Category Archives: Political Philosophy

When Intellectual Property Is Theft

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I liked Julian’s observation that legislated extensions of copyright terms are more like theft than copyright infringement:

[I]f the defining characteristic of theft is that it deprives the victim of something they were entitled to use and enjoy, then there are things that can accurately be described as “intellectual property theft.” When legislators—many of whom now support censoring the Internet to stop “piracy”—rewrote the copyright bargain with the Sonny Bono Copyright Term Exension Act, they retroactively extended the monopoly of rightsholders over existing works by 20 years. That retroactive extension, of course, did nothing to incentivize new creation. And since economists have estimated that the present value of a copyright monopoly was already barely distinguishable from the value of an unlimited term, it’s doubtful that even the prospective extension bought us much additional creativity. But it did mean that the general public would be denied, for another 20 years, the free use of works that had been slated to fall into the public domain under the original copyright bargain. That sounds more like “theft” of intellectual property—and not just theft from a particular creator or industry, but from the whole of the public.

If you’ve ever had a hard time understanding what Prudhon had in mind when he said “Property is theft!” you could do a lot worse than reflect on the Sonny Bono Copyright Extension Act. To define and assign property rights just is to rig the economic game a certain way. To divide a common meadow into private parcels does deprive the public from the use and enjoyment of the meadow. And this does amount to theft if members of the public cannot see the new assignment of rights to have merit by their own lights. It’s often (but not always) the case that dividing the commons is the only way to satisfy Locke’s requirement that everyone be left with as much and as good. If you’re duly compensated for losing access to a resource that would be otherwise depleted, we tend to think it’s a fair arrangement. Likewise, keeping intangible creative works out of the commons through the assignment of intellectual property rights is justified if it leaves us better off than we would be in a world with no IP.

I happen to think copyright does induce creation and that creators and consumers as classes would be worse off without it. And I think returning creative works to the commons in, say, 20 or 30 years also induces creation and that creators and consumers both are made worse off by longer copyright terms. That’s just a guess, but presumably there’s some vague fact of the matter about optimal terms for various types of creative work. Whatever that is, that’s what we’re entitled to. Extending terms past the optimum, locking down more than a lifetime flow of monopoly rents for a few at the expense of the many, doesn’t strike me as like theft. It’s a straightforward plundering of humankind’s common cultural inheritance.

Like Freddie de Boer, I’d like to have a serious, non-utopian conversation about the regime of intellectual property rights and intellectual property protection that would best encourage creation by making it possible to make a living selling the dearly created but easily and cheaply reproducible. (Unlike Freddie, I think a good place to start would be not to seethe with open contempt for those with whom we mildly disagree and not to preemptively ascribe irritation from those we’ve unfairly impugned to bad-faith tribalism.) One hopeful possibility here is that fair rules inspire respect and respect induces compliance. A more modest and limited scheme of copyright clearly focused on incentivizing and rewarding creators rather than on minting money in perpetuity for corporate copyright owners might make less draconian enforcement mechanisms sufficiently effective.

Liberaltarianism Lives

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On Tim Lee’s blog as “bottom-up liberalism”.

Tim’s right that liberals have internalized a fair number of libertarian arguments, and this is heartening. At the same time,  it’s  important not to overstate this. Also, few libertarians have yet to internalize liberal arguments that they should accept. Convergence is a two-way street.

The exchange between me and Matt Steinglass at Democracy in America over whether Obamacare incorporates Hayekian insights is an excellent example of they way libertarians and liberals continue to fail to connect. And most liberals remain pretty hostile to these common libertarian ideas:

  • Democracy sucks.
  • Unions hurt more than they help.
  • Campaign spending is political speech.
  • Economic inequality does not undermine democracy or democracy’s role in establishing and protecting equal liberty.
  • Economic rights are as important as political and civil rights, and should be just as vigilantly protected, even if  that leads to huge inequalities, which do not, by the way, threaten democracy or the value of political and civil rights.
  • Taxation is coercive but imprisoning the guy who nicked your lawn gnome isn’t.

One could go on. Some of these ideas are correct, some incorrect. Together they amount to a towering impediment to joyous liberal-libertarian comity.

Even if you’re a moderate Hayek-Friedman pro-welfare-state libertarian who does not think taxation or inflation are indistinguishable from theft, it’s still impossible to convince most liberals of this:

  • It’s best to just maximize growth rates, pre-tax distribution be damned, and then fund wicked-good social insurance with huge revenues from an optimal tax scheme.

