The Solitary, Poor, Nasty, Brutish, and Short Libertarian Life

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Conor P. Williams

Conor Williams on Twitter. More background here.

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304 Responses

  1. Here you have created an effigy of straw, named it “libertarianism”, set it on fire, and danced on its ash corpse.

    “If his attack on naturally-founded rights holds, however, Hobbes’ challenge to libertarianism goes deeper. It asserts the primacy of politics over and above economic life.”

    No it doesn’t. This is a non-sequitur. Hobbes does not challenge libertarianism. Neither liberalism, conservatism, nor libertarianism follow from speculation about what lies in the human heart. All are proposed schools of thought or scientific research programs which seek to answer normative questions given the existence of a state.

    Of course economics and politics are both fundamentally different and fundamentally the same: public choice theory for instance.

    “It does, however, point to libertarianism’s blind spot—the very thing which defines the aforementioned purity test I once failed.”

    No it doesn’t. This is not a blind spot for libertarianism. See i.e. what I wrote here: https://ordinary-times.com/blog/2012/01/17/hobbes-authority/

    “On the contrary, a cold and distant monarch is often a maximizing condition for liberty. It has been paraphrased that a libertarian (i.e. – one who places liberty above other societal values) is someone who wants the government to run only the military, the courts, and the police force. What are the military, courts, and police force but Hobbesian bulwarks to keep us from slaughtering each other? We tend to forget or neglect the Hobbesian base on which the Lockean superstructure is built – both in terms of American society and in terms of intellectual history. We conflate power with authority, assuming this authoritarian base must be a person – a totalitarian dictator – when it can just as easily be an institution or a shared belief.”Report

    • Indeed…and the cleverest thing I did was give the straw man a name, cite its arguments, and respond to them.

      Again, Barnett’s not the world’s only libertarian, but he’s indicative of a broader problem. It’s one thing to disagree, but it’s simply NOT true that I invented an adversary. I opened with a real one.Report

      • Actually, it’s quite clear you take one specific argument about another person’s specific argument about a legislative item put through Congress to extrapolate wildly about an entire ideology. Barnett is quite incidental to the whole piece.

        This is your thesis sentence: “my problem with libertarians is actually pretty simple: these guys need a strong dose of Thomas Hobbes.”

        Then to really hammer home that you’re generalizing, you end with this: “It does, however, point to libertarianism’s blind spot—the very thing which defines the aforementioned purity test I once failed.”

        Then you title your piece “The Solitary, Poor, Nasty, Brutish, and Short Libertarian Life” instead of something like “my response to Koppelman’s summary of part of Barnett’s argument”.Report

        • Avatar Murali in reply to Christopher Carr says:

          The thing is, Barnett is an Anarcho capitalist. Ancaps are known to be more extreme fringe of the libertarian movement. It is not just that there are more thoughtful libertarians out there. It is that most libertarians are more thoughtful or at the least more squishy on more than a few of these items. Consider that most libertarians see the need for courts, military and police under the aegis of a state. (i.e. Nozick’s Night watchman state) Among academic libertarians, even Nozick is a bit of an outlier. Many libertarians also acknowledge the need for infrastructure, money supply (gold buggery is mostly popular among the mises institute set) and social safetynets. The difference with liberals mostly lies in the details.

          MA just recently advocated for the forcibly retraining soldiers to become engineers. Do I take his views to be representative of social democrats?

          If his attack on naturally-founded rights holds, however, Hobbes’ challenge to libertarianism goes deeper. It asserts the primacy of politics over and above economic life.

          Not really. Hobbes’ challenge does the opposite. The problem with the state of nature is that with no walls between people (to use your metaphor) economic life is not possible. You cannot meaningfully own anything if people keep taking your stuff. You cannot meaningfully make a plan to go on a date tomorrow, if you don’t know that you won’t be killed.

          By contrast, political life is implicitly problematic because it is a continuation, by not entirely different means, of the pursuit of the domination over one’s fellow man, that goes on in the state of nature.

          Therefore for Hobbes, political life is valuable and to indulge in only to the extent that itsecures economic and private life. i.e. to the xtent that it secures are personal and economic liberties. Where the political liberties are dangerous to these liberties, those liberties are precisely those which when freely exercised make the state of nature such a horrible place to live in and are therefore the liberties which need to be curbed.Report

      • Avatar Dan D in reply to Conor P. Williams says:

        Have you read Barnett’s work yourself as opposed to someone else’s statements of what Barnett says?Report

    • Avatar Morat20 in reply to Christopher Carr says:

      Libertarianism: Always defined by who isn’t, at the moment, a libertarian. Randy Barnett! Libertarian heroic point-man against the ACA today, “strawman of libertarianism” tomorrow when his views are too easily deconstructed.Report

      • The ACA is not mentioned once in this entire post.Report

        • Avatar Morat20 in reply to Christopher Carr says:

          That “whooshing” sound was the point screaming over your head.

          You claimed the poster was embracing a strawman about libertarianism. He’s talking about Randy Barnett’s book. Randy, current conversative and libertarian hero, Barnett.

          So either Randy’s a strawman libertarian or the poster is lying about the book. (Hint: He’s pretty accurate, from what I’ve ready of Barnett’s own work, but I’ve never read the book).

          Randy’s a libertarian, until it’s inconvienent. Then he’s just a strawman of libertarianism. Like George Bush was a conservative, until his ratings fell below “the clap” and he was “too liberal”.

          What is libertarianism? Nobody knows. It’s a secret. Or it’s so individualized it’s meanginless. At least Randy there — and the poster — are trying to trace it from it’s philosophical roots, which gives them some ground to stand on.

          Me? I sometimes think libertarianism doesn’t exist. It’s just an excuse for what you want to believe. I swear, cafeteria catholics don’t have anything on some of the libertarians I’ve known.Report

          • My problem with conservatives is that they lie to get us into wars and squander the budget surplus on prescription drugs for seniors.Report

          • Avatar Kimmi in reply to Morat20 says:

            the same might be said for liberalism, you realize.Report

          • Avatar James K in reply to Morat20 says:

            You do realise it’s possible to agree with some of what someone says, but not all, right?

            Your analogy to Catholicism is inaccurate because Randy Barnett is not the Pope of Libertarianism, in fact we don’t have one of those. Catholicism is a prescribed set of doctrines all Catholics are supposed to adhere to. Libertarianism however is a loose collection of related but different belief systems. I can respect Barnett for some of his thinking without accepting all of it and yet still call myself a libertarian.

            Would the world be a better organised place if libertarianism was more narrowly defined? Yes. But we don’t live in that world.Report

            • Avatar Morat20 in reply to James K says:

              Calling a well-noted “libertarian” a “strawman libertarian” is idiotic.

              Obama’s a Democrat, calling him one is what we call “accurate”. One might argue — successfully even! — that he does not represent all Democrats, that he is in fact somewhere to the center or right of the Democratic party, and that many Democrats may take issue with positions Obama takes.

              It’s all well and good to say “Randy Barnett’s totally off the reservation here, I don’t think anything like this is required to be a libertarian” or “Not all, or even most, libertarians would take Barnett’s position” but to call a well known — and widely applauded, of late — libertarian’s own libertarian positions as “a strawman” is going past “a point of dispute”.

              It’s flat out idiocy. Barnett is a libertarian. No one is exactly calling him out as a liar. That’s from a book on his musings on libertarianism and it’s philosophical roots. You might disagree with him, but “strawman”?

              That’s just ducking it and hiding under a no-true scotsman’s kilt.Report

              • Avatar Mark Thompson in reply to Morat20 says:

                Except no one is calling Barnett a “strawman libertarian,” nor is anyone saying that Barnett is not a libertarian. They’re calling the fact that Barnett’s arguments are being characterized in a specific way (with very limited quotations), and then that characterization is being used to apply to all libertarians an act of constructing a “strawman libertarian.”Report

              • Avatar James Hanley in reply to Mark Thompson says:

                Boy, we’re really on the same wavelength on this page, aren’t we?Report

              • Avatar James Hanley in reply to Morat20 says:

                Wait, who’s calling Barnett a strawman libertarian?

                Christopher didn’t call Barnett a strawman. He said Conor created a strawman. And he explained quite clearly why he thought the error, the essential straw to build the man, came from Koppelman’s arguments.

                I can’t see where anyone here is suggesting Barnett’s not a real libertarian.Report

              • Avatar James K in reply to Morat20 says:

                It’s all well and good to say “Randy Barnett’s totally off the reservation here, I don’t think anything like this is required to be a libertarian” or “Not all, or even most, libertarians would take Barnett’s position”

                I thought that’s what I just did.Report

      • Avatar M.A. in reply to Morat20 says:

        +1.

        The same sort of infuriating goalpost-moving can be found in TVD’s “those guys (seemingly all of them) don’t represent conservatism” line of argumentation.Report

        • Avatar Christopher Carr in reply to M.A. says:

          Why don’t you ask TVD for a list of who does in his mind?

          Who for you represents liberalism? Does Michael Moore? Jane Fonda?

          Stalin?

          Look, it doesn’t have to be straw man vs. goalpost moving, but this post is specifically about libertarianism as an ideology created out of whole cloth by the author. The post explicitly extrapolates the very philosophical basis for an entire school of political thought based on one writer’s response to another writer’s opinion on a piece of legislation.Report

    • Avatar BlaiseP in reply to Christopher Carr says:

      Hobbes must be read in the context of his times. There were ur-Libertarians afoot in his time, the New Model Army had a host of Levellers in their ranks and both Hobbes and Locke had nasty things to say about them. The Levellers were not Liberals. They were Libertarians.

      The Levellers had many enemies and they were not united. Their enemies told many lies about them but the Levellers began with the notion of property ownership, exactly as Libertarians do today.

      Ye [Parliament] were chosen to work our deliverance, and to estate us in natural and just liberty, agreeable to reason and common equity, for whatever our forefathers were, we are the men of the present age, and ought to be absolutely free from all kinds of exorbitancies, molestations or arbitrary power. (A Remonstrance. Tracts on Liberty in the Puritan Revolution)

      We look to Hobbes and Locke for the Social Contract, but both men understood the necessity of competent leadership: mobs have their own forms of “justice” and this business of Nasty Brutish and Short arises from too many cooks spoiling the stew. The cooks ought to make the stew with the mobbish customers in mind, that being The People, but no good policy was ever enacted and enforced by a mob.Report

  2. Avatar Jaybird says:

    Could we do a quick side-by-side comparison of countries that embraced Hobbes vs. countries that embraced Locke and/or Rousseau and come to conclusions from there?Report

  3. A few direct objections to Koppelman’s piece (and by extension, yours):
    (1) First, it is assumed that Koppelman’s representation of Barnett’s arguments is accurate, yet that representation contains, so far as I can tell, only 4 very abbreviated quotes from Barnett, at least one of which is not even from the book with which Koppelman is purportedly arguing. Given Koppelman’s clear agenda, this gives me little reason to believe that he is accurately characterizing Barnett’s arguments.

    (2) In the piece, Koppelman alleges that Barnett just “made up” the opposition to the individual mandate. His source for this is an article from May 31, 2012 written by….Koppelman. That article is also highly misleading and, frankly, pretty outrageous. I say this as someone, by the way, who would probably find the mandate Constitutional under existing precedent. However, to say that the argument was just “made up” in 2010 ignores the fact that until there was a specific bill, with specific language, to consider, there is no basis to even raise the question of constitutionality, particularly in this context. The fact is that the structure of the mandate potentially makes a huge difference to its constitutionality. To say that “well, the Republicans proposed mandates before, and no one suggested they were unconstitutional” is thus disingenuous – the first question is whether those proposals had any chance of being passed; the second question is whether they were structured and worded in precisely the same way as the existing mandate.

    Interstate commerce jurisprudence has been a football on the Court for a very long time, and it is hardly the case that conservative-leaning justices haven’t taken maximalist positions on that jurisprudence for quite some time (Raich of course being the notable partial exception).Report

    • Avatar James Hanley in reply to Mark Thompson says:

      Re: 2. That constitutional argument is really just an extension of the losing argument in Wickard v. Filburn, a commerce clause argument that had prevailed up to that point. This precise form of it had never been explicated before because the precise claim of power had never been claimed before–there had never previously been a reason to extend the claim.

      But the claim is a logically necessary extension of the old commerce clause claim, and the counter-claim that won in Wickard does not itself create a logically necessary refutation of the current form of the argument (although it creates a space where rejecting it is a logically reasonable position).

      So for Koppelman to say it is a “made up” claim is to ignore the history of commerce clause jurisprudence.Report

    • Avatar MikeSchilling in reply to Mark Thompson says:

      Privatized Social Security is the same sort of mandate. It had the support of the president and the GOP leadership (until they discovered how unpopular it was.) Was the possibility of its unconstitutionality even discussed?Report

      • Avatar James Hanley in reply to MikeSchilling says:

        It’s not the same. It’s a tax and redistribute initiative. The mandate is a “you must buy X commodity” initiative. They’re not wholly dissimilar, but neither are they wholly similar.

        The uncomfortable truth is that there’s no determinative way to show that the mandate is either constitutional or unconstitutional. To do is to assume that the Constitution’s text and meaning is always definitive. This is a classic hard case.

        The constitutionality of SS was discussed. Here’s a short primer on it’s constitutional history.Report

        • Avatar M.A. in reply to James Hanley says:

          The mandate was proposed by Heritage Foundation starting in 1989, supported by Tom Miller of CATO in 1994.

          How interesting that libertarians turned their back on it once a black guy was elected president.Report

          • Avatar James Hanley in reply to M.A. says:

            I can’t speak for conservatives but libertarians don’t generally have a problem with Obama’s skin color. He received a pretty good proportion of the libertarian vote in ’08, including mine.

            The rest is explained by pure politics. When a true single-payer system was on the table, the rear-guard action was to try to limit progressives to only half a loaf, for fear that absolute opposition would lead to them gaining the whole loaf. Now that single-payer is (for the moment) off the table, they see no reason to give even half a loaf if they don’t have to. It ain’t pretty, but it also ain’t any different than what liberals/progressives do. It’s the ugly reality of politics, and it’s impossible to point at anybody else’s side without having four fingers pointing back at your own.

            The great irony is that if they win this in the Supreme Court, it will just strengthen the position of the whole-loafers (single payer advocates), because based on the Court’s approval of SS’s constitutionality, I think the constitutionality of single-payer system would be almost a certain thing. (Maybe not; SS didn’t replace a whole sector of our industry, as single-payer would, but I’m not sure how strong a constitutional argument can be built on that.)Report

            • “The great irony is that if they win this in the Supreme Court, it will just strengthen the position of the whole-loafers (single payer advocates), because based on the Court’s approval of SS’s constitutionality, I think the constitutionality of single-payer system would be almost a certain thing.”

              This.

