It is somewhat ironic that Steve Bainbridge would cite Russell Kirk's ideas as a basis for a renewed conservative-libertarian fusionism. Kirk himself despised libertarians, whom he called "chirping sectaries" in the title of one of his essays. In that same essay, he wrote that "[t]o talk of forming a league or coalition between these two [conservatives and libertarians] is like advocating a union of ice and fire." He even claimed that a socialist-conservative alliance was a more viable possibility than a libertarian-conservative one:

Conservatives have no intention of compromising with socialists; but even such an alliance, ridiculous though it would be, is more nearly conceivable than the coalition of conservatives and libertarians. The socialists at least declare the existence of some sort of moral order; the libertarians are quite bottomless.

The essay also displays a number of typical shortcomings of Kirk's work, including the difficulties he had in understanding ideas opposed to his own (not just libertarianism, but also others), and a tendency to resort to ad hominem attacks.

Unlike such conservatives as Frank Meyer and Bill Buckley, Kirk was an opponent of fusionism, not a supporter of it. To the extent that conservatives embrace his ideas, the chances of a revival of fusionism are reduced.

UPDATE: In fairness to Bainbridge, I should note that he also cites Meyer in his post, more prominently and extensively than Kirk. However, he cites the latter's critique of the Bush 41 administration as part of the possible basis for a new fusionism without considering Kirk's lifelong hostility to libertarianism and fusionism.

This holiday season, it's worth considering economist Steve Landsburg's humorous, but also telling, defense of Scrooge:

Here's what I like about Ebenezer Scrooge: His meager lodgings were dark because darkness is cheap, and barely heated because coal is not free. His dinner was gruel, which he prepared himself. Scrooge paid no man to wait on him.

Scrooge has been called ungenerous. I say that's a bum rap. What could be more generous than keeping your lamps unlit and your plate unfilled, leaving more fuel for others to burn and more food for others to eat? Who is a more benevolent neighbor than the man who employs no servants, freeing them to wait on someone else?....

In this whole world, there is nobody more generous than the miser—the man who could deplete the world's resources but chooses not to. The only difference between miserliness and philanthropy is that the philanthropist serves a favored few while the miser spreads his largess far and wide....

Saving is philanthropy, and—because this is both the Christmas season and the season of tax reform—it's worth mentioning that the tax system should recognize as much. If there's a tax deduction for charitable giving, there should be a tax deduction for saving. What you earn and don't spend is your contribution to the world, and it's equally a contribution whether you give it away or squirrel it away....

Great artists are sometimes unaware of the deepest meanings in their own creations. Though Dickens might not have recognized it, the primary moral of A Christmas Carol is that there should be no limit on IRA contributions...

If Christmas is the season of selflessness, then surely one of the great symbols of Christmas should be Ebenezer Scrooge...

Of course, Scrooge is still vulnerable to ethical criticism, even if Landsburg's argument is correct. Ayn Randian "virtue of selfishness" libertarians (of whom, by the way, I am not one) could criticize him for neglecting his own self-interest by consuming so little. Utilitarians could argue that overall social utility might be increased if Scrooge consumed more. Communitarians could argue that Scrooge doesn't involve himself in the community enough (though his miserliness leaves more resources available for community involvement by others). However, Scrooge definitely has a strong case against the standard view that he harms others by being too miserly. Moreover, there is also a left-wing environmentalist case for Scrooge, in so far as he minimizes his use of nonrenewable resources and energy sources (e.g. - coal) that create pollution. Thanks to Scrooge, nineteenth century London had more resources and less air pollution!

I present to you: Ebenezer Scrooge - benefactor of the poor, conservationist, and environmentalist!

Didden v. Village of Port Chester is potentially the most important federal public use eminent domain case since Kelo v. City of New London.

