Reality vs Perception

Over at the Liberty Law Blog, Prof. John McGinnis has an excellent piece on legislating.  He writes (emphasis added):

A Nebraska Senator has introduced a bill to require photo identification for voting, not because voting fraud is an actual problem, but because Nebraskans perceive there to be such fraud, whether it exists or not.

If voting is a fundamental right protected by the Constitution, legislation should burden its exercise only to address actual harms, not some people’s impressions of reality.  Thus, the legality of these laws should turn on the question of actual voter fraud and the utility of voter identification in curbing it.

I agree with the good professor, and think this rule should apply not to just legal matters, but economic matters as well.  An argument I’ve heard more and more in recent months in favor of protectionism from people who are nominally free market is that, with our current trade policy, it creates the perception of unfairness; it creates the perception of China “stealing jobs”, of a “hollowing out of the manufacturing base,” of “economic stagnation.”  It doesn’t matter that the data say otherwise, but the perception is there and that’s why Trump won.  Therefore, they conclude, we need some trade barriers to keep the protectionists at bay.

This argument is very similar to the one McGinnis addresses: there is this perception, so therefore we should pass legislation to combat the perception, even if it infringes on people’s rights.  For the same reasons McGinnis rejects the argument in the link, I do so here: legislation that burdens the free exercise of a right should only address an actual harm, not a perceived harm.  Given that free exchange is a fundamental human right, the infringement of such requires the burden of proof to be on those calling for tariffs; they must demonstrate actual unique and substantial harm, not just the perception of it and demonstrate the usefulness of their proposed actions in addressing the harm.*

In short, the perception of harm is not enough to justify the infringement of the right to trade.

*Notice I said “actual unique and substantial harm,” instead of just “harm.”  The reason for this, which will be addressed in a forthcoming blog post, is because any action whatsoever can conceivably harm anyone, but that alone is not grounds for outlawing it.

35 thoughts on “Reality vs Perception

  1. Maybe we could also dispense with government taking money from the private sector, spending it (less compliance and collections costs) to create the perception that they have “stimulated the economy” and “created jobs”.

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  2. Should a business wait until financial fraud becomes “actual unique and substantial” before instituting proper internal controls? Should an individual wait until he or she has endured “actual unique and substantial harm” before putting locks on his or her doors and windows, and learning situational awareness?

    No. We all know that these are potential problems that you do not wait until the harm occurs before taking precautions to prevent fraud, murder, etc. before they happen. Does people’s perception that they are already occurring matter? No. But, that is not why they institute those precautions. They do so to prevent the harm from occurring or at least making it less likely that it will.

    That is why minimally intrusive requirements like valid identification is necessary for voting. Recently, everyone was all upset thinking that the Russians hacked the election. They did not. Precautions were already in place as instituted by the Secretary of State’s Office in the various States.

    International trade is a different issue. Advocates for more government always “perceive” this or that harm and demand government protection. Yet, the only harm I see is American consumers freedom to choose being denied to them. The proposed tariffs and protectionist legislation is not minimally intrusive. It is designed to prevent choice.


    • I disagree, Greg, on the grounds I think your metaphor is inapt. It’s one thing to protect one’s self or one’s property (in the case of locking doors or instituting internal controls). Those actions do not infringe upon anyone else’s rights. It’s a whole other thing to institute legislation that does infringe on others’ rights for a perceived, rather than actual, threat. That’s why I focused my post here on legislation, specifically the kind that infringes on a person’s rights.


      • Jon, if we adopted that view, then we would have to get rid of all minimally intrusive requirements on fundamental rights. And, there are a lot of them. Liberty is a fundamental right. Yet, we require that I have a drivers’ license. It is minimally intrusive and does not restrict my freedom to travel as much as it does not restrict my right to vote.


        • Again, I object on the grounds of an inapt metaphor. There are actual dangers involved with driving. They can be serious (thus there is an actual harm). A driver’s license is (presumably) an effective way to mitigate those harms (thus it is useful in addressing those harms). The objection McGinnis cites in regard to voter-ID (and what I cite in regard to protectionism) is that there is no harm, only the perception of it.


