The Government Killed My Jet Pack

An article on CNN.com seeks to address Why our 'amazing' science fiction future fizzled. After seeing a dazzling potential future at the '64 World's Fair,

Forty years later, we're still waiting for those congestion-free highways -- along with the jet pack, the paperless office and all those "Star Trek"-like gadgets that were supposed to make 21st-century life so easy.

The author, John Blake, makes some interesting observations, such as, well, some of those futuristic gadgets are already here. He mentions things like jet packs and flying cars that already exist but aren't commercially viable, but I contend that PCs and cell phones and the Internet would all qualify.

Still, he points to the fact that our highways are still jammed, and that people are becoming disillusioned with what technology can promise the future. He notes dystopian movies like Blade Runner where "technology creates more problems than it solves," and Battlestar Galactica where "human beings abandon their faith in technology's ability to improve the future. They destroy their fancy machines and start again as simple hunter-gatherers."

I don't think our culture's disillusionment is coming from a loss of "faith" in technology to "save us" but instead the wholesale abandonment of reason and the ever-increasing power of the state over our lives. The loss of reason and the increase of the state go hand in hand. We are losing our confidence in our individual ability to command our own lives, and instead are turning to government to "save us." Government, in turn, is crushing the productive output of what is left of capitalism.

Let's looks at traffic congestion. The article is right. It shouldn't be an issue. But rather than a technological problem, it is a problem of a lack of property rights and liberty. A traffic jam is a concrete example of a shortage. Demand for driving room outpaces supply. And why is this the case?

Traffic jams are a direct result of a government monopoly of the roadways. If capitalists (road builders, auto makers, etc.) were left free to find solutions to the problems, traffic jams would disappear. Technology alone wouldn't help. Imagine adding flying cars to the current mix... in our mixed economy, they'd have to be regulated of course--EVERYTHING has to be regulated, right? Or else we're left with soulless profiteers preying upon the weak-minded and everything goes to hell!---which means the FAA would get involved. There's already a shortage of air traffic controllers. Need I go on with this example? Same goes with jet packs. They would be personal transportation, but what would you want to bet that the government would rule that people would have to land and take off in special "jet pack ports?" Who will want to drive their jet pack to a government-approved launch pad, fly to their destination, and then be stuck at the landing pad with a jet pack and no way to get where they're going (without added expense)? Not to mention all the licensing, government mandated training, excise taxes, etc., all stifling the market before it even exists.

My point in all of this is that the reason we aren't witnessing amazing technological change in all areas of life is because of government interference. The computer world exploded and continues to (for now) because regulators haven't quite caught up with it yet. When they do, it will slow greatly.

Technology isn't the problem and it isn't the solution. It's not the cause, but the effect. Blake treats technology as some sort of disembodied phenomenon, apart from the humans who create it. But to do so ignores that technology doesn't just appear... it must be created by individual minds, left free to think and create.

The real cause of human progress -- whether embodied in technological advances or otherwise -- is freedom. Freedom to innovate, to produce, to solve problems and make astounding amounts of money doing it. When the country abandons its infatuation with state control and the government is confined to protecting individual rights, we'll see the kinds of mind-blowing changes the optimistic futurists of 100 years ago dreamed of.

Bait and Switch? Sunstein for Sotomayor?

As I contemplated the growing mobilization of conservative opposition to Sonia Sotomayor's Supreme Court nomination, I had an interesting and worrisome thought: what if Sotomayor was a sacrificial lamb of the Obama administration, set out to satiate the GOP wolves, allowing someone Obama really wants to be nominated in the aftermath? What if this was all a ruse to get Cass Sunstein onto the court?

Because Obama will likely have at least one more nomination to make in his time in office, I didn't give much credence to my conspiracy theory. As I said a month ago,

With the imminent departure of Souter from the Supreme Court, Sunstein is also being discussed as a potential candidate. He has for months been my dark horse pick for one of Obama's nominations to the Court, but I don't think it will be now. To satisfy the race- and gender-based factions of his party, I predict Obama will pick a woman or a non-white first. Because of course the skin color or gender of a person means they will be more fair minded or some such nonsense.

However, it turns out I'm not the only one with sneaking suspicions about motives and aims of the current administration. Someone under the pen name M. Abramowitz at a blog I'd never heard of called The New Majority (a conservative blog edited by David Frum, trying to "fix" the Republican party with a toxic mix of religion and environmentalism, with a little limited government thrown in) wrote a post about the very bait and switch I was thinking of. Abramowitz comes up with some interesting ideas to ponder, suggesting that a "multi-actor repeated game" could describe what is going on.

First, by emphasizing empathy and by so conscientiously touting the judge’s biography, the President has assured the terms of the debate and radicalized his critics. ... The President has thus created a “heads I win, tails you lose,” scenario. Sotomayor will either be confirmed over the protests of those who diminish the relevance of her personal history, but who are heard by the masses as diminishing the history itself. Or she will be defeated or withdrawn, ...leaving the President the opportunity to choose perhaps a less biographically-impressive but more intellectually-formidable nominee.

This points to why the Sotomayor nomination makes sense in the context of a repeated game. Chances are the President will face two or three vacancies during his first term. And let’s say that he really wanted to nominate to the Court his close friend and now head of the Office of Information Affairs, Cass Sunstein... What would be the best strategy to get Sunstein on the court?

