• Affirmative action creates a “level playing field.”
• Affirmative action rights historical wrongs.
• Affirmative action attempts to engineer some sort of politically correct reality where equality of results is the only acceptable end-goal.

So for a while now a significantly higher number of women than men are graduating from college. Does it make sense then to discriminate in favor of men (which, because this is a zero-sum game, means discriminate against women) in order to balance out the gender-ratio in colleges? Ilya Somin comments on and quotes an Engage article discussing some of the current events related to the topic:

My wife Alison and University of San Diego law professor Gail Heriot have just published an article in Engage on the apparently growing practice of sex discrimination on behalf of men in college admissions. Heriot serves as a Commissioner at the US Commission on Civil Rights, where Alison is her special assistant/counsel. Here’s an excerpt from the article:

“While some news reports indicate that discrimination against women on the basis of sex in college admissions is increasingly common, there has been relatively little public discussion about it—especially compared to the much more heated public debate concerning race-based affirmative action. Not surprisingly, therefore, there have been few attempts to study the extent of the problem systematically….

Multiple news reports indicate that some colleges and universities, both public and private, have what they regard as “too many” women applicants and are therefore discriminating in favor of men—largely because more women than men apply to college and their academic credentials are in some ways better. Several colleges have more or less openly admitted to discriminating against women – including the University of Richmond (a private institution) and the College of William and Mary (a public institution). Others—including Southwestern University (Texas), Knox College (Illinois), Brandeis University (Massachusetts), Boston University (also Massachusetts), and Pomona College (California)—shy away from admitting directly that they are discriminating, but admit that maintaining an optimal gender balance by non-discriminatory means is difficult….

Sex discrimination in admissions at public universities is illegal under Title IX of the Education Amendments of 1972. But under federal law, it is perfectly legal for private institutions to engage in sex discrimination in admissions—though once both sexes are admitted, neither may be discriminated against….

Perhaps the most attention-getting piece on this topic was a 2006 New York Times op-ed by Jennifer Delahunty Britz, an admissions officer at Kenyon College, in which she admitted that her office often gave preferential treatment to men. Some admissions insiders wrote in response to Delahunty Britz’s piece that these preferences were quite common—what was shocking was only Delahunty Britz’s candor in airing this information publicly. Inside Higher Ed noted that “[w]hile few admissions officers wanted to talk publicly about the column, the private reaction was a mix of ‘of course male applicants get some help’ along with ‘did she have to share that information with the world?’” Several years later, after the wave of chatter over Delahunty Britz’s piece had died down, Columbia University law professor Ted Shaw referred to such discrimination as an “open secret.”
[footnotes omitted].”

The article also discusses the interconnections between admissions preferences for men and Title IX rules for college sports teams (the latter may have the unintended effect of incentivizing the former by making it harder for colleges to entice male students through increasing the number of men’s sports teams). Alison previously wrote about Title IX and sports here.

This issue is actually one of the rare points of political disagreement in the Somin household. I am less hostile than Alison to gender-balancing admissions policies that seek to keep the sex ratio (very roughly) even for the purpose of improving the social environment on campus. The problem of gender imbalance may be more serious at some institutions than others, and I don’t think it can justify very large gender preferences anywhere. As Gail and Alison point out, it’s a bad idea for colleges to admit “mismatched” male students whose academic skills are vastly inferior to those of the other students at the same institution. But, in some situations, I think there is a case for modest admissions preferences for the less numerous gender on campus. Some women students themselves may be dissatisfied with life on a campus that is, say, 70% female, and the same goes for male students at an overwhelmingly male institution. Obviously, other students probably couldn’t care less about the sex ratio at their university. But I don’t advocate that all universities with a gender imbalance should resort to admissions preferences to deal with it. I merely want the option to be legally available, at least at private institutions. Be that as it may, I do agree with Alison that such policies at public institutions are legally dubious under Title IX.