I recently coauthored an amicus brief on behalf of myself and seven other legal scholars specializing in property and eminent domain, urging the Supreme Court to hear this case. The brief is available here. Among the signatories are Richard Epstein (University of Chicago), Jim Ely (Vanderbilt), Viet Dinh (Georgetown), Ben Barros (Widener); Eric Claeys (St. Louis University); Adam Mossoff (Michigan State); and my colleague Steve Eagle. Here is a brief description of the facts:

[T]wo Port Chester [New York] property owners joined with the Institute for Justice (the public-interest law firm that litigated the Kelo case) to ask the Supreme Court to look again at the issue of eminent domain abuse and ensure that lower courts do not read Kelo to completely eliminate judicial review. The case illustrates the dangerous results of the Kelo decision and asks what should be an easy question: Does the Constitution prevent governments from taking property through eminent domain simply because the property owners refused to pay off a private developer?

In 2003, private developer [Gregg Wasser] approached Bart Didden and Domenick Bologna with a modest proposal: they could either pay him $800,000 or give him a 50 percent interest in their proposed business, or he would cause the Village of Port Chester to take their property from them through eminent domain. Outraged, they refused. The Village condemned their property the very next day.

Bart and Domenick filed suit in federal court, arguing that the taking violated the Fifth Amendment of the U.S. Constitution, which only allows property to be taken for a “public use.” Shockingly, the trial court threw out their case, and the Second Circuit agreed. Because their property lay within a “redevelopment area,” a region the Village had designated as subject to its eminent domain power, the Constitution didn’t protect them from condemnation, even though they had alleged that they were condemned solely because they resisted the developer’s attempted extortion....

“What the developer and Village of Port Chester did is nothing short of government-backed extortion,” said Didden. “I had an agreement to develop a pharmacy, a plan fully approved by the Village, and in the eleventh hour I was told that I must either bring this developer in as a 50/50 partner or pay him $800,000 to go away. If I didn’t, the City would condemn my property through eminent domain for him to put up a pharmacy. What else can you call that but extortion? I hope the Supreme Court sets things right.”

The crucial legal issue involves an ambiguity in Kelo. It's not clear whether or not Kelo permits pretextual condemnations within "redevelopment areas." Kelo held that condemnations for "economic development" purposes should get nearly absolute deference from judges so long as they are part of an "integrated development plan;" moreover, courts are not supposed to "second guess" the quality of the plan, so even very poor plans that have little chance of achieving their objectives and blatantly favor private interests can still immunize condemnations from challenge. However, Kelo also emphasized that "pretextual" takings - where the stated public interest rationale is just a cover for the true purpose of benefiting a "private party" - are still forbidden. In an important concurring opinion to the 5-4 decision, Justice Kennedy called for heightened judicial scrutiny of condemnations where there is a legitimate suspicion of "favoritism" towards a private party.

It's hard to find a more blatant example of pretextual condemnation and "favoritism than the Didden case. The plaintiffs' property was only condemned because they refused to pay $800,000 to Wasser. Had they given in to Wasser's threats and paid him the money, there would have been no public benefit, because the money would have gone into Wasser's pocket, not the Village treasury. Moreover, Wasser's planned use for the property - building a Walgreens pharmacy - is almost exactly the same as the current owners (who plan to open a CVS). So there is no potential economic gain to the community from transferring the land to Wasser; indeed, the area's taxpayers will be net losers because they will have to foot the bill for the condemnation. Nonetheless, the condemnation did occur within a designated "redevelopment area," so the Second Circuit Court of Appeals held that it is immunized from legal challenge under Kelo.

In our amicus brief, the other property professors and I argue that Kelo should not be interpreted as a blank check for pretextual takings in redevelopment areas. Otherwise, private interests across the country could follow Wasser's example and use the establishment of redevelopment areas as a tool to extort money from area property owners. There are hundreds, if not thousands, of redevelopment areas around the country, so there is a great deal of potential for abuse if the Second Circuit's approach to this issue prevails.

