Gay Marriage, Wedding Cakes, and Freedom of Association

There’s a big controversy about whether business owners with traditional religious beliefs should be coerced by government into doing business with gay couples who want to get married.

Back in 2015, I explained that the real issue is freedom of association, not whether gay marriage is right or wrong (I’ve always wondered why government should have any role in marriage, but that’s a separate topic).

It’s time to revisit this issue now that the Supreme Court has released its decision on the case involving a Colorado baker who didn’t want to decorate a cake for a gay wedding. The Wall Street Journal opines that the decision was in favor of the baker, but on very narrow grounds.

The Supreme Court ruled 7-2 Monday for a baker who refused to custom-bake a cake for a same-sex wedding out of sincere religious belief. …this apparent victory for religious freedom may be short-lived. …While seven Justices on the High Court held for Mr. Phillips, the majority decision could have gone the other way had some facts been different. Writing for the majority, Justice Kennedy notes that Mr. Phillips was “entitled to a neutral decision-maker.” …As is his wont, Justice Kennedy strains to avoid a clear and decisive ruling. While “religious and philosophical objections [to same-sex marriage] are protected, it is a general rule that such objections” don’t allow the denial of services “under a neutral and generally applicable public accommodations law,” he writes. Perhaps the best that can be said is that florists, make-up artists, photographers and other people of faith have lived to fight another day. A ruling against Mr. Phillips would have been catastrophic for religious liberty, but the majority’s muddle provides only gossamer protection. …The message is that governments can punish religious beliefs as long as they keep their animus toward religion in the closet.

Since I’m not a lawyer, I’m not sure what to think about the Court’s contorted decision.

But as a libertarian, I think the government should not be involved.

Jeff Jacoby of the Boston Globe understands what the issue is all about. Here’s some of what he wrote shortly before Trump’s inauguration.

Freedom of association is a vital human right. …I support…the singers who refuse to sing for Trump, the fashion designers who refuse to design, the landlords who refuse to rent, the dancers who refuse to dance. No one should be forced to play a role in a celebration they want nothing to do with, or to hire themselves out to clients they would prefer not to serve. …if a caterer turns down a request to prepare the meals for Trump’s inauguration? Or a florist declines to provide the floral arrangements? Or a calligrapher says “thanks but no thanks” to addressing the invitations? I’d back them, too, and for reasons having nothing to do with Trump or Republicans or inaugurations — and everything to do with freedom of association. The right to discriminate — to choose with whom we will and won’t associate — is vital to human liberty. A dressmaker who can’t say no to a commission to design a gown isn’t free, and it doesn’t matter whether the gown is for a first lady or for the brides in a lesbian wedding. A liberal baker who declines to create a lavish cake decorated with the words “Congratulations, President Trump” is entitled to as much deference as a black baker who declines to decorate a cake with the Confederate flag, or a Muslim baker who declines to decorate a cake with the message “No Muslim Immigrants.” …Tolerance and pluralism are important values in a free society. So are choice and association. Your choices may not be mine; my preferred associations may not be yours. In a diverse, live-and-let-live culture, our differences are manageable — as long as government doesn’t interfere.

This controversy should have nothing to do with sexual preference. One of my former interns is gay, but does not want to force others to associate with him.

Being a gay libertarian…you are a pariah among your peers. …So-called civil rights groups like the American Civil Rights Union…say…that “when businesses are open to the public, they’re supposed to be open to everyone.” …Well, folks, I am gay myself – I am even married – and I stand by Philipps’ right to discriminate against whoever he wants. That, of course, makes me a traitor, a turkey voting for Thanksgiving – and if I were African American, it would also make me an Uncle Tom. …many liberals stand by the ACLU’s faulty reasoning… Faulty because it implies that, once you start selling a product or service, you automatically lose your right to freely and voluntarily interact with other people. It’s opened to the public, so it suddenly becomes public “property”… Following that logic, a Muslim baker would be forced to make a cake with Mohammed’s face on it – an unspeakable moral crime in Islam – Hooters would have to hire anyone as a server and gay bathhouses would have to welcome female patrons. …the infamous Jim Crow laws not only maintained an apartheid-like state for African Americans, but they also dictated how private businesses needed to interact with these people. …instead of having government force businesses to serve anyone, I want it to let them discriminate in the open. This way, I know exactly where not to do business. Because even if I were heterosexual, I would very likely boycott businesses that discriminate on arbitrary traits like sexual orientation or skin color. It’s not a crime – no one’s life or property is endangered by this refusal of doing business – but it goes against my moral standards of treating every human being as an equal.

Excellent analysis. Indeed, I’d like to take partial credit. Except Pierre already was a solid libertarian when he started working for me.

Here’s another column with the same perspective, which appeared in the Federalist.

…it should be simple to appreciate why religious people who deeply oppose socially changing marriage to include same-sex couples would not wish to endorse or participate in a same-sex wedding. …Masterpiece Cakeshop, as with many caterers, florists, and photographers, has merely declined to participate in an event or associate their brand with that event. Why do LGBT activists perceive this as a direct attack on the validation of their relationships? …I would not seek employment or request a table at a Planned Parenthood event and expect them to accommodate me. Why would I help them raise money or support their business model? If I encountered an individual morally uncomfortable with participating in an activity with me and my boyfriend, such as couple photos or planning a party, it would be uncomfortable for me to force her. …I would be taken aback by a rejection, I would feel it is my responsibility to choose another photographer rather than force another person to violate her faith for my satisfaction.

Interestingly, some folks on the left openly express their affinity for discrimination. Here’s Michael Moore exercising his right not to do business with theaters in North Carolina, along with a comment by someone who wants Moore to be philosophically consistent.

Ouch, that retort had to leave a mark. Though Moore isn’t bothered by hypocrisy, so he probably doesn’t care.

And speaking of hypocrisy, I wonder what my friends on the left think of the following examples of discrimination.

Here’s freedom of association in action, as reported by the Washington Times.

A boy whose letter to President Trump made national headlines last month reportedly wanted a pro-Trump cake for his birthday party, but his mother was unable to find a baker willing to fulfill the order. …his mother “made him one herself, because she couldn’t find a bakery willing and able to do it.” Michael P. Farris is president, CEO and general counsel of the Alliance Defending Freedom, …wondered why bakers are allowed to decline to make birthday cakes supporting Mr. Trump, but not wedding cakes supporting same-sex marriage. …“The fact is that these cake shops have freedom of speech,” he continued. “They have the right to decline to use their artistic talents to celebrate events or promote messages that violate their beliefs, even if it offends a nice little kid.”

