Constitutions Rightly Understood

“We are under a Constitution,” said American jurist Charles Evan Hughes, “but the Constitution is what the judges say it is.” Hughes’s blunt statement makes some Americans flinch. Senator Orrin Hatch, for example, objected that our written charter already says everything there is to say about the constitutionality of any statute before the courts. How a judge should rule is clear, if they are a literate lover of liberty.

American debates about our constitution could do with more candor and less question-begging cant. The work of John Gardner is a good place to begin. Gardner is a legal philosopher who works in the tradition of his late mentor, H. L. A. Hart. I discovered him through this podcast with Philosophy Bites. In his essay “Can There Be a Written Constitution?”, Gardner elaborated his views on what constitutions are and what judges do:

On the day it is enacted a new constitution is wholly written law. But that day does not last. As soon as ripe disputes begin to arise that concern the meaning of constitutional provisions, written constitutional law inevitably needs to be filled out with case law and/or customary law. What is written in the constitution needs to be invested with more determinate meaning, and by and large this has to be done at the point of its authoritative application, principally by judges. With the passage of time, such judge-made law tends to predominate over the parts of constitutional law that exist apart from it. With the passage of time, one knows an ever-smaller proportion of the law of the constitution – or at any rate an ever-smaller proportion of the material that goes to make up the law of the constitution – simply by reading the constitutional text.

Like other things we have said, this plain answer may strike some as political explosive. It may seem to lead us straight into the big controversies of contemporary US constitutional law. In the red corner, ladies and gentlemen, those who insist that the constitution is found in what was written and nothing but what was written by the 1787 founders and their authorised legislative amenders. And in the blue corner, those who say that the constitution is a living body of law and should not be regarded as frozen in time at the moment of enactment. Is this the fight we are getting into? No. Nothing I have just said takes sides in this or any other debate about how the US constitution should be interpreted. I do not doubt, of course, the profound political significance of such debates and – especially when the disputants are Supreme Court judges – their huge potential consequences for the future direction of America. My only point is this. Inasmuch as these debates have huge potential consequences for the future direction of America, that is over a purposivist, or an originalist-textualist over a strict-constructionist-textualist, or a original-intent-originalist over an original-meaning-originalist, or indeed a baggist over a raggist, is that each of them, or at any rate each of them in combination with some like-minded judges, will have the power to change the law of the constitution by giving the constitution a meaning different from the one that it would have under the authority of a judge or a combination of judges from some rival camp.

Garnder does not see how it could be otherwise, and neither do I.

Meaningful Liberty

Libertarianism does not follow, as a simple matter of principle, from the value of individual liberty. I made this point before, but philosopher T. M. Scanlon made it again with great clarity and simplicity.

In his essay “Libertarianism and Liberty,” Scanlon responds to three lines of argument for libertarianism. The first appeals to the efficiency of autonomous markets. But as Scanlon rightly points out, this argument “assigns individual liberty only an instrumental value: it is important only as a means to economic efficiency.” It is less an appeal to the liberty of individuals than to pricing mechanisms, which are seen as superior to planning—to conscious direction by individuals.

The second argument appeals to individual control, but strictly in terms of “negative” rights. The relevant distinction, however, is not between “positive” and “negative” rights, but, as Scanlon said, “between rights and considerations that must be taken into account in justifying them. The lesson to draw from it is not that there are no ‘positive rights’—rights to particular benefits—but rather that not every desirable thing that is relevant to justifying rights can be directly transformed into a ‘right to’ realize that thing.”

Recognizing control as an important moral value leads to the question of what system of rights—what set of laws and policies—would best secure this important form of control for everyone, since everyone counts morally. It may seem to industrialists that an unregulated market provides the greatest freedom, because regulation and taxation reduce their ability to do what they want. But as I have mentioned, an unregulated market leaves many workers with little control over some important aspects of their lives, and their liberty also matters morally. So an argument appealing to the moral importance of control over one’s life must take both of these facts into account, along with others.

