Monday, March 31, 2014

Dismissive condescension impedes productive discourse

A few weeks ago, a writer for the Johns Hopkins News-Letter wrote an opinions piece titled "Religious Hierarchy Impedes a more Equitable America." The article can be read in it's entirety below (in italics). Beneath the article, I've posted my response (in standard font) which I published in this week's edition of the News-Letter. As a forewarning, my response focuses more on the tone of the original article than the content of its articles, so if that sort of discussion bores you, don't read it!

The original article: Religious Hierarchy Impedes a more Equitable America
In his critique of Hegel’s Philosophy of Right, Karl Marx emphatically claims, “Religion is the sigh of the oppressed creature, the heart of a heartless world, just as it is the spirit of a spiritless world.” Going further, Marx remarks religion is nothing but an opiate that provides an illusory sense of happiness, which impedes their ability to realize that real happiness lies not in an abstract illusion but rather in their concrete material relations. Almost 200 years after this insightful expose, religion today, more than any other factor, continues to play the most integral role in how a large majority of our country sees both itself and others’ position within the intricate global web.

But why is it that billions still fetter their minds around belief systems whose theological validity has repeatedly been shown to stand in staunch contradiction with proven scientific facts and established historical events? More baffling might be the question of why religiosity has actually intensified in many places, rather than attenuate, in the face of these apparent empirical inconsistencies. But the most pressing question above all is what motivates many to zealously support religious institutions whose political agenda runs directly against their own interests. The answer to these startling realities undoubtedly lies among the dynamic multitude of economic forces that comprise our modern capitalist society and how the greater public perceives the way these forces impact their daily lives. Particularly important is the influential role that religious leaders play in justifying the continuation of such a disaster prone economic system.

Revived orthodox conservative movements on the Right, in the form of the Tea Party and an ideologically charged Republican party, rose out of the destruction wreaked by the 2008 financial crisis. At the core of these radical movements, however, has been an entrenched return to traditionalist Christian values reminiscent of the Puritanical witch-hunts of early colonial America. Brandishing a simplistic panacea for the ills of the country, these vitriolic factions continue to lash out against those whom they identify as laying outside their religious-ideological beliefs. Whether it is a strong resentment towards poor Mexican migrant workers for taking their jobs, hateful attitude towards gay people as inherently different than heterosexuals, or the comical belief that their black President is secretly a Communist/Socialist, these fringe groups have irrevocably altered the political terrain of our country.

But the most intriguing aspect of this orthodox revival might be the paradoxical re-embracement of the prevailing capitalist order by those exact same individuals whose lives it completely torn asunder through speculative gambling on Wall Street. The sight of figures like the Koch brothers being heartily welcomed by these groups’ as symbolizing the epitome of honorable success has been puzzling. It is as obvious that these billionaires are simply looking to exploit the fervent megaphone of the Tea Party to further their own business interests as it is troubling to think the group can’t detect such deceit. Incessant chants for lower taxes, cuts in social spending, and annulment of the healthcare initiative are antithetical to the peoples’ very interests. Here, religion’s powerful ideological magnet pulls more forcefully than anywhere else, because instead of realizing that the same individuals in whom they have imbued their trust are the ones indirectly responsible for their current malaise, the justification that we receive is an absurd invocation of some divine being’s “grand plan.” 

Behind these misguided conclusions are always the same corrupt religious leaders who possess a vested interest in protecting the status quo, all the while profiting immensely from the pittances of their followers.

This corrupt business model thrives perfectly in the poor enclaves of the American South where magnificent evangelical mega-churches run by opulent pastors constantly proselytize the virtues of liberty espoused by the political Right. Citizens of states such as Arkansas, Mississippi, Louisiana and Alabama, where some communities are stunningly similar to squalid caricatures of third-world nations, never fail to overwhelming vote in favor of candidates who devoutly support socially regressive policies. It seems counter-intuitive to think that a region, where the official poverty rate is a record high 17 percent, would consistently elect national representatives in relentless pursuit of economic initiatives detrimental to their constituents’ livelihoods.

The policy discussions dominating the electoral scene in these states revolve around issues like denying equal marriage benefits to same-sex couples, shutting down minor social programs like Planned Parenthood, and preventing a socialized model of national healthcare from restricting their freedoms (not that Obamacare satisfies such a model). Who are the main agents behind the support of this trivial and distracting political discourse? They are, in fact, the same leaders who every Sunday pontificate on equality and the necessity of building a more fair and just society. Yet, their explanations of why these end goals are not being effectively pursued ultimately circle back to the aforementioned talking points, rather than highlighting the grossly inequitable policies that form the bedrock of our current economic system.

But this isn’t to say that the religious establishment is the only minority block supporting a status quo pernicious to the interests of the majority, or even that they are always in favor of such a system. It is undeniable that the Church (particularly the Catholic Church) provides millions of poor Americans with critical material and spiritual support in times of need. Yet, the apathy of the main leaders within these enormously influential centers of social life towards the most pressing issues facing our country today is inexcusable. The reason for the shortcoming is not due to a lack of understanding, but rather the unwillingness to stand against the unfair policies from which they ultimately derive their exorbitant wealth and influence. For instance, the absurd law that renders a church tax-exempt has permitted many agents within the Evangelical base to amass tremendous material wealth, which has permitted them to create almost mini fiefdoms within their respective locales.

To rail against these obviously biased policies would essentially require religious leaders to engage in activities opposed to their best interests. But if history has anything to tell us about such a prospect, it’s that this will never happen without a mass consensus among the rank and file. Sadly, the likelihood of this collective conscious organically forming seems quite bleak given the strength of the framework in place to counteract it. Aided by powerful media conglomerates with similar interests, religious leaders shield their congregations from narratives that explore the foundational aspects of society’s problems.


In spite of these challenges, the religious domain still has the potential to motivate large sectors of the American population to demand real political and economic changes from the state. But for this to occur, there needs to be a sustained effort that works to highlight the subterfuge of the religious hierarchy while simultaneously providing a substantive vision for positive change. More importantly, this has to occur without encroaching upon the individual’s religious beliefs. The goal should not be to insult the doctrines making up their core values, but rather to demonstrate the possibility of a fairer and more just world where all individuals derive benefit—not simply a selected few.

My response: Dismissive condescension impedes productive discourse

A February edition of the News-Letter featured an Opinions article – titled “Religious hierarchy impedes equitable America” – on religion’s propensity to inhibit social progress. It was eloquently argued by a bright and impressive young columnist who’s written several insightful articles for the Opinions section. Unfortunately, I found the premise this particular article patronizingly dismissive of the opinions of huge swaths of the American population, and its tone antithetical to the open-minded atmosphere of respectful exchange I have striven to foster as Opinions Editor. This week, I finally decided to respond.

Which economic policies will result in a more “equitable” America – as well as the relative desirability of equity in comparison with other social prerogatives - are matters of enormous debate in the economic and philosophic communities. The opinions section is a fantastic venue to further that discussion through the passionate and reasoned presentation of our convictions. Unfortunately, the author of the article in question preempted any such discourse with the presumption that any who disagree with him must be ignorant, naive, stupid, stubborn, selfish, or some combination of the above.