It’s not even clear to me what’s especially libertarian about this. It’s sorta just anodyne welfare-state liberalism plus economics. I’d be elated to get just this. When a not insignificant group of liberals start saying, “Of course! Of course this is what we should do!”  then I’ll feel we’re really cooking with gas, and I won’t care what we call it.

Here's Why Not

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From Herb Gintis’ excellent review of the lately-departed G.A. Cohen’s Why Not Socialism?:

Cohen argues that markets are morally offensive institutions that most people would be happy to get rid of if they could figure out some alternative compatible with the standard of living we are accustomed to in advanced market societies. “The market” says Cohen, “is intrinsically repugnant…Every market, even a socialist market, is a system of predation.” (pp. 78,82)

In place of the market, Cohen celebrates the caring and voluntary mutual aid that occurs in small groups of friends (he never mentions family), and believes this can be extended to a community of strangers as well. He calls this “communal reciprocity.” (p. 39)

[...]

Rather than lamenting the incompatibility of socialist community and human nature, Cohen faults our meager social technology; there is simply no known machinery for harnessing natural human generosity. He calls this an “insoluble organizational design problem.” “In my view,” he remarks, “the principal problem that faces the socialist ideal is that we do not know how to design the machinery that would make it run.” (p. 55)

I think there are two problems with Cohen’s argument. First, there is a reason why we lack the organizational institutions that harness human generosity, and it has to do with a side of human nature that Cohen does not recognize. There is a great deal of heterogeneity among people in the degree to which they privilege the personal, including self and family, over the social. Everyday observation, reinforced by a huge body of empirical evidence—see my book, Bounds of Reason (Princeton, 2009) for details—that unless there are safeguards against the free-rider tendencies of the selfish, the natural tendency for the majority to cooperate will be undermined, and cooperation will unravel. Moreover, the larger the group, the harder it is to identify and punish the free-riders, even though most people are willing to incur personal costs to do so. Markets work because they discipline firms, who then discipline workers, thus solving the free-rider problem. Moreover, markets discipline firms by forcing them to compete and therefore reveal to the public exactly what are the limits of the possible in satisfying consumer needs and using technology efficiently. The knowledge of production possibilities unleashed through market competition cannot be revealed in any other way that we know of.

Gintis’ second problem is another good reason also why not.

I’ve read a good number of Cohen’s papers and books. I’ve always enjoyed them, and I’ve always come away feeling he has clarified for me the contours of the debate. The great thing about Cohen was how transparently and unabashedly he angled for the result he wanted to get. But he wasn’t one to pack the conclusion into his premises, so when he would land short of his longed-for conclusion, you could be pretty certain that’s as close as you can get with those particular premises. And you could be pretty sure that if there were some other premises out there both more plausible and more amenable to producing the wanted result, he would have found them and started from there. For many years Cohen was to Anglophone analytic political philosophy something like Ted Kennedy was to American politics: he marked the outer bound of the reasonable left. I think now that contemporary political philosophers have begun to lose their “studied ignorance of standard social and psychological theory, common among philosophers of the mid-Twentieth century,” as Gintis puts it, the bounds are shifting, leaving Cohen’s views well past the edge of a receding tide.

Is Poverty a Violation of Human Rights?

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I’ve been meaning to blog about William Easterly’s exchange with Amnesty International about the notion that poverty is a rights violation. I’ve found my own view much harder to pin down than I thought I would, so it took me forever to actually write this post, which goes far afield, and amounts to a lot of thinking out loud. I remain unhappy with my thoughts (or this not-very-rigorous way of putting them), but I found writing it very useful, and maybe some of you will find it useful. So I’m throwing it out there. Dive under the jump at your own peril.

Continue reading →

Government, Civil Society, and the Utility of Cooperativeness

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Here is a point that I’m sure I’ve made before but I want to make again. There is a kind of higher-order public good you can call “trust,” “cooperativeness,” or something else. The idea is that some communities are able to overcome certain kinds of challenges involved in coordinating group behavior. The capacity successfully to solve collective action problems at a large scale, with a large population, is the Holy Grail of human society. If you can do this, you can do anything… which is a point I don’t think ideologues have really been able to get their heads around.