Even if the Supreme Court reverses Didden, it will eliminate only some of the most blatant cases of eminent domain abuse. Kelo and most of the harmful takings it authorized would still continue in place. However, overruling Didden would still be an important step forward in combatting blatantly pretextual takings.

CONFLICT OF INTEREST WATCH: The property owners in this case are represented by the Institute for Justice, the libertarian public interest law firm that also represented the New London property owners in Kelo. As I have mentioned on this blog in the past, I worked for IJ as a summer law clerk in 1998 and have done several pro bono amicus brief projects for them since then.

UPDATE: In addition to the professors who signed on to the brief, I would also like to recognize the contributions of Nazish Agha of Cadwalader, Wickersham & Taft, who helped prepare the brief and also arranged for her firm to finance the printing and filing of the brief as a pro bono project. As experienced appellate lawyers know, it costs a good deal of money to print and file a Supreme Court brief, so CWT's assistance was extremely helpful.

An appropriate way to mark the 65th anniversary of Pearl Harbor is to reconsider one if its key lessons: the difficulty of predicting an enemy's strategy and tactics, and problems this poses for a primarily defensive national security strategy. As Roberta Wohlstetter showed in her classic study, Pearl Harbor: Warning and Decision , US intelligence actually had a great deal of evidence suggesting the possibility of a Japanese attack on Pearl Harbor even before December 7, 1941. In fact, the US, through its MAGIC program, had broken the Japanese military and diplomatic radio codes, and so was reading many Japanese communications in "real time." Yet US officials still failed to predict the attack in large part because the evidence pointing in the right direction was balanced by lots of other evidence suggesting that Japan would pursue other options (such as attacking the Phillipines, attacking British and Dutch possessions in the Far East while leaving the US alone, etc.). Only after the fact was the US able to separate what Wohlstetter called the "signals" from the "noise."

The 9/11 Commission report suggests that signals and noise issues also played a role in intelligence failures prior to 9/11, though we did not have as good intelligence on Al Qaeda prior to 2001 as the US did on Japan prior to Pearl Harbor.

As the MAGIC example dramatically demonstrates, there are serious limits to even the best intelligence. A reasonably smart enemy will deliberately send out contradictory signals and "noise" before any attack. This point applies with special force to modern terrorists, who have a large number of potential targets to choose from. Sooner or later, they will catch us by surprise again.

For these reasons, among others, we cannot win with a purely or even primarily defensive orientation. Ultimately, we have to engage in offensive operations, in order to destroy the enemy before they are able to implement their own attack plans, and so we ourselves can exploit the advantages of surprise and confuse the enemy's own intelligence. Offensive strategies certainly have their own risks, and are not a panacea. However, even more than 9/11, Pearl Harbor demonstrates that an exclusively defensive orientation is a guarantee that our enemies will take us by surprise sooner or later - with potentially devastating results.

UPDATE: Many of the commenters have, perhaps predictably, immediately gone into a debate over the Iraq War. The point of this post is both broader and narrower than Iraq. Narrower because the balance between offense and defense is just one of many factors that needs to be considered in assessing the decision to overthrow Saddam Hussein. Broader because the point of the post applies to other conflicts too. In particular, it applies to the debate between those who believe that we can best counter terrorism and other threats through defensive "homeland security" measures and those who believe in a more aggressive offensive approach. In my view, the former strategy is likely to break down over time because 1) the enemy has an almost infinite range of targets to pick from, making it difficult to predict which one they will hit, and 2) the "signals/noise" problem ensures that we will periodically have intelligence failures similar to Pearl Harbor - especially if we don't have information comparable in quality to what MAGIC provided back in 1941. Does that mean that offense is a once size fits all solution to all national security threats? Of course not. But it's an important point to consider that I think is too often ignored.

