The Volokh Conspiracy

In this recent Washington Post op ed on how the GOP can increase its appeal to Hispanic voters, former Florida Governor Jeb Bush says the following about immigration:

The American immigrant experience is the most aspirational story ever told. Immigrants left all that was familiar to them to come here and make a better life for their families. That they believe this is possible only in America is the best expression of American exceptionalism I know. And on this score, Republicans have a winning message and record as the party of the entrepreneur….

[W]e need to think of immigration reform as an economic issue, not just a border security issue…..

Republicans should reengage on this issue and reframe it. Start by recognizing that new Americans strengthen our economy. We need more people to come to this country, ready to work and to contribute their creativity to our economy. U.S. immigration policies should reflect that principle. Just as Republicans believe in free trade of goods, we should support the freer flow of human talent.

These points are not new. That immigration “strengthen[s] our economy” is the longstanding consensus view of most economists. Others have previously noted that there is a deep contradiction between anti-immigration conservatives’ support for free markets and their opposition to the free flow of labor across national borders. Ronald Reagan recognized this many years ago, and supported freer immigration throughout most of his political career, even touting an America whose “doors were open to anyone with the will and the heart to get here” in his 1989 farewell address to the nation. The importance of Bush’s op ed is not that it says anything new, but that the person saying it is a prominent Republican whom many conservatives see as a preferable alternative to the party’s current presidential candidates.

Unfortunately, Bush did not address what is perhaps the most important objection many conservatives have to increased immigration: the fear that it will lead to the growth of the welfare state. I covered that issue here. Contrary to conservative conventional wisdom, increased immigration not only does not lead to a bigger welfare state, but may well boost efforts to cut it back.

This year’s election was supposed to be something new and different. However, Rick Santorum, the big winner in this year’s Iowa GOP primary is remarkably similar to the big GOP Iowa winner of 2008: Mike Huckabee. Like Huckabee, Santorum is a hard-core social conservative whose big government proclivities extend far beyond social issues. I covered Huckabee’s record in this December 2007 post. Santorum is remarkably similar, perhaps even worse. For the details on Santorum, see this post by David Boaz [HT: co-blogger David Bernstein], and Jonathan Rauch’s thorough review of Santorum’s 2005 book laying out his political philosophy. As Rauch noted, Santorum rejects what he once dismissed as “this whole idea of personal autonomy,” not to mention “the idea that people should be left alone.” He doesn’t just think that freedom should be heavily regulated; he’s against “the whole idea” on principle.

Santorum does have chutzpah. Despite his record, he just gave a victory speech where he emphasized that the main issue in this campaign is “freedom.” If that’s really what it’s about, Santorum’s campaign will end up the same way as Huckabee’s did. I’m no great fan of any of the other remaining GOP candidates. But none of them is as much a big government conservative as Santorum is.

UPDATE: There is one important difference between Huckabee’s success in 2008 and Santorum’s today. In 2008, Huckabee’s win seriously hurt Mitt Romney by preventing him from emerging as the main “conservative” alternative to John McCain until it was too late to stop McCain from winning the nomination. This year, Santorum’s success actually helps Romney by ensuring that his most prominent rival in the next few states will be a candidate who many Republicans see as unserious and unelectable against Obama.

UPDATE #2: Michael Tanner has more on Santorum’s big government version of conservatism here.

This Wednesday, I will be giving a talk at NYU Law School on the Tea Party Movement and Popular Constitutionalism. The talk will be at 11 AM in Vanderbilt Hall, Room 202. NYU Professor Roderick Hills will comment on my presentation, and there will also be questions from the audience until around 12:30 or so.

I previously wrote about the Tea Party as a popular constitutionalist movement in this article. In my talk, I will explain why the Tea Party qualifies a popular constitutionalist movement despite the fact that that concept has previously been used mostly to describe movements on the political left and assess its main strengths and weaknesses. Like previous popular constitutionalist movements, the Tea Party has not avoided such problems as the impact of widespread political ignorance.

I will also suggest why its impact is likely to be a net positive on balance – including from the standpoint of the mostly left of center advocates of popular constitutionalism, a point I first developed in the article linked above. Given that it was inevitable that the combination of Obama’s policies and a deep recession would produce a right-wing populist reaction, it is far better that it has produced a movement primarily focused on limiting federal power and spending than one focused on racial resentment or xenophobia, as was often the case in previous American history and in many European countries today. In addition, the movement’s emphasis on limiting federal power could potentially increase democratic accountability in government – a central objective of many advocates of popular constitutionalism.

UPDATE: In this 2010 post, I discussed claims that the Tea Party’s real agenda is racism.

This interesting Slate article on Match.com notes that Match’s statistical data base finds that conservatives are more willing to date liberals on the site than vice versa:

Indeed, says [Match.com's Amarnath] Thombre, “the politics one is quite interesting. Conservatives are far more open to reaching out to someone with a different point of view than a liberal is.” That is, when it comes to looking for love, conservatives are more open-minded than liberals.

I don’t rule out the possibility that conservatives are genuinely more ideologically tolerant in their dating lives than liberals. But it’s also possible that the conservatives on Match are unrepresentative. Some of the most hard-core social conservatives might either reject online dating on principle or utilize sites like E-Harmony, which are geared to their specific needs.

Back in 2007, I wrote a post arguing that people tend to overestimate the dangers of cross-ideological dating. And in my single days, I practiced what I preached. About a year after I wrote that post, however, I met my future wife, who is not only a fellow libertarian, but is libertarian to almost the exact same degree as I am. We have nearly identical scores on Bryan Caplan’s Libertarian Purity Test. Regardless, I think what I wrote back in 2007 is still valid. Single people who take a rigid stance against cross-ideological dating are probably doing themselves a disservice.

In a recent interview, Paul Krugman argued that liberals generally understand conservative arguments better than vice versa:

A liberal can talk coherently about what the conservative view is because people like me actually do listen. We don’t think it’s right, but we pay enough attention to see what the other person is trying to get at. The reverse is not true. You try to get someone who is fiercely anti-Keynesian to even explain what a Keynesian economic argument is, they can’t do it. They can’t get it remotely right. Or if you ask a conservative, “What do liberals want?” You get this bizarre stuff – for example, that liberals want everybody to ride trains, because it makes people more susceptible to collectivism. You just have to look at the realities of the way each side talks and what they know. One side of the picture is open-minded and sceptical. We have views that are different, but they’re arrived at through paying attention. The other side has dogmatic views.

Bryan Caplan responds:

In a Turing Test, a computer tries to pass for human….

According to Krugman, liberals have the ability to simulate conservatives, but conservatives lack the ability to simulate liberals….

It’s not a perfect criterion, of course, especially for highly idiosyncratic views. But the ability to pass ideological Turing tests – to state opposing views as clearly and persuasively as their proponents – is a genuine symptom of objectivity and wisdom….

There are important caveats….. we should compare liberal intellectuals to non-liberal intellectuals, and liberal entertainers to non-liberal entertainers, not say Krugman to Beck….

If we limit our sample to Ph.D.s from top-10 social science programs, I don’t see how Krugman could be right. You can’t get a Ph.D. from Princeton econ without acquiring basic familiarity with market failure arguments and Keynesian macro. At least you couldn’t when I was a student there in the 90s. In contrast, it’s easy to get a Ph.D. from Princeton econ without even learning the key differences between conservatism and libertarianism, much less their main arguments… And frankly, it shows….

Indeed, I’ll happily bet that any libertarian with a Ph.D. from a top-10 social science program can fool more voters than Krugman. We learn his worldview as part of the curriculum. He learns ours in his spare time – if he chooses to spare it.

I tend to agree with Bryan. On average, non-liberal scholars and intellectuals know more about liberalism than their liberal counterparts know about libertarianism and conservatism. That’s because the non-liberals are usually surrounded by people with liberal views, and those views are extensively covered in the curriculum of nearly all top colleges and graduate schools. By contrast, it’s easier for liberal intellectuals to ignore non-liberal arguments or at least devote little time and effort to understanding them.

