Marriage

To assure everyone I'm not just a shill for the Republican Party, which I vote for almost exclusively, here is my view on gay marriage.

Ideally, there would be a separation of marriage and state. People could sign contracts, or choose to call themselves "married" with no formal (legally binding) setup. A lot of people would probably get married in their church and follow the rules of matrimony presented by their religious affiliation to whatever degree. But the government wouldn't require or offer any kind of license, and no laws would recognize marriage as a specific thing with benefits or requirements.

This idea is elegant and completely consistent with the (American) value of individual liberty. In such a society, gays would be as able to get married as anyone else, with the obvious caveat that religious institutions could freely choose not to endorse such relationships. To me this is a solution where everybody wins, because I don't care about people who try to control others. I want those people to lose.

But Libertopia doesn't exist. Let's review the various legal courses same sex marriage could take, sponsored by Wikipedia.

1. States' Rights - In this scenario, the Constitution is interpreted to not grant the federal government any authority over marriage, and the states, because of the Tenth Amendment and the general "police power" granted to them, have sole arbitrary purview. The relevant parts of DOMA are struck down or repealed, and any federal law that interacts with marriage does so according to the definitions of the states. As they have been, states, through statute, constitutional amendment, or the judicial process, decide whether to license same sex marriage.
• 1A - The Supreme Court (SCOTUS) rules that the Full Faith and Credit Clause applies to marriage, all states have to recognize marriage licenses issued by other states, and gay marriage is effectively legal everywhere in the US.
• 1B - SCOTUS doesn't accept FFCC challenges. Gay marriage is illegal in a majority of states for the foreseeable future, but legal in a few. The federal government still has to treated same sex marriages in legal states the same as heterosexual marriages.¹
2. Equal Protection - SCOTUS rules that the Fourteenth Amendment applies to gay marriage, just like it does to interracial marriage. Gay marriage is uniformly legal throughout the United States.
3. Constitutional Amendment
• 3A - Gay Marriage Amendment - A Constitutional amendment is ratified legalizing gay marriage uniformly throughout the United States.
• 3B - Traditional Marriage Amendment - A Constitutional amendment is ratified outlawing gay marriage uniformly throughout the United States.
4. Status Quo - States define marriage as they see fit, and the federal government enacts its own arbitrary laws that are bound to conflict with some of the states.

If we assume 3A highly unlikely in the near future, none of these outcomes is very good. In the other scenarios where same sex marriage is legalized uniformly (1A and 2) it probably happens at the expense of Constitutional limits on the federal government and the notion of state sovereignty. While desirable in themselves, such rulings would also set the stage for more infringement on religious freedoms guaranteed by the First Amendment.²

Ultimately, the long run benefits of the social equality of gays is probably more important than avoiding the various possible threats to religious liberty (though perhaps not more important than actual harms³ ). So ultimately 1A, 2, or 3A would in my judgement be better than the alternatives.

Scenario 1B deserves discussion, if only because it is among the most likely outcomes. There may be something to be said about allowing our laws to adapt to changing social attitudes over time, rather than insisting on radical top down intervention. To whatever extent "social conflict" and "culture wars" are undesirable, letting gay marriage arise from popular support (which is steadily increasing) may be the least traumatic path.

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1. This would likely lead to a different Equal Protection challenge based on the objection that people were being treated differently just because they lived in different states, and therefore would reasonably lead to de facto universal federal marriage rights for same sex couples. 

2. If the federal government is trying to force religious institutions to pay for contraception and abortifacients right now, it can't be far fetched to think it would force them to accept gay marriage in any number of ways once it was established.

3. The distinction I'm making between threats and harms is that threats are merely potential (and therefore uncertain) harms.

Robert Reich

Last week, Clinton administration Labor Secretary Robert Reich wrote an article, setting the record straight on Obama's proposal to maintain current tax rates on incomes below $250,000 while reverting to Clinton era tax rate on higher incomes. In doing so, he engages in a number of baffling self contradictions.

To hear the media report it, President Obama is proposing a tax increase on wealthy Americans. That's misleading at best. He's proposing that everyone receive a continuation of the Bush tax cuts on the first $250,000 of their incomes. Any dollars they earn in excess of $250,000 will be taxed at the old Clinton-era rates.

