Left hand, meet right hand

Volokh Conspirator Jonathan Adler makes fun of me for attributing to some libertarians a position – that taxation to pay for protecting the Earth from an incoming asteroid would be unjustified – which Volokh Conspirator Sasha Volokh actually maintains.

Volokh Conspirator Jonathan Adler makes fun of me for imagining that libertarian principles might not allow the government to spend tax money to protect the planet from an incoming asteroid. Apparently we need an affirmative action program to hire conservative academics in order to cure my gross ignorance of right-wing thought.

Volokh Conspirator Sasha Volokh admits that his principles would not allow the government to spend tax money to protect the planet from an incoming asteroid. After all, taxation is a violation of rights, and can only be justified if it avoids still graver rights violations. And the asteroid, not being sentient or directed by a sentient being, can do damage but can’t violate rights. Ergo, it would be illegitimate to use the coercive power of the state to raise money for asteroid defense.

I’m glad that Adler agrees with me – and disagrees with many Tea Party lunatics, including some recently elected to the Senate and the House – that there’s no actual Constitutional question about funding the Department of Education or National Public Radio. That, of course, was my point.

I’m also glad that Sasha is standing by his guns, thus demonstrating that my argument was not directed at a mere straw man, though his objection to spending is philosophical rather than Constitutional.

Sasha worries that his honest and forthright response might confirm me in my belief that “libertarians are loopy.” That’s certainly a reasonable concern. But I would have thought that a bigger concern would be that the conclusion is, in fact, obviously loopy, and – like any good reductio ad absurdum argument, ought to lead to a re-examination of the premises that would lead to such a loopy conclusion.

Ilya Somin is right to point out that any theory that puts an absolute constraint on action runs into problems when inaction has catastrophic consequences. But if he really can’t see the difference between torture and income taxation – can’t understand why absolute opposition to torture is not analogous to absolute opposition to public spending on public goods – then “loopy” is entirely too weak a word.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

23 thoughts on “Left hand, meet right hand”

  1. If libertarianism does not allow government action again non-sentient threats, I can’t see it as being an appealing philosophy to very many people. How could a libertarian society deal with an epidemic? I also don’t see why the threat being directed by intelligence is relevant to whether government should have a role.

    Suppose the asteroid had actually been directed toward the earth by Martians? Can the government act then? What if if MIGHT have been directed toward the earth by Martians? Why does the origin of the threat matter in determining the appropriate response?

  2. As long as the individual has the choice to opt out of being protected from the asteroid impact, there is no problem with the libertarian approach. Ron Paul believes that this is the libertarian thing to do.

  3. Mark —

    Your original post was quite clearly aimed at what would be allowed under the Constitution, not under libertarian principles generally, so you’re shifting the goalposts. Your express “challenge” was as follows: “If you think that the doctrine of limited powers forbids much of what the federal government currently does, please explain why that same argument wouldn’t forbid spending money to shoot down an asteroid.” And many have done just that, explaining how it is possible to believe that much of what the federal government does is unconstitutional under the Constitution’s original public meaning, but that asteroid defense would pass the test. Indeed, even Sasha agrees with this point. So your actual argument — that embracing a constitutional theory under which much of what the federal government does is unconstitutional must be loopy because it would asteroid defense unconstitutional as well — was directed at a straw man because what you actually wrote was focused on the constitutional question, and not the philosophical one. (And, just in case it isn’t clear, many of us on the right believe they are quite different questions.)

    And, for the record, I do not support any sort of “affirmative action” for conservative and libertarian academics, and never have.

    JHA

  4. Jonathan, my original post covered both the Constitutional and the human-rights objections to Federal taxes to pay for public goods. My argument is that NPR and destroying the asteroid have the same logical and legal status. So far, I haven’t seen a counter-argument.

  5. I think Jacob Levy has more-or-less the right response (from a libertarian direction) here.

    But what I really want to say is how great it would be to see a movie about this: Deep Impact / Armaggeddon from the perspective of a group of denialists-and/or-libertarian/anarchist-refuseniks. You’d see them litigating & protesting the launch of the save-the-world mission, and then trying to deal with the aftermath a la ‘When Prophecy Fails’.

  6. Mark —

    You’re still moving the goalposts and rewriting what you said.

    The focus of your original post was clearly the constitutional issue. The policy question was, in your words, a “footnote” to the constitutional question, but you confined that to economics, and made no mention of “human rights” or other potential ideological objections.