Outside the intellectual world, both liberals and non-liberals often have little knowledge of their opponents’ arguments. But that’s just part of the more general problem of widespread political ignorance. Indeed, a close-minded attitude to opposing views is a general facet of the way most people approach politics. It’s not a problem unique to either liberals or their adversaries.

But, as Bryan says, the proof is in the pudding. In my next post, I will take the ideological Turing test myself, and readers can judge how I do.

My article, “The Tea Party Movement and Popular Constitutionalism,” is now available on SSRN. It is part of a recent Northwestern University Law Review Colloquy symposium on the Constitutional Politics of the Tea Party Movement. Here is the abstract:

The rise of the Tea Party movement follows a period during which many scholars have focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation. Most of the previous scholarship on popular constitutionalism analyzed movements identified with the political left. Although the Tea Party movement is primarily composed of conservatives and libertarians, it has much in common with previous popular constitutional movements.

Part I of this Essay describes some of these similarities, focusing on the ways in which popular constitutional movements have arisen in response to social or economic crises, or major policy initiatives instituted by their opponents. Part II explains how the Tea Party movement shares key strengths and weaknesses of other popular movements. Public opinion on constitutional and policy issues is often influenced by widespread political ignorance and irrationality. The Tea Party is no exception to these trends. The evidence suggests, however, that Tea Party supporters are no more likely to be ignorant than public opinion generally, or their opponents on the political left.

Part III explains two possible advantages of one unusual feature of the Tea Party: the fact that it is the first popular constitutionalist movement in many years whose main focus is the need to limit federal power. The enormous size and scope of modern government undercuts meaningful democratic control over government policy because “rationally ignorant” voters cannot keep track of more than a small fraction of government activity. Strengthening democratic accountability is one of the main objectives of advocates of popular constitutionalism. The imposition of stricter limits on government power might make that goal easier to achieve. The Tea Party’s focus on limiting government also makes it less likely that we will see the emergence of a right-wing populist movement that is primarily focused on intolerance and xenophobia, of the kind that often arose during previous economic downturns.

A British panel composed of leading members of Parliament and former public officials has concluded that the War on Drugs is a failure and should be abandoned. The panel includes former heads of MI5 (the British domestic intelligence agency) and the Crown Prosecution Service, as well as leading Conservatives, including prominent former members of Margaret Thatcher’s government. Here’s a report by the conservative-leaning Daily Telegraph:

The “war on drugs” has failed and should be abandoned in favour of evidence-based policies that treat addiction as a health problem, according to prominent public figures including former heads of MI5 and the Crown Prosecution Service.

Leading peers – including prominent Tories – say that despite governments worldwide drawing up tough laws against dealers and users over the past 50 years, illegal drugs have become more accessible.

Vast amounts of money have been wasted on unsuccessful crackdowns, while criminals have made fortunes importing drugs into this country.

The increasing use of the most harmful drugs such as heroin has also led to “enormous health problems”, according to the group….

It could lead to calls for the British government to decriminalise drugs, or at least for the police and Crown Prosecution Service not to jail people for possession of small amounts of banned substances.

Their intervention could receive a sympathetic audience in Whitehall, where ministers and civil servants are trying to cut the numbers and cost of the prison population….

The chairman of the new group, Baroness Meacher…. told The Daily Telegraph: “Criminalising drug users has been an expensive catastrophe for individuals and communities….”

Lord Lawson, who was Chancellor of the Exchequer between 1983 and 1989 [under Margaret Thatcher], said: “I have no doubt that the present policy is a disaster….”

In the United States, the opposition of political conservatives is still perhaps the most important obstacle to efforts to cut back on the War on Drugs. Hopefully, this reconsideration by some of their British counterparts will lead more American conservatives follow the example of William F. Buckley and Pat Robertson, both of whom gradually came to realize that the War on Drugs causes enormous harm, and is bad for family values.

Following up my post on what might happen if liberals and libertarians agreed on empirical issues, this post addresses the question of what might happen if libertarians came to agree on empirical issues with conservatives.

Unfortunately, answering this question is a lot tougher than the previous one about liberals. Libertarianism and liberalism are fairly coherent ideological movements. By contrast, “conservatism” is a hodgepodge of different ideologies united mainly by their opposition to the political left. George Will, Pat Buchanan, Bill Kristol, and Mike Huckabee are all considered conservatives. But they differ greatly from each other on both empirical issues and values. So too with neoconservatives, religious right social conservatives, and Burkean conservatives. Moreover, some conservatives are quite close to libertarians on most issues because they have a assimilated a great many libertarian ideas.

To make the question more tractable, I’m going to focus primarily on social conservatives who generally support free market policies on “economic” issues, while also supporting a high degree of “social” regulation. I recognize that this is far from the only type of conservatism out there. But it’s probably the most common one in the United States, especially among conservative intellectuals.

As with some libertarians and liberals, some social conservatives are purely utilitarian in their values. They support conservative policies because they think that will maximize human happiness. If a utilitarian libertarian and a utilitarian conservative could agree on empirical issues, their policy differences would disappear. They would then agree on both values and the best way to implement them. But pure utilitarianism is even less common among conservatives than among liberals and libertarians, possibly because many social conservatives are strongly religious and the major religions all incorporate many non-utilitarian values. Here are some issues where non-utilitarian conservatives will continue to disagree with libertarians even if the two groups could come to a consensus on empirics:

I. Nationalism.

Many, though not all, conservatives are nationalistic. By contrast, most libertarians are hostile to nationalism, usually for the kinds of reasons I outlined here. Some of these differences are traceable to disagreements over the empirical effects of nationalism. But not all of them. At the level of fundamental values, many nationalistic conservatives are willing to impose severe costs on foreigners for the purpose of securing significantly smaller benefits for members of their own polity.

This has important implications for issues like trade and immigration. Let’s assume that greatly expanded immigration creates huge net benefits for immigrants, but inflicts much smaller net costs on native-born Americans. Most libertarians would accept that tradeoff. After all, the freedom and utility of immigrants is, in their view, no less valuable than that of natives. And the majority of libertarians see immigration restrictions as infringements on liberty, not just utilitarian harms.

Not so with nationalistic conservatives. For example, conservative Harvard economist George Borjas wants to greatly reduce immigration in order to prevent what he estimates to be fairly modest wage reductions for low-skilled Americans, even though he realizes the enormous harm that would inflict on potential migrants. In a recent book, conservative scholar Edgar Browning explicitly states that immigration policy should be determined entirely without reference to the welfare of the immigrants themselves (which he views as an uncontroversial premise). Views like Borjas’ and Browning’s are quite common among nationalistic conservatives, though admittedly not universal.

What is true for immigration also holds for trade. The only difference is that fewer conservatives believe that free trade inflicts net harms on Americans than believe the same of immigration. Those who do believe that trade inflicts net harm on Americans tend to support protectionism entirely without reference to the impact on foreigners (Pat Buchanan is a good example).

Agreement on empirical issues surrounding immigration, trade and other such issues would eliminate libertarian-conservative differences only if conservatives came to believe that fully laissez-faire policies in these fields create net benefits for current American citizens.

II. Social Regulation.

Much of the libertarian-conservative disagreement over social and “morals” regulation comes down to disagreement over the empirical effects of such regulations. Elsewhere, I have criticized conservatives such as Robert Bork for ignoring the ways in which their empirical critiques of economic regulation apply to social regulation as well.