Suppose you have a super-cooperative, high-trust society. This is the kind of society where the need for coercion to solve collective action problems is least necessary. Voluntary civil society associations will thrive. But if you’ve got the super-cooperative, high trust conditions for a thriving voluntary civil society, you’ve also got the conditions for a really effective government in which corruption will be minimal and power will tend not to be abused. If there are limits to non-coercive social coordination even in super-cooperative, high-trust societies, states in those kinds of societies will tend to do a pretty good job in deploying coercion responsibly to secure the otherwise foregone gains from successful collective action.

So: The world in which there is little need for state coercion, states will tend to be pretty effective and non-abusive. And worlds in which states work pretty well are worlds where states don’t need to do all that much. Reduce the level of cooperativeness and trust, and the quality of government gets worse. But then civil society gets worse, too. So whatever you want, whether it be good government or a flourishing voluntary civil society, you want the conditions for the other thing.

The trick is that in large modern states jurisdictional boundaries cover many communities with highly variable levels of cooperativeness. So here’s a question. Will the quality of the government of widest scope tend to average out unequal levels of cooperativeness, such that high-cooperativeness communities will tend to get worse governance than they could provide alone (maybe even worse than they could do without a state) and low cooperativeness communities will tend to get better governance than they could provide alone? It seems that the answer has to be “yes,” but what does this imply?

Are We Flirting with Fascism?

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Folks are loose with ‘fascism’. The cops are fascists because they’re cops. Bush was a fascist because he blew new life into the military-industrial complex and herded protesters into “free speech zones.” And now, Obama is a fascist for sacking the executive of a private corporation and saying the government will back the warranty for your Yukon Denali. Is this fascist?

Fabio Rojas says no. He says fascists want to control capitalism, “but mainly as a tool for nationalism and clientelism, rather than redistribution.” He goes on:

Instead, we’ve got “quarterback capitalism.” The idea is pretty simple: don’t challenge the major features of capitalism, but opportunistically fix what you can with buy outs, loans, subsidies, and other ad hoc interventions. Reminds me of the great quarterback Randall Cunningham, who could scramble his way out of any mess. The idea behind Bush-Obama policy is that what ever mess you’ve got, you can probably fix with the right hodgepodge of incentives. The Federal government is the nimble quarterback who can get you out of the squeeze.

With regard to GM, Obama didn’t do what the fascists actually did – which was to make everyone dependent on the state so they could engage in militarism. Basically, the current strategy is to do what one can to save the financial and manufacturing infrstructure of United States, but not in ways the challenge the underlying structure. Better regulations for banks; new management for the auto people; a little help for homeowners. For GM, it was pushing out old management in exchange for money, a typical move in the private sector. Whether this is good is certainly for debate, but it certainly isn’t a return to fascism, socialism, or laissez-faire economics.

Sheldon Richman’s Concise Encyclopedia of Economics entry says:

Where socialism sought totalitarian control of a society’s economic processes through direct state operation of the means of production, fascism sought that control indirectly, through domination of nominally private owners. Where socialism nationalized property explicitly, fascism did so implicitly, by requiring owners to use their property in the “national interest”—that is, as the autocratic authority conceived it. (Nevertheless, a few industries were operated by the state.) Where socialism abolished all market relations outright, fascism left the appearance of market relations while planning all economic activities. Where socialism abolished money and prices, fascism controlled the monetary system and set all prices and wages politically. In doing all this, fascism denatured the marketplace. Entrepreneurship was abolished. State ministries, rather than consumers, determined what was produced and under what conditions.

If Sheldon’s right, it’s hard not to see the U.S. moving in a fascist direction. The government is indeed in the business of setting some prices and wages politically, which is troubling. But it’s pretty clear that we’re still pretty fully in the “mixed economy” mode. As Richman writes:

Fascism is to be distinguished from interventionism, or the mixed economy. Interventionism seeks to guide the market process, not eliminate it, as fascism did. Minimum-wage and antitrust laws, though they regulate the free market, are a far cry from multiyear plans from the Ministry of Economics.

Yet I think it’s clear that we are in fact seeing fascism in vitro, though I don’t think that’s anyone’s intention. Nevertheless, we’d better swallow some gunpowder pretty quick. Like Tom Palmer, I find it extremely troubling to see Barack Obama talking like he personally looked over the GM situation and finally made some decisions because that’s obviously his job, to be the decider, and because the managers of private corporations can’t possibly do the right thing. It’s a very, very, very bad precedent. Tom says:

I was so happy to see the back of George W. Bush and his administration, with their disregard for the Constitution, foolish and unnecessary war, attempt to subvert habeas corpus, reckless spending, and overall arrogance and disregard for limits on power. His successor has decided to follow even more carefully the examples set by Benito Mussolini and Vladimir Putin, and has sacked the head of a company. That is a decision for the shareholders of a private firm to make, not for the head of state. What next? Will private firms end up in the hands of friends of the president? Will the White House Chief of Staff serve simultaneously as head of a major state-directed company? Will journalists who criticize the president end up shot in the head in elevators?

