To theorize is human

To my dismay, lots of commenters to my recent post on the left and right’s underlying differences in political theory want to cast all talk of political theory into the flames as nothing more than empty posturing and demagoguery.  Greginak says “[t]he real world is where theories go to die.”  BlaiseP, a bit more charitably, says:

Theory explains. That’s all it does.

Yes!  Theory explains. Explanations separate reasoned action from arbitrary action. Arbitrary action is bad. Thus, theory is good. If we cannot agree on that much, we lack the necessary ingredients for debate. 

Stillwater, offering interesting points elsewhere, also misunderstands the nature and purpose of theory when he says:

[C]onservative theory reduces to an enumeration of the political beliefs they currently hold. There’s no theory there.

At a fundamental level, yes, there must be some presuppositional beliefs about the world and human nature in order to begin to have a theory. I discuss a few of the conservative presuppositions elsewhere in the comments, such as a moral right to one’s property. Theory takes us from presuppositional beliefs to establishing a reasoned approach to the specific, individualized applications and decisions in practical life. That gets to be a messy business, but I submit we need to give an account for how we go about it, else we’re just going by our stomachs. And I don’t know that there’s a way to choose winners among stomachs.

Why We Disagree About Taxes, Entitlements, and Economic Theory in General

In a previous post drawing the distinction between procedural and substantive justice, I noted my objection to the idea that procedural fairness ought to be subverted in order to guarantee predetermined outcomes.  However—and although I predicted that most Americans would probably agree with me—I did not touch on the difficulty in refuting the intrinsic appeal in guaranteeing a baseline standard of living.  Though there may be a presumption in favor of ignoring outcomes so long as everyone gets a fair shake through the established political and economic mechanisms, it is only a rebuttable presumption.  As I explain below, the conflict between procedural and substantive justice is inevitable in advanced economies such as ours, as it flows from the conflict between man’s conflicting theoretical and practical natures.

Wealth in a high finance, first world context is, to a large extent, artificial, resulting in difficulty in reconciling the real with the conceptual.  In simpler economies, by comparison, one can readily conceptualize the practical value of, say, a bushel of corn based on how many apples or hammers or buttons it can be traded for.  Even in slightly more complex currency-based economies, one can still conceptualize the value of a bushel of corn to the extent that money can be used to buy other useful items.

In advanced economies, however, most individuals don’t spend their productive energies in actually producing anything in a visceral or corporeal sense. Instead, the economically productive life of a typical, middle-class American is intensely specialized and often only abstrusely related to the useful good or service ultimately produced.  Because our economic activity bears little obvious relation to the ultimate actual goods and services, it is impossible, for practical purposes, to discern the relationship between our economic activity and our consumption of goods and services obtained from others.  Most people can fathom the conversion between bushels of corn and dozens of eggs, but not the conversion between bushels of corn and a Toyota.  One can hardly even begin to understand the correlation between sitting in front of a computer 40 hours a week and the objects of middle-class consumption:  a mortgage, car and student loan payments, health insurance, a vacation once or twice a year, a pension, etc.  The exchange rate between the two is purely theoretical.  And, unless you implicitly accept that market economics fairly determines these exchange rates, you’re bound to conclude, as many liberals do, that standards of living must be set from the top-down.

Conceptualizing economics in terms of property rights becomes difficult, then, for two reasons.  First, as described above, in advanced economies, the connection between labor and property is tenuous and, as a result, it becomes difficult to say with confidence that one “deserves” the things one owns.  This is a point Mark Thompson touched on when he suggested how difficult it was “to distinguish between the ‘deserving’ and the ‘undeserving’ (really, the ‘productive’ and the ‘unproductive’)” in America.  For conservatives, it’s not that hard, since we’re already committed to notions of property rights and procedural justice.  My point here is, strong allegiances to property rights and procedural justice can be a hard sell.