But empirical disagreements are not the only source of the conflict. Many conservatives believe that some forms of “immoral” behavior are intrinsically wrong even if legalizing them would increase happiness on net. For example, some argue that it is intrinsically wrong to gamble, take mind-altering drugs, engage in “unnatural” sex, or consume pornography. Conservatives who believe this might still be willing to support legalization if the harms of prohibition are great enough. That accounts for William F. Buckley’s and now Pat Robertson’s opposition to the War on Drugs. But the threshold level of harm needed to persuade social conservatives to support legalization is a lot higher than for libertarians.

The flip side is that many libertarians might still oppose social regulation even in cases where they agree that it creates net utilitarian benefits. They, after all, value social freedom for its own sake, not just because they think it increases happiness. Most libertarians might be willing to support regulation if they thought the utilitarian benefits were extremely large. If banning pornography were the only way to prevent a massive epidemic of rape, I would be in favor of it. But the threshold level of benefit would, for most libertarians, have to be pretty high. Certainly much higher than for most social conservatives.

III. Retribution.

Conservatives generally favor harsher punishments for criminals than libertarians do. This difference reflects various empirical disagreements between the two groups. But there’s also a difference in values. Conservatives are, on average, much more committed to the value of retribution than libertarians are. That’s a key reason why many libertarians, but almost no conservatives, favor moving the criminal justice system towards a model based on restitution rather than punishment (see this article by co-blogger Randy Barnett). Personally, I’m much more of a retributivist than most of my fellow libertarians. But my view is definitely in the minority among libertarian intellectuals.

I have not mentioned war and foreign policy in this post, largely because the issue deeply divides libertarians among themselves. I think that the internal division among libertarians (people who mostly share the same values) suggests that the divide between dovish libertarians and hawkish conservatives on these issues is also largely about empirics rather than values. However, it’s possible that the conservative commitment to nationalism also plays a role here.

Overall, a social conservative who came to agree with libertarians on empirical issues but not values would be more supportive of free trade and immigration and more skeptical of social regulation. But she might still differ with libertarians on these issues because of the conservative commitment to nationalism and nonutilitarian justifications for social regulation. Full convergence with libertarian policy positions would only occur if the conservative came to believe that social regulation inflicts very great harm and that free migration is a net benefit to Americans. Even then, we would still have the disagreement over retribution.

A libertarian who came to agree with social conservatives on empirical issues would endorse higher levels of social regulation and lower levels of immigration. But we would only see full convergence if the libertarian came to believe that the harm caused by laissez-faire was great enough to outweigh the nonutilitarian value he assigns to freedom.

UPDATE: For readers who may be interested, here’s a post I wrote about F.A. Hayek’s classic libertarian critique of conservatism that focuses on some of the same issues as this one, though it does not try to distinguish empirical issues from differences in values.

The New York Times recently ran an interesting article on the Secular Right blog, which I commented on here back when it was first established:

As a child, Razib Khan spent several weeks studying in a Bangladeshi madrasa. Heather Mac Donald once studied literary deconstructionism and clerked for a left-wing judge. In neither case did the education take. They are atheist conservatives — Mr. Khan an apostate to his family’s Islamic faith, Ms. Mac Donald to her left-wing education.

They are part of a small faction on the right: conservatives with no use for religion. Since 2008, they have been contributors to the blog Secular Right, where they argue that conservative values like small government, self-reliance and liberty can be defended without recourse to invisible deities or the religions that exalt them….

Ramesh Ponnuru, a senior editor at National Review, noted that conservatives throughout history have esteemed “mediating institutions” like schools and churches, sources of authority other than the state. “If that’s the way you’re thinking, concern for the strength of organized religion follows pretty naturally,” Mr. Ponnuru said.

I do have a small bone to pick with the article and possibly with Ramesh Ponnuru. There is a difference between being an atheist and having “no use for religion.” One can deny the existence of God, while simultaneously recognizing that religious institutions sometimes serve useful purposes. Being an atheist doesn’t prevent me from seeing that the Catholic Church runs an excellent system of private schools, for example. It also doesn’t prevent anyone from recognizing the value of “mediating institutions,” including religious ones.

At the same time, it is also the case that organized religion has often contributed to grave injustices, providing support for slavery, gender inequality, and occasionally (in the case of “Liberation Theology”) even communism. Whether a mostly secular society will be better off than a mostly religious one depends on the values advocated by the religious and secular ideologies in question. Atheism doesn’t require anyone to believe that every conceivable secular belief system has better social consequences than every conceivable religious one. One can be an atheist while still believing that Catholicism, Judaism, or Mormonism is less harmful than Marxism, for example.

In a comment on my last post on Russian Jewish immigration, University of North Carolina law professor and blogger Eric Muller writes:

Again and again I find myself wondering to what extent it’s true that Jewish refugees/emigres from Soviet totalitarianism (and their offspring) tend to have a libertarian and/or conservative political orientation. Does anyone know whether this has been studied? Are Eugene, Sasha, and Ilya typical in this regard, or atypical?

There is actually survey data on this, which reveals that some 75% of Russian Jewish immigrants vote Republican, as compared to only about 20% of native-born American Jews. The same pattern is evident among other refugees from communism, such as Cubans and Vietnamese. The reasons are not hard to figure out. The experience of living under communism makes these refugee groups hostile to anything that smacks of socialism and also to those political parties and ideologies that they perceive (with some justice) as having been soft on communism during the latter part of the Cold War. This in turn leads them to be more “right-wing” than they might have been otherwise. As I discuss in my immigration memoir, I probably would have become a liberal or leftist had I been born in the US and had the same interests and personality.

The overwhelming majority of Russian Jews in legal and social science academia tend to be conservative or libertarian (more often the latter), which is in sharp contrast to the generally left-wing orientation of the vast majority of other US academics. My impression is that rank and file Russian Jewish immigrants also tend to be on the right, more libertarian-leaning than conservative (e.g. – most are pro-choice and favor fairly strong separation of church and state). Obviously, most are not nearly as self-conscious or consistent in their libertarian leanings as academics such as Sasha and myself. And the term “libertarian” is probably not familiar to most of them, just as it isn’t to the majority of the 10-15% of other Americans who hold generally libertarian views.

In yesterday’s Washington Post, Bracken Hendricks of the Center for American Progress laments widespread conservative opposition to “government action on climate change.”  Responding to the threat posed by global warming should be a conservative cause, Hendricks argues, because a warmer world will breed bigger government.

Many conservatives say they oppose clean-energy policies because they want to keep government off our backs. But they have it exactly backward. Doing nothing will set our country on a course toward narrower choices for businesses and individuals, along with an expanded role for government. When catastrophe strikes – and yes, the science is quite solid that it will – it will be the feds who are left conducting triage.

My economic views are progressive, and I think government has an important role in tackling big problems. But I admire many cherished conservative values, from personal responsibility to thrift to accountability, and I worry that conservatives’ lock-step posture on climate change is seriously out of step with their professed priorities. A strong defense of our national interests, rigorous cost-benefit analysis, fiscal discipline and the ability to avoid unnecessary intrusions into personal liberty will all be seriously compromised in a world marked by climate change.

Failure to take decisive action against climate change is unconservative, Hendricks argues, because global warming presents such grave risks.

far from being conservative, the Republican stance on global warming shows a stunning appetite for risk. When faced with uncertainty and the possibility of costly outcomes, smart businessmen buy insurance, reduce their downside exposure and protect their assets.

Dan Farber finds the op-ed compelling.  I do not.   Unlike some conservatives, I believe global warming is a serious problem that merits a serious policy response (as I’ve blogged about at length), but I don’t find Hendricks’ arguments particularly persuasive.

Conservative action to proposed climate policies is driven by opposition to extensive government interference in the economy.  Cap and trade is a conservative bogeyman because it requires far-reaching regulatory authority over private economic activity and the imposition of a de facto tax on energy use.  Opposition to cap-and-trade is not the same as opposition to all climate measures.  As Senator Mitch McConnell noted in a recent interview, “nobody thinks it’s a bad idea to reduce carbon emissions.” But many do think it is a bad idea to allow EPA to regulate over one million sources of carbon emissions or adopt an expansive “cap-and-tax” scheme that will places tens of millions more taxpayer dollars under government control.