Would it be best to nominate him first, when interest groups, ginned up to oppose the first person down the pike, would comb Sunstein’s scholarly works for evidence of immoderation and turn the already hot Washington summer into a referendum on jurisprudence? Or would it be better for Obama to make a “biography pick” first, expose himself to the charge that he’s only interested in identity politics on the Court, and answer those critics when the second vacancy appears by nominating an ivory tower Jewish male? Resistance will nonetheless be fierce, but opponents will be in a weaker position for having shifted strategies, whereas the President will be in a stronger position by appearing to have addressed the previous concerns. [bold added]

I hope you'll forgive the long quotation, but I cut out as much as possible while leaving the core of the arguments in tact. This is a compelling line of reasoning, and not only apparently fits in with game theory -- of which I know little -- but also with the manipulative nudge and Alinsky-type strategies employed by the left.

Again, I have difficultly believing such Machiavellian tactics are actually being used, though I admit that I could be suffering from naivete. Still, Abramowitz's conclusion is worth noting whether or not this is all a grand conspiracy, for even if it isn't, the scenario could certainly fall out this way if the Republican attack dogs follow this trail:

Considering this context, the optimal strategy for conservatives most concerned about the eventual appointment of a Sunstein-like figure to the Court (and his likely far greater influence on the law than Judge Sotomayor) would be to avoid any debate about the relevance of her biography and keep their focus on competence, judicial experience (of which Sunstein has none) and jurisprudence. Doing so may be impossible in the current environment, for playing identity-politics, both on the Right and the Left, is a heck of a lot easier than debating judicial philosophy. [bold and italics added]

Now, taking a step back from this particular case, I'd like to point out that I find this perspective refreshing, especially from a conservative blog, because the author seems to recognize the intellectual bankruptcy of the right; namely that they likely won't be able to avoid the "he said, she said" of identity politics.

But his call to focus on jurisprudence begs the question: what is good jurisprudence? Does he fall into the Originalism camp with Scalia? This seems to be what conservatives tend towards, but as demonstrated by Tara Smith (see my two previous posts), the lure of Originalism is ultimately undercut by its lack of objectivity. As Smith wrote in the conclusion to her paper in a Duke law journal:

The appeal of Originalism rests primarily in its presenting itself as the champion of objectivity. It retains this appeal, despite incisive criticisms, because the alternatives seem wobbly in comparison, distinctly lacking in objectivity. And here, appearances are not deceiving: Each of them offers merely a different form of subjectivism. Originalism seems to provide the only refuge. Its professed objectivity is illusory, however. For Originalism mistakes the intrinsic for the objective. And because objective meaning does not, in fact, simply inhere within words, Originalism collapses into subjectivism, the very thing it means to overcome.

Obviously, the full and exact nature of objectivity is a huge subject in itself. I hope that my proposal that the reining theories of judicial interpretation offer two ends of a false dichotomy will stimulate further examination of objectivity in this context. Each side of the debate has the story partially right, detecting something that is defective in the other. ... Originalism has not died, in other words, because both sides labor under erroneous conceptions of objectivity. As long as we lack an accurate understanding of what the objective application of laws is, we cannot expect to have it -- which means that the rule of law and the protections it affords are precarious. Even well-intended interpreters trying to uphold the rule of law will not be in a position to do so.

I hope Smith continues this work to flesh out a new school of objective thought in Constitutional interpretation, or that other scholars take up her call for "further examination of objectivity in this context." Until then, "even well-intended" people like M. Abramowitz, in calling for a focus on competence and jurisprudence, will be on shaky and ultimately unsound footing, open to attacks from all sides.

Kos Proves Smith's Point

As if responding directly to the commentary by Tara Smith I quoted in my last post, the folks at Daily Kos dredge up all the same old fallacious arguments about judicial activism, saying it's not the liberals who are the worst, but instead it's the conservatives. This is the perfect example of what Smith meant when she wrote:

Each camp has its list of outrageous court decisions, which it denounces as deliberate distortions of law, cavalierly imposed by “judicial activists.” That epithet has become little more than a verbal grenade, hurled, too often, simply to impugn any decision with which one disagrees.

To support their view of the playground politics of the Court, they quote two different surveys by legal scholars that seem to show that the more conservative justices are consistently "more activist." One of the surveys, in fact, comes from Cass Sunstein.

In a July of 2008 piece, Sunstein hands out his cheekily-named "judicial partisanship awards" by surveying "well over 20,000" judicial decisions to find out which justices were the most "activist." It is important to note that Sunstein's definition of activism is partisanship, and more importantly, voting to strike down regulations proposed by the legislature or executive.

With this measure, he found that the arch-conservative Justice Scalia was the "most activist."

Whether or not Scalia's particular decisions were the right ones, this metric highlights two important points made by Smith. She noted that activism on the bench, in and of itself, is not a negative, and the opposite of judicial overreaching is not the complete absence of action. She said, "Judges are not to be passive spectators; adjudication is an activity, calling for the exercise of careful, objective judgment."

And in the context of the vague, absurd, rights-violating laws passed by the legislative branch, and the vague, absurd, rights-violating regulations enacted by the executive -- most of which, from both branches, serve to abridge our liberties -- the court is put in an untenable position, even assuming for the sake of argument that it was made up of truly objective thinkers. As Smith wrote, "Much of the responsibility for the eventual court rulings that often strike us as judicial overreaching, in other words, actually stems from those who have irresponsibly crafted our laws and left courts in a 'damned if they do, damned if they don’t' position."

