Since the New Deal, the Supreme Court has given government almost unlimited power to regulate the economy. Wickard v. Filburn (1942) infamously ruled that a farmer growing wheat to feed his own animals on his own farm was nevertheless engaged in “interstate commerce.” Given this stance, it’s hard to see how the courts could justify any restrictions on government regulation of the rapidly growing Artificial Intelligence industry.
Hard, that is, as long as you call it “the Artificial Intelligence industry.” But all of the top AIs also go by another acronym: LLMs, which of course stands for Large Language Models.* Which makes sense, because the primary output of this industry is just a bunch of words.
So what? While the Supreme Court has given government a virtual carte blanche to regulate the economy for over 80 years, constitutional protection of freedom of expression has probably never been stronger. In 1969, the Supreme Court moved from the classic “clear and present danger” test for permissible regulation of free speech to the even higher “imminent lawless action” test. By eviscerating obscenity law, Miller v. California (1973) even effectively extended full constitutional protection to almost all pornography, allowing the industry to thrive despite its extreme unpopularity. Though more Americans morally condemn pornography than abortion, the Supreme Court stands with porn.
Upshot: Once you acknowledge the truism that AI output is speech, almost all regulation of AI is ipso facto illegal. Government has no more legal right to regulate AI than it has to regulate the New York Times. Even if you’re a convinced doomer, you have to admit that the danger of existing LLMs is not “clear and present,” much less “imminent.” If the Supreme Court has an iota of consistency, the AI industry will be able — barring an anti-AI amendment to the Constitution — to fend off virtually all regulation with ease.
Does the Supreme Court have an iota of consistency? Based on past performance, the jury is still out. When (not if) AI comes before the Supreme Court, I bet SCOTUS will side with the government against the industry. But hopefully I’m wrong.
Put yourself in the shoes of a top-ranking Iranian politician. A large share of your former superiors have been killed in the past few weeks. Why on Earth would you refuse to save your own skin by simply giving the U.S. and Israel what they want?
Conceivably, you’re a sincere religious fanatic, courting martyrdom so you can meet your 72 virgins. But opportunities for martyrdom are ubiquitous, and only a microscopic share of alleged true believers take advantage of these opportunities. Since actions speak louder than words, we can safely conclude that few top-ranking Iranian politicians genuinely want to die for their beliefs.
The better story is that top-ranking Iranian politicians are playing what economists call a “nested game.” While many, perhaps most, of these figures want to make peace to avoid death, they’re afraid that if they voice this opinion, their own hard-liners will kill them for cowardice. Outsiders see a united fanatical front, but only because dissenting insiders hide their true feelings.
You can see this dynamic clearly at the end of World War II in both Germany and Japan. Plenty of long-time “fanatics” tried to survive the war by hook or by crook. But as war raged, they kept their mouths shut year after year because their domestic “friends” were a much more immediate threat than their foreign enemies.
The logic of nested games even holds for national leaders. When Emperor Hirohito decided to surrender to the Allies, he provoked an attempted military coup. When asked, “Why didn’t Czar Nicholas back down in 1914?” historians’ standard answer is, “Because if he had, Pan-Slavist hawks would have overthrown him.” Even if Nicholas knew that he would lose his throne in 1917, his choices in 1914 were not “Rule in peace for life” or “Fight Germany and lose your throne in 1917.” His choices were “Try to keep the peace and lose your throne right now” or “Fight Germany and lose your throne in 1917.”
Most analysts who take the dilemmas of nested games seriously become fatalistic. Even if a large faction of the leadership of theocratic Iran, Imperial Japan, Nazi Germany, or Czarist Russia wants to make peace, they probably won’t. Indeed, even if the Supreme Leader wants to make peace, they probably won’t.
My reaction, in contrast, is agentic. If by some miracle, I were the Supreme Leader of any of these countries, I have devised a strategy to make peace with high probability of success — and low risk to myself. It’s not pretty, and once you grasp my strategy, you may think ill of me for publicizing this forbidden knowledge.
Nevertheless, this is a sketch of my master plan for making peace despite internal opposition:
Step 1. Hand-pick a small group of henchmen personally loyal to you. This is nothing out of the ordinary; almost every leader does this, especially in non-democracies.
Step 2. Privately prepare a list of all of the top enemies of peace under your nominal command. Profile the hard-liners, the hawks, the ultra-nationalists, the would-be martyrs, the true believers in revolution.
Step 3. Around midnight, summon your henchmen. Order them to wake up everyone on your list, keep them incommunicado, and bring them to a secret location within the next few hours. Give each top henchman sealed orders, with strict instructions not to open until an hour before dawn.
