Need some help here from those who like intricate constitutional law and logic problems... This morning, Andrew Sullivan goes after a New York Times story about the proposed constitutional amendement to "protect" marriage. Sullivan complains that the NYT reporter misses the fact that this amendment would make even civil unions for same-sex couples unconstitutional. The key clause in the proposed amendment, for Sullivan, is that in italics:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
Sullivan argues that this would make same-sex civil unions unconstitutional. I'm not so sure (and do keep in mind I think this amendment is a really bad idea - my point is just that AS is misreading this element of it). What that second, tangled, sentence says to me is that state or federal courts cannot read into the US or any state constitution a requirement that marriage or something like it be extended to "unmarried couples or groups" where such a requirement is not there explicitly. This seems to me to be an attempt to prevent the "imposition" of civil unions or full-blown marriage for same-sex couples through what the right perceives as "judicial fiat." It leaves open that states could allow civil unions through constitutional amendment or some other legislative process that would expressly permit it. The key phrase is "construed to require." That phrase seems to get at the right's fear of judicial imposition of civil unions and still allow a legislative enactment, which it, I guess, could live with.
Sullivan seems to believe the language of the amendment would also prevent the enactment of civil unions through the state legislatures, in contrast to the NYT reporter saying that route is still available. My reading is that the NYT is right and AS is wrong. Am I crazy? (Well, I'm no crazier than folks who think that a constitutional amendment that cuts same-sex couples out of marriage is a good idea...)
I first got interested in libertarianism around the time of the Ed Clark campaign in 1980. How I got there is a story for another time, if I am so requested. I was in high school at the time and had no idea what I wanted to do with either my new-found politics or the rest of my life. I enrolled at the University of Michigan in 1981, planning to do something in computer science. Thanks to taking economics on a bit of a lark (I needed a fifth course, and I figured I should know some if I was going to keep having to defend this liberty stuff), those plans soon changed. But my life story is not the issue here...
At that time, and then in four years of grad school at George Mason, the future of liberty seemed dim indeed. The Berlin Wall still stood, and the intellectual breakthroughs that would happen in the 80s were underway but had yet to filter down to the rest of the intellectual structure of production. It was also the early days of the so-called "PC" movement on college campuses (we fought off an early speech code at Michigan). And while Reagan sometimes talked the talk, there wasn't much sense he walked the walk on free markets, and certainly not on social issues. Of course there were some positive signs - I'm proud of the fact that two of the first published pieces I ever wrote were in the first few issues of The Michigan Review, one of the first papers intended as alternatives to campus leftism.
Even in grad school, my colleagues and I were generally pessimistic about the future of our ideas, both libertarianism generally and Austrian economics specifically. Of course my good friend Pete Boettke had a 50 year plan, but we figured that was the product of his "engine of creativity without a clutch" (to borrow from Kenneth Boulding's description of Frank Knight). And we were all concerned about whether, as out of the closet Austrian economists, we could even find tenure-track jobs in economics.
But here I am at age 40, and almost everything we worried about has not come to pass. The intellectual world has changed mightily and free market, libertarian, and Austrian ideas have a respect and legitimacy that I don't think any of us imagined they would. Pete and I and others who were at GMU in that period have all, more or less, found great jobs and have tenure, with many of us having various administrative or programmatic responsibilities, suggesting a level of trust in our abilities that transcends any concerns about ideology. Libertarian academics have published and made contributions not just to libertarian thought, but to their own disciplines and research areas in ways that I don't think any of us would have dreamed possible in the early and mid 80s. Libertarian and related ideas have spread beyond their early narrow life in economics, political science, and philosophy to the other social sciences and humanities, as well as the arts and sciences. There is a virtual tidal wave of work on Hayek that's coming from all over the intellectual map. These are amazing developments that have exceeded what were my most optimistic expectations as an undergrad and grad student. And I do think the world is a freer place, in total, than it was 20 years ago when I began my career.
When I look at my own career to this point, I actually have the same feeling of having exceeded my own expectations, but I think that success is at least as much about very good changes in the world that have made that success possible.
I am by nature an unrelenting optimist, about both people and the future. I'm also convinced that we live in the best of times right now. We are, I would argue, freer, more prosperous, and more secure than any time in human history (despite the threat of terrorism, etc.). If I could raise my children at any time in human history, it would be right now.
