State's rights versus Loving.

Mildred Jeter helped change America. Perhaps you aren’t familiar with her, at least by her maiden name. When she married took her husband’s surname and became Mildred Loving. Yesterday, she died, at age 68.

Mildred had married the man she loved, Richard. One night, as they slept, armed agents of the state burst into their home. They surrounded the couple and began the interrogation. Richard was asked who it was that he was sharing his bed with. Mildred answered instead: “I’m his wife.”

The police, no doubt found that amusing, and told Mildred, “That’s no good here.”

Virginia, like other Southern states, had enshrined “God’s law” into the legal code. And the South believed that God’s law said that marriage between the races was unnatural, sinful and ought to be a crime. So it was.

The Lovings were convicted and lectured by the judge for violating the will of God.

The Lovings eventually got up the courage to challenge the law and the matter went before the Supreme Court. They won. Conservatives of the day whined about “activist judges” and pleaded that the States had the right to regulate marriage even if done in a blatantly discriminatory manner. The Court held that the individuals right to marry superseded any claims that politicians have over preventing such marriages.

In recent years Mrs. Loving had ceased giving interviews. But last year, on the 40th anniversary of her Supreme Court victory, she did issue a statement:

When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married.

We didn’t get married in Washington because we wanted to marry there. We did it there because the government wouldn’t allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.

When Richard and I came back to our home in Virginia, happily married, we had no intention of battling over the law. We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?

Not long after our wedding, we were awakened in the middle of the night in our own bedroom by deputy sheriffs and actually arrested for the “crime” of marrying the wrong kind of person. Our marriage certificate was hanging on the wall above the bed. The state prosecuted Richard and me, and after we were found guilty, the judge declared: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.

We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a cause. We were fighting for our love.

Though it turned out we had to fight, happily Richard and I didn’t have to fight alone. Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and so many good people around the country willing to speak up, we took our case for the freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the Supreme Court ruled unanimously that, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” a “basic civil right.”

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

I particularly wish to draw attention to Mildred’s statement: “Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.”

Mildred is stating the libertarian case. No government, at any level, has legitimate authority to violate the rights of individuals. This is clearly a lesson that conservatives still have not learned, including conservatives who pretend to be libertarian. Loving got it. People like Root and Barr just don’t get it.

Slaves, shopkeepers and markets.

Here is a riddle for you. Imagine the world where slavery was commonplace. Why did the slaves work to benefit the slave owner? Was it because slaves, on a whole, loved laboring for the benefit of others? Was it a sense of a duty on their part? Was it because the slave master provided them with some water, some food, some shelter and protected them from others the way a farmer protects his herd from the wolf?

I sincerely doubt that most slaves were motivated by a sense of of obligation or gratitude. What they faced was a regime that was cruel but which promised more cruelity, of a more severe kind, if they didn’t comply with the wishes of the slave master.

Today most of us get up in the morning andlabor in one form or another. Much of what we do also benefits others. In a market economy it is difficult, if not impossible, to labor in a manner that only benefits one’s self. What gives labor value is that others value it, not that you enjoy it. If others want the value which your labor creates they have to enter into free exchange with you. If you didn’t gain value from this exchange you wouldn’t agree to it. If they didn’t gain value from this exchange they wouldn’t enter into it either.

The litmus test for the amount of slavery within a political or economic system is the amount of force required to inspire individuals to work for the benefit of others. What the slavers didn’t understand was that the amount of benefit derived from such an arrangment is smaller than it would be in a system of free exchange. The slave may be “inspired” to work in order to escape the lash but his inspiration is limited. He will work as hard as necessary to avoid punishment but is rarely willing to go beyond that.

In a system of free exchange the worker finds that his ability to satisfy his own wants and desires increases as he becomes more productive. He is inspired, by the added wealth that accrues to himself, to shower more benefits on others through his efforts. The entire sytem becomes more productive and what we call “society” tends to benefit.

One shouldn’t pretend that there were no benefits from slavery. The slave master benefited by the coerced labor of his slaves. But the society was poorer than it otherwise would have been if free exchange dominated. Chances are that slavery didn’t just distribute wealth from the slave to the slaver, but also redistributed wealth from the society in general to the slaver. Society was poorer by the absence of free exchange in order to endow the slaver with a small benefit.

