I will have no comment on the new policy against allowing comments.
The press is chortling over Tom DeLay's farewell to the House of Representatives. DeLay congratulated himself for standing up for freedom and dignity; he regretted only not fighting harder. But what caught my eye was this comment, courtesy of the Congressional Quarterly:
Liberalism, after all, whatever you may think of its merits, is a political philosophy and a proud one with a great tradition in this country, with a voracious appetite for growth.
In any place or any time on any issue, what does liberalism ever seek, Mr. Speaker? More — more government, more taxation, more control over people's lives and decisions and wallets.
You'd never dream that liberals fought to stop the state from meddling with religion. You'd never dream that they campaigned against such intrusions as the hearth tax, which required the tax collector to burst into your house to count up the fireplaces. You'd never dream that liberals championed the right of consenting adults to do what they want in their bedrooms.
DeLay might be in the clutches of a wildly polemical misreading of LBJ's Great Society. Or he might be throwing a smokescreen over the social agenda of some of today's conservatives, aghast at the thought that the state has nothing to do with religion or consensual sex. Let's just hope he doesn't decide to teach history or political theory for his next job.
Late-breaking news flash, dateline 5 January 1642 (no, that's not a typo), the Journal of the House of Lords:
A Message was brought from the House of Commons, by Mr. Nathaniel Fynes:
Message from the H. C. about the King's coming to their House, to demand some Members.
1. To acquaint their Lordships, that Yesterday the King came to the Door of the House of Commons with armed Men, and came into their House in Person when the House sat, and demanded some of their Members, which they conceive is a high and great Breach of the Privileges of Parliament; therefore they thought it fit to give their Lordships Notice of it, as a Breach of Privilege, for it may concern this House likewise.
The hapless Charles I had hoped to arrest some of his leading parliamentary opponents for treason; civil war would break out later that year. This quaint episode was tucked away in some cobwebbed corner of my brain. Who would have thought today's Congress could make it surface?
But yes, Dennis Hastert and Nancy Pelosi have come out swinging — "The Justice Department must immediately return the papers it unconstitutionally seized" — after the FBI searched Rep. William Jefferson's office. (Jefferson apparently spurned a subpoena last year.)
What's the alleged constitutional obstacle? Why, Article I, sec. 6, defining privileges for senators and representatives:
They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
I wish our inestimable Congressmen would stop hyperventilating. Jefferson wasn't arrested. He hasn't been hauled into court, or even "any other Place," to answer for anything he said on the floor of the House. More important, I can't imagine a halfway-decent argument that we have to make his office an FBI-free zone in order to safeguard the privileges he actually enjoys.
You bet, the Bush administration has been high-handed about executive powers. And I'd be happy to entertain arguments that it was a dumb policy call to send the FBI in. But Bush really isn't Charles I, and Bush and Congress will not in fact be squaring off in civil war later this year.
I used to think, okay, this time American politics has hit rock bottom. I've stopped thinking it. Now I'm with Puck:
Lord, what fools these mortals be!
On Prawfsblog, Rick Garnett takes
the view that: “I certainly share Marty [Lederman]’s (and
Madison's) concern about religious faith being reduced to a convenient means for achieving the government's ‘secular’ ends. That said, I'm not sure why it should be unconstitutional -- or, in any event, why it would be ‘profoundly disturbing’ -- for the government, as a general matter, to take, and act on (in non-coercive ways, of course, and consistent with the freedom of conscience), the view that ‘religious transformation [and] faith’ are good (when freely embraced).”
It is not clear to me that an announcement by government that religious faith is good without any accompanying action is unconstitutional though I think we would have a better Constitution if it were.
I think it
might well be constitutional because it is constitutional for the government to
put “In God We Trust on the Coins,” to say “God Save the United States and This
Honorable Court,” and to issue a Pledge of Allegiance “Under God.” I think
these practices affirm religion over non-religion and monotheism over
non-monotheism. And I think that claims that the motto, the prayer, and the
Pledge are non-religious lack integrity. I argue this in The Pluralistic Foundations
of the Religion Clauses, 90 Cornell L.Rev. 95 (2004). Michael Perry also argues
this in a forthcoming article in
St.Thomas and I believe he has also expressed the view in print previously as well.
I think a government statement to the effect that religion is good might cross a line in it that might be encouraging religion, and that is unconstitutional. I certainly do not think that government is entitled under the Establishment Clause to proselytize (thus intelligent design can not be taught in the schools) and it is not entitled to say what God has to say about any subject (it should be inappropriate for government to post versions of the Ten Commandments).
its constitutionality, I would find it disturbing for government to announce that religious faith is good, let alone
to act on it. First, I think government neutrality on this subject is more
respectful of citizens who disagree. I do not believe that a person’s religion
or lack of it should have any bearing on their relationship to the state.
Statements like these including “In God We Trust” mark out two classes of
citizens: those who do not trust in God are not part of the “We.” They are
marked as outsiders. Just as important, I do not trust government to help
religion. I believe that close ties with government have hurt the Church in
Close ties with government risk alliances with corruption and dependency. I do not maintain that phrases like In God We Trust have hurt religion much (though it has robbed the phrase of spirituality, and has married religion with money at the same time it asserts a theological proposition), but it is hard for me to imagine that they help. It may be that demagogic politicians might try to curry favor by saying that In God We Trust needs to be put on the currency or to forge alliances with merchants in highlighting Christmas – a special form of blasphemy. But I believe religion can get along quite well (I am sure Rick does too) without government announcements that religious faith is good.
There is a special irony here. Religious conservatives ordinarily are suspicious of government in a broad swath of areas, but they seem comfortable with government promoting religion (I have no basis to assume that Rick is part of this irony). I am genuinely curious as to why.
I'm on all these right-wing email lists. No, I didn't sign up. Someone else signed me up, shortly after I started writing for this blog. Hey, if you're reading this and you're the one who did it: thanks! it's been tons of fun.
Some of my more overheated email comes from the tireless Bobby Eberle, who runs www.gopusa.com. Today Mr. Eberle graced my overstuffed inbox with two, count 'em, two messages. I clicked on the top link in the first and got sent to a "news story" reporting on the sentiments of John Whitehead, lawyer and head of the Rutherford Institute. I confess I was startled by this understated claim:
The central issue in the debate, the pro-family legal advocate contends, is the question of whether Christians are going to be able to say Jesus' name in public in America. "And if you want to be able to do that," he says, "you're going to have to fight the cases."
Whitehead is responding to this opinion, just handed down by the eighth circuit. Steve Warnock had won an injunction against a public school district that "prohibits them from orchestrating or supervising prayers at school graduation or baccalaureate ceremonies." At a baccalaureate ceremony at the high school, Warnock witnessed "an invocation and a benediction by local ministers." The standard on appeal is whether the trial court abused its discretion, and the circuit court ruled that it hadn't: "The defendants contend that the baccalaureate service was a student-organized event, but there was ample evidence on the record to demonstrate that school employees were involved with almost every aspect of the service's preparation."
It's a long way from this to "the question of whether Christians are going to be able to say Jesus' name in public in America." Nothing in the flurry of legal proceedings generated by Warnock even tiptoes toward preventing private parties from invoking Jesus, or talking about religion, as much as they like. The establishment clause worry is about a public school, an arm of the state, promoting religion. But Whitehead presses enthusiastically, shamelessly, on:
Public events and speeches should not have to be censored or excluded "just because someone mentions Jesus' name," Whitehead insists. However, he points out, many special interest groups and liberal organizations like the American Civil Liberties Union apparently disagree and are willing to fight to make sure any Christian references to or expressions of Christian faith are silenced.
Oh please. I'm not a big fan of the ACLU: some of their views on first amendment issues seem to me cartoonish. But they sure do understand the difference between state speech and private speech, the difference Whitehead glides right over. A few years ago, the ACLU brought a lawsuit to force a Tennessee County to remove displays of the ten commandments from public buildings. Here's what the state Executive Director of the ACLU had to say:
The ACLU brought the lawsuit at the request of local clergy and concerned residents, Weinberg explained, to ensure that individuals have the right to decide for themselves whether to practice a particular religious faith or to post the Ten Commandments in their homes or in their businesses.
"Were the government to prohibit the posting of the Ten Commandments in private homes or businesses, the ACLU would fight to protect people's right to promote their religious beliefs and practice their religious faiths. That is what we are here for," she said.
I ruefully suppose that Eberle didn't count on my checking up on Whitehead's claim. "The ACLU is fighting to eliminate all mention of Jesus in public!" Well, no, they're not.
My day's second email from Eberle skips right past gross factual misrepresentation into a smear with no facts at all. This one is a fundraiser for Rick Santorum, whose campaign for re-election as senator from Pennsylvania is in notorious trouble. The short email has eight, count 'em, eight links to click on to donate money to Santorum. (I wondered why Eudora didn't unceremoniously deposit it in the junk box, you know, the one that automatically gets those Nigerian letter scam emails.) The senator says just a bit to excite the poor reader into opening his wallet, including this gem:
The federal courts have declared war on our liberty and our traditional American heritage and we must restore true Constitutional principles to our judicial system.