If the article is to be believed, conservative talking points are not arguments worthy of being engaged, but a “trivial and distracting political discourse.” Opposing economic policies are not merely biased, but “obviously biased.” Nobody in power actually disagrees about what “the most pressing issues facing our country today” are – it’s just that religious leaders demonstrate inexcusable “apathy” towards those issues. These leaders do not provide their congregations with their heartfelt beliefs on how to solve society’s problems, they merely “shield their congregations from narratives that explore” those problems.

The article did not endeavor to prove whether the “political agenda” of “religious institutions…runs directly against [religious people’s] interests.” Indeed, the article does not bother to provide any evidence substantiating the claim. Instead, it uses that highly controversial assumption as a mere starting point from which to engage “the most pressing question above all”: how it came to be that religious zealots were hoodwinked. That the Tea Party ideals which animate so many on the right can be dismissed as “billionaires…looking to…further their own business interests” is also “obvious”; what’s up for debate is merely why “the group can’t detect such deceit?” Why is it, the author asks with apparent sincerity, that “billions still fetter their minds around belief systems” with which he disagrees?

As a Christian who thinks the Tea Party has some pretty good ideas, I was surprised to learn that my beliefs make me a gullible puppet for my greedy asshole of a pastor. I was hitherto unaware that the sum of my contributions to political discussion amount to an irrelevant distraction, or that my every political thought is merely an unoriginal byproduct of my placement in a complex system of material power relations over which I have no control.

The article observes “[i]t seems counter-intuitive to think that a region, where the official poverty rate is a record high 17 percent, would consistently elect national representatives in relentless pursuit of economic initiatives detrimental to their constituents’ livelihoods.” I agree: it is counter-intuitive. Intuition tells us that people generally elect representatives with economic initiatives they believe to be in their best interests. Since Republicans keep winning in the South, intuition suggests that Southerners sincerely believe Republican economic policies are what’s best for them. Intuition also reminds us that vast geographic regions are very rarely populated exclusively by morons, and that self-identified Republican voters come from a diverse set of education levels, income levels and IQ scores. And intuition deduces that if localities run mainly by progressive representatives were always successful at alleviating poverty, cities like Los Angeles, Detroit, Chicago, New York and Baltimore would have a lot fewer poor people than they do today. Therefore, intuition leads us to the conclusion that very many people, exposed to the same information and mental faculties accessible to the author, have ruminated long and hard on matters of economic policy and social justice, and yet come to a set of conclusions markedly different from his own regarding which policies truly work to their detriment.

But alas, many prefer to go against their intuitions than to confront the unsettling reality that their most deeply held beliefs are contested and unresolved matters of opinion. Many of these same people prefer to craft condescending caricatures of their opponents than to make good-faith efforts to engage with their ideas. When confronted with such one-sided perspectives, one questions who is truly “brandishing a simplistic panacea for the ills of the country.”

When we find ourselves in heated disagreements, it is sometimes useful to take a step back and consider why our opponents think the way they do. At times, it may even be interesting to hypothesize as to which specific incentives or formative experiences may have played a role in molding the alternative viewpoint. And if we are writing to an audience of people who already agree with us, we might float such theories in passing as a means of strategizing on how to best convince skeptics of our shared convictions. But if we are writing to a broader audience, and our curiosity about the other side extends only to wondering why they cannot realize how obviously wrong they are, the inevitable result is that the disagreeing parties will continue to talk past one another.

This is not a recipe for the productive discourse I seek in the Opinions Section. Too many in our society seem unwilling to consider the possibility that an informed, intelligent, well-intentioned person could differ from their own opinion, with the unspoken implication being that anyone who dares dissent must not be informed, intelligent or well-intentioned. It is an arrogant and narrow-minded presumption in any environment, but it’s particularly unfortunate at a school like Hopkins in which one needs only walk around the corner to find a whole host of counterexamples.

The author concludes that the “the goal should not be to insult the doctrines making up their core values.” Perhaps this was not his goal, but he accomplished it nevertheless.

 Andrew Doris is a junior Political Science major from West Chester, PA. He is the Editor of the Opinions Section.

Sunday, February 16, 2014

Greg Mankiw, just deserts, the vilification of the 1%, income inequality, collective resource allocation, outsourcing and more!

I know I haven't blogged much recently, but I promise that's about to change. I'm working on big things! I'm actually writing piecemeal on 6 or 7 different blog entries at once, so be ready in case I hit you with them all in quick succession.

In the meantime, I am currently embroiled in an interesting Facebook debate on far reaching economic and philosophic issues, so I thought I'd post a transcript. I suspect I'll be doing more and more of this type of post in the future, for two reasons. First, pragmatically, I enter into lots of discussions on sites like Facebook, Reddit, (though thankfully not Twitter!), the JHU Newsletter and the comment chains of other political websites, both because I enjoy it and because I sometimes can't help myself. Once it's already written, it's very easy to paste here. Second, idealistically, I think readers will get a more complete and nuanced view of the issues if what they witness is a clash of ideas between people who disagree, instead of just a list of ideas from one dude's opinion. This is sort of in line with the new title of the blog - The Thought That Counts - which as I'll explain in future posts was not just a consequence of my no longer being an "Underage Thinker." But that can be explained another time: for now, just enjoy the crossfire.


Bayly - A fact that’s lost in the inequality debate: The top 1 percent of wage earners often accomplish extraordinary things, and at great risk.
N. Gregory Mankiw: professor of economics at Harvard - New York Times

http://www.nytimes.com/2014/02/16/business/yes-the-wealthy-can-be-deserving.html?hp&_r=0

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Charlie - no
no
no
no
no
no
no
no
http://www.demos.org/blog/just-deserts-do-1-percent-deserve-their-wealth
no
http://unlearningeconomics.wordpress.com/2013/06/15/mankiw-to-the-rescue-of-the-1/
also the idea that the 1% "accomplish things at great risk" is one of the most ludicrous things I have ever heard--they are literally the richest and most powerful people in the world! Nothing they do is at ANY personal risk because the consequences of failure actually can't actually hurt them! and even when those failures *do* happen at levels catastrophic levels to potentially harm them, as in the financial crisis in 2008, the government steps in and bails them out by funneling billions of dollars directly into their failed businesses AND personal bank accounts, effectively forcing taxpayers to pay insane multi-hundred million dollar bonuses to executives for *failing* to do their jobs!

Look, a soldier on a battlefield takes great risks. An uninsured single parent quitting their minimum wage job to pursue education or a better career takes great risks. But a CEO who bankrupts their company by committing the most widespread economic fraud in the history of the world because they have the implicit and explicit backing of a government that not only will it keep their COMPANY afloat when the bubble bursts, but will pay their exorbitant salaries as well, are not taking any fucking risks, and nor are they accomplishing anything other than enriching themselves at the expense of the society they are profiting off of through extortion, fraud, rents, and arbitrage.