I think that if I were on the Court, I'd be voting to strike down most of the things that passed my bench too, using individual rights as my standard. Would this be overreaching, or the only rational course of action? As I said previously, I'm not defending Scalia himself, as I haven't followed his career closely enough to say one way or the other. I simply use this example to show that having a penchant for striking down laws in this environment is not necessarily a sign of "Justices Gone Wild."

In the end, DailyKos and Cass Sunstein unintentionally prove Smith's points, that an active (but objective) judiciary is desirable, especially when the dross created by the other two branches is so pervasive.

-------------------------

For a detailed look at the dominant schools of though in Constitutional interpretation, see Tara Smith's paper in the Duke Journal of Constitutional Law & Public Policy:

"WHY ORIGINALISM WON'T DIE -- COMMON MISTAKES IN COMPETING THEORIES OF JUDICIAL INTERPRETATION"

Supreme Court Roundup

Obama's criteria

As quoted by Walter Williams and referred to in many articles and blog posts, Obama's stated criteria for finding a Supreme Court justice are as follows:

"We need somebody who's got the heart to recognize -- the empathy to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."

Williams compares the job of being a justice to that of a football referee, and it's an interesting comparison:

The Pittsburgh Steelers have won six Super Bowl titles... By contrast, the Arizona Cardinals' last championship victory was in 1947 when they were based in Chicago. In anyone's book, this is a gross disparity. Should the referees have the empathy to understand what it's like to be a perennial loser and what would you think of a referee whose decisions were guided by his empathy? Suppose a referee, in the name of compensatory justice, stringently applied pass interference or roughing the passer violations against the Steelers and less stringently against the Cardinals.

Is this an overly simplistic view? It sounds good on the surface, but as we'll see below, it may not be the most apt analogy.

WSJ on "The 'Empathy' Nominee

An editorial in the Wall St. Journal today examines Obama's pick, Sonia Sotomayor, saying he "appears to have found the ideal match for his view that personal experience and cultural identity are the better part of judicial wisdom. This isn't a jurisprudence that the Founders would recognize, but it is the creative view that has dominated the law schools since the 1970s and from which both the President and Judge Sotomayor emerged."

Later, the editorial says,

In a speech .. in 2002, Judge Sotomayor offered her own interpretation of this jurisprudence. "Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases," she declared. "I am . . . not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

...[E]ven more than her opinions, these words are a guide to Ms. Sotomayor's likely behavior on the High Court. She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.

But these men saw themselves as judges first and ethnic representatives second. [bold added]

Sotomayor explicitly rejects objectivity as possible or even desirable, and instead embraces, as WSJ calls it, "identity politics," which is simply another way to say multicultural subjectivity. WSJ presents a man like Scalia -- though he is no staunch defender of individual liberty -- as a "judge first," meaning he strives for some sort of objectivity rather than using his ethnic status as a guide to knowledge. In other words, reason before collective tribalism. Whether or not this is true for Scalia, the principle is correct.

What ARE the Right Criteria?

Tom Bowden at Voices for Reason sums up the issues quite well:

The Supreme Court has a solemn duty to interpret and apply the Constitution. That is an intellectual task requiring ruthless objectivity—which, contrary to Judge Sotomayor, is not an illusory “aspiration” but a requirement of justice. A conscientious judge strives to banish all emotional influences from the decision-making process. But here is Judge Sotomayor declaring herself helpless to resist—indeed, even welcoming—the influence of personal intuitions that cannot be grasped or shared by persons of another gender or ethnicity.

Tara Smith, writing a commentary in the Houston Chronicle, fleshes this out by analyzing some of the clichés that are commonly used to attack sitting or potential justices. First, she addresses "judicial activism," which is thrown around from both sides of the aisle to attack any position different than one's own. She says,

While individual justices do occasionally step beyond their assigned role, it is important to recognize that activity per se is not the problem. For the alternative to the unjustified imposition of a judge’s personal values or policy preferences is not no activity on his part. Judges are not to be passive spectators; adjudication is an activity, calling for the exercise of careful, objective judgment. [bold added]

Smith then addresses the example of justice-as-referee. She says,

While this analogy captures part of the truth, it is incomplete and consequently misleading.

In sports, umpires do not have a say in what the rules are. They are given a complete set of rules at the start of each season and charged to call games accordingly. In the U.S. legal system, by contrast, courts are presented not only with the Constitution (the fundamental rules of the game, as it were), but with specific laws made by legislatures and by agencies of the executive branch (not to mention the court’s own precedents). The court’s responsibility is precisely to determine whether all of these purported laws are compatible with the Constitution, which is our ultimate legal standard. In other words, its role is to determine whether these are, in fact, valid law. In this specific sense, therefore, unlike the umpire in Fenway Park, justices do have a say in what the laws are. [bold added]

Still, it seems like many Supreme Court decisions are as partisan and subjective as the laws they overturn or uphold. This is when members of the losing side decry "legislating from the bench!" But Smith raises the point of -- in my words -- the principle of garbage in, garbage out. She writes,

Consider some of the laws that courts are called upon to decipher...: prohibitions of “unfair” methods of competition, of “predatory” pricing,... and of a “hostile or offensive work environment;” ...the FCC’s ban on “indecency” on the airwaves in service to the “public interest” (which portions of the public? and which of their interests?). When the laws that judges are handed are written in such subjective, pliable language, is it any wonder that we find fault with some of their rulings?