Furthermore, while “smart businessmen buy insurance,” they also pay attention to the relationship between their premiums and the expected value of their coverage.  Even when faced with potentially catastrophic risks, not all insurance policies are a good deal.  If a minimal risk reduction is tremendously expensive, the “smart businessman” will find another way to manage the risk, “reduce their downside exposure and protect their assets.”  Sometimes this means investing in prevention or purchasing insurance.  In other cases it means protecting assets by making them more resilient against potential threats or investing in contingencies.  That mandating dramatic near-term emission reductions is a more sensible or “conservative” risk management strategy than investing in technological innovation, exploring geoengineering, or preparing for adaptation is something to be shown, not blithely asserted.

Hendricks’ effort to scare conservatives into supporting big government now to avoid bigger government later rings particularly hollow.  Why is it that everything requires bigger government?  Climate change is a threat?  Extend government tentacles throughout the economy.  Climate change is already happening?  Ditto.  Adaptation is necessary?  More of the same.  Were climate change not happening at all, I suspect Hendricks would still endorse a substantial expansion in government power.

Admittedly some on the right are equally reflexive, assert government is never the answer, and go to lengths to deny climate change poses any threat whatsoever.  Yet there are also plenty of conservatives and libertarians who are deeply skeptical of government intervention, but are nonetheless  willing to believe global warming might be a problem.  It’s perfectly reasonable to believe that reducing greenhouse gas emissions does not require the enactment of monstrous, pork-laden, regulatory statutes like Waxman-Markey.  And it’s not at all clear that climate adaptation necessitates a massive expansion of government power.  In many areas, such as water, climate adaptation requires more reliance on markets, not less.  Climatopolis author Matthew Kahn also blogged here about how successful climate adaptation will be driven by market forces, not government planners.

I share Hendricks’ and Farber’s frustration that more conservatives don’t take climate change or other environmental concerns seriously.  But I also believe some of this is the environmentalist movement’s own doing.  If everything calls for the same big government solution, why does it matter what the problem is?  If progressives really believe climate change is an impending catastrophe — not just a problem worth addressing but a potential apocalypse — and seek to enlist conservatives to their cause, they should pursue consensus efforts to reduce greenhouse gas emissions, including efforts to stimulate technological innovation or proposals for revenue-neutral carbon taxes (see, e.g., here, here and here).  Yet Hendricks’ colleagues at CAP excoriate any and all who deviate from the progressive climate orthodoxy or espouse anything short of dramatic government intervention throughout the economy.  Environmentalists will be more successful enlisting conservatives (and many moderates) to their cause once they become more focused on solutions, and less insistent on government control.

To me, the most disappointing of the many electoral results this Tuesday was the relatively narrow (54-46) defeat of California Proposition 19, the marijuana legalization initiative that I and and many other VCers endorsed. I’m not disappointed because this proves that law professors have little electoral clout. We knew that already. Rather, the disappointment is because Prop 19 was the best opportunity in many years to deal a serious blow to the War on Drugs. Early polls showed that it had a decent chance to win.

At the same time, it is notable that such a broad legalization measure could get 46% of the vote in the nation’s largest state despite the near-uniform opposition of the political establishment in both parties, ranging from President Obama to Governor Schwarzenegger and many others. Such a result would have been almost unthinkable a decade ago.

The CNN exit polls on Proposition 19 contain lots of interesting data. They reveal that the initiative lost in large part because of its weakness among two groups: the elderly and self-identified “conservatives.”

I. The Age Gap.

People over the age of 65 voted against Prop 19 by a 68-32 margin. Had the electorate been limited to people under the age of 50, Proposition 19 would probably have won, albeit narrowly (by about 51-49). But people over the age of 50 formed a whopping 54% of the California electorate, which reflects the much greater of propensity of the elderly to vote and participate in politics. Using the data collected here, I calculated that people age 50 and above are actually only about 37.5% of the voting-age population in the state.

The interesting question about the age gap on this issue is whether it is a cohort effect or a generational effect. In other words, do people start out favoring legalization in their twenties, but turn against it as they age (a cohort effect)? Or are more recent generations generally more favorable to drug legalization, a difference that persists as they age (a generational effect)? My tentative conclusion is that its probably more of a generational effect. This is not just a difference between the very young and the rest. Rather, each successive age group is much more pro-legalization than those older than them. Even 50-64 year olds were 12 points more favorable to Prop 19 than the over-65s. Moreover, much social science data suggests that political attitudes tend to be fairly consistent with age, solidifying for most people when they are in their twenties. Winston Churchill notwithstanding, if you were a socialist at twenty, that implies a high probability you will still be one at forty. In addition, an important recent study suggests that the elderly actually become more socially liberal as they age, not less so.

II. The War on Drugs and Conservatism.

Self-identified conservatives were even more opposed to Prop 19 than the elderly, with 73% voting against. Unlike the generation gap, legalization advocates cannot expect this problem to get better on its own. I don’t expect conservatives to quickly change their views on this issue. Adherents all political ideologies are slow to change longstanding beliefs, and tend to dismiss opposing evidence out of hand, while overvaluing any evidence that supports their preexisting views.

But I hope conservatives will at least consider the following points. First, the case against the War on Drugs and other “morals” regulations is very similar to the standard conservative critique of economic regulation, a point I made in greater detail in this article and here. Indeed, the War on Drugs is one of our biggest examples of economic regulation, since it bans the sale of a product and creates a vast illegal market that stimulates violence and organized crime. It is in fact quite similar to left-wing proposals to ban products such as cigarettes or fatty foods, both of which pose greater health risks than many currently illegal drugs do. Ironically, Proposition 19 was opposed by 67% of those voters who said in the same survey that government is currently doing “too much,” probably because of the large overlap between this group and ideological conservatives.

Second, the War on Drugs severely hampers two cherished conservative goals: winning the War on Terror and promoting family values. Even if you think that drug prohibition is on balance a worthy objective, is it really worth the price of greatly exacerbating the terrorist threat and undercutting the ability of poor African-Americans to form intact families? Few can do so so long as a very high percentage of poor black males are either in prison or cycling in and out of custody, in large part as a result of the War on Drugs.

Every ideology sometimes faces difficult tradeoffs. The War on Drugs poses several particularly important ones for conservatives. Over time, I hope that more conservatives will come to agree with William F. Buckley’s conclusion that “it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana.”

Forbes has “fact-checked” its infamous and inflammatory cover story by Dinesh D’Souza, “How Obama Thinks.”  Heather MacDonald is not impressed.

Such a “fact-checking” feint is irrelevant to this travesty of an article; you can’t “fact-check” a fever dream of paranoia and irrationality.  Sickeningly, while “How Obama Thinks” is useless as a guide to the Obama presidency, it is all too representative of the hysteria that now runs through a significant portion of the right-wing media establishment.   The article is worth analyzing at some length as an example of the lunacy that is poisoning much conservative discourse.

D’Souza argues that Obama’s policies are motivated by a hatred towards American power absorbed from his Kenyan father.  He offers exactly zero evidence for his hackneyed psychological theory.  But the most laughable weakness in D’Souza’s thesis is the fact that the policies which D’Souza presents as the “dreams of a Luo tribesman” have a decades-long American pedigree and are embraced by wide swathes of the American electorate and political class.  If support for progressive taxation, greater government regulation of health care, stimulus spending, and conservation make one the tool of the African anticolonial movement, then Paul Krugman, Robert Reich, Al Gore, Nancy Pelosi, John Kenneth Galbraith, FDR, and the Sierra Club are all Third World agents provocateurs. . . .

