The Courts and the Second Amendment

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In 2008, the Supreme Court started a new era of second amendment jurisprudence.

This is no exaggeration. When the Heller opinion was published (District of Columbia v. Heller, 554 U.S. 570 [2008]), I was surprised to learn that the Court had never decided whether the Second Amendment gave individuals (as opposed to collectives, such as militias) any right to keep or carry firearms. That had been an open question. So, Heller was a big deal, and the justices knew it. The case opened a can of worms — hundreds of plaintiffs would try to wriggle out of states’ prohibitions on the possession and carrying of guns. However, the case said very little about the extent of the right or how it could be limited by law.

In restricting private ownership, possession, and use of guns, the D.C. laws went almost as far as imaginable without imposing a complete ban.

How could a legal opinion say so much and so little at the same time? It was the factual context of the decision that made this possible. When I was in law school I heard the maxim “hard cases make bad law,” meaning that cases of extraordinarily sympathetic circumstances (think widows and orphans) might motivate a lawmaker or judge to create a rule that had bad unintended consequences when applied generally. I think that the majority in Heller saw the case as sort of the opposite: an easy case to make good law. The plaintiff was challenging the laws of the District of Columbia. In restricting private ownership, possession, and use of guns, the D.C. laws went almost as far as imaginable without imposing a complete ban. Private ownership of handguns was banned. Rifles and shotguns might be kept at home but locked or disassembled, in other words, not useful in an emergency.

Finding an individual right in the Second Amendment was a big step. But if you wanted to make that big step as small as possible, the facts behind Heller were just about perfect.

What Heller said was that the Second Amendment gave the plaintiff some kind of individual, civil right, and that right was enough to invalidate D.C.’s heavy restrictions. It was a very limited application of an individual right. Even so, the opinion, a 5–4 split of the Court, drew sharp criticism from the dissenting minority and also from some very good scholars, including Richard Posner, generally thought to be a conservative from the “law & economics” school of jurisprudence. Critics accused the conservative majority of being unprincipled by practicing judicial activism instead of the restraint they often championed.

How far do the rights established in Heller go? What other restrictions on guns might be unconstitutional? Nobody knows. The individual right may be very modestly interpreted. Maybe every other gun law in the country is still constitutionally permitted.

Heller must mean a little bit more than sitting in your bedroom with a shotgun. Eventually, starkly contrasting circuit court cases will force the Supreme Court to say more.

The lower courts and the circuit courts of appeal have had to deal with Heller many, many times. The appeal of California’s Peruta case (Peruta v. County of San Diego, 824 F.3d 919 [9th Cir. 2016] [en banc]) gave the Supreme Court an interesting opportunity to apply Heller. In Peruta, the Ninth Circuit said that the Constitution does not give individuals any right to carry concealed firearms. In California, concealed carry requires a license, granted only for “good cause.” Licenses are rarely and, the plaintiffs would say, arbitrarily granted. Also, open carry is generally banned, by California Assembly Bill No. 144. The Ninth Circuit explicitly declined to say whether banning open carry was constitutional. Therefore, Peruta presents a nice little web of questions. Can all public carry be banned? Maybe. Heller was about keeping guns at home. But its principles seem to go much farther, once this is determined to be an individual right: “the right of the people to keep and bear Arms, shall not be infringed.” Can concealed carry be banned when open carry is permitted? Can open carry be banned when concealed carry is permitted? Can open carry be banned while concealed carry is extremely limited (the current law in California)?

We know that the Supreme Court does not want to answer any of these questions right now, because on June 26 it declined to hear the appeal. That means fewer than four justices voted to take the case. It does not mean they agree with the Ninth Circuit or that they disagree.

I guess that, if forced to decide, the Court would find something wrong with California’s restrictions. Heller must mean a little bit more than sitting in your bedroom with a shotgun. Eventually, starkly contrasting circuit court cases will force the Supreme Court to say more. For now, outside of a few states like California, the political battle for gun rights is way ahead of the courts. All but about 15 states have either “shall issue” licensing or no license requirement at all for the concealed carry of handguns.




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Alice in Merkeland

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The Europeans, brainy people that they are, have always had a problem understanding the concept of liberty.

It’s one of the simplest concepts in the world. It means being left alone to do what you want. For Europeans, however — and, I regret to add, for many millions of Americans as well — it has always been the concept of doing what the state considers to be good. It didn’t take long for the French Revolution to define liberty as the freedom to destroy Catholicism. It didn’t take long for the German revolution of 1848 to define liberty as freedom for German nationalism. It didn’t take any time at all for the Weimar Republic to define liberty as the government’s taking money from the people and wasting it on social uplift projects.

Now comes Angela Merkel. First she decides, without consulting anyone, to force the German people — and if she had her way, all other Europeans — to liberate the Syrians by taking them in and supporting them all on welfare. Then, mirabile dictu, she discovers that way too many Syrians want to take that deal, and way too many Germans don’t. So to save her face, she decides to bundle up the Germans’ money — again, without anyone’s permission — and give it to Turkey, so that Turkey can keep the would-be immigrants from getting into Germany. Thus her open door policy becomes an invitation for the Syrians to come on in — to Turkey. And stay there, courtesy the Turkish government.

But again she discovers that actions may have consequences. The Turkish president, Recep T. Erdogan, an equally domineering personality, decides that he wants more out of the deal. He wants Merkel to shut up his critics — in Germany.

For Europeans, however — and for many millions of Americans as well — "liberty" has always been the concept of doing what the state considers to be good.