Yikes! A declaration of war from the courts! Somehow google's capacious news files seem not to have the story. Probably a conspiracy. Alas Santorum doesn't supply any evidence. He doesn't even say quite what he means. Why bother?
Eberle's inflammatory emails are plain absurd. To say the screamingly obviously, courts aren't infallible. But they're not in cahoots with the ACLU to make sure no one can mention Jesus in public. And they aren't traitors.
In 2003, the ACLU of (shudder) Massachusetts went to court — to protect the right of Bible Club members at a public high school to hand out candy canes with extensive religious messages (including, for instance, "Jesus is the pure Lamb of God, who came to be a sacrifice for the sins of the world"). And what did the dastardly federal district court do? Why, they found for the students. This was private speech, not state speech. Easy case. But you'd never dream of it if you get your news from the likes of Bobby Eberle.
Mr. Eberle and his friends seem to hold the American public in contempt. They seem to think the public will believe any alarmist fairy tale they choose to peddle. Shame on them.
Today's front-page banner headline from the Detroit News screams, PROFESSORS PAID NOT TO TEACH. I confess I was briefly puzzled: wow, I thought, some people teach so badly that they get paid to stay out of the classroom? Okay, so I hadn't yet had enough caffeine. I quickly realized that the actual story is about sabbaticals. The state's public universities have different sabbatical policies. But a routine policy runs this way: for every six years of teaching, you may apply for either a year off at half pay or a semester off at full pay.
The News reports that about $23 million a year goes to funding these sabbaticals, and they remind the reader that in-state tuition has been steadily climbing. Yes, they acknowledge, public universities have lots of revenue sources besides tuition and allocations from the state. But still....
There's no point huffing and puffing about philistines in response to such stories. If public universities can't tell a persuasive story about what they're doing, they should properly expect to answer to their (partial) paymasters.
Sabbaticals aren't vacations. Or at least if you use them as simple vacations, you're cheating. The routine reporting requirements — on returning from leave, you're supposed to file a brief report on what work you've done — are some check on cheating. The News also reports that some people never get around to filing those reports: that's bad. And I suppose people willing to cheat about what they've done on leave are willing to lie on reports. But in fact it's also routinely true that if you just check out of doing scholarly research, as do some professors everywhere, you will find it harder and harder to get sabbaticals. And I literally don't know anyone who cheats on this one. My colleagues are mostly eager to get more research done. Even those with tenure, who could I suppose just kick up their feet and relax. So the real headline is: PROFESSORS PAID TO DO RESEARCH. But it's hard to plaster that across the front page, isn't it?
Don't we profs have time to do research during the regular teaching year? Yes, though my own experience is that I'm so busy then that it's hard to scrape out time to do any serious work of my own. And summers? You bet, I do lots of research over the summer. But I really do rely on sabbatical leaves to get sustained reading and writing done.
I don't doubt that a lot of scholarly research in a lot of fields, emphatically including my own field of political theory, looks arcane or worse. And anyway professors are faintly ridiculous. Okay, maybe not so faintly. So the state's taxpayers might well wonder whether they should, indirectly or not, be funding research. One answer (not my favorite) is: look, colleges and universities just about everywhere do this; if Michigan's public schools stop doing it, they will lose talented profs to other places. Another is: engaged scholars make better teachers. Yet another is: scholarship is a good thing, and not only when you can readily trace direct social payoffs, say from basic science to engineering to consumer technology available at the local big-box store. Nor should you think, well, can't we fund only the stars? The gradual-accretion-of-knowledge story isn't all right, but it isn't all wrong, either, and without us lesser mortals toiling away, significant breakthroughs would come more slowly, if at all.
On this blog, David V. has been patiently reasserting the case for universities enjoying institutional autonomy, as against the likes of David Horowitz, and I have joined him. But that's wholly compatible with thinking that it's legitimate for the public to wonder what public universities are doing, and legitimate for a newspaper to ferret out some facts. It just means that part of the response is explaining why it's best for universities to be left alone to decide how to fund research. So I didn't cringe when I read the News story, though, as my title suggests, I did wonder at its placement as the day's lead story.
A recent New York Times has a quote from Steven Levitt, the freakonomics professor.
The latter part is certainly correct. And its corollaries are important to keep in mind for work in applied moral philosophy. Over the years I have made predictions in philosophical work about 1) the dangers of research into genetic differences between racial groups, 2) how likely it is that there will be a slippery slope from voluntary euthanasia to non-or-in voluntary euthanasia, 3) the consequences of allowing Universities to enforce campus speech codes.
But it is the first part that is more important and more difficult to think about. Are we, qua moral philosophers, better than the average person in coming to correct answers about first-order moral matters? Well, we have been reading, thinking and writing about these issues for all of our professional lives. We are trained to evaluate and criticize arguments. Our views have been exposed to critical examination and refutation by other philosophers. Some of us serve on IRB’s and consult with physicians about what to do in difficult ethical cases. How could we not be better than the average person at figuring out these things?
About 25% of Americans over the age of 25 have a college degree. About 60% of those read a newspaper at least once a week. Therefore, roughly 15% of the population falls into the intersection of the two classes—about 45 million people.
Is a randomly picked moral philosopher better at figuring out a normative issue than the average person ,as defined above? How would we test this? If we knew the correct answers to the moral issues facing us we could do a survey. But, unless the question is very narrowly framed, we might find as much disagreement with the “correct” answers among philosophers as among average people. And do we simply count correct answers, or the quality of argument given to support the answers. It’s likely that philosophers score higher on that dimension but what would that show? Perhaps that philosophers are better at framing discussion and making distinctions. But does that (tend) to show that they get things right more often? Isn’t there a plausible reason to suppose the philosophers have a tendency to accord more weight to argument than to sympathetic feelings, experience with the subject matter, intuitive insight, etc.? If you wanted someone to aid you in making a difficult ethical decision about medical treatment for your child would you be better off consulting a moral philosopher, or a physician who has dealt with similar cases for 30 years. I know whom I would choose.
Freedom is freedom for truth. Error has no rights. This was the perspective of the Catholic Church for many centuries. It was used to support censorship and persecution in many countries. The same perspective was employed by Protestant countries for the same purposes and by non-religious dictatorships. The freedom was the same; the truth was different.
At least with respect to the actions of government, Vatican
II changed the perspective of the Church. Vatican II respects the dignity of the
individual and his or her freedom to make religious choices. It respects the
right of individuals to choose error, but hopes to lead them toward its
conception of truth. Liberal Catholics believe that individuals should enjoy
the same freedom with respect to Church teaching. They should, for example,
have been free to maintain that religious freedom was demanded by appropriate
conceptions of human dignity when Church teaching was to the contrary. Traditional
Catholics believe that the freedom publicly to oppose
The question of what it should mean to be a Catholic university gets much discussion in Catholic circles. Among other things, I think such universities should be able to assure a dominant presence of Catholic faculty in relevant subject areas. But I do not think it should be the goal of the administration of such universities to eliminate all error from their campuses, nor do I believe any administration is committed to doing so. Nonetheless, I do think the Church has a bad record in this regard. Charles Curran should be teaching at a Catholic university; so should Hans Kung. The point is not that Curran and Kung were right (on most points I think they are); the point is that their perspectives need to be discussed and debated in a Catholic university. That debate will be sharper if the best advocates of their position are in Catholic universities.
I have two points to make about the Vagina Monologues which has most prominently been restricted at Notre Dame. First, if you want to encourage students and members of the general public to see the Vagina Monologues, tell students they can not have the show on campus or otherwise limit the ability to see the show. Students and other citizens who would never have thought to see such a production will rush to see it.
But, generously understood, I assume the real point of opposing the Vagina Monologues was to send the message that a particular university is a Catholic university. I think the better way to do that is education. The better way is to publicly discuss the strengths and weaknesses of the Vagina Monologues from a Catholic perspective. A public image of censorial tendencies is not good for Catholic education, and censorial Catholic education is not good education.
Comments welcome either on the trackback or to firstname.lastname@example.org
"Our constitution is color-blind, and neither knows nor tolerates classes among citizens." So Justice Harlan wrote in his stirring dissent in Plessy v. Ferguson. Harlan added that the Reconstruction amendments "removed the race line from our governmental systems." That stirring language has been the mantra of those opposed to affirmative action.
There's other language in Harlan's dissent that suggests he worried not about any and all race-conscious legislation, but about legislation subordinating blacks. So for instance he referred to state laws "conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race." And so today's patrons of affirmative action too can claim Harlan as their own.
I've been thinking about these matters again because of the Michigan Civil Rights Initiative, on the ballot for this coming November after ridiculous skirmishing about the legality of the language and the petition signatures. (Here is the key court opinion.) The Initiative would ban the University of Michigan from using "race, sex, color, ethnicity, or national origin" (so, amusingly, not sexual orientation) in admissions. Since I'm a reluctant but firm supporter of affirmative action, I'm opposed.
