is this, therefore, the least worst option?

The truth is we don’t really know. Biden didn’t engage in a long, involved discussion outside of his administration—except to consult with former Presidents Bush and Obama. There wasn’t even much discussion with Congress before he announced he would completely withdraw troops. Even after months, there remained a lack of clarity about the merits of the withdrawal. If the pull-out from Bagram Air Base is any indication, there is nothing orderly, well-thought through, or well-executed about the withdrawal. After 20 years, countless public embarrassments due to poor policy planning, no way to achieve victory, and a great risk to security from instability in that country, shouldn’t the administration take more time to have a serious and perhaps a public discussion about how to bring this war to a close? Shouldn’t members of Congress push the administration to engage in this deliberation? Shouldn’t the public?

The fact is, the Taliban is salivating over this result and using it to demonstrate that they have achieved their mission: remove the imperial power from their state and reassert their control.

But Biden is resolute. He claims he “will not send another generation of Americans to war in Afghanistan with no reasonable expectation of achieving a different outcome.

As I demonstrate in a recent article discussing 10 criteria for successful deliberations about military policy, an effective way to avoid implementing haphazard policy is to engage in thoughtful discussions in order to effectively achieve well-articulated goals. Instead, what we see from this administration is what we’ve seen throughout the War on Terror: policy that looks reactionary and poorly developed because it is.

Slogans and Wars

Activists like slogans, and some slogans are accurate, but philosophical positions are often too nuanced to be captured in a bumper-sticker-length slogan.   So in several recent online discussions in which I’ve attempted to explain why Israel is justified in responding to attacks by Hamas, I’ve encountered people saying that because they’re libertarian, they are anti-war, and therefore I must be a bad libertarian.  That’s wrong, and one reason it goes wrong has to do philosophy’s resistance to bumper-sticker sloganeering.

To begin with, saying “war is unjust” is some kind of category error, along the lines of saying “physical force is unjust.”  Wait, the bumper-sticker objects, I thought libertarians were opposed to physical force.  This move elides the moral significance of the distinction between the use of force in aggression and the use of force in defense.  If Bob starts hitting Bill and Bill hits Bob back, they’re both using physical force.  But that doesn’t make them morally equivalent, and this shows why it’s a conceptual mistake to say that “hitting is unjust”: if Bob’s hitting is unjust (aggression), then Bill’s hitting is just (defense).   “Hitting” alone isn’t just or unjust, until we know who is committing aggression, the initiation of force, to violate someone’s rights, and who is using force defensively, to protect their rights.  Libertarianism isn’t about hitting, it’s about rights.  Similarly, saying “war is unjust” misses the important distinction between aggression and defense.  If Sylvania invades Freedonia, say because the former wants to annex the latter to obtain raw materials, Sylvania’s action is unjust.  But that implies that Freedonia’s use of arms to repel the unjust invasion is just.  So the question “is this war just?” is poorly formed.  It’s unjust for the one to have attacked, and (therefore!) just for the other to respond.

Of course, there are complicating variables, so it’s sometimes harder than it first appears to assess justice.  (See my “War and Liberty,” Reason Papers 26, Spring 2006; can’t hyperlink for some reason but it is online.)  But the point I’m making here is that the slogan doesn’t even come close to capturing the variables.   At this point in the argument, someone objects that because there may be harm to innocents, the analogy from Bob and Bill to Sylvania and Freedonia doesn’t work.  But it’s not that the analogy doesn’t work, it’s that there are other factors to be added to the evaluation.  The analogy works in skeletal form – an unjust aggression may be justly opposed – but it’s true that military action carries increased risk of harm to innocents.  This isn’t a particularly novel observation, though, nor is it something that only a libertarian would think of.  It’s been a principle of ethical theory about warfare for centuries.  So it’s true that assessing the morality of a conflict has to involve the degree to which both parties take care to minimize harm to noncombatants.  But here too, the moral assessment is not unitary: if Sylvania is indiscriminate in attacking but Freedonia avoids targeting civilians, we’d say “Sylvania is fighting unjustly” and also “Freedonia is fighting justly.”