Even if it were the case that Obama embraces the standard liberal playbook for reasons of personal history—a position for which D’Souza has provided no evidence—so what?  If Obama were not president, millions of people would still support the policies of his presidency under a different Democratic leader, as they have been doing for decades. . . .

D’Souza’s screed is just the latest manifestation of the rebirth of the conservative hysteria that marked the Clinton era.  The fact that both Clinton and Obama’s critics became obsessed with the person rather than his policies suggests that those critics have no faith in the public’s ability to grapple with abstract issues, rather than alleged personal failings. . . .

Political hatred and fear should be summoned forth only under the most exigent of circumstances.  D’Souza has failed completely to make the case for unleashing his incendiary brand of irrationality.

NOTE: I have not opened comments on this post.  If you wish to comment on MacDonald’s post, please do so at Secular Right.

In a scathing review of the new NBC drama, Outlaw, about an ethically challenged, conservative Supreme Court justice who resigns from the bench to seek social justice, Dahlia Lithwick describes “the Supreme Court conservatives’ view of the legal system” as “the law is an airless, mechanistic set of fixed rules that privilege those who write the laws and often fail those who are weak or powerless.”  This may be the liberal court commentator’s perception of judicial conservatives view of the legal system, but I cannot think of a single conservative justice — or judge or legal thinker for that matter — who espouses such a view.

UPDATE: Some commenters have suggested that I’ve misrepresented what Lithwick wrote by pulling it out of context.  I don’t think so, but just in case (and for those too lazy to follow the link), here’s the context:

There are tiny fibers of an interesting argument here—about whether or not courts exist to protect the weakest citizens—but Outlaw’s conclusion is upside-down. Garza is so certain that the law and the courts oppress the weak, he leaves the court and goes outside the bounds of law to correct it. He is so persuaded that no judge can do “justice,” he gives up on them altogether. This is the Supreme Court conservatives’ view of the legal system: That the law is an airless, mechanistic set of fixed rules that privilege those who write the laws and often fail those who are weak or powerless. It’s a view that’s quite fashionable in some quarters, but also a view that hugely undersells both the court and Americans’ notions of justice. How liberal Hollywood presented such a deeply conservative show about an allegedly liberal hero is the real mystery of Outlaw.

Traditionally, conservative scholars and judges have advocated narrow views of constitutional “standing”: the level of “interest” litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view: constitutional rights should not be denied based on these sorts of technicalities. Modern standing doctrine requires that litigants must prove that they have 1) suffered some sort of past or imminent material injury, 2) the injury was caused by the law, and 3) it can be redressed by a judicial decision. Generally speaking, Liberals have argued for a broad interpretation of all three requirements, while conservatives tended to assert that all three should be interpreted narrowly.

This ideological division has been turned on its head in the current gay marriage and health care litigation. In the former, liberal litigants and interest groups have argued that the proponents of California’s anti-gay marriage Proposition 8 lack standing to appeal the district court ruling striking it down. For their part, conservatives have claimed that they do have “standing,” applying a broad definition of what counts as “material injury.” In the health care case, district judge Henry Hudson (a George W. Bush appointee) has ruled that the state of Virginia has standing to challenge the Obama bill’s “individual mandate” even though the mandate actually applies only to individuals and not state government. The liberal Obama administration and many liberal commentators such as Jack Balkin decried this ruling and argued that Virginia doesn’t have standing. This, despite the fact that Virginia’s standing could be defended under the broad interpretation of state government standing approved by the Supreme Court in Massachusetts v. EPA, the global warming case (much to the delight of most liberals).

Does this mean that liberals and conservatives are about to switch sides on standing? Possibly. But it is more likely that views on standing will no longer closely track ideological divisions. Nothing about conservative ideology as such necessarily requires narrow standing rules, and nothing about liberal ideology necessarily requires broad ones. The ideological split over the issue dates back to the 1970s and 80s, when broad theories of standing mostly favored liberal litigants (especially environmentalists) challenging policies adopted by Republican-controlled administrative agencies. At that time, many believed that Republicans had a lock on the presidency, and that conservatives had little to gain and much to lose from strategic constitutional litigation.

Neither assumption is valid today. Democrats are once again competitive in presidential politics. And the rise of conservative and libertarian public interest law groups combined with a more conservative Supreme Court, ensure that the right can play offense as well as defense in constitutional litigation. For these reasons, narrow standing rules no longer consistently tilt the playing field in favor of conservatives. But neither do they uniformly advance liberal interests. Over time, therefore, neither group is likely to advance a consistent position on the issue. Standing arguments will increasingly become a tactical gambit used whenever convenient, rather than a matter of principle.

None of this says much about the normative question of whether broad or narrow standing rules are best. At least some people care about this issue for reasons that go beyond seeking tactical advantage in specific cases. Co-blogger Jonathan Adler, for example, is a principled advocate of narrow standing rules. I generally hold the opposite view, and will briefly outline my reasons in a follow-up post.

Professor Bainbridge lists “ten things that make this conservative embarrassed by the modern conservative movement.”  I’m not as enamored with David Klinghoffer’s lament (see also here), nor would I equate Hugh Hewitt with Michael Savage, but I largely agree.

UPDATE: Of course it ain’t so hot to be a liberal either.

SECOND UPDATE: Patterico counters that Professor Bainbridge’s reasons “turn out mostly to be reasons that conservatives should not support the Republican party — a quite different proposition entirely.” (emphasis in original)

THIRD UPDATE: Mike Rappaport comments here.

Reason has an interesting debate on the question of libertarian political strategy. Should libertarians seek to forge an alliance with conservatives or liberals or neither? Conservative columnist Jonah Goldberg and Tea Party leader Matt Kibbe argue for reconsituting the libertarian-conservative coalition that was badly frayed if not completely severed during the Bush years. Cato Institute scholar Brink Lindsey argues against that view. Although I am much closer to Lindsey’s political views than Goldberg’s, I find myself agreeing somewhat more with Goldberg’s position in this particular debate.

I. Brink Lindsey’s Retreat from Liberaltarianism.

Lindsey seems to have stepped back from his much-discussed 2006 argument for a “liberaltarian” coalition between libertarians and liberals.

Today, Lindsey argues that libertarians should instead try to occupy “the center,” because an alliance with the left is no more viable than one with the right:

Does that mean I think that libertarians should ally with the left instead? No, that’s equally unappealing. I do believe that libertarian ideas are better expressed in the language of liberalism rather than that of conservatism. But it’s clear enough that for now and the foreseeable future, the left is no more viable a home for libertarians than is the right.

It would be interesting to know what led to Lindsey’s change of heart about liberaltarianism. I suspect that the vast expansion of government promoted by the Obama administration and the decline of relatively pro-market views among liberal intellectuals were both contributing factors. Lindsey’s new view of liberaltarianism is now remarkably similar to the one I expressed back when he made his original proposal: that liberals and libertarians have much in common in terms of ultimate values, but relatively little common ground in terms of practical policy agendas.

II. What Would Libertarian Centrism Look Like?

I would also be interested to learn more about what Lindsey means when he urges libertarians to seek out the center. Lindsey does advise this:

Declaring independence from the right would require big changes. Cooperation with the right on free-market causes would need to be supplemented by an equivalent level of cooperation with the left on personal freedom, civil liberties, and foreign policy issues. Funding for political candidates should be reserved for politicians whose commitment to individual freedom goes beyond economic issues. In the resources they deploy, the causes they support, the language they use, and the politicians they back, libertarians should be making the point that their differences with the right are every bit as important as their differences with the left.