Forty, shmorty. There's no time for moping when there's a world to enjoy and more progress to be made.
Well, thanks to the Massachusetts Supreme Court, same-sex marriage moves from simmer to full boil. It nothing else, the spectacle of Bush attempting to appease the Religious Right by head-faking toward a constitutional amendment while managing to never really go that way and alienate the majority of Americans will be equalled only by the spectacle of the Democratic nominee (whichever one is deemed "electable" this week) trying to appease the left wing core activists in the party by supporting "something" for same-sex couples but not having the guts, or risking the same votes Bush risks, by actually being in favor of calling it "marriage." In but a few years we've gone from what "is" is to what "marriage" is. Progress? Eh.
In the WSJ this morning, Mitt Romney, the governor of Massachusetts, has an op-ed that exemplifies one of the main problems with the conservative position on this issue: its historical ignorance. He writes:
Contrary to the court's opinion, marriage is not "an evolving paradigm." It is deeply rooted in the history, culture and tradition of civil society. It predates our Constitution and our nation by millennia. The institution of marriage was not created by government and it should not be redefined by government.
Yes indeed, it does predate "us." But in that long and lovely history, marriage has taken many forms, and the participants in marriage have had a dizzying array of rights, options, and roles. And cross-culturally, we are all, I think, aware of the range of arrangements that constitute marriage. So, Mr. Governor, marriage IS an evolving paradigm. If it hadn't evolved, we'd still be back at women as chattel and same-color only, just to mention two contemporary examples.
And yes, it wasn't created by government, but the question at hand is who is redefining it? Heterosexuals have, over even just the last 100 years, significantly redefined marriage and governments have normally, though not always, followed in their wake by changing the law to reflect de facto practice. The reality of the early 21st century is that same-sex couples are, in many case, de facto married. Granting those relationships legal protection is not redefining marriage - that's already happening. It's simply codifying practice and recognizing the ongoing evolution of the institution. Much as marriage evolved to recognize women's full equality and our lack of concern over the skin color of the partners, it is now evolving to include same-sex couples. That's not government redefinition, that's social evolution.
Marriage is a fundamental and universal social institution. It encompasses many obligations and benefits affecting husband and wife, father and mother, son and daughter. It is the foundation of a harmonious family life. It is the basic building block of society: The development, productivity and happiness of new generations are bound inextricably to the family unit. As a result, marriage bears a real relation to the well-being, health and enduring strength of society.
All fair enough. In fact, it would be wonderful if heterosexual marriages actually did all that! But the question is what all of this has to do with excluding gays and lesbians. If it's so damn important, why don't we want more people involved in it? (And watch out when "new generations" gets invoked - that's heading for trouble.)
Because of marriage's pivotal role, nations and states have chosen to provide unique benefits and incentives to those who choose to be married. These benefits are not given to single citizens, groups of friends, or couples of the same sex. That benefits are given to married couples and not to singles or gay couples has nothing to do with discrimination; it has everything to do with building a stable new generation and nation.
Oooooooooh, "stability" is it? You mean there's something "unstable" about same-sex couples? (Not to mention all the "stable" heterosexual couples that are keeping marriage and families so healthy.) So it's not about discrimination, yet allowing same-sex couples into the institution will destablize it. Unfortunately, the governnor chose not to expand on this point, but I'd love to hear what he thinks is so unstable about same-sex relationships, or how they will destabilize society writ large.
And look what's back! Our old friend "new generation." Once again, marriage rights are linked to procreation to justify the exclusion of gays and lesbians. Tell me Governor, if it's all about building a "stable new generation," will you ask the people of Massachusetts to support a law banning marriage by infertile couples, and requiring all married couples to have children? If not, what damage is done to a "stable new generation" by allowing same-sex couples the same freedom to share their lives together that is enjoyed by heterosexual couples who either can't have, or don't want, children?