              Throughout this whole debacle, I’ve kept asking myself, “Is defeating the bill on THESE grounds really the tree conservatives want to climb?”Report

              • Avatar James Hanley in reply to Tod Kelly says:

                I’ve also had the same worry about Prop 8.Report

              • Avatar Simon K in reply to Tod Kelly says:

                I don’t think that’s quite right though – the supposed unconstitutionality is a technicality based on the idea that congress has said its compelling you to buy something, rather than merely taxing you if you don’t have it. Reword the bill and it becomes constitutional but has exactly the same effect.Report

              • Avatar Morat20 in reply to Simon K says:

                Which, IIRC, is perfectly valid. I can’t recall the precedent (the term “magic words” is stuck in my head about it) but basically precedent on the matter is “if Congress can do it one way, it really doesn’t matter if they say the wrong words, as long as the end effect is Constitutional”.Report

              • Avatar James Hanley in reply to Simon K says:

                Simon and Morat, you’re both right about what the Dems can do. Absolutely. But it’s not their only option, and it’s that other option I’m focusing on, because I think the other option is still ranked higher in their preference order than is a revised PPACA (at least for liberals in general, but perhaps not for Democrats in Congress).

                But if the Democrats want to go for the big win, it would give them a better playing field. Most of the voting public isn’t going to understand the nuances of how it could be revised (even though it’s as simple as replacing mandate/fine with tax/rebate). All they have to do is say, “we tried the radical and unprecedented approach the Republicans asked for, and the Court struck it down. We can’t let millions of middle class Americans risk losing everything over a medical crisis. Here’s our proposal, which is modeled after programs the Supreme Court has always ruled are perfectly constitutional.”

                But then, these are the Democrats we’re talking about. So they probably won’t have the gumption for that. The Republicans may be banking on that. If so, and if they’re correct, it could turn out to be a good strategy after all.Report

            • Avatar Morat20 in reply to James Hanley says:

              So, just to sum up:

              1) We never believed the individual mandate was Constitutional.
              2) We just pretended to, because we HATE HATE HATE single payer.
              3) Therefore, our counter-offer was unserious?Report

              • Avatar M.A. in reply to Morat20 says:

                Sounds about right.Report

              • Avatar James Hanley in reply to Morat20 says:

                Well, 3 is not quite right. They were serious about it, the same way you’d be serious about asking to be caned if the other alternative was execution. But we reword that a bit to say their counter-offer was never something they actually ever liked on its own merits, then I think you’ve got it exactly right.

                As I noted, it’s ugly. It’s not morally admirable. But it’s a more or less inevitable development in the zero-sum part of the political game, where my ideology’s win is your ideology’s loss, and vice-versa. It’s somewhat admirable from a purely strategic perspective (like a basketball player flopping to draw the foul), but that’s not a moral or ethical consideration.

                I know that in teaching elementary school kids civics we like to send the message that politics and government are a noble thing, but it’s not really true. There are noble actors, and there are noble actions, but politics can be petty and mean just as easily as noble and virtuous, and government is just an arena where people pursue their political goals, whether petty or noble.Report

              • Avatar Morat20 in reply to James Hanley says:

                “Not liked on it’s own merits” is NOT the same as “So Unconstitutional We Will March in Lockstep Against It, Screaming that Democracy Is At Stake If It Passes”.

                Which is, you know, what happened. Now there’s two conclusions here:

                1) They didn’t think it was unconstitutional, just the best solution that fit their idealogy, and are now opposing it entirely on partisan grounds. (They’d prefer nothing to a mandate, they’d prefer a mandate to single payer, but it’s all Constitutional)

                2) Or the deliberately pushed an idea, for decades, that was so flagrantly unconstitutional that implementing it drove them to frothing hysteria.

                Which is it? Because, again, “It’s a HORRIBLE AFFRONT TO LIBERTY” is not “We’d prefer this to single-payer”.

                You’re still stuck on the horns — either the GOP pushed, as a solution, something appallingly (to them) unconstitutional OR their entire legal objection is just BS that’s apparently found a seed with their SCOTUS picks.

                Because when you read headlines like “19 of 21 Constitutional scholars say mandate Constitutional, only 8 expect it to be upheld” I’m thinking it’s the latter.Report

              • Avatar James Hanley in reply to Morat20 says:

                Oh, I think the marching in lockstep screaming is also strategic. They sincerely don’t like it, and they may even think it’s unconstitutional, but the ones who are actually thinking about it know that it’s not really the most outrageous thing ever. But you don’t get political traction that way.

                I don’t think it’s quite either 1 or 2. I think they probably thought it was, at best, only dubiously constitutional, based on Wickard and SS, which are two things they’ll happily tell you are unconstitutional because they think the Court got it wrong in the late ’30s. So they were probably of two minds. One the one hand, “well, by current Court standards this probably would pass muster,” concurrently with “but by the ‘proper’ standards it wouldn’t.”

                Also, the GOP hadn’t yet been so thoroughly taken over by it’s more ideological wing, so there probably were more influential Republicans then than today who thought it was constitutionally OK.

                No real dilemma here. Different people make up the conservatives, so there’s some different intents and beliefs, but ultimately it is all very much about political strategy.Report

              • Avatar Brandon Berg in reply to Morat20 says:

                The mandate is the lesser of the evils, compared to outright socialization, but it’s still an evil.Report

              • Avatar Brandon Berg in reply to Brandon Berg says:

                Actually, Obamacare with the mandate is preferable to Obamacare without a mandate, which would be a complete train wreck (and, not at all coincidentally, a hell of a lot more popular). I was using “mandate” as shorthand for a mandate-based scheme.

                The mandate is just the handle we’re using to overturn the whole thing, since it’s the most blatantly unconstitutional part and the only part not allowed under Supreme Court precedent (not to be confused with what’s allowed under the actual Constitution).Report

              • Avatar MikeSchilling in reply to Brandon Berg says:

                The mandate is the part that pays for the rest of it, and the only truly unpopular part.

                Imagine that.Report

              • I hate the part about stuff that involves paying for it.Report

              • Avatar BlaiseP in reply to Brandon Berg says:

                Why doesn’t anyone demand an end to the grifting and fraud perpetuated on the employers and health care providers? Why do health insurance firms get to play with the numbers, acting like every employer is somehow on Robinson Crusoe’s island. “Well, lessee, we got you and this Friday character, that’s a life pool of two, so you get to pay ten times more than the guys over on Google Island, they’ve got a life pool of 33,077”

                That’s abuse of statistics.Report

              • Avatar Brandon Berg in reply to Brandon Berg says:

                The mandate is the part that pays for the rest of it, and the only truly unpopular part.

                Imagine that.

                I’m not a democrat. The mandate is the part that pays for the rest of it, and the only truly unpopular part.

                Yeah, that’s pretty much why I’m not a democratic fundamentalist.Report

              • Avatar Brandon Berg in reply to Brandon Berg says:

                The mandate is the part that pays for the rest of it, and the only truly unpopular part.

                Imagine that.

                Yeah, that’s pretty much why I’m not a democratic fundamentalist.Report

              • Avatar Michael Drew in reply to James Hanley says:

                They were serious about it, the same way you’d be serious about asking to be caned if the other alternative was execution. But we reword that a bit to say their counter-offer was never something they actually ever liked on its own merits, then I think you’ve got it exactly right.[…]

                This (only partially excerpted) is some pretty highly specific explication of motivations and reasoning. Who is the “they” who has gone through these phases of deliberation and response?Report

              • Avatar James Hanley in reply to Michael Drew says:

                Whoever the “they” is that folks are complaining about being for it before they wuz agin it. Ask them who “they” is, since they brought up “they” first.

                I’m just talking about strategic behavior because it provides a more logical explanation of why “they” would act like that. From the strategic perspective, it doesn’t matter who “they” is. It’s what a rational “they” would do.Report

            • So are you saying we should never take libertarian policy prescriptions seriously because it’s probably just a political ploy?

              I mean…that’s kind of a takeaway from this point, no? That the Heritage/CATO proposals were based on a desire not to actually address a problem of public health and policy, but simply as a rear-guard political action, the principles and efficacy of which be damned.Report

              • Avatar James Hanley in reply to Nob Akimoto says:

                “Never” is pushing it too far. You can’t extrapolate to that extent. The more in line with basic ideology a policy proposal is, the more likely–ceteris paribus–that it’s a sincere proposal. The less in line with basic ideology, the more likely–c.p.–that it’s a strategic proposal.

                Not being a health policy guy, I’d never heard of the individual mandate until it was proposed this time around, so I don’t know for sure how I would have responded had I heard in prior years that Heritage and Cato supported it. But in retrospect it looks pretty clear that it was a bit outside the bounds of their normal line of argument.

                That said, a strategic proposal can have an element of sincerity to it. If you’re faced with the likely reality of something you really really think is dreadful, trying to soften it with something that’s only sort of dreadful can be a sincere position, just so long as that really dreadful thing looms, but not one moment longer.Report

              • I did a bit of health policy early on in my grad career, and from what I recall we read up a bit on the alternative proposals for health care reform. Individual mandate was always viewed as a necessary part of creating a market with certain regulations, like the presence of guaranteed issue, and that was more…I suppose a policy requirement, than it was based on anything else. The proposal provided DID try I think rather genuinely to open up the scope of market competition in health insurance provision, and while the mandate was a rather egregious part of it, I think there were some arguments (at least from a theory point of view) that it could be justified from the simple fact that health care is an unavoidable consumption. That is, unless you’re willing to just lay there and die, for the most part, it was a market you’d eventually have to participate in so risk pooling made sense in that way.

                That said, I think they envisioned some of the other provisions a bit differently. Probably more along the lines of the Rahm Special proposal that was floating around.Report

              • Avatar James Hanley in reply to Nob Akimoto says:

                That all sounds about right to me (from the very little I’ve read about it from the policy perspective).

                I’m no fan of single-payer, but a big part of me wonders whether it wouldn’t be a lot more straightforward and a lot less Frankensteinish than PPACA.Report

              • Avatar Morat20 in reply to James Hanley says:

                It would be, but the GOP didn’t like it. And they didn’t like their own idea either.

                Because it’s unconstitutional. You have to forgive them, they didn’t notice until just now.Report

              • Avatar James Hanley in reply to James Hanley says:

                Morat,

                I understand your frustration. But for me, I just can’t get worked up about people being strategic actors. I lack the moral gene or something, perhaps, but I just expect people to behave strategically, and it doesn’t offend me. So while I get why you’re frustrated, I’m constitutionally incapable of actually empathizing.

                That said, pointing out that someone’s behaving strategically can itself be good strategy. And exhibiting moral outrage while doing so can sometimes be an effective strategy, too. I’d just recommend doing a good job of play-acting, rather than taking it to heart. It’s more fun and a lot less stressful. Moral outrage appears to me to be really emotionally debilitating (well, outrage of any kind does, although sometimes it’s obviously an appropriate response).Report

              • Avatar Brandon Berg in reply to James Hanley says:

                Single-payer would be disastrous. Once the US government is paying all the bills, it’ll impose price controls, just like every other country with socialized health care. Price controls in the pharmaceutical industry’s largest and most profitable market means a dramatic reduction in the returns to new drug development. Which means people suffering and dying diseases that would otherwise have been cured.

                Of course, it’ll never be possible to pin it conclusively on the socialization of medical care, because there’s no control economy to serve as a basis for measuring the decline in new drug developments.Report

              • Avatar Jesse Ewiak in reply to James Hanley says:

                I’ll worry about the pharmaceutical companies when they worry more and spend more about actually finding cures for diseases instead of finding a way to make Claritin XZ to replace Claritin XY because it’s patent is running out in a year.Report

              • Avatar M.A. in reply to James Hanley says:

                +1.

                Between making changes “just enough” to re-patent, hiding the formulas, and even bribing competition not to make generics, the idea that a massive portion of valid research would suddenly dry up is laughable.

                Better to call it this way; 2/3 of drug research in the US is wasted money helping corporations re-patent and maintain a lock to prevent more cost-effective health care in the form of generics from becoming a reality.Report

              • Avatar Brandon Berg in reply to James Hanley says:

                I’ll worry about the pharmaceutical companies when they worry more and spend more about actually finding cures for diseases instead of finding a way to make Claritin XZ to replace Claritin XY because it’s patent is running out in a year.

                First, companies are working on finding cures for diseases. Second, second-generation antihistamines leave much to be desired, and developing superior alternatives is a valuable project with major quality-of-life implications for allergy sufferers. Third, there were good reasons to believe that administering the active metabolite of loratadine (desloratadine) would produce superior results, as this is exactly what happened with terfenadine, another antihistamine. Fourth, the decision to develop desloratadine was entirely orthogonal to the decision to develop other drugs.

                Finally, did you even think about what you’re saying? Why would someone pay much more for a new patented drug if it offered no actual benefits over the generic alternative? You do get that developing a new version of a drug doesn’t actually extend the old version’s patent, right?Report

              • Avatar DensityDuck in reply to James Hanley says:

                Brandon,
                Knowing things about how drug development works is hard. Having a Two Minutes Hate about rich people and big corporations is easy and fun.Report

              • I’m pretty sure that if the stupidly hybridized health care delivery system the US currently had were actually rationalized in either the market or the socialized model BOTH would require substantial cost cutting measures to make the costs commensurate with the results.

                Without some sort of Medicare like program to fund vast vast amounts of medical spending, cost controls that’ll hamper pharma will come just as quickly as insurance companies not wanting to cover certain types of prescriptions, as much as from government cost containment measures.Report

              • Avatar Jesse Ewiak in reply to James Hanley says:

                Brandon :

                The answer to your question is million of dollars worth of advertising that the old (now generic) version of a drug is no good, but NEW IMPROVED Claritin RY is awesome, so please ask your doctor about it.

                I have no doubts that the newest version of Claritin helps people. My question is, would the pharmaceutical companies still worry about if they weren’t sure that the newest version of Claritin wouldn’t make them zillions of dollars? Of course not.Report

              • Avatar Brandon Berg in reply to James Hanley says:

                Guys. Look. This isn’t rocket science. Projects are expected to be profitable or not based on their own merits. The fact that developing a third- or fourth-generation antihistamine is expected to be profitable has no impact whatsoever on expectations regarding the profitability of an entirely novel cancer drug.

                In fact, when price controls reduce the revenues that can be pulled in for patented drugs, it’s the marginally profitable drugs, not the blockbusters, that will be cut. All the red herrings that you like to trot out as examples of pharmaceutical companies “wasting” money will be all that we have left.Report

              • Avatar Brandon Berg in reply to James Hanley says:

                I’m pretty sure that if the stupidly hybridized health care delivery system the US currently had were actually rationalized in either the market or the socialized model BOTH would require substantial cost cutting measures to make the costs commensurate with the results.

                That’s a fair point, Nob. One of the silver linings of Medicare Part D is that it acts as a subsidy to the successful development of marketable drugs.

