Current Events

Some Links on Campus Speech

  1. Here is Rob Montz’s new documentary on what happened at Yale. Is the free speech problem in part a way for administrators to win power and resources over faculty?

  2. Yale professor and philosopher of language Jason Stanley writes about propaganda in Why Propaganda Matters. Note that Stanley thinks that “there is a structural reason” why “haranguing, cajoling, threatening, or supplicating” can be a “necessity in treating failures of democracy”. Here is my critique of the book.

Immigration Debate and New Center at University of San Diego

Last Thursday, the University of San Diego hosted a debate on immigration and human rights, featuring economist and Econlog blogger Bryan Caplan and philosopher Christopher Wellman of Washington University in St. Louis. You can watch a full video of the debate below.

The debate was sponsored by USD’s Center for Ethics, Economics, and Public Policy, a new center (of which I am the founder and director) devoted to promoting research and education about the institutional and moral framework of a free society.

Prior to the event, I spoke about the center’s mission, and the debate, on KPBS’s Midday Edition. You can listen to that interview here.

Current Events

Does Constitutional Law Exist?

A federal judge in Hawaii has temporarily blocked the government’s revised Executive Order on immigration. I‘m glad he did this, because I regard the EO as wrong and counterproductive. But I am worried about a larger issue. I have taught Foreign Relations law for many years (even though it is not one my research areas). There is little question in my mind that legal precedent supports the constitutionality of this order. I will not bore readers with legal technicalities, but it is clear to me that, under those precedents, many equal-protection restraints that apply to governmental acts in most areas do not apply to immigration. The government may target groups if doing so responds to a genuine national security concern. Moreover, courts traditionally have refused to second-guess the Executive on areas where the President, implementing a congressional statute, has well-established discretion. Immigration is one of those areas (see a summary here, chapter 3). Please understand me: I don’t support these precedents either; on the contrary, I support virtually open borders. But the precedents are well established.

My constitutional law colleagues tell me that law is a tool, not an end in itself, and it really doesn’t matter how sound the decision is, as long as it achieves the worthy goal of stopping this bad order, or the worthy goal of resisting this bad president. Maybe so. But then I have no reason to listen to these same colleagues’ ponderous doctrinal analyses where they pretend that precedents support their chosen outcomes.

I conclude that there is no constitutional law. It is all fancy, adorned, jargonistic advocacy. Lawyers and judges mislead the public into believing that there is such thing as legally-binding precedent that does not depend on the desirability of the outcome. There is no such thing. Lawyers merely reverse-engineer their arguments in order to tailor them to predetermined outcomes and then pretend that the reasoning was objective.

At the sunset of my career, I must confess that, at least with regard to constitutional law, the nihilists, the Critical Legal Studies folk, who long argued that law is an illusion (only to be laughed off by us, the rationalists), were essentially right.


Left-Libertarian Economic Anthology Published

I’m pleased to announce (belatedly) a new anthology from the Center for a Stateless Society (C4SS): Free Markets & Capitalism?: Do Free Markets Always Produce a Corporate Economy?, edited by Cory Massimino and James Tuttle.

One third of Free Markets & Capitalism? (not to be confused with C4SS’s earlier anthology Markets Not Capitalism) reproduces an online exchange from last year among Kevin Carson, Derek Wall, and Steve Horwitz on the question of whether corporate capitalism would indeed wither away in a genuinely freed market, as left-libertarians contend, or whether instead, as both capitalist and socialist critics of left-libertarianism maintain (whether cheerfully or gloomily), market incentives would tend to reproduce much of the structure of corporate capitalism even without state intervention to support the process.

The other two-thirds of the book are devoted to background readings (most by Kevin Carson – including his classic, The Iron Fist Behind the Invisible Hand – but also a couple by me, and one by the late Roy Childs) expounding the left-libertarian position on the issue.

Buy a copy today! Buy two copies tomorrow! Buy four copies the next day, and eight the day after that, and so on ….