Obviously, color-blindness has its appeal. And it's not (quite) enough to say that in a more just society, it would be the right way to go, because it has its appeal for us, here, now. Still, I think it's a bludgeon of sorts where we need scalpels. So I want to step back a moment and consider the recent race riots in a jail outside Los Angeles. In response, authorities are segregating prisoners by race. Not a moment too soon. So how awful is it for the state to do that? How important a justification do they need?
Last year, the Supreme Court ruled that California's "unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility" properly triggered strict scrutiny. That's the most demanding level of judicial scrutiny in constitutional law, and the old quip has it that it's strict in theory and fatal in fact, though some exceptions suggest the scrutiny isn't always all that strict anyway. The Court didn't decide whether California could meet that scrutiny. Instead they remanded the case to the Ninth Circuit to decide. The Circuit hasn't yet ruled.
I don't doubt that once there are race riots, the state can meet the burden of strict scrutiny. But I wonder whether that's the right burden. You can imagine facts on which California's "unwritten policy" would stamp blacks with a badge of inferiority, but that doesn't seem to be the actual case. So that policy isn't color-blind, but it isn't subordinating either. Is it properly a constitutional problem, a putative violation of the equal protection clause? I don't think so. That doesn't mean you'd have to be crazy to worry about it. But the relevant worries look to me like garden-variety policy worries, of the sort that legislatures and agencies sort out all the time.
Or try this: does it violate the Constitution when the police search for a criminal suspect described as "a young black male, around 5' 10" and 170 pounds"? Or for "a young white male, around 5' 10" and 170 pounds"? Check your intuition: if you're really devoted to color-blindness, you should think those two search descriptions are equally offensive. Does the government have to defend these routine police procedures by demonstrating they are narrowly tailored to realize a compelling state interest, the magic wand required to survive strict scrutiny? Do you think the Constitution requires that the police search for "a young male, around 5' 10" and 170 pounds"? Isn't the government bumbling enough already?
There may be domains in which color-blindness is a constitutional requirement. Or domains in which color-blindness is the right policy, even if it isn't constitutionally required. (The champions of MCRI lost the constitutional battle, after all.) And, for all I've said here, state university admissions policies may be one such domain. But I think the demand for color-blindness across the board, come what may, is a suffocating abstraction. We can do better.
Let's conduct a thought experiment. You have to play a mountain-climbing game. The higher you climb, the better off you are. Rarely, players climb solo. Most of the time, they climb in teams. The members of each team are connected by pulleys and gears in such a way that, if everyone climbs in a cooperative fashion, everyone in the team goes higher than if each just climbed the team rope in an uncoordinated way. The job of the team leaders--those highest on the rope--is to figure out how to get everyone to coordinate their climbing so as to get the maximum total lifting force for the whole team. However, depending on the gear setup, the lifting force of each member's step may accrue unequally to each team member. (In most setups, those at the top get lifted higher by any team member's step than anyone below.) The mountain face is swept by gales, although the winds tend to be milder at higher altitudes than at lower ones. Sometimes the gales blow you or even your whole team off your rope. Other times, the team leaders--those at the top of the team rope--eject you from the team and toss you off the team rope. If you are lucky, your mountain-climbing skills may be attractive enough to another team that they extend you a part of their team rope before you hit the ground. Or you will have family or friends who will toss you a saftey rope to catch you on your way down. But you may not find a team with an open place on their rope that they will offer you, and you may not have family or friends willing to offer a rope, or the rope they are able to offer may be too frail to stop your fall.
You don't know your initial place on your rope, nor which rope it is, nor your mountain-climing skills, nor how well-off, benevolent, and numerous your family and friends are. In this state of ignorance, you get to choose some of the rules of the game you must play. Which rules would you prefer to play by? Here are your choices:
1. Free Fall: if you are blown off or ejected from your rope, and find no family, friends, or other teams willing to toss you a rope, you hurtle to your death below. The dispersion of players is very large: some are at extraordinarily high altitudes, some are dead.
2. Safety-net: there is a safety-net placed somewhere between the ground and the lowest-altitude player that will catch you before you hit the ground. You will be worse off than anyone still on a rope--at a miserably low altitude--but you won't die. And you'll often, but not always, have a chance to find a new rope and start climbing again. There is a small price to pay for the safety-net: everyone will climb at a slightly slower pace than if the net were not there. The disperson of players is almost as large as in Free Fall, except that the worst-off players in Safety-net are better off than the worst-off players in Free Fall.
3. Long Bungee Cord: in addition to a safety-net for those who never get going on a rope, you have a bungee cord anchored to a point on the mountain equal to your highest achieved altitude. The bungee cord prevents you from falling more than 60% of the way down the mountain. That way, even if you never get another rope to climb, your previous climbing efforts will not have turned out for naught. There is a modest price to pay for the long bungee cord: everyone will climb at a modestly slower pace than if they were not supplied with the cord. The dispersion of players in Long Bungee Cord is almost as large as in Safety-net, except that the highest players are not quite as high, the lowest players are not as low, and there is not as much fluctuation of position for any given player. A few players are at gloriously high altitudes; many players are at comfortably high altitudes; some are at miserably low altitudes.
4. Short bungee Cord: this is the same as the long bungee cord, except that the cord prevents you from falling more than 30% of the way down the mountain. There is a correspondingly steeper price everyone must pay for this cord. The dispersion of players in Short Bungee Cord is considerably smaller than in Long Bungee Cord: the highest players are lower down, the lowest players are higher up, and there is little fluctuation of position for any given player. Almost everyone is at a comfortable altitude, few are at glorious altitudes, and it's harder than in Long Bungee Cord to climb much higher than or fall far below one's current altitude.
5. Maximin: in addition to a safety-net for those who never get going on a rope, all the ropes are equipped with a special gear assembly that works as follows: those higher on the rope don't get to ascend unless their ascent helps pull up the lowest-altitude climber to the highest altitude possible for a low-altitude climber. In this game, the lowest-altitude climber is higher up than the lowest-altitude climber in any of the other games. But the higher-altitude climbers are lower down than in any of the games above. No one is at a miserable altitude; nearly all are at a just-comfortable altitude, except for a few who are little higher than this.
6. Strict Equality: all the ropes are equipped with a special gear assembly that distributes the lifting force of everyone's steps exactly equally across all players. No matter how hard or skillfully you climb, or how well you coordinate the team if you are a team leader, you cannot get higher than those who are dead weight on the rope. Since everyone knows this, no one wants to do much climbing, so everyone is stuck at the same miserably low altitude.
7. No Rules Dictatorship: besides the teams, there is a marauding party high above which does no climbing itself, but issues orders to the teams from a central location on how they should coordinate the movements of their members. The party claims to have expertise in coordinating the teams, but its orders are in fact clumsy and unproductive, and wear down the mountain at a shocking rate. The party also keeps the teams in a state of terror. It can toss anyone or any team off the mountain at any time, for any reason or no reason at all. There are no safety nets, no bungee cords, no rules. You can try to keep your place on a rope by pledging to submit yourself completely to their orders. But even that may not keep you safe. Everyone but the marauding parties is at a low altitude.
How to choose among these games? We can use Hayek's rule: to choose the game that "improve[s] as much as possible the chances of anyone selected at random" (Law, Liberty, and Legislation, vol. 2, 129). It's pretty clear that by this standard you'd be crazy to play by the rules of Strict Equality or No Rules Terror. It's also pretty clear that Free Fall carries absurdly high risks for trivially small gains compared to Safety-net. So no one would rationally choose any of these games if they had a chance to play any of the others. I also think that Safety-net is a poor bargain compared to Long Bungee Cord: it's well worth it to pay a modest price for a guarantee that one will always have something significant to show for one's hard climbing--that, once having gotten even modestly high, one will never fall back to an utterly miserable altitude. So, the credible options are among Long Bungee Cord, Short Bungee Cord, and Maximin.
Speaking for myself, I'd probably prefer to play a game somewhere between Long Bungee Cord and Short Bungee Cord. I'd prefer to have a fairly solid guarantee that I'd never be at a miserable altitude; but I'd also like to have a reasonable prospect of being able to climb substantially higher than my initial placement, if it is low, even at some risk that I might fall significantly from a high placement. Still, I can see the case for any of these three games. They are all reasonable games to choose to play.
Let's draw some lessons from this thought experiment for different systems of political economy. No rules dictatorship is communism; Strict Equality is pure egalitarianism. Maximin is Rawls' preferred system in A Theory of Justice. Free Fall represents Robert Nozick's preferred system in Anarchy, State, and Utopia. Safety-net represents F. A. Hayek's preferred system. Here's a representative statement from The Road to Serfdom:
There is no reason why in a society which has reached the general level of wealth which ours has attained the first kind of security [against physical privation] should not be guaranteed to all without endangering general freedom. . . . There can be no doubt that some minimum of food, shelter, and clothing, sufficient to preserve health and the capacity to work, can be assured to everybody. . . . Nor is there any reason why the state should not assist the individuals in providing for those common hazards of life against which, because of their uncertainty, few individuals can make adequate provision. Where, as in the case of sickness and accident, neither the desire to avoid such calamities nor the efforts to overcome their consequences are as a rule weakened by the provision of assistance--where, in short, we deal with genuinely insurable risks--the case for the state's helping to organize a comprehensive system of social insurance is very strong. . . . There is no incompatibility in principle between the state's providing greater security in this way and the preservation of individual freedom [pp. 120-1].