The "old Clinton-era rates" he is referring to are higher than the current rates. The top two brackets during Clinton's term were at 36.0% and 39.6%, compared to the top Bush era rates of 33.0% and 35.0% (PDF of historical tax rates). If the higher rates were restored, people who pay taxes at those rates would pay more than if the lower rates were maintained. People who don't pay taxes at those levels would see their rates stay the same1. "A tax increase on wealthy Americans" doesn't seem like a misleading (or worse) description of a proposal where anyone with a sufficiently high income has their taxes increase, and everyone else doesn't. Only someone who already misunderstands the function of tax brackets might misinterpret this claim.

Reich quotes the Wall Street Journal editorial page writing along these lines, and calls criticism of the tax proposal "pure demagoguery". He calls such critics "regressive" three times throughout the article (not including the title). But the Bush income tax rates these critics want to extend are definitively progressive, as all income taxes have been for almost a hundred years. Robert Reich seems to deserve the label of "demagogue" here. Later in the article, Reich mentions capital gains taxes which could fairly be viewed as regressive in combination with the normal income tax. However, he fails to identify capital gains as a regressive tax, perhaps to avoid criticizing the 20% Clinton era rate.

Reich attempts to rebut the argument that Obama's proposal would hurt small business.

Regressives also want Americans to think the president's proposal would hurt "tens of thousands of job-creating businesses," as the Journal puts it.
More baloney.
A small business owner earning $251,000 would pay the Bush rate on the first $250,000 and the old Clinton rate on just $1,000.
Congress's Joint Tax Committee estimates that in 2013 about 940,000 taxpayers would have enough business income to break through the $250,000 ceiling -- and, again, they'd pay additional taxes only on dollars earned above $250,000.

It can't be the number of businesses the WSJ says would be hurt that is "baloney". Nine hundred forty thousand tax payers with business income must represent at least tens of thousands of businesses. Reich must be claiming that increasing taxes on all of these people won't hurt their businesses. His argument supporting this claim is that only income above $250,000 will be taxed at an elevated rate. Without actually knowing how many of the 940,000 people are making significantly more than $250k, it isn't safe to assume that so few would be adversely affected.

Everyone is treated exactly the same. Everyone gets a one-year extension of the Bush tax cut on the first $250,000 of income. No "class warfare."

The view Reich claims to have, that taxing some initial amount of everyone's income the same is automatically fair, despite how greater sums are taxed, encouraged the following thought experiment. What if income tax brackets looked like this?

Would Robert Reich defend such a system from criticism on the grounds that "everyone is treated exactly the same"? Would he dismiss claims of class warfare because everyone has to pay the same taxes on the first $250,000 of income? I'm guessing not.

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1. Strictly speaking, tax brackets are never exactly the same year to year as the income levels where brackets begin and end are adjusted annually.

The Relevance of Obama's Wisconsin Exit Poll Numbers to the General Election

Last Tuesday, Republican Scott Walker won a (to some) surprisingly large victory over Democrat Tom Barrett in Wisconsin's recall election, 53.1% to 46.5%. In the wake of this defeat, many liberal commentators turned to the silver lining of Obama's position in an exit poll question about the general election, where he led Romney by 7%. Analysts like Jay Cost and Sean Trende were quick to point out problems with the polling methodology. Another obvious problem with considering this to be a positive result is that Obama won Wisconsin by 14.1% of the two party vote in 2008. For reasons I may explain in a different post, I wouldn't actually compare the 7% to the 14%, but it got me interested in what the Wisconsin results would look like if Romney won a close race nationally.

The chart below shows John McCain's two party vote margin for all fifty states and DC in the 2008 general election. The independently allocated Congressional districts of Maine and Nebraska are depicted in addition to the whole state results.

This chart is a useful representation of the election results, because a shift in margin can be imagined as the zero line moving up or down while the vertical extent of the bars remains static.

The next chart shows just the states that McCain won, in decreasing order of two party vote margin, with the cumulative electoral vote haul graphed left to right. Electoral vote quantities represent 2012 values adjusted after the 2010 census (McCain actually won 173 electoral votes).

We'll use McCain's results as a baseline. Obama won the two party vote in 2008, 53.69% to 46.31%, a margin of almost 7.4%. If we assume that vote share (and margin) change uniformly throughout the states, Romney will have to improve to slightly better than even to win the 270th vote (and the 271st thru 275th). Colorado, which Obama won by 9.1% in 2008, holds the deciding votes.