Legislators and executives, obsessed with the next election, are often so intent on appeasing all constituencies that they deliberately adopt evasive, elastic language, essentially punting tough choices in lawmaking to the courts (“Let the courts sort it out”). Much of the responsibility for the eventual court rulings that often strike us as judicial overreaching, in other words, actually stems from those who have irresponsibly crafted our laws and left courts in a “damned if they do, damned if they don’t” position. [bold added]

Smith ends by reminding us that a "just legal system demands objectivity in the substance of law as much as in the application of laws."

Ultimately, the right criteria for a nominee to the Supreme Court are (apart from native intelligence and the necessary education) objectivity, and a solemn respect for individual rights, the Constitution, and the rule of law. It's really pretty simple. That we are now presented with a potential justice who thinks her "Latina soul" is a better guide for jurisprudence than wisdom and reason, is merely a symptom of the wider abandonment of reason in our culture.

A Brass Top

In the last year, basically since I started blogging, I have been prone to reading at least two books at the same time. I was never like this before. I didn't notice the phenomenon until I read a post by LB, in which she noted that her husband always did it, but it was a new thing for her. She said, and I agree completely:

Rather than confusing me, as I thought it most definitely would, the multiple book strategy gives me two distinct advantages to my previously one-book-to-finish paradigm: 1) I can prioritize my reading time, and 2) I always have something I want to read on hand.

With that, I've been reading a history book about the framers of the Constitution, but at the same time I've started up the Sparrowhawk series again. I already finished Book One: Jack Frake, and just started on Book Two: Hugh Kenrick.

Over the past year, I have struck up a friendship with Ed Cline, the author of these amazing works, and if there is one value I have gained from starting this blog, this friendship is it. It's an interesting experience to read a work of literature written by someone you know. My favorite authors have traditionally been distant, and inaccessible either by death or by immense fame. I would have thought that reading a book by someone I know would be strange, in that I wouldn't be able to take it seriously.

Perhaps it's all in the quality of the art, but I don't think it will matter how many times I read Sparrowhawk. I'm immediately transported to the world just a few decades before the Revolution as soon as I crack open one of the volumes.

Book Two: Hugh Kenrick tells of the beginning of one of the two heroes of the series, a young noble who rises above the fawning pettiness and toxic arrogance of class so typical of aristocracy, and eventually becomes one worthy of title of Independent Man. It opens with Hugh, six years old, delighting in the workings of an exquisite brass top given him by his father, and how he fights an older noble's son who tries to take it from him by "right." The book follows as he grows and matures.  At the age of nine, Hugh prepares to meet the son of the king, the Duke of Cumberland, hero of many battles, as he comes to tour the Kenrick's estate.

Hugh and everyone else is schooled in the ways of expected niceties and protocol, and Hugh looks forward to meeting someone worthy of the title "hero." But he sees the vacant eyes, easy cruelty, and fatness of the Duke as he walks up the steps, and in his disgust and disappointment, forgets to bow. His evil uncle, the Earl of Danvers, gives him an ultimatim: apologize to "restore the family honor" or be whipped until bloodied and exiled for a year. 9-year-old Hugh chooses to be whipped and exiled rather than betray his principles.

Months later, when the family has individual portraits commissioned, the painter is taken aback by a quality in Hugh he can't define and that makes him uncomfortable. Hugh chooses a specific setting with a particular composition for the portrait, and Westcott, the artist, asks of the significance of the brass top Hugh wants included:

"Why do you wish to include the top, milord?" He paused. "I ask this so that I may better understand its place in the portrait."

"Because, when it is set in motion, it stands by its own rules. Then it is not an inert thing, like a tree or a rock."

Westcott had smiled. "Ah! But your hand must set it in motion, milord. So it cannot be as independent as you say."

"It is the symbol of a soul, Mr. Westcott. Or of a mind. Every man has one, and it is like a top, fashioned by himself. He must keep it upright, by his own hand. He must exert the effort. Otherwise it will topple, and lay inert and useless within himself, not a living thing at all. Or another hand may set it in motion, and then he will have no say in its motion or course." [bold added]

May we all mind our tops, keeping them upright, by our own hand.

That Just About Says It All

In an opinion piece in today's Wall St. Journal, the headline and sub-head succinctly mirror my thoughts on the topic of Obama's new CAFE standards for the auto industry, as I heard about it for the first time on NPR last night.

Car Crazy
Bankrupt companies making 39 mpg autos. Are we nuts?

The rest of the piece veers around a bit, making some good points and missing some essentials about why this is both economically and morally rotten, but the last paragraph is on target about the absurdity of the situation:

One thing seems certain by 2016: Taxpayers will be paying Detroit to make the cars Americans don't want, and then they will pay again either through (trust us) a gas tax or with a purchase subsidy. Even the French must think we're nuts.

Leave it to the Collectivist-in-Charge to out-French the French.

Miracle at Philadelphia: QOTD 3

Part 3 in a series of quotations from "Miracle At Philadelphia: The Story of the Constitutional Convention May - September 1787" by Catherine Drinker Bowen.

In my last post on the topic, I alluded to the fact that the members of the Convention relied on popularly held ideas that were simply accepted as obvious and thus needed no explicit statement. Of such concepts as life, liberty, and property, and their nature as inextricably tied together, Bowen said "such declarations were already cemented with their blood."