If we ask what conditions are most important for having meaningful liberty—meaningful control over one’s life—in a modern society, one of the first things that comes to mind is education, which enables one to understand one’s choices and to acquire the skills needed to pursue them, including the skills needed participate in the market economy. A second important factor is a strong social safety net, including unemployment benefits, which enable people to plan responsibly for having a family despite the uncertainties of employment in an efficient market economy.

The third line of argument is that “no one should be coercively told what to do as long as he or she is not violating the rights of others.” Scanlon acknowledges the intuitive appeal, but the apparent simplicity is an illusion. Consider property rights, which “involve not only the right to use the things one owns, and to exclude others from taking them,” but also “the power to give others similar rights over a thing, by transferring it to them.”

By permissibly using something, I can make it wrong for you to take it, on Lockean grounds, because you would be interfering with my use. By ceasing to use it, and leaving it with the intention that you will use it, I can make it the case that you will not wrong me by using or destroying it. These ideas, included in the right of non-interference as I have construed it, are extremely plausible. But it is extremely implausible to think that I can, by an exercise of my will, confer upon you the right to exclude anyone else from the use of a thing, and give you the power to transfer this right to yet other people. Having this power would make me an odd kind of moral legislator. As David Hume argued, property rights require an institution that creates, defines, and enforces them, and is justified by the benefits it brings to all affected by it. It follows that if there are property rights that can be coercively enforced, justifiable coercion is not limited to the enforcement of “natural” rights. So a rights-based idea of mere non-interference does not provide a foundation for libertarian politics.

There are no property rights independent of some institution defining them, but it is generally agreed that there should be such an institution. The question is what form this institution should take.

This question cannot be answered by glib appeals to “liberty” in the abstract, because the answer—the particular arrangement of legal duties—entails a choice between rival freedoms. Again, these thoughts are not entirely original, but they merit repeating.

Diagnosing Inequality

Thomas Piketty has responded to his critics at the Financial Times. What Chris Giles rejected as clumsy errors, Piketty defended as necessary adjustments. I doubt the dispute has been settled once and for all, but two clear lessons could be drawn from this exchange.

1) Demand outstrips the available data. Reliable measures of wealth inequality are quite sparse. So, gaps are filled by making rough adjustments and splicing together data from different sources. The process bears some resemblance to the making of sausages.

2) Too many data pundits are quick to say, “No matter how you look at The Data, this follows.” However, they actually mean, “Following my interpretation of this particular set of data, I arrive at this conclusion.” Such pundits rely, as Daniel Davies said, on a “childish insistence that ‘the data’ must give you definitive answers.”

As I have said before, no data set is interpreted outside of some conceptual framework. In Piketty’s case, he asserted two Fundamental Laws of Capitalism. But his grandiose “laws” have been severely diminished: the first here and the second here.

As James Galbraith said, “None of this is to deny that rising inequality has occurred. Nor to claim that it doesn’t matter.” But if you botch the diagnosis, you are more likely to screw up the remedy.

Housing Capital in the 21st Century

When most people talk about rising inequality, do they mean to say that houses are valued at higher prices? Probably not, but housing capital is central to Thomas Piketty’s narrative of the new inequality. So claim four French economists—Odran Bonnet, Pierre-Henri Bono, Guillaume Chapelle, and Etienne Wasmer—in a paper sharply challenges Piketty’s theory of capital.

In Capital in the 21st Century, Piketty argued that “the process by which wealth is accumulated and distributed contains powerful forces pushing toward divergence, or at any rate, toward an extremely high level of inequality.” Here, in the words of the four French economists, is how the process works:

Divergence is a dynamic concept that arises from the process of accumulating capital. Capital produces earnings and returns and thus it accumulates and self-develops. [....]

First, the higher the capital/income ratio, the higher the earnings of capital relative to labor. Second, if the rate of return on capital (r) is higher than the growth rate of the economy (g), the capital/income ratio will rise, eventually leading to a world where a class of owners would have perpetually increasing income from capital due to rising accumulated wealth. [Piketty] documents the strong rise of the capital/income ratio, especially in France, but also provides evidence of a similar trend in other countries. He suggests a worrisome accumulation of wealth in just a few hands and a rise in inequality.

