Abolishing a Petulant Veto

Last year, David Frum was one of the few pundits to offer a plausible solution to repeated threats of a government shutdown. Make continuing resolutions automatic:

The United States is not the only country to have budget disputes. Other democracies cope with these inevitable disagreements by the simple rule: If no budget can be agreed, simply carry over the previous year’s budget month by month until agreement is ultimately reached. While politicians negotiate, travelers can still renew their passports. Obvious, no? Why not here?

The fact is, most of the time, Americans already do this. Formal budgeting tends to sputter to a halt in periods of divided government. The continuing resolutions that fund the federal government were invented as exactly the kind of work-around that other democracies use. So let’s ensure that the continuing resolutions continue when they are needed most, when the differences seem most acute. The whole point of democracy is that there are no disagreements so acute that they are worth overthrowing the government and the state.

It was a good idea then, and it’s a good idea now. Liberals and conservatives can argue over what formula should be used to determine spending levels (maintain previous levels, decrease as the fiscal year passes to encourage Congress to act, adjust for inflation and population growth, etc.) Yet, almost any automatic mechanism would be better than the status quo, which is pathetic and despicable.

Of course, I am simply arguing for what should be done, not what I expect will happen. I am beginning to suspect that the primary feeling some Democrats have for Ted Cruz Republicans is jealousy.

Democracy and Illegal Protest

In the late 1960s, Sidney Hook wrote a lucid essay on democracy and social protest. Hook defined his position as “neither blind obedience nor uncivil disobedience.” Citizens in a liberal democracy, he said, “are free to disagree with a law but that so long as it remains in force they have a prima facie obligation to obey it.” The presumption should be against illegal action. When someone breaks a law they deem unjust, say, to dramatize why it is wrong, they should face the consequences.

The onus must be on the protester to justify themselves to their fellow citizens. Hook’s rationale for this belief was to “escape the twin evils of tyranny and anarchy.”

Tyranny is avoided by virtue of the freedom and power of dissent to win the uncoerced consent of the community. Anarchy is avoided by reliance on due process, the recognition that there is a right way to correct a wrong, and a wrong way to secure a right. To the extent that anything is demonstrable in human affairs, we have held that democracy as a political system is not viable if members systematically refuse to obey laws whose wisdom or morality they dispute.

Hook went on to condemn those “ritualistic liberals” who would substitute “for the absolutism of law, something very close to the absolutism of individual conscience.”

Properly rejecting the view that the law, no matter how unjust, must be obeyed in all circumstances, they have taken the view that the law is to be obeyed only when the individual deems it just or when it does not outrage his [or her] conscience. Fantastic comparisons are made between those who do not act on the dictates of their conscience and those who accepted and obeyed Hitler’s laws. These comparisons completely disregard the systems of law involved, the presence of alternatives of action, the differences in the behavior commanded, in degrees of complicity of guilt, in the moral costs and personal consequences of compliance, and other relevant matters.

It is commendable to recognize the primacy of morality to law, but unless we recognize the centrality of intelligence to morality we stumble with blind self-righteousness into moral disaster. Because, Kant to the contrary notwithstanding, it is not wrong sometimes to lie to save a human life, because it is not wrong sometimes to kill in defense to save many more from being killed, it does not follow that the moral principles: “Do not lie!” “Do not kill!” are invalid. When more than one valid principle bears on a problem of moral experience, the very fact of their conflict means that not all of them can hold unqualifiedly. One of them must be denied. The point is that such negation or violation entails upon us the obligation of justifying it, and moral justification is a matter of reasons not of conscience. The burden of proof rests on the person violating the rules. Normally, we don’t have to justify telling the truth. We do have to justify not telling the truth. Similarly, with respect to the moral obligation of a democrat who breaches his political obligation to obey the laws of a democratic community. The resort to conscience is not enough. There must always be reasonable justification.