According to Feinberg, A harms B when “A acts… with the intention of producing the consequences for B that follow, or similarly adverse ones, or with negligence or recklessness in respect to those consequences; A’s acting in that manner is morally indefensible, that is, neither excusable nor justifiable; and A’s action is the cause of a setback to B’s interests, which is also a violation of B’s right” (106). Thus, for A to harm B, A satisfy four conditions in addition to setting back B’s interests (for five total necessary conditions). A must act, A’s act must be done with the intention of setting back B’s interests (or be negligent with respect to B’s interests), A’s act must be morally indefensible, and A’s act must violate B’s right. It is these four conditions that make a setback of interests wrongful, and it is the combination of wrongfulness and a setback of interests that establishes a harm.

An act is morally indefensible when there is no justification or excuse for it. An excuse involves denying responsibility for conduct that is, without considering the context in which it was performed, bad. Though the act was bad, the person who carried it out shouldn’t be blamed for it. A justification for an action involves an argument for why the action was right, or at least permissible, considering the circumstances in which it was performed. Thus, in order to qualify as a harm, an act must be neither excusable nor justifiable (108).

Feinberg defines a right as “a valid claim which an individual can make in either or both of two directions. On the one hand, some of a person’s rights are claims he can make against specific individuals for assistance, repayment of debts, compensation for losses, and so on, or against all other individuals… to noninterference in his private affairs.” Rights can on the other hand be claims an individual makes “against the state, not only for specific services and promised repayments, and noninterference in his private affairs, but also claims to the legal enforcement of the valid claims he has against other private citizens” (109). A rights violation occurs when one of these valid claims is not met.

Of course,  establishing what counts as a right and what does not is a philosophically formidable task. However, thanks to Feinberg, we at least have a framework which can guide us in establishing whether something counts as a harm.

• They have parents that are supportive of their education.
• They have parents that have high expectations of their children and stress a hard work ethic.
• They have a solid home-life that leaves them relatively unscarred emotionally so that they are able to focus on education instead of using schools for attention they don’t get at home.
• They are fluent in the language that school is being taught in (English, in America).
• They have financial resources to buy supplies, get to school on time, have food in their stomachs, and participate in extra-curricular activities that allow them to get into colleges.
• They have financial resources to pay for tutoring or preparation materials for standardized tests that increase their likelihood of going to a good college.
• Their genetics make them more pre-disposed to like learning and be able to focus in school.
• The school that they can afford to go to has quality teachers, small-enough class sizes, etc. (They can go to a “good” school)

In On Liberty, Mill offers the follow formulation of the harm principle: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant” (9). An individual can only be interfered with in order to keep harms from befalling others. What exactly constitutes a harm is extremely complicated and something that I’ll address a bit further down (Mill is not at all specific about the definition of “harm”). But the main idea here is that a harm must be present in order for interference in another person’s life to be permissible; interference cannot be justified paternalistically (for a person’s own good) moralistically (for the sake of making somebody live an ethically good life), on the grounds that it would benefit others, on the grounds that it would prevent others from being offended, or on any other grounds aside from the prevention or reduction of harm. The harm principle is in accord with the basic liberal intuition that people should be free to do what they want as long as they do not interfere with other people’s freedom to do what they want.

Mill writes that his harm principle is intended to limit “the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion” (9). The harm principle is often understood as a limit on state action, and it certainly is that; it distinguishes between cases where it is permissible for the government to interfere in the life of an individual person, and when it is not. However, as the above quote makes clear, the harm principle is not exclusively concerned with the state. Mill took seriously the power of public opinion to influence and constrain an individual’s life, and the harm principle reflects this by also applying to public opinion. As other passages in On Liberty show, Mill does not intend the harm principle to limit state action and public opinion in the same way; social disapproval, for example, has a vital role to play in some instances in which an individual acts immorally but does not cause harms sufficient to justify state interference. Unfortunately, Mill is unclear about precisely how the harm principle limits public opinion as opposed to state action, and he can thus be interpreted in a variety of ways.