But the four critics see an inconsistency between “the theory—the model of infinite accumulation of capital through rising earnings relative to national income—and the choice to include housing capital in total capital.” They note that housing as a component of capital has long been a source of contention:

In particular, housing capital does not provide a good measure of actual return on capital. Housing is both a consumption good, the price of which comes from rental or shelter costs, and an investment good, yielding an income corresponding to the rent. Only landlords (who represent a relatively small fraction of the population) effectively receive monetary income from their housing capital. Owner-occupiers do not receive any income. However they do save on rent and receive an implicit rent. Returns on housing capital (the key ingredient in the “r” part of the “r — g” model) are therefore more accurately measured by rent on housing, be it monetary or only implicit.

The valuation of housing capital based on housing prices is actually disconnected from the inequality-generating process that the author wants to establish. For the value of housing capital to be consistent with the underlying theoretical analysis, the value must correspond to an actualized value of rent and not rely on housing prices. The two measures are only equivalent in the absence of a divergence between housing prices and rent.

The rise of housing capital, due to the rise in housing prices, they argue, is what lies behind the contemporary rise in Piketty’s capital. Capital that could be classified as productive has risen weakly relative to income.

The authors argue that rent, not housing prices, are what matter for the dynamics of inequality, “because rent represents both the actual income of housing capital for landlords and the dwelling costs saved by ‘owner-occupiers’ (people living in their own houses).” When the authors recalculate the value of housing capital based on rent indices, their results contradict Piketty. But even if one rejects this revised method, it is not even clear that long term comparisons of housing capital make sense:

[C]urrently, homeowners are the majority of households (56% in France, 70% in the UK). In 1950, this proportion was respectively 37% and 30%. This is even further away from Karl Marx’s description of 19th century England where, for 20 million inhabitants, he only counted 36,000 homeowners. It is therefore highly problematic to analyze the dynamics of capital inequality without being very specific about its distribution in the population.

The rate of homeownership in America started higher and also rose over the last century. U.S. rates were: 48% in 1890, 55% in 1950, and 65% in 2010. The authors acknowledge that rising prices for housing has consequences for access to housing and “the wealth trajectories of individuals and dynasties.” But these fall short of the “explosive dynamics” of Piketty’s analysis. This criticism is one of the smartest I have read, and I would like to see a response from either Piketty or one of his many expositors.

UPDATE (May 23, 2014): Chris Giles uncovered many questionable practices in Piketty’s estimates. Also, George Cooper wrote as smart challenge to Piketty’s narrative of the decline in capital about a century ago. There should be some account of what happened to agricultural capital.

UPDATE (May 25, 2014): James K. Galbraith clarified what Piketty’s “r” actually measures. Once the prevailing misinterpretations are corrected, Piketty’s theory comes undone. The goal, as Galbraith said, “was to turn the historical record into fundamental laws and long-range tendencies. Despite strong claims—accepted by many reviewers—it now seems clear that this project fell short.”

UPDATE (May 29, 2014): What Galbraith criticized was Piketty’s first “fundamental law.” James Hamilton debunked the second.

Love Bombs


A message of universal kinship from

Out of their love for humanity, anarchist vigilantes have been stalking and harassing private citizens. Back in 2012, they smashed up cars and storefronts in San Francisco’s Mission District. More recently, they have hounded Google employees in the Bay Area with blockades, acts of vandalism, and demands to get out of town:

If you want a Bay Area where the ultra-rich are pitted against hundreds of thousands of poor people, keep doing what you’re doing. You’ll have a nice revolution outside your door. But if you want out then you should quit your jobs, cash out, and go live a life that doesn’t completely fuck up someone else’s.


In January, vigilantes accosted Google engineer Anthony Levandowski outside of his house. They passed out flyers that charged Levandowski with “gentrifying neighborhoods, flooding the market with noxious commodities, and creating the infrastructure for an unimaginable totalitarianism.” After the confrontation, a statement posted by The Counterforce said:

All of Google’s employees should be prevented from getting to work. All surveillance infrastructure should be destroyed. No luxury condos should be built. No one should be displaced. [....]