It's bullshit, desert theory is bullshit, and a simple comparison between the US and nations with drastically less economic inequality (such as the more social democratic Scandinavian states) shows that by pretty much every metric the people of the latter are substantially better off.
+ Gregory Mankiw's economic "arguments" are so facile and distorted that it feels almost deliberate. Considering that he was chairman of the Council of Economic Advisers under George W Bush, the president who oversaw and helped engineer the housing bubble/crash that caused the financial crisis and subsequent Great Recession we are still attempting to recover from today, I would he say that on a scale of 1 to 10 Mankiw's credibility on the subject sits somewhere between "ridiculously wrong about everything" and "purposely spreading misinformation in order to maintain the status quo." It does not surprise me to see that students have walked out of his Harvard class in protest
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Andrew (me) - So wait, does Charlie like the 1%, or not?
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Bayly - I'm not necessarily endorsing his theory, but I think that vilifying the 1% collectively to such a degree is poor form and such generalizations are pretty silly. Not everyone in the 1% is a dishonest capitalist pig with the desire to rip others off.
And I think the guy who founds a Fortune 500 firm usually does so at sizable personal risk.
Don't punish someone just for being in the 1%, consider how they got there and what their ethical track record is. Let's calm down with the populist bashing of a pretty diverse group of very successful people.
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Charlie – posting an article and painfully inaccurate quote without further commentary generally implies endorsement, but ok

Look, I get it, some rich people have made their fortunes in ways that mean some people such as yourself believe they should be allowed by society to keep them. First of all, you might want to actually look at who is in the top 1%: (as well a the top 0.1%, which, as many have commented, might be more of what people are actually talking about when they refer to the 1%). I dunno if you actually read any of the articles I linked, but again, the amount of 1%ers who are in entertainment/sports/art is like, three, which is half that of the amount who are "not working/deceased" ie trust fund babies.

But regardless, you're missing the point: the whole 99% vs 1% thing is a just catchy phrase to point out that the staggering economic inequality is the root cause of many, if not most of the issues we currently face as a society, such as widespread unemployment, poverty, and drastically slowed economic growth. A tiny group of financial and corporate elite (again, maybe closer to the 0.1%) basically control the policy of the country. When 1% of the population controls 40% of the wealth, 10% control 75 of it, and political campaigns are run almost entirely by the funding of people with a lot of money, politicians are going to be beholden to that small segment. I mean, we have the fucking democratic president talking about how we need to social security because it won't be able to pay benefits in like 20 years, when simply lifting the payroll tax cap so that someone making seven billion dollars a year would pay more into social security, probably the most effective anti-poverty program in the country than someone making $108,000. But as it is currently politically impossible to do anything that causes the wealthy to make even slightly less money, we are fucking over the elderly poor by cutting the benefits they need to eat properly instead.

That inequality is only increasing--1% wealth share went up almost 5% in the last five year, precisely because they are able to keep shaping policy in ways that redistribute wealth up.

Like, I guess I *understand* "let's not just punish everyone who happens to be in the 1%" argument, but I don't understand is why anyone would take the time to actually make it. "Punish" them? How? By structuring society to give them 20 million dollars a year instead of 50? By *not* handing them a blank check from the government to systematically cripple the economy by outsourcing, scamming poor families on illegal robo-signed mortgages and eradicating the private wealth of a vast percentage of the country (who for the most part emphatically did *not* receive any sort of bailout and are now languishing in debt and unemployment and poverty instead)? Do you really think you are fighting for a more just society when you spend your energy defending the domination of a tiny group of people that essentially runs the world?

Let's make a deal: how 'bout, we can start worrying about whether we're being a little to mean to the richest and most powerful segment of society after we address the 20% of children who live in poverty in the supposed richest and most powerful nation on earth. I mean, the US just cut unemployment benefits for 1.3 million people. That's going to cost the economy 300,000 jobs and lower economic growth by .4% (http://www.governing.com/.../How-Unemployment-Benefit...), in addition to the massive amount of suffering its going to cause to those million. You know how much it would cost to continue benefits? 6 billion.

We could literally just take 6 billion dollars from the Koch Brothers and a million more people might be able to eat, and the Koch Brothers would STILL have tens of billions left over to buy politicians! Or we could adjust the capital gains tax so that Mitt Romney's wealth isn't taxed at a lower percentage than his secretary's, and use that for any number of social programs that could help alleviate poverty. Or do a billion other things. But we don't do that, because our society is captured by the interest of its most privileged few. That is what the 1% thing is about, and that is the status quo you are defending.
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PS: if you don't want to read all my rambling but are interested in the actual causes and effects of income inequality, the 1%, etc. I really highly recommend this ebook (its free!) by one of the few economists who actually predicted the economic crisis we're in (in 2002 even). Even just the intro/first chapter is really informative on the ways the US economy is manipulated by the rich to redistribute wealth upwards:
http://deanbaker.net:8080/books/the-end-of-loser-liberalism.htm

Or if you like pretty moving pictures, the documentary Inside Job is also a really good telling of the story of the financial crisis that sparked all this stuff and uses Peter Gabriel's Big Time as it's opening credit song which makes it automatically the best documentary ever (here is a sketchyish free version!)

https://vimeo.com/26224948
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Chris - Charlie's modus operandi- burying his opponents with a useless pedantic collection of articles and rambling until a thorough and reasonable response becomes impossible. Mankiw is widely considered a brilliant economist. There are certainly other brilliant economists who disagree with him, but that doesn't negate his argument. Many people in the 1% take extraordinary personal risk, and in doing so create industries and drive growth. Working hard in school. Risk. Acquiring human capital. Risk Starting a business from scratch and taking all the responsibility. Risk. Spending countless hours away from family to run a business. Risk and sacrifice. Vilifying people with populist anger for making choices that we as a society should reward is just silly and unproductive. There are certainly bad actors among the top. Just as there are bad actors among the bottom of the social rung. People who exploit welfare programs and state funds. But silly anti-liberal populism is ultimately destructive. And just honestly scary. Bullying and vilifying people is never a good, or democratic, method. I love when people with no economic background whatsoever, trained in a field and by professors with no expertise in the subject, suddenly make themselves out to be economic experts and moral crusaders. Side note- did you seriously use an article Demos to back up your point? It's spelled "desserts," by the way.

It's also interesting to note that Scandanavian countries (not to mention other places with high taxes and social spending) tend to rely on technology that is innovated abroad, particularly in the US and Britain. Which means that Americans take greater risks in developing new businesses and ideas, and other countries are able to free ride on this innovation.- By the way- outsourcing production and services is a collective good. Not only does it provide higher wage jobs in the developing world, but it ultimately allows the US economy to run more efficiently, driving higher wage jobs here.
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Bayly – Political campaign funding and tax laws are definitely quite problematic, true. And I do like Inside Job. I'd just rather not be a "little too mean" to anyone in this ganging-up fashion.
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Andrew (me) - The following three things are bullshit:

1. Bailouts
2. The notion of “just desserts”
3.  The far left’s vilifying caricature of the rich


Both Charlie and OWS seem to understand the first two. I wish they’d treat the third with a little more nuance and a little less vitriol.