Later, on page 71, she relates the following:

The Continental Congress, composing its first Declaration and Resolves (1774), had said the colonists were entitled to "life, liberty and property." In the Declaration of Independence, Jefferson altered it to read, "life, liberty and the pursuit of happiness." If nobody knew exactly what that meant, they did not need to know. They felt it, breathed it in the Revolutionary air. To pursue happiness signified that a man could rise in the world according to his abilities and his industry. [bold added]

Recognizing the vagueness of "the pursuit of happiness," Bowen basically says that it didn't matter much at the time because it was obvious to all thinking men what was intended. In the next paragraphs, however, she hints at what was to come because of this opening -- I'd call it a weak spot in the armor caused by a contradiction never rooted out -- left by the Founding Fathers.

Here was no quarrel, as today, between human rights and property rights. Madison said that "a man has property in his opinions and the free communication of them, he has property in the free use of his faculties, in the safety and liberty of his person." ...

The Federal Convention was not interested in the redistribution of property, nor did it meet for such a purpose. Threatened with anarchy, the founders desired order, and to blame the Convention as "conservative" is to look on 1787 with the eyes of today. [bold added]

Bowen correctly identifies that there is a philosophical difference between 1787 and today, and leaves no indication of her thoughts on which is correct -- a fine course of action for a historian. However, she doesn't go further to identify exactly what the difference is.

With the benefit of Ayn Rand's insights, we can now see that the chink in the armor of the founders was the moral code of altruism. Because they had not identified that a consistent defense of the political principles of individual rights rests upon the moral code of rational egoism, they did not predict that failing to consistently and explicitly defend property rights would eventually leave us with the statist shell of a Constitution and country we see around us.

The founders took for granted that "the pursuit of happiness" implied property rights, but 200 years of philosophical assault left us with the possibility that there could be a conflict between human rights and property rights. I have previously described what I call the anti-concept of human rights, a muddled term that serves to destroy the concept of individual rights by confusing it with "positive" rights to legally loot from productive individuals. "Human rights," as a commonly held concept, means the sacrifice-by-right of the haves to the have-nots, i.e. altruism.

What the founders saw as obvious and "in the Revolutionary air" -- that liberty and property are inseparable ideas -- has been all but wiped from the public consciousness by altruism. It will certainly be an uphill battle, but what we can take away from this example is that now, armed with the knowledge we need to fully defend life, liberty, and property, we have a tremendous opportunity to pick up where the founders left off.

Um, I don't think that's an adverb...

Overheard in the airport while waiting for a delayed flight:

10 year old boy doing Mad Libs: "Dad?  Dad?  What's an adverb?  Dad? .... (5 mins later) Dad? Can you name an adverb for me?"

Dad, looking pained, finally paying attention: "Um...  stinky.  Like, you make something stinky."

Sure, kid, go ahead and put that in your Mad Lib.  

Today I went to the zoo. I saw a purple (adjective) giraffe (noun) jumping up and down in its tree. It ran (verb: past tense) stinky (adverb) through the large tunnel that led to its comfortable (adjective) condominium (noun).

The poor kid's mom finally took out her iPhone and looked it up, and told him, "like patiently, you know, all words ending in ly."  Well, ya got the first part there, maam...

Yes, that was just lovely, wasn't it?  I thought of being friendly and helping out the poor kid, you know, be neighborly, but I decided against it.  

Sigh...

Two-bit Robespierres

Head on over to The New Clarion for Myrhaf's latest.  I only wish that the average American would even understand the reference when he says "...we have two-bit Robespierres like Barbara Boxer, Barney Frank and Barack Obama consuming our wealth in order to buy reelection and maintain their grasp on power."  I suppose if they did—and understood both how apt and profoundly negative that evaluation is—we might not be in the situtation we're in now.

Light blogging alert

I'm traveling for work, so unless my working dinner ends early tonight, I'm not sure when I'll have time to post anything.  It also looks like I'll miss the upcoming Objectivist Roundup.  I had hoped to use time on my flights to work on some of the too many post ideas I have at the back of my mind, but I fell asleep instead.  Wasted time...

Miracle at Philadelphia: QOTD 2

Continuing my ongoing (does the second of two count as "ongoing?") series of quotations from "Miracle At Philadelphia: The Story of the Constitutional Convention May - September 1787," today I have a passage that is quite different in tone than the last one.

My last post discussed "the quality of the men who founded the country, their passion and the sharpness of their intellects, and the profound seriousness with which they took their mission," and was, I thought, rather inspirational.

Today's post is somewhat cautionary. It should become clear why I say that.

Context: As the delegates to the Convention got down to work, the Virginians set the tone of the entire affair by proposing what became known as the Virginia Resolves. They consisted of 15 resolves that essentially outlined a new national government. Today's quote picks up the day after the Resolves were proposed, as they got down to business:

Characteristically, the Convention never stayed long upon theory. Its business was not to defend "freedom" or to vindicate a revolution. That had been done long ago, in July of 1776 and later, when colony after colony created its state constitution, flinging out its particular preamble of political and religious freedom. The Convention of 1787 would debate the rights of states, but not the rights of man in general. The records show nothing grandly declaratory or defiant, as in the French constituent assembly of 1789. America had passed that phase; had anyone challenged members, they would have said such declarations were already cemented with their blood. In 1787 the states sat not to justify the term United States but to institute a working government for those United States. One finds no quotations from Rousseau, John Locke, Burlamaqui or the French philosophes, and if Montesquieu is invoked it is to defend the practical organization of a tripartite government. When the Federal Convention discussed political power, governmental authority, they discussed it in terms of what was likely to happen to Delaware or Pennsylvania, New Jersey or Georgia.