Our problem is with Google, its pervasive surveillance capabilities utilized by the NSA, the technologies it is developing, and the gentrification its employees are causing in every city they inhabit. But our problem does not stop with Google. All of you other tech companies, all of you other developers and everyone else building the new surveillance state—We’re coming for you next.

This month, The Counterforce condemned Google Ventures partner Kevin Rose as a “parasite” and told him via banner: “I’MA SNIP SNIP YR BALLZ ☺” They chose to “bring the class war to his doorstep,” because they viewed Rose as “part of a larger structure that keeps people enslaved to this single economic system that is literally killing the planet and decreasing the chances of continued life.” They chastised him for investing in startups, because these “perpetuate the process of alienation under the guise of social technology.” The close of their statement said:

We now make our first clear demand of Google. We demand that Google give three billion dollars to an anarchist organization of our choosing. This money will then be used to create autonomous, anti-capitalist, and anti-racist communities throughout the Bay Area and Northern California. In these communities, whether in San Francisco or in the woods, no one will ever have to pay rent and housing will be free. With this three billion from Google, we will solve the housing crisis in the Bay Area and prove to the world that an anarchist world is not only possible but in fact irrepressible. If given the chance, most humans will pursue a course towards increased freedom and greater liberty. As it stands, only people like Kevin Rose are given the opportunity to reshape their world, and look at what they do with those opportunities.

We know that your security advisors are taking our analysis seriously, so if you are confident that your system is the best, it would be wise to give us three billion to see if we fail. Our wager is that you are scared of the viable alternative we would create. If you are not scared, contact us at our WordPress website. Send us a message and we can go from there. Otherwise, get ready for a revolution neither you nor we can control, a revolution that will spread to all of the poor, exploited, and degraded members of this new tech-society and be directed towards you for your bad decisions and irresponsible activities. We advise you to take us seriously.

For a world without bosses, rulers, or cops! Down with the Empire, up with the Spring!

Many (perhaps most) of those who raise the specter of revolutionary violence lack the nerve to act, but that is no excuse for liberal acquiescence. These threats are the left equivalent of “Second Amendment remedies.” And yet, intimidation has been zealously encouraged by some pundits on liberal websites. Back in January, Salon published a defense of house calls by vigilantes. Natasha Lennard said:

Intimidation tactics targeting the employees of major corporations are nothing new and have a history of success: Indeed, animal rights activists achieved some major victories in securing the closure of animal testing facilities in the ’90s and early 2000s through the intimidation of key investors. This intimidation was deemed terrorism, but, hey, it worked. The Google protesters appear to be paying homage to this model. Their manifesto ends, “We’re coming for you next,” and echo the Animal Liberation Front’s haunting slogan, “We are everywhere.” [....]

Whether targeting individual Google employees is an effective tactic is not really my interest here. Certainly, I concede that it will hardly uproot Google’s hegemonic position, nor will the surveillance state be dismantled. Andrew Leonard cited one Bay Area resident describing the latest militant anti-Google protest as “a group of people violently broaching civic norms.” I say: precisely. Civic norms in our current epoch entail the forgoing of privacy, the enabling of a totalized surveillance state, the steady displacement of poor residents by wealthier implants in all major metropolises. The world’s richest 85 people have as much wealth as half the world’s population put together. These are our current civic norms; they deserve some violent broaching.

It seems Lennard, who is an apologist for insurrectionary anarchism, was referring to the campaign against Huntingdon Life Sciences. The campaign included “home demonstrations” and several bombings.

Of course, assaults by anarchists should be placed in the proper context. Anarchists who turn to insurrection are not grievance bots. Their criminal actions are not an automatic response to injustice. Anarchists have agency, and their choice of redress depends in part on their political imagination—on their pursuit of the millennium.

Peace, love, and absolute liberty is the promise of anarchism. After the social revolution, everyone shall live in harmony without coercion or hierarchy. We shall not have to give up any portion of our liberty to preserve the rest. The underlying conceit is that human beings are innately anarchists, but most of us have been deceived. We have forgotten our true humanity. Anarchism is our re-education.