Another objection that is largely a red herring is to note that it’s states that go to war, and the fighting is thus subsidized by involuntarily-collected taxes.  I certainly agree that states shouldn’t do this.   But not everything that a state does is illegitimate per se.  There are state activities that would be morally legitimate if not done by the state, so it’s only that the state is doing them that makes them bad.  If it’s already bad, then it’s bad for the state to do it (for example, private citizens owning slaves is morally wrong, so for the state to enslave people is also wrong).  But if it’s morally permissible to do a thing, then the wrongness of the state doing it comes from libertarian objections about the nature of state activity.  For example, the occupation of firefighter is morally legitimate, so to complain about state-run fire departments is not to object to firefighting per se, but to the scope of state power.  (See also: teaching.)  So the fact that states engage in macro-level self defense is not wrong because defending yourself is wrong, but because of some theory about the proper scope of state power.  But while we’re arguing about the proper theory of the scope of state power, firefighters are doing a good thing, not a bad thing, when they go put out fires.  And Freedonia’s army is doing a good thing, not a bad thing, when it  repels Sylvania’s invasion.

Sylvania, of course, is doing something wrong: invading Freedonia.  This aggression would be wrong even if it were some non-state entity – it is just like Bob’s attack on Bill.  Bob is wrong to attack Bill.  Sylvania is wrong to invade Freedonia.  Bill is right to fight back; Freedonia is right to fight back.

Now to the extent that the “I’m anti-war” sloganeering is useful, it’s going to be useful in places like Sylvania: making the argument that aggression is unjust, that launching a war is wasteful of resources, that attacks like this are callous about human life.  Libertarians in Sylvania ought to make it clear to their leaders that they oppose the war.  But Freedonians, even libertarian Freedonians, are not bound to say “we should stop fighting”; they have the right to defend themselves.  Remember, just because Bill is a peace-loving person doesn’t mean Bob won’t attack him.  Similarly, a society that eschews aggression may nevertheless find itself attacked.  Some of the people I’ve argued with about this will point out the number of times the US has engaged in warfare that couldn’t plausibly be described as self-defense, as if this were some sort of “gotcha” moment that proves I’m bad at libertarianing.  But this is to confuse history and philosophy.  I’m perfectly aware that the US has acted badly in the past.  But that doesn’t imply that it’s always in the wrong, and more to the point, it doesn’t disprove the normative argument about the legitimacy of self-defense.   So we often end up with something like:
Me: People have a right to defend themselves when attacked.
Other person: Tommy is an aggressive bully.  Carl often starts fights.
Me: ???

Maybe this would fit on a bumper sticker: We should oppose starting wars, but we are not obligated to eschew self-defense.

Why 2021 is Making Me Nervous

John Stuart Mill once gave expression to what he felt was a commonplace, namely that:

a party of order or stability, and a party of progress or reform, are both necessary elements of a healthy state of political life; until the one or the other shall have so enlarged its mental grasp as to be a party equally of order and of progress, knowing and distinguishing what is fit to be preserved from what ought to be swept away. Each of these modes of thinking derives its utility from the deficiencies of the other; but it is in a great measure the opposition of the other that keeps each within the limits of reason and sanity.

For limited creatures like us, wisdom in politics requires that we face opposition from those who see things differently. Because we are narrow-minded and partial beings, approximating truth in politics must take the form of “the rough process of a struggle between combatants fighting under hostile banners.” 

James Madison was more skeptical of this kind of combat, at least in democratic contexts. He feared that competition between factions (groups organized around sectarian ideologies) might result in one becoming dominant. If it did, a purely democratic government would tyrannically enforce the interests of the dominant faction, at the expense of the common good. The remedy, Madison thought, was to adopt a republican constitution capable of cooling factional disagreement. Only a system of checks and balances, including a formal separation of powers, could stop a dominant faction from becoming tyrannical.