Hayek contrasted this "first kind of security," which he endorsed, with a second kind, designed to protect people from any falloffs in their income, relative to what they were accustomed to receive, or which would change their accustomed position relative to others. This entails a rejection of any Bungee Cord game where the cord is of zero length, as well as any game that forbids some climbers from overtaking or falling below others. Hayek correctly argued that any game of the latter sort would return us to a status-based society, in which everyone has their position fixed. He also correctly argued that any attempt to fix incomes on the basis of some judgment of individual desert would violate the rule of law and be incompatible with a free society.
What's missing from our canonical list of major theorists of political economy in the post-WWII era is anyone who has defended, as a primary theory of justice, any form of Bungee Cord. This is ironic. For the capitalist democracies that currently exist have implemented social insurance schemes most closely analogous to games of this form. Anglo-American forms of capitalism are closer to Long Bungee Cord; continential European forms of capitalism closer to Short Bungee Cord. The structures of social security retirement, disability insurance, survivor's insurance, and unemployment insurance in nearly all of these countries pays more to those who earned more before retirement/ disability/ unemployment (in return for having paid higher taxes into the system), although all pay considerably less than 100% of previous earnings. The fact that all advanced democracies have converged on some form of Bungee Cord suggests that it has strong attractions. One main attraction seems to be that, once people get used to a particular standard of living, they have a very hard time adjusting to drastic falloffs. Another seems to be that once people have worked hard to attain a particular standard of living, they have a strong interest in protecting what they have built up. But these and other possible attractions of Bungee Cord have been undertheorized. Theorists to the left of Hayek, such as Rawls, have tended to jump toward some form of egalitarianism like Maximin, skipping over the inegalitarian elements of Bungee Cord.
Some Hayek fans I have talked to seem to think that any system beyond Safety-net will send us sliding inexorably down the slippery Road to Serfdom to No rules dictatorship. I have even heard one suggest that the difference between capitalism and communism lies somewhere between Long Bungee Cord and Short Bungee Cord--i.e., between the US and, say, France. These thoughts are absurd. The rule of law governs all systems up to and including Maximin. All of these systems implement a form of pure procedural justice (as Hayek himself recognized in the case of Maximin), in which what one receives is determined by the impersonal operations of the market as constrained by the rules of the game. That is why all of the social insurance systems from Saftey-net through Maximin are called entitlement systems: what one is entitled to is not up the discretion or judgment of any bureaucrat, but defined by impersonal rules set out in advance, independent of any moral judgments of desert or responsibility. All of these systems, including even Maximin, permit individuals' relative incomes to be influenced by their own choices and efforts, as well as by the outcomes of market competition. Individuals' incomes in all of these systems may change relative to others'. So none create a status-based society. In all of these systems, ownership of the means of production lies overwhelmingly in private hands.
Fans of Nozick and Hayek may complain that I have rigged my case by failing to consider the availability of private insurance to fill the role that Bungee Cord fills for all on a universal basis. Private insurance, however, cannot fill the role of Bungee Cord, as I have previously argued. In addition to the previously mentioned problems, complete reliance on private insurance suffers from the following defects:
1. To avoid the problem of adverse selection, private insurers either refuse to insure those judged to be most at risk of needing the insurance, or charge draconian premiums that are beyond the reach of lower-income workers. In general, the private deals available to lower-income workers are worse than those available to higher-income workers--exactly the reverse of social insurance.
2. The kinds of insurance that would be needed to substitute for social insurance are very complicated financial instruments that are difficult for the financially unsophisticated to understand. This opens up opportunities for insurers to bury complicated loopholes and rules in their policies, cast in legal language that is nearly unintelligible to most people, who have a hard time reading a 35 page single-spaced small print document while those capitalist gales of creative destruction are whipping around their faces and they are just trying to hang on. The loopholes and complicated rules are designed to enable insurers to deny or delay coverage for losses the insured were led to believe were covered.
3. The loopholes and complicated rules are different for each insurer, generating vast arrays of options. This seems like an advantage, since consumers supposedly can choose a set of options tailor-made for their tastes and circumstances. But in fact these complications make it very difficult for consumers to compare competing policies, especially given their relative ignorance of the risks they are likely to face in the future.
4. Even financially sophisticated consumers lack something insurers have: experience with the product before they need to use it. Consumers are very good at learning about products with which they have lots of experience. But they don't know how well insurance will work until the time comes to make a claim. By then, it's too late to switch to a better product if the purchased one didn't work out.
My point is not to deny the value of private insurance altogether. Often, it offers excellent value, especially for simple risks, as for life insurance. But the more complicated the risks, the worse the deals available through private insurance. We are witnessing problems 2-4 in spades today with respect to the botched private Medicare prescription drug plans.
My point is rather that, given the uncertainties and defects of private insurance, people have a strong interest in insuring against the frequent failures of private insurance to meet their needs at a reasonable cost. This is a major purpose of social insurance schemes that take the form of Bungee Cord.
What can be done to control health care costs while extending access to care to the uninsured? The Bush Administration's strategy is to move health insurance from comprehensive to catastrophic coverage, and make sick people pay out-of-pocket for less-than-catastrophic costs. They would get some assistance in the form of tax-sheltered health savings accounts, in which they could deposit funds up to the amount of their deductible, dedicated solely to health care expenditures.
Nifty idea? Not according to Paul Krugman, who argues in his January 16, 2006 column that this scheme creates perverse incentives to insurers to withhold coverage of routine preventive care for people with chronic illnesses such as diabetes, even if this leads to medical catastrophe later on. ("[T]he administration is saying that we need to make sure that insurance companies pay only for things like $30,000 amputations, that they don't pay for $150 visits to podiatrists that might have averted the need for amputation.")
That's the supply side. What about the demand side? Do workers of modest means find health saving accounts helpful? One administrator told me of her experience: when her firm started offering tax-sheltered dependent-care and health-care savings accounts, she was responsible for explaining this new benefit to the employees. She saw them as wonderful opportunities to save money, and actively promoted them to the staff. What happened?
None of the lower-level staff signed up for the accounts. She found this baffling. Why give up a great tax break? Set aside the fact that the tax break is not so great for low income people, who face lower marginal tax rates, than for wealthy people. That didn't seem to be the main issue.
The main issue was that lower-level staff couldn't afford the float: in a given month, they'd have to pay $250, say, to a dependent caretaker and $250 into their dependent care account. That's $500. They'd have to submit paperwork for reimbursement of the $250 from their account. But they couldn't afford to wait for the money to come back. The timing was delicate: if the paperwork was rejected for some reason, they could find themselves out $750 or $1000. This was way over their heads. If they resorted to their credit cards to cover their expenses in the meantime, the interest on their credit card debt would swamp any tax savings they might have realized from the account.
The problem could be even worse for health care accounts, depending on the timing of health care expenses. On top of monthly or biweekly deductions into the accounts, a staff member might have to front $500 for some necessary treatment on a cash-only basis and then wait for $500 to accumulate in the account before being able to get it all back.
What appears to be a potentially attractive deal for people with plenty of cash reserves is not so for people who are living paycheck to paycheck. My worry is not simply that Bush's proposal is unlikely to do much for exactly the people who most need insurance--the working poor who lack employer-provided health insurance but make too much to qualify for Medicaid. It is that the Bush administration appears not to have bothered consulting the people for whom the program is supposedly designed, to see whether it meets their needs. This is either a gross failure of democratic practice, which requires consultation with those affected by one's policies, or else a cynical PR ploy to persuade the public that one is serious about the health insurance crisis, without really doing anything significant.
Update: Sorry, I did not mean to post anonymously
When I first began blogging on L2R I had comments enabled. This seemed to me the appropriate action to take in a blog which aimed at stimulating discussion among various viewpoints. I was then quite shocked (perhaps somewhat naively) to discover the nature of many of the comments to my blogs. They were rude, abusive, off the point, and not helpful in advancing the discussion. It was also the case that a small number of commentators contributed many more posts than the average. And these were not the most useful.
I decided to disable comments. This caused a number of potential commentators to e-mail me and accuse me of hypocrisy—particularly in light of the fact that many of my comments were about free speech, Ward Churchill, etc. It even turned out that one kind soul opened a website of his own designed to allow those who wished to comment on my remarks. To the best of my knowledge nobody ever availed themselves of this opportunity—perhaps because few were aware of it.
A number of fellow L2R authors (particularly Don and Liz) continued to enable comment and to engage in discussion. I do not think that their choice is mistaken and mine correct. I do not think that there is a single answer to this problem. Much depends on one’s threshold for tolerance of stupid and abusive views, on what thinks is the point of the blog one is on, of how much time one wants to allocate to answering critics, on the range of people and views that one thinks it is realistic to expect some change in, on how willing one is to censor comments before they appear, and so forth.