The same thing is happening today in our mixed economy. Our society is a mixture of slavery and free exchange. Most of us work voluntarily, directly or indirectly, to produce goods and services that benefit the society at large. We do so voluntarily because such labor makes us better off. But about half the time to one third of the time we also work involuntarily in order to pay taxes.

The excuse for taxation is that it is necessary to benefit the society as a whole. In reality it benefits the class of individuals who decide how the fruits of your labor will be spent -- the political classes. And just as slavery provided the wrong incentives to slaves, and limited their economic output, taxation provides the wrong incentives to workers, and limits their economic output. The society, as a whole, is actually made poorer that it otherwise would have been in a system of pure free exchange.

But like the slave system there is a class of people who accrue small benefits to themselves through the forced labor of others. The political classes, those elected officials and their unelected bureaucratic lackeys directly benefit from the coerced labor imposed by taxation.

You pay your taxes for the same reason the slave gave the slaver as much labor as necessary to avoid the whip. If you don’t comply the state promises to use force against you. If you pay late they are very quick to send you a letter telling you how they will impose this force upon you and immediately penalize you for your failure to comply in a timely manner.

The idea that this arrangement benefits the society as a whole is an illusion. It is a classic example of Bastiat’s “broken window” fallacy where people see the benefits but not the costs. In Bastiat’s example a shopkeeper has a window broken and is forced to replace it. Those who replace the window benefit. They spend the money in various ways benefiting others as well. The conclusion drawn by the fallacious logic is that the broken window was a net benefit. That is what is seen.

But the shopkeeper lost money that he would have spent in other ways. That is not seen. The tailor who lost the sale of a suit is not counted in the equation because he is not seen. All the broken window did was transfer wealth from the tailor to the glazier. And society was the poorer because of it. The total wealth was down by one suit. The new window only replaced the old window adding no net benefit. Certainly the shopkeeper was worse off. He was out the money and never got the suit he wanted. Now imagine how bad this would be if the glaziers were free to go around breaking windows!

The glazier may try to convince us that society has net gains due to the value “created” by breaking windows. And as long as we only look at the one side of the equation this is true. Only when we take into account the lost benefits, and the lower wealth of the shopkeeper, do we see that these benefits turn in net losses.

Government is like the glazier and the slaver. It benefits from the forced labor of the populace. Just as both those special interests would argue that they were creating net benefits, the political classes do the same. And this remains true --- provided you only look at one side of the equation.

The moral problems of state power in regards to war.

Classical liberals and libertarians have often applied the morality of the individual to the collective. By that I mean they argue, and I think persuasively, that the collective is bound by the same moral principles as the individual. This was articulate nicely by Frederic Bastiat almost 160 years ago in his essay The Law.

But I think there is an error that some libertarians fall into regarding this argument. We see this error in the arguments of some of the pro war libertarians and psuedo-libertarians. One argument may go something like this:

Joe is sitting at home. Joe hears his very nasty neighbors plotting how they will come into his home and murder him and his family. He looks out the window and sees one of them loading a rifle. Another has pulled out a bayonet. Joe grabs his pistol. He realizes that there are several of them. He can’t afford to wait until they actually get into his home. Nor does he have time to call the police. He takes aim through his open widow and shoots all, of the neighbors. They fall dead on their lawn, never having actually reached Joe’s property line. Joe had every right to pre-empt his neighbors before they actually got into his home. While he technically fired first it was in self-defense.

At this point they make the jump. If the individual has the right to fire the first shot in self defense then a nation has the same right. The war in Iraq is warranted because Iraq was a threat to the safety of Americans and the prime function of government is protecting the life, liberty, and property of the individual.

But how does the state differ from the individual? Shouldn’t we consider those matters as well?

The individual who acts fires the first shot would expect that the police would arrive quickly and disarm him. He would expect that a full investigation is going to be carried out. He, as an individual, made a choice and he will bear all the consequences of that choice. If the evidence shows that the neighbors were going to attack, or that it was reasonable to assume they would, he will be vindicated and it is not likely he will face charges. But, if he was in error, he can expect to go prison. In some states he might expect the death penalty.