Charlie’s first comment, refuting the idea that the 1% take risks, is a prime example. He says this idea is “ludicrous” and later “painfully inaccurate.” Why is this? Well, mostly because they only profit through “extortion, fraud, rents, and arbitrage” and then get bailed out. As much as we can agree the bailouts were nonsense, they don’t always happen, and certainly don’t happen in sectors which the government deems inessential or small enough to fail. Does anybody have any actual information (I’m genuinely curious) about reverse income mobility rates? Anecdotally I know many famous celebrities got rich and then lost everything or almost everything by being reckless and unwise (Michael Jackson, Burt Reynolds, Wayne Newton, famous boxers like Joe Louis, George Foreman, Mike Tyson, etc.). A quick Google search on the subject revealed historic examples of some of the wealthiest businessmen of their day who did the same (William Randolph Hearst, John Z. DeLorean, more in this article). I also know lottery winners are notorious for being poor again in remarkably short periods of time. Wealth management is a skill with which very, very many people are not endowed. It’d be interesting to see how prevalent it is statistically, but either way, it’s silly to just prematurely dismiss the idea that investment carries risk out of some emotional animosity towards rich investors, and I think it’s exactly that knee-jerk reaction that Bayly’s article was trying to diffuse.
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Charlie (posted very soon after mine, so more in response to Chris’ comment than my own): lol I'm sorry if citing sources and utilizing research done by other people somehow seems pedantic to you, but as you say, I have not a professional who has been trained in a field by professors with expertise in the subject and so have done no original research to draw from. I am totally open to reading what you have to say about my economic data/analysis, but it seems like you'd rather personally attack me for not having an economics degree, which seems rather silly.

Anyway, I'm sorry, maybe I am phrasing this badly. We're overcomplicating this. I am *not* saying that entrepreneurs don't take risks. People who "start a business from scratch" certainly take huge risks! But, like, someone who has to sell their home and has kids to support in order to start, say, a store that has to compete against Walmart takes a much greater risk than a multibillionaire starting another consulting firm. I mean.. just... is this that hard to understand? The consequences are of failure for that person are just completely different! And often the 1% don't even *have* any consequences for failure! Do you really, truly, honestly not see why this makes the millions of people who got no government help when the actions of the 1% caused them to lose their jobs, or had the value of their home destroyed, or get illegally foreclosed on, mad? Do you really think that they are being unreasonable? Like... really?

Andrew - To answer your question Charlie, I can certainly understand why people were mad about the bailouts, particularly those who suffered most severely from the crisis. But justified anger on one policy decision does not a reasonable economic platform make, and yes, I think much of what you've written here is unreasonable. Like, really.

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Charlie - Andrew Doris hey, I am genuinely curious, what part of what I am saying do you think is vilification or caricature or unreasonable? I'm really not trying to have that effect.

Again, when I, and, I think most people refer to the 1%, we are generally referring to the financial industry, heads of multinational corporations, managers, etc. and not Lebron James. The 99% vs 1% opposition is meant to be representative of how the corporate interests of a few have hijacked the democratic process in our country. Maybe the term is reductive, but it has clearly been the most effective way anyone has come up with to get the message out so far, and I don't think negative effects of some people getting a little more resentful of Robert Downey Jr. having a lot of money come close to outweighing the positive effects of a rhetorical device that has finally brought economic inequality into the national conversation.

And I'm not sure what you mean by wealth management, but I am pretty confident that it's not a skill the people who ran the financial industry into the ground in 2008 possess.

Andrew (me) - Glad you’re interested, and look forward to a productive discussion. I’ll make a list:

1. Your comment on Mankiw, suggesting that because he was a chief economic advisor on during the Bush years nothing he says has any credibility. No matter which theory you ascribe to about what actually caused the housing bubble crash (and you make yours clear), most agree those trends started before Bush took over. More importantly, tracing causation for various economic outcomes is extremely difficult, controversial, and complicated, such that the mere fact Mankiw was in an advisory position at a certain point of time is not really evidence he contributed to X outcome at that time, much less that his credibility is shot on every economic opinion he professes. Mankiw is controversial, but highly respected, and your comment gave the impression you just think all conservative minded economists are “ridiculously wrong about everything.”

2. You ask Baily “Do you really think you are fighting for a more just society when you spend your energy defending the domination of a tiny group of people that essentially runs the world?” Leaving aside that Bayly never asserted he was fighting for anything whatsoever, I think you’re terribly naïve if you think streaming the wealthy’s money through the government – a government you admit the wealthy control – is going to lessen the domination of those who run the world. I suppose this is a larger dispute than one Facebook thread’s comments can contain, but the whole idea that government is both the problem and the solution is overly optimistic in my mind.

3. The unemployment benefits thing. First, the stats you gave on the macro impact of that are highly disputed (here’s a reasonably unbiased article overviewing the debate on unemployment benefits and their impact on unemployment rates.) But more importantly, you lament the “massive amount of suffering it’s going to cause.” Even if we assume that most of the unemployed in this country are massively suffering, philosophically, is the failure to give money to a poor person really the same as “causing” their suffering? There are far more suffering people in Africa than there are in the US. Most of us don’t give much money to them. Are we morally culpable for their pain? Or is there a difference between inflicting injury and declining to alleviate it?

4. This one is the real essence of my objection to your posts on a moral level, so forgive me if I get a bit rhetorical in my rebuttal. You asks Bayly to justify why rich people “should be allowed by society” to keep their fortunes. Allowed by society? When exactly did the PERMISSION to be rich become subject to society’s approval? Why is wealth allocation a majoritarian prerogative? When did NOT taking what other people have become viewed as some benevolent favor? You later advocate “structuring society to give [the rich] 20 million dollars a year instead of 50.” Is it just me, or does this sound like a euphemism for stealing 30 million dollars from somebody?

Income is not something which society bequeaths upon you. The net quantity of money, wealth, and valuable things in the world is not just some pool of resources which fickle majorities within arbitrarily drawn borders get to divvy amongst themselves. If I build a hammock in my backyard, the townspeople of the nearby village do not get to observe this fact and say “Look! Comrade Doris has contributed a hammock to our society! How shall we allocate the time spent lying in it?” What property rights and individual liberty mean is that I get to tell those people to get lost: it’s my hammock, I built it, and I will be lying in it for so long as I so please.