German TV aired a song satirizing Erdogan. Erdogan’s government demanded that the video be removed from access on the internet. A German comedian, or perhaps would-be comedian, then went on TV and recited a poem ridiculing Erdogan. Erdogan therefore demanded that the comedian be prosecuted under a law saying that you can be sent to jail for five years for insulting a foreign leader. There are plenty of laws in Europe decreeing that you can’t say or publish certain things; this is what Berlin, Vienna, Brussels, whatever, call liberty. Go figure. But while you’re figuring, Merkel has already authorized the prosecution.

You see, this screwy law not only threatens you with imprisonment if you say something that some foreign politician doesn’t like, but it leaves the power to decide on prosecution with your own politicians. So, if we had such a law, Obama would be authorizing pleas for someone to be prosecuted for satirizing Castro, and Cruz, or whoever the Republican president might be, would be authorizing pleas for prosecuting someone who satirized Netanyahu. Not only is it an authoritarian law, but it’s a politically arbitrary one.

The result, right now, is that the Erdoganish Turks are saying, as many Europeans always say under such circumstances, that “this has nothing to do with free speech”; Merkel’s supporters are saying that by authorizing the prosecution she is “standing up for the rule of law”; and she herself is saying that her action does not represent “a decision about the limits of freedom of art, the press, and opinion.” She further opines that “in a constitutional democracy, weighing up personal rights against freedom of the press and freedom of expression is not a matter for governments, but for public prosecutors and courts.”

It’s the old story. You have rights, granted. But these rights have to be “weighed” against other rights. You got your “personal rights,” see; but then, on the other hand, you got your “freedom of expression.” Entirely different! And somebody’s got to “weigh” them. So . . . let’s see here. I know! Let’s have the “public prosecutors and courts” do it. After all, they’re not the “government,” are they?

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

The comedian is in hiding. He’s right: this isn’t funny.




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What’s a Vote-Waster to Do?

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I have a confession to make. I’m one of those dreadful people who “waste” their votes. At least this is what I’ve been doing, according to what generally passes for wisdom. And I plan on doing it again this year. Many Americans would tell me that I should be sorry, but I must make one further confession: I’m not.

To authoritarian statists, there are few worse crimes. If I tied a litter of kittens up in a sack and tossed it into a vat of boiling oil, I might offend them more. OK, no, I wouldn’t. I must be careful, in fact, about making my confession around these people, because they just might stuff me into that sack, themselves.

If I lack the option of voting for the candidate I believe in, I have to wonder how much freedom I actually have.

They not only revere the authority of the state, they revere The Process. Because I’m skeptical about the concept of voting for its own sake, they accuse me of failing to appreciate this sacred American right. There are many rights that I consider more sacred, but that these people not only fail to appreciate but appear determined to throw away with both hands. Nor do I neglect to realize that it is better to be able to vote than to be denied that privilege. But as a libertarian, my understanding of what voting is, and what it should accomplish, differs from theirs to a degree so significant that when I try to explain it to them, they react as if I were speaking Neptunian.

Being presented with an artificially limited range of choices — seldom more than two — and given the “right” to choose one of them does not, to me, seem a very impressive exercise of freedom. It’s only one more option than the North Koreans get. And when I opt for a third choice, and am told that I’m wasting my vote, I must ask why. Because if I lack the option of voting for the candidate I believe in, I have to wonder how much freedom I actually have.

Truly, I believe that to vote for one of only two choices would be to waste my vote. At least this is how it stacks up if — as is almost always the case — I would prefer neither. What the conscience-stricken souls who lecture me not to waste my vote are really telling me is that I must choose their option. That I am blessed to live in a land where I can think exactly as they do. Or, more to the point, that Heaven has smiled upon me by relieving me of the burden of having to think at all.

I can only reply that this is a dotty concept of freedom. No wonder we keep getting the same rehashed nonsense every election year. The only real change taking place is that all the while, our freedoms continue to erode. America is frantically voting, on and on, and congratulating itself on its ability to exercise this sacred right, and all the while it is giving away the store. We perch proudly atop our liberty even as, slowly and stealthily, it is being pulled out from under us.

There is a world of difference between settling for a lesser evil — who is, still, evil — and selecting someone who, though imperfect, is actually pretty good.

As the self-appointed scolds keep reminding us, our vote is our voice. And whether our candidate wins or loses, those votes will be studied, tabulated, and analyzed to no end. To vote for the candidate or cause you or I truly believe in, even if we lose the contest for power, is never a waste — not if in casting that ballot, we say, as precisely as possible, what we really mean.

I would prefer the Libertarian Party candidate over whomever the Republicans or the Democrats nominate. Even if he doesn’t stand for everything I like, or says things that disappoint me, he can’t possibly be as bad as the two media-anointed main contenders. In my opinion, indeed, a libertarian candidate can’t be bad at all. There is a world of difference between settling for a lesser evil — who is, still, evil — and selecting someone who, though imperfect (as any human will be), is actually pretty good.

When anybody corners me with a guilt-trip about my “wasted” third-party vote, I’ve begun to respond with this question: when you vote, what are you trying to accomplish? And further, if your purpose is not to make your convictions the clearest they can possibly be, why do you bother? My interrogator is immediately thrown from the offensive to the defensive. It’s a position this bore is likely unused to being in, but richly deserves.

It is better to vote for a “loser,” but make your true convictions known, than it ever could be to vote for a “winner,” only to have your voice drowned out by the crowd. Far from “making your vote count,” exercising the latter option accomplishes no greater good than shouting into an empty well. If enough of us choose the third-party candidate, The System will definitely pull out all the stops to find out why. Merely going along to get along gets us exactly nowhere.