Orin's post about NASA's plan to build a permanent base on the Moon reminds me of this quote by former Texas Senator Phil Gramm:

If the Senate voted this afternoon on building a cheese factory on the Moon, I would no doubt vote against it. But if the Senate decided, in its collective lack of wisdom, to build a cheese factory on the Moon, I would want engineers from Texas to design that cheese factory. I would want a construction company from Texas, since we have the best construction companies in the world, to build that cheese factory. If we were going to use milk from earthly cows, I would want milk from Texas cows to be used to make the cheese in the factory on the Moon, and I would want the celestial headquarters for it in Texas. But am I for a cheese factory on the Moon? No.

Perhaps NASA is about to make Gramm's hypothetical cheese factory on the Moon a reality. More likely, we will get lots of juicy contracts for Texas (or perhaps - thanks to Bob "King of Pork" Byrd's return to the Appropriations Committee Chairmanship - West Virginia), engineers, construction companies and cows, but no actual moonbase that can do anything useful.

The full text of Brink Lindsey's proposal for a libertarian-liberal alliance is now available free of charge here.

Interestingly, he describes the proposal as one for a liberal-libertarian "fusionism," similar to the liberal-conservative "fusionism" that began in the 1960s and is now undergoing a crisis. I agree with Lindsey that a liberal-libertarian fusion would be desirable. But, as he points out, figuring out how it would work is a "daunting task." To my mind, the potential room for agreement involves a combination of liberals opposing the many big government programs that redistribute to the rich and middle class from the poor,libertarians accepting redistribution that benefits the genuinely destitute, and both sides placing greater emphasis on those personal liberties issues on which they already agree. Lindsey's proposed program seems similar.

However, for reasons outlined in my post on "Libertarians and Liberals" the political and even intellectual obstacles to this vision are very great. If it happens at all, it will only be over a long period of time. Meanwhile, libertarians should not abandon efforts to work with small government conservatives to put the GOP back on a small government track.

My discussion of the prospects for a libertarian-liberal alliance is probably incomplete without some attention to the troubled relationship between libertarians and conservatives.

As I argued in the previous post, at the level of fundamental principle, libertarians have more in common with liberals than with conservatives. However, there are important countervailing factors that may make a revival of the libertarian-conservative alliance more feasible than any likely libertarian-liberal coalition. Some of these factors operate at the level of intellectual elites, and others at the level of practical politics.

Intellectual Commonalities.

At the level of intellectual elites, there is much less disagreement between libertarians and conservatives than at the mass level. Most libertarian intellectuals find, say, Jerry Falwell and Pat Robertson, to be repulsive. I know I do. However, most serious conservative intellectuals are far more supportive of limited government and probably less prone to support government interventions in social affairs than he is. My sense is that most conservative intellectuals continue to favor major reductions in the size and scope of government despite President Bush's movement in the opposite direction. Many of them even favor reductions in the government's role on some "social" issues. For example, there are probably more conservative intellectuals than liberal ones willing to endorse the abolition of the War on Drugs - by far the most important civil liberties issue from the standpoint of most libertarians. The National Review,probably the most prominent conservative opinion journal, has supported drug legalization for decades, for example. Obviously, this is cold comfort if conservative politicians don't heed NR's advice on this point. However, it does help explain why many libertarian intellectuals continue to view conservatives as allies. The conservatives we deal with on a day-to-day basis are far more likely to be National Review types than the type who watch the 700 Club.

Practical Politics

At the level of practical politics, there is no question that the GOP, under George W. Bush, has turned in a pro-big government direction, and that is one reason why many libertarians, myself included, wanted them to suffer a defeat in the recent election. However, most of George W. Bush's big government policies - such as the Medicare prescription drug plan, the No Child Left Behind Act, and the steel tariffs, were enacted purely for the sake of political expediency. Much of the Republican Party base hated them, and it is no accident that many Republicans are calling for a return to small government principles in the aftermath of their defeat in November. Unlike in the case of the Democrats, there is a real chance that the GOP will return to (relatively) small government principles in the near future, just as it did in the aftermath of the political defeat of its last two big government presidents - Richard Nixon and George Bush I. The political failure of Bush II may well lead Republicans to reconsider whether "big government" conservatism really is the way to go.