The third chart shows Romney's performance if he is able to increase the Republican vote to about 50.9%, just enough to capture Colorado and therefore electoral majority. Again, only states he wins are shown, and the cumulative electoral vote total is given.

This shift adds North Carolina, Indiana, Nebraska's 2nd district, Florida, Ohio, and Virginia to the Republican column before Colorado flips. So what about Wisconsin? The final chart adds back in the states Romney would still expect to lose.

Our conclusion: using a vote model based on the 2008 results with a uniform shift, Romney can lose Wisconsin by 5% and still win the election. Of course, the electorate doesn't really work this way. Particular trends in the South and the Northeast (and everywhere else) will continually reshape the electoral landscape, even in the face of overarching national trends. But to the extent that these trends cancel each other out, or that they have already taken their toll on the electoral map, this gives us an idea of where Wisconsin sits relative to the other states in contention if public opinion has shifted towards Republicans since 2008. Suddenly, a June poll with questionable methodology showing a 7% lead for Obama doesn't sound like such good news.

Corporations Are People, Too

Since the Citizens United v. Federal Election Commission case a few years ago, Barack Obama, the Democrats, and liberals throughout the media have made a regular point of exclaiming their view that corporations aren't people and thus should not be given the same rights as people. I believe that this is fallacious, both as it applies to cases like Citizens United and the liberal progressive desire to denigrate corporations in general.

Obviously, corporations aren't people. Just as obviously, corporations are groups of people. To those who would strip corporations of the right to political speech, I ask, how can a group of people have fewer rights than an individual person?

The First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.

Which part should convince me that the freedom of speech that shall not be abridged happens to not apply to corporate entities? An interesting aspect of the amendment, when viewed in this light, is that all the other First Amendment rights require or strongly imply the protection of groups. It is clear that the free exercise of religion protects group worship. It is clear that freedom of the press protects media organizations. Peaceable assembly wouldn't make much sense if it only applied to individuals, and I can't imagine that the same generation of men who signed The Declaration of Independence would have conceptualized a petition for the redress of grievances to be solely an individual undertaking. So what's more likely, that the founding fathers accidentally included one right that only applies to individuals among a list of other rights that necessarily applied to groups, or that when they wrote "Congress shall make no law... abridging the freedom of speech...", they really meant it?

On top of superficial legal arguments, liberal politicians and talk show pundits try their hardest to sow the seeds of anti-corporate sentiment by convincing us to associate corporations with the ultra wealthy, often focusing on CEOs. The reality is significantly less objectionable, even to a class warrior. Most of the people whose well being is affected by the state of a corporation aren't the kind that are easy to attack. Employees are the most obvious example. Most employees of corporations represent the middle class or below, and the bigger (and therefore eviler) the corporation, the more of these employees there are. A common sense assessment should tell us that the better a corporation does, the more it can afford to pay its employees, and the more people it can afford to employ. Stock holders are another group that directly benefits from the success of a corporation. Given the amount of 401(k) and IRA investment undertaken by the modern middle class, it's increasingly difficult to see how a reasoned view of corporate well being could ignore the benefits provided to very people liberals are claiming to represent.¹

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1. I have omitted an additional group of non-wealthy people that benefit from the success of corporations. Those people are called customers. The reasoning underlying the inclusion of customers in this argument is, sadly, a bit too ambitious for this post.

Government Responsible for Wealth?

Tom Woods posted a blog last week in opposition to the idea that government provided services like public education and roads are responsible for the wealth and success of society in general and the success of very wealthy people specifically. Then today I saw a Zo video about Massachusetts Senate candidate Elizabeth Warren making the same argument (in favor of the government).

Having heard this argument before, and having spent some time thinking about it, I've come up with an additional objection. I'm sure someone somewhere has said this before, but since I've never heard it anywhere it should be worth saying.

Anyone who has read Economics in One Lesson should be familiar with The Lesson:

The art of economics consists in looking not merely at the immediate but at the longer effects of any act or policy; it consists in tracing the consequences of that policy not merely for one group but for all groups.