But the recent closing of the Washington Post blog of ombudsoman Deborah Howell is a good illustration of the hazards of public discussion on the Web. After Howell reported that Jack Abramoff “had made substantial campaign contributions to both major parties” the blog was deluged with hundreds of profane, sexist and hateful comments. One of the interesting things about this is that most of the comments came from various leftist blogs and groups. This made sense since her comment was (in my view) quite misleading. Jack Abramoff never gave money himself to any Democratic official. It is true that organizations for which he worked did so, and that is a relevant thing to note, but at the least one needs some evidence (and some exists) that they were asked to do so by Abramoff. But the relevant criticisms could have been made in a completely civilized manner.
My view of the role of L2R is not just to foster discussion but to foster discussion that has some chance of leading to some change of minds (whether on the right or the left). My brief exposure to comments did not make me optimistic that allowing them would facilitate that goal.
Ana Marie Cox, self-professed feminist and formerly of Wonkette fame, reviewing "Women Who Make the World Worse" by Kate O'Beirne in the New York Times Book Review, Jan. 15, 2006 (here, behind a subscriber wall), commits a howler in conceding a point to O'Beirne:
She mocks MacKinnon's (decades-old) contention that "all heterosexual intercourse is rape."
Please, sisters, at least do a little fact checking when you come across preposterous smears like this? University of Michigan Law School Professor Catharine MacKinnon never said that.
Here's a measure of how much a group is despised: how much malicious absurdity can one ascribe to its members and still be taken as a credible source on what they say and do? With respect to feminists, the answer is quite a lot. Christina Hoff Sommers, former philosopher and professional feminist basher, has been widely and credulously cited for her critique of the American Association of University Women's report, How Schools Shortchange Girls, although my fact-checking finds her critique riddled with errors, inconsistencies, and misleading claims. Many academic critics of feminist philosophers are just as bad, often to the point of ascribing claims to feminists that are exactly the opposite of what they say. Feminists, it seems, are not entitled to a minimally charitable or even literate reading of what they say. Perhaps this is to be expected, if not excused, of those who wear their hatred of feminists on their sleeves. But for feminists themselves to fall for such bashing? Please.
After a semester hiatus, I resume my series of posts on the political economy of a free society. Let's take up the issue of eminent domain, through the controversial Supreme Court case, Kelo v. New London 268 Conn. 1, 843 A. 2d 500, which affirmed the constitutionality of compulsory state transfers of private property to other private owners for the purpose of promoting economic development. The case has sparked a lot of outrage, spurring many states to draft laws banning state-enforced private-to-private transfers of property.
I think the outrage is misplaced. The problem with the current construction of the power of eminent domain is not that it permits states to force private-to-private transfers. The problem is rather that current law undercompensates property owners for such takings.
First, some background: The city of New London has been suffering from what the Supreme Court described as "decades of economic decline," including the loss of its major employer. It decided to try to revive itself by authorizing a private nonprofit organization, the New London Development Corporation, to draw up economic development plans. The NLDC's plan for redeveloping several parcels of land integrated public and private functions, including a park, museum, parking, residential, retail and office space. Finely appointed private homes would be condemned to make room for the new development. The homeowners sued to prevent the condemnation, arguing that the 5th Amendment permits states to take property for "public use" only, whereas parts of the plan would involve merely "private use." New London successfully argued that "public use" should be construed as including any "public benefit," including economic revival of the city. The plaintiffs argued that "public use" should be limited to either public ownership of the property, or, if it is transferred to private ownership, uses that are open to the public, such as railways.
I want to abstract briefly from this constitutional question to consider the underlying political values at stake in the power of eminent domain. There are lots of bad arguments against New London's exercise of eminent domain in this case that need to be cleared away before we can get to the issues that matter. Such as:
The notion that compulsory private-to-private takings are ok if the taking eliminates a "harm to the public," such as blighted property, but not if the property in its current state poses no harm. (This was Justice O'Connor's claim in her Kelo dissent.) So, a city has to wait until it is utterly blighted before it can undertake a recovery effort? One may as well argue that it's ok to give medicine to a person who has collapsed from disease, but wrong to administer it in earlier stages of the disease, so as to prevent utter collapse.
The notion that allowing state compulsion of private-to-private transfers for generic economic benefit "guarantees" that the "losses will fall disproportionately on poor communities," as Justice Thomas objected in his dissent. Thomas' complaint is ironic, given that a central precedent for Kelo was Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which transferred property from wealthy landlords to poor tenants in order to break up an oligopoly in land and thereby increase competition. More importantly, that poor communities would suffer net losses at all depends on acceptance of a miserly standard of compensation, a point to which I shall return below.
The notion that New London's taking violates the rule of law. This objection would have us view the Kelo case as akin to the lawless seizure of private oil wells in Shaanxi, China, which I condemned in an earlier post. The rule of law is being flouted in the Shaanxi case, where the state's decisions were taken in an unaccountable and secretive way. It hasn't offered even a pretense of justification that the taking serves any public interest. The officials who seized the property are not subject to election or recall by people dissatisfied with their actions. They are suspected of corruption, seizing the wells so they can skim the profits. The revocation of rights to private prospecting was not publicized until after the state decided to take the wells. Oil development contracts with the plaintiffs have been summarily breached, plaintiffs' access to the courts and the press has been systematically threatened, and plaintiffs have not been compensated for anything close to the market value of their wells. In New London, by contrast, the city's development plans were publicized in advance. The city development commission undertook a careful study justifying the project in terms of the public interest: it would produce more jobs and economic development in a severely depressed city. Voters had the power to kick out city officials if they disapproved of their plans. There was no evidence of corruption by public officials. No contracts with private parties were breached; plaintiffs enjoyed full access to the courts and the press; and were offered compensation for their property in accordance with current law. City officials acted under a Connecticut statute explicitly authorizing their taking. Bracketing the constitutional question, then, they did not act arbitrarily, but in accordance with the rule of law.
The notion that New London violated "the sacred and inviolable rights of private property," as Justice Thomas objected, quoting Blackstone, in his dissent. On the Blackstone/Thomas reasoning, one should deduce the proper scope of eminent domain by scrutinizing the concepts of private property and the powers inherent in sovereignty, perhaps with some reference to the development of common law a couple of centuries ago. This methodology is flawed from the start, since the concepts of private property and sovereignty are utterly empty apart from judgments of what ends are to be served by these institutions, along with empirical assessments, which may change with circumstances, of how these institutions should be designed so as to best serve these ends. There is no immutable concept of private property: at various times, people have claimed that it includes purportedly sacred and inviolable rights to own slaves, to rape one's tenant's brides, to dictate to one's tenants how they shall worship, to throw one's defaulted debtors into prison, to prevent others from constructing buildings on their property that are tall enough to cast a shadow on one's own property, to maintain a monopoly on public transport across a river, and on and on. Each of these purported inviolable rights has been defended with an intensity and conviction at least equal to those who take Kelo's side today. Look at the libertarian literature today, and one can see right libertarians such as Robert Nozick develop their harshly inegalitarian views from their arbitrary notion of natural property, and left libertarians develop their surprisingly egalitarian views from their equally arbitrary notion of natural property. This is why testing a property claim against one's intuitions about "natural" property rights is worthless--not so much, as Bentham complained, because such claims of right are "nonsense on stilts," but rather because they are forms of what he called "ipsidixetism": passing raw assertion of opinions off as arguments. It doesn't help to pluck out a random date--Justice Thomas seems to favor property rules that preceded the full development of industrial capitalism--and claim that the common law rules recognized then constitute our sacred rights to private property. Private property rules are in continuous development, because the flourishing of capitalism requires this.
There has to be a more principled way to assess rival private property rules than this battle of intuitions and feelings of outrage dressing themselves up under the guise of "sacred and inviolable rights." Disputes over property rights do not have to be turned into a Holy War, with rival sides thumping their respective holy texts, or advancing their fervently held dogmas about what is or is not sacred. We can instead proceed as Hayek recommended we proceed, by judging property rules according to the value of the bundle of opportunities they provide to anyone at random:
Since rules of just conduct can affect only the chances of success of the efforts of men, the aim in altering or developing them should be to improve as much as possible the chances of anyone selected at random. . . . All the law can do is to add to the number of favorable possibilities likely to arise for some unknown person and thus to build up an increasing likelihood that favorable opportunities will come anyone's way. (Law, Liberty, and Legislation, vol. 2, 129-130).
The point of considering property rules from the point of view of a random individual is to ensure that one does not choose them solely with a view to how some particular person will fare under them, but rather with a view to how people generally will fare under them. This exercise could be formalized in the way Rawls did, with people choosing rules of justice from behind a "veil of ignorance." But I prefer to avoid the elaborate Rawlsian apparatus, which gets more questionable, the more details are packed into the "original position." At the same time, Hayek's standard is ambiguous: does it require, say, that we maximize average or median expectations from a property rule? (Note that a focus on raising median expectations, as opposed to average expectations, would guarantee that an acceptable rule benefits those in the bottom half of the economic distribution.)