Kudos to Mr. Farris. He wants sauce for the goose to be sauce for the gander. But more important, he wants the right sauce, i.e., nobody should be coerced by government to associate with others.

The New York Post highlights another example of how freedom of association works.

Bartenders at a West Village hot spot served up discrimination — with a liberal twist — refusing to serve a customer because he was wearing a “Make America Great Again” hat, according to a lawsuit. …Greg Piatek, 30, an accountant from Philadelphia, claims he was snubbed…by workers at The Happiest Hour on West 10th Street over his conservative fashion statement… “Anyone who supports Trump — or believes what you believe — is not welcome here! And you need to leave right now because we won’t serve you!” Piatek claims he was told as he was shown the door by a manager. …Piatek’s lawyer Paul Liggieri called the incident “humiliating,” saying it was his client’s “saddest hour.”

I think Mr. Piatek is being a snowflake. If some establishment didn’t want to serve me because of my libertarian values, I would shrug my shoulders and find a place that did value my cash.

I just wish folks on the left had the same perspective. Moreover, I wonder if they’ve considered the implication of their approach. This humorous item from Libertarian Reddit could become reality if the government had the power to force all of us to do business with each other.

Who needs free will when your government can get involved instead? from Libertarian

And here’s another story showing how people choose to discriminate.

Brian Ashworth…was in the office when one of his employees walked back to tell him that a woman and four or five men…were in the dining room of Ace Biscuit & Barbecue… One wore a “Make America Great Again” shirt, and another had a shirt promoting the British white nationalist punk band, Skrewdriver. A third man sported a shirt that said, “Pinochet Helicopter Company,” a reference to former right-wing Chilean dictator Augusto Pinochet, accused of tossing Communists and other political opponents from aircraft. …the group was behaving, minding its own business. …”One employee said to me, ‘Brian, be cool. Let them eat,'” the restaurant owner recalled. …Suddenly, the young man in the Skrewdriver shirt threw up a Nazi salute, which the others reciprocated, he said. “That was it. Oh my God, are you kidding me? ‘Get out of here. You’ve got to go,'” Ashworth told them, admittedly in unkind words. …They countered that they had rights, and Ashworth conceded they had rights but said, as a business owner, …he reserves the right to deny service to other groups. His employees don’t have to serve them, he said.

Amen.

I imagine most of my leftist friends will agree with the restaurant owner’s decision, but there’s part of the story that may cause them heartburn.

“I got a round of applause from the customers who saw me throw them out,” he said. “A round of applause is good, but it doesn’t keep anybody safe.” …He decided to close for the day, for the safety of his staff and customers. …Ashworth brought his two .45-caliber pistols to work… He supposes he’ll keep bringing them to work until he feels safe again.

Last but not least, Marissa Mayer explains for FEE how she doesn’t think government should get involved solely because someone does not want to do business with her.

This week I was denied a service because the company’s values are at odds with the values that Alliance Defending Freedom stands for — values I personally hold. And guess what? I’m okay with that. …Using my work information, I signed up for an online course created by Moceanic, a team of talented fundraisers who have created a coaching and training business to help writers better connect with donors. …What I didn’t know when I signed up for the course, however, is that Moceanic does a lot of work with organizations such as the ACLU, Planned Parenthood, and LGBT activist organizations. …ADF and these organizations don’t exactly share the same values. …I received an email notifying me that they had refunded the cost of the course with no explanation as to why. I was a little perplexed by the email… That’s when I starting digging deeper into the brains behind Moceanic, and it didn’t take long for me to discover the values statement on their website. …”we reserve the right to choose not to train people working directly for, or on behalf of, organisations whose missions or values do not align with ours.” …I get it… Moceanic shouldn’t be forced to coach me on how to speak in a way that generates excitement and engagement for a cause that they disagree with any more than Jack should have to create a cake celebrating a marriage that conflicts with his beliefs.

Marissa is intellectually consistent and practices tolerance.

Too bad the same can’t be said for many other people.

I’ll close by noting that we all discriminate. We discriminate in the foods we buy, the friends we choose, the people we love, and the businesses we patronize. And I don’t think the government should coerce us to make different choices.

That being said, we also should recognize that some choices are fine and some choices are bad.

Because I have the taste buds of a child, I discriminate against restaurants with spicy food. Plenty of my friends tease me for my limited tastes, but I can’t imagine anyone (other than my mother when I was a kid) wanting to force me to eat foods I don’t like.

But what if I wanted to discriminate against people simply because of their race or religion? In that case, I would hope my friends would cease to be my friends and instead would upbraid me for my moral failings (I also hope some of them would be like Daryl Davis or Matthew Stevenson and try to rescue me from such odious forms of collectivism).

However, I wouldn’t want them to enlist government coercion. Believing in free speech also means allowing reprehensible forms of free speech. Believing in a free press also means allowing awful viewpoints. Believing in freedom of association means allowing disgusting forms of discrimination.

So bake a cake or don’t bake a cake. But if you have a bad reason for not baking a cake, you won’t be getting my business (even if your discrimination is economically rational).

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Name-Calling Contest Between Libertarians and Leftists: Autistic Dorks vs. Ugly Weaklings

In TV debates, I’ve asserted that folks on the left are “neurotic” and “guilt-ridden.” And I shared a make-believe divorce agreement that exploited every negative stereotype about left wingers.

So I’m not averse to philosophical mockery, at least if it’s done with humor rather than malice.

As you might imagine, this is a two-way street. Folks on the other side make fun of libertarians quite frequently.

And not always with a smile. According to one leftist academic, we are borderline autistic.

Speaking at New York City’s Unitarian Church of All Souls…, MacLean…answered an audience member’s question about the motivations of the late economist James Buchanan, whom she considers to be one of the founders of libertarianism. In response, she suggested that Buchanan might have been on the “autism spectrum.” “It’s striking to me how many of the architects of this cause seem to be on the autism spectrum,” she said an hour into the talk. “You know, people who don’t feel solidarity or empathy with others and who have difficult human relationships sometimes.”

