The Tragedy of Rachel Barkow’s Book

Rachel Barkow’s book “Justice Abandoned” is another tragedy of someone who will have zero effect, for being wrong in basic assumptions. This includes 1) a misguided marketing appeal to people’s taste for liberty, 2) calling executive-branch discretion “efficient” while arguing not to use it, when executive-branch discretion is no more efficient in the US than in the USSR, 3) telling judges to follow the Constitution rather than their flawed economic theories based on legal interpretation, instead of pointing out their economic theories are wrong and those embodied in the Constitution are correct, and 4) trying to use political popularity to fix what judges do, when the purpose of judges is to oppose politics.

First of all, nobody actually cares about liberty, they have just been told that other people care about it. So when people say “liberty” they mistakenly think that word can be used to appeal to what other people value. When investors spent billions on Quibi and consumers turned out to not want short movies, they shut down. But people like Barkow will never stop trying to market their policies as “liberty” no matter how poorly this sells. What consumers actually want like potato chips is not liberty, but conscious control, communism.

Second, Barkow accepts that settling cases using plea bargains, or police being able to search you without judges scrutinizing facts, is “efficient”. Local executive-branch employees acting pursuant to their own discretion or agenda, or under political regulation, do not use resources efficiently. The argument that we can operate more efficiently without judges or due process, is the same as the mirage that we can operate more efficiently by cutting out capitalist businessmen and middlemen in commerce. To just let people tell the producers directly, in this case police, the product they want.

If Germans began by assuming middlemen are not necessary for producers and consumers to coordinate, they were not going to let traders make profits just because Barkow said the magic word “liberty”. Letting factory managers in the USSR be regulated by the executive branch instead of prices did not produce more efficiency. And letting police choose their own agenda, rather than being regulated by checks and separation of powers, does not reduce more crime at less cost. Once you begin by accepting the argument that letting police do what they want might be more efficient, you have lost the argument.

Barkow is also wrong about appealing to retail politics rather than wise men, to influence judges to not be wrong. Law will not be elevated by populist politics telling judges to protect liberty, but always in opposition to populist politics. You have to appeal to the judges themselves that their economics is wrong, and that their economic reason for existing is to oppose flawed political decisions. Judges will stop rewriting the Constitution when they realize their smug and self-important economic assumptions are wrong, not because voters want liberty.

There are people who think they would be better off, if they killed everyone in their city except them. You are never going to change their minds, any more than you are going to persuade them to not eat the foods they like. The solution to this has never been to change their minds, but to use law to protect against what they think. The Framers wrote the Constitution the way they did, because they did not think human nature could be fixed. You have to oppose human nature, by imposing upon it unpopular economic solutions that actually work.

Like in Cuba, people in the US don’t want liberty they want results. Rachel Barkow’s argument is like responding to people in Cuba who say we need communism to make sure people don’t go hungry, by saying sure that would make a lot of food, but a lot pf people would go to prison. Once you have accepted the opposition’s assumptions about what communism does, and about what human nature actually wants, you have lost the argument.

Once you have accepted that the impulses of the majority are useful in criminal justice, and that the discretion of the executive branch is the way to serve those impulses, you have lost the argument. Once you have tried to get judges to do something by making it politically popular, you have stepped on the wrong escalator. The only way to sell capitalism or due process, is because it is the only and most efficient way for people to obtain things that are beneficial.