And yet Madison was clear that this remedy was unlikely to be successful absent a diverse civil society composed of competing factions vying for representation in government. Inspired by Mill, we might say something somewhat stronger: the powers of government, once separated, ought not to be distinct merely in the sense that they lie in different hands, but also in the sense that those in whose hands they lie have conflicting visions—some conservative, some progressive, say. Without this tension, we might worry that political change will happen more quickly and with less foresight and minority input than is desirable.

It’s true, of course, that executive, legislative, and judicial allegiance to the constitution can itself provide some source of tension independent of any substantive policy disagreements. (We saw, for example, that a court composed of largely Republican appointees was nevertheless able to restrain some of former President Trump’s more extreme excesses.)

But when many of our political disagreements are precisely over the interpretation of that founding document and the degree to which it constrains legislative, executive, and judicial bodies, it’s not hard to see that a legislature which shares the political goals of an executive which shares in turn the political goals of a judiciary might be less likely to “check” one another than they might be in the presence of more disagreement. 

This brings me to the respect in which the politics of the moment make me nervous. 

Along with a Democratic executive, we have a House of Representatives with a sizable Democratic majority and a democratically controlled Senate. The latter has an increasing capacity  to pass legislation with no Republican support.

Currently, the largely Republican appointed judiciary is the only source of robust “opposition” in the sense sketched above. In normal circumstances, it might be enough. And yet, there are increasingly loud calls for congress to “pack the court” as a means of sanctioning recent republican opportunism. If these calls are heeded,  the court would lurch leftward as well. 

Naturally, even in the event of a packed court, recourse would remain to the less formal civil society checks on majority excess the founders thought so important. But many of the most prestigious media outlets exhibit a bias friendly to the Democratic Party. So too with social media platform executives. And the leftward tilt of most colleges and universities indicates that they are only inadequately positioned to provide an appropriate counterweight. Commercial interests, long opponents of progressive economic policies, are coming around on many of them.  To make matters worse, the broader population, still reeling from the pandemic, is more welcoming of government action than usual, creating a kind of popular authorization for some fairly radical changes to economic policy

It isn’t, then, merely that we have a government increasingly in the control of persons with a predominantly progressive vision. We have a civil society, the major aspects of which also share that vision. 

Moreover, things aren’t likely to improve in this dimension, at least not in the medium term. The republican party platform (to the extent that there is one) is massively unpopular among young voters. Its flirtation with xenophobia will make it unpopular with immigrant voters. It has long lost favor with racial minorities and women. Thus unless the Democratic Party fractures along the fault lines it is clearly showing (or the GOP recovers some sense of itself), I imagine that we’ll see a sustained period of single-party dominance in each branch of government. Absent a cultural shift that seems as unlikely as it might be undesirable, our civil society will continue to lean heavily in a progressive direction.

Some might hasten to say that the GOP itself bears the primary responsibility for all of this. And they’d be (at least partially) right. The party has ceased being a principled proponent of limited government. It has become increasingly willing to wield its power to arbitrarily punish commercial actors that it dislikes (even when this is anathema to its stated commitments). We witnessed this in Trump’s lashing out at big tech firms and abuse of executive orders, and we’re seeing it now, as major GOP actors opportunistically threaten the MLB with sanctions for its recent opposition to Republican legislation.

But though the Republican Party may bear primary responsibility for the state of affairs that has me worried, it would be shortsighted to celebrate its (perhaps deserved) decline—at least so far as one is moved by the Millian reasons rehearsed above.

Montesquieu famously wrote that “every man invested with power is apt to abuse it, and to carry his authority as far as it will go.” The above reflections suggest that democrats have a substantial mandate for exercising their own newly won authority. And yet one does not have to be as pessimistic as Montesquieu was to worry that the accountability mechanisms of the current climate leave something to be desired. 