                That said, I think that with single-payer the cuts would be focused far more heavily on pharmaceuticals than they would with a more market-oriented approach. Cutting back benefits is impolitic, obviously, as is cutting back payments to doctors and nurses. But imposing price controls on pharmaceuticals has great optics. People hate drug companies, and they don’t understand the price we’ll have to pay for cheap drugs. I think Jesse’s and M.A.’s comments are fairly representative of how this sort of thing would play with the median voter.Report

              • Avatar Michael Drew in reply to Nob Akimoto says:

                Are you sure this characterizes your response to the entire universe of potentially strategic actions, James? You seem to be saying that you might find this turnabout morally problematic or bothersome (from a public good-faith perspective, say, not at the level of the kind of morality that governs real interpersonal harms etc.), if it weren’t a strategic action. Are you sure it’s just that you don’t happen to find this action morally problematic, full stop? And aren’t there strategic actions you would be outraged by, like if I strategically stole a bunch of cash out of your wallet or something?Report

              • Avatar James Hanley in reply to Michael Drew says:

                Michael,

                No, if it was an unstrategic action I’d mock them for being strategically stupid. That could still be the end result–as I said above, I suspect a SupCt ruling against this could result in the earlier implementation of a full single-payer system. They may, at the moment, be playing as though this were just a single-shot game instead of an iterated one. (Or more precisely, this particular game is nested in a larger political game.) So, no, I don’t find it morally outrageous, although I don’t find it morally admirable. Mostly I find it tediously pedestrian. It may be strategic, but it’s not a particularly interesting use of strategy.

                That’s not to say I have any moral approval of it, either. I try to avoid doing that kind of thing myself. But then my strategic goal is to have the people I work with know that whatever I’m saying at a particular time, I’m saying it not out of short-term convenience but because I really believe it. (Note: wanting them to believe it is not precisely the same thing as wanting it to be factually true.)

                As to theft, it’s not that theft can’t be strategic, but it falls into that camp of coercion, fraud, blackmail, etc. When I teach about strategic behavior, I don’t teach them to do that kind of thing. In fact I teach them that those things are usually un-strategic because they’re only focused on the short-term game from a one-shot game, and ignore subsequent effects in iterated games. Mutual cooperation tends to be the best bet for a good long-run payoff, and defectors have trouble getting people to cooperate with them.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                Okay, but are there no strategic actions by which you would be morally offended? Also, to be able to dismiss actions that are thought to be strategic by their doers as non- or anti-strategic, don’t you need to believe you understand their aims at least as well as they do? Isn’t that something you react strongly against in other rhetorical contexts?Report

              • Avatar James Hanley in reply to Michael Drew says:

                are there no strategic actions by which you would be morally offended?

                In the first Gulf War we told the Iraqi army that if it retreated we’d let it go. Then we bombed whole column to hell and back. I have a friend who knows a lot more about military strategy than I do tell me that you just don’t let a defeated enemy army escape. Maybe so, but I’m pretty sure if I’d been one of the people assigned to the task that I’d still have a hard time sleeping at night.

                Also, to be able to dismiss actions that are thought to be strategic by their doers as non- or anti-strategic, don’t you need to believe you understand their aims at least as well as they do? Isn’t that something you react strongly against in other rhetorical contexts?

                Yes, and sometimes you’ll get it wrong. Particularly adept strategists are that hardest to parse in some ways because their goals may be kept very obscure, and the means very indirect. But most people aren’t that adept, don’t think beyond or two stages, and have fairly evident goals. That’s especially likely when we’re talking about large organized groups that can’t avoid operating in the public range of vision–like, say the GOP.

                But you’re absolutely right in the sense that a crucial first task is figuring out what the strategic actor wants. At the national security level, that’s why we have spies, of course.

                I’m not sure about the proper interpretation of your final sentence. I don’t think I’ve actually responded badly to actually understanding another person’s aims, and I’m very in favor of trying (sincerely) to understand another persons’s aims. What you may refer to is a facile assumption that one knows another’s aims, based on too little knowledge and perhaps an unfair reading. That, I don’t like.Report

            • Avatar Koz in reply to James Hanley says:

              “When a true single-payer system was on the table, the rear-guard action was to try to limit progressives to only half a loaf, for fear that absolute opposition would lead to them gaining the whole loaf. Now that single-payer is (for the moment) off the table, they see no reason to give even half a loaf if they don’t have to.”

              There may be a broader context where that fits but it’s important to mention that really doesn’t apply to the battle over Obamacare from April 2009 to the present. Basically, the Republicans were late to the game and weren’t committed to opposing the President’s health care plan until the scope of its unpopularity was pretty widely known.

              I forget which committee Henry Waxman chairs but he lost his committee for some key votes back in April or May of 2009 and that woke some people up that the opposition to the President’s plans for health care was much stronger and operating at a lower level than was previously known.Report

              • Avatar James Hanley in reply to Koz says:

                Koz,

                That’s a really interesting argument. Why don’t you write that way more often?Report

              • Avatar Koz in reply to James Hanley says:

                Thanks James. I’m not sure exactly what way of writing you’re talking about but IIRC I have made that particular point here in League comments before, probably more than once.Report

              • Avatar James Hanley in reply to Koz says:

                Compare the tone of that comment with the first paragraph of the comment below. I think the difference is evident.

                Hell, I’m in no position to preach. I don’t always manage the measured calm tone of RTod myself (I don’t know he does it–he’s either a borderline psychopath, devoid of emotion, or he’s on a heavy dose of Zoloft), but frequency matters, and you more frequently hit the tone below than the tone above.

                And quite frankly, if you hit the tone above more often you’d get a lot less shit and a lot more respect. Because truthfully that comment made me sit back and reconsider my claim, whereas most of your comments I shrug off as pure partisan blathering. That’s why instead of just writing, “I agree with Koz,” Mark T. wrote, “as much as it pains me, I agree with Koz.” You write goods ones often enough that it’s obvious you’ve got a good mind. I love it when you make that clear to us.

                Yes, yes, all advice I should take myself. I tell myself this all the time. I really do.Report

              • Avatar Brandon Berg in reply to James Hanley says:

                That’s hardly a fair comparison. He responded to your intelligent, civil comment with the respect that you deserved, and he responded to M.A.’s rubbish with…well…personally I thought Koz was unduly charitable.Report

              • Avatar Koz in reply to James Hanley says:

                Yeah, I see where you are coming from. But the one thing I’ll say in my defense is that just because it occrurs to you or another reader as mindless partisanship, that doesn’t mean it is. I tell people to check the tape for a reason.

                In particular, I try to dial down the incendiary rhetoric as much as possible, though I’m sure that I fail sometimes. I don’t want my interlocutors to grab a hold of some irrelevant turn of phrase as excuse to ingore the major train of argument. In the comment below, it’s important to emphasize that “everything was ok until the black guy did it” is a horrible line of argument. It is, and it’s intended to be, a distraction from some other topic that a lib is uncomfortable with or has run out of answers for. What’s worse, it’s being applied in situations where it clearly has nothing to do with the price of tea in China.

                And that’s happened twice in the last week or so, first with the PPACA appeals and second with the Fast and Furious committee hearings.Report

              • Avatar James Hanley in reply to James Hanley says:

                Koz,

                I hear you. Just my two cents that employing when you think it’s justified isn’t really working in your favor. Thanks for taking this in the spirit intended.

                From one rhetoric-dial-down failure to another,

                JHReport

              • Avatar Mike Schilling in reply to James Hanley says:

                Why would anyone think that ascribing Republicans virtues they have never once demonstrated in real life is mindlessly partisan? Anyway, I’m voting for Obama because his touch can heal the sick.Report

              • Avatar Chris in reply to James Hanley says:

                It’s an interesting argument, but it’s counterfactual.Report

              • Avatar Jaybird in reply to Chris says:

                What if it wasn’t counterfactual?Report

              • Avatar Snarky McSnarksnark in reply to Jaybird says:

                That’s so meta I think I’m going to explode!

                +1Report

          • Avatar Koz in reply to M.A. says:

            What a disgrace. The libs’ racial antagonisms have took a nasty turn to where they have less thought behind them than Pavlov’s dogs.

            Think about the current back-and-forth about the contempt citation for AG Holder and the health care bill. The substance of the issues are the least racially charged of anything that’s come down the pipe, but still the song remains the same. Hopefully this will be over soon enough if President Obama is defeated for reelection. It wouldn’t be the best part of that particular turn of events, but it will be nice nonetheless.Report

          • Avatar Mr. Blue in reply to M.A. says:

            Tom Miller did not support the mandate in 1994. Glenn Whitman of CATO also wrote in opposition of it in 2007, before the black guy was elected president.Report

          • Avatar Brandon Berg in reply to M.A. says:

            How interesting that libertarians turned their back on it once a black guy was elected president.

            Seriously? As of this morning, you’re still bitching about the time you imagined that I accused you of antisemitism despite my repeatedly explaining that I did no such thing, yet you have no problem throwing out cavalier and baseless accusations of racism like this?Report

        • Avatar Morat20 in reply to James Hanley says:

          So, what you’re saying is the GOP pushed — for two decades — an unconstitutional solution to Health Care?

          And they didn’t NOTICE until a Democrat signed it into law and Barnett made a brocolli metaphor?

          Strains credubility a bit, doesn’t it?Report

          • Avatar Mark Thompson in reply to Morat20 says:

            The point is that there’s a difference between saying “a mandate is unconstitutional” and “the mandate is unconstitutional.” The specific details of how a given mandate is structured are ultimately what have to be judged before anyone can make a claim as to its constitutionality, one way or another.Report

            • Avatar Morat20 in reply to Mark Thompson says:

              Not on the grounds argued before the court — Randy Barnett’s grounds, which cause ANY mandate to be unconstitutional.

              You have read it, right? I mean, his whole thrust is you can’t be forced to buy something. EVER. That’s beyond Congress’ power.

              Any individual mandate would require people to participate in the health care insurance market, whether they wanted to or not.Report

              • Avatar James Hanley in reply to Morat20 says:

                I mean, his whole thrust is you can’t be forced to buy something. EVER. That’s beyond Congress’ power.

                And you find that outrageous….how? Can you point to where the Constitution fairly clearly suggests that Congress does have the power to make us buy something?

                And can you explain what the constitutional limits of that power are, if any? Sure, let’s agree that mandating that I buy broccoli is beyond the limits. But where is that limit? How would we know when we’ve reached it?Report

              • There’s sufficient evidence that the Framers thought mandates to purchase and maintain say firearms for militia duties were a legitimate form of government coercion. (Probably based on the yeomanry laws of English common law.)Report

              • Avatar DensityDuck in reply to Nob Akimoto says:

                So that means if we accept the healthcare mandate then you’ll rescind any and all objections to firearm ownership, carriage, and usage?Report

              • Avatar BlaiseP in reply to DensityDuck says:

                Sure. And you’ll have to put in an appearance at the nearest National Guard armory every month and enjoy an all-expenses paid and fun-filled vacation every year at Fort Lost-in-the-woods, learning vital skills such as getting a blood-engorged tick off your wrinkly bits.Report

              • Avatar Morat20 in reply to James Hanley says:

                Can you read or what? That was a response to someone claiming that “No one ever said anything about it being unconstitutional because no specific mandate had been laid out”.

                Which is obvious BS under the argument before the court, which means ANY mandate would be unconstitutional.

                (To answer your question: Yes, Congress can regulate the insurance market under the Commerce Clause, and the necessary and proper clause gives them power to create a mandate. The limits of that are simple, same as they’ve always been — if it’s not necessary and proper to regulate commerce, it’s outside of the scope. See “Gun Bans near schools” for an example)Report

              • Avatar James Hanley in reply to Morat20 says:

                You’re right. You were responding specifically to Mark’s claim that there was a difference, and you’re right that in Barnett’s argument there isn’t. My apologies on that.

                As to your answer, “Necessary and Proper” is not actually a real limit, which is why it’s called the “elastic” clause; it can be stretched to cover just about anything. The ruling in the Lopez case to which you refer was not based on the law not being “Necessary and Proper,” but on it not actually having a relationship to commerce, rather being a criminal law that did not fall within the federal government’s scope for making criminal law (unlike states, the federal government doesn’t have a general criminal law authority).Report

              • Avatar Morat20 in reply to James Hanley says:

                Necessary and Proper is SUPPOSED to be elastic, it was quite clearly written that way.

                I suspect the problem Barnnet has — the one he’s about to get 5 justices to sign off on — is with the Constitution. He wants it to have more rigorous limits on power than it, you know, actually does.

                Under Commerce, the federal government has very, very, very broad powers when coupled with the necessary and proper clause.

                This is idealogically offensive to some people, I realize. That’s also how, you know, it is. Practically everything is interstate commerce.Report

              • I think it’s an entirely reasonable interpretation to argue that N&P is supposed to be interpreted really broadly, maybe even to the point that it destroys any notion of a limitation on federal powers. I’ve made that argument in detail here:
                https://ordinary-times.com/blog/2011/01/06/limits-what-limits/

                But at the same time, a narrow interpretation is no less reasonable. “Necessary” and “Proper” are extraordinarily vague words, susceptible to a multitude of different meanings. By whose standard do we determine whether a policy is “necessary” to the achievement of an enumerated power? The use of the word “proper” further implies that there are some limits on the exercise of power – but what are the contours of those limits, ie, what renders an exercise of power “proper” or “improper”? The text of the Constitution itself does not tell us how to construe the meaning of the word “proper,” yet we can’t pretend that it has no meaning whatsoever. And if we dig hard enough, we can find Founding Fathers arguing for any variety of meanings of these terms.

                Ultimately, without more useful guidance, we’re each going to construe these terms in the manner that most suits our ideology. The interpretation you put forth here is entirely reasonable; unfortunately, it is but one of countless possible entirely reasonable interpretations.Report

              • Avatar Koz in reply to James Hanley says:

                http://legalworkshop.org/2012/02/06/the-incidental-unconstitutionality-of-the-individual-mandate

                More specifically the doctrine of principals and incidents in agency law makes things clearer. Specifically, not everything is that implements something that affects interstate commerce is necessary and proper to the regulation of it.Report

              • Right. The other issue is that just because Barnett has taken a high-profile role in this doesn’t mean that everyone on his side would go as far as he does, nor does it mean that SCOTUS must necessarily go as far as he does to overturn the mandate. It’s pretty clear that if he could, Barnett would actually overturn pretty much every pro-federal government interstate commerce decision since the New Deal. That is a position one can hold in good faith. I, personally, agree with Barnett and many other libertarians that those decisions were incorrect at the time.

                But just because someone believes a decision was incorrect at the time does not mean that person thinks it should be overturned. On the other hand, it also doesn’t mean that they can’t try to limit that earlier decision.Report

              • Avatar Koz in reply to Mark Thompson says:

                “It’s pretty clear that if he could, Barnett would actually overturn pretty much every pro-federal government interstate commerce decision since the New Deal.”

                Maybe, but like I mentioned before he’s pretty clearly repudiated that as a litigation strategy for the current cases.Report

              • Avatar Mark Thompson in reply to Koz says:

                No doubt, but that’s more or less my point – it’s possible to buy and indeed advance Barnett’s arguments on this particular issue without adopting his maximalist position.Report

              • Avatar Koz in reply to Koz says:

                Exactly. In fact that was my complaint about the lib misunderstanding of the current litigation, in particular the Koppelman piece mentioned in the OP.