I don’t know anything about how autism is measured, so I can’t agree or disagree with her assertion. Though I’m tempted to reflexively disagree because MacLean’s book on Buchanan was incredibly shoddy.

But I will admit that libertarians can be a bit dorky. Heck, I’ve specifically shared humor noting our nerdy tendencies.

Moreover, Jonathan Haidt, who is a serious and non-shoddy academic, has done some work quantifying the libertarian psyche.

We’ve been deluged in recent years with research on the psychology (and brain structure) of liberals and conservatives. But very little is known about libertarians — an extremely important group in American politics that is not at home in either political party. …In a project led by Ravi Iyer, we analyzed data from nearly twelve thousand self-described libertarians, and compared their responses to those of 21,000 conservatives and 97,000 liberals. …The findings largely confirm what libertarians have long said about themselves, but they also shed light on why some people and not others end up finding libertarian ideas appealing. Here are three of the major findings:

Here’s how libertarians score on “moral values”.

Libertarians match liberals in placing a relatively low value on the moral foundations of loyalty, authority, and sanctity (e.g., they’re not so concerned about sexual issues and flag burning), but they join conservatives in scoring lower than liberals on the care and fairness foundations (…e.g., they don’t want a welfare state and heavy handed measures to enforce equality). This is why libertarians can’t be placed on the spectrum from left to right: …They really do put liberty above all other values.

Here’s how they score on “reasoning and emotions”.

Libertarians have the most “masculine” style, liberals the most “feminine.” We used Simon Baron-Cohen’s measures of “empathizing” (on which women tend to score higher) and “systemizing”, which refers to “the drive to analyze the variables in a system, and to derive the underlying rules that govern the behavior of the system.” Men tend to score higher on this variable. Libertarians score the lowest of the three groups on empathizing, and highest of the three groups on systemizing. …On this and other measures, libertarians consistently come out as the most cerebral, most rational, and least emotional. On a very crude problem solving measure related to IQ, they score the highest.

And here’s what characterizes libertarians on “relationships”.

Libertarians are the most individualistic; they report the weakest ties to other people. They score lowest of the three groups on many traits related to sociability, including extroversion, agreeableness, and conscientiousness. They have a morality that matches their sociability – one that emphasizes independence.

In other words, based on the final category, maybe there is some truth to the stereotype that we’re introverted, disagreeable, and self-centered.

I don’t know if that means we are more likely to be autistic, but dorkiness might be a semi-fair insult.

But folks on the left should be careful about stereotyping since they have vulnerabilities of their own.

Here’s a story from the U.K.-based Times, for instance, on how leftists are more likely to be weaklings.

A study has found that weaker men are more likely to be in favour of redistributive taxation. …That is one interpretation of research by academics from Brunel University, who assessed 171 men for how buff they were – looking at strength, bicep circumference, weight and height. Writing in the journal Evolution and Human Behaviour, they found that those men who looked more formidable were…much less likely to back policies that redistribute wealth. Michael Price, from Brunel University London, said that this fitted with some of the predictions of evolutionary psychology. …“Our minds evolved in environments where strength was a big determinant of success. If you find yourself in a body not threatened by other males, if you feel you can win competitions for status, then maybe you start thinking inequality is pretty good.” The question was which way did the relationship go? Were men who were naturally strong also more likely to be less egalitarian – calibrating their morals to fit their abilities? Or was it that men who were less egalitarian felt more need to go to the gym, unconsciously believing they needed the strength in order to reach a better place in a red-in-tooth-and-claw social hierarchy? When Dr Price factored in time spent in the gym some, but not all, of the link disappeared – implying some truth to the second explanation.

For what it’s worth, I shared a similar story on this kind of research back in 2012.

There’s also academic research indicating leftists are not as attractive.

The researchers claim that never before has the effects of physical attractiveness on politics been examined on this level and that there is “good reason to believe that individuals’ physical attractiveness may alter their political values and worldviews”. They said that their findings prove attractive people tend to lean towards the right because they have better social skills and are more popular, competent and intelligent due to the “halo effect”… Writing about their findings in the Politics and Life Sciences journal published in December 2017, the pair said that on average, hotter people have an easier life so don’t see the need for more welfare, aid and government support, unlike their left-wing counterparts.

And there’s more than one study reaching this conclusion.

A recently published study in the Journal of Public Economics concludes that the attractiveness of a candidate does correlate with their politics. They find that politicians on the right are more good looking in Europe, the United States and Australia. The study shows correlation, not causation, but the researchers float a simple economic explanation for why this might happen. Numerous studies have shown that good-looking people are likely to earn more, and that people who earn more are typically more opposed to redistributive policies, like the progressive taxes and welfare programs favored by the left. The researchers also offer a more general psychological explanation for the trend: That good-looking people are often treated better than others, and thus see the world as a more just place. Past studies have found that the more attractive people believe themselves to be, the lower their preference for egalitarianism, a value typically associated with the political left.

For what it’s worth, the three articles I just cited don’t reflect well on folks on the left, but conservatives shouldn’t feel good either since the research sort of implies that they’re entitled and arrogant jerks.

It’s unclear where libertarians score on these measures.

Incidentally, there is research on how attractiveness means higher earnings and some folks actually think government should somehow intervene to compensate for “lookism.”

Now let’s shift from soft science to hard science. A 2012 study from Trends in Genetics advances the hypothesis that ideology and values may be hard-wired.

…we review the ‘genetics of politics’, focusing on the topics that have received the most attention: attitudes, ideologies, and pro-social political traits, including voting behavior and participation. …there has been a recent shift in perspective by both life and social scientists that emphasizes the interplay between genes and the environment, and gene–culture coevolution, which has proven more accurate than any position favoring either nature or nurture. It is against this background that a growing movement has begun to address the substantial, but not exclusive, role of genetic influences in the manifestation of political differences. …These findings are summarized in Figure 1, which shows that genetic influences account for a substantial proportion of individual differences in political traits.

And here is Figure 1, which shows that genetics (the blue bars) matters a lot for certain things like overall ideology and doesn’t matter at all for other factors such as party identification.

By the way, I have no way of judging whether this is good science or bad science, and I don’t even know if the results are positive or negative from a libertarian perspective. I’m simply sharing the results because they’re potentially illuminating/interesting.

Let’s close with some research that teases out some differences between libertarians (or “economic conservatives,” which I assume is a proxy) and other groups.