According to this creed, we should cleanse our minds of statist pollution and clear our lives of statist distortion. For no government can be legitimate. Every state is fascist. If the scales were to fall from our eyes, we would rise up and smash the state. This would bring about, in the words of Mikhail Bakunin, “a qualitative transformation, a new living, life-giving revelation, a new heaven and a new earth, a young and mighty world in which all our present dissonances will be resolved into a harmonious whole.” This belief in a just and spontaneous order cannot be refuted by any fratricidal chaos, because anarchists can always blame the persistence of statist corruption.

Yet for some reason, states endure, hierarchies are pervasive, and some degree of coercion can be found almost everywhere. So while anarchists may come in dozens of hyphenated varieties, they all face the same dilemma. As John Gray said:

If they are to pose a challenge to the prevailing order, they need to protect themselves against repression and subversion by the state. When they organise to defend themselves, they soon come to resemble the state in secrecy and ruthlessness. The revolutionaries’ dilemma is clear: either they remain high-mindedly pure and impotent, or they end up as repressive as the regime they are fighting, if not more so.

Some anarchists prefer to work by peaceful example, by creating alternative communities or fashioning new lifestyles. They build to replace the existing order, and their practice may even be ennobling. But others conspire and take arms against a fallen world. They place their trust in what Mikhail Bakunin called the “eternal spirit which destroys and annihilates only because it is the unsearchable and eternally creative source of all life.” For them, as for Bakunin’s notorious “tiger cub,” destruction of the existing order is inherently creative.

America’s experience with the latter included the adherents of Luigi Galleani. At the site of some of their bombings in 1919, they left behind these plain words:

We are not many, perhaps more than you dream of, though but are all determined to fight to the last, till a man remains buried in your Bastilles, till a hostage of the working class is left to the tortures of your police system, and will never rest until your fall is complete, and the laboring masses have taken possession of all that rightly belongs to them.

There will be bloodshed; we will not dodge; there will have to be murder: we will kill, because it is necessary; there will have to be destruction; we will destroy to rid the world of your tyrannical institutions. [....]

Long live social revolution! Down with tyranny!

Granted, they had an inflated sense of their ability to incite a revolution. But so did Timothy McVeigh. The similarities may be greater than many realize. The primary suspect behind the 1920 bombing of Wall Street was a Galleanist named Mario Buda. That explosion killed over three dozen people and maimed hundreds more.


In spite of what insurrectionists have done with explosives, many on the left dismiss the bomb-throwing anarchist as a statist caricature. They are quick to cite the Haymarket Square bombing of 1886, for which several anarchists were tried and convicted. But the analogy is less than exculpatory. There was evidence of a criminal conspiracy.

In a time of civil peace, the presumption should be against the use of political violence. The burden of justification is on those who play at civil war. But insurrectionary anarchists turn this presumption upside down. It is not they who should answer to the rest of us for their violence; it is we statists who must answer to humanity’s redeemers. We are to atone for the sins of the world. We are called, in words of anarchist Alexander Berkman, a failed assassin, to “grow the wings” of an angel.

It may be true, as Leszek Kolakowski once said, that “the human race cannot survive without the idea of universal brotherhood, no matter how impracticable it might be.” But, as Kolakowski also warned, this dream “becomes pernicious and malignant if its adherents convince themselves that they have a technical prescription for implementing it.” Their pursuit of utopia becomes a self-contradiction. Hence, insurrectionary anarchists “promise us brotherhood by decree” and proceed to coerce us into freedom:

Destruction is the only thing they are capable of thinking about and they are not really much interested in what will come next; sometimes they even raise this lack of interest and their intellectual helplessness to the dignity of a superior wisdom (“one cannot predict the future forms of society, the point is to smash the existing one.”) They share with most ideologically committed Marxists an anti-historical mentality, not in the sense of being necessarily uninterested in history but in the sense of believing that at a certain date people can shed the burden of their past and start “true history” afresh, so that a truly new man [and woman], immune to the past, will emerge.

