Contraceptives, Immigration, and the Great Libertarian Convergence


A plausible interpretation of America and the world at the moment is that the imperatives of the 21st century global marketplace are so powerful they trump anything religious and political leaders say or do.

Techno-economic change does not, to be sure, trump anything and everything that nature might do. We recently had the near-miss of the stormy sun disrupting our electric grid and plunging us into the 18th century, and experts think there’s a 12 percent that could still actually happen over the next decade. That’s a lot more scary, if you think about it, than the possible long-term effects on the climate of anthropogenic global warming, although I’ll admit there’s an inconvenient truth or two there, too.

There’s also, of course, the disturbingly successful indifference of Putin and ISIS to the market, and the maybe more disturbing agility by which the Chinese manage to be both authoritarian nationalists and techno-cagey capitalists.

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Is There Standing to Challenge Obama’s Deferred Action for Childhood Arrivals Program?

Two years ago, President Obama adopted the DACA Program, which announced an enforcement policy that “defers deportations from the U.S. for eligible undocumented youth and young adults, and grants them access to renewable two-year work permits and Social Security Numbers.” It has often been said that there is no way to challenge this program, since no one has standing.

But I wonder whether this is true. Imagine the following scenario. An employer interviews to fill a position and ultimately decides to hire A, with B his second choice. A is an individual who has a two year work permit under the DACA Program. The employer would not hire A if he were not “authorized” by the federal government to work. In that event, he would hire B. B sues on the ground that the DACA Program is illegal and prevented him from securing a job.

Is there standing? I think there might be. Based on the facts, B would get the job if the DACA Program were found to be illegal. Thus, there is injury in fact, causation, and redressability.

Of course, this lawsuit would require the cooperation of the employer in the sense that the employer would have to admit that he would not hire A without the program and that he would otherwise hire B. But some employers may sympathize with the lawsuit.  Moreover, this cooperation should not defeat the lawsuit in that the employers action would be genuine and would not have been done solely for the purposes of the lawsuit.

It is true that the Supreme Court has at times not recognized standing when the lawsuit seems to involve an intrusion into the executive branch, as in Allen v. Wright, but this case does not seem to raise the same issues. Moreover, in other cases, such as Lujan v. Defenders of Wildlife, the Court has not recognized standing when there are mere possibilities that harm will result, but in this case, the harm seems very likely.  In any event, the core of standing doctrine would seem to allow this lawsuit, even if there was some chance that the courts would not recognize the lawsuit, and therefore it would be worth bringing the action.

Perhaps I am missing something. But if not, then perhaps it is time for opponents of the legality of the DACA Program to get on it.

Hayekian Sifting: The Role of International Competition

Hayek argues that international or inter-society competition will cause regimes to evolve for the better through natural selection:

Most of the steps in the evolution of culture were made possible by some individuals breaking some traditional rules and practicing new forms of conduct – not because they understood them to be better, but because the groups which acted on them prospered more than others and grew.[1]

I take the argument to be that when one or a few societies stumble on sound rules, their innovations will spread to others by competitive selection. My object here is to reflect on how (if at all) international competition might prove to be an evolutionary process that enhances human flourishing, specifically by increasing the prevalence of regimes that do so.

Of course Darwinism posits survival of the fittest, but it defines the fittest species as those best adapted to survive. What we care about is significantly different: social systems that enable individual human beings not merely to live in a surviving polity, but to flourish, and to flourish in a more subtle way than simply accumulation of numbers or living in a powerful state. So Darwin’s evolutionary model doesn’t map directly on to what we really value.

So I was a little surprised to find a statement by Darwin that at first blush seemed to support the idea that competitive selection would lead to improvement in social systems (measured in terms of individual flourishing):

Selfish and contentious people will not cohere, and without coherence nothing can be effected. A tribe rich in the above qualities would spread and be victorious over other tribes: but in the course of time it would, judging from all past history, be in turn overcome by some other tribe more highly endowed. Thus the social and moral qualities would tend slowly to advance and be diffused throughout the world.[2]

But it’s apparent that Darwin’s statement is not necessarily related to individual human flourishing. Suppose it were brutal totalitarian regimes that reduced the prevalence of “selfish and contentious people”? I’m trying to take very seriously Hayek’s assumption that we don’t know in advance, indeed can’t know in advance, what social institutions are best for people. Competitive selection might lead to regimes that are great for the state and miserable for human beings.