Conscience, like so many human facilities, is fallible. It can be less righteous than it seems:

Conscience by itself is not the measure of high or low moral ground. This is the work of reason. Where it functions properly the democratic process permits this resort to reason. If the man [or women] of conscience loses in the court of reason, why should he [or she] assume that the decision or the law is mistaken rather than the deliverances of his [or her] conscience?

The voice of conscience may sound loud and clear. But it may conflict at times not only with the law but with another man’s [or woman’s] conscience. Every conscientious objector to a law knows that at least one man’s [or woman’s] conscience is wrong, viz., the conscience of the man [or woman] who asserts that his [sic, recurs] conscience tells him that he must not tolerate conscientious objectors. From this if he is reasonable he should conclude that when he hears the voice of conscience he is hearing not the voice of God, but the voice of a finite, limited man [or woman] in this time and in this place, and that conscience is neither a special nor an infallible organ of apprehending moral truth, that conscience without conscientiousness, conscience which does not cap the process of critical reflective morality, is likely to be prejudice masquerading as a First Principle or a Mandate from Heaven.

The activist left, in Hook’s day as in ours, often claims that illegal protests are an exercise of democracy. In doing so, they are guilty of rhetorical deception. They redefine democracy not as “the presence or absence of democratic institutions,” but by “whether or not they get their political way.” The underlying conceit is authoritarian:

The rules of the game exist to enable them to win and if they lose that’s sufficient proof the game is rigged and dishonest. The sincerity with which the position is held is no evidence whatsoever of its coherence. The right to petition does not carry with it the right to be heard if that means successfully influencing those to whom it is addressed. What would they do if they received incompatible petitions from two different and hostile groups of petitioning citizens? The right of petition gives one a chance to persuade, and the persuasion must rest on the power of words, on the effective appeal to emotion, sympathy, reason, and logic. Petitions are weapons of criticism, and their failure does not justify appeal to the criticism of weapons. Some groups that have resorted both to civil and uncivil disobedience justify themselves by claiming that the authorities did not listen to their demands on the ground that their demands were not granted. This begs all the questions about the legitimacy and the cogency of the demands.

When the activist left resorts to rioting or worse, a threshold has been breached. Liberals are no longer dealing with overzealous allies who made a poor choice of tactics. We are dealing with enemies of the open society.

Propaganda of the Deed

V for Vendetta, the film which first sold that hyper-stylized mask of Guy Fawkes, is a myth. Specifically, it is the anarchist fable of propaganda of the deed. A liberator of all humanity strikes against tyranny and inspires a revolution. So goes the grandiose fantasy. The actual history has been far more squalid. It, too, has been given a cinematic treatment.

The Baader Meinhof Complex is the story of the Red Army Faction, which was a West German gang of urban guerrillas. The complex referred to in the title is psychological. Christopher Hitchens wrote a sharp description of this mindset in his review of the film:

There was a prevalent mystique in those days about the Cuban and Vietnamese and Mozambican revolutions, as well as about various vague but supposedly glamorous groups such as the Tupamaros in Uruguay. In the United States, the brief resort to violence by the Black Panthers and then by the Weather Underground was always imagined as an extension of “Third World” struggles onto the territory of imperialist North America. Other spasmodic attempts to raise armed insurrection—the so-called Front for the Liberation of Quebec, the I.R.A., and the Basque ETA—were confined to national or ethnic minorities. But there were three officially democratic countries where for several years an actual weaponized and organized group was able to issue a challenge, however garbled and inarticulate, to the very legitimacy of the state. The first such group was the Japanese Red Army, the second (named partly in honor of the first) was West Germany’s Red Army Faction, led by Andreas Baader and Ulrike Meinhof, and the third was the Red Brigades in Italy.