Here’s some academic research on attitudes about science.

It is frequently asserted that conservatives exhibit a cognitive style that renders them less well disposed toward science than progressives, and that they are correspondingly less trusting of scientific institutions and less knowledgeable about scientific ideas. Here we scrutinize these assertions, using data from the U.S. General Social Survey. We distinguish between three different definitions of ‘conservative’: first, identifying as conservative, rather than as liberal; second, holding socially conservative views, rather than socially progressive views; and third, holding economically conservative views, rather than economically leftist views. We find that self-identified conservatives and social conservatives are less scientifically literate and optimistic about science than, respectively, self-identified liberals and social progressives. However, we find that economic conservatives are as or more scientifically literate and optimistic about science than economic leftists.

In other words, folks that lean more libertarian rank at the top in terms of knowledge and attitudes.

And here’s an article about underlying value systems.

Political battles in the US are often portrayed as a clash between “bleeding heart” liberals and “pull yourself up by your bootstraps” conservatives. …Scientists are beginning to zero in on a few key differences in the ways that people on opposite ends of the political spectrum react to stimuli. …A study published in the journal Behavioural Brain Research in January suggests that you might be able to tell whether someone is liberal or conservative simply by the way they react to pictures of gross things like blood, feces or vomit. The authors found that socially conservative students will physically look away from “disgusting” images more quickly than their liberal peers (but the same didn’t hold true for people with fiscally conservative beliefs). …There’s also evidence that the areas of the brain that process and express fear are more active in conservative voters, which might make them more likely to quickly turn away from something that could make them sick. …New research on compassion is de-bunking the myth that liberal voters might inherently be more empathetic and kind-hearted people than conservatives.

Since folks on the right donate more than folks on the left, I’ve always thought the stereotype about generous leftists was absurd.

As “Libertarian Jesus” teaches, you’re not supposed to be charitable with other people’s money.

But what I noticed in the article was the difference between fiscal conservatives (presumably more libertarian?) and general conservatives. We may be allies on some issues, but we’re not the same (though I’m not sure why anyone would want to look any longer than necessary at pictures of blood, feces, and vomit).

My last item is a video exploring the research of Haidt and others on libertarian values.

Haidt isn’t a libertarian, but his research (which I’ve cited before) seems honest and rigorous.

My goal in all this is to figure out how nerdy libertarians can be more persuasive.

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The Case for Jury Nullification, Part III

In my first column on jury nullification, I applauded ordinary citizens for producing a not-guilty verdict when the federal government tried to impose bad U.S. tax law on a Swiss banker who lived in Switzerland and obeyed Swiss law. Simply stated, borders should limit the power of a government.

In my second column on jury nullification, I approvingly wrote about how citizens on another jury rebelled against the government’s persecution of western ranchers (while also noting that dramatically reducing government land ownership would be the solution to the underlying controversy).

To be sure, I don’t think jury nullification is the ideal way of dealing with over-criminalization and abusive law enforcement. It would be much better to repeal bad laws and get rid of the bad people working for government. But until those things happen, I’m glad nullification exists as a last line of defense.

Now let’s look at a third example. Except it’s probably more accurate to say it’s an example of pre-jury nullification.

Here are some excerpts from a heartwarming story from New Mexico (oops, I mean Arizona…I blame Chuck Asay!).

You may have heard that saying: If prosecutors want to, they could get a grand jury to indict a ham sandwich. It’s a knock on how much control prosecutors hold over the grand juries to whom they give evidence for possible indictments. The 269th Pima County Grand Jury could not be controlled like that. …this one was led by a criminal-defense attorney and populated by freethinkers who took to heart their role as “conscience of the community.” They went so far as to decline to indict people even though there was enough evidence to show probable cause, foreman Natman Schaye and others told me. That, in essence, is grand-jury nullification — not carrying out the law because, in the jury’s opinion, it is unjust.

This grand jury, which was labeled as “The Notorious 269th” by the press, decided that justice was more important than obeying the government.

Rick Myers, a well-known Tucsonan who is a member of the Arizona Board of Regents, also was on the Notorious 269th. What bothered him was the many cases of small quantities of drugs that were charged as Class 4 felonies, as state law dictates. He said he began making a distinction between what’s actually a “crime” and what’s “breaking the law.” The reason, another grand juror, Jodi Kautz, said was: They were presented with possession cases involving drug amounts as tiny as 2/100th of a gram, a trace amount. …Myers said. “There’s a whole lot of people getting charged for things that are not hurting other people.”

Here’s some background info on the role of the grand jury.

Grand juries have their roots in 12th-century England, but in early America took on more of a judicial role — that of a body of citizens standing between the government and a person accused of a crime. The grand jury eventually came to stand as a check, ensuring the government had enough evidence to pursue a criminal case. …Prosecutors run the grand-jury sessions… They bring proposed indictments to the jurors and call police officers as witnesses, without a defendant or a defense attorney present. The grand jurors, though, make the ultimate decision as to whether to indict, and on what charges.

Unsurprisingly, government officials don’t approve of grand jurors exercising independent thought.

As to the grand jurors’ decision to reject some cases with adequate evidence, Acosta said that really isn’t their place. They take an oath to follow the law before taking their seats, she said. “If somebody has a particular agenda, I suppose they can go to the Legislature and say, ‘We don’t like this law, maybe you should change it.’ But the grand jury isn’t the place for that kind of activity,” she said.

Sorry, Ms. Acosta, that’s not right.

The grand jury (or regular jury) may not be the ideal place to protect against injustice, but it’s better than nothing when governments have bad laws and/or government officials abuse citizens.

If you don’t believe me, just ask Andy Johnson, Anthony Smelley, the Hammond family, Charlie Engle, Tammy Cooper, Nancy Black, Russ Caswell, Jacques Wajsfelner, Jeff Councelller, Eric Garner, Martha Boneta, Corey Statham, James Slatic, Carole Hinders, Salvatore Culosi, and James Lieto, as well as the Sierra Pacific Company and the entire Meitev family.

There’s a philosophical principle involved. In many cases, nullification is appropriate because governments have criminalized actions that have no victims. Which is why the movement’s motto, as noted in this Ron Swanson meme, is that there is no crime when there’s no victim.