It’s not clear to me, however, that Lindsey’s program is much different from what many libertarian organizations are already doing. Many of them have long championed such causes as drug legalization (a signature libertarian issue, if there is one), removing restrictions on immigration, and curtailing law enforcement powers, for example. Defense policy is an issue that divides libertarians among themselves, as Lindsey himself has reason to know. Still, more isolationist libertarians have not been shy about expressing their differences with conservatives in this field. Lindsey’s own employer, the Cato Institute, is a good example. Overall, it’s hard to name any prominent libertarian organization or think tank that hasn’t been involved in major causes that put them at odds with conservatives. At the level of the mass public, libertarian-leaning voters have in fact tended to be “swing voters” in recent elections, with a relatively weak sense of partisan loyalty.

To the extent that this hasn’t resulted in “an equivalent level” of cooperation with the left as that with the right on economic policy, it may be because few liberals have been willing to reciprocate. It’s striking that Lindsey’s own highly publicized efforts at forging liberaltarian cooperation met with little or no positive response among liberals. The same goes for similar attempts by other prominent libertarian intellectuals. Another factor is that the the left’s commitment to “noneconomic” freedom has eroded over the last several decades. Many on the left now favor such policies as paternalistic regulation, censorship of “hate speech,” government-mandated “diversity,” and so on. There are still important social issues where libertarians and the left see eye to eye. But there are also many where left-wing liberals favor not laissez-faire but a different kind of government intervention from that supported by the social right.

A successful libertarian centrism – if possible at all – would require a much stronger foundation that Lindsey lays out here. Among other things, it would have to overcome the difficulties associated with operating outside the two major parties in a political system like ours. The longtime failures of the Libertarian Party are relevant here. It would also have to reckon with the reality emphasized by Goldberg: many libertarian positions simply are not centrist in the important sense that they are far from those of the median voter.

Even if a strong centrist libertarian movement were created, that still would not eliminate the need for political coalitions with either the left or the right. So long as libertarians are not a political majority (and they are in fact about 10-15% of the electorate), they cannot succeed without cooperation from other political movements.

III. The Libertarian-Conservative Alternative.

In the short run, I think there is no alternative to some sort of political coalition with conservatives, a position I argued for back in 2008, soon after Obama’s election. As I expected, Obama and the Democrats have heavily emphasized expanded government spending and economic regulation – precisely those issues that divide libertarians from liberals while uniting them with conservatives. Moreover, the conservative backlash against Obama has to a large extent taken a libertarian small-government form rather than the nativist or right-wing populist forms that could easily have happened. It’s noteworthy that the Tea Party movement has overwhelmingly focused on libertarian themes, to the point where some social conservatives have attacked it for failing to emphasize social issues.

Most important, libertarians have a strong interest in restoring divided government, which would make it much harder for the Democrats to enact more massive expansions of government power. Historically, divided government has been a great boon to the small-government cause. For the moment, the only way to restore divided government is to cooperate with conservative Republicans. I hope for a Republican victory in 2010 for much the same reasons as I wanted a Democratic one back in 2006.

I also think that some of Lindsey’s arguments against a libertarian-conservative alliance are overblown. For example, he argues that the conservative movement is no longer a fit ally for libertarians because it has been taken over by “a raving, anti-intellectual populism, as expressed by (among many, many others) Sarah Palin and Glenn Beck.” I’m no fan of either Palin or Beck. Still, just about any major political movement has its share of crude demagogues. As Lindsey admits, libertarians and conservatives were able to productively cooperate on many issues from the 1970s to the 90s. It’s not clear to me that Palin and Beck are any more objectionable than Phyllis Schlafly, Jerry Falwell, and Jesse Helms were. The typical conservative activist of thirty years ago was likely more anti-intellectual, populist, and xenophobic than, say, today’s Tea Party activists, who are on average more educated than the general population and often cite high-brow writers like Hayek.

Finally, it seems to me that the political right is now in flux. Having suffered painful defeats in 2006 and 2008, and witnessed the failure of Bush’s efforts to establish Republican dominance through “compassionate conservatism,” many conservative Republicans may be open to moving in a more small-government oriented direction. The newfound prominence of libertarian-leaning Republicans like Mitch Daniels and Paul Ryan is some evidence of that. Libertarians might help influence the GOP in that direction. By contrast, there seems little chance of our being able to effectively influence the course of liberal Democrats at this particular point in time, when most of them seem more committed than ever to expanding the power of government and less willing than a decade ago to consider reducing it. Political defeat might change that, as it did in the 1980s and 90s. But the defeat will probably have to come first.

That said, I also think that there is a lot to Lindsey’s critique of the right for its major streaks of nationalism, illiberalism, intolerance, and xenophobia. On these points, Lindsey is often more persuasive than Jonah Goldberg’s rebuttal. Hayek’s classic critique of conservatism remains relevant here. For these reasons, I don’t propose any full-blown “fusionism” of the kind once advocated by Frank Meyer. I have too many deep disagreements with conservatives to want that (see, e.g., here, here, and here). Short-term or even medium-term political cooperation is not the same thing as a deep affinity. I also don’t propose that we ignore the many flaws of the right or forget about the wrongs of the Bush era. Political allies don’t have to be soulmates. But we can and should recognize that right now we have an important common interest.

In a National Review post discussing the civil rights laws of the 1960s, Roger Clegg writes that “Conservatism is superior to libertarianism because it is less ideological and more readily acknowledges that circumstances matter.” Whatever the general validity of this claim, Clegg picked a very poor example to illustrate it.

As co-blogger David Bernstein has pointed out, numerous prominent conservatives, including many associated with National Review, actively defended racial segregation throughout the 1950s and 60s. They supported Jim Crow not only on “states’ rights” grounds but also because, as a 1957 National Review editorial put it, whites were “the advanced race” and could deny the franchise to blacks in order to protect “civilization.”

By contrast, as David also notes, most leading libertarian writers of the time – including Milton Friedman and Ayn Rand – were on the other side of this issue. Rand, for example, wrote that “[t]he Southern racists’ claim of ‘states’ rights’ is a contradiction in terms: there can be no such thing as the ‘right’ of some men to violate the rights of others.” She also denounced racism as “the lowest, most crudely primitive form of collectivism.”

Many 1960s libertarians can reasonably be criticized for underemphasizing the importance of ending segregation relative to other issues. But their record on these matters was considerably better than that of most conservative intellectuals of the day. Even if you think that libertarians were wrong to be skeptical of restrictions on purely private sector discrimination, the conservatives of the time were no better. And unlike in the case of the conservatives, libertarian opposition to private sector anti-discrimination laws was motivated by general support for a right of free association, whereas most of the conservative opponents were perfectly willing to support Jim Crow laws forbidding blacks from voluntarily associating with whites.

Some of the conservative support for segregation was simply a product of the racism endemic throughout much of society at the time. It is too often forgotten that many segregationists were big government liberals on economic issues, such as George Wallace and the recently departed Bob Byrd. But some was also linked to specific weaknesses of conservatism, such as excessive deference to tradition.

Roger Clegg, today’s National Review editors, and other modern conservatives should not be blamed for the mistakes of their predecessors fifty years ago. But black civil rights is not a good issue to focus on if you want to assert that conservatism is superior to libertarianism.

On the more general question of adjustment to “circumstances,” one of the main reasons why libertarians favor strict limits on government power is precisely because the private sector has greater ability and incentive to acquire knowledge about varying local circumstances and evaluate it in a rational way. Many conservatives emphasize these points when it comes to economic regulation, but tend to forget about them when it comes to the cultural and “moral” regulation that they often favor. Everyone agrees that “circumstances matter.” The real issue is which institutions are likely to do the best job of evaluating them and making needed adjustments.

UPDATE: In an e-mail that he asked me to post, Roger Clegg writes:

My point was that, in 2010, the fact that conservatism is less ideological than libertarianism and more willing to acknowledge that circumstances matter makes it is easier for conservatives (like me, notwithstanding my libertarian streak) than libertarians (like Rand Paul, notwithstanding his later retraction) to acknowledge the need for the 1964 Civil Rights Act. I was not suggesting that conservatives in the 1960s had a better record than libertarians;indeed, my suggestion was that the good instincts that both had also led both to the wrong conclusions then.