You may notice that the three countries I have just mentioned were the very ones that made up the Axis during the Second World War. I am personally convinced that this is the main reason the phenomenon took the form it did: the propaganda of the terrorists, on the few occasions when they could be bothered to cobble together a manifesto, showed an almost neurotic need to “resist authority” in a way that their parents’ generation had so terribly failed to do. And this was also a brilliant way of placing the authorities on the defensive and luring them into a moral trap. West Germany in the late 1960s and 1970s is not actually holding any political prisoners. Very well then, we will commit violent crimes for political reasons and go to prison for them, and then there will be a special wing of the prison for us, and then the campaign to free the political prisoners by violence can get under way. This will strip the mask from the pseudo-democratic state and reveal the Nazi skull beneath its skin. [….]

It doesn’t take long for the sinister ramifications of the “complex” to become plain. Consumerism is equated with Fascism so that the firebombing of department stores can be justified. Ecstatic violence and “action” become ends in themselves. One can perhaps picture Ulrike Meinhof as a “Red” resister of Nazism in the 1930s, but if the analogy to that decade is allowed, then it is very much easier to envisage her brutally handsome pal Andreas Baader as an enthusiastic member of the Brownshirts. (The gang bought its first consignment of weapons from a member of Germany’s neo-Nazi underworld: no need to be choosy when you are so obviously in the right.) There is, as with all such movements, an uneasy relationship between sexuality and cruelty, and between casual or cynical attitudes to both.

The film, as Hitchens said, is indeed an acute portrayal of “the way in which mania feeds upon itself and becomes hysterical.” Any doubts or disagreements within the group “can always be attributed to betrayal or cowardice, resulting in mini-purges and micro-lynchings within the gang itself.” In this psychodrama, the revolutionary promise can never be falsified; it can only be betrayed.

Personal Data and Abuses of Trust

Like most Americans, I have concerns about how companies like Google, Amazon, and Facebook handle data about their users. While I expect companies to use this data their own benefit, their actions should not cause me undue harm. Companies should honor the commitments they make in their privacy policies. They should be fairly transparent about their data practices, and they should guard against user data being pilfered for malign purposes. But for these concerns, use and abuse is a better distinction than privacy and disclosure.

The notion of privacy, as Benjamin Wittes and Wells C. Bennett said, is “something of an intellectual rabbit hole.” It is “so contested and ill-defined that it often offers little guidance” on the uses and abuses of personal information. So, Wittes and Bennett suggest the alternative notion of “databuse.”

The Constitution, as they said, “made no mention of privacy.”

The Constitution did not have to, because in the founding era, it was exceedingly difficult to invade privacy interests without also trespassing against personal property or impinging upon an individual’s freedom of conscience or right to keep mum—areas well covered already by the First, Third, Fourth, and Fifth Amendments. This arrangement did not stand up over time, however, given technological advances. Because of those, notions of privacy started to decouple from property and other rights, first in our minds and ultimately in our law. We created privacy because technology left previous doctrines unable to describe the intrusions on our seclusion that we were feeling.

Ironically, today it is privacy itself that no longer adequately describes the violations people experience with respect to large caches of personal data held by others—and it describes those violations less and less well as time goes on. Much of the material that makes up these datasets, after all, involves records of events that take place in public, not in private. Much of this data is sensitive only in aggregation; it is often trivial in and of itself—and we consequently think little of giving it, or the rights to use it, away. As a legal matter, this sort of data by its nature involves material we have disclosed to others in exchange for some benefit, and it thus generally lies outside of the protections of the Fourth Amendment—which does not cover the actions of non-governmental parties. What’s more, we often give this information away with the understanding, implicit or explicit, that it will be aggregated and mined for what it might say about us. It takes a feat of intellectual jujitsu to construct a cognizable and actionable set of privacy interests out of the amalgamation of public activities in which one has engaged knowingly, and which involved trades with strangers in exchange for benefits. The term privacy has become something of a crutch, a description of many different values of quite different weights that neither accurately nor usefully depicts the harms we fear.