Most members of the Philadelphia Convention, in short, were old hands, politicians to the bone. That some of them happened also to be men of vision, educated in law and the science of government, did not distract them from the matters impending. There was a minimum of oratory or showing off. Each time a member seemed about to soar into the empyrean of social theory -- the eighteenth century called it "reason" -- somebody brought him round, and shortly. "Experience must be our only guide," said John Dickinson of Delaware. "Reason may mislead us." [bold added, italics in original]

The Convention had a very specific mission: to craft a national government that was grounded in rights -- this meant state's rights, though individual rights were assumed -- and to get it to work, because they saw real threats to the Union in the way things were going. And of course, the rights of man were eventually addressed in the Bill of Rights.

But one wishes that this Convention had not relied on "declarations [that] were cemented in the blood" so much, and instead, allowed for quotations from John Locke to inform the proceedings explicitly.

The author, Catherine Drinker Bowen, was careful at the end to state that Dickinson and others used the word "reason" in a different sense than we do, but there is an inherent problem with using experience and the only guide when you are proposing something that has never been done in the history of the world.

None of this should cast a pallor on their achievement, but it does give one pause as an example of focusing only on practical considerations, without also concerning oneself with moral ones.

Objectivist Roundup #95

Welcome to the May 7, 2009 edition of the Objectivist Roundup, your weekly dose of intellectual fuel and ammunition.

This roundup features posts by blog authors who are advocates of Objectivism, the philosophy of Ayn Rand. She called it a "philosophy for living on earth" -- as opposed to religious mysticism focused on some non-existent other world, or an ivory tower muddle of conflicting ideas disconnected from reality and the lives of men.

The breathtaking scope of attacks on freedom and individual rights by the government of these United States, as well as similar attacks in other nations across the globe, is reflected in the content and tone of the posts listed below. As disastrous current events pile up, it's good to remember that ideas drive history and progress. To quote Ayn Rand:

There is only one power that determines the course of history, just as it determines the course of every individual life: the power of man’s rational faculty—the power of ideas. ... If you understand the dominant philosophy of a society, you can predict its course. But convictions and philosophy are matters open to man’s choice. ...

It is the philosophy of the mysticism-altruism-collectivism axis that has brought us to our present state and is carrying us toward a finale such as that of the society presented in Atlas Shrugged. It is only the philosophy of the reason-individualism-capitalism axis that can save us and carry us, instead, toward the Atlantis projected in the last two pages of my novel.
--Capitalism: The Unknown Idea (ARL)

History is made by minorities—or, more precisely, history is made by intellectual movements, which are created by minorities. Who belongs to these minorities? Anyone who is able and willing actively to concern himself with intellectual issues. Here, it is not quantity, but quality that counts (the quality—and consistency—of the ideas one is advocating).
--Philosophy: Who Needs It (ARL)

Enjoy Objectivist Roundup #95!

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1. Brian presents Interview with Dr. John Lewis posted at Reality Talk, saying, "Dr. John Lewis, who gave the stirring speech at the Charlotte Tea Party on April 15th, granted us an interview to discuss the impact of his speech, his new book, the future of the country, and other topics. Read on for some great responses."


2. John Drake presents The Selfish Giver posted at Try Reason!, saying, "Can a picture of two adorable kids (mine of course) demonstrate an abstract moral principle? Take a look, read the story, and let me know what you think."


3. Ryan Krause presents No More Drunk Driving at Anheuser-Busch posted at The Money Speech, saying, "InBev is implementing a very interesting strategy at Anheuser-Busch. It's much leaner and more merit-based, and could turn out to create some real value."


4. Roberto Sarrionandia presents Concepts in Human Activity posted at Tito's Blog, saying, "The importance of the conceptual level of human activity"


5. Ari Armstrong presents Censoring Scott McInnis posted at FreeColorado.com, saying, "Colorado's campaign finance laws constitute censorship."


6. Justin Ketterer presents Designers are Metaphysical Mathematicians posted at Valuable Mechanisms: The Design & Engineering Blog of Justin Ketterer, saying, "It seems that there's a lot of mystical, incoherent thinking in the creative arts. As an aspiring design engineer, I wanted to explain how "creativity" may not be as inexplicable as it's often thought to be. How better to do that than by bringing Rand's theory of epistemology to bear on the issue?"


7. Doug Reich presents Meet Cass Sunstein: Your "Choice Architect" posted at The Rational Capitalist, saying, "Analysis and link to oppose "choice architecture" guru and Platonic Philosopher King wannabe, Cass Sunstein, Obama's Toohey-esque nominee to head the White House Office of Information and Regulatory Affairs"


8. Martin Lindeskog presents LISTEN TO SCOTT HOLLERAN | EGO posted at EGO.


9. Rational Jenn presents Garage Sale! posted at Rational Jenn, saying, "Our family had a great time working productively at our semiannual garage sale."


10. Adam Reed presents On Crimes Motivated By Collectivisms, And Their Proper Punishment posted at Born to Identify.


11. Paul Hsieh presents OpEd at PJM: "Health Care Reform vs. Universal Health Care" posted at We Stand FIRM, saying, "PajamasMedia.com published another one of my health care OpEds!"


12. Rajesh Dhawan presents Union of Keynes and Kant posted at Objective extrospection, saying, "Non-reason and anti-capitalism come together in this call by the Harvard professor Mankiw to destroy what Rand said was "the ultimate barometer of a society's virtue"- the money."


