To Rick: I agree that complex regulations often benefit large firms because large firms, but not their smaller competitors, can hire sophisticated counsel that allow the large firms to work around, or at least cope with, complex regulations, thus giving them a competitive advantage over their smaller competitors. But if the small firms can’t cope with the regulations, and the large one can do so but only by paying higher transaction costs, then neither group of firms is freer than it was before.  On the contrary, both are less free. It’s just that the reduction in freedom is greater for the small firms than the large ones.

To Jim: You say that my argument is a “smokescreen” and that economic conservatives are not really interested in stopping inefficiency but simply want to cancel social welfare programs wholesale, probably because they hate the poor. This type of argument, by failing to engage intellectually with the point being made and by attributing bad faith to the other side, rarely advances the discussion. For example, how useful would it be if I said that the only reason you posted this response was that you know that my position is unanswerable and that your own is bankrupt, and so you had no option but to resort to calling me a liar? You see how silly this sort of thing is.

To Mattb: I agree that complex economic regulation is an invitation to rent-seeking and crony-capitalism, and that it tends to substitute political connections and lobbying for the discipline of the market. Roberta Romano at Yale has some excellent papers suggesting exactly what you recommend: that regulations should come with five or ten year sunset dates so that some government actor should have to make a conscious decision at some point to renew them, weighing their actual costs and benefits in the light of actual experience.

To Thomas M. Cothran: Consequentialism is a position in moral philosophy, an account of what in general makes actions right or wrong. We’re not talking about that here. We’re talking about when the government should intervene in the market, which is a different and more complex question. For example, everyone recognizes that there are some things that are immoral that the government ought not make illegal (e.g., having lustful thoughts, or not calling your mom on Mother’s Day), and that there are some things that are appropriately made illegal that are not in themselves immoral (e.g., selling securities using a writing that does not conform the prospectus requirements of the Securities Act of 1933). A person can think that government policies should be evaluated on the basis of their consequences without thereby being a consequentialist in morals.

As to your examples, governments ban the sale of kidneys but not the sale of blood, and we prohibit prostitution but not (or at least not anymore) fornication and adultery. It is not a simple question of the moral quality of the actions involved. The question turns on whether government action in these various areas would do more harm than good.

Here is incontrovertible proof that . . . the murder trial of Philadelphia abortionist Kermit Gosnell has received insufficient media coverage: On Friday, Snopes.com was compelled to publish a page confirming that the story is real, not merely an urban legend.

What accounts for the media’s lack of interest in a trial that not only is sensational but implicates the most divisive social and political issue in America? PJMedia.com’s Roger L. Simon has the answer: “The trial of Dr. Gosnell is a potential time bomb exploding in the conventional liberal narrative on abortion itself.” . . .

A funny thing happens when you dissent from Roe v. Wade: You come to see that there’s not much else by way of intellectual content to the case for abortion on demand. . . . [T]hese days the appeal to the authority of Roe is pretty much all there is apart from sloganeering, name-calling, appeals to self-interest and an emphasis on difficult and unusual cases such as pregnancy due to rape. . . .

When you dissent from Roe v. Wade, you notice that people committed to the pro-abortion side almost never acknowledge that the question of abortion poses a conflict of rights or of legitimate interests. Try to pin them down as to where they’d draw the line–at what point in fetal development does abortion become unacceptable? It’s pretty much impossible. The court in Casey said abortion could be restricted after 23 to 24 weeks, earlier than Roe’s 28 weeks, but groups like Planned Parenthood oppose restrictions on late-term abortion, too. All they care about is “a woman’s right to choose.”

[T]he Gosnell case has crystallized our view that the current regime of abortion on demand in America is a grave evil that ought to be abolished. It is murderous, if not categorically then at least in its extreme manifestations. Maintaining it requires an assault on language and logic that has taken on a totalitarian character. And it is politically poisonous. . . .

To avoid confronting the reality of what they were doing, Gosnell and his employees spoke in an elaborate euphemistic code. A baby wasn’t born, “the fetus precipitated.” Gosnell didn’t slash it to death, he “snipped” it to “ensure fetal demise.” . . .

This Orwellian use of language was a commonality between the Gosnellites and the “safe and legal” abortion crowd. “Pro-choice” itself is one such euphemism. Lots of political movements are in favor of one or another form of “choice,” but this is the only one we can think of that cries foul if you specify the choice that they’re pro. The National Rifle Association surely would not object to being characterized as “pro-gun.” . . .