People have a right to own property which is exclusively theirs, which is the product of their time and energies and which nobody has a claim to except them. They also have the right to exchange this property with others, and to amass more of it through a series of exchanges. These rights are not only naturally inherent in all human beings, but absolutely essential to a free and happy society. John Locke understood this. The framers understood this. Too many on the left do not.
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Charlie (posted while I was writing the above) - and Chris, sorry, I don't want to derail the central discussion here but.. what technologies being "piggybacked" are you talking about? How does outsourcing low wage jobs bring higher wage jobs into the US exactly? From what I have read, making non college-educated American workers in sectors like manufacturing compete with foreign workers willing to their jobs for a fraction of the cost drives those Americans wages down and is destroying their industries, while at the same various laws and trade agreements shield higher paid, college-educated professionals like doctors and lawyers from *their* foreign, cheaper counterparts, which forces those same lower wage working Americans to pay way above actual market price for their services. (detailed in the Baker book). So is there some other, separate benefit that outweighs this I am missing? It is really frustrating for me when you make these big statements without sharing any data or explanation as I actually would like to better understand how the economy works.
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Andrew (me) - I can also help answer your question about outsourcing. There is widespread consensus in the economic community that free trade between nations is beneficial to all involved. Outsourcing labor to countries which can do it more efficiently not only makes people in those countries better off (which has helped rise over a billion people out of poverty since 1970 in China alone), it also lowers prices on a vast and interconnected array of goods, making them more accessible to consumers and increasing standards of living here at home too. Two economists from George Mason wrote a letter not so long ago to those complaining about job outsourcing, which I think is relevant here:

http://cafehayek.com/2013/06/fair-trade.html

You're correct, however, that a wide array of government regulations and trade agreements get in the way of this process in the attempt to shield domestic workers from foreign competition, both in this country and others, and that this has pernicious effects on the poor in particular.
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Charlie - Andrew, I appreciate you taking the time to respond and I'll read and think over all the stuff you've linked. Def want to take some time away from this before writing more after this one.

I just want to address one thing. I am guessing you ascribe to some form of libertarianism? It's probably clear don't, which I think is the root of a major disagreement we have, so let me try to at least explain the main issue that keeps me skeptical of libertarianism, and how it effects this case (people not into political philosophy RUN AWAY NOW!!!!!) (seriously run).

Libertarians, IME, tend to rely on making these hidden normative claims about distributive institutions. For example, you say "I think you’re terribly naïve if you think streaming the wealthy’s money through the government ... is going to lessen the domination of those who run the world." But what kind of state *doesn't* direct the streams of money between people? Even the most minimal libertarian society is ultimately using the the threat of state violence to enforce a certain method of distributing wealth and resources. The entire purpose of a state is to create and facilitate distributive institutions. And I don't just mean something like welfare--everything from a tax that pays law enforcement salaries, to something as simple as property law, is constructed by the state to facilitate certain distributive outcomes.

You say:

"Is it just me, or does ['structuring society to give [the rich] 20 million dollars a year instead of 50.'] sound like a euphemism for stealing 30 million dollars from somebody?"

Well, actually, I believe the opposite. The claim that restructuring distribution so that RDJ gets 20 mil instead of 50, and instead hundreds thousands of others get 30 mil spread among them sounds like, uhh, for "stealing." 

I do not see how using the state to enforce a distribution of resources in which 30 currently homeless people are now allowed to live in 4 of John Kerry's five multimillion dollar houses is any more or less of a "theft" than using the state to enforce a distribution of resources in which those 30 people are homeless and John Kerry owns 5 multimillion dollar homes. They are simply *different* distributions (jeez sorry I keep using this word).

I am sure you disagree with most of this, but I figured it'd help you understand what I mean. I am getting most of it from John Rawls, Amartya Sen, and stuff like that. Ultimately, those schools of thought believe that the market is a state constructed government institution like any other. We clearly agree that as it stands, the state that governs that that market has been hijacked by the interests of a few. But the ability of those few (let's call them 1% for simplicity's sake, please?) to run the market is enabled by a state whose policies are set up so that they receive a massive share of wealth, which in turn enables them to affect policy so that they receive even MORE wealth, and gain MORE power, in a vicious cycle that leaves the vast majority of Americans with too small a share of the wealth to exercise any kind of proportional democratic control.

I don't see any way out of this other than altering distributive institutions so that at least some degree of wealth (and therefore political power) is transferred out of the hands of the 1% and into the hands of everyone else in a more equal way. The only way to reduce the dominance of a 1% who controls 40% of the countries wealth is to make it so they don't have 40% of the wealth anymore.

Anyway, this is why I am skeptical of the idea that weakening or eradicating the institutions and powers of the state that are able to mitigate against this increasingly unequal distribution of wealth and power will do anything other than remove the 99%'s (or like bottom two or three quintiles if you prefer) ability to reduce the dominance of the 1%. (Unless you are an anarchist or something and want to get rid of ALL state institutions, but I do not think anyone here is advocating that)

I know "majoritarian wealth allocation" doesn't exactly sound sexy, but given that a state of any size is just a big wealth allocating machine, isn't that basically what the ideal of representative democracy is? (libertarian, social democratic, or otherwise?)

(note: I am not necessarily endorsing that ideal but there is no way we want to get into that right now :P)
(also, I am just talking about relations within a state, not between states, which is why I'm not addressing the "other poor countries stuff" here)

EDIT: uhh TL;DR: you're using the distributive outcome of our current state as a normative baseline to compare against other possible outcomes, but this doesn't work because the whole project of a state to is to select those what kind of normative distribution you are going to have in the first place (haha this is the worst tl;dr ever sorry I have been up watching House of Cards for like 7 hours this might not be that well written)

You’re correct I’m libertarian.

You write:
“what kind of state *doesn't* direct the streams of money between people? Even the most minimal libertarian society is ultimately using the the threat of state violence to enforce a certain method of distributing wealth and resources. The entire purpose of a state is to create and facilitate distributive institutions. And I don't just mean something like welfare--everything from a tax that pays law enforcement salaries, to something as simple as property law, is constructed by the state to facilitate certain distributive outcomes.”

Here you conflate the purpose of a state with the happenstance effects of a state. Yes, all governments must use violence or the threat thereof. Yes, this may distribute resources in a way which is different from the way those resources were before the state took action. But that redistribution is not, and ought not be, the purpose of the state. Policemen are paid salaries with tax dollars collected from other people, and this redistributes money from other people to policemen. But that redistribution is not the purpose of policemen; the purpose of policemen is to protect people from murder and theft and rape and assault and similar crimes. Those things are immoral, and preventing them is morally imperative, which is why the government hires them. That hiring them “facilitates certain distributive outcomes” is merely coincidence.

I think the root of our dispute is that you think ownership is a social construct which can be freely, immediately and amorally altered at the whims of political institutions, whereas I think it’s a concrete natural right that predates government and which nobody, government affiliated or otherwise, has a right to violate once established. This is pretty standard for liberal v. libertarian philosophical debates. As such you are adopting a largely consequentialist moral framework, whereas I am adopting a largely deontological one. It shows most clearly in this quote:

“I do not see how using the state to enforce a distribution of resources in which [outcome A occurs] is any more or less of a "theft" than using the state to enforce a distribution of resources in which [outcome B occurs]. They are simply *different* distributions.”