I’ll close on a personal note. I’ve lived in Fairfax County for almost three decades and I’ve only received one summons for jury duty. When that happened, I immediately fantasized about being a hero and using nullification to block an unjust gun prosecution or unjust drug prosecution. But it turned out that the case was a lawsuit between a contractor and consumer, so I was happy they wound up finding enough people before my name was called.

But maybe my nullification fantasy eventually will become a reality. Though I’ve noted that my fantasies (at least the ones involving public policy) never seem to happen.

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Ranking Nations for Economic and Personal Liberty

Last September, Economic Freedom of the World was released, which was sort of like Christmas for wonks who follow international economic policy.

I eagerly combed through that report, which (predictably) had Hong Kong and Singapore as the top two jurisdictions. I was glad to see that the United States climbed to #11.

The good news is that America had dropped as low as #18, so we’ve been improving the past few years.

The bad news is that the U.S. used to be a top-5 country in the 1980s and 1990s.

But let’s set aside America’s economic ranking and deal with a different question. I’m frequently asked why European nations with big welfare states still seem like nice places.

My answer is that they are nice places. Yes, they get terrible scores on fiscal policy, but they tend to be very pro-market in areas like trade, monetary policy, regulation, and rule of law. So they almost always rank in the top-third for economic freedom.

To be sure, many European nations face demographic challenges and that may mean Greek-style crisis at some point. But that’s true of many developing nations as well.

Moreover, there’s more to life than economics. Most European nations also are nice places because they are civilized and tolerant. For instance, check out the newly released Human Freedom Index, which measures both economic liberty and personal liberty. As you can see, Switzerland is ranked #1 and Europe is home to 12 of the top 16 nations.

And when you check out nations at the bottom, you won’t find a single European country.

Instead, you find nations like Venezuela and Zimbabwe. Indeed, the lowest-ranked Western European country is Greece, which is ranked #60 and just missed being in the top-third of countries.

Having now engaged in the unusual experience of defending Europe, let’s take a quick look at the score for the United States.

As you can see, America’s #17 ranking is a function of our position for economic freedom (#11) and our position for personal freedom (#24).

For what it’s worth, America’s worst score is for “civil justice,” which basically measures rule of law. It’s embarrassing that we’re weak in that category, but not overly surprising.

Anyhow, here’s how the U.S. score has changed over time.

Let’s close with a few random observations.

Other nations also improved, not just the United States. Among advanced nations, Singapore jumped 16 spots and is now tied for #18. There were also double-digit increases for Suriname (up 14 spots, to #56), Cambodia (up 16 spots, to #58), and Botswana (up 22 spots, to #63). The biggest increase was Swaziland, which jumped 25 spots to #91, though it’s worth pointing out that it’s easier to make big jumps for nations with lower initial rankings.

Now let’s look at nations moving in the wrong direction. Among developed nations, Canada dropped 7 spots to #11. Still a very good score, but a very bad trend. It’s also unfortunate to see Poland drop 10 spots, to #32. Looking at developing nations, Brunei Darussalam plummeted an astounding 52 spots, down to #115, followed by Tajikistan, which fell 46 spots to #118. Brazil is also worth highlighting, since it plunged 23 spots to #120.

P.S. I don’t know if Moldova, Ukraine, and Russia count as European countries or Asian nations, but they all rank in the bottom half. In any event, they’re not Western European nations.

P.P.S. I mentioned last year that Switzerland was the only nation to be in the top 10 for both economic freedom and personal freedom. In the latest rankings, New Zealand also achieves that high honor.

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Lessons from Portugal about Ending the Drug War

When I explain to people how the government’s War on Drugs violates the rights of people to do dumb things to their own bodies, they intellectually understand but they’re usually not convinced.

When I also explain why the Drug War causes additional crime and enriches mobsters, they almost always nod their heads in agreement but resist the obvious implication that we should decriminalize.

When I then explain that the War on Drugs has led to horrific policies such as civil asset forfeiture and senseless policies such as costly and ineffective money-laundering laws, they agree that the consequences are bad but they’re generally unpersuaded about legalization.

The stumbling block in every case is that they fear decriminalization will lead to more drug use, more addiction, and more suffering families.

Unfortunately, we don’t have a lot of real-world examples to put their minds at ease. But “a lot” isn’t the same as “any.”

This report about Portugal from the U.K.-based Guardian is must reading and may convince the doubters that we can end the War on Drugs without societal chaos and decay. It starts  with an observation about the ravages of illegal drugs.

It was the 80s, and by the time one in 10 people had slipped into the depths of heroin use – bankers, university students, carpenters, socialites, miners – Portugal was in a state of panic. …one in every 100 Portuguese was battling a problematic heroin addiction at that time… Headlines in the local press raised the alarm about overdose deaths and rising crime. The rate of HIV infection in Portugal became the highest in the European Union.

This led to predictable responses.

In the early days of Portugal’s panic, …the state’s first instinct was to attack. Drugs were denounced as evil, drug users were demonised, and proximity to either was criminally and spiritually punishable. The Portuguese government launched a series of national anti-drug campaigns that were less “Just Say No” and more “Drugs Are Satan”.

But something remarkable then happened. Rational voices began to push a libertarian-oriented message.

The first official call to change Portugal’s drug laws came from Rui Pereira, a former constitutional court judge who undertook an overhaul of the penal code in 1996. He found the practice of jailing people for taking drugs to be counterproductive and unethical. “My thought right off the bat was that it wasn’t legitimate for the state to punish users,”

And Portugal ultimately went in that direction – and got very positive results.

In 2001, …Portugal became the first country to decriminalise the possession and consumption of all illicit substances. …The opioid crisis soon stabilised, and the ensuing years saw dramatic drops in problematic drug use, HIV and hepatitis infection rates, overdose deaths, drug-related crime and incarceration rates. HIV infection plummeted from an all-time high in 2000 of 104.2 new cases per million to 4.2 cases per million in 2015. …The official policy of decriminalisation made it far easier for a broad range of services (health, psychiatry, employment, housing etc) that had been struggling to pool their resources and expertise, to work together more effectively to serve their communities.

Here’s a summary of the Portuguese approach, which certainly seems more humane and logical than what we do in America.