Most news organizations have adopted this pro-abortion doublespeak as a matter of style. The New York Times, for example, characterizes the two sides as “abortion-rights” and “antiabortion.” That at least has the virtue of acknowledging that the debate is about abortion, but it still tips the scale in favor of the pro-abortion side by acknowledging its claims of rights but not the antiabortion side’s. And then there’s the ever-popular “procedure whose opponents call it partial-birth abortion.” What do its supporters call it? And who are they? . . .

Perhaps the most pernicious manifestation of this incivility is the effort to turn the sexes against each other—or perhaps more accurately the effort to cow men into submission. The imaginary “war on women” rages on: “Man, the feeding frenzy over Gosnell is a sobering reminder of how much hatred there is out there towards women,” tweeted Slate’s Amanda Marcotte Saturday. . . .

If you’re a man and you’re opposed to or uncertain about abortion, you’ve almost certainly had a woman tell you that because of your sex, you have no right to your opinion about the subject. . . .  It’s idiotic, offensive and indicative of a war on men. . . .

One Gosnell patient . . . told the Associated Press that she had intended to go to a Planned Parenthood clinic but was scared away by antiabortion protesters.

Well, why were the protesters there? Again, the answer comes back to the Roe regime. Normally if you think a law is unjust, you take your case to lawmakers. But a march on Harrisburg would be futile. Even if Pennsylvania legislators agree with the protesters that abortion is murder, they can’t do anything about it. The Supreme Court has tied their hands. So the protesters, driven by a sincere belief that innocent children are in jeopardy of being murdered, go to the scene of the “crime” to try to stop it before it happens, through the power of persuasion. . . .

One advantage the abortion lobby has is widespread complicity. If abortion is evil, almost everybody is at least a little bit guilty. There have been more than 50 million abortions in America since 1973, according to the Alan Guttmacher Institute. Maybe you’ve had, or facilitated, one. Very likely someone you know has had one, and do you want to call her a murderer? (If no one you know has had an abortion, what makes you think you know that?) Probably you’ve had sex for the pleasure of it, not wanting a baby to result. People were doing that before Roe, of course, but the nationwide deregulation of abortion made it a lot less risky, or at least made it seem so.

But go read the whole column, which is available here.

Now, when people make broad empirical generalizations, especially about other people, and do so without considering any actual empirical evidence, they usually tell us more about themselves than about the people they are putatively describing. They unwittingly reveal their own subjective impressions of things and thus their own emotional states. What we learn from Berry’s remark, therefore, is that he must be a rather dour fellow. Ironically, he thinks everyone else is unhappy, but pretty much it’s just him.

Christopher Roberts says repeatedly that we ought not dismiss Berry, but, in my view, that’s exactly what we should do. Social criticism has to begin with getting the facts right. If it doesn’t, it’s generally a self-indulgent waste of time.

That’s not say, of course, that such unmoored speculations never produce any benefits at all. In this case, for example, Berry’s rumination gave me some wry amusement, increasing the overall level of happiness among Americans and thus making him even more wrong than he was before. Unintended consequences are sometimes happy ones.

As this article in the Wall Street Journal explains, Missy Franklin, a seventeen year-old from Colorado who won the gold medal in the 100-meter backstroke last week, has steadfastly refused lucrative endorsement contracts. Why? Because she wants to preserve her amateur status so that she can swim competitively in college. In other words, she prefers competing to money. Happily, the economic freedom of capitalism includes not only the freedom to make money but also the freedom not to make money, if one so chooses. That’s an important lesson. If most people in Ms. Franklin’s position choose the money, that just shows that they have desires and views about the human good different from hers.

I can imagine some scolds arguing that, although Ms. Franklin’s is the better course, many young people with her opportunities would go for the money because they are seduced into doing so, and thus there should be legal limits on offering phenomenal young athletes endorsement contracts. Now, some people in Ms. Franklin’s position are no doubt seduced: they honestly believe that they should forgo riches, but they choose them anyway because they cannot control their desires. That certainly happens. But these scolds miss a bigger point, which is that some people honestly believe that going for the money is the best option. There is a very wide range for legitimate disagreement about what’s good and what’s bad in individual cases, and for some people like Ms. Franklin, given their individual circumstances, which could well be different from hers, taking the money may well be the right choice. The person best positioned to make this decision—meaning the person with the best information and indeed the moral responsibility for the choice—is the individual himself. The freedom provided by capitalist economies thus leads both to better choices (because individual decisions are made by people with superior knowledge of individual circumstances—a Hayekian point) and places moral responsibility where it belongs, with individual human beings.