As I noted in an earlier post, there are plausible arguments against full legal recognition of same-sex marriage, but those arguments, at least from a broadly liberal perspective, are going to have to show some demonstrable harm to third parties from it, and further demonstrate, in my view, that such harms aren't already at play with current practice. If same-sex marriage poses a threat to "stable new generations," then why aren't we outlawing other practices that do, e.g. divorce, childlessness, and putting kids in day care, if the conservatives are to be believed? The inconsistency, if not hypocrisy, of most of the conservative arguments against same-sex marriage is so transparent that it's no wonder they face the accusation of discrimination, and feel compelled to be defensive about it. Most conservatives are smart people. Given that, how else to explain the obvious weakness of their arguments other than it being a case of a tortured intellectual opposition to something they just find "icky"?
When I read these conservative anti-same-sex marriage screeds, my belief that Margaret Atwood's wonderful book The Handmaid's Tale is a bit overwrought as a cautionary tale just gets eroded away a little bit more.
Just a few hours after I noted how the Democrats will start to dance and waffle on same-sex marriage, along comes John Kerry with some fancy footwork. From today's WSJ Best of the Web:
The New York Times reports that Kerry says he rejects the ruling:
In a statement on Wednesday night, Mr. Kerry clearly sought a middle ground. He said he believed in protecting the "fundamental rights of gay and lesbian couples, from inheritance to health benefits," but added that he believed the answer was civil unions.
"I oppose gay marriage and disagree with the Massachusetts court's decision," he said.
To be sure, Kerry has tried to have it both ways on the issue of same-sex marriage, as Ed Gillespie, the Republican National Committee chairman, notes in the Times:
Mr. Gillespie . . . noted that Mr. Kerry voted against the 1996 Defense of Marriage Act, barring federal recognition of same-sex marriages, a measure that was signed into law by President Bill Clinton.
Mr. Kerry said at the time that while he opposed same-sex marriage, he was voting against the bill because "I believe that this debate is fundamentally ugly, and it is fundamentally political, and it is fundamentally flawed."
Put on your dancin' shoes folks.
I'm in the third year of a three-year administrative appointment and my dean has just begun a campus-wide performance review. He has specifically asked for letters from folks who work closely with me, and will send out a broader campus call for information shortly. That's one way to get accountability I suppose. In a small place, with relatively few layers of administration in academic affairs, that's probably easier to do. In any case, I don't see the systematic threat to tenure, nor do I see Deming's situation as just being about tenure. It certainly points to other problems in higher ed, as Robert rightly notes.
Wow, things are heating up in this little corner of cyberspace! Mark is trying to out-libertarian David Bernstein (I caught the same point in David's op-ed) and Arthur is calling W treasonous for trying to enshrine heterosexual marriage in the Constitution. Hard to argue with either of those positions! For those interested in the same-sex marriage issue, there was quite an intense debate over on the Hayek-L list the week before last that might be worth looking at. The thread headers should be obvious. I will just add, about my own participation in that debate, that my position is identical to Arthur's: ideally the state should be out of marriage, but in the world in which we live where the state is involved, as should be the case with all such involvements, it may not discriminate in its actions.
The conservative animus toward same-sex marriage never ceases to amaze me. It cannot be explained, in my view, by any rational objection. The good news is that I see much less of this animus among my students, including those who are otherwise pretty conservative. In the end, the conservative objection often amounts to philosophically tortured attempts to justify the "naturalness" or "genital compatibility" of heterosexual marriage/procreation, ignoring when such marriages involve infertile persons or placing genitals where they, supposedly, don't belong. If not that, it becomes a really weak attempt to construct evidence and argument where none exists, e.g. Stanley Kurtz. Kurtz's argument has been ably destroyed by Andrew Sullivan, and it's worth repeating that if one of my first-year students tried to make an argument that failed to distinguish causation and correlation and so blatantly over-looked or discounted a dozen intervening variables, I'd make her rewrite the paper.
At the end of the day, the only reasonable objection is one that attempts to address Mill's harm principle: somehow same-sex marriage harms third parties. Kurtz's argument that it undermines the institution of marriage might qualify if there was any evidence, or if it weren't the case that heterosexuals are doing such a good job at undermining it themselves. If someone could make the argument that same-sex marriage meant same-sex couples parenting more frequently and could provide evidence that children raised in such homes are somehow harmed, that would be more persuasive. Unfortunately, the evidence I'm aware of suggests there are no major differences in psychological outcomes for children of same-sex parents as compared to children of opposite sex parents. And we certainly know that the evidence does suggest that, ceteris paribus, two parents are better than one (not to mention the fate of so many children languishing in foster care and orphanages). That those who claim to support "family values" are so eager to prevent people who wish to form familes from doing so, and to thereby reduce the number of families available to take in children who have none, is the height of hypocrisy and makes me sad and angry. In that order.