All the consequences, good or bad, are imposed on him alone.

Consider how the state does not, and can not, act like an individual. Consider this point from an article (pdf) entitled The Peace Principle.

It is well known that in collectives individuals can lose moral restraint. A lynch mob will kill, although as an individual each member would be horrified at the thought. Likewise, state power is a collective power in which the individuals who participate in decision-making lose their normal sense of responsibility for their actions. In fact the law often explicitly denies individual culpability in those who wield power.

Many of the restraints on individual action are entirely missing. The state is not so much like an individual as it is a lynch mob. Each decision-maker and functionary in the state apparatus is merely one small clog in a giant system. No one individual feels fully responsible for the actions of the system. Moral restraints that individuals would normally obey are loosened or abandoned completely. The history of the world proves this to be true.

Libertarians are fully aware of how the state apparatus leads to bad decisions in one policy after another. Why is that? Is it that the bureaucrats themselves are merely evil or inept?

Ludwig von Mises, in his masterful little gem, Bureaucracy, argued that the problems with bureaucracies are systemic problems. The bureaucratic system has incentives which distort information. Functionaries have to respond to the incentives and disincentives which are inherent in the system. This distorts their actions.

There is an entire school of economics, the Public Choice School, which explores the economics of the political system. They look at how incentives operate and how perverse incentives exist within the system which often lead to results which no wanted at the start.

The State is not an individual. It behaves very differently. Not only does it lack the moral responsibility that individuals face in their daily life but it also operates within a system of perverse incentives. State actions are too easily manipulated by special interest groups. The very ugly reality of politics is never far from even the most serious issue faced by the State. And what happens when the State acts wrongly? What if the evidence used to justify the pre-emptive attack is bogus, false, misunderstood, misinterpreted, etc? Nothing.

In the end the decision-makers are not held individually liable for the actions of the collective. There is no independent judge who looks at the facts. There is no trial. There are book deals for the major players, pensions for all of them, and often cozy jobs waiting for them when they leave their office.

And consider the potential damage. An individual who makes a mistake and “defends” himself against the wrong person inflicts a tragedy on someone, possible on several people. A powerful state inflicts damage on millions of people and has the ability to inflict harm on billions. Certainly there are few people in the world who have not felt, to some degree, the damage done by the Iraq invasion, if only at the gas pumps. But thousands of Americans lost their lives, hundreds of thousands lost a loved one or a friend. And hundreds of thousands died in Iraq and continue to die there. The entire world is less stable than before and the war inspired home-made terrorism in Western countries.

The individual’s errors are quickly caught and stopped. They are arrested and tried for them. State errors become institutionalized and linger on, sometimes for decades or centuries, in one form or another.

To reason from the example of the individual to the state, in this matter, is to ignore that one is comparing apples and oranges. The individual lives under a completely different set of rules and incentives. If we removed all responsibility from the individual, so he could launch pre-emptory strikes on flimsy evidence and suffer no legal sanctions for doing so, I suggest libertarians would be opposed to such individual actions as well. Individuals, thankfully, operate in a different universe. And that shouldn’t be forgotten when the issue of pre-emptory strikes are considered.

From start to finish the State is entirely different from the individual.

Does that mean that a pre-emptive strike is never justified? I wouldn’t say that. But I would say that the evidence for the pre-emptive strike has to be overwhelming. The burden of proof for state action must be far more onerous than for the individual.

It is not enough that I, put in the same situation, as an individual, might act pre-emptively. More is required. When I act I act alone. I have no power to coerce anyone. I have no ability to conscript or tax. If someone wishes to help me they have to do so on their own and they can stop any time they wish. They are held to the same legal responsibilities that I am. I can not attack innocent people, if I do I am prosecuted. I can not strip my neighbors of their liberties because I want to feel safer. The State has none of these restraints. In the end the State must be held, not just to the minimum standard of individual action, but to a much higher standard.

That an individual would be morally justified in acting in a particular way does not necessarily justify the State doing so.