Those yearning for an end to gridlock may, in short order, have their wish. For those of us who appreciated the virtues of slowed political action, little is left but to hope that we are every bit as paranoid as we sometimes seem to our critics. The well-being of the nation depends on it.

Free Speech and Anti-woke Legislation

In a recently published paper, I defend what I call U.S. free speech exceptionalism (FSE) against recent objections from philosophers. FSE refers to the constellation of legal norms and precedents that makes it difficult in the United States to prohibit various kinds of undesirable speech. In the U.S., for instance, hate speech is protected, as is much obscenity and defamatory speech that is liable to legal limitation abroad.

Critics of FSE often worry that it is irrational. After all, the reason to constitutionally protect free speech is that doing so realizes several crucial positive goods. These are varied, but a typical list will include (among other things): discovery of the truth, autonomy, diversity, and enabling better democratic deliberation. But—and here’s the problem for FSE—it is easy to imagine that there are circumstances in which we better achieve those goods by limiting, rather than protecting, speech.

Far from promoting truth and democratic deliberation, FSE tolerates misinformation (including false defamatory or libelous statements uttered in the absence of actual malice). Far from promoting diversity, FSE tolerates hate speech, which issues in patterns of exclusion and dignitary harm. Far from promoting autonomy, FSE tolerates demeaning pornography which silences women where it can most matter to hear them speak.

One response on the part of FSE is to deny all of this. Another is to say, sure, there’s bad speech. But the best response to bad speech is more, better speech. I’ve never found these replies satisfying. The best response, in my view, is to own up to these facts, admitting that free speech does not always advance the values that justify it, admit that more speech will not always be forthcoming, and to say that, nevertheless, FSE deserves our allegiance. In virtue of what?

You can read the paper for the full answer, but the short version is that we should accept FSE because departing from it creates new powers on the part of governmental bodies to act in tyrannical ways. Knowing what we do about human psychology and political power, we have good reason to think that these new powers will be wielded against unpopular minorities. Even if we are convinced that the people that wield the powers in the near term will use them for good, perhaps progressive, ends, we should not be very confident that future leaders will. More than that, we should expect that those silenced by the good people in charge now will be eager to vie for power themselves and silence those who silenced them. By hypothesis, those silenced will not deserve that kind of treatment.

It’s easy to respond to this argument with skepticism. Indeed, I’ve received plenty of sideways glances when I’ve told people why I’m a fan of U.S. free speech jurisprudence.

Well, the politics of the moment has seen an uptick in proposals for legislation that, I think, makes the argument credible. Such legislation aims to suppress the proliferation of radical ideologies. A bill currently under debate in New Hampshire is a good example. It would make it unlawful for a state agency (or contractor thereof) to advocate for or train persons to believe certain tenets of critical race theory, among other things. To take a concrete example, the law would arguably bar a public university from paying a speaker who thinks that the history of the United States is inherently racist. There are several proposed laws like this. Jeffrey Sachs calls them the new anti-woke laws.

At least some of these laws seem to me unconstitutional, violating first amendment rights of educators, contractors, and state employees. For that reason, I do not expect them to be passed (at least not in their current forms). If they are passed, I expect them to be struck down by the courts. But these expectations are expectations formed in a context in which the judicial commitment to FSE remains strong. Weaken that commitment, and I’m less sure.

Liberals worried about these kinds of laws should renew their faith in strong protections for free speech and norms tolerating heterodoxy. Conservatives inclined to support these laws (due to worries that state agencies sometimes use their power to promote fringe ideologies) should instead continue embrace the constitutional free speech norms that would in some cases lead to their being struck down. For eroding those norms will also make space for progressives to gain power and legislate in similar ways regarding “reactionary” ideology.

Mill was right when he observed that liberal toleration for freedom of speech was rarely principled. He saw this clearly in the reformation, when early Protestants held toleration up as an ideal only when they perceived their powerlessness to impose their ideology on others with impunity. Generally, the human disposition to “impose [one’s] own opinions and inclinations as a rule of conduct on others”, Mill writes, is “hardly ever kept under restraint by anything other than but want of power” (OL: 13).