Hence the need for a new conceptual frame:

Think of databuse as that core of the privacy spectrum that is most modest in nature. Databuse is different from broader visions of privacy in that it does not presume as a starting point the non-disclosure, non-use, even quarantining from human eyes of data we have willingly transacted in exchange for services. It does not pretend that the companies to which we entrust our data should take it from us with no ambitions to use it for their own gain—or that there is something disreputable or inappropriate about their doing so. It does not begin with the assumption that there is some platonic ideal of seclusion that a company is bound to honor on our behalf, even if we don’t want it or even if we prefer to have our data used to market us products we might want to buy. It does not assume we feel violated by the knowledge that others may have of our lives—particularly if others are machines and using that information to provide us services and conveniences we happen to want. It does not assume we want our fitness monitors to shield the number of steps we take from our friends or from people we have never met; it instead treats the dissemination of such data—in whole or in part—as an option we might or might not want to choose.

Rather, databuse asks only for protection against unwarranted harms associated with entrusting our data to large entities in exchange for services from them. It asks that the costs of our engagement with these companies not be a total loss of control of the bits and pieces of transactional, communications, and locational data that make up the fabric of our day-to-day lives. It asks, in short, that the companies be reasonable and honest custodians—trustees—of the material we have put in their hands. It acknowledges that they will use it for their own purposes. It asks only that those purposes do not conflict with our own purposes or come at our expense.

Wittes brought the same candor and clarity to debates about the National Security Agency. Most of his commentary can be found on the Lawfare blog, in posts like this one and this one. The best statement of his position was the essay “Legal Safeguards, Not Disarmament.”

Naomi Klein Versus Climate Action

Naomi Klein wants action on climate change. Klein also wants to end our estrangement from Nature. These are cross purposes. Pursuing an end to alienation, on her terms, would cripple our ability to reduce carbon emissions. At least, that was the warning I took from Will Boisvert’s review of This Changes Everything: Capitalism Vs. the Climate:

For all its vehemence, Klein’s everythingism—her conviction that everything is threatened, that everything must change, that everything is settled about how to change, and that everything will be reconciled in the coming state of nature—falls far short of a useful call to action. A book about changing everything needs to know how everything works and interacts so as to set priorities and strike balances, but Klein proceeds more by romantic enthusiasm and anathema than by detailed knowledge and analysis. Her views are all the more troubling because they faithfully reflect the received wisdom on the Left about environmental and climate policy. Given the vigor of the green movement and its impressive success at influencing policy makers and capturing the public imagination, these ideas will help shape the world’s response to global warming. Klein’s book therefore provokes a disturbing question: having done so much to put the crucial issue of climate change on the agenda, does the Left have anything coherent to say about it?

Boisvert’s refutation is very meticulous, which makes it all the more devastating. His essay should be read in its entirety.

Yes, Boisvert supports nuclear power. I used to have some reservations, but pro-nuclear environmentalists currently have the better side of the argument.

Engineering Choice

The structure of a choice matters. For example, many employees have the option to enroll in a 401(k) plan, but they do not contribute. Even those who agree it would be in their interest to make contributions often fail to do so. A likely reason is inertia. Progressives like Cass Sunstein would turn this inertia to the employee’s advantage. They would restructure the choice by changing the default. Instead of having to opt in to a 401(k) plan, employees would be enrolled automatically. They could still opt out, if they acted. Otherwise, they would be “nudged” to save.

Sunstein believes public policy can be improved by a greater use of such “nudges.” After all, designing choices is already a common practice in our society. From cellphone companies to Herbalife distributors, many businesses have long understood that a customer’s choice can be altered by the framing of their options. Sunstein would apply similar techniques, but he would do so for public interest rather than private gain. When confronted with obstinate habits or a genuine lack of awareness, there may be some case for Sunstein’s paternalism. However, there is more to “solving social problems” than overcoming bias and correcting for ignorance.