I predict that the answer to Tom’s three concluding questions will be “no.” That doesn’t mean they don’t need to be asked. It happens, and it can happen here. Asking these questions helps ensure the answers will be “no”, prepares us to stand up against overweening power. But it ought to make you a bit sick that it has become  necessary to say that, no, the President doesn’t run everything. Perhaps we’re getting “quarterback capitalism” and not yet “fascism,” but it’s still pretty troubling to anyone with a liberal bone in his body.

The Permanent State vs. Democratic Government

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This WSJ piece nicely illustrates the difference between the permanent apparatus of the state and the impermanent apparatus of elected government. It also illustrates nicely the problem of legitimacy in the context of a large state. The legitimacy of government coercion and redistribution, according to most contemporary liberal theorists, flows from decisions having passed through fair democratic procedures. But much de facto government comes from the unelected state, even under normal conditions. 

Much of the planning required to give out the funds is being done by career bureaucrats, because top political appointees at many agencies have yet to be nominated, much less confirmed.

At the Interior Department, an eight-person task force is mostly made up of career employees who have been named acting bureau chiefs.

Longtime employees also have been running the show at the Commerce Department, which remains without a secretary after the Obama administration’s first two candidates dropped out, and the third, former Washington Gov. Gary Locke, awaits confirmation. It took a week for the agency to provide any information about its stimulus plans. The agency has almost $8 billion to give out, including $3.9 billion for broadband grants.

All the so-called liberal democracies have a permanent civil service or bureacracy. I don’t see how they could function without them. But I also don’t understand how this fits into contemporary liberal accounts of the democratic legitimacy. Is this a problem?

[Note: Just in case... let me say that is a post about political theory, not anything about the Obama government in particular.]

Small and/or Limited Government: Some Distinctions

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I feel the liberaltarianism discussion is often muddled because of confusion over a number of different ideas. I’m going to try to clear my own head here. Maybe it will be useful to others.

I think it’s important to distinguish “small government” from “limited government,” and to distinguish between a couple different senses of “limited.”

Let’s say government is small when government spending as a percentage of national economic output is relatively low. Small government, in this sense, will tend to have relatively low taxes. But the overall tax take tells us little about how the tax burden is distributed. It doesn’t tell us what the money is spent on. And it doesn’t tell us much about economic liberty.

Which society is freer? One with a smaller government where the very rich pay all the taxes (90 percent of the population pays no taxes! 90 percent libertopia?) or one with a slightly larger government with a relatively low level of taxation spread more or less evenly over the whole population? (Should we do a poll on this?)

The fact that a government is small doesn’t rule out the possibility of egregious restrictions on non-economic liberties or of incredibly burdensome economic regulation. Suppose it takes two years to fill out all the paperwork, get all the licenses, etc. to start a small business, but once you do that, your profits aren’t taxed all. Suppose many forms of exchange are simply prohibited. You might have small government, low taxes, and very little economic freedom. Of course, a small government can ban abortion, prostitution, drugs, a free press, etc. just as well as a big one. Such a government may need to spend a lot of its modest budget on police and prisons instead of on genuine public goods. The size of the budget as as percentage of output doesn’t tell you anything about the composition of spending. This is a really important point. The United States spends a lot on prisons, the military, drug law enforcement, border patrol, etc. A lot of this is the opposite of rights-respecting, and a lot of it is downright wasteful. The composition of spending is important both as a matter or morality and a matter of economic growth (which I happen to think is also a matter of morality.)  Which is all to say, the fact that a government is small logically implies almost nothing about either liberty, justice or efficiency.

(Also, as a technical tangent, there may be economies of scale in the provision of certain public goods. So a smaller country whose government provides precisely the same goods as a bigger country may turn out to have a bigger government, simply because it costs them a little more to provide the goods. Slightly weaker economic performance relative to the bigger country may result, but a cutback in spending on those goods won’t improve performance if they are growth-enabling.)