Civil Liberties and Social Issues

Most of those who argue against a libertarian-conservative coalition focus heavily on the issue of civil libeties. It is indeed the case that even most pro-limited government conservatives differ with libertarians on social issues such as censorship of pornography and gay rights. These differences are not going to go away. As a matter of philosophical principle, these differences are very grave. However, they matter less as a matter of practical politics because the ability of government to seriously constrain these kinds of freedoms in the modern world is quite limited. All the efforts of social conservatives over the last forty years have had little impact on people's ability to consume pornography, nor have they significantly slowed what I think is the natural and inevitable evolution towards greater social and legal acceptance for homosexuals.

The one major area where conservative policies do pose a truly grave threat to civil liberties is the War on Drugs. However, the Democrats don't show any more enthusiasm for curtailing drug prohibition than Republicans do. And, as noted above, there are probably at least as many anti-drug war conservative intellectuals as liberal ones.

While I oppose the Bush Administration's claims of virtually unlimited executive war powers, the administration's abuses in the War on Terror are not enough of a threat to civil liberties to justify a libertarian-liberal alliance on these grounds. As I discussed in more detail here, only a relatively small number of genuinely innocent people have been victimized by these policies (see also these two posts by Megan McCardle). Certainly far fewer than are harmed by the War on Drugs or by numerous policies favored by the Democrats. Moreover, Bush's more extreme claims for unlimited executive power have been repudiated by the Supreme Court and by Congress. That does not mean that libertarians should simply support pro-Bush conservatives on these issues or that there is no reason for concern. Far from it. It does suggest, however, that the issue is not enough to justify a libertarian-liberal alliance.

Whether the libertarian-conservative coalition can be saved remains to be seen. Much depends on the future course of the GOP. For the moment, however, it remains a more viable option than a libertarian-liberal alliance of the sort proposed by Brink Lindsey, Daily Kos, and others.

Brink Lindsey's proposal for a libertarian-liberal alliance (described here and here), has produced a lot of debate, including Todd Zywicki's post (linked below).

In my view, it is important to differentiate the theory of intellectual coherence between liberalism and libertarianism from the much more dubious possibility of a political alliance. In my view, liberal and libertarian ideologies have much in common. But that commonality is unlikely to lead to a political alliance anytime soon.

At the level of ideology and political theory, libertarians and liberals have much in common, probably more than libertarians and most conservatives do. Both groups value individual liberty; both believe that the government should generally stay out of religious and "values" issues, which should be left to individual choice (though there are some countervailing strands of thought on this among some "communitarian" and feminist liberals); both place no special value on tradition; and both want to maximize individual happiness and utility. Some conservatives also share these values, but there are a great many who do not because their version of conservatism stems from either an adherence to traditionalism for its own sake or fundamentalist religious principles.

Setting aside foreign policy (about which libertarians have deep internal differences), this ideological commonality can translate into some important areas of agreement on public policy. In particular - as a matter of ideological theory - liberals and libertarians should be able to agree to restrict government efforts to undermine "personal" liberties and also to oppose the many government interventions into economic affairs that redistribute to the wealthy and/or middle class at the expense of relatively poorer segments of the population. Such policies are extremely common, especially given that the poor have relatively little influence over the political process.

In practice, however, real-world liberal politicians are unlikely to move in this direction in the near future because of the Democratic Party's heavy dependence on interest groups - such as public employees unions - that have a vested interest in extending the size and scope of government regardless of whether the poor are harmed. For this reason, I doubted that the "libertarian Democrat" movement promoted by Daily Kos and others would ever amount to much. In principle, ideological liberals should support such libertarian economic policies as reducing farm subsidies, free trade, school vouchers, eliminating pork, and eliminating Social Security and Medicare payments that go to relatively wealthy seniors. All of them would increase personal freedom, and curtail government redistribution from the relatively poor to the relatively rich. In practice, the Democratic Party is unlikely to embrace any of these because of its dependence on powerful interest groups that find them inimical.