Liberals, on the other hand, are typically only loosely committed to market economics.  And that commitment tends to be merely political or instrumental rather than ideological, conceived in the recognition that mainstream America is precommitted to market economics, and thus there is little point in railing against it.  Instead, liberals tend to wait for symptoms of large economies, like income disparity or recessions, to present opportunities to put certain economic decisions under the control of the government (from which, incidentally, they never return).

But even if you do implicitly accept the values set by the market, these values are still, ultimately, theoretical.  Regardless of the legitimacy of the market and its ability to accurately determine value, it never yields values and exchange rates that approach the same kind of psychological legitimacy experienced in a barter system in which actually useful goods or services are traded for other actually useful goods or services.  Because we cannot hold in our brains all at once the long chain of exchanges establishing why a certain number of hours spent in front of a computer at our jobs equals an iPad or a car payment or a year’s tuition, we base these exchanges on something other than an understanding of actual value.

The problem is that humans are fundamentally pragmatic, not theoretical.  That a market economy may be theoretically sound is well and good, but theory is no touchstone for our day-to-day economic choices.  Yet, if theoretical value does not serve as a touchstone, and if actual value in a complex economy is likewise out of reach, what is left but that our economic choices have become matters of convention?

This, I think, accounts for many of our disagreements about political and economic theory:  Humans at once demand theoretical consistency and practical understanding about the various relationships in the world.  The political and economic theories upon which we have created exponential wealth and comfort for ourselves have also, inevitably, undermined our ability to understand the actual nature of the relationships among economic exchanges.  Conservatives and liberals are both guilty of ignoring this paradox.  Conservatives advocate fidelity to the theoretical foundations of our political and economic institutions, while ignoring the often unpredictable and counter-intuitive outcomes that arguably result in substantive injustices.  Liberals, on the other hand, seek to circumvent the theoretical altogether and to establish, by fiat, the substantive nature of economic relationships, while ignoring the fact this implicitly results in procedural injustices.

[Cross-posted at the League’s main page. Kindly direct any comments there.]

The choice between big government programs and limited government is sometimes a false one

When Jonathan Chait mentioned that Paul Ryan “will not touch Social Security,” it reminded me of a mean trick that often happens in political rhetoric:  namely, when the left criticizes the right as being inconsistent for denouncing big government while at the same time supporting certain big government programs, like Social Security or Medicare.  These particular programs are a paradox for conservatives:  they are big government programs, to be sure, but they’re also well-entrenched institutions in which Americans, by this  time, have substantial investment-backed expectations.  Government tends to be a one-way ratchet, getting only bigger, never smaller.  Even at its most austere, and even as to its most frivolous and trivial programs, government finds a way to resist shrinking.  It’s unfair to insist that conservatives be willing to forfeit what they’ve paid into certain big government programs just to maintain principled opposition to liberal big government programs more generally.

Arizona’s Law Prohibiting Race/Gender-Motivated Abortions

Last week, Arizona enacted a new law prohibiting abortions carried out on the basis of race or gender.  The new law makes it unlawful for physicians to perform or induce such abortions, and requires physicians to obtain an affidavit from the patient that the abortion is not being obtained “because of the child’s sex or race.”  The law does not penalize the women obtaining such abortions.  The law also provides that a woman’s husband, or parents if she is a minor, may file a suit for civil damages and attorneys’ fees for violations of the law.

Specifically, the text of HB-2443 provides, in relevant part:

13-3603.02.  Abortion: sex and race selection: injunctive and civil relief; failure to report; classification; definition
A. A person who knowingly does any of the following is guilty of a class 3 felony:
1. Performs an abortion knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child.
2. Uses force of the threat of force to intentionally injure or intimidate any person for the purpose of coercing a sex-selection or race-selection abortion.
3. Solicits or accepts monies to finance a sex-selection or race-selection abortion.

. . . .

36-2156.  Affidavit
A person shall not knowingly perform or induce an abortion before that person completes and signs an affidavit that:
1. States that the child to be aborted is not being aborted because of the child’s sex or race.
2. Is signed by the woman on whom the abortion is to be performed or induced.
3. Is signed by the person performing or inducing the abortion.