Portugal’s policy rests on three pillars: one, that there’s no such thing as a soft or hard drug, only healthy and unhealthy relationships with drugs; two, that an individual’s unhealthy relationship with drugs often conceals frayed relationships with loved ones, with the world around them, and with themselves; and three, that the eradication of all drugs is an impossible goal.

Want some additional evidence?

Here’s a chart from the invaluable Mark Perry of the American Enterprise Institute.

A 2009 study from the Cato Institute also highlighted the benefits of Portugal’s reform.

Because more than seven years have now elapsed since enactment of Portugal’s decriminalization system, there are ample data enabling its effects to be assessed. Notably, decriminalization has become increasingly popular in Portugal since 2001. …very few domestic political factions are agitating for a repeal of the 2001 law. …none of the nightmare scenarios touted by preenactment decriminalization opponents — from rampant increases in drug usage among the young to the transformation of Lisbon into a haven for “drug tourists” — has occurred. …The political consensus in favor of decriminalization is unsurprising in light of the relevant empirical data. …drug usage rates in Portugal, which, in numerous categories, are now among the lowest in the EU, particularly when compared with states with stringent criminalization regimes. …drug-related pathologies — such as sexually transmitted diseases and deaths due to drug usage — have decreased dramatically. …judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success.

By the way, allow me to reiterate that my support for decriminalization is not an endorsement of drug use.

It’s not just that I’m a teetotaler and want others to make the same choice. Stories like this one from CNN genuinely worry me.

Regina Mitchell, a co-owner of Warren Fabricating & Machining in Hubbard, Ohio, told The New York Times this week that four out of 10 applicants otherwise qualified to be welders, machinists and crane operators will fail a routine drug test. …”We have a 150-ton crane in our machine shop. And we’re moving 300,000 pounds of steel around in that building on a regular basis. So I cannot take the chance to have anyone impaired running that crane, or working 40 feet in the air.” …For 48 of the 50 years her company has been around, drug abuse had never been an issue, she told Smerconish.”It hasn’t been until the last two years that we needed to have a policy, a corporate policy in place, that protects us from employees coming into work impaired,” she said. …there are almost 12,000 open skilled labor jobs in Mahoning County.”There are good-paying jobs and the opportunity for people in our area. We just can’t find people to show up who can pass a drug test,” she said.

This is not good news for the country. And I’ve personally spoken to several employers in other parts of the country who have made the same point.

But I’ll simply observe that we have this problem with drugs being illegal already. Given the evidence from Portugal, I’m hopeful that decriminalization might lead to less drug use.

I also wonder whether redistribution programs enable reckless behavior. In other words, people may decide it’s okay to be stoners because they can rely on handouts to stay alive instead of staying clean and having a job.

In any event, let’s review a couple of additional stories. Here’s a column from National Review, written by Michelle Malkin, which shows continuing progress on the right.

My own interest in pediatric use of medicinal marijuana is more than academic. When my daughter, Veronica, fell ill in late spring of 2015 — unable to breathe normally, bedridden with chronic pain and fatigue — she saw of specialists. …The various drugs prescribed to my daughter weren’t working and had awful side effects. …To our surprise, the mainstream neurologist suggested Veronica try CBD. This doctor had other young patients who used CBD oil with positive results… So we did our own independent research…consulted with other medical professionals and friends — and entered a whole new world. Two physicians signed off on our daughter’s application for a medical-marijuana card. She became one of more than 360 children under 18 to join Colorado’s medical-marijuana registry in 2015. …we became pediatric pot parents. For Veronica, CBD provided more relief than all the other mainstream pharmaceutical interventions she had endured, and without the scary side effects.

To her credit, Michelle has learned that the harm of government intervention exceeds any potential benefit.

As a lifelong social conservative, my views on marijuana policy may surprise some of you. I used to be a table-pounding crusader for the government’s war on drugs. …But the war on drugs has been a ghastly quagmire — an expensive and selective form of government paternalism that has done far more harm than good. What has this trillion-dollar war wrought? Overcrowded jails teeming with nonviolent drug offenders. An expanded police state enriched by civil asset forfeiture. And marginalization of medical researchers pursuing legitimate research on marijuana’s possible therapeutic benefits for patients with a wide variety of illnesses. …let me be clear as a liberty-loving, conservative mom: Keep your hands off. Let the scientists lead. Limited government is the best medicine.

Her commentary brings to mind this snarky – but accurate – image from Reddit‘s libertarian page.

Now let’s add some economic analysis to the discussion.

Here’s some insight from the Foundation for Economic Education about how the Drug War is increasing the potency and danger of drugs.

One issue that is often mentioned but rarely explained is the increasing potency of illegal drugs, whether it be cannabis with a high percentage of THC in the US or super potent MDMA (Ecstasy) in Europe. What’s behind this phenomenon? …economic theory might have the answer. …The theory that can explain rising drug potency under prohibition was first described in 1964 by Armen Alchian and William R Allen. It states that when the price of two substitute goods is increased by a fixed per-unit amount (such as transportation or taxation) the consumer will opt for the higher priced, higher quality good because the price of the more expensive product has sunk in proportion to the price of the less expensive product. …In the particular case of illegal drugs, two different kinds of drugs–let’s say two different kinds of cannabis–act as the substitute goods. When buying illegal drugs on the black market, you do not only pay for the drug itself. On top of the monetary price comes the potential social cost you pay. This can range from a small regulatory offence, where you must pay a fine, to a felony where you can face a prison sentence. This comes with other problems: losing your job, family, social status and so on. This is the fixed per-unit cost added on top of the price of the drug itself.

All of which leads to yet another reason why prohibition is backfiring and another reason why decriminalization is the answer.

It is not worth the risk to buy a low-quality product regarding the potential price you must pay. …Drug cartels have recognised this behaviour and increased the potency of their drugs (i.e. improved the quality of their product) so you get more value for the potential fixed per-unit cost you pay. …What sounds good in economic theory becomes a massive public health problem in real life. The potency of many drugs has increased too much. As it is in most prohibitionist countries, many consumers don’t know exactly what drug they are taking and in which dosage they are consuming the drug: not to mention added substances that increase quantity. …If drugs were decriminalized, customers would have knowledge about the contents of their MDMA, their cocaine, their cannabis. Drugs that are too potent could easily be avoided. Legalized drugs would include packaging with the specific content. Sales in specialized stores would allow customers to receive medical help if they show signs of problematic consumption, without fear of being imprisoned over it.