This is what I was getting at when I argued here on First Thoughts and in a post on Public Discourse that the legal structures of capitalism give people what they want, not necessarily what is good for them. One important reason we have such structures is that, in general, individuals will make morally better choices for themselves than will anyone else. The critics of capitalism who consistently fail to appreciate this point tend to think that they themselves would choose better than the individuals involved. In making this judgment, they should remember that pride is a worse and more dangerous sin than greed.

First, Forster misstates my position in one important respect. With regard to the open letter from George and Yusuf asking hotel executives to cease selling pornographic videos, I never said that “this is probably a fight not worth picking,” as if I thought that George and Yusuf were in any way wrong to send the letter. What I said was that “I fear … that their request … will not produce the result they hope.” There’s a big difference between expressing doubts about the success of a project, which I did, and expressing doubts about the desirability of the project, which I did not. Some fights are worth having even if the chance of success is small. George and Yusuf’s project falls in this category.

Second, Forster is right that my information about the economics of in-room, pay-per-view pornographic videos is old. I was relying on a market study I saw sometime in the 1990s when I was still practicing law. I am not surprised, and should have realized, that the internet has overtaken pay-per-view as the preferred delivery system for pornographic videos, even for people in hotel rooms. I assume this is because people who want to watch pornographic videos can get a wider selection of videos and get them for free on the internet. If this is right, then the pay-per-view, in-room pornography business is doomed. I agree with Frank Beckwith, however, that it is a mistake to view this as a victory for morality. If hotels give up selling pornographic videos because they can’t make money doing so, and people are watching more pornography than ever in hotel rooms, though on the internet and not on pay-per-view, there has been no improvement from a moral point of view. This remains true even if Forster, or anyone else, declares a moral victory. If you want to have a real fight with the hotel industry, ask the hotels to install filtering software so that patrons can’t view pornography in their hotel rooms. I will leave the reader to speculate for himself on the fate of that request.

Third and most important, in the course of explaining why I thought George and Yusuf’s project would likely fail, I observed that a significant portion of the population wants to watch pornographic videos and, more importantly, a large majority of the population doesn’t object to their doing so. This means that, in a democratic and capitalist society, people will watch a lot of pornographic videos. In explaining that result, I observed, “The legal institutions of a democratic and capitalist society are not designed to give people what is good and prevent them from getting what is bad; they are designed to give people what they want and not give them what they don’t want.” This, Forster says, is dead wrong, because democracy and capitalism do a better job of cultivating the authentic human good in the polity and in the economy respectively than the available alternatives, and this, he says, is their only justification for existing. From my point of view, this is the most interesting point in Forster’s post.

Interesting, because in my view Forster is running together two different, but easily confused, things. In particular, he seems to be conflating (a) whether the institutions of democratic capitalism are designed to produce morally good results, with (b) whether the institutions of democratic capitalism tend to produce morally good results.

As to whether the institutions of democratic capitalism are designed to produce morally good results, I noted in the original post that these institutions produce moral results when the people or the market want what’s moral and immoral results when the people or the market want what’s immoral. This is because these institutions are procedures or systems to implement aggregated human desires; there is nothing built into these procedures or systems to filter the people’s desires so that morally good ones get implemented and morally bad ones don’t. That’s what I meant when I said that these institutions are designed to give people what they want, not what’s good for them. It would not be hard to modify the democratic system to change this. For instance, our constitution could provide that, before any law takes effect, it shall be reviewed by an unelected, self-perpetuating Council of Moral Philosophers, who would determine whether the law is moral, just and right, and if the council so determines, then the law would take effect, but not otherwise. Compare the Guardian Council under the Iranian constitution. Here would be a system that was designed to produce moral results. But no society with such a moral-review council could seriously be called democratic.

Now, with a caveat to which I shall come presently, I agree with Forster that the institutions of democratic capitalism tend to promote the authentic human good, at least in general and for the most part. But this is because, in general and for the most part, people have moral desires and not immoral ones. We disapprove, on moral grounds, of murder, rape, robbery, fraud, theft, racial discrimination, and so on, and so we have strong laws against these things. All this promotes the genuine human good. But we get these good results not simply because we have the legal institutions of democratic capitalism but because we have a people with moral desires that can be and are implemented through these institutions. When the people have a moral failing, such as our current tolerant attitude towards pornography, we get morally bad results.