The reason one is theft and one is not is that only one involves forcibly taking property from somebody who already had it, and the other does not. The reason you were unable to see this is that, as you said, you were comparing the morality of different distributions: different outcomes or consequences of the government’s action. This makes sense to a consequentialist. It does not to a deontologist. Deontologically, the moral outcome is determined by the actual action which was taken by the government, and here you use the same words – “enforce a distribution” – to refer to two very different enforcement acts. The first act involves protecting the property which somebody already owns and possesses and uses. This doesn’t require the use of force, unless somebody else tries to take it from the owner. The second involves kicking the owner off of his property and arbitrarily reassigning it to somebody new, which most certainly does require violence or the threat thereof.

Recall my hammock example: I built something, with my own two hands, and established ownership of it. I came up with the idea, gathered the materials, invested my time and energy and sweat into building the thing, and now I’m lying in it. The local villagers saw it, wanted it, and voted themselves the ability to use it instead of me. Whose hammock is it?

Progressives say the villagers own it, because majority wins and patriotism and poor people and kum-bay-yah. Libertarians say I own it, because rights, and if the villagers try to take if from me it is also my right to shoot them with an assault rifle until they get off my fucking lawn.

I understand that when we’re discussing ownership of, say, stocks, this principle seems less obvious, because the owned thing is abstracted and separated from the owner. But in our day to day lives, I think private ownership of things is pretty morally intuitive to us. When you go over to your friend’s house it is understood that the shit in his house is his shit. He’s been living there for a while, he uses that stuff every day, and he probably worked in order to buy it. If you broke one of his things, you’d feel bad about it – and not just because you broke the law. You’d feel bad even if it wasn’t illegal, because you’d realize you destroyed something of his.

Your TL;DR has two halves, and both are wrong. The first half describes what you think I’m doing: “you're using the distributive outcome of our current state as a normative baseline to compare against other possible outcomes…”. But I’m not comparing outcomes, I’m comparing actions. These actions take place in the present, and as such I am using present circumstances to evaluate their morality. You’re correct I’m using the distributive outcome as a baseline, but not as a normative baseline, just because that’s the way it is. Presently, John Kerry owns 5 mansions. This isn’t a barometer of his virtue of his inherent worth as a person, it’s just an amoral observation of the way things presently are, just as you can safely observe that your friend owns his house and the shit inside it.

The second half reads “…but this doesn't work because the whole project of a state to is to select those what kind of normative distribution you are going to have in the first place.” No. The distributions aren’t normative, they existed “in the first place” before the state came into the picture, and the “project of a state” ought to be to minimize the absolute moral wrong of initiating violent force on other people.

(updates will follow as comments are added)

Saturday, February 8, 2014

ASA Boycott of Israeli academics is unprincipled nonsense

(The following was an editorial I wrote for the JHU Newsletter. It was published in print on January 30th, 2014).

Late last year, the American Studies Association voted to boycott the scholarly works of Israeli academic institutions, by a margin of 66.05% in favor to 30.5% opposed. The ASA boycott was meant as a protest to the Israeli government’s treatment of Palestinians, but has drawn fierce backlash from many in the higher education community. In the aftermath of the decision, Johns Hopkins University was one of the first institutions to publicly denounce the boycott, releasing a public statement with their reasoning to Hopkins students via email just before Christmas. Since then, over 200 additional universities have publicly rejected the boycott as well.

The Editorial Board also rebukes the ASA for its misguided and unethical boycott, and commends the university for taking a stand against it. The political situation in Israel and Palestine is a complicated matter upon which Editorial Board members, like the members of the Hopkins community, have diverse and varied opinions. But those opinions are irrelevant to the principle that academic censorship ought never be enacted as punishment for the political policies of one’s government. Whatever offenses Israel has committed against the Palestinians will be in no way ameliorated by restricting Israeli intellectuals from exchanging their ideas and publishing their research.

Also irrelevant is the Hopkins Students for Justice in Palestine’s argument, in favor of the boycott, that "Israeli educational institutions are not innocent of their government's policies." The Board solemnly recalls that the United States government has also pursued policies in recent years that continue to draw outrage in the international community. In fact, some of these policies – most famously, drone warfare – are directly supported by research done at this very university; many argue Hopkins has some of the blood on its hands. But to hold each and every single professor affiliated with Johns Hopkins accountable for this research, and to ignore the mammoth quantity of scholarly work produced at JHU and all its affiliates, due solely to disagreement – however ardent – with these policies would be a ridiculous affront to the integrity of any serious publication.

One of the primary guiding principles of objective, professional, self-respecting academic journals is to publish works based on the academic merit of their content, without permitting the political opinions of those researchers authoring a study to influence their admittance decisions. Adopting a formal policy to silence those academics of a particular race, religion or political opinion would be viewed as unthinkable in almost any other setting. How much worse, then, is it for the ASA to adopt a policy silencing academics not based on their own behavior, but that of the nation in which they happen to reside, or the university for which they happen to work? As this week’s FIRE report displayed, Hopkins has its own free speech problems, but the Board is very pleased it’s on the right side of this free speech issue.

Friday, January 17, 2014

Why Gonzales v. Raich is wrongly decided (even if you tolerate Wickard)

Precedent Refresher #1: Wickard v. Filburn

Those familiar with constitutional law, and my opinions on it, are likely familiar with the Supreme Court case Wickard v. Filburn. As I’ve lamented previously, Wickard was a case from the 1940’s in which a packed and pressured New Deal era court pretended that growing wheat for personal consumption in one’s own backyard was constitutionally subject to federal regulation so long as it carried a “substantial effect” on interstate commerce (in the eyes of legislators…). Later memos from the justices’ deliberations reveal that the court decided their ruling on the case – letting FDR do whatever he wanted – months before it concocted a legal justification as to why. The implications on the direction of American governance were immense. Practically anything can be argued to have some remote impact on commerce, so for the next fifty years, Wickard gave the federal government essentially unlimited dominion over anything they wanted to regulate. The ruling is laughably wrong, terribly dangerous, and an ominous example of enfeebled judicial indifference to obvious constitutional duty in the face of political pressure. It should be overturned as soon as possible.

However, unless you’re a libertarian, an originalist or a constitutional conservative of some sort, you probably don’t want to hear that. An extremely expansive interpretation of the commerce clause is the only conceivable constitutional justification for many popular federal programs, and reversing Wickard would leave those programs with little defense against constitutional challenges (see footnote 1). For the sake of this article, let’s say you view Wickard as sacrosanct precedent that cannot be questioned.

The point of this post is to demonstrate why the Controlled Substances Act’s prohibition of private marijuana growth is still unconstitutional, even under the Wickard precedent, and therefore that the 2005 Supreme Court case of Gonzales v. Raich (which ruled the federal destruction of privately grown/consumed medicinal marijuana plants under the CSA constitutional, even in states which had legalized such growth) was wrongly decided.