Joel Feinberg has written extensively on the harm principle and provides a useful analysis and refinement of it. Feinberg gives the following definition of the harm principle: “It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is probably no other means that is equally effective at no greater cost to other values” (Feinberg, Harm to Others, 26). Note that Feinberg, using this definition, is considering the harm principle exclusively as it applies to state action (“penal legislation”), and not public opinion. The fact that a harm is being committed or is merely a “good reason” for state interference. It is not enough to justify state interference all by itself. The state can only act in response to prevent harm if it is likely to be effective in doing so and if state action passes a value cost-benefit test for the particular case. Thus, the presence of a harm is enough to establish that the state may act, but not enough to make it so that the state must act, or should act. Put another way, state action is never justified if there is no harm present, while state action is sometimes justified if there is a harm present.

So what makes something a harm? Feinberg writes, “only setbacks of interests that are wrongs, and wrongs that are setbacks to interest, are to count as harms in the appropriate sense” (36). A harm is a wrongful setback of interests. One must therefore show two things to be the case in order to show that an action is harmful: (1) that the action is wrongful, and (2) that the result of the action is the setting back of an individual’s interests. Now, of course, we must clarify what the meaning is of each of these two conditions. What makes something wrongful? What counts as a setback of interests? Fortunately, once again, Feinberg has done a great deal of this conceptual work.

“One’s interests…” according to Feinberg, “taken as a miscellaneous collection, consist of all those things in which one has a stake, whereas one’s interest in the singular, one’s personal interest or self-interest, consists in the harmonious advancement of all one’s interests in the plural… [they] are distinguishable components of a person’s well-being: he flourishes or languishes as they flourish or languish” (34). There are a range of things, from passing wants (desiring a mug of hot chocolate on a cold winter day)  to comprehensive life goals (happiness), that one can conceive of as being in a person’s interest. Feinberg excludes the extremes of this range from the set of interests that is relevant for determining harms. A person doesn’t have a stake in the case involving the hot chocolate, unless the hot chocolate is instrumental to an end which is connected to a goal in the advancement of which one has a stake. As for comprehensive life goals, saying that we have an interest in our happiness is similar to saying that we have “an interest in our interest,” which is trivial (56).

Relevant interests can ultimately be divided into three categories: (1) Instrumental wants, which are passing wants that are connected to other more important and stable goals; (2) welfare interests, which involve the bare minimum necessary to live a physically and mentally healthy life; and (3) focal aims, which are long-term life projects like excelling in one’s chosen field, promoting a cause, or raising a family (56-60). Of these three categories, it is mainly welfare interests that are legally protectable. The law is generally effective at preventing bodily harm, protecting people from false imprisonment, and securing people’s material resources by prohibiting theft and fraud. These all involve welfare interests. Focal aims are generally indirectly protected by law: if Tina wants to become the world’s most famous puppeteer, the law protects the welfare interests the fulfillment of which are necessary for her to pursue this goal. But the law cannot stop a more talented puppeteer from outcompeting Tina, since would be impossible to do so without unacceptably impinging on the more talented puppeteer’s liberty (62).

Next, I’ll consider what makes a setback of interests wrongful.

• The middle school I am tutoring at was given a huge grant by the Texas government and the Federal government because it is “Unacceptably Achieving.”
• This money is being used to hire 33 full-time math tutors for this middle school, purely in math classes and purely for the sixth grade level.
• What this means is that there will be seven tutors in each 6th grade math class at all times. Essentially, one tutor for every four or five students, ensuring that no kid can be ignored if they aren’t fully understanding the material.
• While I have zero previous teaching experience, many of my fellow tutors do, with some having taught for as many as 35 years.
• The school has a student population of 55% falling under the category of “English Language Learners” – my Spanish knowledge from working at an ice cream shop with Mexicans will truly be put to the test.
• The Texan government and Federal government are keeping a very close eye on this program. There have been press conferences and newspaper articles, many of them suggesting national replication of this program if it is deemed successful.

People have a right to be angry at banks. Unemployment is just hovering a bit above 9% due to a balance sheet recession that many bankers were made rich from. While the economy tanked, many got big bonuses (supposedly performance-based). Any reader of this blog knows that I am a market enthusiast, but it’s hard to explain bankers getting their compensation as any sort of productive incentivizing device. Furthermore, these banks got huge bailouts from the government.