Fortunately, in the particular case of the state's power of eminent domain, we have a stricter standard to which we can appeal in judging the justification of compulsory private-to-private transfers. Eminent domain is, unlike ordinary taxation, a particularly disruptive form of property rule. For such rules, it makes sense to insist that the "public benefit" be shared with those whose property is taken. The narrow construal of "public use," which allows a compulsory private-to-private transfer, provided that the property is, like a railway, operated as a public accommodation, is designed to capture this idea that the benefits of a state taking redound to all, including those whose property is seized. In other words, mere compensation--leaving property owners no worse off than before their property was taken--is not enough: in addition to having their losses compensated, they must share in the benefits achieved by the transfer.
It is evident that the current rule of compensation, which supposedly offers property owners "fair market value" for their property, is a cruel joke, leaving those whose property is taken net losers. It does not even cover their moving costs. Moreover, if the economic development project succeeds, property values may rise so much that those whose property was taken can no longer afford to live or operate their business in the city. There is an easy remedy that ensures that owners share in the economic benefits of a compulsory private-to-private transfer. The rule of compensation should be that owners receive the greater of:
(a) fair market value of their property prior to condemnation + reasonable moving costs (including possible net costs of refinancing, etc.), or
(b) fair market value of comparable property in the city after the economic development plan is undertaken.
(B) captures the thought that, if the transfer succeeds in promoting economic development, the benefits of this will be captured by all owners in rising property values. The compensatory standard should ensure that those whose property is taken enjoy an equivalent increase in their compensation, so that they could, if they wished, afford to stay in the city living as they did before, enjoying the externalities of the new development. (A) offers a hedge to owners in case the development plan fails. At least they will not come out net economic losers from the taking.
I would also accept the following standard:
(c) fair market value of the seized parcel as zoned for its new use.
(B) says that an owner should be compensated enough to be able to buy an equivalent house/commercial building in the city without suffering any net economic costs. (C) says that owners should share in the value added by and internalized in the new use of the property, not just in the positive externalities the new use offers to others.
When there are net expected economic benefits from compulsory private-to-private transfers,they would be allowed by the Hayekian standard. The "public benefit" standard requires, beyond this, that owners whose property is taken are entitled to share in these benefits ex post, not just ex ante (before it is known that their property will be taken).
It may be objected that I am being too optimistic in assuming that net economic benefits can ever be expected from a rule of eminent domain that permits compulsory private-to-private transfers: doesn't this leave politicians open to wholesale corruption and cronyism? I observe that even corrupt mayors may manage to bestow great benefits on their cities from redevelopment projects--consider, for instance, Mayor Cianci's stunningly successful redevelopment of Providence, R.I. However, I agree that there are dangers here. The proper remedy, however, is not to ban such projects altogether. The opportunity costs of an outright ban would be too high. It would also give desperate, declining cities a perverse incentive to try running economic enterprises on their own, retaining public ownership of the property, rather than enlisting private entrepreneurs, who are likely to do a better job. If the higher standard of compensation turns out, after trial, to be insufficient to deter corrupt and harmful deals, local governments could be required, upon petition from a significant portion of their electorate, to put their development plans up for public approval in a referendum.
Kelo's critics have been barking up the wrong tree. The problem is not the principle of compulsory private-to-private transfers for public benefit. It's that the current compensatory standard is too low to ensure that prior owners share in the benefits.
Earlier this year President Lee Bollinger of
The other problem stems from an overly narrow
conception of the first amendment and the makeup of a democratic citizen.
Bollinger has written an excellent book in which he highlights the role of the
first amendment in encouraging tolerant citizens. I, for one, doubt that the
most important feature of the first amendment is nurturing character traits
(though I think it plays a role). But I believe that Columbia Law Professor
Vincent Blasi presents a richer view of the kind of character that the first amendment
might be out to cultivate. Blasi speaks in favor of the claim that a “culture that prizes and protects expressive liberty nurtures
in its members certain character traits such as inquisitiveness, independence
of judgment, distrust of authority, willingness to take initiative,
perseverance, and the courage to confront evil. Such character traits are
valuable, so the argument goes, not for their intrinsic virtue but for their
instrumental contribution to collective well-being, social as well as political.”
Vincent Blasi, The First Amendment and Character, 46 UCLA L.Rev. 1567, 1569
(1999). I believe that what Blasi says of a first amendment culture is true of
a university culture and that Bollinger proposal of a “fairness doctrine” for the
subject matter of every course is unduly restrictive. We need more than
tolerant citizens; we need engaged citizens. Conceding that Bollinger’s
restrictions are appropriate in many introductory courses, a first amendment
culture is more likely to produce engaged students and citizens than Bollinger’s
more restricted culture
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From President Bush's statement this morning, nominating Harriet Miers to the Court:
Harriet Miers will strictly interpret our Constitution and laws. She will not legislate from the bench.
Sigh. The cynic in me, of late a cancerously expansive presence, says, "calm down, Don, this is a barely coded statement to the right that she doesn't approve of abortion or gay marriage." But this familiar contrast is not supposed to mean that. It is supposed to give a reason, to explain why "conservative" judges are doing their jobs and "liberal" judges are usurping policy-making decisions that properly belong to the legislature.
Alas it's impossible to take that seriously.
The usual target in this discussion is Griswold v Connecticut (1965), where the Court announced a right of privacy in striking down a statute banning the use of contraceptives. But where "in the Constitution," as critics like to ask, or leer, does it say anything about the right of privacy? Justice Douglas's language for the majority is much mocked; he referred to
specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.
Penumbras and emanations?! Let all the merry conservative skeptics chime in: ha ha ha. Legislation from the bench! And that right to privacy helped anchor the Court's decision in Roe, which appealed to Griswold and other precedents.
Okay, so what about Boy Scouts of America v Dale? That case held that it was unconstitutional for the state of New Jersey to bring a public accommodations antidiscrimination statute to bear against the Boy Scouts: if the Scouts wanted to get rid of an assistant scoutmaster for being gay, that was within their rights. Somehow Chief Justice Rehnquist's language for the majority isn't mocked:
This case presents the question whether applying New Jersey's public accommodations law in this way violates the Boy Scouts' First Amendment right of expressive association. We hold that it does.
True, he didn't talk about emanations or penumbras. But he might as well have. Where oh where "in the Constitution" does it say anything about freedom of association? In case you haven't dutifully committed the text to memory, here's the first amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
So freedom of association isn't there! Rehnquist made it up! But I have yet to find a single right-wing commentator denounce Dale, and believe me, I've looked. It's hard to resist the inference that the alleged jurisprudential contrast between strict construction and legislation from the bench is nothing but a mask for illicit policy concerns. Whether an opinion is called strict construction or legislation from the bench seems to depend solely on whether the commentator likes the outcome. That game is too dreary and, frankly, too stupid to be worth playing.
It doesn't yet follow that there is no principled jurisprudential contrast to be drawn here. But is there one? Article I, sec. 8 of the Constitution enumerates Congress's powers; clauses 11-16 lay out war powers. We learn that Congress can establish an army and a navy. But there's nary a syllable "in the Constitution" about the air force!
I can't imagine anyone actually wants to bite that bullet. And yes, I can draw distinctions between Roe, Dale, and Congress's setting up and funding the air force. But those distinctions are not the bozo distinction between what's "in" the Constitution and what's "invented." On and off the bench, when it comes to constitutional law, interpretation is the only game in town. The contrast that matters is that between good and bad interpretations, not between people who "faithfully apply the letter of the Constitution" and those who "make stuff up."
Next time you hear someone pounding the table about Griswold and Roe as instances of legislation from the bench, ask him about Dale. Next time — at confirmation hearings or on the campaign trail — you hear our elected politicians carrying on about strict construction, don't let them sucker you into believing it. After all, I'd hate to believe that they are so stupidly ideological that they've suckered themselves.
Yesterday I saw the most amazing BBC video coverage from New Orleans, which spoke volumes about the character and focus of even our belated relief efforts there. You can find it at the BBC News site (Thanks to Ciaran.) What you will see is footage from a small boat that a BBC reporter and crew took into one of the poor African-American neighborhoods in New Orleans. Winding their way past floating dead bodies, they find their way to a house with five children and their dead mother, whom they rescue. "It seems quite incredible to me," says the BBC reporter, "that we are the only boat in this neighborhood. And in every neighborhood we have gone into there are so many people with so many needs." After taking the family to an evacuation point, they return to the neighborhoods and find two middle-aged African-American brothers still holding on in their house because they don't want to leave their deceased mother, whose body hangs above the water level in a sling. Presently, the report turns to the relief effort itself and to the high proportion of military/police to medical support. "When the authorities do come to these streets, it's more often in pickup trucks with guns, more guns than medical workers." Dr. Greg Anderson is interviewed and says, "There are a lot more cops ... and guns than doctors. For a long time, I'm sorry to say, I was the only doctor down here in central New Orleans." An equally distressing proportion is the ratio of human needs met by that small BBC crew to those met by the enormous US news and "news" operations, not to mention, the national guard and other national support, considered in relation to their relative size.