I appreciate the clarification. It certainly narrows the differences between us. But I still don’t agree with Clegg’s position. As I pointed out in the post, conservatives in the 1960s were far more wrong on Jim Crow than libertarians, and this was for reasons related to some general shortcomings of conservatism. Most libertarians had reached the conclusion that Jim Crow laws were unjust and should be abolished, while most conservatives had not. I also don’t agree that conservatism takes better account of circumstances than libertarianism in 2010. As comments by such scholars as Richard Epstein (quoted by Clegg himself), and co-blogger David Bernstein demonstrate, few serious libertarian commentators deny the need for the Act back in 1964, and virtually none deny that it was at least far superior to the pre-1964 status quo. Even Rand Paul, in his initial statement, didn’t reject the latter. In sum, nothing about the civil rights issue – either in 1964 or in 2010 – supports Clegg’s broad general claim that “conservatism is superior to libertarianism because it is less ideological and more readily acknowledges that circumstances matter.” And the evidence from the former period actually suggests ways in which conservatism – especially in its traditionalist variant – is in fact inferior to the libertarian alternative.

Back in 2006, I pointed out that most liberals and conservatives take internally contradictory stances on affirmative action and racial profiling:

I have long been fascinated by the fact that most conservatives support racial and ethnic profiling for national security and law enforcement purposes, yet are categorically opposed to the use of racial or ethnic classifications for affirmative action. Most liberals, by contrast, take exactly the opposite view. Both ideologies oppose racial and ethnic classifications as a matter of principle in one area, yet defend them on pragmatic grounds in another….

[Conservatives] say… that ethnic profiling of airline passengers is justified because, on average, a young Middle Eastern Muslim male is more likely to be a terrorist than members of other groups. This, despite the fact that not all (or even most) Middle Eastern Muslims are terrorists, and there are of course some terrorists (Richard Reid, Tim McVeigh, etc.) who belong to other groups…..

Defenders of affirmative action, of course, make a very similar argument. On average, an African-American or Hispanic applicant to college is more likely to be a victim of racism and to suffer from the historical legacy of Jim Crow and slavery than a white applicant is. Thus, it makes sense to give preference to applicants from these groups, despite the fact that some of the beneficiaries will be people who haven’t suffered much from racism, and some of the members of the non-preferred group may themselves be disadvantaged. Defenders of AA also claim that the average black or Hispanic applicant contributes more to campus diversity than the average white one, although there are of course many individual exceptions to this rule.

What I wrote about conservative defenses of ethnic profiling of suspected terrorists applies equally to arguments for its use in ordinary law enforcement.

The recent Arizona law on illegal immigration has rekindled debate over these questions. Things seem to have improved a bit since 2006, as conservatives are at least starting to realize that there is a tension between their positions on the two issues. At the National Review website, Roger Clegg and Linda Chavez have argued that consistency requires conservatives to oppose racial profiling as a tool for ferreting illegal immigrants, and to reject those parts of the Arizona law that promote profiling (as it is likely to do despite the law’s facial ban on the practice). Chavez correctly recognizes that conservatives can’t defend racial profiling by arguing that it is just one of many factors taken into account by law enforcement, since they reject the very same argument in the case of AA:

[T]he whole defense of racial preferences in college admissions and employment rests on the notion that race is simply one of many factors taken into account. But as the Center for Equal Opportunity’s studies on racial preferences in college admissions have definitively shown, whenever race is taken into account — even as one of many factors — it always becomes the deciding factor. And it will here as well. We conservatives can’t have it both ways: either we’re for race-neutral justice or we’re not. We can’t be against using race when it helps minorities but for it when it harms them — at least not without legitimate criticism as to our motives.

Where race is a factor in admissions or law enforcement decisions at all, it will inevitably be decisive in at least some cases. Otherwise, there would be no point in considering it at all.

Jonah Goldberg takes the opposite view, but at least acknowledges that there is a potential contradiction here. Still, he argues that racial profiling in law enforcement is more defensible than affirmative action because it causes less harm to its victims:

Many have pointed out the inconsistency of conservatives who support law-enforcement profiling while opposing admissions quotas, and of liberals who support quotas but loathe profiling.

The problem is that the two positions aren’t that analogous. In… president [Obama's] (flawed) scenario, that hypothetical Hispanic citizen will be “harassed.” What does that mean? It means he will be asked to prove his citizenship, which he will obviously be able to do. He won’t be tried, convicted, and deported; he will be inconvenienced. Indeed, under the more realistic scenario, he will be pulled over for a traffic violation and asked to offer his driver’s license (his “papers”). And that will be it.

Meanwhile, imagine you’re an American kid of Chinese ancestry. Given your SAT scores and GPA, you should be able to get into, say, the University of Michigan. But because of Michigan’s race-based policies, you’re turned down because you’re not black or Hispanic. That’s not just inconvenient, that’s a lifetime loss.

I don’t think that Goldberg’s attempt at distinguishing the two works. Whether affirmative action causes more harm to its victims than racial profiling varies from case to case. In some situations, getting stopped by the police will be a “lifetime loss” too, especially if nervousness or overreaction by either side causes a misunderstanding that escalates into violence. In other cases, it could result in your being detained for hours even if you are never charged with any crime (especially if the officer thinks you haven’t demonstrated the proper “respect” for his authority). The fear that racial profiling engenders among lower-class blacks and Hispanics (including those who never actually get profiled themselves) is also a significant cost.

White and Asian victims of affirmative action sometimes do suffer great losses, just as Goldberg suggests. In many cases, however, they simply end up attending universities comparable to or only slightly less prestigious than those that rejected them. As with racial profiling, the magnitude of the loss varies widely from case to case.

Moreover, I doubt that Goldberg or most other conservatives would favor affirmative action in admissions even if it were limited to cases where the victims suffer only minor “inconvenience.” When some liberals argue that affirmative action can be confined to close cases or instituted only for a limited time, conservative critics rightly respond that institutionalized racial preferences aren’t easily controlled. Once established, they have a strong tendency to expand, a point that conservative scholar Thomas Sowell nicely demonstrated in two of his books surveying such policies around the world (see here and here).

The same point applies to conservative claims that racial profiling in law enforcement can be confined to really important objectives such as combatting terrorism (which Clegg, for example, advocates). Once institutionalized, racial profiling is likely to expand just like affirmative action did. And, in fact, that is exactly what has happened in Europe.

In sum, conservatives deserve credit for beginning to recognize the ways in which their critique of affirmative action also applies to racial profiling. But many of them should go farther in recognizing the parallels between the two. The same point applies to those on the left who continue to ignore the relevance of their critique of racial profiling to affirmative action.

NOTE: For those who may be interested, I later expanded my 2006 post into a short essay in this Opposing Viewpoints volume on racial profiling.

UPDATE: My conservative George Mason colleague Nelson Lund deserves special credit for his 2002 article, “The Conservative Case Against Racial Profiling in the War on Terrorism,” one of the first post 9/11 conservative critiques of racial profiling.

Many commentators have noted that the individual mandate is an idea that some Republican politicians and right-of-center thinkers used to support.  Over the weekend the Associated Press reported that many on the right once championed an individual mandate as part of a broader health care overhaul.  Not only does the Massachusetts health care reform championed by Mitt Romney include an individual mandate, but back in the 1990s , the Heritage Foundation and many Republican office-holders called for an individual mandate as part of a GOP alternative to the Clinton Administration’s proposed health care reforms.  In 1993, for example, Heritage’s Stuart Butler testified before Congress in support of a new, “more rational” social contract under which government would provide greater assistance to those lacking health care in return for greater individual responsibility. Explained Butler:

This translates into a requirement on individuals to enroll themselves and their dependents in at least a basic health plan – one that at the minimum should protect the rest of society from large and unexpected medical costs incurred by the family. And as any social contract, there would also be an obligation on society. To the extent that the family cannot reasonably afford reasonable basic coverage, the rest of society, via government, should take responsibility for financing that minimum coverage.

