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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. (As J.S. Mill recognizes in chapter 5 of On Liberty.) 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 embrace the constitutional 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 it was clear that early Protestants usually 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)

I, Lockdown

There’s tons of online debate about whether lockdowns are helpful to fight the pandemic.  I have no idea whether they’d be helpful or not, but I suspect that they’re impossible anyway.  In his essay “I, Pencil,” Leonard Read famously highlights the vast interconnectedness of millions of people that lies behind seemingly-mundane phenomena like 20-cent pencils at Staples.  Echoing more academic treatment of similar themes in Hayek and Simmel and others, Read reminds us in laymen’s terms just how complex these networks are: not only do you need someone cutting down cedar trees, you need someone making saws and work boots and rope and chains; then you need trucks to transport the lumber to a mill, which means truck drivers, and people who manufacture trucks, and fuel for the trucks, which means people who drill for oil, and refine the oil, and all these people need coffee, which means coffee growers, exporters, importers, roasters, and so on.  I have been reminded of this fundamental lesson several times during the pandemic as pundits would occasionally say things like “if we could just shut everything down for a few weeks, we could stop the spread.”  But the problem is not that people are too selfish or stupid to stay home (though some are, to be sure), it’s that the very idea of “shut everything down” is a misnomer at best; at worst a deliberate red herring.

The Read-ian reason why we can’t actually “shut everything down” is that there are so many exceptions, each of which entails a vast web of corollaries.  Thinking about it just for a moment, look how deep it gets.  Don’t worry about whether you think any of these is essential; what matters for the exercise is that most people would.

A. Soldiers

B. Cops

C. Firefighters

D.  EMTs/Ambulance drivers

E.  All of these need support staff, road maintenance, mechanical and fuel supply workers, etc.

F.  All people who work in hospitals, including but not only health care workers

G. E again, for the people in F

H. Lawyers and judges and corrections officers

I. E again, for the people in H

J. child care workers for the people in A-I

K. Grocery store workers

L. The people who make/grow the food

M. The people who transport the food from L to K

N. E and J for people in K-M

O. That means we’ll need public transportation operators, and E and J for them also

P. Journalists, broadly construed to include people who make newspapers, tv, radio

Q. Power supply workers

R. So, even more E and J

And so on.  This exposes the fundamental fallacy in saying “shut it all down.”  We couldn’t if we tried.  That’s not to say, of course, that we shouldn’t practice social distancing until the pandemic is over.  But an actual shutdown, like a pencil, is something no one actually knows how to make.

110 Harms of Crony Capitalism

David Forsyth interviews me about crony capitalism. While cronyism is both unjust and harmful, I argue that not all businesses that engage in cronyism are equally at fault. And some may not be at fault at all.

But you may prefer to read my discussion of crony capitalism in, where I also reject the claim made by some libertarians that seeking tax credits is not cronyism because “the state never had a right to impose taxes on us in the first place.” This argument proves too much. If it’s ok to seek tax credits, it’s also ok to seek subsidies and low‐​interest or guaranteed loans, because they also draw on the taxes that the state “never had a right to impose on us”.

Libertarians Should Support a Politics of Place (and Vote Local)

I’m reading Ezra Klein’s book Why We’re Polarized with my students this semester and while I disagree with some of his prescriptions, his diagnosis seems accurate and at least one prescription seems particularly powerful: the importance of building a politics of place.

Klein’s overall point, which I think is mostly right, is that our focus on national politics polarizes us in a way that is both actively harmful to American civic life but that also undermines the areas where our votes and our advocacy and our opinions have an actual chance of making a difference, namely the state and local level.

In general in American politics, there’s far too much emphasis on national politics and not nearly enough on state and local politics. The reality is that the vast majority of the really awful rights violations – at least those affecting American citizens – are done by the state and local governments. National politics tends to brutalize people overseas or those trying to enter our country, but it is state and local politicians that profit off the poor, brutalize the vulnerable, execute the innocent, and engage in a variety of corrupt and vicious practices that make us all worse off. (The Innocence Files on Netflix, produced in conjunction with the Innocence Project, is a good reminder of how brutally unjust state and local governance can be).