In addition to these interest-based concerns, many liberal intellectuals and policy analysts are simply unwilling to place any major emphasis on those non-civil liberties issues where they agree with libertarians. For example, most liberal intellectuals will, if pressed, agree that farm subsidies, porkbarrel spending, and the like are bad. But few consider their elimination a major priority. For reasons that I don't fully understand, most of them are much more enthusiastic about those parts of the liberal agenda that require expanding government than those that imply contraction. This has slowly changed over the last thirty years, as more liberal thinkers have begun to appreciate some of the virtues of markets and civil society. But the pace of change has been quite slow, and there has even been some backsliding in recent years.

There is, perhaps, a deeper problem here: most liberal intellectuals are reluctant to attribute flawed government economic policies to inherent shortcomings of the political process as opposed to the machinations of specific "evil" or "greedy" politicians and interest groups. There is a strong tendency to believe that most such flaws could be cured if only the "bad guys" such as George Bush were removed from office. I hope that, over time, liberal thinkers will bring to government economic policy the same kind of skepticism and realism that they apply to government policy on civil liberties; few of them believe that government could be trusted to regulate our sex lives or engage in warrantless searches merely because the Democrats are in office rather than the Republicans. But this too will be a slow and gradual process, if it happens at all.

None of these points precludes alliances of convenience between liberals and libertarians on particular issues. And it is possible that liberal thought will over time move further in the relatively promarket direction outlined above (and also by some "New Democrat" groups). For the foreseeable future, however, there is unlikely to be a broad libertarian-liberal alliance.

In recent months, I have repeatedly blogged about how our misguided War on Drugs is undermining the War on Terror in Afghanistan by alienating Afghans who depend on poppy cultivation for their livelihoods and by providing the Taliban with a ready-made source of income (see here and here, for my previous posts on the subject). Now, as the conservative British paper, the Daily Telegraph reports, the Bush Administration seems intent on making the problem worse by introducing new poppy eradication measures that are likely to alienate Afghans and help the Taliban even more than previous campaigns. Among other things, the new policy may cause great damage to legal crops as well as to poppy growing, thereby angering even those Afghan farmers who are not engaged in the drug trade:

The Afghan government is to launch a campaign of herbicide spraying of opium poppy for the first time following intense American pressure for a more radical approach to the country's burgeoning drugs problem.

Spraying, which will be undertaken by ground-based Afghan security units, is widely seen as a stepping stone to the still more controversial use of aerial spraying....

Spraying would allow eradication of the crop that dominates the world's heroin trade to begin earlier than the cutting and ploughing of fields which has been hitherto performed by Afghan security forces. The eradication technique is widely feared by farmers and viewed with great scepticism within the international community.....

A senior diplomat in Kabul said that spraying would be expensive and spur health scares and fears of wider contamination, potentially pushing farmers towards the Taliban. He added: "Aerial spraying would almost certainly be a disaster for Afghanistan given that poppy is grown in small portions of farmers already limited holdings. It would destroy legal crops more than illegal."

The article indicates that the new spraying program is not scheduled to start for another two months and that there may still be a chance that it will be shelved. However, I am not optimistic that the Administration will soon see the light of day on this issue.

Therefore, I have a suggestion for the new Democratic Congress: If you are serious about improving the conduct of the War on Terror, a good way to start would be to pass a bill banning the use of U.S. government funds for poppy eradication activities in Afghanistan. You can repudiate a Bush Administration policy and simultaneously increase our chances of winning in Afghanistan, which Democrats have repeatedly claimed we should be focusing on more. What's not to like?