My fellow libertarians, let us never be ashamed to vote according to our own convictions. And never let us be duped into thinking that we’ve wasted our votes. We can march out of that voting booth with our heads held high. In fact, if we choose not to vote at all, we have every right to be equally proud — and, make no mistake about it, that option also lets our voices be heard.

We’re not the ones who need apologize for wasting our votes. A vote that says what we mean it to say — however cast — is the only kind that ever really matters. “Why are you wasting your vote?” I intend to ask my conformist friends. And if they don’t like being on the receiving end of that question for a change, they can just go jump into a sack full of kittens.




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The Absurdity of Intellectual “Property”

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This is a response to Kyle Scott’s essay, published in Liberty on August 16.

Kyle Scott’s case for copyright is interesting, and he should be commended for making it so clearly and intelligently. For him, as for many other libertarians, what people write is their own property, like any other kind of property, and they have a natural right to keep it. Government is merely the protector, not the source of their right. All this can be deduced from the natural rights theory most importantly exemplified by John Locke’s Second Treatise of Civil Government.

Unfortunately, so concerned is Mr. Scott with his line of deductive reasoning, so clear, so forcible, so all-sufficient, that he never notices what a strange kind of property he’s talking about. Copyright is property that stops and starts whenever the government starts or stops it. A few decades ago, it lasted for 28 years, with renewal for another 28 years, if you mixed your labor with the thing a second time, by filling out a form asking for renewal. Now it continues for 70 years after your death or, in the case of “work for hire” — work performed, for instance, in the employ of the Disney Corporation, which hired you to mix your labor on its account — for a whopping 90 years after the original publication of whatever you wrote or otherwise created.

Copyright is an invention of government, and it has fluctuated at the arbitrary whim of government.

I have no doubt that many other alterations in the lifetime of this weirdly fluctuating property will occur, as congressmen receive yet more campaign funds from yet more wealthy holders of copyright. As things stand today, however, the heirs of a 20-year-old who writes something, anything, today, and survives to the age of 80, can manifest themselves in the year 2144, demanding that you get their permission to republish this something, anything, that was produced so long ago by so callow a youth. And if the heirs are not around, in the sense of being visible, you will have to find them, or show that you tried. Then, miracle of miracles, in the year 2145, the troublesome property will vanish. The copyright will have expired, a mere 70 years after its author’s expiration, and you will be free to publish it a thousand times over, if you want.

Now really, does this look like property? Do farms and houses vanish 70 years after the deaths of their creators, unless some government action resuscitates them?

Historically, copyright is an invention of government, and it has fluctuated at the arbitrary whim of government. Mr. Scott would doubtless argue that this has nothing to do with the basic issue, which is one of individual right, right eventually recognized and protected, however imperfectly, by government. He might carry his reasoning to the obvious, though absurd, extreme of insisting that anything I write and perhaps toss into the street should be guaranteed to me and my heirs forever — that the heirs of Sophocles and King Solomon, no doubt very numerous by now, should be tracked down and reimbursed for every republication of these authors’ works. Oh no, no need for consultation of Athenian or Israelite statutes of inheritance, which knew nothing of copyright. Principle alone will guide us.

But in truth, copyrighted “property” is no property at all. The assumption that it is property is fraught with as many evils as St. Paul attributed to the love of money.

Everyone has a right to own a house, to sell it, or to pass it to his heirs. But the house doesn’t vanish 70 years after his death, or whenever Congress passes another law. Nor, to get closer to the root of the problem, is the house an abstract title to the legal authority to reproduce a house, the ownership of which title can require expert knowledge to identify after a fairly short time. No, there is the house, at 400 S. Main Street, and there are the people inhabiting the house or paying rent on it to a readily identifiable owner. A house is completely different from the reproduction of a house — or, still more abstractly, the right to reproduce it. Your property right in your house is in no way diminished by my building a house that looks exactly like it. Furthermore, you can’t just build a house and move away and abandon it, and expect other people to run and find you and pay you money for the right to live in it — much less the right to build a house in Dubuque or Delphi that’s exactly like that house. No, other people are eventually going to mix their labor with your house — use it, maintain it, claim it for their own. Even in the most rights-conscious communities, if you keep leaving your grandfather’s gold watch on the sidewalk, someone else is going to pick it up, wind it, clean it, and appropriate it, and no jury will convict him for doing so. Nor should it, all cookie-cutter libertarian theory to the contrary.

The vast majority of copyrights are of no value at all, and honoring them constitutes an enormous tax on productive people.

Now, a copyright is not like a house, and it is not like a gold watch. It is nothing so real as those things. In Mr. Scott’s conception, and that of the United States government, it is an absolute right to keep other people from copying something, for the sole reason that you produced it. You could say the same thing about — pardon my taste for low imagery — your garbage, or the stuff you put in your toilet. Copyright, in this conception, is an absolute guarantee that no one can copy your words, even if you abandoned them, even if you sold somebody the paper they were written on and walked away and didn’t bother to leave your address. Even if you gave the paper away. Even if you left it lying in the gutter. Even if it stayed in the gutter, or in the moldering archives of a vanity press, for seventy years after your death.

Now, if I sold you a house by claiming that Frank Lloyd Wright had built it, and he didn’t build it, but I built it myself, you could sue me for fraud — but the Wright estate could not. I had every right to build and sell the house, even if it looked the same as one of Wright’s houses; I just didn’t have the right to claim that he built it and charge you more accordingly. But if I sold you a laundry list, claiming that Wright had written it, and he did write it, and you reproduced it, only without the permission of his estate, the estate should be able to sue you successfully, according to the argument of Mr. Scott and many other libertarians. What’s the difference? It isn’t a difference of natural right, that’s for sure; it’s a difference of political enactments that have become so naturalized in libertarian thought that rationalizations are found for them.