Which brings me to the caveat I mentioned, which is that the institutions of democratic capitalism tend to promote the human good only when the desires of the people are by-and-large moral. If there were a people who, on balance, had morally bad desires, then the institutions of democratic capitalism would allow them to implement those desires, and the results would be very bad from a moral point of view. Imagine what democracy would mean in a society in which a large majority of the people approved of race slavery for a certain racial minority, human sacrifice in connection with the state religion, a radically circumscribed role for women in society, and fraud and robbery when perpetrated against outsiders. To say that such a society cannot exist is fatuous, because, for each of these delicts, there have been societies that approved of them. In a society like that, democracy and capitalism may well not promote the human good. A society like that might be better off, from a moral point of view, under the rule of an enlightened strongman.

Which returns me to my main point, which is that the institutions of democratic capitalism are designed to give the people what they want, not what’s good for them. If the people want what’s immoral, the institutions of democratic capitalism, far from correcting the people, will actually help them implement their immoral desires. In a democratic and capitalist society, there is a moral guardian, but it not an institution. It is the people themselves.

A Catholic hospital forced to provide contraceptive coverage could … seek to hire only those personnel who it was confident supported the mission of the Church, including its pro-life, pro-family mission. (That Catholic hospitals and universities have not done this is perhaps their greatest failing in their apostolic work, a failing that has contributed to the current HHS crisis in various ways.)

In some ideal sense, such a proposal may well make sense, but according to this page at the site of the United States Conference of Catholic Bishops, there are about 600,000 full-time employees of Catholic hospitals and related entities in the United States. Although I happen to agree with the Church’s teaching on contraception, I recognize that this places me in a very small minority (probably no more than two or three percent) of my co-religionists and an even smaller minority among the general population. I rather doubt that there even are 600,000 people qualified for the jobs who affirm the Church’s teachings on contraception. To be sure, this is in part due to the abysmal catechesis that the Church has provided Christ’s faithful for the last forty-five years, but wide and deep support for contraception is now—pardon the term—one of the facts of life, and it will not change anytime soon. Thus, even if it were legal, attempting to staff Catholic hospitals with people who agree with Humanae Vitae is utterly impracticable. It would be great if more people agreed with us, but until that happens, we need political strategies adapted to the situation of a small minority in a pluralistic liberal democracy.

Here’s the second thing I disagree about in Tollefsen’s post:

Perhaps [Catholic hospitals and universities] could request of their employees a “run” on the available contraceptives, and then publicly destroy, in protest, everything that had been obtained.

I have great respect for Christopher Tollefsen as a philosopher, and everything he writes is worth reading, but this proposal is simply harebrained. Because the financial capacity of the employees of Catholic hospitals and universities is small relative to the size of the contraception industry, and because the ability of that industry to expand production is very substantial, there is no chance that this proposal would reduce the availability of the products in question or increase their prices. In general, buying the products of companies in business to make money by selling such products is unlikely to harm those companies. On the contrary, it merely enriches those companies and impoverishes the people foolish enough to participate in such a scheme. Nor would such  a public spectacle change anyone’s mind about the morality of contraception. For the time being, I happen to work for a Catholic university, albeit one extremely unlikely to adopt Tollefsen’s proposal. If my university surprises me, however, and requests that I hit the local CVS to buy up all the condoms and then join my co-workers in a great Bonfire of the Rubbers, I intend to take a pass.

Note: In an earlier version of this post, I had said that if a Catholic hospital attempted to hire only Catholics supporting the Church’s teaching on contraception, it would likely violate the federal employment laws. That is not correct. As my colleague Professor Michael Moreland kindly pointed out to me, under Title VII, religious employers like Catholic hospitals may restrict their hiring to members of the relevant religion, which is a different thing from the ministerial exception, which exempts religious employers from  legislation concerning all forms of discriminiation, not just discrimination on the basis of religion, in connection with the hiring of ministers and similar employees. Yet another proof of what happens when lawyers talk about the law outside their area of legal expertise.

The key point is that the bishops have not been fooled by the administration’s absurd canard that, if we merely say that an employer is not required to purchase contraceptive coverage for its employees but then require the insurer to provide the employees with such coverage free of charge anyway, the employer is not purchasing the coverage. As the bishops put it, such “coverage is still provided as a part of the objecting employer’s plan, financed in the same way as the rest of the coverage offered by the objecting employer.” In other words, as I argued yesterday, it’s the same system as before, except that President Obama says that it isn’t, and we’re supposed to be fools enough to believe him.