          • McGinnis is wrong in saying there is no harm from not requiring a picture identification. Voters registration is already required. It is not much to ask to have a picture attached and it makes sense to combine thie voter’s registration and driver’s license functions. The best time to prevent any type of fraid is before it happens. To protect people’s fundamental rights, we have to make those internal controls minimally instrusive. And driver’s licensing combined with vorer registration (both already existing peograms) are minimally instrusive.


          • “McGinnis is wrong in saying there is no harm from not requiring a picture identification. ”

            That’s not where he’s saying there is no harm. He is saying there’s no harm from voter fraud; it doesn’t exist on any significant scale worthy of burdening rights.


          • But, as we know with financial fraud, we do not wait until the fraud occurs before instituting basic internal control techniques. And, that is true with voting as well, otherwise we would not have voter registration requirements. Adding a picture identification to the voter registration requirement is not a significant burden on rights.


          • Shall we get rid of all existing voter registration requirements merely because there is no existing significant voter fraud? They burden the rights of voters as well. No. They are minimally intrusive and reasonably designed to reduce the risk of voter fraud.


  3. Right now the government is struggling for legitimacy. Trump speaks out ten sides of his mouth, a Guinnness World record, Clinton has Tarmacgate, Bush is seeking WMD somewhere and frankly if you believe the government I have a bridge in Fort Lee to sell to you! In the Marion County case the Supreme Court identified public perception of elections as a legitimate state interest underpinning the general constitutionality of voter ID. Ultimately the very problem is that public mistrust of government cannot be cured by the very government slowly losing our trust and whether there is evidence of actual voter fraud, what is clear is that there is ample evidence of a loss of faith in the electorate itself. The Democrats do have a point about disenfranchisement. The basic argument is that the old and the poor are less likely to have voter ID. Fair enough, I would suggest placing pictures on Medicaid and Medicare cards not the least of which those programs themselves are rife with billions in fraud.


  4. The legality of these laws should turn on the questions of (1) is it a legitimate function of government, (2) the utility of voter identification in preventing fraud, and (3) can it be implemented without unduly infringing on the fundamental right of voting.


  5. Here is some actual data on “actual unique and substantial harm” that results from free trade:

    It is impossible to overstate the urgency of these findings. … Mortality increases of 2–5% per year are rarely observed in developed countries. The magnitude of such increases is as large as those in two public health emergencies in the past: the substantial mortality increases in Russia during the 1990s and increases in mortality in individuals aged 20–40 years at the height of the AIDS epidemic (mid-1980s to mid-1990s) in the USA.”

    Now watch the minds change…


    • “According to the report, there has been a surge in suicides and accidents among young white people, with the latter being largely due to drug overdoses. . . . In addition to suicide and accidents, liver disease was a major driver for the increase in mortality among Indians/Natives.”

      So now you are blaming free trade for suicides and accidents caused by drug overdoses and liver disease?


    • “Now watch the minds change…”

      Well, that’d require you providing evidence to change minds. Your article does no such thing. This is your classic post hoc fallacy. It may be true, but there is no evidence from this article to support your case (in fact, I’d say it weakens it considerably).


      • Well, if you want more references, there are plenty of them. Here’s a good one to start with:

        Click to access mortality_58.pdf

        They find that mortality rates in the Rust Belt increased by 5.6 per 100,000 (and that birth rates declined by 19.2 births per 100,000). That amounts to thousands of people dying per year thanks to free trade.

        You put the burden of proof on me. That’s fine, and now you have your evidence. Will you change your mind? Of course not! Theories are true by virtue of their beauty, and how well they conform to preconceived notions of ethics–not evidence! 🙂


        • “They find that mortality rates in the Rust Belt increased by 5.6 per 100,000 (and that birth rates declined by 19.2 births per 100,000). That amounts to thousands of people dying per year thanks to free trade.”

          You still failed to make your case. How does free trade cause people to die from “drug overdoses and liver disease”? Also, how does free trade cause people to decide not to have children (“birth rates declined”)? SMH.


        • A possible counter argument would be that the statistical value of a life is only something like $3 million. So if there are 20,000 people per year dying or not being born due to free trade, then you could say that as long as the “consumer surplus” is greater than $60 billion, then there’s no problem that needs solving….


  6. Warren, science graduates from the University of Chicago always show proof of causation before making claims like free trade causes drug overdoses, liver disease, and declining birth rates.


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