It never occurs to dogmatists of copyright that valuable works could be protected by invoking laws against fraud. More important, it never occurs to them that the vast majority of copyrights are of no value at all, and that honoring them constitutes an enormous tax on productive people. I know scholars who spend much of their lives trying to trace the copyright owners of works that are almost 100 years old, works that are of no value except to the hapless researchers and a handful of readers. They are paying a pointless tax to a ridiculous law, a law that Mr. Scott would presumably make still more ridiculous by extending it to eternity.

It isn’t a difference of natural right; it’s a difference of political enactments that have become so naturalized in libertarian thought that rationalizations are found for them.

If labor has anything to do with the creation of property — which it doesn’t, contrary to Mr. Scott’s faith in Lockean dogmas, according to which I can’t pick up a kitten in the street without asking who mixed his labor with the land that sustained the kitten’s progenitors, all the way back to Noah — there are a great many more researchers and readers who have a more substantial property right to the stuff they research and read than the authors who once excreted it. If you don’t believe that, try mixing your labor with John Locke’s prose.

Mr. Scott is patently an intelligent person, yet his claims for copyright are patently absurd. This is an observation that could be made in respect to many radical libertarian arguments, particularly those whose results turn out to be, rather ironically, highly conservative. By Scott’s logic, high schools shouldn’t just be teaching Shakespeare; they should be supporting an eternal Shakespeare Trust, providing dividends for his millions of heirs, any one of whom could veto republication of his works, as a matter of right.

This prompts the question: under what circumstances are intelligent persons most likely to make absurd statements, without realizing their absurdity? Answer: When they are in love. And so it is: Mr. Scott — again, like too many other libertarians — is in love with an ideology and cannot see the absurdity to which his supposedly radical position leads him: the absurdity of endorsing, on the ground of individual rights, a massive governmental creation and subsidization of crony “property.”




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In Defense of Intellectual Property

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Libertarianism can be different things to different people. Trying to define it, or characterize it, will leave some libertarians at odds with one another. What follows will isolate me from most libertarians. It is a defense of intellectual property rights (IPR) based on the thesis that there is no normative distinction between IPR and real property rights (RPR). I will use Butler Shaffer's short polemic for the Mises Institute, "A Libertarian Critique of Intellectual Property," as my primary foil as it encapsulates many of the arguments against IPR that libertarian thinkers embrace.

Where Shaffer ends I will begin. At the end of his polemic he boils down his rejection of IPR on the ground that a libertarian cannot endorse a right that is created and enforced by the state. The premise that IPR are created by the state is false, while the premise that IPR should be rejected because they are enforced by the state is unpersuasive. This essay will unfold in three parts, with the first demonstrating why Shaffer’s first premise is false, the second section demonstrating why his second premise is unpersuasive, and the third section confronting other objections to IPR.

Section I: Intellectual Property Rights are not created by the state

The only means through which one may defend RP, and not IP, is to say that the manner in which man exerts ownership over RP has nothing to do with his mind. RP and IP are both products of the same process, even though they take different forms. It doesn’t require a great imagination to see this, but because it is an unfamiliar formulation I will elaborate by means of a familiar source: John Locke. A Lockean justification of private property provides a sound defense of IPR by building through a property of conscience.

Unless we assume that man’s arms and legs move without cognition, man’s labor is a product of his mind.

In chapter 5 of his Second Treatise on Government Locke gives his seminal account of property rights. It runs thus: man alone is in possession of himself, and through his drive and ingenuity he extends his dominion beyond himself. Man is in possession of himself because no other individual gave him his will, conscience, or abilities; thus, no one else can exert dominion over him except that to which he consents.

Man takes possession of property when it lies in common and he mixes his labor with it. Simply put, if there is unowned property available, and someone takes it out of its natural state by mixing his labor with it, that property becomes his so long as there is enough left over for others to sustain themselves, for that man has no right to deprive others of providing for themselves. An acorn becomes mine if it is lying on the ground or staying in the tree, and I take it out of its natural state by mixing my labor with it — plucking it from the tree or picking it up from the ground. The mixing of labor makes it mine because that acorn is no longer what it had been. My labor made it something that it had not previously been, by virtue of my efforts. This means that nobody else can stake a claim to it without depriving me of the fruits (or nuts, in this case) of my labor.

The Lockean argument gets a bit more complicated, but in terms of how common property becomes private, this is it. That is why Locke and his intellectual heirs consider private property paramount for the preservation of liberty, for there is no real distinction between man and his property, since property is nothing more than the extension and physical manifestation of a man's liberty.

As it relates to IP, a Lockean position is easy to extract. Unless we assume that man’s arms and legs move without cognition, man’s labor is a product of his mind. Without cognition I would not cut down trees and build a shelter, nor would I engage in any productive activity that would lead to property ownership. Whether it’s writing a book or building a widget, property originates from man’s will and ability to produce.

If the process by which IP is protected is conducted poorly, that is simply the government doing a necessary job poorly and not evidence that the job is unnecessary.

James Madison has a more expansive, and sometimes confusing, articulation of property rights, but he understands them as Locke does. Madison uses property to describe what man possesses within himself (what Locke would call will or labor), and those external objects that become man's possessions through the mixing of himself with them (land, hogs, etc.). This formulation is articulated by Madison in a 1792 essay entitled "Property." Madison writes:

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions. Where there is an excess of liberty, the effect is the same, tho' from an opposite cause. Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

We may conclude that protecting property, broadly understood, is the sole object of government for both Madison and Locke.