                It’s a pretty clear example of the libs’ intellectual bankruptcy that they have yet to come to grips with the fact that the current path of litigation is working under the assumption that PPACA is unconstitutional without having to overturn any existing live SCOTUS precedents. If they have a problem with that, they can certainly reference the current litigation for the sake of their argument. For me at least, it’s very telling that they can’t, or don’t.Report

              • Avatar wardsmith in reply to Mark Thompson says:

                When Franklin Roosevelt and his New Dealers were contemplating Social Security in the early 1930?s, they were faced with a problem. Roosevelt, then governor of New York, identified this problem several years earlier in his “States Rights” address of March 2, 1930:

                “As a matter of fact and law, the governing rights of the states are all of those which have not been surrendered to the national government by the Constitution or its amendments.”

                After asserting that Congress had the power to legislate concerning Prohibition because that power had been given to them by the 18th Amendment, he continued by stating:

                “[T]his is not the case in the matter of a great number of other vital problems of government, such as the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare, and of a dozen other important features. In these Washington must not be encouraged to interfere.”

                The reason the federal government “must not be encouraged to interfere” was because it lacked the constitutional authority to interfere. Not only had the States not surrendered these powers, but they did not vest the federal government with any general authority over them.Report

          • Avatar James Hanley in reply to Morat20 says:

            Strains credubility a bit, doesn’t it?

            Only for someone who thinks the GOP is more noble than any other political party that’s ever existed, anywhere, in any universe, in any dimension, at any time, or even out of time.Report

        • Avatar wardsmith in reply to James Hanley says:

          Dr. Hanley, Your “short primer” didn’t make it.

          My take on SS is it was only barely legal, the constitutionality was in question from the get go and they had to repackage it as a tax to have it pass muster (IIRC). In other words, almost identical to the individual mandate (which is certain IMHO to go down in flames). Had the overwhelming Democrat majority simply called a spade a spade and made it a tax from the outset they wouldn’t be in the trouble they’re in now. Hoisted by their own petard comes to mind.

          But of course Democrats change this to a morality argument rather than an “on the merits” discussion and I’ll get jumped on for calling a spade a spade because the Left can’t understand dictionaries, etymology and the like.Report

        • Avatar MikeSchilling in reply to James Hanley says:

          James, I’m talking about Bush’s privatized SS, where you would have to put money into privately held investments.Report

          • Avatar MikeSchilling in reply to MikeSchilling says:

            Privatized Social Security, not Blackwater,wich is a different kind of privatized SS.Report

          • Avatar James Hanley in reply to MikeSchilling says:

            Ah, I went back up and I see I totally missed the word “privatized.” You should have put it where it was noticeable, not hiding it at the very beginning of the post.

            Hmm, I don’t remember much talk about the constitutionality of it. And since it would be a requirement that you buy a product/service, it does seem mighty similar to the PPACA mandate. Damn good question.Report

        • Avatar Michael Drew in reply to James Hanley says:

          James, what is your view on how the Court should approach a law or action whose constitutionality is truly indeterminate (i.e. they can look at the constitution and contemporary texts until the cows come home, and the answer still won’t be there)?It seems to me that this is exactly the problem Breyer has tried to deal with in his books, but I know you don’t like his approach. What say you?Report

          • Avatar James Hanley in reply to Michael Drew says:

            Michael, that’s a damned tough question, and one I’d be able to answer more easily and fully if I hadn’t shifted my focus away from Con Law oh so many years ago now.

            I agree with Breyer in a very abstract way, in that I do think we should look to the overall purpose of the Constitution. But I think he’s wrong about what the purpose was. I mean dead wrong, phenomenally ahistorically wrong. I take it (and of course my historical understanding cannot possibly be questioned) as promoting a space where people could thrive through private activity and comparatively local governance (local and state level). The Federal government was intended primarily to keep furriners out, and to minimize conflicts between the states (which in the period of the Articles of Confederation were threatening to burn the whole place down).

            So I’d mostly approach tricky cases from that perspective. The problem with Breyer’s perspective is that it’s too pro-majoritarian and too anti-constitutional, since a major role of a constitution is to constrain the majority. Essentially saying, “if the public overwhelmingly wants it, then it’s constitutional beggars the very idea of constitutionalism.”

            That doesn’t mean my approach provides a simple clear cut answer in every case, of course.

            But, again, I don’t believe the Constitution has a particularly definite meaning in all cases, that there for many issues there is a range of equally plausible constitutional answers that are mutually contradictory. I also believe in the reality of a sort of informal constitution–not all the things that actually constitute our structure at a fundamental level are actually in the Constitution (like single-member congressional districts and plurality vote). Along with that, I think that dubiously constitutional measures become constitutional over time through a sort of informal ratification–long-term refusal of the public to reject a Supreme Court ruling signals acquiescence and effective ratification. I don’t like that approach. I think it’s substantially inferior to formal ratification. But I think in the long run it’s quite real.

            I picked up that idea from Bruce Ackerman, back in the ’90s. At first I rejected it, but over the years, and–recurring theme–through the influence of Elinor Ostrom, I’ve thought more and more about institutional design and structure, including how much informal institutions (from small scale like “hold the door for the next person” to the large scale, like Britain’s unwritten constitution) can have wholly as much real-world effect as formal, written, institutions, and my thoughts have come much more in line with Ackerman’s.Report

      • Avatar Morat20 in reply to MikeSchilling says:

        In fact, here’s a good article:
        http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/06/25/why-the-supreme-court-might-rule-against-the-mandate/

        The first step was, perhaps, the hardest: The Republican Party had to take an official and unanimous stand against the wisdom and constitutionality of the individual mandate. Typically, it’s not that difficult for the opposition party to oppose the least popular element in the majority party’s largest initiative. But the individual mandate was a policy idea Republicans had thought of in the late-1980s and supported for two decades. They had, in effect, to convince every Republican to say that the policy they had been supporting was an unconstitutional assault on liberty.Report

      • So far as I’ve been able to tell, there was never an actual, specific, bill to privatize SS that had the support of the leadership and which the leadership pushed. Nothing ever even got so far as a committee vote from what I can tell. Since my point is that you can’t really make an argument on these grounds until you have a specific bill to criticize (not just a broadly outlined Presidential proposal), one would not expect there to have been any discussion of the constitutionality of partially privatized SS.

        Just as with the individual mandate, how partially privatized social security was structured would have made all the difference.Report

        • Avatar Morat20 in reply to Mark Thompson says:

          *facepalm*. So the Heritage Foundation, CATO, various other conservative organs — all pushing detailed plans for privitazation, and for health care with an individual mandate…

          Don’t count because there never was a vote, so we don’t know? REALLY? I mean, you have a laundry list of guys totally gung-ho about it, some even with detailed proposals, nobody even says boo about forcing people to buy brocolli…

          And nobody, not CATO, not Bush’s staffers, NOBODY thought to ask “is this of dubious Constitutitonality” when writing white papers?

          Only an idiot would buy that argument.Report

          • Avatar Mark Thompson in reply to Morat20 says:

            My point is that mandates are not necessarily unconstitutional per se under any analysis, and that it depends on the details of how a given mandate is structured, details that don’t exist until you’ve got an actual bill.Report

            • Avatar Morat20 in reply to Mark Thompson says:

              No, seriously, it DOESN’T. That was the conservative’s argument before the court.

              It is an unconstitutional act for Congress, for any reason whatsoever, to force someone to participate in an economic transaction. Full stop.

              ANY mandate does that. Under ANY circumstances.Report

              • Avatar Jaybird in reply to Morat20 says:

                From my point of view, Wickard was decided incorrectly.

                It was decided 9-0.

                I’d be willing to say that most folks (who don’t know about it), if told the backstory behind Wickard, would guess that it was decided the other way.

                Including liberals.Report

              • Avatar Koz in reply to Morat20 says:

                http://legalworkshop.org/2012/02/06/the-incidental-unconstitutionality-of-the-individual-mandate

                Actually no, that’s not quite true. The point being is that a mandate is not constitutional as a necessary and proper incident to regulating interstate commerce, as has been alleged by some lib commentators.Report

              • Avatar Morat20 in reply to Koz says:

                So the broccolli argument is just BS, and the real question here is whether the Courts should second-guess Congress on what is necessary and proper to something that obviously falls into the sphere of interstate commerce?

                So we’re talking about overturning precedent even older than the New Deal now?

                Deference to Congress on those grounds is a pretty old concept, and hate it or not the link between the individual mandate and the insurance regulations (community rating, inability to discriminate on pre-existing conditions) aren’t the tenouous guns in school zones logic, but a directly linked pair of requirements.Report

              • Avatar Koz in reply to Morat20 says:

                Obviously you believe that but you should consider your own ignorance the matter more than you have. In fact, this is what I was getting at with one of my other comments.

                Specifically, the particulars of that very question is what a great deal of this litigation has been about. And libs have lost the argument, at least according to most observers (including many libs).Report

              • Avatar James Hanley in reply to Morat20 says:

                the real question here is whether the Courts should second-guess Congress on what is necessary and proper to something that obviously falls into the sphere of interstate commerce?

                That’s always a good question, and the answer is often yes. It’s a but odd, usually the conservatives are the ones arguing for judicial deference, and the libs arguing for the Court just doing what is right, regardless of what Congress said. This is one of those delicious cases where the sides are reversed, and both are having to go against their general trend on the deference issue.

                Which is to say, for most liberals making a deference claim now–I can’t speak for you, of course–it’s a strategic claim, not a sincere one, as it’s not a policy that want applied as a regular rule.

                So we’re talking about overturning precedent even older than the New Deal now?

                There is no precedent on the mandate, one way or the other. That’s why each side is able to make a good argument.Report

              • Avatar Koz in reply to Morat20 says:

                James’ last point is a very useful starting point, especially in the context of how the litigation has proceeded. There is no precedent for the individual mandate. In particular, the plaintiffs distingiushed Wickard, ie, they argued that it doesn’t apply because of the activity / inactivity business.

                In fact this is a general theme of all the lib arguments. Whatever your lib hobbyhorse is, “healthcare is special”, “it’s really a tax”, “broccoli is stupid”, “they made ’em buy a gun in 1790”, all of them have been litigated. The lawyers have written briefs, they have argued it in court, they have taken testimony if necessary, the judges have ruled.

                That doesn’t mean any particular lib has to believe what the judges or lawyers have written but it’s a good place to start.Report

              • Avatar Mark Thompson in reply to Morat20 says:

                A few things – first of all, it seems worth mentioning that one of the very first things cited by the Petitioner on the individual mandate is a 1994 CBO report that specifically refers to a national individual health insurance mandate as “unprecedented.”

                Additionally, there are ways that a “mandate” could be structured that would clearly not run afoul of the arguments made in the Petitioners’ brief. These may or may not be palatable, but they would clearly pass constitutional muster under existing precedent. For instance, Congress could mandate that “no licensed medical doctor participating in interstate commerce may perform services unless having received proof of the patient’s coverage by a qualifying health insurance program.”

                Another way would have been to structure the mandate as a tax-incentive (rather than a “penalty,” which in this case the government has expressly conceded it has done). The way to do this would be to put in place a tax of $___, chargeable to every American, with a tax credit of an equivalent amount to be given to every American with qualifying health insurance coverage.

                Etc., etc.Report

          • Avatar Koz in reply to Morat20 says:

            “And nobody, not CATO, not Bush’s staffers, NOBODY thought to ask “is this of dubious Constitutitonality” when writing white papers?”

            The legal environment was different in the 1993 Bob Dole days as well. The current litigation strategy might not have worked then.

            It’s important to emphasize that the reason PPACA is in such legal jeopardy in the first place is because it is a fundamentally illegitimate act of legislation. They could have rewritten the bill in ways where the inactivity distinction wouldn’t apply, or the power to tax would. But it was specifically not written that way because of the political needs of President Obama and the rest of the libs to be able to misrepresent its essential function. If the President wasn’t as determined as he was to deny our ability as citizens to rule ourselves we wouldn’t be here today.Report

            • Avatar Mark Thompson in reply to Koz says:

              It greatly pains me to say this, but save for the “deny our ability as citizens to rule ourselves” clause, I think Koz gets this about exactly right.Report

              • Avatar Koz in reply to Mark Thompson says:

                I’m not quite seeing the problem with that one. All the king’s horses and all the king’s men tried over and over again to make Obamacare popular, or at least create the plausible illusion of it, and failed.Report

              • Avatar Tod Kelly in reply to Koz says:

                If the bill gets struck down, the degree to which the GOP will try to repackage it’s popular components is going to make your head swim.Report

              • Avatar Koz in reply to Tod Kelly says:

                That’s possible I suppose. If it were up to me, I’d just take PPACA and blame the Demo’s for all adverse health care outcomes from now till the end of time.Report

              • Avatar James Hanley in reply to Koz says:

                Yeah, well….polls show a majority of Americans oppose Obamacare, but that a majority of Americans support most of the elements within Obamacare. Slap a scary label on something and spin lots of horror stories, and lots of people will think it’s wicked without knowing what’s in it. Ask them about specific elements without reference to the scary name, and it’s a different story.

                Don’t get me wrong, I’m not a supporter. But the “majority of Americans oppose it” claim depends on some real selective reading.Report

              • Avatar DensityDuck in reply to James Hanley says:

                That someone likes green olives and lettuce and grape jelly and beef and milk does not mean that they must therefore enjoy a green-olive lettuce grape-jelly beef milkshake.Report

              • Avatar Jeff in reply to James Hanley says:

                Slap a scary label on something and spin lots of horror stories, and lots of people will think it’s wicked without knowing what’s in it. Ask them about specific elements without reference to the scary name, and it’s a different story.

                See also: “Union”Report

            • Avatar BlaiseP in reply to Koz says:

              Here’s where you’re right: PPACA is not what the Democrats have labelled it. I question the right of the government to tell us to buy anything. Either it’s a tax or it isn’t, or maybe some sort of deduction or something which might pass legal muster, but this incarnation of PPACA probably isn’t constitutional in its current form.

              But is it fundamentally illegitimate? Not really. This bill was rewritten to the point of absurdity and there’s the problem. It’s all Congress and the President could do within their limits and it does conform to the Romneycare model, which will also die with a contrary ruling from SCOTUS. Most people don’t seem to realise that fact. Romney put a lot of effort into Romneycare. Oh, he’s trying to back away from it, now, for political reasons, but it was once praised by the very people now angry with Obamacare.Report

              • Avatar James Hanley in reply to BlaiseP says:

                it does conform to the Romneycare model, which will also die with a contrary ruling from SCOTUS.

                Not necessarily. State governments don’t have the same constraints the federal government does. It’s easier to argue for the constitutionality of the mandate at the state level than the federal level. (Which is not to say I am predicting how the Court would rule on it.)