Step 4. If the leaders ask about the purpose of this meeting, instruct your henchmen to say that it’s “top secret” and “of utmost importance for the fate of the fatherland/motherland.” That’s it.
Step 5. As you may have guessed, the sealed orders say, “The people you have gathered are all guilty of high treason. Kill them NOW without delay. This is an ORDER from your Supreme Leader.”
Obviously this path to peace has a few rough edges. If you’re only number two in the system, it won’t reliably work unless you kill the Supreme Leader first. If you’re number eight, you probably have to simultaneously kill numbers one through seven. (Which, by the way, is approximately what von Stauffenberg tried to do in 1944, though his plans for top Nazis once captured were foolishly ambiguous).
To my knowledge, the closest historical analogue to my strategy happened in Romania on November 30, 1938. The Iron Guard was Romania’s murderous answer to the Nazi Party, and the monarchist government had most of its top leaders in prison, including party leader Corneliu Codreanu. Keeping them in prison was dangerous, and so was letting them go. Faced with this dilemma, the Romanian government saw a third option: It ordered the summary execution of their Iron Guard prisoners — and the order was strictly followed.
Codreanu, the man who didn’t live long enough to become Romania’s Hitler.
Yes, Romania still joined the Axis, and Romania was still a center of horrific atrocities. But rule by the Iron Guard would have been even worse — and the November 30 executions happily took that option off the table.
If my strategy is so great, why is it so rare? First and foremost, because peacemakers are relatively nice, and my strategy is ruthless. Even though Emperor Hirohito had the blood of millions on his hands, he was not personally cruel. Instead, he was weak, a people-pleaser — and the people who surrounded him were hawks (and people pretending to be hawks because they were afraid of the sincere hawks). If I were in Hirohito’s shoes, however, I say there’s an 80% chance that my strategy would have stopped Japan’s war of aggression before it started in 1931. Simultaneously summarily slaughtering your country’s hawks overnight doesn’t just remove them from the equation; it sends a message to the uncommitted that opposing peace is hazardous to your health.
Is my confidence in the efficacy of my strategy misplaced? Key point: In my hypothetical, I’m assuming a high level of crucial country-specific knowledge. When I muse, “If I were in Hirohito’s shoes…” I’m obviously assuming I can speak fluent Japanese. And I’m also assuming that I possess detailed knowledge of contemporary Japan’s institutions and personnel. These are unrealistic assumptions for Bryan Caplan, but totally reasonable assumptions for anyone in a position to try my strategy.
What about morality? Doesn’t killing hawks make you as bad as they are? Hardly. By assumption, they’re conspiring to wage unjustified war, so they deserve draconian punishment. Doesn’t killing the guilty without trial make you a murderer? No. If you genuinely know someone is guilty, trials are a matter of convenience, not morality. Aren’t trials the best way to find out if someone is genuinely guilty? Only sometimes. And if the fate of millions hangs in the balance, you shouldn’t fret about a few false positives. That’s mild deontology in action.
Couldn’t evil people use my strategy to do greater evil? Definitely, because evil people routinely use similar strategies to do greater evil. Fanatical dictatorships often target moderates and peace-makers. Wouldn’t they be even more inclined to do so if my strategy caught on? Maybe, but relatively virtuous leaders would also be more inclined to emulate my strategy if it caught on. The net indirect effect of more attempts and more prevention could easily be pacific.
Suppose I’m right. You could still say “Who cares? No one’s going to listen.” To which I have three replies.
First, even if no one listens, knowledge is valuable for its own sake. If my eccentric thesis about the ugly path to peace is often true, let it be known.
Second, my strategy doesn’t have to be widely accepted to add immense expected value. Indeed, if only one government in the next hundred years successfully uses my strategy to make a lasting peace, this will be my most valuable idea.
Last, if I’m right, there is a shocking moral corollary: Contrary to generations of apologists for “the poor leaders who had no choice but to drown the world in blood,” almost every leader does have a viable last-ditch path to peace: quickly and systematically round up your side’s warmongers and kill them without warning. The fact that so few leaders would even consider this option reinforces my long-standing claim that these “poor leaders” are in fact deeply evil. So evil that they would rather show mercy to a few hundred likely war criminals than protect millions of innocents.
Riffing off its bestselling classic On Bullshit, Princeton University Press has launched its “Truth About Bullshit” podcast. I recently appeared on the show to discuss my The Case Against Education. A high-quality and thoughtful conversation, I hope you enjoy it!