Somebody stealing my IP is the same as someone stealing my RP, particularly if IP is what I use to make a living. If the market for my book is 10,000 people, then someone who resells my book, or makes 10,000 copies it and sells them without my permission, has shrunk the market for me, the originator and creator of the book. This is no different from someone breaking into my shop and stealing 10,000 widgets and selling them on the black market when the market for the widget is 10,000 people. In either instance my ability to make a living through my labor has been denied by someone who illegitimately used the product of my labor without my consent. In simple terms: my right to life, liberty, and property has been denied. Nothing gives someone else the right to capitalize on my labor without my consent, for without my labor that product would not be in existence. These considerations give me sole ownership of the property if we follow the Lockean formulation of property rights.

Section II: Rights and the State

It is not a defect of IP that it needs the government to enforce it; it is the fault of libertarians if they cannot accommodate a necessary and just idea, such as IP, without government enforcement. If libertarians reject IP on the ground that it needs government to enforce it, then we have not evaluated IP on its merits but merely through a heuristic defined by ideology rather than logic.

If the process by which IP is protected is conducted poorly, that is simply the government doing a necessary job poorly and not evidence that the job is unnecessary. The focus should be on how to correct what’s wrong, not how to eradicate protections for property. Government is legitimate when it protects life, liberty, and property, and illegitimate when it does not. That does not mean that life, liberty, and property are illegitimate ends when the government does a poor job protecting them. To reject the ends because the means are faulty is a logical error.

Furthermore, libertarians who embrace RP cannot reject IP on enforcement grounds, for RP also requires government enforcement. Perhaps in idealized settings, or at least in smaller, more communal settings than the current nation-state model, RP would not require the government for protection. But we don’t live in those scenarios and must therefore recognize the reality of the situation. We can certainly debate the degree to which the government protects RP well, the means through which it does so, and the externalities associated with government protection of RP, but I don’t think anyone would say that if the police in every city were shuttered up tomorrow, crime would be reduced significantly the following day. In today’s reality, RP requires government protection just as IP does. Thus, unless one is willing to reject RP on these grounds one cannot also reject IP for the same reason.

Section III: Remaining Objections and Rebuttals

Shaffer objects to those who say that IPR promote creativity by protecting the products of one’s creative endeavors. It is true that IPR do not make me more creative, but IPR protection may provide incentives for creative activities rather than other activities that would be more profitable. If I am a musician who is unable to profit from my music because others can steal my ideas, I will have to find another job. This doesn’t prevent me from being creative, but it does reduce my incentive to do so and it impedes my ability to dedicate the necessary time to creative endeavor.

Shaffer uses the Roman aqueducts and the Egyptian pyramids as examples of human achievements in ingenuity and creativity that occurred without IPR. What Shaffer fails to acknowledge is that these were state-sponsored projects that would not have been realized without financing and organization from a large state. Similarly, while Michelangelo did not require IPR to produce his art he did require a wealthy patronage to support him and his products financially. IPR is one reason we no longer have to rely upon a patronage system in the arts and literature.

We must not deny producers security in their life, liberty, and property for fear that the authority we must rely upon to do so may turn against it.

Shaffer endorses the claim by Paul Feyerabend that “science is an essentially anarchistic enterprise” to demonstrate that an open exchange of ideas is beneficial for scientific and artistic achievement. But the passage from Feyerabend goes on to stipulate that “theoretically anarchism is more humanitarian and more likely to encourage progress than its law-and-order alternatives.” Shaffer conveniently ignores the operative term “theoretically” and thus fails to explore the reality of our world and defaults to the theoretical without acknowledging having done so. Shaffer, and all those who endorse stripping producers of their ownership rights, should recognize that producers have bills to pay and those who steal their products deprive them of their ability to provide for themselves through the outcomes of their labor. Moreover, thieves do exist, and having a means to guard against them is necessary albeit unfortunate.

Conclusion

In practical and theoretical terms there is no meaningful distinction between real property and intellectual property. If libertarians accept government protections for real property then they must too accept them for intellectual property if consistency is to be maintained.

I am sympathetic to the concern that when we ask the government to protect us it enfeebles us potentially and opens the door for the government to inch into other areas of our lives. But, the potential does not have to be realized if we do not permit it. It is possible to restrain and confine the government to those means and ends that we think most appropriate. Thus, we must not deny producers security in their life, liberty, and property for fear that the authority we must rely upon to do so may turn against it. We must instead opt for just government rather than reject it outright until such a time comes that we live in a world of entirely honest men and women.

With the permission of the author, a reply to this essay has been invited from Wayland Hunter; it is available here.




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Logic and Liberty

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A key instrument of political persuasion is the logical argument. Advocates of every ideology back their ethical and political beliefs with arguments based on premises that reflect their fundamental views of the nature of reality and the nature of man.

Libertarians promote freedom-oriented values using closely reasoned arguments based on widely accepted social and ethical norms. Yet few people newly exposed to such arguments become libertarians. Why is this the case? Is it moral failure on the part of the listeners, failure such as envy or the desire for the unearned? Is it a refusal to accept rational arguments, putting faith or feelings above reason? Is it peer pressure, favoring the traditional and conventional?

Or is it something else entirely, something we’ve missed?

To understand why communicating the value of libertarian principles is often so difficult, we need to reexamine the nature of logical argumentation and the role it plays in political and ethical debate. Classical or Aristotelian logic is a powerful tool for grasping and organizing concepts and defining their relationships to one another and to reality. But decades of experience have shown that logic, by itself, is not an effective tool for marketing libertarian ideas. Indeed, when used improperly or in an inappropriate setting, it often achieves the opposite of its intended result.

Decades of experience have shown that logic, by itself, is not an effective tool for marketing libertarian ideas.