Precedent Refresher 2: US v. Lopez

To understand why, you first need to be familiar with a third case: U.S. v. Lopez from 1995. Lopez was the first post-Wickard decision to strike down a federal statute as being beyond the scope of the commerce clause. The law in question was the Gun Free School Zones Act, which, true to its name, made it illegal to possess a gun within a certain distance of a school.

I suppose it could be argued (and I suppose this only because, when Lopez was presented to the court, it was argued) that the activity of bringing a gun within a certain distance of a school contributed to school violence in the aggregate, and thereby disrupted classroom activities. I suppose it could be further argued (as it was) that the resulting disruption and fear decreased the quality of education, which made students and graduates stupider, which made workers less qualified and THEREFORE could conceivably have had some undesirable effect on the quality or number of items travelling through interstate commerce (see footnote 2). And I suppose, if somebody with excellent composure practiced in front of a mirror for hours on end, that this argument could even be delivered with a straight face.

Mercifully, the Lopez court rejected this argument. The Court tiptoed around a direct confrontation with Wickard precedent by reaffirming the same doctrinal standard Wickard established: the regulated activity must have a “substantial economic effect” on interstate commerce. However, by claiming the right to determine how substantial that effect needed to be in order to satisfy commerce clause requirements – a privilege Wickard had left up to Congressional discretion – the Lopez court at long last sketched some outer limits on Congress’s previously unlimited commerce clause authority. And in the specific case of the Gun Free School Zones Act, the majority insisted that “[e]ven Wickard…involved economic activity in a way that the possession of a gun in a school zone does not.” They explained why:
[Section 922(q) of the Gun Free School Zone Act] is a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.

Here we see how the Court distinguished between the Agricultural Adjustment Act scrutinized in Wickard and the Gun Free School Zones Act scrutinized in Lopez. In Wickard, it was doubtful whether the activity Congress was directly regulating (namely, the growth of wheat) actually counted as interstate commerce itself, but there was little doubt that the intended consequence of the regulation (namely, the maintenance of wheat prices above a certain level) was commercial in nature. With that in mind, the Wickard court decided that so long as the desired objective of the law was that commerce be regulated, the constitution would permit virtually any means toward that end. The court distinguished between the nature of the activity being directly regulated, and the and intended “effects” of such regulation, asserting that only the latter needed to be commercial in nature for the regulation to be justifiable under the commerce clause.

But in the case of Lopez, the court ruled that not only was the regulated action (namely, possession of guns within a certain area) not commercial, but the intended effect of that action (namely, decreasing violence in schools), however desirable it may have been, also had no or minimal relation to commerce. Had the intended effect of the law been primarily commercial (say, to maintain the price of firearms above a certain level), and Congress could demonstrate some plausible connection between the law and that objective, perhaps the court would have reconsidered. But they couldn’t, because the commercial exchange of firearms themselves was clearly not what Congress had meant to regulate, and so the majority struck down the law.

Application to Gonzalez v. Raich

Let’s apply this reasoning to the Controlled Substances Act of 1971. It seems clear to me that the CSA is much more of a criminal statute than a commercial regulation. Its primary objective is to eliminate or minimize the use of drugs, which are viewed by many as a moral and social ill. This goal, whatever its incidental economic effects, was never truly commercial in nature. At its root, it was not the price of drugs, nor the minimal quality standards of drugs, nor the shipment of drugs across state lines that the government sought to regulate. Controlling these things was only an indirect means by which to accomplish Congress’ real goal: preventing the use and presence and very existence of drugs in the first place. Decreased use of drugs is not an intended effect on the commercial exchange of goods or services, as “inflating the price of wheat” might have been. It is instead a morally arbitrary assertion about the ethical desirability of certain behaviors for society at large, much in the same way criminalizing prostitution or gambling (traditionally handled at the state level) might be considered. It is therefore a decidedly non-commercial overreach into state affairs.

Of course, like prostitution and gambling, drug use might have aggregate impacts on commerce by coincidence; as a humorous example, let us imagine marijuana usage doubles the demand for Cheetos and White Castle. But it's clear regulating that commerce was not the intent of Congress, and Lopez tells us the intent matters (see footnote 3). Congress did not view the CSA as a means by which to lower demand for snack foods. Imprisoning marijuana users is not a vehicle by which to deliver desired changes to the market for anything – it is the goal itself, and that goal is fundamentally a police power.

By the logic used in Raich, one could imagine Congress using the commerce power to justify the federal prohibition of prostitution. Yes, prostitution may have aggregate impacts on commerce; let’s imagine that it decreases the demand for porn, and increases the demand for condoms and lube. But could Congress really pretend that it views the prohibition of prostitution merely as a means to contain the price of condoms for the non-prostitute using public? Or would it be blatantly obvious that Congress was abusing its commerce-clause power for essentially non-commercial moral imperialism, just so it could overrule local and state laws on the matter (perhaps in Nevada) and arrest people engaged in activities it deemed immoral?

Rebutting the majority opinions of Gonzales v. Raich

Unfortunately, the Raich court narrowly disagreed with me. The majority opined:
“Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities. The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product…”
But not everything which is economic is necessarily commercial (consumption, for example, falls within the former but not the latter), and regulating the “lucrative interstate market” for drugs is not what the CSA primarily means to do. Prohibiting the growth and consumption of X is not, in this instance, a means of regulating the exchange of X. It is the end itself. It would be more accurate to describe the CSA in reverse: it regulates the exchange of X merely as a means of prohibiting X’s consumption.

Now, so long as the CSA restricts itself to regulating the actual exchange of drugs, that’s okay: a direct regulation of commerce itself, which even pre-Wickard courts might tolerate. But in the case of Gonzales v. Raich, it was attempting to regulate the private, home growth of medicinal marijuana for personal use by very sick patients who never planned to exchange it with anyone. This was a non-commercial, intrastate activity. It’s true that Wickard tolerated a federal restriction on an non-commercial, intrastate activity – but only to bring about a certain commercial result on a national market. But in Raich, the regulation was enforced on an non-commercial, intrastate activity for the sake of restricting that activity itself, with the impacts on the national market being wholly coincidental. The CSA was not enforced on Mrs. Raich with an eye towards bringing about effects on commerce in the aggregate, but rather with an eye towards restricting her private behavior. The Wickard equivalent is telling Roscoe Filburn that he can’t grow wheat on his own land, not because Congress cares about the price of wheat for the whole nation and fears the wheat he grows might impact that price, but because it just doesn’t want him to eat wheat! “It has too much gluten and it’s bad for you, so stop growing it!”

Markets are a forum for exchange (aka, commerce), and Congress never cared about exchange. Congress doesn’t care about the commercial impact of drugs, or the price of drugs, or their quality, or their shipment methods. They care only about restricting their proliferation and use, and that is a non-commercial, decidedly moralistic objective that the framers clearly felt should be handled at the state level.