    On that, even accepting that the Constitution authorizes the federal government to pay for legitimate public goods, the federal government does far, far more than that. Federal laws criminalizing or regulating private behavior must have some other constitutional justification. Accepting that the power to spend money for the “general welfare” allows the federal government to subsidize public goods that benefit the nation as a whole does not provide much of any support for the other things that the federal government does that libertarians or originalists object to on constitutional grounds. It does not even provide support for the law that prompted your original post.

    As for NPR (which, like “human rights,” was also not mentioned in your original post), accepting its constitutionality would not provide much of any support for, say, federal laws criminalizing the harassment of airline pilots, filling wetlands, or marijuana possession. The spending power is only one source of federal power, and a limited one at that. Further, there are constitutional issues that are wholly independent of the justifications for asteroid defense and other public goods. Richard Epstein, for example, argued that NPR funding is problematic under the doctrine of unconstitutional conditions in Bargaining with the State because there is a tension between the government’s authority to dictate how taxpayer funds are spent and the speech rights of funding recipients.

    Setting that constitutional argument aside, there are plenty of logical policy arguments that not all public goods should be supported by the federal government, and that funding some is more important than funding others. For one, it’s reasonable to argue that protecting lives is justified whereas trying to overcome the suboptimal provision of educational program is not. No one’s going to die if “Car Talk” and “Fresh Air” have to accept (more) commercials. For another, it is often an empirical question whether the government is better able to provide public goods than the admittedly imperfect private sector. As a parent, it’s not at all clear that PBS’ “Sprout” is any better than Nick Jr., and many federally sponsored public goods are a mess. Markets fail to produce the optimal amount of public goods, but so do governments, and the consequences of underprovision may be far more consequential when life (or, perhaps, civilization) are at stake due to the potential for catastrophic outcomes. Again, an asteroid may threaten civilization; less “Talk of the Nation” will not.

    JHA

  7. “But if he really can’t see the difference between torture and income taxation”

    Of course there’s a difference. Our government is taxing the income of, what? a million times as many people as it’s torturing? That leaves an absolutely astronomical amount of room for every individual instance of torture to be worse than every individual instance of taxation, and taxation to still be worse in the aggregate. At least, according to utilitarian reasoning…

  8. Brett’s 3:24 requires clarification. It might work as a criticism of “utilitarian reasoning” (or at least Brett’s conception of it, I’m not familiar with the strict definitions here), but I can’t tell whether Brett means it this way, or instead means it as a criticism of income taxation.

  9. Well, it’s both. I think utilitarianism, with it’s notion that you can subtract one person getting a kick in the shin from another person eating a piece of pie,and get a third person’s paper cut as a sum, is whacked. It just doesn’t respect people as individuals, sure, and the Kantian in me finds that objectionable, but that’s only the start of the problems. I suppose you could treat the math as some kind of metaphor, but the serious discussions of it don’t seem to do that.

    OTOH, just because one wrong is worse, individually, than another, doesn’t mean you blow off the lesser wrong that’s a million times more common, now, does it? But that seems to be the thrust of Mark’s complaint.

  10. The handwringing over whether or not M.K. has shifted the goalposts is, I think, obscuring the important takeaway from this discussion – Sasha Volokh’s worldview is crazy. As a moral matter, taxation is a greater evil than extinction – that’s the essential argument, unless I’m missing something. Under that rubric, basically the entire development of human civilization equates to a moral monstrosity. I suppose one could construct an argument that reaches that conclusion, but it’s pretty bizarre to reach that conclusion simply as an extension of first principles.

  11. “Volokh Conspirator Jonathan Adler makes fun of me for imagining that libertarian principles might not allow the government to spend tax money to protect the planet from an incoming asteroid… Volokh Conspirator Sasha Volokh admits that his principles would not allow the government to spend tax money to protect the planet from an incoming asteroid.”
    You should back away, with all due caution.
    But please lock them to in together as you leave the room.

  12. I think the real problem is that Jonathan H. Adler is confusing libertarianism with an originalist or textualist reading of the Constitution. It’s pretty clear from reading the text of the Constitution that no one had anything to do with writing it would have viewed taxation as a violation of writes. There’s certainly no express words to that effect, while there are plenty of words that mention what taxing powers the federal government has. Hell, the ratification process alone shows that making sure people who don’t give their consent to laws can opt out of them was hardly a concern and doubtfully even imagined by the Founders.

  13. LincolnKennedy —

    I think you need to re-read my post. I never said taxation constituted a violation of rights, and neither Sasha Volokh nor Ilya Somin claimed as much for purposes of constitutional interpretation. Indeed, that was part of my original point — that there is no problem reconciling taxing for asteroid defense with plausible originalist, conservative or libertarian interpretations of the constitution.