Insurrectionary anarchists judge their criminal actions, not by some statist morality, but by a millenarian promise to being the world anew. They are never the aggressors, because they are always aggrieved by the absence of heaven on earth. This was the logic behind Emma Goldman’s defense of Leon Czolgosz, after he shot and killed President McKinley:

Anarchism and violence are as far apart from each other as liberty and tyranny. I care not what the rabble says; but to those who are still capable of understanding I would say that Anarchism, being, a philosophy of life, aims to establish a state of society in which man’s inner make-up and the conditions around him, can blend harmoniously, so that he will be able to utilize all the forces to enlarge and beautify the life about him. To those I would also say that I do not advocate violence; government does this, and force begets force. [....]

Violence will die a natural death when man will learn to understand that each unit has its place in the universe, and while being closely linked together, it must remain free to grow and expand.

Goldman did not answer whether Czolgosz was a random lunatic or a genuine anarchist. Nor did she offer anyway to distinguish between cynical criminals and sincere revolutionaries. Instead, she bowed “in reverent silence before the power of such a soul, that has broken the narrow walls of its prison, and has taken a daring leap into the unknown.” Elsewhere, Goldman said the assassination was “an act of self-defence,” about which there was “nothing unanarchistic.” Because Czolgosz “belonged to the Oppressed, the Exploited and Disinherited Millions,” he could claim special privileges and immunities.

According to Goldman, this insurrectionary elite derives their authority from their “sensitive nature,” which is unknown to the benighted “rabble.” Members of this enlightened vanguard “feel a wrong more keenly and with greater intensity than others.” They are superior to any acquiescent statist, because they possess “an abundance of love and an overflow of sympathy with the pain and sorrow around us, a love which seeks refuge in the embrace of mankind, a love so strong that it shrinks before no consequence, a love so broad that it can never be wrapped up in one object, as long as thousands perish, a love so all-absorbing that it can neither calculate, reason, investigate, but only dare at all costs.”

This love does not discriminate; it abides in any vigilante who claims to be among “the Oppressed, the Exploited and Disinherited Millions.” This love embraces a higher humanity, as opposed to the lesser beings who must endure its consequences. But our lives and liberties are an earthly concern, and anarchism is an otherworldly passion.


Isaiah Berlin crafted one of the darker versions of modern liberalism, but many Americans seem more interested in a cute (and often false) dichotomy between foxes and hedgehogs. They cast aside the former but earnestly invoke the latter, which is completely backwards. Berlin himself said of the contrasting critters, “I never meant it very seriously. I meant it as a kind of enjoyable intellectual game, but it was taken seriously. Every classification throws light on something.” He deserves better.

Those who care for more should read Berlin’s essays on liberty (“Historical Inevitability” in particular), one of his many books that are still in print. I am also partial to John Gray’s new introduction to his book Isaiah Berlin: An Interpretation of His Thought.

Wow! So Data! Such Voice!

Numbers, like ventriloquist dummies, never speak for themselves. The voice of data is the voice of an interpreter. As Paul Krugman said:

You use data to inform your analysis, you let it tell you that your pet hypothesis is wrong, but data are never a substitute for hard thinking. If you think the data are speaking for themselves, what you’re really doing is implicit theorizing, which is a really bad idea (because you can’t test your assumptions if you don’t even know what you’re assuming.)

Before data can be brought to bear on anything, the analyst must make assumptions. They deem some factors as important and assert some behavioral relationship. They accept some measurements as reasonably accurate and relevant to the question at hand—a signal for one question can be noise for another. And few, if any, hypotheses are tested in isolation. Instead, they are often part of a system of beliefs. When a set of observations do not seem to fit a hypothesis, decisions must be made about which assumptions to accept and which ones to reject.

Of course, it would be impossible for any analyst to get any work done if they never took anything for granted. Background assumptions are inevitable. Yet, as Krugman said, honest interpreters have an obligation to tell us why they think the data matter. When underlying ideas are not clear, they should be made so. When assumptions are contested, they should be defended.

All of these concerns, I should be clear, are about how to find reliable answers to empirical questions. But while those answers are crucial to debates over public policy, not every policy dispute can be reduced to a technical problem alone.