                That may seem perverse (at least to folks who are more used to thinking of major economic policies in national-level terms, rather than sub-national level), but that’s the way our Constitution was set up.Report

              • I’d actually go so far as to say that there’s no dispute Romneycare would hold up as Constitutional under the federal Constitution. The entire argument against the mandate in Obamacare is that violates federalism and is premised on an unacceptably broad interpretation of the interstate commerce clause. But the interstate commerce clause isn’t going to apply to legislation that mandates certain behavior by residents of a given state. You’d need to find another basis for objection that could fit within the 14th Amendment. But if there was a good 14th Amendment argument against mandates, that argument would be equally applicable to Obamacare, yet AFAIK no 14th Amendment arguments have been meaningfully raised in that regard.Report

              • Avatar BlaiseP in reply to James Hanley says:

                I’ve heard that line of argument before. It doesn’t work because the health insurance companies aren’t in the same state as the insured. Commerce Clause. Big problem, because insurance firms are regulated by the states, not the Feds.Report

              • Avatar James Hanley in reply to BlaiseP says:

                I think the counterargument would be that those firms have operations in those states, and the rule applies only to those operations. Just as McDonalds isn’t headquartered in Massachusetts, but still has to pay Massachusetts minimum wage in its company-owned restaurants. And just the fact that they’re regulated by the states, as you noted, indicates that the law would pass muster.

                Besides, if it’s actually an individual mandate, then it’s not an actual regulation of the businesses (at least not that part of the law), but a regulation on state citizens, for which states have quite a bit of latitude.

                I get your point, and it might have to be addressed, but I doubt it would prove a serious obstacle to a lawyer writing a brief in support of the law.Report

              • Avatar BlaiseP in reply to James Hanley says:

                Yeah, so stipulated. I want PPACA repealed, I think this whole initiative is bass-ackwards, it’s nothing but a market-distorting land grab by the health insurance industry — boy howdy, I sure wish I could get a law passed says everyone needs to purchase software consulting services.

                The answer is obvious. First, make it possible for ordinary joes to buy health insurance based on meaningful stats, just like auto insurance. We don’t get auto insurance through our employers.Report

              • Avatar M.A. in reply to James Hanley says:

                And then everyone with any sort of condition can be dumped by their insurance and/or have their rates jacked until they have no possibility of having insurance.

                Sounds lovely. Let’s just screw over anyone unlucky enough to get sick.Report

              • Avatar BlaiseP in reply to James Hanley says:

                PPACA doesn’t eliminate cherry picking, either. The private health insurance companies get to jack up rates on an employer if one big claim comes through.Report

              • Avatar Mark Thompson in reply to BlaiseP says:

                It doesn’t work because the health insurance companies aren’t in the same state as the insured.

                That’s only true to the extent we’re discussing regulation of health insurance companies specifically, but the issue here is that it’s not health insurance companies who are regulated by the mandate, but rather individuals.Report

              • Avatar BlaiseP in reply to Mark Thompson says:

                When faced with a problem of this sort, we must always look for the trail of money. Why do the enemies of Obamacare hate it? Because it says they have to pay a third party. Doesn’t matter what you’re paying for in this proposition, it’s not a tax, which would be constitutional. That makes it unconstitutional, nu?

                But who gets paid? The health insurance company, who will supposedly pay the health care provider. Of course, there are more payers, there’s our employers, who may or may not be incorporated in that state, probably aren’t. I’m incorporated in Delaware and haven’t set foot in the state since I was a teenager.

                Health insurance, as I’m sure I don’t have to tell you, began as a dodge, a run-around, a way of giving employees raises during a period of time, WW2, when wage freezes were in effect.

                As I’ve said elsewhere along this thread, if we want universal health care coverage, the first step is to get people paying for their own health insurance, with their own money. Then we might be able to discuss how to get everyone insured.

                Let’s just put aside deductibles and all that personal stuff for just a moment. While the health insurance industry has the employer over the barrel, the whole system is unfixable.Report

              • Avatar Roger in reply to Mark Thompson says:

                A miracle. Blaise and I seem to agree on something…

                “As I’ve said elsewhere along this thread, if we want universal health care coverage, the first step is to get people paying for their own health insurance, with their own money. Then we might be able to discuss how to get everyone insured.”

                If the two of us agree it has to be correct.Report

              • Avatar James Hanley in reply to Mark Thompson says:

                That’s also the only real way to reign in costs. As long as I can effectively keep paying a flat fee no matter how much health care I consume, I’ve got not incentive not to run to the doctor begging for antibiotics each time I sneeze.Report

              • Avatar M.A. in reply to Mark Thompson says:

                As long as I can effectively keep paying a flat fee no matter how much health care I consume, I’ve got not incentive not to run to the doctor begging for antibiotics each time I sneeze.

                Yeah, when I’ve been in bed with a fever for 3 days, the LAST thing I should do is go to a doctor. I should just die and decrease the surplus population.Report

              • Avatar BlaiseP in reply to Mark Thompson says:

                Every time I hear someone gabbling about “Oh, everyone needs health insurance, think of the kiddies… sobsob weepweep” I want to strike them. People need health care. The fewer people involved, the better, because that means fewer sticky hands counting the money.

                I don’t want the government providing my health care any more than I want to drink Government Brand Beer. What’s needed here is the application of statistics and probability known since risk was first calculated. We will all need health care and someone’s going to have to pay for it and there’s good money to be made in handling risk. The more data we have, the better we’ll understand the risks and payouts.

                Obama’s not the villain here. He did the best he could within the parameters of his mandate. But while we’re all Cornfuzed and talking about how Everyone Needs Health Insurance and not talking turkey about Health Care, we’re all gawping at the walnut shells as the shyster plays us for rubes.

                They don’t want us to talk about Health Care. Anyone who even mentions those two words in sequence will be attacked as a Goddamn Socialist. We need health care and we need to pay for it, too and that does not make me a socialist in so saying.Report

              • Avatar James Hanley in reply to Mark Thompson says:

                Wow, M.A., that’s marvelous. I present an example of someone who’s asking for a medication that’s useless for their medical needs (antibiotic abuse is rampant and is a cause of the growing frequency of antibiotic resistant bacteria), and you present as an alleged counterexample somebody who actually has a real medical need. Well done!

                Except that I wasn’t criticizing people who go to the doctor for real medical needs. I strongly recommend that they do so.Report

              • Avatar MikeSchilling in reply to Mark Thompson says:

                antibiotic abuse is rampant and is a cause of the growing frequency of antibiotic resistant bacteria

                My impression is their overuse in animal feed dwarfs their overuse by people, and is the major contributor to this problem. But I could be mistaken.Report

              • Avatar James Hanley in reply to Mark Thompson says:

                It is a major contributor, too. There’s no doubt about that. And I wouldn’t be even slightly surprised to hear that it’s a considerably bigger factor, given that people are far outnumbered by swine, cattle and poultry.

                But human overuse does seem to be part of the problem, too.Report

              • Avatar M.A. in reply to Mark Thompson says:

                I present an example of someone who’s asking for a medication that’s useless for their medical needs (antibiotic abuse is rampant and is a cause of the growing frequency of antibiotic resistant bacteria), and you present as an alleged counterexample somebody who actually has a real medical need.

                No, you presented a nonsensical argument about people running to the doctor demanding antibiotics over a runny nose. Which if it happens is a good reason to start screening for hypochondria, something we really fail to do and also to have doctors start putting their foot down about prescribing antibiotics less, but not to tell everyone else they shouldn’t go to a doctor when sick.

                So excuse me if I don’t get misty-eyed and sniffly nosed over your hurt feelings that I responded with an equally inane response to point out how inane your scenario really was.

                I’ve gone to a doctor for day one on an ear infection and it was a good thing; by day 3, hearing damage can start if untreated. I’ve gone to a doctor for day one of a fever well over 100, and for good reason. I’ve gone to a doctor on day one because I recognized my own symptoms and I was right, I had strep throat (it had been going round the office).

                All 3 of those required antibiotics. All 3 of those I suppose you say I should have not gone to the doctor because I was a sniffly-nosed hypochondriac just looking for antibiotics?Report

        • Avatar MikeSchilling in reply to Mark Thompson says:

          So, we think the solution to the infrastructure crisis is involuntary servitude for all adult males darker than a paper bag. But since we haven’t picked a specific paper bag yet, we can’t discuss the plan’s constitutionality.Report

          • Constitutionality under the interstate commerce clause is the least of the problems with such a proposal. The scope of the 13th Amendment isn’t exactly a jurisprudential ping-pong ball, nor would that proposal come close to a debatable area as to the extent of that scope. The same cannot be said of the scope of the interstate commerce clause, much less which side of the line a close case (which this clearly is) will fall on; that is, of course, my point here.Report

            • Avatar MikeSchilling in reply to Mark Thompson says:

              “Of course, such a mandate would have to be structured with great care, since we’re close to the edge on the Commerce Clause. Still, there’s no point even discussing any of that until after a specific bill has been written and is in committee hearings, so forget I mentioned it.”

              Sorry, but it’s hard to swallow.Report

              • Avatar James Hanley in reply to MikeSchilling says:

                That’s what Paul Linde said about using the moon as a method of birth control.Report

              • The party opposing legislation is under no obligation to provide a roadmap for satisfying any Constitutional objections it may have. That the individual mandate was without precedent was indeed noted as early as 1994, albeit not in the specific context of discussing its Constitutionality so much as in the context of discussing its lack of any kind of a legislative analogue. Even one of the judges upholding the mandate in the lower courts, albeit on relatively narrow grounds, went so far as to acknowledge the Constitutional uniqueness of the individual mandate.Report

              • Avatar MikeSchilling in reply to Mark Thompson says:

                The party opposing legislation is under no obligation to provide a roadmap for satisfying any Constitutional objections it may have.

                Not my point, really. If back when they favored the mandate they considered it Constitutionally delicate, you’d expect the Constitutional issues to have been discussed. I see no sign they were.Report

              • Avatar James Hanley in reply to MikeSchilling says:

                It wasn’t in their interest at the time to bring those questions into the open. They were pretty sure single-payer was coming sometime (I’m still sure it is coming sometime), and the mandate was their best counter to it. Whatever doubts you have about your best or only weapon, you don’t make them public, because that will only embolden your enemies. The last thing they would have wanted is for the Dems to say, “See, even they admit the mandate is unconstitutional, whereas based on SS we’re confident that our single-payer proposal is indisputably constitutional.”Report

              • Avatar MikeSchilling in reply to James Hanley says:

                What I said here seems to apply to this subject too.Report

              • I think Hanley’s comments provide a pretty good explanation of why any such concerns would not have been raised at the time or even really given much consideration. It was (and still is) very much in uncharted waters, a gray area in terms of existing precedent, and whether or not conservatives/libertarians liked that existing precedent, they surely had every right to treat that precedent as valid at the time.

                Even then, though, it seems to have been widely understood that an individual mandate was unprecedented and without useful analogues.Report

    • Avatar Koz in reply to Mark Thompson says:

      Yeah, no shit. Koppelman is crap. Besides Mark’s complaints, Koppelman is also responsible for a very fundamental error at least as it applies to Barnett’s relationship with the PPACA litigation.

      That is, the premise behind the PPACA litigation is the separation of powers. That’s it. You can talk about Hobbes or Rothbard or Ayn Rand if you want, but none of these are critical elements in the inner loop of this process. The litigants made a strategic decision, which Barnett has publically mentioned several times, not to ask relief from any live SCOTUS precedent (specifically Wickard, but all other precedents as well).

      The lib legal establishment has written a number of pieces, of which Koppelman is pretty representative, who either state or imply that the PPACA litigation is frivolous. They ought to be ashamed to write things like that but unfortunately libs don’t shame easily. The common denominator of all of them is that they do a horrible job of stating a premise. It helps them avoid the reality that the things they would like to take as premises, really aren’t premises at all.Report

      • Avatar James Hanley in reply to Koz says:

        The lib legal establishment has written a number of pieces, of which Koppelman is pretty representative, who either state or imply that the PPACA litigation is frivolous. They ought to be ashamed to write things like that but unfortunately libs don’t shame easily.

        Well, they’re playing a political game, too, just like the Heritage Foundation was earlier. How much shame have the Heritage folks expressed?Report

        • Avatar Koz in reply to James Hanley says:

          Oh bullshit. The one lib argument is essentially premised on the point that Cato or Heritage should have known that this was going to be declared unconstitutional 20 years later.

          My complaint is specifically about libs who try to argue that the current PPACA litigation is frivolous while deliberately or accidentally ignoring the major developments in it.Report

          • Avatar James Hanley in reply to Koz says:

            Seriously, the liberals have a point. Conservatives pushed this twenty years ago, now they’re claiming it’s unconstitutional. You can’t criticize the libs for lack of shame and pretend the conservatives aren’t in the same boat.

            All political parties lack shame; only partisans can’t admit to that.Report

            • Avatar Koz in reply to James Hanley says:

              Really? How was a CATO or Heritage analyst was supposed to figure out this was unconstitutional? First of all, he was almost certainly working as a health care analyst instead of a constitutional law. And furthermore, even if we assume the Barnett arguments hold up at SCOTUS, he could just use the one of the constitutional workarounds if he still advocated that policy path anyway.

              Check the tape. That word doesn’t mean what you think it means.Report

              • Avatar James Hanley in reply to Koz says:

                Heh, Cato (not CATO) and Heritage folks publishing radically new policy proposals without considering their constitutionality. That’s a good one. I assume you actually have some familiarity with those orgs’ view of the Constitution?

                And hey, I’m a fan of Cato, and I’ve used a lot of Heritage pubs in my classes. I’m no hater.Report

              • Avatar Koz in reply to James Hanley says:

                Well yeah, but you gotta play the ball where it lies, and it lies in a different place now than it did twenty years ago. I have a hard time seeing how Cato or Heritage can be at fault for that.Report

              • Avatar James Hanley in reply to Koz says:

                Dude, that’s what I’ve been saying all along! And the Democrats are just playing the ball where it lies now. So if you don’t want to criticize conservatives/libertarians for having done it, you don’t really have any grounds for criticizing liberals for doing it now.Report

              • Avatar Koz in reply to James Hanley says:

                No, not at all. My complaint against the libs (in this context) is their blase insistence of the constitutionality of PPACA while at the same time ignoring the important developments in the PPACA litigation over the last two years. Ie, their particular arguments have been litigated and rejected (or upheld).

                I can promise you that if the constitutionality of the individual mandate had been roiling the legal system 20 years ago that the Cato or Heritage analyst would have come to grips with it in some way.Report

              • Avatar James Hanley in reply to James Hanley says:

                It’s still strategic. They haven’t lost the game yet, so they’re still playing.

                Nothing against Cato or Heritage, but it might have taken them more than two years to come to grips with it, too, especially while the game was still going.Report

              • Avatar BlaiseP in reply to James Hanley says:

                Ecch… maybe in some liberal camp that might be true. But in the circles I travel, among the Liberals I know, when PPACA finally got through Bismarck’s Law and Sausage Factory, we were not happy, nossir. We weren’t. I went through PPACA in its various incarnations, I deal with health care claims and such, and it looked horrid to me.