Tell us again that government is the problem, that things will be perfect if we just shrink our governments down to nothing and allow the wonders of private enterprise to solve all of our problems. As we look in horror at the grisly results of under-funded and ignored public works projects, we need to hear again the song that lulled us to sleep for decades, telling us that we will all be better off if we vilify and ridicule all government programs. Surveying the terrible human cost of a monumental failure to plan for an emergency that was not only predictable but predicted, we need to hear again that the invisible hand is the best planner and that government planning will inevitably make matters worse.
Tell us again that poverty does not matter. We loved hearing that people living on welfare really had it pretty good, that they were driving around in Cadillacs, that the poverty line had been manipulated by liberal professors to inflate the amount of money going to undeserving people who refused to get a decent job. When we worried that maybe some people really could not live on minimum
wage incomes (even supplemented by what remained of the safety net), we loved being told that poverty does not matter because over time some people move out of poverty and into higher income groups. Sure, at any given time, there might be poor people, but we were happy to hear that they need not be stuck there for a terribly long time. The people who died last week because they were too poor to leave the path of disaster might have had a shot at middle class status one day. Or the kids that they might have raised might have had a shot. Maybe. Let us hear that one again. It sounded so good.
Tell us again that discussing race is a divisive ploy, that the civil rights gains of the sixties ended any real need to address lingering issues of racial disadvantage in our country. We long for the voices that told us how racial discrimination was a thing of the past, that political concerns about race were cynical attempts to create guilty consciences in innocent hearts and minds, that there is no longer institutionalized racism, that nominally color-blind laws mean that we really live in a color-blind society. Seeing the faces of the most stricken victims of the disaster, we must be reminded that racism has been defeated. We need to hear that story again.
Tell us again that sending ill-equipped national guard troops to die abroad had no downside at home. Tell us again that public spending is a waste. Tell us again what a great idea it is to have guns in the hands of millions of people, so that they will be safe from their government. Tell us again that the federal government is not needed because local and state governments should handle their own affairs. Tell us again that one state’s problems are of no concern to people in other states. Tell us again that we can have anything we want and not have to pay for it. Tell us again that the most important policy is always, always to cut taxes for rich people.
Tell us again that we were smart to have a nonstop tax-cutting, safety-net-shredding party, even while we ignored warning after warning that the costs of our irresponsibility would be incalculable. Looking helplessly on as the death count begins, as the damage is assessed, as the most shameless politicians continue to pretend that nothing has changed, we need to hear one more time that all of this really was a great idea.
Tell us again. Please.
When the satellite channels reported on the scope of the terrifying destruction in America [caused by] this wind, I was reminded of the words of [Prophet Muhammad]: "The wind sends torment to one group of people, and sends mercy to others." I do not think — and only Allah [really] knows — that this wind, which completely wiped out American cities in these days, is a wind of mercy and blessing. It is almost certain that this is a wind of torment and evil that Allah has sent to this American empire. Out of my absolute belief in the truth of the words of the Prophet Muhammad, this wind is the fruit of the planning [of Allah], as is stated in the text of the Hadith of the Prophet.
But I began to ask myself: Doesn't this country [the U.S.] claim to aspire to establish justice, freedom, and equality amongst the people? Isn't this country claiming that everything it did in Afghanistan and Iraq was for truth and justice? How can it be that these American claims are untrue, when we see how good prevails in the streets of Afghanistan, and how it became an oasis of security with America's entrance there? How can these American claims in the matter of Iraq be untrue, when we see that Iraq has become the most tranquil and secure country in the world?
But how strange it is that after all the tremendous American achievements for the sake of humanity, these mighty winds come and evilly rip [America's] cities to shreds? Have the storms have joined the Al-Qaeda terrorist organization?
How sad I am for America. Here it is, poor thing, trying with all its might to lower oil prices which have reached heights unprecedented in all history. Along with America's phenomenal efforts to lower the price of oil in order to salvage its declining economy and its currency — that is still falling due to the "smart" policy America is implementing in the world — comes this storm, the fruit of Allah's planning, so that [the price of] a barrel of oil will increase further still. By Allah, this is not schadenfreude.
Oh honored gentlemen, I began to read about these winds, and I was surprised to discover that the American websites that are translated [into Arabic] are talking about the fact that that the storm Katrina is the fifth equatorial storm to strike Florida this year … and that a large part of the U.S. is subject every year to many storms that extract [a price of] dead, and completely destroy property. I said, Allah be praised, until when will these successive catastrophes strike them?
But before I went to sleep, I opened the Koran and began to read in Surat Al-R'ad ["The Thunder" chapter], and stopped at these words [of Allah]: "The disaster will keep striking the unbelievers for what they have done, or it will strike areas close to their territory, until the promise of Allah comes to pass, for, verily, Allah will not fail in His promise." [Koran 13:31].
Second, from Rep. Dennis Hastert (R-IL), Speaker of the House:
Lawmakers have to ask themselves if it’s worth sinking possibly billions of federal dollars into rebuilding New Orleans, a low-lying city which would remain a vulnerable hurricane target even after clean up, House Speaker Dennis Hastert said Wednesday.
"It doesn’t make sense to me," said Hastert during an interview with the Daily Herald editorial board. "And it’s a question that certainly we should ask."
Congress' most powerful Republican undoubtedly wasn’t the first to think such a thought, but as the man at the head of a chamber charged with approving federal disaster aid legislation, he knows the potentially taboo topic won’t go away.
"First of all your heart goes out to the people, the loss of their homes," said Hastert of Plano. "But there are some real tough questions to ask about how you go about rebuilding this city."
Hastert said his office worked nine weeks straight putting together the disaster relief for New York City following the Sept. 11, 2001 attacks. This could take even longer, he said.
"We help replace, we help relieve disaster," Hastert said. "That is certainly the decision the people of New Orleans are going to make.
"But I think federal insurance and everything goes along with it and we ought to take a second look at it," Hastert added.
"But you know we build Los Angeles and San Francisco on top of earthquake fissures and they rebuild, too. Stubbornness."
Those remarks were followed by the inevitable "clarification":
"It is important that when we rebuild this historic city that we consider the safety of the citizens first. I am not advocating that the city be abandoned or relocated. My comments about rebuilding the city were intended to reflect my sincere concern with how the city is rebuilt to ensure the future protection of its citizens and not to suggest that this great and historic city should not be rebuilt," Hastert said in a statement sent to news organizations Thursday.
Third, from Sen. Mary Landrieu (D-LA):
I will speak for a moment about energy and about what the gulf coast contributes to the energy independence and energy security of this Nation. As millions of people have been leaving their homes to flee to higher ground, 442 rigs or platforms have been deserted by companies in the Gulf of Mexico. When I say deserted, not just, of course, left to wreak havoc, but they have been tied down, secured, supported. All nonessential emergency personnel have had to move out of the Gulf of Mexico. This evacuation represents 50 percent of the manned rigs and platforms in the gulf.
Right now, oil and gas from the Gulf of Mexico and coastal Louisiana represents 60 percent of the entire Gulf of Mexico production. For the time being, that has been shut down.... I have discussed with Members of this Senate the importance of our LOOP facility. The Louisiana Offshore Oil Port sits right out on the Continental Shelf, near Port Fourchon Louisiana, and is a superport responsible for the entrance of 1 million barrels of oil a day.
We are in Iraq, in an important battle, but part of our objective there is to secure an oil supply for the region and for the Nation and to use that for the betterment of the people of Iraq, for their growth and development and the security and stability of the world, as well as to fight for other issues. We are fighting to get 1 to 3 million barrels out of Iraq, and right here in the Gulf of Mexico, today, we have a facility that has virtually been shut down because of a hurricane. Nearly a million barrels is being imported in this country, and exported, a year....
My point is, I hope we will again use this opportunity to focus on the critical infrastructure needs necessary for Louisiana and the gulf coast of Mississippi and Alabama primarily to protect itself not just from homeland security threats from terrorists but real threats of weather.
People might say: Senator, why did they build the port here in the first place? I understand that. If we could do it again, knowing what we know now, perhaps that would not have been done. I will speak for a minute about that because I want people to understand the argument. Men and women are here because the oil and gas is here. If we could figure out a way to have people live in Chicago and commute every day down to the Gulf of Mexico to get the oil and gas out of the ground, then people would not have to live here, but we have not figured that out yet. So real life men and women and children and families live here. They have to live here to serve as the platform for the oil and gas that keeps the lights on all over the country. Yet we ask them time and time and time again to literally risk their lives to do so, and we cannot find a few million dollars in this budget to lift this highway so either they can get out or they can be safe....