Limited government is really what matters, but “limited” is also a bit ambiguous. The most important sense is “rights-respecting.” Bills of rights are meant to declare that legitimate (and legal) government is limited to activities that do not violate rights. Many disputes between classical and modern liberals turn on their theories of rights. For example, if the collective action problems inherent in the provision of certain public goods justifies taxation, then a state that collects taxes for this purpose does not violate property rights. If you think there is no such justification for taxation, you’ll tend to see the taxing state as violating rights and thus overstepping its proper limits. If you think there is such a justification for taxation, and believe there is an abundance of collective action problems that may be resolved only by government action, then you may think that a quite high level of taxation and government spending is perfectly consonant with limited, property-rights respecting government. 

Here’s an aside about libertarian theory that I think helps transition to another, related, idea of “limited.” Though most libertarians are not anarchists, the outsized influence of property-rights-focused anarchists within the broader libertarian community somehow seems to create a lot of confusion, when it ought to help clarify the issue. The so-called “minarchist” or “minimal government” view accepts the public goods justification of the state, while the anarchist rejects it. The anarchist argues either (1) that the protection of rights is an individual good and that individuals can successfully protect their rights by going to the market and contracting with private rights-protection agencies or (2) all public goods, including the protection of rights, can be successfully provided using markets and other forms of voluntary association. Anarchists often argue that if the public goods argument for state protection of rights (and the system of public finance it implies) is sound, then there is no principled basis for stopping at “minimal” government. The scope of legitimate government will be however wide the logic of the public goods or market failure argument happens to take you. There are a number of possible minarchist replies here (the specialness of the use of coercion in the rights protection business, etc.), but I basically think the anarchist critique is correct. If there is something especially unstable in private markets for rights protection, and that fact justifies public provision of that service, then there might be other kinds of market failures that justify the public provision of those markets’ services. 

I think this takes us to another sense of “limited government” as “limited to what non-government alternatives cannot do better.” An obvious implication of market failure arguments for state provision of certain services is that the state should not be in the business of providing services where markets or other voluntary mechanisms are superior. There’s no justification for the coercive tax-financing of state enterprises when those goods and services would be provided (usually with higher quality and a lower price) with no state coercion. Also, state enterprises will tend to crowd out private enterprises both by (a) absorbing capital and using it badly and (b) by virtue of its inherent advantages in securing anti-competitive subsidies and barriers to entry, which is all the more reason to limit government to the things we actually need it for.

Let me wrap it up. The “size” of government is not a good proxy for either economic or non-economic liberty or for economic performance. Advocates of “small government” need to worry more than they do about the moral and economic dimensions of the composition of spending, and they need to realize that they care more than they think they do about questions of “distributive justice,” which is pretty obviously manifest in enthusiasm for reforms, like the “flat” and “fair” tax.

I think our real concern ought to be limited government. But whether you think an ideally limited government is also small will depends on lots of things including your account of rights, your beliefs about the relative efficiency and reliability of state vs. market provision of various goods, your beliefs about the necessity of public spending to facilitate growth, and more. The claim behind my version of  ”liberaltarianism” is that there is a principled position between classic night-watchman “minarchism” and full-on modern liberalism. If you’re not an anarchist or totalitarian, then you think that it’s possible for the state to do either too little or too much. Minarchist libertarians seem to be a bit embarrassed by the concessions they do make on the way to arguing for a state, and so stick as close as they can to their anarchists friends without going all the way stateless. But the anarchists are right that the minarchists have, in some sense already “given away the store,” and that it would be pretty surprising if the logic of the minarchist argument allowed them to stop where they do. On the other side of the equation, modern liberals need to get more credit from libertarians in desiring and defending limited government. The governments of the successful liberal democracies are in fact remarkably limited relative to the possibilities, both in terms of respect for rights and in refraining from crowding out the efficient private provision of goods and services–which explains their success. That said, it would be pretty surprising if either the modern liberal state or modern liberal theory (which often looks suspiciously like ad hoc apologetics for the modern liberal state) gets the limits of government right as either a matter of morality or efficiency.  

There’s lots of other stuff to talk about: the paternalism of modern liberalism as a failure of limited government; the consistency of social insurance and poverty-mitigating redistribution with a principled account of limited government; and other stuff–but those are separate posts.

Missing the Point of Liberaltarianism

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Over at The Corner, Jonah Golberg and John Hood have been taking poorly aimed shots at “liberaltarianism.” I’ll try to reply to some of what they say, and maybe Brink will jump in. Jonah writes:

As I read Brink Lindsey and Will Wilkinson these days quite a bit, I think I’m on safe ground when I say they are suitably vexed by the stimulus bill and its chief defenders.

