David R. Henderson  

Eugene Volokh on Everything

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Nick Gillespie has a good interview with Eugene Volokh of the famed law blog The Volokh Conspiracy.

Among the most interesting highlights are his discussion of the cake baker and anti-discrimination laws. Volokh makes the important distinction between whether a law is right by libertarian, that is, pro-freedom, standards and whether a law is constitutional. He points out that the constitutional screen for laws has wider holes in it that the libertarian screen. (These are my words for his thoughts.) I need to keep reminding myself that. Of course, as a legal scholar who teaches, I assume, constitutional law, his instinct is always to go to whether the law is constitutional, not whether the law is right.

I wish Nick Gillespie or whoever wrote up the brief intro had kept that in mind. The writeup says:

In a wide-ranging interview about The Volokh Conspiracy, Volokh discussed the site's aims, why he thinks the government is sometimes right to force business owners to serve customers they don't like

But Volokh didn't even address the issue of whether it's right. His argument was solely about whether the constitution allows such laws, not about whether the government is right in having such laws.

The other most interesting parts, near the end, are on what he sees as Trump's largely first-rate picks for federal judges and his point that the Supreme Court does not have as much effect on policy as many people think.


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CATEGORIES: Free Markets , Liberty




COMMENTS (12 to date)
Thomas writes:

Yes, Volokh teaches conlaw -- and other things: https://law.ucla.edu/faculty/faculty-profiles/eugene-volokh/courses/. His conlaw specialty seems to be freedom of speech, about which he blogs a lot, though he has wide-ranging interests and expertise, including math: https://law.ucla.edu/faculty/faculty-profiles/eugene-volokh/.

You may have notice that today The Volokh Conspiracy is moving from The Washington Post (where it is behind a paywall) to Reason.com (where presumably it will be available to all readers).

Daniel Kuehn writes:

"Constitutional" and "libertarian" are two different things, but of course so are "libertarian" and "pro-freedom", and "libertarian" and "right." This post seems at first glance to treat the latter three ("libertarian", "pro-freedom", and "right") as interchangeable too.

Mark writes:

Daniel Kuehn,

Of course it does; to a libertarian, those three things are the same, no? Why else would one be a libertarian if one didn’t think it was pro-freedom and right? And I believe Volokh is a libertarian.

I don’t think I understand your point. How is it cognitively possible to subscribe to a worldview while believing that it is wrong?

Daniel Kuehn writes:

@Mark,

I think a couple things are confused there.

First, of course, the fact that a libertarian believes something by virtue of being a libertarian doesn't make the thing true. That would make communism pro-freedom and right too. They believe that too. I'm fairly pragmatic and you won't find me pushing an objective truth on stuff like this, but even that doesn't require anyone to think those words mean the same thing just because someone out there believes they do.

The second thing that I think is a little confused is that freedom is not necessarily going to be a priority for all libertarians and not everyone is going to have a political philosophy that they think always lines up with their ethical perspective. Often all of these things coincide. People (not just libertarians) typically think they're pro-freedom and like a happy coincidence between their political and ethical views, but it's not necessarily the case. For example, my political philosophy produces terribly wrong things all the time and I reject those things but I still think it's the best political system available.


If all you're saying is that people frequently believe themselves to be all these things then fine I guess you're right but that doesn't really settle anything.

Mark writes:

Daniel,

"First, of course, the fact that a libertarian believes something by virtue of being a libertarian doesn't make the thing true. That would make communism pro-freedom and right too."
This just seems like a truism. People think that they're right about things, but nonetheless can be wrong about the things they think they're right about. This just seems like a trivial observation. Also, a minor quip: one can believe, say, communism is anti-freedom but still favor it because one believes freedom is dangerous. The idea that maximizing freedom is eo ipso the ultimate political goal is itself a tenet of libertarianism. One can disagree with libertarians' definition of freedom, or one could disagree with their support for freedom.