There seem to be at least four domains of international competition that might be relevant: (1) war, (2) trade, (3) migration of firms and individuals, and (4) imitation. In all of these domains, one can see advantages for societies that enable individual flourishing, but in all there are caveats, drawbacks, offsets, uncertainty.

1. Military. This seems to be what Darwin had in mind. And one might look at history from 1939 to 1991, for example, as support for the view that “good” societies have an advantage. Smoothing over some rough edges (e.g., the democracies’ alliance with the Soviet Union in 1941-45), one can see this as the triumph of humane social arrangements over strikingly inhumane ones. The triumph over totalitarianism surely owed something to the far greater productivity of free societies, which in turn surely owed something to individuals’ freedom to invent and to develop their inventions. While the rulers of the Soviet Union could devote 25% or more of GDP to arms, with similar pre-World War II figures for Nazi Germany, the western countries, despite allocating far lower percentages of GDP to arms, were able to at least match their adversaries – and prevail. And it would also owe something to the individual initiative that soldiers from a free society seem more likely to take.

But the causal chain between freedom and victory isn’t altogether clear. First, we have to start with the truth that the totalitarian Soviet Union shouldered an enormous share of the costs of the war with Hitler.

Second, as a general matter, the relation between human flourishing and national military prowess seems at best highly contingent. Athens or Sparta? Which of these would we like to win? Surely not the grim Spartan helots. What’s good for a nation’s competitive military position and what’s good for its citizens are (despite some overlap) hardly identical.

Third, serious military competition itself, especially in modern times, is in pretty direct conflict with human flourishing. We start with the obvious cost in blood and treasure. Then there is almost bound to be some militarization of the population. And in modern times the state is sure to grow in response to exigencies of war. It is said that the great Washington law firm of Covington and Burling was born with its founders’ insight that the government, having assumed command over the economy in World War I, was not about to let go. That proved a very good bet.

Of course some of these downsides of war would be less for conflicts that don’t reach “hot war” status, but end with one side’s collapse. Obviously the Soviet regime’s meltdown stemmed in part with the regime’s bad fit with the human mind and spirit: regime fatigue, the quite heroic resistance of dissidents, moral revulsion within the Soviet elite. But cold wars may get hot, and even in the cold form may produce many of the drawbacks of a hot war.

Most fundamentally, however, the problem with military competition as the domain for fulfilling Hayek’s intuition is that it is unclear that there is any necessary connection between the flourishing of a society and the flourishing of the people within.

2. Trade. Of course firms compete in international trade, and, everything else being equal, one can expect a society that allows ingenuity to flourish to have more valuable goods and services for sale. But so what? The point of trade is that it makes both sides better off, so I’m not sure what it would mean to characterize a free society’s productivity as a trading “advantage.” And under Ricardian comparative advantage, it would be no obstacle to trade for one society to be unambiguously less efficient than another in production of all goods; the less efficient society can still gain (as against the no-trade alternative) by offering for sale the goods that it, by its own terms, produces most efficiently (or, more realistically, least inefficiently).

Another angle is that firms in nations A and B may compete with each other to make sales to buyers in C, and trade itself, plus the spur of competition, are likely to benefit people in all three. As between A and B, firms in the state more conducive to human flourishing seem likely to capture more markets, so that these states may become the richer ones.

Finally, international competition in trade may lead to agreements aimed at discouraging protectionist behavior. Thus McGinnis and Movsesian urge that the WTO adopt rules somewhat like the negative commerce clause, and they report that in fact its existing provisions do so to a large extent.[3] But this would seem like a contribution to good governance that we owe more to international cooperation than to competition (except, of course, international competition is trade that precipitated the cooperation.

3. Competition for in-migration of firms and individuals. A free society seems to have a clear advantage in the quest for in-migration of intelligent and dynamic individuals, and the firms that such people start or run. And they will also be attractive for firms deciding where to site new enterprises (and to resite old ones). Thus the reference at the end of the passage from Hayek: the groups acting on good ideas of social organization “prospered more than others and grew.” You couldn’t begin to count America’s benefits from the influx of people threatened by Nazi and Soviet totalitarianism. But those are just the most extreme examples. Beside them are centuries of migration by people whose opportunities in their native countries were stifled by an array of policies that frustrate hard work, risk-taking, and entrepreneurial effort generally. Freedom’s appeal to bright people goes back a long way: The relative freedom of discussion in ancient Athens (and Plato’s brilliant use of that freedom) drew Aristotle to Athens.[4]

Here you have individuals making choices for themselves (and the people they in turn attract to work in their firms). The choices are ones that it would seem we can trust. At least if people can subjectively assess their own welfare, migration – and thus the competition for migrants – tells a powerful tale.