Which gets me wondering: Whatever happened to liberaltarianism?

[...]

[I]t seems to me that the stimulus debate clearly puts the lie to the idea that liberals and libertarians can see eye to eye on the large questions of political economy, at least for the foreseeable future. The first principles simply aren’t aligned. The theoretical arguments in favor of the stimulus amount to rubbing the libertarian cat’s fur backwards. And the so-called “libertarian center” hardly seems to be decisive or even relevant to the public debate. In the most important and fundamental debate about the role of government in a generation, the libertarians are lining-up with, and even marching out in front of, the conservatives.

Jonah here is guilty of a common mistake about the “liberaltarian” or what I like to think of as the “liberal” project. I’ll let Brink speak for himself, but I’m not that interested in short-term partisan politics. I’m interested in a much longer-term project. I want to help create the possibility of a popular political identity that takes the value of human liberty, in all its aspects, really seriously. As I see it, this project involves an attempt to reunify the separate strands of the American liberal tradition. I’m not sure what it is about that project that would that lead Jonah to think Brink or I should be vexed by the behavior of the Democratic Party and its operatives. The stimulus bill vexes me not at all. It’s what you’d predict knowing the current extent of Democratic power, the opportunity that the perception of crisis creates, and the composition of the Democratic coalition. As a student of James M. Buchanan, I’m no romantic about democracy.

Moreover, what is it about the era of George W. Bush that makes Jonah think that conservatives and libertarians see eye to eye on the large questions of political economy? I understand it is now politically expedient for Republicans to oppose whatever Obama is trying to do. But, frankly, the recent performance of the Republicans in Congress has been pathetic, managing to do little more than fight to get a bit more for their constituencies and a bit less for the majority’s. I do not remember hearing a plausible, principled alternative powerfully articulated by the Congressional Republicans. Maybe that’s because the great success of the GOP over the last eight years has been to destroy the reputation of free markets and limited government by deploying its rhetoric and then doing the opposite. Partisan Republicans choke on the truth that the emerging shape of the Obama era is the aftemath of the GOP’s successful, if unwitting, campaign to destroy the political economy they proclaimed. 

There’s a lot of diversity within libertarianism. And the most common forms of libertarianism are, I think, still pretty well shot through with conservative reflexes bred by the long Cold War alliance between libertarians and the right. For many libertarians, hating the left just feels like home. So many libertarians will indeed come running home when called to service by the organs of partisan conservativism. Well, good luck to y’all, but I was never on the team, and I’ve never wanted less to be on it. I’d rather work the long angle.

I think Obama and the Democrats are already in the process of screwing it up. The romance of transformative hope is going to wear off pretty quick as all-but-uncontested Democratic policy deepens and lengthens the recession. There’s a lot of culturally and psychologically liberal people out there who are, and are going to be, interested in a liberalism that actually works. I want to use this time of ferment to work on developing the missing option in American politics: an authentically liberal governing philosophy that understands that limited government, free markets, a culture of tolerance, and a sound social safety net are the best means to better lives.

So “whatever happened to liberaltarianism” is that it’s an ongoing project to change who talks to whom, to freshen the stale dialectic of American politics, and to create new possibilities for American political identity.

Jurisdiculous

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Some libertarianish and conservatives types sometimes like to think of the territory of the U.S. as a big piece of real estate over which citizens have a kind of shared property right. There are lots of things that are wrong with this way of thinking, especially for people who think their philosophy is grounded in a strongly moral conception of property rights. Perhaps the primary flaw in the national-territory-as-collective-property schema is that very little U.S. territory was gained legitimately. Mostly it was gained in the way political territory is generally gained: war, theft, and purchase from thieves. Some worry about the fact that the Louisiana Purchase was unconstitutional. But why not worry instead about the far more troubling fact that the French state could not have been the legitimate owner of large swathes of land already owned by natives? Can James Polk’s brinkmanship really be principle that determines that I have a stake in what happens in in Portland, but not in Vancouver?

I understand that this is the way the territories of kingdoms, principalities, and states are formed. Colonial criminality drew the map. That’s the way it is. No turning back. But shouldn’t we be long past the idea that these traces of regrettable history have truly weighty moral significance–that the Treaty of Guadalupe Hidalgo or the Gadsden Purchase somehow create deep moral facts about where some human beings should and should not be able to go?