Regarding your second paragraph, are you saying, basically, that most people aren't purists with respect to their political ideologies? I think this is true, but am not sure I like your way of phrasing it. You say:

"my political philosophy produces terribly wrong things all the time and I reject those things but I still think it's the best political system available."

If I interpret what you're saying, I would say that, in fact, what you call your political philosophy isn't really *your* political philosophy. If your favored system is X-ism, but you don't think X-ism perfect, *your* political philosophy isn't really X-ism; it's, maybe, 90% X-ism, but 10% Y-ism. It seems like you're just saying that you're not a purist.

Take an example: consider a libertarian who supports legalizing lighter drugs but not heroin. (This is semi-autobiographical; I'm on the fence about legalizing hard drugs). You might say this hypothetical libertarian thinks libertarian is the best system, but isn't infallible, and he departs from it on the matter of heroin legalization (where we accept that the 'pure' libertarian position is to support heroin legalization). He's a libertarian but doesn't necessarily believe libertarianism is always right, as you might say.

The way I see it, political ideologies, like libertarianism, socialism, etc. are basically artificial constructs with no essential meaning; who is or isn't a 'real' libertarian has no answer not based on some arbitrary litmus test. One might say that my personal ideology is 87% libertarian, but I don't(and don't think anyone should) tailor my views to be as libertarian as I can. I aspire to reach my opinions independently and logically; if I describe myself as libertarian, its because that general region of "ideological space" is around where I happen to fall.

So, I wouldn't describe 'pure libertarianism' as my political philosophy. My political philosophy may as well be called Markism; it's quite idiosyncratic to me, and I take no responsibility for defending a given policy or idea because it is considered libertarian. If I describe myself as libertarian, it's purely for the convenience of giving a general idea of what I believe without having to explain it in detail.

Daniel Kuehn writes:

@mark

re: "If I interpret what you're saying, I would say that, in fact, what you call your political philosophy isn't really *your* political philosophy."

You can't just assume unicorns. Do you excuse socialism from Stalinism because socialists don't personally support Stalinism? Libertarianism as I understand it is a political philosophy about the size and role of the state. Whether it actually results in freedom isn't something you just assume in defining the political philosophy. It could result in crony capitalism or any number of other unpleasant outcomes. And if it doesn't come up with what you want, you don't just get to escape blame because you don't like that result.

I don't know what you'd call my philosophy, I guess I'm some sort of constitutional market democrat. That dictates how I see the role of the state. That philosophy, put in practice, produces a lot of things I think are good but also a lot of things I think are bad like Donald Trump. I've got to accept the weaknesses of my political philosophy as well as its strengths if I'm going to give a full evaluation of it.

To return to the post and my first comment I think a lot of libertarians just assume a lot of these things coincide and it makes their claims very unclear or odd sounding.

Patrick M. writes:

Kuehn: "Constitutional" and "libertarian" are two different things, but of course so are "libertarian" and "pro-freedom", and "libertarian" and "right." This post seems at first glance to treat the latter three ("libertarian", "pro-freedom", and "right") as interchangeable too.

1 Kuehn:"Constitutional" and "libertarian" are two different things

David specifically noted that.

Henderson: Volokh makes the important distinction between whether a law is right by libertarian, that is, pro-freedom, standards and whether a law is constitutional.

2. Kuehn: but of course so are "libertarian" and "pro-freedom" [two different things]

Liberty is broadly considered to be the polestar of libertarianism.

Libertarianism, political philosophy that takes individual liberty to be the primary political value. -Encyclopedia Britannica

In the most general sense, libertarianism is a political philosophy that affirms the rights of individuals to liberty... and considers the protection of individual rights the primary role for the state. - Stanford Encyclopedia of Philosophy


3. Kuehn:and "libertarian" and "right." [ are also two different things]

Not to libertarians, which is the perspective from which the post was written. I suspect that you associate your political beliefs with what you believe to be "right". If you don't, then why would you hold such beliefs?