My dear friend Brian Doherty, long time journalist for Reason, tragically died in a hiking accident on Friday. I initially assumed it was a stroke, because the last time I saw him in December 2024, one of his legs had already been partially paralyzed by a blood clot. Even though his impairment probably contributed to his fatal accident, it’s somehow sadder to realize that he could have lived, albeit with reduced mobility, for decades longer.
Brian the way I remember him.
I met Brian when we were both interns at the Cato Institute in 1991. We spent the whole summer arguing, primarily about moral realism. Despite his strong libertarian views, Brian at that time was a vocal if reluctant nihilist. He even told me that he wanted to attend an anti-Gulf war rally with a placard reading, “Money for subjective preferences, not war.” (To which I replied, “Preference for war is a subjective preference”). The affable Sheldon Richman ran Cato’s intern program in those days, and he spent many a lunch talking ideas with the two Brian/Bryans.
After I returned to UC Berkeley in the fall, Brian and I kept in touch via snail-mail; I even looped him into a three-way conversation with young Michael Huemer on the intuitionist response to nihilism. If I recall correctly, Brian was pondering a Ph.D. in history during our shared internship. By the time I started at Princeton in 1993, though, Brian decided to start doing history instead of getting a graduate degree of his own.
A history for the ages.
After turning his internship at Cato into a full-time position, Brian Doherty left for Reason in 1994. Deeply agentic, Doherty balanced a full-time journalism career with a series of labor-intensive book projects. I still remember getting polished drafts of the early chapters of his Radicals for Capitalism, again via snail-mail in 1994. By the time the book was published, it had evolved into by far the best history of the modern American libertarian movement. It still is. His other works included a history of the Burning Man festival (Brian was a devoted musician and fanboy) and another on Ron Paul’s presidential candidacy.
Brian’s switch to Reason fortuitously led him to relocate to Los Angeles, just 30 minutes from my childhood home. As a result, I saw Brian almost every time I visited L.A., often roping in the nearby and awesomely erudite David Gordon as well. Our preferred restaurant was just down the street from legendary comic book shop Meltdown Comics.
That’s the Meltdown Comics Martian mascot.
At the time, I was starting to explore the world of graphic novels, and Brian was my top mentor. Critically for me, we met up at San Diego’s 2007 Comic-Con, where he was moderating a panel on autobiographical comics. Panelists included Alison Bechdel (of the famous and unintentionally hilarious Bechdel test) and Brian’s longtime friend, Joe Matt. Thanks to Brian, I was able to join him and Joe for lunch. It was the first time I’d ever consorted with a working graphic novelist. While I can’t be sure, I think it was this Doherty-led meal that put me on course to become, by the grace of the noble Zach Weinersmith, a best-selling graphic novelist myself.
When Brian Doherty, feeling priced out of L.A., moved to Palm Springs circa 2015, I felt like an era was ending. But instead of moping, I simply started visiting Palm Springs more. Brian was always happy to make time for me, talking ideas with my twins and (I believe) my niece as well. I’m pretty sure we went hiking in the Indian Canyons once, but for reasons I couldn’t fathom, Brian stubbornly refused to try ascending Mount San Jacinto via its marvelous cable car.
Joe Matt draws Brian Doherty. Via Jeet Heer.
Brian Doherty was a full-fledged polymath. Before I met him, he was already an accomplished bass player on the punk rock scene. While he made his living as a journalist and lacked a Ph.D. in history, his publication record fully warranted a prestigious history professorship. Brian knew his economics (mainstream as well as Austrian), his philosophy, and his pop culture. He knew comics far more deeply than I, introducing me to Seth’s sublime Wimbledon Green. Despite his overall great taste, he had a strange soft spot for Superman’s Pal, Jimmy Olsen. Though he ultimately seemed quite bourgeois, Brian had an array of eccentric friends. He was a better practitioner of libertarian friendliness than I’ve ever been. Besides being a punker and a Burning Man regular, he was apparently even friendly with The Nation’s cantankerous Jeet Heer.
Brian and I were probably the world’s two biggest fans of this obscure yet utterly immersive work.
In hindsight, my saddest memory of Brian goes back to the early 2000s, when he excitedly told me he was going to be a father. But the pregnancy ended in miscarriage, so to the best of my knowledge, Brian died childless. Alas, he would have been a pitch-perfect patriarch as well as a fantastic friend.
On some level, death is not real for me. For as long as I live, the same thought will come to mind every time I revisit L.A. or Palm Springs: Great, I hope Brian is around! My only consolation is the adage, “Don’t be sad it’s over. Be happy it happened.” Brian, I am so happy I knew you!