                The first step should have been to reform the health insurance industries. I would not have used new legislation, but amended the HIPAA legislation. Old Lyndon Johnson trick: never propose new legislation when you can amend old legislation. Also an FDR trick, he re-used a great deal of legislation passed in the era of Hoover.

                Anyway, HIPAA could have established a clearinghouse, not Single Payer, but Single Gateway, through which all health care claims would pass, also shoving Medicare through the same gateway. That would mean claims would be paid quickly and the health care industry would have backed that in a big way.

                Once that was established, getting people insured would be fairly trivial. No longer could the heath insurers play these silly games, gouging single consumers where they couldn’t gouge a big employer, because now it’s an individual buying insurance.Report

              • Avatar Mr. Blue in reply to James Hanley says:

                Neither Cato or CATO supported the mandate, as far as I can tell. The original statement was made by MA, who has a history of misrepresentation. Up above, Master of the Arts said:

                The mandate was proposed by Heritage Foundation starting in 1989, supported by Tom Miller of CATO in 1994.

                How interesting that libertarians turned their back on it once a black guy was elected president.

                RACISM!

                It’s wrong, it turns out. Here’s what Miller said in 1994:

                However, the legislation (as introduced last November) contains a number of serious flaws. It endorses the concept of compulsory universal insurance coverage and imposes a standardized “minimum” package of health insurance benefits.

                Maybe MA can cite a different quote, and if I’m corrected I’ll retract, but before I read any more about how Cato was for the mandate, I want a source.Report

              • Avatar Dan D in reply to Mr. Blue says:

                whatever they thought in 1994, Cato was opposed to the mandate when it was Romney supporting it in 2006 http://www.cato.org/publications/briefing-paper/no-miracle-massachusetts-why-governor-romneys-health-care-reform-wont-workReport

              • Avatar Mr. Blue in reply to Dan D says:

                Thanks, I’ll add that to the file. Glen Whitman also wrote a piece against it for Cato in 2007.Report

              • Avatar James Hanley in reply to Dan D says:

                Good cites, guys. So we have several cites showing Cato against the mandate, as opposed to one uncited/unsourced claim that they were for it. Who should I believe?Report

          • Avatar Tom Van Dyke in reply to Koz says:

            More to the point, Obama campaigned against Hillary’s support for a mandate.

            http://www.buzzfeed.com/andrewkaczynski/when-obama-ran-against-the-mandate

            Why a tenuous claim of GOP support for a mandate 20 years ago matters more than Obama’s express opposition in 2008, I do not know, except the grist for the mill thing.Report

  4. The problems with Hobbes’ thesis are twofold.

    First: it’s empirically false. The actual history of stateless legal systems shows that a monopoly of force is not needed for a well-functioning legal order. See, for example, Bruce Benson’s book The Enterprise of Law.

    Second: it’s conceptually incoherent. Creating and maintaining states is itself a complex cooperative endeavour, and so cooperation cannot presupposes the state; the state presupposes cooperation. See, for example: http://praxeology.net/Anarconst2.pdfReport

    • Avatar Kimmi in reply to Roderick T. Long says:

      The thirdfold truth is most troubling: Hobbes, as does Rousseau and (to a lesser extent) Locke assume that human nature is fixed and immutable. Millenia of breeding and sexual selection has contrived to strip all of them of their clothes.Report

    • Avatar James Hanley in reply to Roderick T. Long says:

      I would chime in with a recommendation of James Scott’s The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia .

      Also, my graduate advisor was co-author of an article titled “Can Leviathan Make the Life of Man Less Solitary, Nasty, Poor, Brutish and Short?. I don’t have the entire article at my fingertips right now, since I’m not at my office, but they did a comparative analysis and found that the more Hobbesian countries tended to be more brutish and nasty, and the people being poorer and having shorter lives.Report

      • Avatar Jaybird in reply to James Hanley says:

        I’d be interested in seeing that article, when you get a minute.Report

        • Avatar James Hanley in reply to Jaybird says:

          JB, I’ll try to remember next time I go into my office (It’s summer, there’s no AC in my building, so I work from home mostly). If I don’t get it to you soon, hit me up with a reminder.Report

          • Avatar Jaybird in reply to James Hanley says:

            Water-proof televisions in the quad, but no air conditioning.

            This country is going to hell in a handbasket.Report

            • Avatar Will Truman in reply to Jaybird says:

              I’ll never understand the north.Report

            • Avatar James Hanley in reply to Jaybird says:

              Water-proof televisions in the quad, but no air conditioning.

              Wow, you did your homework! A+.

              To be fair, my building is scheduled for a major renovation as soon as they can get the funds in hand, and I’ve been assured that AC will be part of the project.

              It’s kind of a funny thing. My college was declining badly through the ’90s, on a trajectory towards closing. The new president has turned that around, so that we now have record enrollment. But you don’t attract students by putting AC in professor’s offices. So we see all kinds of improvements on campus, but some of the things most important to the faculty have not yet happened. It makes us grumble, but it’s probably the right way to go. And as expensive as waterproof televisions are, if they bring in even one more student they’ll have paid for themselves in multiple times over just during that one student’s first semester.Report

      • Avatar Chris in reply to James Hanley says:

        I recommend Scott’s book too, with the caveat that a lot of scholars of the region disagree with his premises and his conclusions. Something similar to what he describes has existed in parts of Papua New Guinea for centuries, as well.Report

      • Avatar BlaiseP in reply to James Hanley says:

        Oh Lord. Zomia again. Scott is absolutely, categorically wrong. Allow me to introduce you to the Hmong. Trained more than a few of them. They used to be valley people. They’re up in the highlands because they got forced off the valley land by organised societies, specifically the kingdoms of Vietnam and China, to a lesser extent by the Thai kingdom.

        The CIA used their hatred of the valley dwellers who had systematically driven them off their land to great advantage. They were remarkable fighters and took almost no prisoners.Report

        • Avatar James Hanley in reply to BlaiseP says:

          Scott is absolutely, categorically wrong.

          And yet you don’t explain why. You simply give an anecdote, only part of which even relates to Scott’s thesis.

          But that’s ok. You’re an expert on everything (even though you haven’t answered my question on the other thread), so I’ll take your word as someone who met some Hmong while killing peasants in Vietnam. Because, really, what could possibly be more persuasive proof than that?Report

          • Avatar BlaiseP in reply to James Hanley says:

            In this case, I bloody well am the authority. I trained them and fought with them. My mother and her parents grew up in the south of China, among the Lisu people, who were also driven up into the mountains of the Salween and Mekong River valleys by the Chinese. I had some interesting conversations with my grandfather about them, and the Karen people of Burma, who he also knew well enough to speak their language.

            Scott understands nothing about the Karen or the Hmong. They aren’t exactly the best argument for some anarchist paradise. The Hmong and Karen did have organic governments, strictly regimented. They didn’t choose their fate, it was thrust upon them. Zomia, Schmomia. If ever there was a desert made which someone called peace, that desert is upland Laos, the most bombed landscape on the planet, and Scott is the Pangloss who’s trying to call it peace.

            The Hmong are nearly extirpated in Laos. There are quite a few of them here in the States, especially in Twin Cities and here in Eau Claire. All the little mountain tribes are disappearing. Nobody lives in the mountains from choice, farming those dizzying terraces, climbing with their hands and feet, their goods carried in bags from tump lines on their heads to reach their own houses. They’re forced up there.Report

            • Avatar Chris in reply to BlaiseP says:

              What I find strange about your criticism is that it doesn’t actually contradict anything he says. For example, Scott is pretty clear that the people aren’t up in the mountains by choice, but were forced up there by war and states.

              Also, while it’s not really relevant to your critique that’s not a critique, I would be remiss if I didn’t point out that the reason parts of Laos comprise the most bombed land on the planet is, well, us.Report

              • Avatar BlaiseP in reply to Chris says:

                It contradicts everything Scott says. In Scott’s Panglossian worldview, these Noble Savage Zomians prefer statelessness and anarchy. That’s the most condescending nonsense, ever. No they bloody well don’t. Given half a chance, they will form governments.

                This problem is a lot larger than Zomia. It’s equally true of the tribes of Guatemala, of Kurdistan, the nomads of the Sahel, the aboriginal peoples of Australia, the tribes of Brazil and the Andes.

                All the conventions conspire
                To make this fort assume
                The furniture of home;
                Lest we should see where we are,
                Lost in a haunted wood,
                Children afraid of the night
                Who have never been happy or good.
                Report

              • Avatar James Hanley in reply to BlaiseP says:

                You like to talk authoritatively about authors you haven’t really read, don’t you?

                I’m willing to grant that you may have skimmed through the book at a bookstore, or perhaps read the reviews on Amazon, but it’s abundantly evident that you didn’t do a serious reading of it.Report

              • Avatar BlaiseP in reply to James Hanley says:

                Oh Hanley. I’ve got the entire ebook in the other monitor.Report

              • Avatar James Hanley in reply to BlaiseP says:

                I also have lots of books I haven’t read carefully or at all, my time being more limited than my book budget.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                For someone who doesn’t speak Hmong, has never learned how their society is ordered and governed, you sure do have a lot to say about their fate.

                In this case, I think I’ll be the judge of who’s skimming and reaching facile conclusions about these mythical Zomians. This is all the memorial my war is ever going to get. I’ve seen better markers at rest stops. But it is something, I guess.Report

              • Avatar DensityDuck in reply to BlaiseP says:

                The search function doth make geniuses of all.Report

              • Avatar James Hanley in reply to BlaiseP says:

                In this case, I think I’ll be the judge of who’s skimming and reaching facile conclusions about these mythical Zomians.

                Eh, obviously you’ll judge for yourself. That goes without saying (or should have). But if you’re claiming sole judging authority, well, I’ll be the judge of that.

                But since you didn’t accurately represent the book’s argument and didn’t actually say anything that really rebutted it, my judgement on your care in reading it hasn’t change.Report

              • Avatar Chris in reply to BlaiseP says:

                They don’t prefer statelessness, they prefer not to be a part of the lowland state, and have set things up so that they lowland state can’t do certain things with/to them (like collect taxes), or so that certain members of their society don’t have incentives to betray them to the lowland state.

                Nothing you’ve said contradicts that. He could be wrong. The scholarly discussion appears to be pretty lively at this point, and based on experience even deeper than yours, I suspect. But we can reasonably say that he’s not wrong for the reasons you’ve given, because you’ve either affirmed what he says or said things he didn’t.Report

              • Avatar BlaiseP in reply to Chris says:

                He is wrong. He’s got terminal Noble Savage-itis.Report

            • Avatar James Hanley in reply to BlaiseP says:

              They aren’t exactly the best argument for some anarchist paradise. The Hmong and Karen did have organic governments, strictly regimented.

              I agree, which is why I think he’s oversold his thesis. But that doesn’t mean he’s entirely wrong, and nothing you’ve presented show’s that he’s entirely wrong.

              Particularly important is his emphasis on how terrain has protected them from further control by the government, allowing them to be effectively, it not entirely, self-governed rather than be wholly under the control of the official government. Your example of the Hmong actually reinforces his point. When conditions pushed them out they didn’t stage a revolution, they didn’t all emigrate to America, they moved up to the mountains where the state couldn’t exercise efficient control over them, and got on with reordering their lives and setting up their own governance institutions. Not exactly anarchic, still a real example of distributed authority/Report

              • Avatar BlaiseP in reply to James Hanley says:

                The terrain didn’t save them then and it’s not saving them now. Scott falls prey to the classic Noble Savage fallacy and never quite escapes it.

                As for the Hmong, this level of ignorance stung me to anger. The Hmong are being exterminated in Laos. Clinton and the UN tried to forcibly repatriate them from their refugee camps at Wat Tham Krabok. All who were sent back were tortured and murdered.

                They did not move up into the mountains, after the USA betrayed the Hmong, they were driven out of their mountains and into Thailand and now they’re coming into Minn/St Paul and Eau Claire and I just went to a little graduation ceremony yesterday where a bunch of Hmong adults just got their GED.

                James, I can put up with you not knowing about the Hmong. Not many people do. But I’m not going to put up with bullshit about what happened to them. They did emigrate to America, the ones who survived. The Pathet Lao drove them out of the mountains, oh they do exercise efficient control over them: they slaughter them like goats. They got on with reordering their lives and setting up their own governance institutions right here in the USA and they’re going to be extinct in their own mountains within two generations. Now those are the facts. Take it from someone who’s had to live with the guilt of his own country cruelly betraying these people who fought and died for us.Report

              • Avatar DensityDuck in reply to BlaiseP says:

                So the Hmong getting screwed by Walter Cronkite convincing the US to leave Vietnam is a refutation of libertarian philosophy?Report

              • Avatar Chris in reply to DensityDuck says:

                No one’s claiming that Hmong are libertarians, but I’m pretty sure Walter Cronkite’s eyebrows were a refutation of libertarian philosophy.Report

              • Avatar BlaiseP in reply to DensityDuck says:

                Um, Uncle Walter never got into Laos. He only got to the top of a rather nice hotel in Saigon, the Caravelle.

                Y’know, Duck, there’s no refuting a religion like Libertarianism. It’s pointless to try. They have their little articles of faith and God bless ’em, they’re struggling to do what they think are the right things in this world of sin and error. However misguided they are, I still contend they’re probably necessary: nobody else is out there questioning the efficacy of government solutions. And they’re basically harmless: nobody’s going to trust them with any political power.

                But you? The Hmong weren’t screwed by Cronkite, or even LBJ. They were screwed by Nixon, not that you’d know. But when did not knowing anything ever keep you from opening your ignorant pie hole?

                The Hmong women make tapestries called pa ndau, rather like the Bayeux Tapestry. Here they are, retreating from the Pathet Lao. And here, sadly is a pa ndau which shows the future of the Hmong.Report

              • Avatar James Hanley in reply to BlaiseP says:

                I’ll not argue with over this anymore, since you’re unable to separate moral outrage from analysis; both exist in abundance in your comment, and while they can be sorted out, the reader should not have to bear the burden of doing so; that’s the author’s responsibility.

                I’ll just suggest to interested parties that here is an accessible overview of the issue; one in which there is this interesting tidbit:
                ince World War II, [Scott] says, states have engulfed the highland peoples by sending lowlanders into those areas. Technology and transportation, too, have diminished the distances between the hill peoples and the states.

                So, once again Blaise’s rebuttal is actually not very contradictory with Scott’s arguments. If Blaise could get over his moral outrage that someone he disagrees with has dared to talk about the Hmong, he might be able to see that Scott was making a more general argument that was not based on the Hmong. If in fact he got his facts wrong on the Hmong, it’s certainly reason to pause and do a little more to verify the accuracy of his other examples, but it would hardly be a telling blow against his thesis.