And since we’ve veered into some economic analysis, one of the reasons I favor legalization is that I don’t want law enforcement resources being misallocated.

Which is why this column resonates with me.

Police in Ohio are blaming a lack of resources for the fact that unsolved homicide cases greatly outnumber the cases that are solved, yet they seem to have the resources to arrest thousands of suspected cannabis users. …in the state of Ohio…an average of over 20,000 people are arrested on charges of cannabis possession each year. …despite the fact that they seem to have plenty of resources when it comes to arresting and detaining nonviolent offenders, police in Ohio are blaming a lack of resources for the fact that the number of homicide cases they solve continues to decline. …How did police in the United States go from solving over 90 percent of homicides in the 1960s to around 60 percent today, with cities like Columbus solving as little as 30 percent of homicides? It was not a change in resources—it was the introduction of the Drug War. …“Around the country, police make more arrests for drug possession than for any other crime,” an ACLU and Human Rights Watch report found last year. “More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year.” In fact, police make more arrests for marijuana possession alone than for all violent crimes combined. …As states like Ohio find that the number of unsolved homicide cases greatly outnumber the cases that are solved, it makes you wonder—what more could they accomplish if they were able to use their resources to track down violent murder suspects, instead of wasting them on nonviolent individuals who are found in possession of a plant?

Let’s close with some wisdom from Milton Friedman (h/t: Reddit).

As was so often the case, Friedman was right. If you look at the real-world consequences of the War on Drugs, the net effect of prohibition has been to enrich some very bad people.

P.S. It’s an open question whether the War on Drugs has been more damaging or less damaging than the War on Poverty. I guess the moral of the story is that there are a lot of “friendly fire” casualties when politicians declare war.

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What’s the Best Reason to Support Tax Havens, Protecting Human Rights or Restraining Greedy Politicians?

The late Mancur Olsen was a very accomplished academic economist who described the unfortunate tendency of vote-seeking governments to behave like “stationary bandits,” seeking to extract the maximum amount of money from taxpayers.

I’m not nearly as sophisticated, so I simply refer to this process as “goldfish government.”

Tax competition is a way of discouraging this self-destructive behavior. Politicians are less likely to over-tax and over-spend if they know that jobs and investment can migrate from high-tax nations to low-tax jurisdictions (borders can be a hassle, but they are beneficial since they presumably represent a limit on the reach of a government’s power).

This is why I’m a big fan of so-called tax havens.

I want politicians to be afraid that the geese with the golden eggs may fly away. This is one of the reasons why “offshore” nations play a very valuable role in the global economy.

But it’s important to realize that there’s also a moral argument for tax havens.

Ask yourself whether you would want the government to have easy access to your nest egg (whether it’s a lot or a little) if you lived in Russia? Or Venezuela? Or China? Or Zimbabwe?

Ask yourself whether you trust the bureaucracy to protect the privacy of your personal financial information if you lived in a country with corruption problems like Mexico? Or India? Or South Africa?

Here’s a story from France24 that underscores my point.

Turkish President Recep Tayyip Erdogan declared Sunday that businessmen who move assets abroad are committing “treason”, adding that his government should put an end to the practice. “I am aware that some businessmen are attempting to place their assets overseas. I call on the government not to authorise any such moves, because these are acts of treason,” Erdogan said in televised comments to party members in the eastern town on Mus.

Allow me to translate. What Erdogan is saying is “I don’t want escape options for potential victims of expropriation.” For all intents and purposes, he’s basically whining that he can’t steal money that is held offshore.

Which, of course, is why offshore finance is so important.

Professor Tyler Cowen elaborates in a Bloomberg column.

I’d like to speak up for offshore banking as a significant protection against tyranny and unjust autocracy. It’s not just that many offshore financial institutions, such as hedge funds registered in the Cayman Islands, are entirely legal, but also that the practice of hiding wealth overseas has its upside. …offshore…accounts make it harder for autocratic governments to confiscate resources from their citizens. That in turn limits the potential for tyranny.

Tyler looks at some of the research and unsurprisingly finds that there’s a lot of capital flight from unstable regimes.

A recent study shows which countries are most likely to use offshore banking, as measured by a percentage of their gross domestic product. …The top five countries on this list, measured as a percentage of GDP, are United Arab Emirates, Venezuela, Saudi Arabia, Russia and Argentina, based on estimates from 2007. In all of those cases the risk of arbitrary political confiscations of wealth is relatively high. …When I consider that list of countries, I don’t think confidential offshore banking is such a bad thing. …consider some of the countries that are not major players in the offshore wealth sweepstakes. China and Iran, for instance, have quite low percentages of their GDPs held in offshore accounts, in part because they haven’t been well integrated into global capital markets. …Are we so sure it would be bad for more Chinese and Iranian wealth to find its way into offshore banks? The upshot would be additional limits on the power of the central leaders to confiscate wealth and to keep political opposition in line.

So what’s the bottom line?

Simple. People need ways of protecting themselves from greedy government.

From the vantage point of Western liberalism, individuals should be free from arbitrary confiscations of their wealth, connected to threats against their life and liberty, even if those individuals didn’t earn all of that wealth justly or honestly. There is even a “takings clause” built into the U.S. Constitution. On top of these moral issues, such confiscations may scare off foreign investment and slow progress toward the rule of law.

By the way, the moral argument shouldn’t be limited to nations with overtly venal governments that engage in wealth expropriation. What about the rights of people in nations – such as Argentina and Greece – where  governments wreck economies because of blind incompetence? Shouldn’t they have the ability to protect themselves from wealth destruction?

I actually raised some of these arguments almost 10 years ago in this video from the Center for Freedom and Prosperity.

P.S. There’s lots of evidence that politicians raise tax rates when tax competition is weakened.

P.P.S. Which is why I’m very happy that Rand Paul is leading the fight against a scheme for a global tax cartel.

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Right, Left, Facts, and Values

Since my job is to proselytize on behalf of economic liberty, I’m always trying to figure out what motivates people. To be blunt, I’ll hopefully be more effective if I understand how they decide what policies to support. That’s a challenge when dealing with my friends on the left since some of them seem to be motivated by envy.

Unsurprisingly, there are people on the other side who also contemplate how to convert their opponents.