Moreover, I owe the bishops an apology, for in an earlier post, I had said that the bishops were wrong to frame this issue as one of religious freedom for religious institutions. I argued that if the relevant practices are wrong in the way the Church says they are, then it is wrong for the government to force any employer—not just religious employers—to fund them. I said that the bishops should not limit their objection to the rule’s application to religious employers but should object to it in much broader terms.

In fact, this is exactly what the bishops had been saying all along, as the latest press release makes perfectly clear:

We objected to the rule forcing private health plans … to cover sterilization and contraception, including drugs that may cause abortion…. [W]e explained that the mandate would impose a burden of unprecedented reach and severity on the consciences of those who consider such “services” immoral: insurers forced to write policies including this coverage; employers and schools forced to sponsor and subsidize the coverage; and individual employees and students forced to pay premiums for the coverage. We therefore urged HHS, if it insisted on keeping the mandate, to provide a conscience exemption for all of these stakeholders—not just the extremely small subset of “religious employers” that HHS proposed to exempt initially.

From the very start, the bishops had this right. Shame on me for trusting the accounts in the mainstream media and not reading the bishops’ own statements.

The bishops conclude that “the lack of clear protection for key stakeholders—for self-insured religious employers; for religious and secular for-profit employers; for secular non-profit employers; for religious insurers; and for individuals—is unacceptable and must be corrected.” Hence, “Rescission of [the] mandate [is the] only complete solution.”

So here we have the Catholic bishops preaching the word out of season. It is a good day to be a Catholic in America.

This is economic nonsense. Insurance companies have no money to pay for such benefits for the affected employees except from premiums they charge the employers who purchase coverage for their employees. So, one way or another, the employers are paying for the products to which they object. For example, suppose that, under the old rule, a religious employer would have had to pay $5,000 per employee annually for coverage including contraception. Under the new rule, the employer may elect to buy a policy that says that it omits such coverage. But the insurer has to provide the coverage anyway, and it may not charge the employee for it. How will it pay for the coverage? Obviously by building that cost into the price it charges the religious employer. Hence, the new policy will cost the employer the same $5,000 per employee that the old one did.

Under the old rule, the employer had to pay for abortion-inducing drugs, sterilizations, and contraception. Under the new rule, the employer has to pay for abortion-inducing drugs, sterilizations, and contraception, but President Obama will say that it doesn’t, and we’ll believe him. That fixes everything. And to think, some people accuse President Obama of empty rhetoric.

Of course, some people have argued that the real story here is not about religious freedom but the ever-expanding role of government. Thus, Daniel Henninger argues that the Catholic Church is merely feeling the kind of intrusive government regulation that businesses, doctors, schools and others feel all the time. I think this is right too.

There is, however, another point here, intermediate between the religious-freedom point and the big-government point, and it is one that the Catholic bishops ought to care about. Thus far, the bishops have argued that, since the Church believes that abortion, sterilization, and contraception are morally wrong, it is wrong for the government to force the Church’s institutions to fund such things through its health insurance plans. By what logic, however, does the Church restrict this argument to just religious institutions? If these practices are morally wrong in the way the Church clearly says they are, how may the government force any employer who objects to them to funding them? Do the Catholic bishops believe that the government may legitimately compel people do wrong, unless such people are religious institutions? If the board of directors of an S&P 500 company, or an entrepreneur with a small business, decides that the company’s health insurance plans ought not cover abortion-inducing drugs, sterilizations and contraception, does the government have a right to compel that company to include such things in its health plans nonetheless? It’s hard to see how any consistent Catholic can say this. If an action is wrong, compelling someone to do that action is wrong too, no matter who the person subject to the compulsion might be.

It is no doubt politically astute for the Catholic bishops to frame this issue as one of religious freedom; they already seem to gaining traction by doing so. Moreover, an across-the-board exception for anyone objecting to the government mandate may well be politically unattainable, and if so, it may be imprudent to argue for such an exception. But that doesn’t change the moral principle at stake. By framing the issue in the way they have, the bishops have made the issue seem like one of religious freedom peculiar to religious institutions. The real issue, from a philosophical point of view, is one of freedom of conscience applicable to all persons and all institutions.