                We often talk on this blog about giving others a fair reading. Blaise has emphatically violated that prescription in his reading of Scott.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Google sure can make a genius anthropologist out of anyone. Even you, Hanley, it seems. Not only does Scott have his facts all wrong about the Hmong and the Karen, this flaw appears all over in anthropology and linguistics and is common enough to have a term for it, Noble Savagery, from Rousseau’s classic fallacies about the peoples of North America.

                Here’s why Scott’s wrong, in a nutshell: these people are not egalitarian. That kicks Scott’s entire thesis onto the fire.Report

              • Avatar James Hanley in reply to BlaiseP says:

                Blaise, I’m not pretending to be a genius. You’ve long since pre-empted that role here, and I’ll not try challenging you for it. I’m just giving folks some other sources to look at, in case they wanted to here from someone other than you and me.

                I agree that Scott overestimates the egalitarianism of these peoples, which is one of the areas where I think he overstated the case. It still doesn’t hit at the root issue, which is whether they were consciously seeking to escape from control of a centralized state, whether their own governmental structures were less centralized, and whether geography played a role in making that possible, especially prior to the 20th and 21st centuries (e.g., before advanced technology made it harder to escape the centralized state).Report

              • Avatar BlaiseP in reply to BlaiseP says:

                The legends of the Hmong begin with expulsion from China. They’re rather like the Kurds and Pashtun, they’re not a single people. They do speak dialects of the same language, that’s also true of other such tribal groups.

                There is absolutely no debate on this subject. We know the Hmong started out in southern China and were routed from their ancestral homelands and now they’re routed from Laos and Thailand. The Hmong say they were once a kingdom and they have a King Arthur / Messiah figure in their legends who’s supposed to re-establish that kingdom, and more than a few guys have claimed to be that messiah. That’s what the Hmong say, that’s what the Chinese say, that’s what the French anthropologists say.

                There was no choice. Scott’s a silly romantic. The Hmong are ruled by their own clan leadership and they’re awfully autocratic. There have been problems with Hmong clans forcing girls into marriage as early as 11. Scott’s entire premise, that these people are decentralised, means he’s never heard their own myths or observed what they believe.Report

              • Avatar James Hanley in reply to BlaiseP says:

                Blaise,

                I make no objection to the facts in your comment.

                Rebuttal of a single case still does not constitute refutation of the theory, unless the theory required that the particular case may be true.

                There are multiple issues here, only one of which is whether Scott was right about the Hmong. You’re conflating the issues, which occur at different methodological levels.Report

    • Avatar Murali in reply to Roderick T. Long says:

      it’s conceptually incoherent. Creating and maintaining states is itself a complex cooperative endeavour, and so cooperation cannot presupposes the state; the state presupposes cooperation.

      Hobbes is not a just so story about the origin of civil government, nor is it an instruction manual on how to get out of he state of nature. It is a thought experiment to ask why we would want to have a state.e

      The actual history of stateless legal systems shows that a monopoly of force is not needed for a well-functioning legal order. See, for example, Bruce Benson’s book The Enterprise of Law.

      The danish experience AFAIK was rather anomalous to them*. In a lot of the rest of the world, while the borders between jurisdictions was fuzzy, It is only at the fuzzy edges could different legal systems compete with eachother. Moreover, the fuzziness of jurisdictional borders is more a product of lack of ability to project power at a distance than it is a lack of territoriality. To that extent then, a lack of jurisdictional monopoly is unstable (in the sense that it cannot remain in such a state for long, and when equillibrium is disturbed will either proceed towards chaos or more clearly defined borders.)

      *The UK did have compting legal jurisdicitons for a while, but once prince John got around to it, said situation was resolved.Report

  5. Avatar James Hanley says:

    If [Hobbes’] attack on naturally-founded rights holds, however, Hobbes’ challenge to libertarianism goes deeper. It asserts the primacy of politics over and above economic life. Markets aren’t freestanding, and property isn’t natural—they both depend upon robust public institutions which make can coercively settle disputes and maintain public order.

    Yes, and no. Taken at face value, yes, absolutely. Politics is simply who gets what, when, and how (Harold Lasswell), so really almost all our interactions are political in that broad sense. And of course no society has ever existed that is not political.

    But political does not mean centralized government. Nor does “robust public institutions” mean centralized government. To bring up Elinor Ostrom again, she demonstrated that robust public institutions can be institutions of self-governance, that they can be broadly distributed and nested within each other (collectively, a polycentric system; one with many centers of authority), and that they can at times be more robust, more durable and sustainable, than a centralized government, not to mention superior (at times, frequently, not as an absolute rule) be more conducive to prosperity and well-being than centralized government.Report

    • I think my biggest real problem with decentralization arguments, is that there’s no real authority that arbitrarily can also limit the centralization of corporations versus governments. At some point a large enough multi-national becomes a non-state actor of enormous power with the ability to casually side-step local regulations that it doesn’t like with sufficient market power to be coercive.

      The reality is that a lot of the international norms we take for granted are the product of vast power centralization. Freedom of navigation for example, is a concept that didn’t really exist until Pax Britannica.Report

      • Avatar Morat20 in reply to Nob Akimoto says:

        You can’t bring up the fact that things like, oh, intrusive government regulation came about due to market failures into an argument like this.

        What next? Pointing out company towns were far more coercive than any democracy? The distorting effect of massive monopolies on any marketplace in the absence of government action to break them up?

        Don’t you get that government isn’t perfect, therefore we should get rid of it and let a free-market paradise bloom?Report

        • Avatar Jaybird in reply to Morat20 says:

          Would you say that company towns are more Libertarian or more Hobbesnian?Report

          • Avatar M.A. in reply to Jaybird says:

            Company towns are the libertarian ideal. Plenty of coercion, plenty of so-called “voluntary exchange” as a result of that coercion, but no pesky “government coercion” to get in the way.Report

            • Avatar Tod Kelly in reply to M.A. says:

              I’m not sure I’d count something that just about all libertarians condemn as an example of a “libertarian ideal.”Report

              • Avatar Morat20 in reply to Tod Kelly says:

                It seems the inevietable end result of “private contracts”. Microsoft has a LOT more power than me.

                A lot more money. A lot more information. It’s hard enough to sue a big company (or even a small company) even with access to actual neutral courts.

                I can’t see doing it in a purely “private sphere” where those courts know their funding doesn’t come from MY case.Report

              • Avatar M.A. in reply to Morat20 says:

                See my point about phones below.

                Libertarianism leads to “take it or lead it” contracts where every company has the same boilerplate terms. They just don’t like to admit it.

                The only counter to that is to have government make law to declare that things like forced-arbitration clauses are unconscionable and therefore illegal and unenforceable – and a libertarian never wants to let the government have the power to do that.Report

              • Avatar Tod Kelly in reply to M.A. says:

                Mind you this is coming from a guy that is in no way shape or form a libertarian, but do either of you ever read what libertarians here write? Ever?

                You keep bringing up things that I have seen them argue against time and time again – often times against you guys – and you keep bringing them up as something you claim they argue in favor of.

                Might it not be a good idea to argue against what they’re actually arguing for, as opposed to what you’d like them to be arguing for?Report

              • Nob Akimoto Nob Akimoto in reply to Tod Kelly says:

                I think the biggest problem is basically:
                1. We have a highly distorted market right now for a lot of goods.
                2. As a result of 1, both liberals and libertarians see problems in the way things happen.
                2a. Liberals tend to think this as a lack of rule enforcement and power parity between providers and buyers.
                2b. Libertarians tend to think there’s market distortions created by government meddling that make this state of affairs possible.
                3. Both sides then look for empirical examples that back up their point of view and suggest that the policies proposed by the other side will lead to that empirical outcome writ large.Report

              • Avatar Roger in reply to Tod Kelly says:

                Tod,
                The sad thing is that we keep taking the bait and climbing up on our pedestal as the kids laugh at us. Sometimes I wonder if there is a “how to pester the libertarians” manual posted over on some progressive site.Report

              • Avatar James Hanley in reply to Tod Kelly says:

                Roger, my issue is that uninformed people tend to believe what they read, so I can’t stand false claims being thrown out there that stand unchallenged–the lack of a challenge reinforces the impression that they’re true.Report

              • Avatar Tod Kelly in reply to Tod Kelly says:

                Nob –

                I think telling James, Jason or Roger that they support company towns or universal non-arbitration contracts because they’re libertarian is akin to telling Still, Snark and Elias that they are for bread lines and eugenics because they’re liberal.

                It takes a fairly willful, constant and specious effort of not paying attention to what the other side is saying to get there.Report

              • Avatar DensityDuck in reply to Tod Kelly says:

                “do either of you ever read what libertarians here write? Ever?”

                It’s gonna be hella funny when M.A. and Morat20 turn out to be the same person. (Bonus fuinny if they’re the same person who had about six different sockpuppets and got banned, what, six months ago?)Report

              • Avatar James Hanley in reply to M.A. says:

                In reference specifically to cell phones, we got our daughter a pre-paid cell phone. I didn’t bother to read the contract. If it has a mandatory arbitration clause, I don’t really care, because I’m paying about $20 bucks at a time for minutes. If something goes screwy, I’d lose more from any time spent pursuing the issue than I would by ignoring the issue altogether.

                I think a lot of times you all see something you don’t like and assume IT’S THE END OF THE WORLD!!11! Whereas a little more analysis reveals that all is not lost.Report

              • Avatar DensityDuck in reply to James Hanley says:

                James, pre-paid cell phones are the boostraps worn by the minor-league baseball players at the circus where bread is served!Report

              • Avatar Jesse Ewiak in reply to James Hanley says:

                Why are cell phone contracts something that need mandatory arbitration, though?

                In the long run, whether you can sue your cell phone company or not is small potatoes, but when every small potatoes thing isn’t a “big deal”, all of the sudden you’ve got no options when a small potato thing does seriously screw you over.Report

              • Avatar DensityDuck in reply to James Hanley says:

                “Why are cell phone contracts something that need mandatory arbitration, though?”

                Class-action lawsuits.Report

              • Avatar James Hanley in reply to James Hanley says:

                Or even countless individual lawsuits over minor issues. The cost could be exorbitant in a society as litigious as ours, where people too frequently file pointless (and sometimes false) lawsuits. I don’t have any sympathy for Verizon or any other firm. But if that scenario erupted, they’re not really the ones who’d be paying those costs, are they?

                As a customer, I’m thinking maybe I like the binding arbitration clause. It protects me from paying the costs associated with idiot fellow customers.Report

              • Avatar Jesse Ewiak in reply to James Hanley says:

                See, and I’d rather have the freedom to sue somebody if the screw me over, even if it means I pay an extra buck a month on my cell phone bill.

                Also, actual frivolous lawsuits get slapped down fairly quickly. Now, you may not like some lawsuits, but many of the famous “frivolous” lawsuits aren’t actually frivolous by legal standards.

                The crazy person who sues McDonald’s for not getting them a Whopper doesn’t actually cost McDonald’s that much money.Report

              • Avatar James Hanley in reply to James Hanley says:

                Not all frivolous lawsuits get slapped down early. In some cases, yes, but not all.

                And the truth is that the company can’t ultimately keep you from going to court. The courts may say you have to go through the arbitration process first, but if there’s actually something fished up enough that you got screwed over in arbitration, that’s not the end of the line. I’m open to correction about that from some of our local lawyers, but I’m pretty sure I recall reading some Sup.Ct. decisions along those lines.

                Suing is overrated anyway. The world would be a better place if we spent more time in mediation and arbitration instead of in court.

                I’d rather have the freedom to sue somebody if the screw me over, even if it means I pay an extra buck a month on my cell phone bill.

                Yeah, but you’re forcing me to pay more on my phone bill so you can sleep at night knowing you can sue at the drop of a hat. Nothing personal, but I’d rather not have to pay for your pleasures.Report

              • Avatar M.A. in reply to James Hanley says:

                James,

                When you can prevent a class action lawsuit from ever being formed you’ve already won a huge victory.

                It essentially legalizes small scale theft and fraud by large corporations:
                “Most lawsuits involving privacy disputes would never be brought without class action certification because the damage to any single defendant is usually a very small amount of money — attorneys would not sue a company to recover $45 dollars for example.”

                The Federal Arbitration Act also makes provisions for parties in a contract to completely waive their right to appeal the arbitrator’s decision in court.

                Yeah, but you’re forcing me to pay more on my phone bill so you can sleep at night knowing you can sue at the drop of a hat. Nothing personal, but I’d rather not have to pay for your pleasures.

                Takeaway from an earlier conversation: yeah, but you’re forcing me to lose sleep at night about some asshole spraying bullets around a neighborhood in a drive-by so that you can collect AK-47s to mount on your wall.

                Nothing personal, but…Report

              • Avatar Jesse Ewiak in reply to James Hanley says:

                What M.A. said.Report

              • Avatar James Hanley in reply to James Hanley says:

                When you can prevent a class action lawsuit from ever being formed you’ve already won a huge victory.

                I’ve been an uninvolved participant in 3 class action lawsuits. All three won, and collectively I could have recouped maybe 20 bucks, had I found it worth my time to bother. I think class action lawsuits are a wholly legitimate tool, for appropriate cases. But not for piddly stuff like phone bills.

                The Federal Arbitration Act also makes provisions for parties in a contract to completely waive their right to appeal the arbitrator’s decision in court.

                That is not what the article said. You have falsely represented it’s claims. It says the arbitration clauses can be used to prevent class action lawsuits.

                And if you don’t like the clauses, don’t get a phone with that kind of contract. There is an alternative, as has been pointed out twice on this thread.Report

              • Avatar M.A. in reply to James Hanley says:

                The Federal Arbitration Act (found at 9 U.S.C. Section 1 et seq.), enacted in 1925, provides for contractually-based compulsory and binding arbitration, resulting in an arbitration award entered by an arbitrator or arbitration panel as opposed to a judgment entered by a court of law. In an arbitration the parties give up the right to an appeal on substantive grounds to a court.

                Reading Comprehension: Fail.Report

              • Avatar Kimmi in reply to James Hanley says:

                It’s like nobody’s ever heard of small claims court.
                You out $45 dollars? you sue them, and watch them spend oodles sending highfalutin lawyers out to battle your ass.Report

              • Avatar Jaybird in reply to Tod Kelly says:

                The most perfidious way of harming a cause consists of defending it deliberately with faulty arguments. –Friedrich NietzscheReport

              • Avatar Chris in reply to Jaybird says:

                Heh… I’m reminded of one of the neighboring aphorisms, which seems appropriate:

                He is a thinker. That means that he knows how to make things simpler than they are.Report

      • Avatar Roger in reply to Nob Akimoto says:

        Nob,

        So your concern is that strong centralized states are necessary to offset strong centralized corporations? is your thought that one of them will coerce us, so let’s take the lesser of evils?

        As for international norms, your example doesn’t seem to be a norm, but rather a freedom from piracy and coercion. I don’t think you will get much argument on that from any of the libertarians around here, do you?