Some of Sunstein’s critics, like Sarah Palin and Glenn Beck, can be easily dismissed. But liberal philosopher Jeremy Waldron is more compelling. In his recent essay “It’s All for Your Own Good,” Waldron marked the appropriate limits of engineering choice.

Sunstein’s paternalism raises issues of trust and competence. To merit our trust, the engineer’s preferences for our choices must be something we can accept. And agreeable intentions alone are never enough. The restructured choice must be a reliable means to the desired end. But according to Waldron, these issues are compounded by two deeper problems. One is the vanguard conceit:

As befits someone who was “regulation czar” in the Obama White House, Sunstein’s point of view is a rather lofty one and at times it has an uncomfortable affinity with what Bernard Williams once called “Government House utilitarianism.” Government House utilitarianism was a moral philosophy that envisaged an elite who knew the moral truth and could put out simple rules for the natives (or ordinary people) to use, even though in the commissioner’s bungalow it was known that the use of these rules would not always be justified. We (the governors) know that lying, for example, is sometimes justified, but we don’t want to let on to the natives, who may not have the wit to figure out when this is so; we don’t trust them to make the calculations that we make about when the ordinary rules should not be followed. Williams saw the element of insult in this sort of approach to morality, and I think it is discernable in Sunstein’s nudging as well.

For Sunstein’s idea is that we who know better should manipulate the choice architecture so that those who are less likely to perceive what is good for them can be induced to choose the options that we have decided are in their best interest. Thaler and Sunstein talk sometimes of “asymmetric paternalism.” The guiding principle of this approach

“is that we should design policies that help the least sophisticated people in society while imposing the smallest possible costs on the most sophisticated.”

This is a benign impulse on their part, but it is not a million miles away from the condescension that worried Bernard Williams.

The second deep problem is dignity. By dignity, Waldron means “the sense of self-respect, an individual’s awareness of her own worth as a chooser.” He does not deny that our willed actions are often “flawed and misguided.” However, he is not impressed by Sunstein’s response to this concern. Waldron said:

He begins by coupling the objection about dignity with an objection about autonomy, the privileging of each individual’s independent control of her life. The two go together, says Sunstein, though he acknowledges that the complaint about dignity is the more fundamental of the two. Having said that, however, Sunstein seems happy to associate himself with those who maintain that dignity just equals autonomy or that if there is anything left out of that equation, it is not worth bothering with.

Sunstein’s second move is to equate autonomy and well-being (or, more crudely, “utility”—the economist’s word for the satisfaction of needs and wants). He toys first with the idea that autonomy is just a preference like any other. If people like choosing, he says, we can design environments in which they are forced to state a preference—no meal unless you order; no pension unless you opt in or opt out of a 401(k). I am afraid that’s a trivialization. Autonomy is not just one preference among others; it is a principle about how one’s preferences are pursued.

Eventually what we are told by Sunstein is that autonomy is just a surrogate for welfare—what people ultimately want is the promotion of their own well-being and it doesn’t really matter how that comes about. At best autonomy is a heuristic: “People speak in terms of autonomy, but what they are doing is making a rapid, intuitive judgment about welfare.” I must say that I find all of this remarkably tone-deaf to concerns about autonomy.

And allowing dignity to just drop out of the picture is offensive. For by this stage, dignity is not being mentioned at all. Sunstein does acknowledge that people might feel infantilized by being nudged. He says that “people should not be regarded as children; they should be treated with respect.” But saying that is not enough. We actually have to reconcile nudging with a steadfast commitment to self-respect.

Consider the earlier point about heuristics—the rules for behavior that we habitually follow. Nudging doesn’t teach me not to use inappropriate heuristics or to abandon irrational intuitions or outdated rules of thumb. It does not try to educate my choosing, for maybe I am unteachable. Instead it builds on my foibles. It manipulates my sense of the situation so that some heuristic—for example, a lazy feeling that I don’t need to think about saving for retirement—which is in principle inappropriate for the choice that I face, will still, thanks to a nudge, yield the answer that rational reflection would yield. Instead of teaching me to think actively about retirement, it takes advantage of my inertia. Instead of teaching me not to automatically choose the first item on the menu, it moves the objectively desirable items up to first place.