However, the protestors are wrong in confusing corporatism for capitalism. It was government who gave the banks bailout money. It was the government supporting Fannie Mae and Freddie Mac that kept artificially low interest rates and spurred a disastrous bubble in the name of ‘fairness.’ The popular radical argument on both sides these days is that the Fed was the cause of all of this (though I personally think these arguments are overstated).

So what are those in the “#OccupyWallStreet” faction hoping to accomplish? It’s unclear. Right-wingers are taking this to mean a “protest for the sake of protesting.” If a group doesn’t have clear aims in terms of policy, they’re just complaining (or so people are saying). I think this is totally unfair. The Occupiers may be foolish in trying to be overly un-organized (because then they’d be just like THE MAN!) but there’s nothing wrong with coming together because of general disdain for current conditions. A lot of the Arab Spring protests were driven my general dissatisfaction with the status quo. I’m fairly certain that the millions of protestors had incredibly varied reasons for protesting. What they shared in common was that they wanted change.

The Occupiers are just like this. The current system in America has gotten high unemployment, high debt, and frankly, rewarded a lot of people who made the problem worse. So the Occupiers are protesting the status quo.

Where I do think they are foolish is directing all of their anger at Wall Street. Wall Street created wealth and is responsible for a lot of the prosperity in America (if “Wall Street” can really even qualify as a collective noun here). The government had a lot to do with the bad stuff too.

Some opponents are saying the Occupiers are complaining about all this nonsense, yet most of them voted for Obama. Yes, Obama. The same guy who bailed out the auto companies and spent foolish money all around the place. But this doesn’t weaken the justifiability of their angst, I believe. The Tea Party was very much the same. And here’s what I’ve been waiting to get to.

The Tea Party and the Occupiers are very, very similar. Both groups were protesting the status quo with vaguely defined policy goals. The Tea Partiers wanted less government spending (from where? military? social security? medicare? they were never too clear). A lot of them voted for George Bush, the guy who did those huge wars and presided over huge deficit spending. The Occupiers want better wealth distribution and less corporatism. A lot of them voted for Obama. So yes, there’s so inconsistencies and some may say hypocrisies on both sides. But I don’t think that means they’re wrong.

I think both the Tea Party and the Occupiers are right. In fact, I’ll be as bold to say that I agree with both of the groups. Wall Street has been getting special treatment for a long time, mostly because of corporatist practices. The government has been spending beyond its means. A lot of people like to dismiss the tea party because it’s easy to characterize them as religious whackos who think any sort of government is socialism. Indeed, some people in the movement are like that. But some people in the Occupy group are just as idiotic – smelly, lazy, hippies who just like many Tea Partiers have no actual knowledge or insight for what they’re fighting for/against.

But evaluating a group based on their most absurd characters is misguided. It’s the message that we should be attacking or defending. Most importantly, we need to figure out what the policy result of these protests will be.In the case of the Tea Party, politicians were elected who mostly favored borrow-and-spend government instead of tax-and-spend government. For the Occupiers: Will corporations be so villified that business will shrink significantly in America? Or will it mean that corporations stop getting bail outs and a true free market is realized? I hope the latter.

Governor Peter Shumlin’s reaffirmed the state’s commitment to a humane stance of immigration:

Shumlin said Vermont should “look the other way” when it comes to dealing with immigrants working illegally on Vermont farms. “We have always had a policy in Vermont where we kind of look the other way as much as we can,” Shumlin told WPTZ. “I just want to make sure that’s what’s we’re doing. [Vermont farms] can’t survive without workers from outside America. It’s just the way it is. “

[...]

Shumlin ordered an investigation of the incident on Tuesday to determine whether the traffic stop violated with the state police’s “bias-free policing policy.”

Unsurprisingly, Vermont ( republicans are trying to demagogue the issue:

“Rather than turning a blind eye to laws he doesn’t like, Gov. Shumlin should be working with our congressional delegation, as former Gov. Douglas and Sen. Leahy did, towards finding legal solutions that would make every foreign worker in Vermont compliant with federal law, and that wouldn’t result in a depression of wages for those foreign workers that are in Vermont legally,” [ GOP chairwoman Pat] McDonald’s statement read.

