Individual Thoughts by Trusted Knower

Does Law + Public Policy = Liberty?

Individual Thoughts by Trusted Knower 002 * “Does Law + Public Policy = Liberty?”

In the second episode of Individual Thoughts by Trusted Knower, we interview Caleb Taylor of the Virginia Institute for Public Policy. He studies state policies and writes model legislation from a non-partisan, pro-free-enterprise point of view.

The Virginia Institute is essentially a think tank… we come at things from a particular economic point of view, and that tends to be the free-enterprise point of view. Sometimes people will point out, “that’s the conservative point of view” and my immediate response is, “no, it is not”. We come at policy problems from that point of view, in hopes of creating workable solutions for public policy.

…The last couple of years we’ve been working in health care, working to open up the law a little bit for new innovations like telehealth and direct primary care, to get into the market and shake some things up…. It is nowhere close to a free-market

….We are looking at energy reform…. We’ve done a little bit in criminal justice reform — civil asset forfeiture and the like. We try to make decision on what are issues that are really pressing for Virginians and how can we address those issues in a way that does not burden people with new taxes, does not burden people with new regulations, but creates an opportunity for these issues to be fixed inside the society. If we can get as local as possible, that’s the best.

The Presumption of the Statist Quo

According to Taylor, the Virginia state code seems predisposed against liberty in the way it is written, for example, in the area of health care services, there is a presumption that anything that is not explicitly allowed is against public policy.

I actually write legislation. I write it in very specific language. I have written legislation for a number of different states…. I generally write it in state specific language. Virginia has a very clear rhetorical direction that it takes inside of its legislative code which is a fundamentally different rhetorical direction that it takes in its administrative code. ….Sometimes the rhetoric that’s used is not healthy…. For instance, in health care law, specifically, it is written from a point of view… a tacit point of view that exists in the entirety of the health care code… that everything is illegal until we say it is legal.

This predisposition has economic consequences, according to Taylor. The Certificate of Public Need policy in Virginia, which requires approval of a board in order to upgrade services, restricts the ability to be responsive to new market demands, and to be able to prepare and to react to crises such as the COVID-19 pandemic.

Perversely, the board that controls the expansion of health care services is controlled by existing companies, which have an interest in not having to compete with new hospitals or expanded services of their competitors. Taylor says that to make the case against competition, companies will even argue against the basic economics of supply and demand — that increased supply will increase the costs.

Khan Academy: The Law of Supply

Law vs. Public Policy

There is a distinction to be made, that is commonly not thought about, between the conception of law and the conception of public policy, or legislation. Law is something that is somewhat fixed, arising over time according to unchanging principles, whereas public policy is the agenda of the current government. Is there a danger from conflating them?

The conservatives look at it as “Here is the law and here is public policy and these things are separate. They are very distinct. They do not overlap.”

On the left, the law and public policy are the same…. they are mutually inclusive. You see that in the health care code language. You see this idea that the law is the public policy and because the law is the public policy, nothing should be allowed but the current “correct” public policy.

For an elaboration of this concept, check out Prof. Don Boudreaux’s lecture on the distinction between law and legislation.

The Loud American

Another aspect of governance that Taylor believes is important is to hear the voice of opposition, within governing administration, so that for example, a conservative administration would have someone to stand up for working people and the environment, and a progressive administration would have a person who argues for free enterprise. Embodied in the concept of “The Loud American” is a person who is specifically hired to push back against bad ideas and to broadly challenge the status quo.

Our first episode was “Standing Up to Wrongheaded Authority” (Part 1, Part 2), in which learn how Socratic method can be used to challenge other people’s ideas and our own. Having “intellectual ballast” means not only hearing opposing views, but reading into the deep literature of your intellectual opponents. Taylor practices this by maintaining friendships with people he strongly disagrees with. His learning consists not only in the reading classical liberal canon, including Adam Smith’s Theory of Moral Sentiments, but also Communist treatises such as Karl Marx’s Das Kapital.