I still use the same defective strategies but now things have been arranged to make that work out better. Nudging takes advantage of my deficiencies in the way one indulges a child. The people doing this (up in Government House) are not exactly using me as a mere means in violation of some Kantian imperative. They are supposed to be doing it for my own good. Still, my choosing is being made a mere means to my ends by somebody else—and I think this is what the concern about dignity is all about.

Choices, as Waldron said, “are always going to be structured in some manner, whether it’s deliberately designed or happens at random.” Waldron is not claiming it could be otherwise. Instead, he is offering a word of caution against technocratic hubris. His essay is a fine expression of what I mean by liberal, but not progressive.

UPDATE (October 2, 2014): Steven Poole wrote a smart variation on the same theme. Poole said, “if we want to understand others, we can always ask what is making their behaviour ‘rational’ from their point of view. If, on the other hand, we just assume they are irrational, no further conversation can take place.”

Another Word for Blasphemy

Many well-meaning Americans, including President Obama, say no religion condones the mass execution of innocents. They condemn the Islamic State for slaughtering infidels, but they deny the caliphate is truly religious. No true person of faith would engage in terrorism, the reasoning goes, just as no true Scotsman would put sugar on their porridge.

This mental contortion may have something to do with a peculiar and illiberal form of social pressure. Debates about a range of issues—from jihad to honor killings—are being distorted, as Ali A. Rizvi said, by “the phobia of being called Islamophobic.”

As a brown-skinned person with a Muslim name, I can get away with a lot more than you’d think. I can publicly parade my wife or daughters around in head-to-toe burqas and be excused out of “respect” for my culture and/or religion, thanks to the racism of lowered expectations. I can re-define “racism” as something non-whites can never harbor against whites, and cite colonialism and imperialism as justification for my prejudice.

And in an increasingly effective move that’s fast become something of an epidemic, I can shame you into silence for criticizing my ideas simply by calling you bigoted or Islamophobic.

For decades, Muslims around the world have rightly complained about the Israeli government labeling even legitimate criticism of its policies “anti-Semitic,” effectively shielding itself from accountability. Today, Muslim organizations like CAIR (Council on American-Islamic Relations) have borrowed a page from their playbook with the “Islamophobia” label—and taken it even further.

In addition to calling out prejudice against Muslims (a people), the term “Islamophobia” seeks to shield Islam itself (an ideology) from criticism. It’s as if every time you said smoking was a filthy habit, you were perceived to be calling all smokers filthy people.

This rhetorical feint is also used by the Organization of Islamic Cooperation. The Organization has fifty seven member states and claims to speak as “the collective voice of the Muslim world.” They have campaigned for years against the defamation of Islam. In their 1990 declaration on human rights and Islam, they said every person has the right to freely express their opinions—but only “in such manner as would not be contrary to the principles of the Shari’a.” In their usage, “Islamophobia” is just another word for blasphemy.

As Rizvi warned, liberals should not, in the name of tolerance, take “an apologist stance in favor of the intolerant.” Individuals deserve respect for their dignity as persons. Their ideas about the world and how it should be governed are a different matter. Respect for such claims must be earned; it is not an entitlement. No idea deserves immunity from criticism, regardless of how it is classified.

Yes, the criticism of religious doctrine can be offensive to believers. The free exchange of ideas is not entirely painless. It never has been, and it never will be. Jonathan Rauch made this point with great force and clarity in Kindly Inquisitors: The New Attacks on Free Thought. When we curtail the freedom to speak in ways that religious authorities deem hurtful, we curtail the freedom to contradict their ideological pronouncements. We give their feelings precedence over their fatwas against those, like Theo van Gogh, who “insult Islam.”