Klein’s argument is not new. It’s basically the same argument made by the Anti-Federalists against the Federalist support of strong national government, made by Hayek in his essay “The Use of Knowledge in Society”, and made by many other libertarians in their support for bottom-up economic policies, but I see it less explicitly when libertarians talk about politics. In fact, I’ve seen Facebook posts from a lot of well-known libertarian scholars this week poo-pooing voting in general. What all these posts focus on is the Biden-Trump binary, as though voting for president doesn’t also usually involve voting for lots of other people in lots of other elections that we might very well have an impact on at the same time.

It seems ironic that libertarians seem to have fallen for the same sort of nationalism that other people have. Possibly it’s a visibility issue. The federal government is huge, unwieldy, very expensive, and kills hundreds of thousands of people overseas, so it seems like a good enough target for small government ire. And of course federal elections are in fact pretty stupid. Your vote won’t really count in any meaningful mathematical way (though it may count in a symbolic way, which is often overlooked).

But we need to keep our sights on two levels of government at the same time: the federal government’s bloat and mismanagement as well as state and local government’s immediate effects on people’s lives. And of course as many people have pointed out, your vote may in fact have an effect on a local election, while it’s very very very unlikely to have an effect on a national one, particularly with the electoral college in place.

State and local governments are precisely the best targets for libertarians for a lot of reasons. States decide who gets life in prison or the death penalty and local prosecutors decide whether to use coercive plea deals or hide exculpatory evidence and local police decide whether to police for safety or profit or whether to choke unarmed men to death. Not only that, but your state representatives also decide how democracy itself functions when they decide whether and how to gerrymander districts, whether third parties like the Libertarian Party get a chance at all with systems like ranked choice voting or whether, as in New York State, the governor simply wields election law as a way to punish third parties that criticize the job he’s doing.

If we took Hayek seriously we’d reject national politics as largely out of our control and instead embrace local and state politics. If we took Hayek seriously we’d vote more often in local elections, we’d use our Facebook platforms to encourage local voting on issues relating to criminal justice reform and other areas of serious injustice, and we’d run for local office more, advocate for local reforms more, and generally engage in much more local activism than I think we as libertarians generally do.

That’s a loss not only for the visibility of libertarian principles, but it also weakens our bench when it comes to actually getting libertarians into political office upstream (assuming that’s a worthwhile goal). But more than anything, the libertarian disdain for democracy (rightly criticized by people like Jacob Levy) knocks us out of the elections – whether as voters or candidates – where libertarian positions are the most needed and most likely to be heard. And that’s a loss for us all.

Why Do Horrid People Have Rights? (Part II)

In Part I, I showed that justifying liberty rights on the grounds that we need them to pursue eudaimonia fails to show why people who are incapable of pursuing eudaimonia have liberty rights. Here I will ask if a less ambitious justification can include the excluded people.

According to Loren Lomasky, most of us are project-pursuers (CE*), setting long-term goals for ourselves and creating personal value. Personal projects give our lives structure and meaning. Indeed, they are part of our very identity (CE*). Lomasky argues that it is this that endows each project-pursuer with a separate, irreplaceable value, and grounds rights.

However, according to Lomasky, it is not only project-pursuers who have rights. Some non-project-pursuers have rights by virtue of their membership in the moral community of project-pursuers who have “the rational motivation … to recognize and respond to” non-project-pursuers (199). This is why those born so mentally incapacitated that they will never pursue projects, as well as those who can no longer pursue projects on account of dementia, have rights. They are proper objects for “the respect of others” (199). All these individuals ‘piggyback’ on the status of project-pursuers as rights holders. If the vast majority of human beings were not project-pursuers, no one would have rights.

So there are two bases for ascribing rights to people: project-pursuit and membership in a community of project-pursuers. This argument, if sound, justifies the ascription of rights to far more people than the eudaimonistic argument. In addition to those who will never pursue projects and those who can no longer do so because of dementia, it also allows hopeless addicts to count as rights-bearers. But it leaves the fate of the psychopath and the vicious man in limbo. Full-fledged psychopaths are not and never were project-pursuers because they don’t have long-term goals. One of the most enduring traits of a full-fledged psychopath is his impulsivity – giving in to the desire of the moment. Hervey Cleckley observes that the “[full] psychopath shows a striking inability to follow any sort of life plan consistently, whether it be … good or evil. He does not maintain an effort toward any far goal at all. … On the contrary, he seems to go out of his way to make a failure of life…. At the behest of trivial impulses he repeatedly addresses himself directly to folly” (CE*) (364). 