But it doesn’t have to be this way. Instead, we could embrace the imperfect modus vivendi that is FSE and convert opportunistic support for toleration into principled support. This, rather than attempting to sustain political power longer than our enemies (Sachs’ proposal), seems like the best way forward for our imperfect political union. Or so it does to me.

* Note: Thanks to Andrew J. Cohen for feedback on an earlier version of this post.

The Minimum wage and symbolic behavior

President Biden wants to raise the minimum wage (MW) to $15. Many politicians, labor unions, and others support this policy. The non-partisan Congressional Budget Office, however, predicted that raising the MW will cost 1.4 million jobs.

Economists already knew this, of course. By a simple application of the law and supply and demand we can predict that raising the MW will create unemployment: if employers are forced to raise their salaries they will hire less workers.

To be sure, the literature is not unanimous. A well-known paper by Card and Krueger used empirical data to question the conventional wisdom that the MW reduces employment. However, their findings have been repeatedly challenged (see especially here). I cannot adjudicate the issue here, but an intellectually honest examination (such as the one conducted by the CBO) must acknowledge that, given the extant specialized literature, there is at least a serious probability that raising the MW will cause unemployment.

Yet, in my conversations with supporters of the MW I have found a stiff resistance to even consider the objection. Some deny that the MW causes unemployment, often citing the Card & Krueger paper. This position is implausible if the MW supporter refuses to consider the evidence and arguments against Card & Krueger, especially given that the weight of expert opinion is on the other side. An honest observer should not cherry-pick the evidence and at the very least remain agnostic or cautious in support of the MW.

But caution is not what we see. Setting aside the evidence, some say that the MW is required for moral reasons. This is an interesting position, because it seeks to block empirical considerations in the evaluation of the MW. This is odd, however. If the MW has bad consequences, what could possibly be the non-empirical reasons in its favor? Maybe this one: support for MW expresses support for the poor, here represented by the lowest-wage earners. But if the MW causes unemployment, that means that by supporting the MW one fails to support the poor, since the unemployed are generally poorer than the MW earners.

Maybe the MW supporter can argue as follows:
(1) No one knows for sure if the MW creates unemployment.
(2) Supporting the MW expresses solidarity with the poor.
(3) Expressing solidarity with the poor is noble.
(4) Therefore, I am justified in supporting the MW, since in doing so I perform a noble action that does not have obvious bad consequences.

The two first premises are questionable. Premise (1) misrepresents the status quaestionis, as I indicated earlier. Economists have studied the issue, and the consensus is that there is at least a serious question that the MW will reduce employment. Premise (2) is dubious, because the expressive value of MW support is entirely parasitic on the mistaken belief that raising the MW helps wage earners without producing any bad consequences. This is a violation of Hazlitt’s injunction that in order to evaluate a policy, we must consider not just its effects on the group that benefits, but also its effects on other social groups. A policy must be evaluated by both its seen and unseen effects. Since (1) and (2) are false, (4) is false.

If the MW supporter instead claims that those already employed are morally deserving beneficiaries of the raise, then he must not only justify why them, and not others, deserve this benefit, but, as important, openly acknowledge that the policy will hurt many others. MW supporters never do this. They just deny or ignore these bad consequences.

I happen to believe that the best explanation of why many people support the MW despite the evidence is that they are grandstanding. They signal their compassion by taking advantage of the ignorance of the public about the functioning of labor markets. This is an instance of discourse failure: the public assertion of a falsehood where the speaker has truth-insensitive reasons for saying what she says.

But even taking the MW supporter at her word, that there are non-empirical, or moral, reasons for such support, the position doesn’t hold. Symbolism may have a place in certain contexts. Think, for example, of a public expression of solidarity with victims of genocide. Even if such act does not save the victims, the symbolic expression of support may be an appropriate or commendable act.