The next argument of the majority was meant to back conservatives like Thomas into a corner, and in so doing it was accidentally correct. They opine:
“If, as the principle dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the “outer limits’ of Congress’ Commerce Clause authority,”…it must also be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is also beyond those “outer limits”, whether or not a State elects to authorize or even regulate such use.”
Amen!

The realization that much of the Supreme Court is perfectly happy with ever expanding federal power is softened by the few remaining holdouts for originalism or something near it. That’s why it stings me to read Antonin Scalia’s concurring opinion on Raich. He writes:
“In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this…Congress’s authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce.”

Again, I find myself asking if that is actually their end? Is their end to eradicate pot from interstate commerce, or just to eliminate its use whether or not it's ever bought or sold? Is it really the market they seek to extinguish? If nobody used drugs, they merely bought and sold them like baseball cards or fossils, as a neat collector’s item to hold on to and look at, would Congress care? Or is the only purpose of extinguishing the market for drugs to extinguish the use of drugs, due to moral or public health issues that have traditionally been the concern of the state? Isn’t the market impact merely a convenient excuse to encroach upon the state’s traditional role in deciding those matters? And if it is, isn’t that unsettling to you, Scalia? Isn’t that problematic to the notion that the commerce clause has limits, and that it’s not supposed to be a catch all for Congress to do whatever it wants, whether or not what it wants is geared towards commercial matters, and whether or not some states might prefer to handle those non-commercial matters differently? When Elena Kagan says she doesn’t give a shit about that, I expect it, but when Scalia says it I feel betrayed. I fear he allowed his social conservatism to silence his otherwise laudable sensitivity to federalist concerns, which are very real in this case.

Thankfully, the dissenters saw some reason. O’Connor observed that:
“The States’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens….By permitting Congress to overrule the state on such matters, “the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause – nestling questionable assertions of its authority into comprehensive regulatory schemes – rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez and United States v. Morrison. Accordingly I dissent.”

Likewise, Clarence Thomas opined:
“Here, Congress has encroached on States’ traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens….the Government’s rationale – that it may regulate the production or possession of any commodity for which there is an interstate market – threatens to remove the remaining vestiges of States’ traditional police powers.”

Conclusion:
Both dissenting justices pointed out the distinction between fundamentally commercial (and thus federal), and fundamentally criminal (and thus state level) realms. Of course, there is overlap between these two realms; I suppose any criminal act, in the aggregate, could be said to levy a “substantial effect” on interstate commerce. But if our government is to have any pretense of legitimacy, it cannot continue convincing itself that the few and enumerated powers the people consented to under the constitution encompass anything legislators so desire. The best way to undo this dangerous and nonsensical trend is to unravel the decades of bad precedent that render our actual government unrecognizably different from the very document it’s allegedly based on. Ideally, that would mean repealing Wickard v. Filburn altogether. In the meantime, the next best way to distinguish between the commercial and the criminal, and to place any meaningful limit on the commerce clause, is to embrace the test I’ve outlined above: examine whether the legislation was truly and primarily intended as a commercial regulation.

Footnotes:

1.     Of course, to people who actually care about the principles of constitutional law, this is looking at things exactly backwards. The entire premise of limited government requires that we interpret the constitution’s boundaries first, and then apply them to legislative proposals on a case by case basis, rather than deciding which legislation we want and then retroactively adopting whichever interpretation accommodates them.
2.     If the fact that this argument was seriously presented to the highest court in the land by an educated person – and furthermore, thanks to 50 years of precedent, WAS EXPECTED TO WIN – does not reveal to you the fallacy of Wickard v. Filburn and the loosey-goosey theory of constitutional interpretation it represents, then I’m convinced there is no hope for you as an even partially objective legal scholar. I encourage such people to stop reading and pursue another hobby – perhaps knitting, or something else in which the consequences of failing to grasp the essential principles of said endeavor does not endanger the safety and liberty of everyone around you.

3.     So too, for that matter, does a more recent case in an entirely different context: US v. Windsor. The Defense of Marriage Act was not an explicit discrimination against homosexuals, in the sense that it treated them any differently from anyone else: indeed, marriage rights were technically the same for heterosexual individuals as they were for homosexuals. What made DOMA unjust, Kennedy’s majority so eloquently explained, was the malicious and discriminatory intent of those who passed the law: that gays would not marry, or would have great trouble and emotional distress marrying. It was the principle intention of the law, rather than the action taken by it, which had to be assessed on constitutional grounds of equal protection. But if the Court can investigate Congress’s intent to determine if a law was meant to be discriminatory, why can’t it investigate Congress’ intent to determine if a regulation was truly designed as a commercial regulation?

Sunday, November 3, 2013

Do originalists contradict themselves on the 2nd and 14th amendments?

A few weeks ago, I found an article which accuses Supreme Court Justice Antonin Scalia (and, by implication, originalism in general) of hypocrisy. The article is well written, civil, interesting, and worth a read. The author argues, among other things, that an ideologically consistent originalist view would have to either permit restrictions on any handguns which didn’t actually exist at the time the second amendment has passed, or permit the definition of “citizen” and “person” to evolve from the original 14th amendment understanding. He writes:

“if our understanding of “arms” can evolve (something Scalia clearly sees as acceptable, as he does about instruments for use in application of the death penalty—also in the interview this morning) then I do not see why our understanding of “citizen” and “persons” cannot evolve. And if they cannot, where is the justification for our understanding of “arms” to change?”

The trouble with this is that author uses the phrase “understanding of the word _____” to conflate two very different things: the parameters of a categorical description, and the specific instantiations which fall within those parameters. The definition of a word lays out the parameters, while anything which falls within those parameters is said to be an example of that word.

The parameters of the word “fan”, for instance, may be understood as any machine designed to cool something off, and examples may include a ceiling fan, handheld fan, computer fan, industrial fan, etc. New types of machines may be invented, and based on their design and purpose, they may or may not classify as fans. But the original parameters of the word fan have not changed.

So it is with guns. The word “arms” is a categorical description, not a reference to specific items that existed in 1791. Originalists like Scalia look to the text of the constitution, and the arguments for its passage, to gain insight onto what the parameters of that word were understood to be. In this case, Scalia argues the word “arms” was meant to mean any handheld weapon which could be "born". 

Evolving weapons technologies do not change the definition of arms any more than evolving business technologies change the definition of commerce. It may change the application of that definition by creating new instantiations of commerce which fall within the previously accepted definition. But the definition itself remains fixed. Technological innovations can produce new inventions which nevertheless fall within the same, unmoving parameters of what “arms” are and were commonly understood to mean.

This is very different from widening those parameters to include things which did in fact exist at the time, but were never meant to be encompassed by the words the framers employed. And that is what Scalia argues is happening when people try to stretch the 14th amendment to protect people whom, at the time of the framing, were understood to fall outside the field of people protected by it. Now, I’m not sure I agree with Scalia about the intent of the original wording, and maybe my interpretation of the 14th amendment is more expansive than his. But whoever’s right about that issue, it’s a separate issue from the boundaries of the word arms, so Scalia’s not contradicting himself.