[Update: I’m on vacation next Friday, so the next installment of this book club will be in two weeks.]
Summary In this chapter on “Personal Liberty,” Rothbard puts run-of-the-mill “civil libertarians” to shame. He’s more radical than most of the left on traditional civil liberties like freedom of speech, drugs, and wiretapping. He stands up for the rights to libel and slander; he defends full-blown drug legalization, not a switch from “punishment” to “treatment”; and he argues that wiretapping the innocent is criminal, whether or not you’ve got a warrant.
At the same time, Rothbard insists that many “right-wing” causes are neglected civil liberties issues. How can there be freedom of speech when the government licenses the airwaves? If people have a right to advocate the most heinous positions, why can’t tobacco companies advertise on television? And if it’s wrong to persecute a whole category of people because it has an above-average fraction of bad apples (“profiling” in current parlance), what’s the deal with gun control? Yes, criminals often use guns; but how does that justify the persecution of the vast majority of gun owners who aren’t criminals?
Critical Comments 1. I agree with Rothbard’s critique of libel and slander law. The Western world condemns Singapore for using defamation law to silence dissent; but once you buy the principle of banning false, damaging statements, how is Singapore in the wrong?
Furthermore, if deception should be illegal, why not self-deception? In other words, if it is legal for me to irrationally decide that you’re a cheat, why isn’t it legal for me to share my irrational accusations with others? In both cases, you’re losing customers because people have false beliefs about your character.
Here’s my favorite reductio on libel and slander. The last time I checked, the typical Randian accepted the law of defamation. He also accepted aesthetic objectivism: “Atlas Shrugged is a great book,” is literally true. Doesn’t it follow, then, that it should be illegal for a reviewer to deny that AS is a great book? He’s making a false, damaging statement, right?
Let me add that in the Google age, Rothbard’s case against libel and slander is stronger than ever. False claims abound on the Internet. If believed, many would be very damaging. But most Internet users have the common sense to ignore unsubstantiated accusations, so in practice they do little harm.
2. If you really think about it, here’s the most critical paragraph in the entire book:
[I]f A is a boss in a criminal enterprise, and, as part of the crime, orders his henchmen: “You and him go and rob such and such a bank,” then of course A, according to the law of accessories, becomes a participant or even leader in the criminal enterprise itself.
Why is it so important? Recall that Rothbard’s whole theory is that the State is a criminal gang. So if giving orders to commit serious crimes were not itself a serious crime, he’d have to exonerate the vast majority of political leaders who never personally commit invasive acts! In other words, the law of accessories is not a footnote to libertarian theory; it is the entire basis on which government leaders are considered mass murderers – as opposed to bystanders exercising their freedom of speech.
Once you accept the law of accessories though (and it’s absurd not to), Rothbard’s objections to charges of “incitement” and “conspiracy” make little sense. Here’s what he says:
In our view, “incitement” can only be considered a crime if we deny every man’s freedom of will and of choice, and assume that if A tells B and C: “You and him go ahead and riot!” that somehow B and C are then helplessly determined to proceed and commit the wrongful act. But the libertarian, who believes in freedom of the will, must insist that while it might be immoral or unfortunate for A to advocate a riot, that this is strictly in the realm of advocacy and should not be subject to legal penalty.
If we bought this argument, then Hitler would not be the architect of the Holocaust, but merely its cheerleader. After all, what did he do other than tell some people, “You and him go ahead and commit mass murder”? What’s the difference between “telling” and “ordering” anyway? Fortunately, it’s easy to make this contradiction go away: Rothbard should just admit that whoever “incites a riot” is an accessory to the riot, just as the Godfather who orders a murder is an accessory to murder.
3. My favorite passage from this chapter:
This is not to argue, of course, for prohibition of alcohol; once again, to outlaw something which might lead to crime is an illegitimate and invasive assault on the rights of person and property, an assault which, again, would far more justify the immediate incarceration of all teenage males. Only the overt commission of a crime should be illegal, and the way to combat crimes committed under the influence of alcohol is to be more diligent about the crimes themselves, not to outlaw the alcohol.
This sounds like a left-wing argument; but as Rothbard notes, it also undermines left-wing crusades against guns, porn, etc. If you have trouble grasping the appeal of libertarianism, this paragraph should be a big help. Libertarians are unusually likely to take arguments literally, and see what they actually imply, instead of just rationalizing the prejudices of their ideological sub-culture.