But symbolism has no place in the realm of economic policy, where outcomes control. If people support the MW in the name of helping workers, and it turns out that the MW hurts more workers than those it helps, then that should end the debate.

Thinking about Covid Vaccine Distribution

Although the ideal is to get everyone vaccinated, there currently are not enough doses, so while they’re making more, we get to argue about who should receive the doses that already exist.  Different suggestions imply something about underlying ethical principles and intuitions.  It seems mostly uncontroversial that health care workers ought to be vaccinated first.  If you can remember back to when we used to go places on airplanes, recall the safety announcements: please make sure your oxygen mask is secure before helping others.  The logic here is impeccable, if slightly counter-intuitive.   Even if you feel strongly that you need to tend to the needs of others above your own, if you pass out from oxygen deprivation, you can’t help anyone, plus you’re dead too, so that’s the wrong answer.  Securing your own oxygen first is thus not merely self-interested, it’s also the necessary condition for your helping others.  This is allegorical for lots of things, but particularly on-point here: if we’re worried about a global pandemic, it’ll just make things even worse if the health care workers get sick.  If they get sick, who will take care of me?  So it makes good sense for them to vaccinated first.  And of course we wouldn’t have this problem if there were more doses available. So people who work in labs that study and create the virus seem like they ought to receive priority as well.

After that, it’s less obvious.   Some considerations pro and con for various candidates:
The Elderly
Pro: they’re more at risk of serious complications and death
Con: they’re also more at risk of dying of other things
The Young
Pro: they’re more likely to violate social distancing protocols and participate in spreader activity. 
Con: they’re less vulnerable to serious complications and death.
Note that the analysis of old-vs-young folds in on itself.  It’s not the 80-somethings who are going to bars, nail salons, gyms, frat parties, the mall.  So if the main concern is spreader activity, that’s an argument for vaccinating younger people, but if the main concern is harmful consequences of actually getting the virus, that looks more like an argument for vaccinating the elderly.

Front-Line Workers – no one has a precise definition for this, but it seems to be a way to categorize people like the grocery store workers and bus drivers.  The argument here is that we are all dependent of the continued functioning of things like supermarkets and transportation systems, so it’s in everyone’s best interest to make sure they’re healthy.  But how about:
Teachers – since the schools are closed, not only are students suffering from suboptimal education, but parents of school-age kids have had their work disrupted, and in many cases were obliged to stop working entirely.  And indeed, many heath care workers and people in the “front-line” category are parents of school-age children, so it’s in everyone’s best interests to reopen the schools as soon as possible.
The counter-argument to both of those is that there’s no precise and uncontroversial way to prioritize how important one job is relative to another. 

What about political leaders?  If politicians get sick, how will we ever manage as a nation? Maybe the sarcasm of that remark doesn’t translate into writing, but seriously, one argument in favor of vaccinating political leaders is that it might mitigate the sort of conspiracy-theory resistance to vaccination.  While I don’t think politicians deserve greater protection from the virus, there’s a consequentialist argument for them being vaccinated publicly, if it helps disabuse people of irrational fears.

Another dilemma arises from the suggestion that even though one is supposed to get two doses, maybe we could trade off instantly doubling the supply for mitigated effectiveness.  That’s a different sort of approach to thinking about who gets it.  That seems like a tradeoff that, in principle, we could evaluate empirically, but in reality will take more time than we have.  So proponents of either are gambling, to some extent.  If two people have headaches, and there is only one 500-mg Tylenol in the house, one way to go would be to have one person take it, reducing the total number of headaches by half, but the other way to go would to break it in half and give each person 250 mg.  That seems “more fair” in one sense, but would this result in two people with slightly-improved headaches, or two people who still have headaches?  If it’s the latter, that means the medicine has been wasted.  Again, before moral reasoning can be applied, we’d need some empirics.

So, it looks like the right order of priority is:
Health care workers
Lab scientists and workers who study and create the vaccine
Philosophers (because the rest of the dilemmas are still not obvious)