    All that said, we shouldn’t think the founders were fans of taxes. They were a necessary evil. As Chief Justice Marshall said in McCulloch v. Maryland, the power to tax is the “power to destroy.”

    JHA

  14. The issue JHA raises is whether there are “constitutional” versus “policy” considerations that draw a principled line between catastrophe prevention and other public goods that he wants to say are illegitimate. But any resolution to the “constitutional” concerns he raises ineliminably turn on considerations of policy. For example, there is the putative “tension between the government’s authority to dictate how taxpayer funds are spent and the speech rights of funding recipients.” Suppose that tension is real. One thing that won’t resolve it is looking to what the Constitution says – the reason being that the tension is *caused* by what the Constitution says. Such tensions, then, can only be resolved through normative, political judgments about how to weight the competing constitutional values.

  15. @ Adler

    As Chief Justice Marshall said in McCulloch v. Maryland, the power to tax is the “power to destroy.”

    That means taxes are powerful and should be used carefully, not that they’re morally bankrupt. Lots of things have the “power to destroy”. Heck, the military is little if not the power to destroy. Automobiles have “the power to destroy”; so do candles. The quote is evocative but ultimately means far less than it appears to, and especially means less than is implied when it is referenced by anti-tax zealots.

  16. Jonathan Adler is a pretty good lawyer. He almost has me believing that Mark Kleiman was arguing with himself, and lost . . . twice. (Luckily for my sanity, I could read the original post and arrive at an originalist interpretation of my own.)

    Kleiman was using reference to a parody to make the point that Republicans and conservative libertarians make a lot of facially ridiculous claims of Constitutional principle, when, really, they simply do not like Policy X or Policy Y, but do not want to explain why.

  17. The libertarian (and broader) problem is the absurd premise that taxation violates property rights. Every conclusion based on this premise is not worth the bits it is encoded in.

    Property rights are created by the state. That is an objective fact, not a philosophical conjecture. Anyone denying this fact is delusional.

  18. Okay, first off, if its not constitutional, AMEND IT! The document was written in 1789! Things change! Strict constitutionalists believe that if you want the law to change, do it legally: AMEND IT. Don’t pretend it changes automatically, because, in actuality, that’s saying we should put unlimited policymaking power in the court system. If you want the federal government to be able to use our tax dollars to take down asteroids, but the current law doesn’t allow for that, CHANGE THE LAW; AMEND THE CONSTITITION.

    Second, even where a libertarian, on moral grounds, claims the government cannot take our money to fight an asteroid, bare in mind libertarians believe private action is more effective at solving problems than government action. You might disagree with the proposition that private action would better solve the threat of an asteroid (I think government is appropriate for it, and I consider myself libertarian), but that’s where libertarians here are coming from.

    Libertarians aren’t suicidal. Just like you believe your system is best, we believe our system is best. We don’t concede to you that our system is terrible, and therefore believe that our system would lead to death and destruction. We believe our system would be better than mankind. Hence, when we propose an alternative solution to current problems, we’re not purposely trying to destroy the world. We actually, honestly believe that our ideas will work. You don’t think so, we do. You think you’re right, we think we’re right. We don’t think you’re right. Hence, we think our ideas will better mankind. You might think our ideas will backfire, but we don’t.

  19. Gnash Equilibrium: “The libertarian (and broader) problem is the absurd premise that taxation violates property rights. Every conclusion based on this premise is not worth the bits it is encoded in. Property rights are created by the state. That is an objective fact, not a philosophical conjecture. Anyone denying this fact is delusional.”

    I agree with you that property rights are created by the state. In fact, at their cores, I think statism and property are the same thing. However, its not so obvious and objective of a conclusion as to make anyone who disagrees “delusional.”

  20. “We actually, honestly believe that our ideas will work. You don’t think so, we do.”

    No, I actually, honestly believe the “marketplace of ideas” is an open one, and libertarian ideas have failed in that marketplace every time. Rather than following libertarian principles and acknowledging that libertarian ideas have failed in the marketplace, libertarians keep wanting to use massive state intervention to overturn market-derived results (such as the choice many have made to live as participants in democratic governments and pay taxes).

    The argument that libertarians actually, honestly believe their ideas will work would be much more persuasive if a) most libertarians behaved as if their ideas will work, and didn’t constantly ask for government intervention to force them to work, and b) libertarians stopped proclaiming they believe in the free market… but change their colors completely when the market disagrees with them.

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