4. Kuehn:This post seems at first glance to treat the latter three ("libertarian", "pro-freedom", and "right") as interchangeable too.

Because, as established above, from a libertarian perspective they are.

Mark writes:

David,

I don't assume unicorns, I assume people are often idiosyncratic in their views, and don't all get all their opinions in ready-made collections from the brand name ideology store.

You're treating ideology like it's a binary variable. It isn't. There may be a gradation from, say, anarcho-capitalism to Stalinism, and the closer one is to Stalinism, the more one has explaining to do regarding it (or more specifically, one must come to terms with the particular matters on which one's ideology overlaps with Stalinism).

"It could result in crony capitalism or any number of other unpleasant outcomes. And if it doesn't come up with what you want, you don't just get to escape blame because you don't like that result."
Sure I can. Again, your treating political philosophies like grand, vague, when they are far more nuanced and mosaic. If, suppose, I support very limited government (being a libertarian) but oppose abolishing the military because, which I think would cause bad results; then a 'purer' libertarian who wants to abolish the military takes over the country and does exactly that and it does indeed cause bad results. My worldview, in my opinion, be vindicated, not tarnished, by this turn of events. I do escape responsibility for what happened if I specifically opposed the policy preference that led to it. It would be absurd to contend that every libertarian who disavows anarcho-capitalism (libertarianism at its 'purest') nonetheless has to answer for the problems of anarcho-capitalism, just as it would be to demand every social democrat answer for the failures of communism.

You have to answer for the results of your own opinions, not those of other people who claim to subscribe the same 'ism' as you.

"I don't know what you'd call my philosophy, I guess I'm some sort of constitutional market democrat. That dictates how I see the role of the state. That philosophy, put in practice, produces a lot of things I think are good but also a lot of things I think are bad like Donald Trump. I've got to accept the weaknesses of my political philosophy as well as its strengths if I'm going to give a full evaluation of it."

It's worth noting there are two different kinds of, I guess what I'll call, errors relevant here. If you're playing black jack and your first two cards sum to 12, the correct strategy, objectively, is to take a hit. Now, you might still get a 10 and lose. There's still uncertainty, and the pro-hit position doesn't have a 100% success rate. That doesn't mean, however, that it is not superior to the anti-hit position.

I think you're saying that the bad things happening under your system are like getting a 10 when you have 12: I think you believe your system is the superior one, but does not have a 100% success rate. This is not the same, however, as an ideology having a structural flaw such that its success rate could be increased by modifying it.

I think this, again, is basically almost truism. No one really thinks their strategy has a 100% success rate; merely that it has a higher success rate than the others.

And if a person believed in a given political philosophy, but also believed that that philosophy had a structural flaw that, if modified, would increase its success rate, then sanity would compel them to discard the philosophy in favor of the modified and improved version of it.

David R Henderson writes:

@Mark,
I think you meant to address Daniel, not me.

Hazel Meade writes:

I suspect that Trump isn't the one picking his supreme court picks. I doubt he's that interested in supreme court jurisprudence, so he handed the task off to an advisor, and it is this advisor (whoever he is) that is picking judges. Maybe he even gave the job to Justice Roberts, or the other conservative Justices to make recommendations.

TMC writes:

Hazel, probably true. He has done the same with letting the generals attack ISIS with great success, as well as empowering other experts.

Amazing what not needing to to be the smartest man in the room (especially when you are not, O) let you do. Maybe there is something to this CEO mentality of delegating authority.

Michael Byrnes writes:

Hazel Meade wrote:

I suspect that Trump isn't the one picking his supreme court picks. I doubt he's that interested in supreme court jurisprudence, so he handed the task off to an advisor, and it is this advisor (whoever he is) that is picking judges. Maybe he even gave the job to Justice Roberts, or the other conservative Justices to make recommendations.

If I had to guess, I'd say that Mike Pence is running the show on judicial appointments.

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