“The hardworking officers of the Vermont State Police took an oath to uphold the law,” the GOP statement went on. “The governor’s new policy of ‘look the other way’ may sound good to those that support illegal immigration, but it is not the appropriate guidance a sitting governor should be giving to Vermont’s law enforcement community.”

Of course Shumlin should work with Vermont’s congressional delegation to advocate for immigration reform at the national level. But that doesn’t mean that Shumlin shouldn’t do what is directly within his power as a governor to promote a sensible immigration policy at the state level. These two measures are not mutually exclusive, as McDonald implies.

Immigration restrictionists often make the kind of argument put forth by McDonald. The police have a responsibility to uphold the law, so any policy telling them to “look the other way” forces them to violate their oath of service. Using the words “look the other way” was perhaps a mistake on Shumlin’s part, since it gave McDonald and the republicans a concise soundbyte that seems to be anti-law enforcement. However, upon closer scrutiny, McDonald’s argument doesn’t hold up.

There are many more criminal acts that take place each day than the police could possibly respond to. If this isn’t obvious to you, note how many people are driving over the speed limit the next time you’re on the interstate. Inevitably, the police have to choose the best way to deploy limited resources. It’s just common sense that they should prioritize law enforcement against crimes that endanger other people and have a significant detrimental effect on society.

Immigration involves human beings coming into the country in order to engage in peaceful,  mutually beneficial, voluntary exchange of labor for wages. They do jobs that Americans cannot or will not do, and they strengthen our economy. The fact that the United States has laws on the books that place such draconian restrictions on this activity is deeply unjust. But given that, for now at least, we are stuck with these laws, it makes perfect sense, and is completely legitimate, for the police to focus on fighting crime that actually hurts people.

The United States has huge debt. Surrounded by news of European countries needing bailouts and stimulus spending appearing to not do much good, the general public seems to be wanting austerity measures. So about about a month and a half ago Congress was presented with the issue of whether or not to raise the debt ceiling. The debt ceiling is theoretically in place to stop out of control spending. When Federal debt approaches the ceiling, Congress has a debate on the merits of whether or not to raise the ceiling, ideally based on the quality of the increased spending. Throughout most of history, this increase goes by without much debate. However, in a climate of growing popular support for fiscal austerity, it didn’t go by as easily this time.

Most Democrats in Congress think now is not the time to cut spending. We need more spending to stimulate the economy. Worry about jobs now, deficit later. Republicans, mostly from the urging of tea partiers, think austerity is important to prevent us from approaching default or spending irresponsibly. At the time, austerity measures were also thought to have prevented a downgrading from Moody’s (the budget deal that was eventually reached and raised the debt ceiling did not accomplish this goal).

But throughout all of that, I noticed all of the bickering was essentially useless. Partisan argument for the sake of giving an appearance of taking a stand for the unemployed (Democrats) or spending (Republicans). The two sides seemed on totally opposite sides of the spectrum. But how much were they really fighting over? Were the Republicans really trying to cut the government that dramatically? No, they weren’t. The deal that was reached featured insanely trivial cuts. Despite cries from Democrats that the budget deal reached compromised so much, the Illinois Policy Institute produced a very interesting analogy to show how small the cuts actually were.

Here’s a look at the projected numbers for fiscal year 2011.

• US Tax Revenue: $2,228,000,000,000
• Federal Budget: $3,708,000,000,000
• New Debt: $1,480,000,000,000
• National Debt: $14,584,000,000,000
• Recent Budget Cuts: $352,000,000

These numbers might be a little difficult to comprehend so understanding them from the lens of an everyday household might be a bit easier. By eliminating 8 zeroes just see how different the picture looks.

• Annual Family Income: $22,280
• Money the Family Spent: $37,080
• New Debt on the Credit Card: $14,800
• Outstanding Balance on Credit Card: $145,840
• Total Budget Cuts: $3.52

.  46-million Americans, roughly one in six, live in poverty

. 49.9-million Americans lack health insurance, up 13.3 million since 2000. 