It’s certainly true that many conservatives and Republicans championed an individual mandate as part of a broader package of reforms (such as ending preferential tax treatment of employer-provided insurance).  But others on the Right have always been opposed.  So, for instance, when some Congressional Republicans  introduced health reform legislation based upon the Heritage Foundation’s proposal, the Cato Institute published this paper by Tom Miller (now a health care analyst at the American Enterprise Institute) attacking the idea.  Working in D.C. at the time (as one of Tom Miller’s colleagues), I recall that many conservatives and libertarians believed those who had embraced the Heritage approach were engaging in preemptive compromise, proposing bad ideas in an effort to forestall worse ones. It was only after conservatives revolted that Republicans in Congress sought to defeat health care reform outright.  The Cato Institute, among other groups, has also been extremely critical of RomneyCare (see, e.g., here, here, and here).

Even so, why were so many on the Right willing to embrace an idea that conservatives attack as unconstitutional today?  How can the Heritage Foundation’s legal scholars attack an idea once championed by its health care analysts?  One possibility is that the Heritage Foundation is simply more conservative, or more free market, than it used to be.  Another is that the legal environment has changed dramatically.  In 1994 it had been over 50 years since the Supreme Court had invaildated a federal law for exceeding the scope of the Commerce Clause.  The Supreme Court’s decision in United States v. Lopez , striking down the Gun-Free School Zones Act, was not until 1995 — after the Clinton health care plan had been defeated and after the Republicans had retaken Congress, effectively ending the debate over health care reform.  Prior to Lopez, it was simply assumed there were no meaningful limits on the federal government’s regulatory powers.  After Lopez (and United States v. Morrison in 2000), that all changed.  While the argument that the individual mandate exceeds the scope of federal power as interpreted by the courts is still difficult to make, it is no longer implausible as it was in 1994 (particularly for those of us who believe Gonzales v. Raich was wrongly decided).

Of course it’s also fair to argue that many Republican office-holders and partisans are simply opportunistic, opposing ideas today they supported before merely to oppose the President.  In many cases, I am sure this is true.  Just witness Republican efforts to transform themselves into champions of Medicare, opposing any and all spending cuts.  But just because this may be true of partisans and politicians, does not mean its true of those in the broader conservative and libertarian movements. Many conservative and libertarian voices were no less critical of the individual mandate when proposed by the Heritage Foundation or Mitt Romney than they are today.

In response to my recent post on conservative and libertarian public interest law, various law students and others have e-mailed me to ask whether there is a single comprehensive list of right of center public interest firms. The closest thing I know if the Harvard Law School Guide to Conservative/Libertarian Public Interest Law, available here. It may not be 100% comprehensive, and some information may be slightly dated, because the Guide was prepared in fall 2007. But it does cover all the most important right of center public interest organizations and describes the main areas they work on. It’s a good starting point for libertarian and conservative law students looking for jobs or summer clerkships in the public interest law world.

If anyone knows of a more recent version of the Harvard guide or of a similar publication put out by another institution, please let me know. I would be happy to link to it.

UPDATE: Some commenters make the obvious point that the Guide includes some conservative groups that pursue agendas that libertarians might disagree with (and vice versa). This is true, but it doesn’t undermine the utility of the guide. Very few people are likely to be sympathetic to all the agendas of the different groups listed. Likewise, there is no need to criticize the guide for omitting liberal organizations whose agendas overlap with those of libertarians in some way. These organizations are already well-known to most law students, and law school career centers usually already have information on them. By contrast, many law schools provide less access to information about organizations that are systematically libertarian or conservative.

This is not the post to discuss the broader issue of whether a libertarian-conservative alliance is desirable in this day and age. I think it is for reasons that I outline here. See also this 2006 series of posts.

UPDATE #2: I should mention a genuine weakness of the Guide, which is that it includes too many organizations that don’t actually do much in the way of public interest law and have few or no job opportunities that are appropriate for recent law school grads. For what it’s worth, the leading organizations that actually do libertarian public interest litigation as their main mission are the Institute for Justice, the Center for Individual Rights, the Pacific Legal Foundation, and the Washington Legal Foundation, all listed and largely accurately described in the Guide, but not always given as much relative prominence as they probably should have.

I recently renewed my membership in the Federalist Society, and got a mailing asking to sign up with the Fed Soc Pro Bono Center. I was only vaguely aware of this organization’s existence, even though it is a potentially important effort to address the most important shortcoming of conservative and libertarian public interest law. Perhaps it will be more successful in that effort, if more people learn about it.

Over the last 30 years, conservative and libertarian public interest firms such as the Institute for Justice, the Center for Individual Rights, and the Pacific Legal Foundation have mounted a strong challenge to the previously dominant legal left, and won some important legal victories for property rights, economic liberties, and limits on government power. However, right of center public interest law suffers from a key weakness: the paucity of lawyers available to conduct follow-up litigation to enforce favorable precedents. Even the most important federal and state supreme court decisions don’t change the legal landscape all by themselves; they usually require extensive follow-up litigation to make sure that government officials comply and that their principles are enforced in other cases where similar issues come up. Often, the people victimized by government violations of constitutional rights are poor, politically weak, or unable to engage in protracted litigation to vindicate their rights. This is true in the area of property rights, and many others of interest to libertarians and conservatives. Left-liberal scholars and activists have long understood this crucial lesson, and they have created an extensive network to facilitate follow-up litigation to enforce their high court legal victories. In almost every major law firm, there are lawyers who do small-bore pro bono cases on behalf of various left-wing causes. These cases often build on and enforce favorable appellate decisions.

By contrast, conservatives and libertarians have been slow to grasp this point and act on it. That isn’t just my opinion. It’s also the view of Steven Teles, author of the leading academic work on right of center public interest law, and also of prominent leaders of conservative and libertarian public interest organizations, such as Chip Mellor, President of the Institute for Justice and the leaders of CIR (interviewed in Teles’ book).

The Fed Soc Pro Bono Center is a thoughtful effort to address the problem. The premise is simple: interested lawyers sign up at the Center’s website, and give their contact information, areas of expertise (e.g. – property rights, First Amendment, religious liberties, criminal law), what kind of work they can do (trial, appellate, etc.), and how much time they have per month. The Center then matches them up with public interest firms and other organizations that are looking for lawyers to work on specific cases (these organizations can also sign up at the website, and provide information about their needs). I doubt that the Pro Bono Center can cure the greatest weakness of conservative/libertarian public interest law all by itself. But it’s a step in the right direction. IJ’s Human Action Network is an older, somewhat similar initiative (but one that doesn’t have an explicit case-matching system).

Most lawyers, especially those working at large firms, have at least some time to do pro bono work. Indeed, senior partners often encourage junior associates to so such work because it is a great way for younger lawyers to get useful experience. At many firms, partners are happy to have associates take on such work even if they don’t necessarily agree with its ideological orientation; after all, it’s still valuable experience that can benefit the firm when the associate uses what he or she has learned in later work for paying clients. Obviously, there are also career benefits to the lawyer himself. Getting useful litigation experience can help your career, and it’s often easier for a young lawyer to get major responsibility on a pro bono matter than in a case on behalf of a paying client.

Conservative and libertarian law students often ask me what they can do to promote the cause of free markets and limited government if they are unable or unwilling to go into public interest law or academia. Here’s my answer to that perennial question: They also serve who litigate unglamorous but essential follow-up cases. Few important legal precedents ever amount to much without them.

CONFLICT OF INTEREST WATCH: I have done various pro bono work for the Institute for Justice myself, and serve on one of the Federalist Society’s practice group executive committees (an unpaid position).