Although Reuters reports the new law makes Arizona “the first state in the nation to outlaw abortions performed on the basis of the race or gender of the fetus,” Constitutional Law Profs Blog indicates this isn’t true as to sex-selective abortions:

Arizona is not the first state with a statute prohibiting so called sex-selective abortion. Oklahoma, Pennsylvania, and Illinois all have such statutes passed in 2010.  For example, the Oklahoma statute provides:

No person shall knowingly or recklessly perform or attempt to perform an abortion with knowledge that the pregnant female is seeking the abortion solely on account of the sex of the unborn child. Nothing in this section shall be construed to proscribe the performance of an abortion because the unborn child has a genetic disorder that is sex-linked.

Okla. Stat. tit. 63, § 1-731.2.B (2010).

Arizona’s bill is based on the finding of the Arizona Legislature as follows:

Evidence shows that minorities are targeted for abortion and that sex-selection abortion is also occurring in our country. There is no place for such discrimination and inequality in human society. Sex-selection and race-selection abortions are elective procedures that do not in any way implicate a woman’s health. The purpose of this legislation is to protect unborn children from prenatal discrimination in the form of being subjected to abortion based on the child’s sex or race by prohibiting sex-selection or race-selection abortions.

There does seem to be some evidence to support this.  Joe Carter shares the stats about the escalating gender ratio at birth in various Chinese provinces.  Where a natural ratio typically sits between 103 and 106 boys to every 100 girls at birth, several of China’s provinces are seeing rates upwards of 130 and even 140 boys per 100 girls.  And while far less pronounced, the ratio has also climbed in the U.S. between 1975 and 2002, most drastically among Japanese Americans:

Sex Ratio at Birth, Asian Americans

The race-selective component of Arizona’s new law has generated considerably more controversy, though there seems to be little if any data of any trends in abortions rates based on the race of the unborn child.  This has led some to argue that “[t]he politicians in Arizona should just be honest and admit this is about limiting abortion rights, instead of inventing a problem to trick people into backing their cause.”

With that basic setup, here are my initial opinions about Arizona’s prohibition on gender- and race-based abortions:

First, the law probably would have been better off if it prohibited only gender-based abortions, as it appears there is at least a modicum of evidence to support taking action on that point.  This does not seem to be the case as to race-based abortions.  In fact, the race-based selection issue will likely (and probably by design) foment more hostile rhetoric over the abortion-as-genocide issue.  Without engaging the merits of that particular debate, rhetorically speaking, I don’t think it helps the pro-life cause.

Second, at least as to the gender-based selection component, I think this is a good law politically speaking.  In the long view, abortion in the U.S. is a political question.  The Supreme Court’s decisions in Roe and its progeny are rightly criticized as politically motivated, grounded in extra-constitutional doctrine, and thus representing the nadir of judicial legitimacy. Notwithstanding the constitutional and moral questions underlying abortion, as a practical matter the 28 years since Roe have proven that a judicially-imposed one-size-fits-all national abortion policy just does not make sense.  Unlike watershed Supreme Court cases concerning the Commerce Clause or the Non-Delegation Doctrine, for example, Roe could be overturned without severely impacting national economic and regulatory policy.  This is why Roe is always one of the most closely scrutinized topics for Supreme Court nominees:  it is well understood that the court-created right to abortion hangs not by the force of the judicial and constitutional reasoning supporting it, but by the political makeup of the Court.  Thus, state laws that push back against that unwise judicial regime are helpful in moving forward toward establishing a more legitimate, a more robust legal and policy framework on abortion.

Finally, and again as to the gender-based selection component only, I also think it is a good law substantively speaking.  Consider that perhaps the best argument against the law is that it “polices women’s thoughts”—i.e., it purports to tell women what sorts of reasons for having an abortion are impermissible.  But this begs the question.  Of course it is telling women what sorts of reasons for having an abortion are impermissible.  This is what the abortion debate is all about:  pro-life advocates think there are limited permissible reasons; pro-choice advocates think there are limited impermissible reasons, or perhaps, no impermissible reasons at all.  To object to the Arizona law because it limits the permissible reasons for abortion simply announces which side of the argument you’re on—it does nothing to advance the argument itself.  For pro-life advocates, then, Arizona’s law represents a fine political victory for the view that abortions should be more limited than they are currently.