13. Brian Phillips presents Government Without Taxation: Introduction posted at Houston Property Rights, saying, "Death and taxes, we are often told, are two inevitable facts of life. However, a crucial distinction exists between the two—death is a metaphysical fact, while taxes are a man-made fact. As such, death is in fact inevitable, but taxes are not. The metaphysical is absolute and immutable; the man-made is subject to the choices and actions of man."


14. JStotts presents Kinsey and Sexual identity posted at Erosophia, saying, "Thinking of sexuality in terms of homosexual v. heterosexual will leave most people unaccounted for."


15. I present The Flawed Economics of Socialized Medicine posted on this blog. I analyze the claim that one of the problems in health care now is a shortage of doctors, drawing on the economic arguments linking price controls and shortages, and that no amount of supply can satisfy the demand for a price-controlled good.


16. Rob Abiera presents Tea Parties and selfishness posted at The Morality War, saying, "This is my response to a letter in the Oklahoma Gazette in which Tea Party participants were accused of selfishness."


17. Gus Van Horn presents Government Schooling to Fail Again at Gus Van Horn, saying, "One day, if I have anything to say about it, most people will quit dismissing statism as mere foolishness. Instead, they will judge the moral caliber of its advocates and act accordingly."


18. Amit Ghate presents Questioning the Value of Regulation posted at Thrutch, saying, "A post linking to my recent editorial on the subject."


19. Ed Cline presents Obama’s “Blood-Tax” at The Rule of Reason.

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That concludes this edition of the Objectivist Roundup. Next week's host is John Drake at Try Reason!. Submit your blog article to the Objectivist Roundup using our carnival submission form.

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Miracle at Philadelphia: QOTD 1

I am reading "Miracle At Philadelphia: The Story of the Constitutional Convention May - September 1787" by Catherine Drinker Bowen, and it's chock full of very interesting quotes and anecdotes about a momentous time in human history and progress. I plan to post some of these quotes of the day (QOTD) as I go through the book.

Context: Chapter 1 sets the scene for the Constitutional Convention, describes some of the influential men in it, and the tenuous staqte of the Convention and the Confederation of states in general.  James Madison--described as both pertinacious and flexible, "two qualities not often found together"--prepared tenaciously for the daunting task ahead.  

Of the entire delegation no one came better prepared intellectually.  At his request Jefferson... had sent books from Paris.  Madison asked for "whatever may throw light on the general constitution and droit public of the several confederacies which have existed."  The books arrived not by ones and twos but by the hundred:  ... books on political theory and the law of nations, histories, works by ... Voltaire, Diderot, Mably, Necker, d'Albon.  There were biographies and memoirs, histories in sets of eleven volumes...  Madison threw himself into a study of confedereracies ancient and modern, wrote out a long essay comparing governments, with each analysis followed by a section of his own...

Madison, in particular, was concerned that even in the unlikely event they could come up with a new Constitution, the very real possibility existed that it would not be ratified.  Bowen wrote:

Yet should it fail, what hope was there of calling another [Convention]?  In April, a full month before the Convention met, Madison had told a Virigina colleague that the nearer the crisis approached, the more he trembled for the issue.  "The necessity," he wrote, "of gaining the concurrence  of the Convention in some system that will answer the purpose, the subsequent approbation of Congress, and the final sanction of the states, presents a series of chances which would inspire despair in any case where the alternative was less formidable."

It was like Madison to declare that the situation was too serious for despair.  It was like Washington, too, of whom the British historian Trevelyan was to write that he "had learned the inmost secret of the brave, who train themselves to contemplate in mind the worst that can happen and in thought resign themselves -- but in action resign themselves never."  ...  It was hard to say which man was the more serious by nature.  Reading Madison's long letters on politics, with ther cool forceful arguments, or Washington's with their stately rhythym, one senses beneath the elaborate paragraphs a very fury of concern for the country.  And one takes comfort in this solemnity.  One rejoices that these men felt no embarrassment at being persistently, at times awkwardly serious, according to their natures.

I highlight these passages to show the quality of the men who founded the country, their passion and the sharpness of their intellects, and the profound seriousness with which they took their mission.  At a time when many are looking to rekindle the spirit of the Boston Tea Party, it is more important than ever to fully understand the nature of the men who shaped our nation and the ideas they held so dearly.

In the quotation above, Bowen remarked on the "very fury of concern for the country" held by Madison, Washington, Jefferson and others.  While concern for the country was certainly a part of it, I prefer to think of it as a fury of concern for truth, justice, and liberty; a concern for ideas, as both moral and practical, a vision for the world as it ought to be and would be.

[H]e "had learned the inmost secret of the brave, who train themselves to contemplate in mind the worst that can happen and in thought resign themselves -- but in action resign themselves never."

I get chills reading that.  I'm going to like reading this book, I think.  I hope you'll enjoy the passages I quote.

The Flawed Economics of Socialized Medicine

Author's note: This revision of an earlier article was spurred by valuable input from Dr. Paul Hsieh. Although he commented on the previous version, he did not review this article prior to posting.

National politicians are maneuvering to pass health care reform that amounts to a dramatic increase in government intervention in the name of social justice. They look to states like Massachusetts for guidance, and seem to be growing concerned that, after promising health care coverage for all, people are unable to get an appointment with a doctor. In response, "Obama-administration officials have reportedly become alarmed by doctor shortages," notes Juliet Lapidos at Slate.com, and she goes on to explain why, in her mind, there is a looming shortage of primary care doctors.