Is the psychopath a member of the moral community of project-pursuers? If being a member simply means ‘living in society’, then of course he’s a member of the moral community. But if it means that he is recognizable as “a proper object for the respect of others” (199, my italics), then he is not, since he inflicts harm and psychological pain on family members and strangers without guilt.[1] It seems that neither of Lomasky’s arguments can justify ascribing rights to a psychopath. Yet we do think that he has a right to liberty unless or until he violates someone’s rights.

The vicious man described in Part I, whose supreme joy lies in seeing others suffer, but who is smart enough not to violate others’ rights, poses a different problem. He does have a project: the project of making others suffer. This project might give meaning and structure to the vicious man’s life, but its meaning for others is completely negative. Hence he, too, is not a proper object of our respect. The same applies to other varieties of anti-social personalities. Yet we do think that they ought to live free so long as they don’t violate anyone’s rights.

We are either wrong to believe that full-fledged psychopaths (who, by their nature, cannot become project-pursuers), vicious people (whose projects are intentionally inimical to other people’s projects), and anti-social personalities have liberty rights, or we have to look for a different justification.

Let’s start by asking why we might not want such people to have liberty rights. The main reason is that they inflict misery on others without rhyme or reason. But we don’t have a right against misery, because such a right would conflict with many of our liberty rights. It is morally wrong to be a treacherous lover, an unjust boss, a hateful neighbor, a domineering parent, or a nasty teen, but we all have a right to be thus. A right against misery would also conflict with our liberty to behave in perfectly decent ways, because even decent behavior can be a source of misery for some. For example, a young woman who marries someone with the ‘wrong’ politics, religion, or skin color can make her parents miserable. So if the parents had a right to be protected from misery, it would follow that their daughter did not have a right to marry the person she wants. Again, a son’s decision to become a businessman, instead of a musician like his father, might make his father miserable. But the father’s right against misery would mean that the son does not have a right to become a businessman. As these examples show, a right against misery can be self-defeating, since A’s lack of liberty to inflict misery on B is often B’s liberty to inflict misery on A. The idea that we have a right to be protected from misery opens wide the door to government overreach and a violation of many of our rights. It invites the government to become a predator instead of a protector. If we are made miserable by others’ behavior, we need to rely on friends, relatives, or psychologists for support. So psychopaths and other trouble-makers can’t be denied their liberties on the grounds that they make us miserable.

But what is it about them that grounds their rights? The only answer is that, for all their badness, many psychopaths, vicious people, and anti-social personalities have the ability to not violate our rights, even if only for purely instrumental reasons. It is this ability that gives them a right to liberty. This answer of course applies to everyone with this ability – the virtuous as well as the vicious, and everyone in between. But in the case of everyone other than the vicious, the anti-social, and the psychopathic, we also have other reasons to regard them as rights-bearers, reasons that show the importance of rights in human life.

[1] It’s possible that what Lomasky means by ‘respect’ is simply ‘respect for us as rights holders. But that makes his argument circular: we have rights because we are proper objects of respect, and we are proper objects of respect because we have rights.

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Why Do Horrid People Have Rights? (Part I)

Neera K. Badhwar

Individual rights to life, liberty, and property protect our freedom from others’ interference. Rights are claims on others to refrain from initiating physical force on us or defrauding us. Having and respecting rights implies, for instance, that we have a right to buy a house for ourselves, but no right to throw out the owners of a house in order to make room for ourselves. To do so is to invade (in this case, both literally and metaphorically) the occupants’ protected space of freedom to own that house. Rights are boundaries marking the extent of our freedom to act as we please, and both government and individuals are morally bound to respect them. Force is justified only in self-defense or, in the case of government, in defending our rights. On the libertarian conception of rights and the limits of state power, governments may not force us to do or refrain from doing things in order to make us more happy, healthy, or moral. Rights prohibit governments from passing and enforcing paternalistic or moralistic laws and policies.