Thanks to Chris Coyne, graduate student extraordinaire at George Mason's Economics department, I give you my quote of the day:
"The immense majority strives after a greater and better supply of food, clothes, homes, and other material amenities. In calling a rise in the masses' standard of living progress and improvement, economists do not espouse a mean materialism. They simply establish the fact that people are motivated by the urge to improve the material conditions of their existence. They judge policies from the point of view of the aims men want to attain. He who disdains the fall in infant mortality and the gradual disappearance of famines and plagues may cast the first stone upon the materialism of economists."
- Ludwig von Mises, Human Action, p. 193
It never ceases to amaze me how those who defend capitalism are quickly labeled as selfish and cruel despite the evidence to the contrary. The difficulty in making discussions focus on the means and not the ends is equally frustrating. I guess it's just too easy to assume the worst intentions of those with whom we disagree.
Will's post below is right on the money, especially this bit:
Conservatives tend to see the feminist movement and the so-called sexual revolution as perverse, willful repudiations of the sorts of regulative convention that make civilization possible. Yet here we are; civilization remains. And they fail to relate these cultural shifts to the ongoing development of capitalism, which, in other moods, they are only too eager praise. The increased economic autonomy of women, of which the feminist movement is as much a response as a cause, fundamentally alters the terms of sexual and marital relations, and thereby fundamentally alters the social meaning of man- and womanhood
This is a point I've tried to make in other contexts: pining for a world where markets are free and vigorous and the culture remains untouched is asking for the impossible. Conservatives just seem to miss this entirely. It is the very wealth, technology, and resources devoted to education that capitalism has made possible that has been largely responsible for the profound changes in gender roles that we've seen in the last 35 years. To claim to support free markets yet to expect that these sorts of changes can be prevented, stopped, or reversed is just not possible. You can't stand athwart the market and yell "stop." This is one reason why I really like Virginia Postrel's work. She gets the dynamism of the market-culture interaction.
Will is also quite right to note that the feminist movement is "as much a response as cause" of the increased economic independence of women. If you look at the data on female labor force participation, it was climbing well before the 1960s, suggesting that the feminist movement may well have been more a response to the fact that women were getting out there in the market and realizing the changes that needed to take place culturally and legally. A very readable book on all of this is Stephanie Coontz's "The Way We Never Were."
Will's post also raises another question that fascinates me: economic theory predicts (and Dick McKenzie and Gordon Tullock did so explicitly in 1975) that as women's wages rise, the burden of housework should shift more toward men. If the division of labor between the market and the household is driven by the opportunity cost of each partner's time, then as the cost of women's time at home rises with their wages, we should see them doing less housework and men doing more, at least relative to each other if not absolutely. The evidence from time diaries is that men have picked up, no pun intended, a bit more of the work in the household, but not nearly in proportion to the gain in women's wages. It's an interesting question why women continue to bear the burden of what sociologists call the "second shift." I have a few thoughts on why, but I'm going to hold those for a bit. What's interesting to me is the ways in which libertarians have largely not investigated these sorts of cultural questions, nor do we feel especially comfortable discussing them if there's no apparent link to the intervention of the state. I think that's a mistake - in the long run, if libertarianism is going to gain ground both intellectually and politically, it's going to have to address these sorts of questions. They take up too much space in many people's day-to-day existence to just shrug because the state has no big role.
A friend just sent me this piece on Adobe including code in Photoshop that prevents users from copying and manipulating images of many of the world's major currencies, presumably to prevent counterfeiting. There are a couple of worrisome things here, including the state apparently requesting/demanding that such code be included in private software, and Adobe agreeing and not informing customers about it. In addition, it would seems to be a limit on free speech to the extent artists might like to use Photoshop to create artistic images that involved currency. (Not to mention the fact that manipulating the image of currency is not per se illegal.) But I'd like to make a point that I haven't seen raised elsewhere: once again, this whole situation creates problems,and a bad precedent for state involvement, precisely because of the existence of state monopoly central banks. Where states control the currency, they will act in understandable ways to protect those monopoly rents, and presumably pressuring Adobe into doing this would be one of those ways.
