Monthly Archives: May 2015

We are all technocrats now

The U.S. is pretty much the only country in the world in which some constituency can be found asking, Is this really something that government should be doing? in response to a proposed law at the national or local level.  But our culture is changing, and such inherent skepticism of the government is rapidly moving toward extinction.

We now tolerate a nanny state, which shows up at all levels of government.  To take three recent random examples that we came across:

  • January:  A typical zoning fight about whether an e-cigarette lounge should open on a certain street in San Francisco pits various activists debating whether or not such an establishment fits with their views about whether this is an amenity that the neighborhood wants in light of the other retail available on that street.  No one has suggested that a land owner and tenant should be able to come to private agreement on what to do with their own property.
  • May:  A debate about whether to allow self-serve gas stations in Oregon features arguments about supposed safety considerations, jobs, and various lawmakers’ and bureaucrats’ opinions about the impact on customer convenience.  Again no one seems to be offering the opinion that the government has no right to meddle in a station owner’s business decision to begin with, nor mentioning that perhaps the free market would be better served to sort out issues of customer service and price.
  • May:  Opponents of a proposed ordinance in San Francisco to require warning labels on soda advertising (following the defeat of a city-wide soda tax last year) resort to insisting that sugar is soda is no different from sugar in any other product, and that “education” would be a more effective means of propaganda anyway.  No one at the table is offering the argument that government has no business interfering in consumer choices about a basic product, but rather they are arguing about what tools are most effective to implement the state’s nannying agenda.

The boundaries of these and countless similar local debates is most depressing to this libertarian, not only because we feel for the normal Americans whose livelihoods are chipped away by big government, but also because of the picture they paint about how our citizens apparently want to be governed.  The terms of the debate are so far away from Is this really something that government should be doing? that such questions seem quaint.

We could call these debates “technocratic,” that is, a presumption that a new government program is all that we need to solve some problem or close some gap in society, and we just have to debate what the government program will look like.

The “technocratic” moniker is not that common the U.S.  It’s a familiar (though ought to be derisory) term in Europe, often used to describe some government or individual minister who comes to power in a parliamentary system.  In that sense, it’s roughly a synonym for “socialist,” and simply means that apparatchiks who used to be a step or two lower, or more obscure, in the ranking of the political class assume power as sort of a compromise when the highest-ranking members can’t come to agreement on who will take the top political jobs.

“Technocratic” governments in Europe sometimes come about due to fiscal crisis, and sometimes due to elections that don’t produce clear winners.  In either case, their jobs consist essentially of keeping the big government functioning within the same narrow bounds that it did before, until voters can re-mandate the not-all-that-different status quo ante.  It may seem perplexing to an American audience, but our governments are looking more and more like this too.

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It’s dangerous when religious belief is the only justification for freedom of association and private property rights

The Religious Freedom Restoration Act (RFRA), championed by Congressional Republicans and conservative commentators, represents an important counter-maneuver to the oppression wrought by the cultural left.  Of course, RFRA shouldn’t be necessary, and wouldn’t be if our culture still respected the freedoms enshrined in our constitution and national traditions.  It’s dubious that RFRA carves out liberties defined by religious belief over those that should be protected by the equally fundamental American protections of free speech, free association, and property rights.

RFRA allows a private actor—a citizen or organization—to refuse to comply with a law by complaining that the law substantially burdens his religious belief.  The law requires courts to use a balancing test in weighing the law’s purpose versus the individual’s belief.

The First Amendment is pretty absolute, subject to a few well-defined exceptions and rarely subject to any balancing tests.  It is a profound violation of American notions of liberty to insist that property rights can only be asserted by virtue of religious belief, and subject to a balancing test at that.

In the archetypal scenario that has necessitated RFRA and similar legislative pursuits in the last few years, a baker refuses to decorate a cake for a gay wedding, in violation of a local ordinance or state law barring discrimination against homosexuals.  RFRA would allow the baker to potentially avoid sanction, but would not invalidate the underlying law that he had violated.

Aside from the question of whether refusing to decorate a cake with certain content actually amounts to discrimination against a defined class of people, it seems disastrous for the right to concede the merits of such anti-discrimination laws—or of continually expanding the classes of people covered by them—and leave the private citizen with no recourse other than to grasp onto his religious belief to carve out an exception against the state expropriating his property rights.

That the baker cannot assert a defense of “I don’t like gay people” or “This message doesn’t comport with my taste” or “I don’t want to promote the institution of gay ‘marriage'”—nor apparently “I don’t like your attitude” or “I don’t feel like serving you” or “It’s none of your damn business why I don’t want to make your cake”—represents a profound erosion of freedom.  Moreover, forcing him to publicly assert his religiosity and articulate the details of how that impacts his decisions on how to earn a living–and then subjecting that reasoning to analysis by a court—represents a troubling intrusion into the baker’s freedom of conscience.

Businesses in America used to have signs saying, “We reserve the right to refuse service to anyone,” but now that statement has no practical implication.  Perhaps there is a new market for signs that say, “We reserve the right to refuse service to anyone, except racial or ethnic minorities, women, non-Christians, people with disabilities in some cases, military veterans, and maybe homosexuals or ‘transgendered’ people, depending on which state, county, and city we are located in.”

Although people who value individual liberty have always opposed anti-discrimination litigation on principled grounds, they have been lonely in doing so.  We have essentially lost the argument, beginning with Barry Goldwater’s prescient but futile opposition to the Civil Rights Act of 1964.

But recent debates leading to such laws as the RFRA have taken us even further in the direction of collectivism.  Both arch-leftist Sally Kohn—via one of the stupidest articles ever written—and supposed conservative John Kasich—in a more folksy appeal to common sense—have made what turn out to be similar arguments to defend laws against discrimination, asserting that simply existing in the public sphere requires one to not discriminate.  Although their arguments advance the same concept of “public accommodation” that has prevailed since the civil rights era, they go further in advancing a profound misconcepti0n of what liberty is.  (Their arguments are little different than defending a law prohibiting people yelling in the public square to criticize the government by saying, We have freedom of speech in this country; you are free to say whatever you want in the privacy of your own home, but once you enter a public space, the state has the right to restrict what you say.)

We get it:  true freedom of association and property rights are basically dead in this country, and have been for decades.  And we get that asserting religious freedom may be good politics as a rear-guard action to restore some freedom of conscience in some circumstances.  But the right is not doing the culture any favor by rushing past some core American values to imply that the only people who deserve liberty are those who can claim a religious basis for it.

 

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