. The U.S. can boast the highest overall poverty rate of any major industrialized nation; not surprisingly, it also has the highest childhood poverty rate.

. 21.6 percent of American children (that’s more than one-in-five) live in poverty.  Compare that to Denmark, where the number is 3.7 percent.

Depressing. A crucial point about how the Census Bureau calculates poverty statistics, however, is that a lot of anti-poverty programs aren’t taken into account. Only pure cash transfers, like the Earned Income Tax Credit, can affect the official poverty rate statistics. Programs like Medicaid and food stamps are ignored.

This is a problem because poverty rate statistics are used to inform policy debates about anti-poverty programs. But if the effects of many anti-poverty programs are ignored when these statistics are calculated, it significantly limits their usefulness. The numbers quoted above are not directly from the press release about the new poverty statistics. Rather, they were gleaned from a report by Sen. Bernie Sanders. Unsurprisingly, Bernie argues in the report that we are failing the nation’s poor and that we need to protect and improve anti-poverty programs. From the report’s conclusion:

As we look for solutions to reduce our nation’s debt, we must be cognizant of the effects of cutting social safety net programs. Choosing a path that impoverishes hundreds of thousands of people will result in unexpected yet largely predictable expenses in other parts of the budget. Knowing the potential impact of budgetary choices on the lives of individual Americans should help guide us to make not only the morally correct decisions, but also the financially responsible ones.

It would be much easier to be “cognizent of the effects of cutting social safety net programs” and know “the potential impact of budgetary choices on the lives of individual Americans” if these concerns were reflected in the official poverty statistics. But they’re not. We could double the food stamps program between now and the next time poverty statistics are released, and it would change nothing.

Given the state of the economy (especially high unemployment), you don’t really need statistics to tell you that people are struggling and that anti-poverty programs are needed even more now than they were a few years ago. But sound decision making relies on sound information, and in that respect, official poverty statistics as they are currently calculated fall short.

Jacob Weisberg, writing in Slate, responds,

This was indeed an appalling, mob-mentality moment—more medieval, even, than the crowd applauding Gov. Rick Perry for winning the death-penalty derby at the previous debate. What it clarified, however, was less the cruelty of the Tea Party crowd than the absurdity of the health-care positions of all of the Republican candidates. The GOP contenders relentlessly attack “Obamacare” as “socialized medicine.” But they won’t speak up for either of the other two choices available to them: the arguably more socialized system we have hitherto lived with or the Blitzer option of letting the uninsured die in the streets.

What about private charity?

“[W]e no longer have an extensive system of charity hospitals. If emergency rooms treat the uninsured, whether because of a legal requirement or because they are good Samaritans, they will be passing the bulk of the cost along to the rest of us—and we’re back to our current system of socializing the costs of treatments for the uninsured.”

I just can’t help but feel frustrated when “the government shouldn’t provide x” is conflated with “society shouldn’t provide x”. Idiot spectators notwithstanding, saying that society should not provide health care to people who can’t afford it and will die without it is plainly absurd and immoral. Saying that the government shouldn’t provide health care because health care is better provided by institutions other than the government is an empirical claim.

Now, although Weisberg conflates these two positions throughout the article (for example, that our two health care policy options are the  “socialized system we have hitherto lived with or the Blitzer option of letting the uninsured die in the streets”), he clearly understands this, because he spends a couple of sentences arguing that the empirical claim is false. I’m skeptical myself that private charities would necessarily be better health care providers of last resort than the government, and clearly we couldn’t just take the government out of health care overnight without some pretty disastrous humanitarian consequences. But there is some evidence that private mutual aid societies did a decent job of providing basic necessities in the past. At the least, Weisberg and many other progressives are giving short shrift to what is actually a fascinating and difficult empirical question.

Empirical issues aside, I think that it’s usually harmful to the cause of constructive political discourse when empirical disagreements are misconcieved as disagreements over principle. Two people who disagree about whether health care would be better without government involvement at least have a chance of having a productive discussion. Dialogue isn’t really possible, on the other hand, when an entire ideology is understood to be arguing that society should let uninsured sick people rot in their gurneys.