A widely held belief among libertarians is that, aside from direct perception, the primary way that people acquire knowledge or beliefs is by using their rational faculties, employing either classical logic or mental processes that are reducible to classical logic. This is not true; and even if it were, the use of logic alone would not be an efficient means of promoting a libertarian worldview. Here are several reasons why.

When dealing with concepts, people construct mental models of these concepts. These models are mental images representing typical examples of the concepts under discussion, based on previous encounters with instances of them. For example, when one is presented with the concept “bird,” the image that comes to mind is likely a “generic” bird such as a robin or a sparrow, rather than a less typical bird such as a penguin or an ostrich.

Once an image has become associated with a specific concept in an individual’s mind, that image becomes the standard by which he or she judges any instances of that concept encountered at a later time. When presented with a logical statement — for example, “if A, therefore B” — a person will evaluate not only whether the statement makes logical sense, but also how well “A” and “B” match his or her mental images. If two or more competing arguments are presented, people usually accept the one most strongly in accord with their preexisting images.

This leads to difficulties in the realm of political discourse. Taking an example from the libertarian playbook, consider the following syllogism: “Taxation is theft. Theft is morally wrong. Therefore, taxation is morally wrong.”

As libertarian arguments go, this one is relatively straightforward, easy to explain and understand. However, a listener’s response to this syllogism and its embedded concepts will be heavily influenced by the images that these concepts generate in his or her mind. For a non-libertarian listener, the word “theft” is likely to conjure up the image of a conventional criminal rather than a tax collector.

By itself, logic cannot successfully compete with emotion-laden appeals to voters’ ingrained beliefs and habits of thought.

Since the argument presented by the libertarian conforms to the rules of logic, the listener will evaluate the validity of the argument based upon the degree to which the image of “tax collector” corresponds to the image of “thief” in the listener’s mind. If the listener’s mental images for “thief” and “tax collector” are too far apart, the listener may conclude that the libertarian is attempting to stretch the definition of the word “theft” beyond its appropriate boundaries, and as a consequence may reject the argument entirely.

This is more than a trivial issue regarding the effectiveness of libertarian outreach. Mental images can be much more influential than logical arguments in shaping and maintaining a society’s character, laws, and customs. The history and political culture of the United States at present provide a case in point.

For many Americans in the revolutionary era, the exemplar of a person fully entitled to liberty was a white male, preferably a landowner and farmer. Native Americans, African-Americans, and women were seen as inferior in various respects when compared to this idealized image, and thus not entitled to enjoy the same rights as white males. These images or mental models were widespread in colonial and revolutionary America, reflected in policies such as expulsion of Native Americans, enslavement of African-Americans, limitations on women’s (especially married women’s) property rights, and exclusion of all three groups from meaningful participation in the political process. The pervasiveness of these mental images partially explains how so many white landowners were able, in their own minds, to justify owning slaves while simultaneously fighting a revolution based on “inalienable” human rights.

Political and cultural images are no less powerful today. Most of them (though not all) help to sustain the perceived legitimacy and effectiveness of government intrusion into all aspects of a supposedly “free” society, even in the face of massive evidence to the contrary. Statist politicians take full advantage of these images to bypass rational debate as they advance their agendas. Virtually all political advertising in the mainstream media attempts to influence voters by appealing to their established mental images in order to manipulate their emotions.Experience has shown that such advertising is effective. By itself, logic cannot successfully compete with emotion-laden appeals to voters’ ingrained beliefs and habits of thought; if it could, libertarians would have won the ideological battle long ago.

People assign measurement parameters to qualitative concepts, based on how well particular instances of these concepts match their mental images. The relationship between concepts and measurement is a tricky one. Many concepts, such as height, require some form of measurement when applied to a concrete example. Concepts that are more abstract, such as motivation, can be given descriptive forms of measurement (“highly motivated”, “barely motivated”), allowing specific instances to be compared to one another. Finally, there are concepts, such as “bird,” that apply to a specific set of entities and appear to be purely qualitative and not subject to measurement — either a particular entity is a bird, or it isn’t.

But people apply measurement parameters to qualitative concepts also, in terms of the degree to which a specific example matches a person’s mental image. A penguin may have all the formal characteristics of a bird and yet be too different from a “typical” bird to be considered a full member of the “set” of birds. Faced with this conundrum, people often give only partial or qualified recognition to a penguin’s status as a bird (“a penguin is sort of a bird”).

When qualitative concepts such as “bird” are assigned a measurement component, their inclusion in logical statements becomes problematic. If this type of concept is used in the premise of a syllogism, the measurement component will also carry over into its conclusion, and in some cases will diminish the perceived validity of the entire argument.

Revisiting our previous example of taxation as a form of theft, a non-libertarian is likely to assign the concept “tax collector” only partial membership in the set of conceptual entities denoted by the word “thief.” Depending on the listener’s perspective, the concept “tax collector” will correspond to the concept “thief” anywhere from 100% (if the listener is a hardcore libertarian) to 0% (if the listener is a hardcore socialist who does not recognize any right to private property). Most people will estimate the percentage as somewhere in between, depending upon the degree of legitimacy that each person assigns to the concept of taxation and how reasonable the person considers a tax rate to be. The extent to which a person believes that a tax collector is a thief is the extent to which that person will agree with the libertarian’s position regarding the morality of taxation. Only rarely will such agreement be total.

The higher the level of abstraction, the more widely a population’s mental models of a concept will vary. Higher-level concepts are derived from multiple lower-level concepts. The same holds true for mental images. Each lower-level image varies from person to person, increasing the overall variation in a population’s higher-level mental images. As an analogy, consider a contest among several chefs preparing a meal from the same recipe. The recipe itself is identical for all chefs, but each chef’s interpretation of that recipe will make each final product unique. The more complex the recipe — the more ingredients used and the more steps required in the meal’s preparation — the greater will be the variation in the resulting dishes.