My objection to attributing the comparative wealth of the richest members of society to general government services is based on this methodology. If you are only considering the wealthy, and you find that a lot of them have made use of government programs such as "free" K-12 education, it might seem tempting to attribute a significant amount of their overall success to that service. When you consider the whole picture, however, such a claim begins to seem ridiculous. If a wealthy person became wealthy because of stuff the government gives to everyone, why isn't everyone wealthy? If we seek to explain the differences between the rich and the poor, clearly we cannot rely on conditions that apply to both.


The belief that government services are responsible for conspicuous wealth also suggests a rather cynical view of the poor. If all it takes to become a millionaire is something that everyone gets, what kind of judgement can we make of people who squander this resource? There is no way to escape the conclusion that different outcomes have different causes, so if wealth isn't the result of extraordinarily good effort by the wealthy, then poverty must be the result of extraordinarily bad effort by the poor. 


Or maybe the reasoning is fallacious to begin with.

Iran and Just War Theory Critique Part IV - Probability of Success

In Part III I addressed how Robert C. Koons awkwardly ties the comparative justice and last resort criteria of Just War Theory to right intention in his article "Just War and the Iran Crisis". He does this a third time with probability of success.

Without a reasonable probability of success at preventing the development of an Iranian bomb, an attack on their facilities could not be carried out with the right intention, even if the cause is just. It would merely be an act of frustration and anger, not genuinely ordered to the defense of innocent life.

Probability of success and right intention, though not rigorously bound, are certainly related in practice. There is a sense in which we might judge a decision to act irrational when the action is expected to fail. If this is true much of the time in war, then it seems valid to claim that such an action is probably motivated by something other than a just cause.

However, this relationship isn't rigorous because there really isn't a contradiction. Since Koons' probability of success doesn't begin and end at 0% (he qualifies the probability required as "reasonable"), war being conducted on a long shot would violate the criterion. If what a nation has to gain (or avoid losing) is so valuable that they are willing to take action with a low probability of success, there would be no barrier to meeting the right intention criteria while violating Koons' probability of success. Since Koons is talking about the Iran conflict specifically here, we can't assess this statement as a problem in his formulation of Just War Theory.¹

The rest of Koons' discussion of probability of success is a problem.

Because of Iran’s anticipation of an American or Israeli attack on its facilities, it has hardened the sites to an extraordinary, perhaps even unprecedented, extent.

Speculation like this doesn't seem appropriate. Koons can't expect us to trust a philosophy professor's assessment of the effectiveness of bunker buster bombs on particular facilities in Iran over that of the US military. This is an important consideration in the decision to strike Iran, but it is something Koons can't possibly assess himself. Perhaps Koons is admitting this, as he next seems to cede the possibility of success.

Even if an attack were entirely successful at destroying one or more critical sites, the most that could be reasonably hoped for is to delay Iran’s acquisition of nuclear weapons for a few years. Wouldn’t such a delay count as a “success”?

Yes, it would. All Koons seems to be saying here is that short of regime change, there is no reason to believe they won't start over, even if all of their current capacity is destroyed. It is clearly preferable to delay the kind of atrocity the US and Israel are worried about if the alternative is allowing it to happen now. There is no sense in which the United States and Israel wouldn't consider this a success.

From here Koons temporarily abandons probability of success.

It’s true that we could be justified in thwarting an imminent attack now, even if doing so wouldn't prevent all future acts of aggression. However, in this case, there is no specific attack that we would be thwarting: we would be merely postponing the acquisition of the means for an attack, and such mere postponement cannot justify the intentional killing of Iranians.

Koons is making two distinctions here. The first is between imminent attack and the means of attack. The second is between a permanent solution to a problem and a postponement of the problem to a later date. While the first distinction is morally relevant in general, it is neutralized by the premise of Koons' argument.

I will assume... that there is a significant likelihood that Iran would either use these weapons directly against the United States or Israel, or give them to hostile terrorist groups such as Hamas or Hezbollah.

The second distinction, between a problem eliminated and a problem postponed, isn't very convincing. It is silly to claim that self defense should be abandoned because it may not prevent future attacks. Surviving in the meantime is a just cause. Additionally, postponing a problem provides additional opportunity to find a permanent solution. It is entirely possible that Iran would never redevelop a nuclear capability, whether because of international pressure, regime change, or further military conflict.