What is it about us that grounds rights, in particular, our rights to life and liberty?  Most philosophers appeal to our nature as rational, self-directed beings, beings with the capacity to act on goals we set for ourselves. We own our minds and bodies the way we own our property, and no one may use our bodies or property without our consent. Another way of capturing this thought is to say that we are ends in ourselves (see, for example, Nozick (CE*) and Mack), with ends of our own, not mere means to other people’s ends. No matter how noble the goal to which the government or society want to sacrifice us, if we don’t consent to being sacrificed, it is wrong of them to do so. Rights prohibit them from treating us as mere means through physical force or fraud – they protect our ends-in-ourselves-ship. This is why they are morally important and worthy of respect.  

The mere fact that we have ends of our own, however, doesn’t seem enough to justify the importance of rights in libertarian theory. After all, our ends can be banal, such as mindlessly watching sitcoms and eating popcorn all day long. Some philosophers (e.g., Rasmussen and Den Uyl-CE*) argue that rights are important because they create the conditions we need to pursue our ultimate goal as human beings and individuals: eudaimonia. Eudaimonia is happiness in a virtuous life,and we need to be left free to direct our choices as we see fit in order to achieve it. Without freedom of speech and action, we have little chance of achieving a mature understanding of right and wrong, much less of aiming at virtue and eudaimonia.

This argument, however, can’t explain why everyone who is commonly regarded as a rights-bearer ought to be so regarded. Most people are mixed in their character and actions. Although they don’t assault others, or steal their property, or defraud them (in a big way), many do engage in small dishonesties when they can get away with them (see Ariely). We are familiar with politicians lying to us in order to win votes or save face, and with businesses unjustly seeking favors from politicians in order to outdo the competition. There’s little reason to think that the rest of us would be much better if we were in their situation. The chief aim of many people is to avoid trouble with the law and get along with others. They are likely to be virtuous with those they love, and many earn their living in a worthwhile enterprise. But they are far from having the moral ambition to become better people overall, as they must to have rights according to the eudaimonistic argument.

The eudaimonist could say that if our rights are respected, at least some of us might improve morally, since we all have the capacity to do so. There is no way to tell in advance who will and who won’t. But this answer leaves out many categories of people.

Addicts who are incapacitated by their addiction do not and cannot aim for virtue. Indeed, they cannot even will to aim for virtue. Their natural capacity for doing so has been swamped by their ‘second nature’ – their addiction. Yet on the libertarian view, which the eudaimonistic philosophers share, they too have the right to act as they choose, so long as they don’t violate other people’s rights. Libertarians don’t think that it’s permissible for the government, or for the addicts’ relatives, to haul them off to an institution for treatment so that they can recover their capacity for trying to become virtuous. Again, children born with severe mental defects will never strive for virtue, and adults who develop dementia will never again do so.

Psychopaths, thought to constitute roughly 2% of the American population, are also a problem for the eudaimonist thesis. Full-fledged psychopaths are incapable of love or empathy, psychopaths inflict harm and psychological pain on family members, friends, and strangers, without guilt. They are rational in the sense that they can fit means to goals, and understand arguments for acting in certain ways and not others. But they are not rational in the sense that they can understand the significance of these arguments. Hence, they are not moved by their understanding. In other words, they have theoretical rationality, but not practical rationality. This is why the psychiatrist, Hervey Cleckley (CE*), who has seen hundreds of psychopaths in his practice, describes their appearance of sanity as a mask. Yet if they don’t violate others’ basic rights by assaulting, killing, robbing, or defrauding them – and many don’t – they are considered as having rights, and we are under an obligation to respect their rights. The same applies to other brands of trouble-makers, such as people with anti-social personalities. Extremely vicious, but non-psychopathic, individuals, whose aim in life is to create trouble for others, and who take joy in seeing others suffer, but without violating their rights, also pose a problem for the eudaemonist thesis. There is little reason to think that they can change for the better, and no reason to think that they can if they are close to death. Yet we don’t strip them of their rights as they approach the end.

Trying to justify rights on the grounds of people’s capacity to pursue eudaimonia implies that many people we think have rights, don’t. It seems that the more exalted our view of human nature and human action as a basis for respecting rights, the smaller the number of people we can justifiably regard as rights-bearers.  

In Part II I’ll consider a less exalted view of human nature as a basis for rights to see if it can justify ascribing rights to people who are excluded by the eudaimonistic justification. It will also become evident in Part II that the same justification does not work for everyone.

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