In a world of competitive banking, not only would banks have plenty of good reason to make their currencies hard to counterfeit (and banks did so historically, before central banking), they could also negotiate competitively with companies like Adobe to make these sorts of deals. Adobe would certainly be in a better position to resist where the power of the state is not involved, but rather the more decentralized forms of power we see in the market. Moreover, banks and/or software manufacturers could test the market to see whether customers really cared about an issue like this, or whether they were indifferent. The discovery processes of the market would both allow for more options and put more pressure on all parties concerned to be more forthcoming about what is and is not in their software.
A conversation on a Usenet group brought up an observation I've noted about the classical liberal/libertarian movement that has persisted over the course of the now more than 20 years I've been involved. There are, and have been, a goodly number of prominent gay men in both the academic and policy sides of the movement for many, many years, and the Libertarian Party has had a gay rights plank and gay men involved for many years as well. And in the more recent past, there's been a flourishing of openly gay conservative men. All this is to the good I think. But it raises an interesting question: why don't we see many (any?) prominent libertarian lesbians?
Now perhaps they are there and I just don't know about them, and if so, mea culpa, and please don't name names! Still, given the increasing numbers of libertarian women in the academic, policy, and political worlds, it's surprising that open lesbians remain so few in number or at least so far below the radar.
Obviously, I'm not trying to out people, but it is curious and the real question to me is whether or not there's something about the way libertarianism is couched, or about the underlying ideas (perhaps maybe the focus on rights?) that makes it far more attractive to homosexual men than women. I'm also not interested in launching a recruiting drive; nonetheless, it remains a fascinating question about the culture of the libertarian movement and the broader culture as well. (I also think a parallel argument can be made about the conservative movement.) It's the question of"why" that I find fascinating. Of course I may start hearing that I need to check my premise here! If my initial assumption is wrong, I'm happy to hear about it.
I saw this piece from the Manchester Union-Leader on Wes Clark and couldn't help but notice this comment:
The retired four-star general said he will discern a prospective judge's position on abortion not with a litmus test, but by reading his previous decisions to ensure that the judge has never upset existing judicial precedent.
"I don't believe people whose ideological agenda is to burn the law or remake the law or reshape it should be appointed whether they are from either side,"; he said during an interview with editors and a reporter.
"I just want good, solid people with judicial temperament who respect the process of law that we have in America."
Does he really mean, abortion aside, that he'll only appoint people who never upset precedent? Correct me if I'm wrong here, but isn't a key part of a judge's job to discern whether new circumstance produce good reasons for new law? After all, precedents came from somewhere. Doesn't respecting"the process of law" include recognizing that sometimes precedent is wrong? Too bad the reporter didn't ask him if his view suggests that the judges who comprised the majority in Lawrence v. Texas should be removed from the bench! Seems to me this view of judges is itself a dangerous precedent.
My apologies if my html is bad in this first post.
I just wanted to post a quick hello and to thank you all for inviting me on board. I've been a reasonably regular reader for the last few months and have enjoyed your contributions. It's particularly nice to be here with several folks I know (Dave, Don, Chris, Sheldon) and others (such as Rod, Gene, and King) who I've met briefly over the years. King may not remember when we met - I interviewed for a job at SCSU back in 89 and didn't get an offer. (I won't hold that against him though.)
The links Chris provided give you a good sense of my professional and not-so-professional life. In addition to what's there, I have a current interest in issues of gender and family, having taught both economics and first-year seminar courses on the topics for several years. I think family issues are particularly challenging ones for classical liberals and libertarians, and find exploring them to be endlessly fascinating. I also love TV and rock music, and am always on the lookout for ways to link those topics to my more academic and political interests. Finally, as a result of spending the last 15 years at a liberal arts college, I'm very interested in issues of pedagogy, from the nitty-gritty of how you teach first-year students to write a substantial research paper, to the role of technology in higher education, to issues of political correctness and ideology in the classroom.
One last word: now that I've gone over to the dark side as a half to full-time administrator, I'm particularly grateful to be part of this group, as I need all the opportunities to engage in this sort of give-and-take that I can find.
Thanks again for having me. Substance will follow.