Words to Retire: “Antediluvian”

The odds are pretty good that if you know what the word “antediluvian” means, you had to look it up.  And if you don’t know what it means, you would not likely be aided by the hint that it means the opposite of “postdiluvian.”  (Good grief, that’s an actual word.)  “Antediluvian” is just too obscure—not to mention clunky—to pass off on a mainstream audience without distracting a large fraction of it from your meaning.  If you want to convey that something is old, there are plenty of familiar synonyms.  (On the other hand, if you’re actually talking about things older than the the Biblical flood, then by all means, indulge.)

Thus, it escapes me why lots of otherwise fine writers improvidently use “antediluvian” as if it conveyed clear meaning or produced pleasant sounding sentences.  Here are a few examples of particularly bad usage I pulled from my Google Reader feed:

  • Robert Teitelman:  “And to establish some historical context for the ’70s, you’re forced back to the antediluvian ’30s.”  By definition, this makes no sense.  Sending your readers to the dictionary to get your meaning, where they will inevitably find you have not even bothered to use your words correctly, will hardly endear any of them to you.
  • Leonard Gilroy:  “Given the power of the bureaucracy and the tenacity of industry opponents of ABC reform, it may end up taking the combined strength of two popular governors to begin shutting down a few of the 18 remaining, antediluvian state-run liquor monopolies that seem more appropriate for Venezuela than they do 21st Century America.”  Since this piece is actually about tax policy and history, one would expect an actual approximation of the monopolies’ inception rather than hyperbole.
  • Jacob Sullum:  “‘In a radio address around the same time, President Barack Obama dreaded “a flood of attack ads run by shadowy groups with harmless-sounding names,” unleashed by a ruling that “allows big corporations to spend unlimited amounts of money to influence our elections.’ [¶] In September a front-page New York Times story seemed to confirm these antediluvian prophecies.”  Ha!  “Flood” of attack ads.  Get it?

Post the First

I swore I would get rid of this blog title when I had the chance, and moving to this new space seemed like it would have provided just that. When pressed, though, I couldn’t think of a new one that gave any comfort it wouldn’t eventually bring the same dissatisfaction. It’s the same reason I was in a band with a stupid name for such a long time. Conservative by nature, I’ll take the dissatisfaction I know over the dissatisfaction I don’t. I like the way Will Wilkinson said it: “that’s what I typed into Blogger one day, and if we can’t be faithful to things we typed into Blogger one day, what’s the point?”

That’s actually something I try to live by. I tend to agonize over what I write, fully anticipating what I say to be used against me—perhaps in the present debate, but just as important, perhaps in an entirely different debate. I wouldn’t be much of an originalist if I didn’t think that words and ideas mattered, if I didn’t think that we shouldn’t be bound by the intellectual consequences of the arguments we advance. If we can’t be faithful to our own ideas, then really, what’s the point?

By way of a more straightforward introduction, I’m an attorney in a mid-sized firm in Orange County, California that handles primarily business litigation. You’ll be happy to know, however, that my blogging seldom resembles anything to do with my work. You may or may not be happy to know that I tend instead to write on political theory (as opposed to politics), rhetoric (as opposed to punditry), constitutional law (as opposed to decisional law), and other topics when I think I can do better than just adding noise or a “me too.” I’ll also write about language foibles when they occur to me, or atheism. (For some reason, I’ve been spending a lot of time hacking away at atheism lately.)

I will end by confessing that I am conservative in just about all the ways that matter. I say that not because you might fail to recognize my conservative biases.  Certainly, you won’t.  I say that so you know that I recognize my conservative biases. Politics can get pretty boring with all the blue and red jerseys. It’s far more rewarding to explore the underlying precommitments that lead us to choose one side or the other. I’ll always try to be honest about mine here.