The tale is potentially undercut by the possibility that some immigrants are drawn by welfare entitlements. But to the extent that that may be so, the policy and institutional choices that Hayek believes flourish through competition would seem to include policies and institutions able (where it is important to do so) to screen out that kind of immigration.

4. Emulation. If with Brandeis you see the states as laboratories of experiment, obviously nations in the global system can be experiments on a grander scale, with everyone able to observe and, where they believe a policy or even constitutional innovation to have been successful, to emulate it.

The obvious drawbacks here are the frequent ambiguity of the evidence and the fact that it is policy-making elites who are likely to make the judgments about what policies are worthy of emulation. Individual human flourishing may not be at the top of their priorities. But even if that is the case, evidence accumulated in nation v. nation comparison can at least make rejection of beneficent policies more costly: an example from the United States is the role of intra-Texas and intra-California airline regulation (more accurately non-regulation) in mobilizing the Civil Aeronautics Board and then Congress to deregulate the airlines.

A case nicely combining migration and emulation is the policy of welcoming Jewish immigration adopted by William of Orange, when he took the British throne in 1689. Not coincidentally, some of his military expeditions had been financed by Dutch Jewish army contractors. “[U]nder William, and then under Queen Anne, the precariousness of the existence of Anglo-Jewry melted away.”[5] Evidently, then the new policy encompassed not just immigration but also religious tolerance more broadly.

The hardest part of this exercise (at which I’ve probably failed in places) is to keep one’s eye on individual advantage while looking at international competition. If we do so, competition for immigrants seems to emerge as the grand winner, because it is individual choice that screens the policy or institutional menus offered by nations. Nor need the competition necessarily tend toward a single optimum: just as the Tiebout hypothesis suggests the possibility of multiple suburbs offering different packages of taxes and services, so the world may be led by international competition to offer varying ways for advancing human flourishing, but all advancing under the spur of competition. At least it may do so if direct nation-to-nation competition doesn’t stand in the way (and doesn’t track individual flourishing).


[1]Friedrich A. Hayek, Law Legislation & Liberty, III, 153 (1979) (reprinting a lecture of his published as “The Three Sources of Human Values,” 12-13 (London School of Economics and Political Science 1978)).

[2] Charles Darwin, The Descent of Man and Selection in Relation to Sex, 2d ed. (New York: Appleton, 1898), 132.

[3] John 0.McGinnis and Mark L. Movsesian,“The World Trade Constitution,” 114 Harv. L. Rev. 511 (2000).

[4] See Rebecca Goldstein, Plato at the Googleplex 152 (2014).

[5] Geoffrey Alderman, The Jewish Community in British Politics, pp. 4-5 (Oxford, 1983).

Federalism in the Weeds

Federal law (the Controlled Substances Act) prohibits the possession, use, sale etc. of marijuana. What to do about state laws, such as Colorado’s, that not only permit but affirmatively license (and regulate) this commerce? For an instructive discussion of the legal problems, see this debate, co-sponsored by the Federalist Society and the Center for Business Law and Regulation at Case Western Law School (headed by the excellent Jonathan Adler, who organized and moderated the event).

Most conservatives, myself included, find this difficult. On one hand, why shouldn’t states be allowed to have their own laws on marijuana, just as they do on alcohol? On the other hand, there’s the rule of law—in this case, the CSA, which plainly preempts conflicting state laws.

The Department of Justice has finagled the problem through memoranda, pronouncing that it won’t enforce the CSA (for now) in states that have licensed marijuana possession and sales. Par for the course, I suppose: what’s good for immigration law, the ACA, and the Clean Air Act (more soon) is good for the CSA. We’re not really talking about enforcement discretion here; we‘re talking about the suspension of law. It’s the province of the executive of what the law is. And its “law” creates a kind of shadow world. Who really knows what health insurance policies can or can’t be sold, and to whom? Similarly, a federal (provisional) promise not to enforce the criminal sanctions of the CSA against pot sellers in Colorado doesn’t mean the seller can find a bank to handle his account (that remains a crime) or a lawyer (can’t advise a client to violate federal criminal law). Municipalities that aid and abet the conduct remain subject to RICO, among other statutes.