Propagandists for big government find it almost impossible to demonize the phrase “free market.” Both words in this phrase resonate favorably with the public.

Variation among high-level images greatly increases the difficulty faced by libertarians seeking to change people’s minds through the use of logic. Most concepts relating to libertarian principles and values — concepts such as justice, morality, property, and individualism — involve high levels of abstraction. But the more abstract the concepts employed in a libertarian’s argument, the less likely is the listener to share the libertarian’s interpretation of those concepts. To convince people to adopt a libertarian view of high-level abstractions such as justice, one must also convince them to revise their mental models of the lower-level concepts that give rise tothese high-level abstractions. Often this can be achieved only by a complete overhaul of a non-libertarian’s core values. Logical arguments, no matter how elegantly structured, are not sufficient by themselves to accomplish this task.

Because of evolutionary pressures, people are “hardwired” to resist change, an attribute that logic alone cannot overcome. In his recently published book What Makes Your Brain Happy and Why You Should Do the Opposite, David DiSalvo identifies a widespread human trait — one that helps explain why it is so difficult for libertarians to be successful in challenging the political status quo. He writes: “The brain lives on a preferred diet of stability, certainty, and consistency, and perceives unpredictability, uncertainty, and instability as threats to its survival — which is, in effect, our survival.”

This universal human tendency — developed in a much more dangerous world to cope with ambiguous threats, and now part of our evolutionary heritage — raises serious questions about the effectiveness of the methods we use to advance our political philosophy. In employing an “educational” strategy using logical argumentation, we are constantly outmaneuvered by the hardwiring of the human brain that craves “stability, certainty, and consistency.” Our political agenda is not an obvious fit in any of these three categories. However, most libertarians do not recognize this as a serious problem, and ignore or downplay voters’ concerns regarding stability, certainty, and consistency, preferring to focus almost exclusively on the advantages of liberty and less intrusive government.

In doing so we make it difficult to gain adherents, because we are urging people to take a leap into the unknown and untried — at least in their experience. The prospect of instability triggers a perception of heightened risk and uncertainty in listeners’ minds. Most people are risk-averse, especially in matters concerning their own survival, their livelihood, and the wellbeing of their families. In times of crisis such as now, they gravitate toward solutions that promise stability, and shun proposals that are fraught with uncertainty, even if such proposals promise a greater level of individual freedom.

Given these reasons why logic alone cannot convince most people to adopt a libertarian philosophy, it might appear that our most potent weapon in the battle for liberty is inadequate to the task. But each of the limitations described above can be overcome by employing logic carefully and in combination with other means of persuasion. Here are a few suggestions in this regard.

If two words or phrases mean substantially the same thing, choose the one that is most likely to evoke the desired mental image in the listener’s mind. For example, defenders of economic liberty often use the terms “capitalism” and “free market” interchangeably. Strictly speaking, the two concepts are nearly identical in meaning. But to the general public, the word “capitalism” evokes a multitude of unfavorable associations and images that do not arise when the term “free market” is used.

For many people, “capitalism” conjures up images of politically connected financial institutions receiving government favors; multinational corporations “outsourcing” American jobs to cheaper and less regulated labor markets abroad; giant retailers crushing helpless smaller competitors; exploitation of conscientious workers by uncaring employers; and the awarding of multi-billion-dollar bonuses to rich Wall Street executives.

Although most of these undesirable events result from massive government interference in the economy, the public at large perceives them as failures of capitalism. This happens because of the pervasive influence of the media and the public education system, both of which are overwhelmingly friendly to “activist” government and hostile to business.

However, propagandists for big government find it almost impossible to demonize the phrase “free market.” Both words in this phrase resonate favorably with the public, and “free market” is familiar to many people as shorthand for a system of voluntary exchange. While “capitalism” can readily be personified and caricatured (“evil capitalist,” “plutocrat,” “exploiter,” “monopolist”), the term “free market” does not lend itself to such verbal distortion — we never hear statists castigating “evil free marketers.”

If our objective is to gain wider support for our views, insisting on unconditional acceptance of our policy proposals is a losing strategy.

When we promote our ethical and political principles through the use of logic, we are evoking people’s mental images as we attempt to appeal to their rational faculties. Our arguments can be much more persuasive if we strive to use words and phrases that evoke the most favorable images and associations in their minds. In this instance, promoting the “free market” rather than defending “capitalism” is more likely to achieve this goal.

Avoid the use of higher-level concepts when lower-level ones will address the issue at hand. For example, in casual conversation with non-philosophers, it is usually not helpful or appropriate to invoke natural rights theory, Austrian economics, or high-level abstractions such as individualism when discussing issues such as Wall Street bailouts and Obamacare. Most listeners will more readily connect with everyday libertarian talking points about freedom of choice and the unfairness of income redistribution.

Demonstrate that our policy proposals promote “stability, certainty, and consistency.” This means toning down the language of “radical upheaval” in favor of the language of “sensible reform.” As noted earlier, most voters are risk-averse when faced with the prospect of major changes in the social or political landscape. Such voters will be more receptive to arguments promoting a libertarian agenda if these arguments are presented in a manner that is reassuring rather than unsettling.

When proposing policies based on libertarian principles, avoid the temptation to insist that such policies be applied in every case. Although principles are not contextual, policies are. For most policies there are exceptional circumstances, such as “lifeboat” situations, that make it appropriate to modify them temporarily, or waive them. If we treat our political principles as axioms and our policy prescriptions as moral absolutes, our arguments become fragile; any real or perceived exceptions will weaken such arguments in the minds of listeners.