Let me talk about what else is going on. Louisiana wetlands are not a beach. I have spent a lot of my life growing up in the gulf area, and I have spent a lot of time on the Florida beaches, and I have never seen anything more beautiful. We in Louisiana support those beaches. We understand the tourism. We are some of the tourists that go there. But our coast is not a beach. We do not have a beach unless you want to count Grand Isle. It is beautiful and wonderful, but does not look like Destin, Florida. It is a lovely small beach. That is about the only beach we have. The rest of our coast is not a beach. It is a wetlands. It is not the wetlands of Louisiana, it is America's wetlands. It has been washing away at an alarming rate. The difference between a major hurricane coming out of the gulf in 1940 and a major hurricane coming out of the gulf this year ... is we have lost thousands and thousands of acres. The size of the State of Rhode Island has been lost in the last 50 years, so the buffer has been shrinking that protects the city of New Orleans and much of the populated portions of Mississippi. That has been lost.
So the people who live on the gulf coast of Mississippi and the southern part of Mississippi and Louisiana are at greater and greater risk because those barrier islands that once existed, those acres and acres and square miles of wetlands, have been eroded. Why? For two reasons. One, we leveed the Mississippi River for commerce, not just to benefit Mississippi and Louisiana but to benefit the Midwest, the Northeast, the West, to open up trade and opportunity up and down that Mississippi River. We had no choice.
If you want to go to before the trade and go to when the country started, we had to anchor the mouth of the Mississippi to literally create the Nation — unless we wanted to stop at the Kentucky border or the Shenandoah Valley, which was a choice at one time. We could have just made the United States go from the east coast to the Shenandoah Valley, and we could have had a wonderful nation right there in the East. But we decided to go West. We decided to go all the way to the Oregon Trail with Lewis and Clark. President Jefferson had a vision, but that vision could not possibly happen without anchoring the security of the mouth of the Mississippi River. So we did. We had to basically try to tame this very wild place, very wet place, very low-lying place.
But we did it not just for ourselves; we did it for the whole Nation, with the Nation's help and support. We did not pay for everything, but we contributed a great deal. Today we continue to give billions of dollars out of the gulf coast in oil and gas revenues and taxes that go to this country. We continue to send our labor and our support and our money to this Nation. Yet time and time again, when Louisiana comes to ask, Could we please have just a portion of the revenue that we send? — we are not asking for charity; we are asking for something we earned; we are happy to share with the rest of the country to help invest in infrastructure — we are told: We cannot do it this year. We do not have enough money. It is not a high enough priority.
Well, I do not know when it is going to get to be a high enough priority. I hate to say maybe it is going to take the loss thousands of lives on the gulf coast to make this country wake up and realize in what we are under-investing. Again, we lose a football field every 30 minutes. We have lost more than 1,900 square miles in the past 70 years, and the U.S. Geological Survey predicts we will lose another 1,000 square miles if decisive action is not taken now.
Now, we have made good plans in the last several years to save the Everglades. We are well on our way to do that. We have plans underway to restore the Chesapeake Basin, which is an extremely important ecosystem to this part of the country. We have some preliminary plans underway in the Great Lakes. But no area — not the Everglades, not the Chesapeake, and not the Great Lakes — of this great Nation contributes more economically or energy-wise than the wetlands of America that lay to the south along the gulf coast. They do not compare to the energy contribution; they do not compare to the fisheries contribution; they do not compare to the commerce contribution of this Nation or the port contribution when you put it together. Yet we seem to be getting less, not more....
We also have a bill through the WRDA legislation, which is the traditional funding for the Corps of Engineers, the Federal agency primarily responsible to keep the waterways dredged, to keep the levees up as high as possible, to work with our local flood control folks, particularly our levee boards in Louisiana, which are some of the most important public entities we have, that literally keep people dry from heavy rains and from floods and storms of this nature.
But let me also repeat, again for the record, I know every time a hurricane hits in North Carolina or South Carolina or Florida, other people who are not familiar with hurricanes say: Why do the people live along the coast? Why do we let people live along the coast? I think that is a legitimate argument that could be made for resort communities. It is not mandatory they live there. They choose to live there because, of course, the coastlines are very pleasant and beautiful places to live. In fact, Americans really agree with that because two-thirds of the entire population of the United States live within 50 miles of the coast. So that is an issue that could be debated, and we could talk about that.
But Louisiana people who live in Port Fourchon, while they enjoy living there, believe me, and while they love to shrimp and they love to fish, they are there doing a great service for this Nation, working in an energy industry and trying to dig out of the gulf the resources this country needs. Where people live along these bayous, they are fishing and they are contributing to industries. They do not have a lot of fish in downtown New York. They do not have a lot of fish in Chicago. The only place you are going to catch fish is in the water. So you have to live there basically to catch the fish. They are living there for a livelihood....
Now people want to say, maybe we should — if a big storm hits — just move New Orleans. I do not know how you move a major metropolitan area. But I also say this about my great city, where I grew up and have represented, still to this day — and in many different ways throughout my life — the people, the city is 9 feet generally below sea level. But we have some of the most sophisticated pumping systems in the world.
In fact, the engineers who built the pumping stations that supply New Orleans with flood control were the engineers who helped Holland and studied in Venice. We do not have halfway pumping systems. We have the best in the world. We have the best engineers, the finest pumping systems. We are an old city, and we spend a lot of our money to keep those pumping systems up to date. In fact, the Federal Government has been a major partner. I am proud to have led the effort. The Southeast Louisiana Flood Control program has invested hundreds of millions of dollars, Federal and State money, to upgrade those pumping systems. So we are not Pollyanna about this. We are not Johnny-come-lately. We have great engineers. We are smart. If fact, we have taught the world how to drain floodwaters because we have been doing it the longest, for over 300 years.
But the city can do just so much, when it has a population that is challenged. We are not the wealthiest State. We are not the richest State. We need our Federal Government to understand that we are happy to share our resources and riches with the world, but we do deserve a greater portion of these revenues to keep our people safe, to keep our infrastructure intact, and, most certainly, to be respectful of what the people of Louisiana and the entire gulf coast contribute to our national well-being and security.
Sen. Landrieu offered those remarks on the Senate floor. She was worrying about Hurricane Ivan, on September 15, 2004.
The versatile Arnold Schwarzenegger — bodybuilder (for real), actor (sort of), governor (don't blame me) — has always provoked snickering. For a couple of weeks now, there's been a new and less amiable snicker, over the recent revelation that for years, while he was married to Maria Shriver, Schwarzenegger and Gigi Goyette (no, I did not make up that name) engaged in what she calls "outercourse."
There are two stories here, both of them about public and private. One is old, boring, and inconclusive. The other is old, too. But it matters, and it gets underplayed.
One: is this relationship private? or is it politically relevant? Maybe this tawdry little affair is none of the public's business, but should be left to Schwarzenegger, Shriver, and Goyette to sort out, or to them and those they confide in: friends, ministers, or whoever else. In this view, if you want to know whether Schwarzenegger is a good governor, you should worry about his policy stances and political skills. You shouldn't worry about his sex life, or whether he flosses regularly, or whether he's religiously devout. Those latter things might or might not be important in assessing his character, but they don't matter in sizing him up for politics.
But maybe character counts. Maybe the older allegations of Schwarzenegger's womanizing and groping, coupled with this newer story, do tell us something relevant about him. They tell us that he's an untrustworthy, selfish scoundrel, that he has a lack of integrity, and maybe we should expect those unsavory traits to show up not just in his marriage but in politics, too. (I leave aside the Machiavellian thought that maybe politicians ought to have those traits.)
I have nothing interesting to say about this stale, old dispute, past noticing its existence. But ...
Two: on August 6, 2003, Schwarzenegger announced he would run in the recall election against Gray Davis. On August 8, 2003, American Media, Inc. paid Goyette $20,000 for exclusive rights to her story. (For these and connected facts, see the link above the fold. Or entertain yourself by googling further facts. Me, I got battle fatigue.) Goyette thought that they wanted her to write a book. She was wrong. They wanted to keep her story quiet.
Why? American Media publishes the National Enquirer, the Star — and some fitness magazines. Later that year, they agreed to pay Schwarzenegger millions for associating himself with two of the fitness magazines. In the world of bodybuilding, the guy's name, image, and endorsement are still golden. No, I don't suppose the typical weightlifter would think much worse of him for cheating on Shriver. But — check the columnists who have sniffed that "outercourse" just means "striking out" — they might have thought less of him anyway. So American Media had pressing financial interests in what consumers — and therefore voters — did and didn't know about Schwarzenegger. Yes, the Enquirer flirted briefly with the story. But during the campaign, American Media put together a special 120-page magazine "hailing Schwarzenegger as an embodiment of the 'American dream.'" So the link works in the other direction, too: if voters made him governor, his endorsements would be worth even more. And voters might not have liked Goyette's story.
Some voters think character matters. Some don't. Some might well think that allegations of outercourse are importantly different from those of womanizing or groping. Those too are political disagreements, ones we properly sort out with vigorous public debate. But California voters never got a chance to have that debate when Schwarzenegger ran, because a corporation decided they'd make more money if they pre-empted it.
Maybe Schwarzenegger wasn't getting screwed. But the voters were.