Koons may actually be claiming that the lack of a literally imminent (not just firmly intended) threat is enough to disqualify military action. If this is the reasoning he wants to follow, it seems strange to introduce it during the discussion of probability of success, the last item on his list of Just War Theory criteria. He is clearly identifying a challenge to just cause, the very first criterion. By merely implying such an objection, Koons avoids having to explain his moral claim.

Part V will summarize the points I have made so far and wrap up my critique of Koons' article.

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1. I expect that more traditional formulations of Just War Theory find some way of normalizing the requirements of probability of success to the value of the success, such that an existential threat would require only a small probability of success to oppose, whereas some minor issue barely worthy of war would require a high probability of success to be just.

Iran and Just War Theory Critique Part III - Right Intention

This is the third post in a series critically examining the article "Just War and the Iran Crisis" by Robert C. Koons. In this article Koons argues that the moral criteria required to wage just war are not met by the United States and Israel in the current Iranian nuclear conflict. I have argued and will continue to argue that Koons' analysis contains significant flaws, both in his analytical treatment of Just War Theory and its application to this specific conflict. It is my opinion that these flaws undermine his overall argument substantially.

Early in the article Koons defines the third criterion for just war, right intention, and declares that it is dependent on the last four criteria, three of which I have already discussed.

The third condition, right intention, simply requires that the just cause be the real reason for the action, and not merely an excuse for hostile action motivated by malice. At first glance, this would also seem to be met in this case; however, closer examination reveals that right intention cannot be met unless the final four conditions are also satisfied.

The final four are comparative justice, last resort, competent authority, and probability of success.

Later in the article, Koons does try to show that comparative justice, last resort, and probability of success are required for right intention.

...one’s intention cannot be properly focused on rectifying an injustice on the part of another nation while harboring a similarly unjust intention on one’s own part. Thus, right intention requires comparative justice.

Here Koons claims that the intention to stop a wrong being committed against oneself (or one's ally) cannot coincide with committing a similar or identical wrong. But of course it can. While reality doesn't tolerate logical inconsistency, nothing at all prevents a person (or a nation) from holding beliefs and intentions that may in some sense be inconsistent with their actions. Koons probably wouldn't try to convince us that a murderer would be incapable of defending his own life against mortal attack. He probably also wouldn't try to convince us that the murderer's intention wasn't "properly focused" on self preservation, a just cause when considered in isolation of his other deeds. If we want to account for his other deeds, and we feel the need to tie comparative justice to another criterion, just cause seems a much better candidate¹.

Koons also tries this trick with last resort, the loose end I referred to in the conclusion of Part II.

Why is the condition of last resort so important, given that following this principle brings with it a significant risk of great harm? Last resort matters because when we go to war prematurely, we cannot act with the right intention. If war is something other than our last resort, we reveal our unjust disregard of the humanity of our enemies... When we kill prematurely, we allow other considerations to weigh against the value of their lives, and we deny the inherent dignity of our enemies when we anticipate evil intentions that they have not yet formed.

Koons admits that abiding by last resort can result in "a significant risk of great harm", but declares that right intention depends on a regard for the humanity of one's enemies high enough to outweigh this risk. But why should it? It seems entirely plausible that war can be undertaken with "just cause be[ing] the real reason for the action" even if the actor isn't willing to trade risk of great harm to itself for the humanity of its enemies.

In both cases of trying to convolute right intention with other criteria, Koons extends the concept unnaturally and unnecessarily. Koons' own definition of right intention doesn't imply moral consistency or a sufficient regard for our enemies or any other thing we might consider morally relevant to just war. As defined, the sole moral requirement for right intention is just cause. Since Koons' concerns are addressed by the other criteria without appeal to right intention, it would seem we have nothing to gain from Koons' approach except confusion.

Competent authority, addressed in Part II, is treated briefly as a requirement of last resort, and so presumably could count as an indirect requirement for right intention in Koons' analysis. He doesn't attempt to connect them directly. I don't think there is any dependence between competent authority and right intention.

Part IV will contain a belated discussion of probability of success, both its relation to right intention (Koons gets it right) and its application to the Iran conflict.

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1. Koons may be thinking of the case where an unjust aggressor tries to justify continued or elevated warfare on the basis of counterattacks by the original victim. This is indeed a violation of right intention, but not because of comparative justice. The absence of a just cause, explicitly required by the definition of right intention, governs the morality of such a situation.