In libertarian circles, an unfortunate but common example of this phenomenon is misuse of the non-initiation-of-force principle (really a policy prescription rather than a principle), which states that no one may initiate force against another person. This policy is appropriate in most adult-to-adult interactions. However, in other contexts exceptions come readily to mind, such as dealings with children or persons afflicted with severe mental problems.

If our objective is to gain wider support for our views, insisting on unconditional acceptance of our policy proposals is a losing strategy. We can more effectively promote our principles, and receive a more respectful hearing from a non-libertarian audience, if we do not overstate our case by insisting that our ideas be put into practice regardless of any circumstances that may arise. Libertarian proposals for public policy are aimed at maintaining or defending values, and can legitimately be overridden when higher or more fundamental values are at stake.

Ultimately, our success in promoting a libertarian worldview depends not only on presenting well-reasoned logical arguments, but also on making sure that we employ language and concepts that are appropriate to the particular issue and the particular audience we are addressing. Putting in this extra effort can go a long way toward making libertarianism accessible and attractive to those we seek to reach.




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Damsel in Distress

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Independence Forever

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I like independently published books. Some of the best books I’ve ever read have been published in that way. No, I haven’t abandoned HarperCollins or Oxford University Press, despite their manifold and great errors of taste, judgment, and simple common sense. But there are lots of books that have fascinated me that could never have appealed to the trendy recent college graduates who function as “editors” in the normal publishing firm — young people who know what they like, and it isn’t very much.

Could Jane Austen get Pride and Prejudice published today? Not by one of them. Not with that weird opening of her book. Imagine, she actually starts out by saying:

It is a truth universally acknowledged that a single man in possession of a good fortune must be in want of a wife.

However little known the feelings or views of such a man may be on his first entering a neighborhood, this truth is so well fixed in the minds of the surrounding families, that he is considered as the rightful property of some one or other of their daughters.

“My dear Mr. Bennet,” said his lady to him one day, “have you heard that Netherfield Park is let at last?”

Mr. Bennet replied that he had not. “But it is,” returned she, “for Mrs. Long has just been here, and she told me all about it.”

Nope, that would be a nonstarter at HarperColliins. But I would read a book like that, any time I found one.

With these thoughts in mind, I was delighted to discover a new novel by Liberty author Russell Hasan, Rob Seablue and the Eye of Tantalus. A creepy Eye, spells that can turn light into knives, people with special skills that put them in danger from "normal people," technology that might, in the wrong hands, substitute for humanity, the drama of growing up, the contest of the self-described "have-nots" against the "haves," the intransigence of individual choice — what more could a libertarian novel reader want?

Well, he or she might also want wit, humor, a warm grasp on the mundane world (in this case, the world of adolescents), and, in a fantasy novel, a plausible but dramatic relationship between the mundane and the fantastic. All these Rob Seablue has. The obvious influence of Ayn Rand has not prevented Hasan from doing things his own way. I can't tell you more about that way without spoiling the plot for you, but the book is ingenious throughout and most ingenious at its end — ingenious, I might add, without losing plausibility. Actually, the story continually becomes more plausible, as well as more exciting.

This first novel belongs, to an unusual degree, to its author, who is his own publisher. You can say the same thing about William Blake, you know.

Rob Seablue is available, like almost all other books in the wide, wide world, from Amazon — in ebook format readable on Kindle or any PC, Mac, or smartphone using the Kindle app.

Another recent independently published book that I believe will interest Liberty readers is Philip Schuyler’s The Five Rights of the Individual. I’m not sure that I agree with Schuyler about all elements of his theory of rights. For one thing, I think that all rights are ultimately one, and behold, he has five! But that’s close enough, and I don’t think that many libertarian readers will quibble about the point.

What I especially like about Schuyler’s book is the rich context — historical, social, moral, and psychological — in which he places his rights theory. He informs us, for instance, that we live in an historical era in which the US government “makes 350 pages of new laws each day” — and if you don’t think that entails a gross violation of rights, then you’re a bloodless political “scientist” who cares about theories, not about where they lead. I found Schuyler’s commentary on the psychological and cultural formations that support or destroy individual rights especially interesting. And thank God, his book is clearly and engagingly written — something you can’t say about 99% of university press publications on this subject and its conceptual neighbors.

I would be very remiss if I didn’t remind readers of Liberty that another of our authors, Gary Jason, recently published a fine collection of essays, many of which first appeared in these pages. His book is an encyclopedic account of political, economic, and cultural issues that confront libertarians and classical liberals (but it’s much more fun than an encyclopedia). Gary’s beat is everything from the environment to the movies, and you can never predict what will interest him. I don’t always agree with Gary, and strangely, he doesn’t always agree with me. But I always learn something from what he writes, and as I turn the pages, I always look forward to seeing what he’ll do with his material. That’s the effect of a real author.

When I was a student, eons ago, if I ever laid eyes on a libertarian book I clutched it to my bosom, fearing it would be the last one I found. Times have changed. Today, libertarian ideas are actually discussed on TV! But good books are still . . . well, they’re still not exactly common. The three books I’ve mentioned are very good books, and as independent in thought as in their means of publication. Take a look at them.


Editor's Note: Reviews of "Rob Seablue and the Eye of Tantalus," by Russell Hasan (Amazon Digital Services, 2012, 230 pages); "Dangerous Thoughts," by Gary Jason (XLibris, 2011, 632 pages); and "The Five Rights of the Individual," by Philip Schuyler (iUniverse, 2012. 287 pages).



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