Harvard Professor Maximilian Kasy wrote a column for the Washington Post that advises folks on the left how they can be more effective when arguing with folks on the right. He starts with an assertion that conservatives are basically impervious to facts.

Worries about…our “post-factual era” impeding political debate in our society have become commonplace. Liberals…are often astonished at the seeming indifference of their opponents toward facts and toward the likely consequences of political decisions. …A common, though apparently ineffective, response to this frustration is to double down by discussing more facts.

This is a remarkable assertion. I’m a libertarian rather than a conservative, so I don’t feel personally insulted. That being said, conservatives generally are my allies on economic issues and I’ve never found them to be oblivious or indifferent to facts (I’m speaking about policy wonks, not politicians, who often are untethered from reality regardless of their ideology).

So let’s see how Mr. Kasy justifies his claim about conservatives. Here’s more of what he wrote.

…maybe the issue is not conservatives’ ignorance of facts, but rather a fundamental difference of values. Taking this point of view seems essential for effective communication across the political divide.

I basically agree that differences in values play a big role, so I’m sort of okay with that part of his analysis (I’ll return to this issue in the conclusion).

But my alarm bells started ringing at this next passage.

Much normative (or value-based) reasoning by liberals (and mainstream economists) is about the consequences of political actions for the welfare of individuals. Statements about the desirability of policies are based on trading off the consequences for different individuals. If good outcomes result from a policy without many negative consequences, then the policy is a good one.

Huh? Since when are liberals (and he’s talking about today’s statists, not the classical liberals of yesteryear) and mainstream economists on the same side?

Though I admit it’s hard to argue about the rule he proposes for policy. He’s basically saying that a change is desirable if “good outcomes” are more prevalent than “negative consequences.”

That’s probably too utilitarian for me, but I suspect most people might agree with that approach.

But he makes a giant and unsubstantiated leap by then claiming it would be wrong to repeal a supposedly good policy like Obamacare.

When Sen. Kamala D. Harris (D-Calif.) remarked on the Affordable Care Act this spring, for example, she said, “…we’re talking about something that would deny those in need with the relief and the help that they need, that they want and deserve…” In other words, if a policy will harm the welfare of individuals in need, it’s a bad policy.

Huh? What happened to his utilitarian formula about “good outcomes” vs “negative consequences”? Sure, some additional people have health insurance coverage, but is he blind to rising premiums, job losses, higher taxes, loss of plans and loss of doctors, dumping people into Medicaid, and other downsides of Obamacare?

If facts are important, shouldn’t he be weighing the costs and benefits?

In other words, Kasy must be in some sort of cocoon if he thinks the Obamacare fight is between Republicans motivated only by values and Democrats motivated by helping individuals.

His analysis of the death tax is similarly off base.

…consider the example of bequest taxes, labeled “estate taxes” by liberals and “death taxes” by conservatives. A liberal might invoke various empirical facts…our empiricist liberal might conclude that bequest taxes are an effective policy instrument, providing public revenue and promoting equality of opportunity. The conservative addressee of these facts might now just shrug her shoulders and say “no thanks.” Our conservative likely believes that everyone has the right to keep the fruits of her labor, and free contracts of exchange between any two parties are nobody else’s business. …Taxing bequests thus means punishing moral behavior, the exact opposite of what the government should do.

Once again, Kasy is deluding himself. Conservatives do think the death tax is morally wrong, so he’s right about that, but they also have very compelling arguments about the levy’s negative economic impact. Simply stated, the death tax exacerbates the tax code’s bias against capital formation and results in all sorts of economically inefficient tax avoidance behavior (with Bill and Hillary Clinton being classic examples).

His column concludes with some suggestions of how folks on the left can be more persuasive. He basically says they should appeal to conservatives with values-based arguments such as these.

We should evaluate the policy based on its effect on individuals, and assign a higher weight to the majority of less wealthy people. …nobody can be said to consume only the products of their own labor. We rely on social institutions including markets and governments to provide us with all the goods we consume, and absent a theory of just prices (which present day conservatives don’t have) there is no sense in which we are entitled to specific terms of exchange.

I’m not the ideal person to speak for conservatives, but I don’t think those arguments will win many converts.

Regarding his first suggestion, Kasy’s problem is that he apparently assumes that people on the right don’t care about the poor. Maybe I’m reading between the lines, but he seems to  think conservatives will automatically favor lots of redistribution if he can convince that it’s good to help the poor.

I think it’s much more accurate to assume that plenty of conservatives have thought about how to help the poor, but they’ve concluded that the welfare state is injurious and that it is more effective to focus on policies such as school choice, economic growth, and occupational licensing.

Indeed, I hope most conservatives would agree with my Bleeding Heart Rule.

And his second idea is even stranger because economic conservatives have a theory of just prices. It’s whatever emerges from competitive markets.

Let’s close with a column by Alberto Mingardi of the Bruno Leoni Institute in Italy. Published by the Foundation for Economic Education, the piece is relevant to today’s topic since it looks at why an unfortunate number of intellectuals are opposed to economic liberty.

…some have replied that the main reason is resentment (intellectuals expect more recognition from the market society than they actually get); some have pointed out that self-interest drives the phenomenon (intellectuals preach government controls and regulation because they’ll be the controllers and regulators); some have taken the charitable view that intellectuals do not understand what the market really is about (as they cherish “projects” and the market is instead an unplanned order).

Alberto then shares Milton Friedman’s answer.

I think a major reason why intellectuals tend to move towards collectivism is that the collectivist answer is a simple one. If there’s something wrong pass a law and do something about it. If there’s something wrong it’s because of some no-good bum, some devil, evil and wicked – that’s a very simple story to tell. You don’t have to be very smart to write it and you don’t have to be very smart to accept it.

My two cents, based on plenty of conversations with well-meaning folks on the left, is that there’s actually a lot of agreement of some big-picture values. We all want less poverty and more prosperity. In other words, I think most people have similar good intentions (I’m obviously excluding communists, Nazis, and others who believe in totalitarianism).

But similar good intentions doesn’t translate into agreement on policy because of secondary values. Especially differences in whether we view “equality of outcomes” as an appropriate goal for government. Some on the left openly are willing to sacrifice growth to achieve more equality (Margaret Thatcher even claimed that they would be willing to hurt the poor if the rich suffered even more). Folks on the right, by contrast, are much more focused on helping the poor with growth rather than redistribution.

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