        The libertarian argument seems to be let’s use the state to eliminate non state coercion and limit the state to a manageable size that it won’t abuse its power to coerce us either. Are you suggesting that if we do limit it that corporations will take control?Report

        • Nob Akimoto Nob Akimoto in reply to Roger says:

          It’s a little more complicated than that.

          I’m not really a fan of strong, centralized corporations, despite the appreciation that positive economies of scale can be very effective.

          It’s not even a matter of control as it is a matter of resource management and externalities. If corporations can shelter themselves behind different and substantially different jurisdictional boundaries, they’re able to duck many of the negative externalities they impose on communities.

          There’s a bit more nuance to this than that, but I might save it for a FP post.

          As for the freedom of navigation issue, it’s actually an interesting one in that it took an overwhelmingly powerful state with an extremely powerful coercive instrument (the Royal Navy) to enforce a new norm of freedom of navigation rather than territorial seas and national sovereignty out on the high seas.Report

  6. Avatar Jaybird says:

    What does Hobbesnian marriage look like? A Hobbesnian social safety net?Report

  7. Avatar Fnord says:

    Perhaps I’m missing something, but it seems that nothing prevents Barnett from setting up his own private law enforcement and court system. Nothing, that is, except the threat of other law enforcement and court systems (like, say, that of the US government, or the relevant municipal or state jurisdiction) enforcing their decisions in defiance of Barnett’s own. But, best as I can tell, Barnett provides no enforceable system to prevent that in his vision of competitive courts.Report

  8. Avatar Morat20 says:

    I love the concept of private courts and private enforcement of contracts. It makes me think of those lovely EULAs that tell me I can’t sue, but have to submit to arbitration.

    You know what makes me certain there’s gonna be a fair, just outcome? The results of an arbitration panel between me and a giant corporation. Because of course those arbiter guys are gonna be fair. I mean, surely I’ll bring them as much business as Microsoft….

    oh wait.Report

    • Avatar M.A. in reply to Morat20 says:

      And here’s where things get coercive.

      Try to find a cell phone company WITHOUT one of those arbitration clauses. Can’t do it? Strike the clause – and while you’re at it, strike and initial the “reserve the right to change terms at will” clause too – and hand it back, see if they’ll take it or if they laugh you right out of the store.

      So ok, you don’t “have to have a cell phone.” Land line? Same clauses. Damn.

      So you don’t have to have a phone. Unless you want to find work, in which case you’d better not just have a phone but an answering machine, too!Report

      • Avatar Dan D in reply to M.A. says:

        get a prepaid cellphone; that’s what i have..Report

        • Avatar Morat20 in reply to Dan D says:

          Speaking of cellphones…

          You know why I can change service providers and keep my phone number?

          The jackboot of government thugs, that’s why. Otherwise I’d have to pay out the nose to keep my number (because providers know what a giant flaming hassle it is to chnage your contact information everywhere, with everyone and adjusted price accordingly once your contract ran out) or just, you know, suffer a great deal of hassle every year.

          You can bet your ass they’d have never done that on their own — why would they? What possible benefit would it do to any of them? It only works if the provider you’re LEAVING is willing to transfer your number.Report

          • Avatar James Hanley in reply to Morat20 says:

            Yeah, I’ll join you on that one. The number portability law is probably a good one; it solved a systemic problem–probably a true market failure, at least if you’re correct about it being the jilted firm that could control your number) and I can’t imagine the cost of the solution was significant. I could make a libertarian argument that over time the market would have solved it, and customers would have been offered a choice of a contract that ensured number portability (at some higher cost), and I would guess that it’s probably true. But when you can solve a market failure with a low cost and pretty non-intrusive regulation, it’s a god time to act.

            Personally I was delighted in the law because my 80 year old mom had had her phone number for 40 years and was not going to give it up (and some of her friends are not as sharp as when they were younger, and likely would struggle to remember her new number. With number portability I was able to persuade her to get a cell phone, so now she has the ability to reach me or an emergency service provider while she’s traveling. I imagine there are a lot of similar stories.Report

            • While it’s not a libertarian policy, number portability doesn’t strike me as being as far from libertarianism as many policies. Seeing phones as a public utility, of sorts, it’s shifting the belief that the number resides with the carrier to the number residing with the consumer. It’s also the case that there are monopolistic elements involved, and I know libertarians who argue that if we’re going to have these government-endorsed monopolies, it’s not unreasonable to demand things from them.Report

              • Avatar James Hanley in reply to Will Truman says:

                Will, you’re right about transferring ownership. I just did a quick search to see what Cato might have said about portability, and the first line of the article is:
                On Monday, November 24, Americans will gain a de facto property right in their telephone numbers.

                They kind of like property rights, so that sends a different signal than an opener along the lines of, “Congress imposes another market distorting regulation” would have sent.

                They do note, though, that Congress was reassigning property rights, which obviously bothers the author a little bit. But in the end the article is really about neither of those things, but about how portability is yet another blow to the wire-line phone industry, and a complaint that the traditional wire-line companies “continue to be shackled with a staggering array of regulations that prevent them from responding to these new competitive threats.” So, really, Cato didn’t seem particularly bothered by it, either.

                I know a couple of liberals here have asked, sincerely, what kind of economic regulation libertarians would support. I think we’ve found one that’s a pretty good example.Report

              • You know, I hadn’t thought about it, but mobile telecom is a much more libertarian-friendly outlet than landlines. In the latter case, you’re almost always going to have a government-sanctioned monopoly or countless regional monopolies, while anyone with a tower can start a cellco. So it’s not at all surprising to me that they might look at this from the prism of helping the industry that opens up more entrepreneurial doors and devalues government-sanctioned monopolies.Report

            • Avatar Stillwater in reply to James Hanley says:

              James, I think what you wrote here

              I could make a libertarian argument that over time the market would have solved it,

              gets really close to one the differences between libs and libs. The liberal looks at the absence of number portability as a problem requiring a solution right now, independently of whether the market would (could?) correct for it in the future. I don’t know how many of the policy disputes between the two camps can be accounted for under this model, but I’d imagine it’s not trivial.

              Just throwin that ought there.Report

              • Avatar James Hanley in reply to Stillwater says:

                I think you’re right. I know I tend to use a “how big a deal is it” metric, and I imagine you probably do to, because I don’t think you or many liberals are in the business of regularly demanding immediate government actions on what you see as small problems. If so, then our metrics likely have significantly different scales of measurement.Report

              • Avatar Kimmi in reply to Stillwater says:

                except that most liberals wouldn’t care that much, as it isn’t sexy.Report

              • Avatar Stillwater in reply to Kimmi says:

                Hmmm. Maybe you and I have different conceptions of liberals. I don’t think OWS and ELF define liberalism.Report

              • Avatar James Hanley in reply to Stillwater says:

                Nor do they define sexy.Report

              • Avatar Kimmi in reply to Stillwater says:

                +1 to james’ comment.
                but seriously, liberals like to look at “real issues” (and we can measure them in GDP, just like the conservatives)…Big issues affect a lot of people, have substantial cause of harm, etc.Report

              • Avatar Stillwater in reply to Kimmi says:

                I don’t even know what that means, kimmi. The Pelosi house passed like 300 bills that stalled in the senate.Report

              • Avatar Kimmi in reply to Kimmi says:

                and one in ten were stalled by Senator Coburn. Next question? (note: those got passed in a Coburn Omnibus. Just like every OTHER year — because coburn mostly puts holds on popular stuff).

                unless you mean 300 over all of pelosi’s term, in which case, we can pretty much say it’s all coburn.
                http://www.washingtonwatch.com/blog/2008/07/24/the-coburn-omnibus-36-bills-in-one/Report

              • Avatar James Hanley in reply to Kimmi says:

                I can see “aged grandmas are having to choose between a phone number they’d had for forty years and the ability to call for help when they’re driving because of greedy phone corporations” as something that would motivate liberals.Report

              • Avatar Stillwater in reply to Kimmi says:

                But number portability without all the emotional content thrown in wouldn’t? Huh. And all these years I thought I was a liberal!Report

              • Avatar Stillwater in reply to Kimmi says:

                The reason I brought up the Pelosi House in Obama’s first two years is that I think that is about a clear reflection of liberal thought we could (or I guess I should say I) could ever hope to point to as an example. And as I recall, most of the issues they addressed weren’t sexy, and most (not all) of the arguments justifying those policies were pragmatic, not emotional.

                But I could be wrong about all that, acourse.Report

              • Avatar James Hanley in reply to Kimmi says:

                Still, well, it does seem a bit dry without that context. Not that you’re not a liberal, but you’re sorta wonkish, so you might not need the emotional content. I can see lots of liberals saying, “yeah, I’d support number portability (but I’m not going to bother emailing my congressmember),” and then when you add in the grandmas they start emailing.

                That is, it’s not so much about getting them to agree on the issue, which they probably would anyway, but motivating them to move beyond basic agreement to actually caring.Report

              • Avatar Stillwater in reply to Kimmi says:

                But James, that begs the question. You’re trying to tell be the definition of the word “liberal” here, that it’s circumscribed to motivated to support a policy only due to an emotional appeal. The Pelosi House was a very liberal house – I’m willing to use it as a paradigm of liberal policy thought and prescriptions. I’m also not alone in thinking that: other liberals thought that, Democratic voters thought that, conservatives and GOP voters thought that, pundits and politicians thought that, academics thought that…

                How is it that the liberal Pelosi house passed legislation that apparently no (or only a few) liberals support or even know about? Who’s holding the incorrect view of liberals here, you or me?Report

              • Avatar Stillwater in reply to Kimmi says:

                Well, I over stated the case a bit to my own detriment. Certainly most liberals weren’t aware of all the legislation passed, acourse. But the broader question remains: how to square the two conceptions of liberals in play.Report

              • Avatar James Hanley in reply to Kimmi says:

                Stillwater,

                OK, I haven’t been clear. I don’t think it’s two substantively kinds of liberals or liberalism, just wonkishness vs. non-wonkishness if anything.

                I would say something similar about conservatives. I can see many being in favor of number portability, but the way to motivate the non-wonks is to give them a story about the hard-working self-employed contractor who had to change cell phone companies, and now all those thousands of people he gave his business cards to can’t contact him anymore.

                Honestly, it was just a jokey response to Kim, on the assumption that number portability wasn’t a sexy issue, so I was trying to show that it was. I probably could have avoided the confusion if I’d written,

                I can see “aged grandmas are having to choose between a phone number they’d had for forty years and the ability to call for help when they’re driving because of greedy phone corporations” as a sexy issue,

                but that just felt inappropriate. 😉Report

              • Avatar Jaybird in reply to Kimmi says:

                I would submit that a better term than “non-wonkish” might be “populist”.Report

  9. Avatar Citizen says:

    “If the walls came down, then humans would be at one another’s throats in no time.”
    How will Conor act when his walls come down? Empires rise and fall much as the seasons pass in a year.Report

  10. Avatar Roger says:

    Conor,

    Thanks for a thought provoking piece.

    I too am very skeptical of libertarian thought projects. I believe reality requires more than flights of fancy. I suggest experimentation in areas with little risk of catastrophic failure.

    I especially enjoyed this paragraph…
    “Hobbes recognizes that rights are meaningless and non-existent without support from public institutions. 1% Lockeans holed up in their mountain lodge can assert their universal property rights until they’re hoarse, but their supposed naturalness won’t save them from the torch-waving mob coming up the hill. Hobbes laughs off flagrant philosophical optimism: you have a right to property if it’s underwritten by some basic legal structures and public institutions that make it possible. Rights claims (property or otherwise) without legitimate power to back them up are flimsy dross in the face of human viciousness.”

    For the life of me I have no idea what the natural rights philosophers plan to do when the mob comes up the hill. I suspect they will die with a comfortable sense of smugness. At least they held the high ground.

    I also agree that “Markets aren’t freestanding, and property isn’t natural—they both depend upon robust public institutions which make can coercively settle disputes and maintain public order. This needn’t culminate in the modern welfare state or Obamacare or the Great Society, of course. We can argue plenty over just how much public authority we need to maximize civil liberty without crashing into the State of Nature.”

    I would suggest it points more to anarchists weak spot than a libertarian purity test.

    Oddly, purity tests themselves seem anti libertarian. I’m tempted to say the ultimate purity test of getting the philosophy is a rejection of purity tests. A purity test against purity tests so to speak. Rand and Rothbard would probably fail.Report

    • Avatar James Hanley in reply to Roger says:

      And so have you! I, on the other hand, … uh, yeah, having taken and passed your purity test, I fail, too,Report

    • Avatar bradP in reply to Roger says:

      What does anyone do when the mob comes up the hill?

      The law doesn’t make “rights” any more real, and “rights” can be morally binding whether or not they exert any real force.Report

      • Avatar Citizen in reply to bradP says:

        Well hell if it is a Hobbes mob, they think people are vicious, bad and beyond self reason/self rule. So there is no debating or arguing with the mob.
        Therefore in pursuit of life and liberty the ROE define the mob as a target rich environment. Mutual assured destruction has been around awhile, so has free trade without public institutions.Report

  11. Avatar Shelley says:

    In the book Life Inc. the author points out that individualism is actually the yin to corporate power’s yang.

    The alternative is community.Report

  12. Avatar Jason Kuznicki says:

    I’ll want to reply to this at length, with reference to my Hobbes blogging from a while ago. I also have been a bit busy lately. Not the Koch-Cato thing, either. Potty training is a whole lot worse when the kid’s got some kind of weird virus thing going on.

    Consider this a placeholder.Report

  13. Avatar Herb says:

    “Obvious Caveat Alert: Clearly Barnett’s isn’t the only libertarianism in town. There are other, more thoughtful versions.”

    It’s sad that this even has to be mentioned, but after reading the comments in previous threads, it’s understandable. Maybe we should just acknowledge that these “other, more thoughtful versions” are actually more liberal* than “libertarian.”

    * As in “classical.”Report

  14. Avatar Rufus F. says:

    Well, I have to go to the library and don’t have time to read 250+ comments. If my experience here over the last few years is any guide, they’ve probably already told you that whatever rejection of libertarianism you made was invalid because you haven’t read enough libertarian texts and don’t really understand it. I’m seriously not sure that you could reject libertarianism in a way that would be taken as valid by libertarians, although I suspect saying that you’re not a libertarian because you fear human freedom might work. Maybe that’s the aim with Hobbes here.

    In terms of Hobbes, I’d say he sees humans as passionate more than as violent or wicked. Locke treats them more as rational. Interestingly, they wind up at pretty much the same place. I’m not familiar with Barnett, but I’d hope someone has pointed out that the norm in the west for quite some time was to have a multiplicity of legal courts. The reason they standardized the legal codes and court system (thanks, Napoleon!) was mainly because it was bloody confusing. There was often a confusion about what court would judge a case and what law was actually broken- knowing what the law was meant knowing what the local law was and if the offense was even illegal. One thing I liked- peasants who were otherwise illiterate would memorize passages of the Bible in case they were ever arrested and could feign enough such knowledge to get tried before the Church courts, who were often more lenient in punishing.Report

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