Not a good situation. Before mounting our rule-of-law ponies, though, let’s ask: what would or should a Republican administration actually do—enforce the CSA, ACA, CAA, etc? That does not sound like a good idea? Ask Congress to change the law? It could ask, but it won’t get an answer. Now what?

Friday Roundup, November 22nd

  • A new Liberty Law Talk is available on how the growth in interest group politics and a centralized administrative state undermines America’s exceptional principles regarding immigration.

The story of the Affordable Care Act is as twisted and bizarre as anything ever written by Stephenson, Kafka, or Orwell. It is an Act that saw the President oppose his signature legislation, before he supported it, and that saw the President’s challenger sire the Act, before he disowned it. The Act sparked conservative outrage around the country, though it was conceived in the heart of the conservative movement. It passed only through handouts to some States, but was partially stricken as violating the financial free will of all the States. And, of course, it is an Act that raised no taxes, but that survives as a valid exercise of the taxing power.

Immigration and the American Exception


This next conversation is with Richard Samuelson on the constitutional principles that have guided our nation’s approach to immigration, that is, until recently. In an essay in the Summer 2013 Claremont Review of Books, adapted from an academic version published in Citizens and Statesman, Samuelson argues that

Our political institutions strive to treat individuals as individuals, who relate to the government on that basis, rather than as parts of groups, castes, or classes. A regime dedicated to protecting the rule of law and the rights of men–including the right of each individual to make his way in the world, and to keep the rewards he gains for his work and talent–was the key to making America a beacon for wandering peoples, and for immigrants in general.

Things changed, Samuelson observes, with the tremendous growth in government power and its centralized administrative capabilities. This fact alone threatens to fundamentally change our exceptional approach to welcoming new entrants to the country. In short, the federal government relates to Americans not as individuals but as members of divers groups, rent-seeking, special interest, race, gender, the list is long. Consequently, the federal government no longer understands the individual citizen as deserving of equal treatment apart from group membership. If this is true, and much evidence suggests it is, our approach to immigration will be the management of hyphenated groups and not persons “as equal citizens, creating together the government by which we secure those public goods that cannot be secured any other way.”

The Conscience of a Madisonian Conservative

Nathaniel Peters’ review of Robert George’s Conscience and Its Enemies is an insightful introduction to the Princeton scholar the New York Times Magazine resident anthropologist of conservatives, David Kirkpatrick, described as “this country’s most influential conservative Christian thinker.” Aptly titled, “The Dynamic Unity of Conscience,” the essay was almost entirely devoted to George’s understanding of marriage and the philosophic analysis that supported it. In summarizing George, Peters elegantly illustrates how conscience is the first pillar of a decent society, followed by marriage, justice, education, and wealth. Conscience is the central philosophic issue to be sure, but a broader audience might appreciate how George’s understanding of the conscience influences his public policy choices.

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Making Free Men and Women

Richard Samuelson’s timely Claremont Review of Books essay, “The Genius of American Citizenship,”  presents the Founders’ argument for the citizenship of American exceptionalism, as opposed to the cultural and economic arguments that have dominated today’s debate over immigration. As Jefferson feared then, citizen identity without a sense of political duty will produce a “heterogeneous, incoherent, distracted mass”—the conditions for centralized bureaucracy we are seeing ever more realized today.

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Libertarian Wars

One of libertarianism’s more admirable traits is its spiritedness, a welcome addition in a grey world. My blogging colleague Mike Rappaport adds thoughtfulness to spiritedness in his various elaborations on libertarianism. Lately he has asked what a libertarian immigration policy  might be and has responded to Michael Lind’s provocation that there are no libertarian countries.

Mike’s responses raise questions fundamental to the adequacy of libertarian thinking. I speculate that a kind of universalism originating in the Declaration of Independence underlies his thinking, but that a decisive Lincolnian correction is needed.

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Why Coolidge Matters

coolidge sternI’m on my way to an event Coolidge biographer Amity Shlaes organized in his hometown of Plymouth Notch, Vermont. In preparation I looked over Coolidge speeches and Amity’s indispensable book, discussed here. And I’ve just completed Charles C. Johnson’s Why Coolidge Matters: Leadership Lessons from America’s Most Underrated President, foreword by Charles R. Kesler (New York: Encounter Books, 2013).

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