Her answer? Baby boomer doctors are retiring, and baby boomer consumers are getting old and increasing demand.

While she is right that the baby boomer generation has certain impacts on the overall health care picture, she doesn't adequately address why there has been such a drop in medical students planning on going into primary care, and more importantly, whether this drop plus the baby boomer effect is the root cause of the "shortage." She also seems to make the common mistake of equating the simple number of doctors to the actual supply of health care services, ignoring the wider effects of economics, the market, and most significantly in this case, the government. It is a mistake similar to the one of equating health insurance to health care. As we will see, though everyone might have insurance, and a state might have a high ratio of doctors to patients, that doesn't guarantee availability of services.

But let's take Lapidos' example on face value, assuming that the shortage of access to care is simply one of a lack of supply of doctors. On a free market, doctors would go where the demand was, but while demand for the service is in fact increasing, the producers (doctors) are not increasing supply in response, and even if they are, it's having no impact on the shortage. Why not?

In her opening paragraph—partially quoted above—she started down the trail of the real answer without realizing it.

Obama-administration officials have reportedly become alarmed by doctor shortages, especially since millions of previously uninsured people would gain coverage—and therefore increase demand—if the president manages to pass national health care reform. [link dropped, bold added]

Such health care reform policies will flood the market with new customers, seeking care at a government-controlled price. Thus, we must analyze this from economics to understand the consequences.

Impact of Price Control Scheme on Health Care

The socialized health care policies currently advocated increase demand nominally by giving millions of new patients insurance. But in practice these planned policies, in addition to existing subsidized care through Medicare and Medicaid, are fundamentally an imposition of price controls. As a grand scheme of price controls on the health care market, we are left with a classic price control/shortage/reduction of supply situation. For details, let us consult George Reisman and his fascinating study of the destructive nature of price controls in "The Government Against The Economy." (all of which was later included in CTIE)

When one looks at health care services, not as some magical "non-commercial essential need" that transcends markets, supply and demand, and price, nor as a right gauranteed on the backs of doctors and taxpayers, but instead just like any other good or service, it should be easy to see how Reisman's example translates to the "doctor shortage":

A shortage is an excess of the quantity of a good buyers are seeking to buy over the quantity sellers are willing and able to sell. In a shortage, there are people willing and able to pay the controlled price of a good, but they cannot obtain it. The good is simply not available to them. Recalling the gasoline shortage of the winter of 1974 should make the concept real to everyone who experienced it. The drivers of the long lines of cars all had the money that was being asked for gasoline and were willing, indeed, eager, to spend if for gasoline. Their problem was they they simply could not obtain the gasoline. They were trying to buy more gasoline than was available. [all emphasis added]

Without price controls—i.e. on a free(er) market—prices would have gone up, demand would have gone down, and a shortage would not have occurred. The market would have leveled out, people would have made other arrangements or paid the higher price for gas. In other words, because those who would have been willing and able to pay for gas could have puchased it. No shortage.

With price controls, there was artificially inflated demand because everyone could afford gas at the much-too-low controlled price, and supply ran out. Shortage.

To apply this economic lesson, one distinction must be stressed: at issue is not a shortage of doctors, but a shortage of health care services offered at the government-controlled price, under the government's regulations. With that in mind, if we substitute the supply of gasoline and its price controls with the availability of primary care appointments (supply) and Medicare/Medicaid-controlled prices, the clear picture emerges.

The preceding discussion showed how price controls create shortages by artificially expanding the quantity of a good demanded. To the degree that the controlled price is below the potential free-market price, buyers judge that they can afford more of the good with the same monetary wealth and income. They judge that they can carry its consumption to a point of lower marginal utility. In this way, the quantity of the good demanded comes to exceed the supply available, whether that supply is scarce or abundant. [bold added]

What this means is that no matter how much gas, or how many primary care doctors you have, if the price of a good (gas) or service (health care) is controlled, there will be shortages. Supply will not keep pace with artificially inflated demand.

Under Price Controls, No Number of Doctors is Enough

At a controlled price, the supply of a good, no matter how abundant, can never satisfy the inflated demand for it. The idea of a "doctor shortage" comes into play here again. It's convenient to look at the surface effects and blame the large numbers of retiring baby boomer doctors. But the fact is, we would still face long waits and shortages without the loss of their services on the market, especially as "universal health care" programs control prices further resulting in ever-increasing demand.

This is exactly what is happening in Massachusetts, the home of the mandatory insurance law that many lawmakers are looking to for inspiration. As Dr. Paul Hsieh notes in The Objective Standard,

Patients face long waits for basic medical care—in some cases more than a year for a routine physical exam. These long waits are not due to a shortage of doctors. As the New England Journal of Medicine notes, Massachusetts "has the highest physician-to-population ratio of any state, in primary care as well as overall.” [bold added]

To deal with the wait times, some practices and plans are employing group visits for primary and preventive care. The Boston Globe article just linked found a number of patients and doctors who are quite enthusiastic about the group visits, but for now such visits are voluntary.

As has been shown, long wait times -- a shortage of access to certain health care services -- are not caused by a physical shortage of doctors. Dr. Hsieh writes of one low-income patient who, "called more than two dozen primary care doctors for a checkup. All of them turned her down, leaving her with no choice but to rely on the community free clinic." So, there is no shortage of practicing doctors, but there is a shortage of those physicians willing to offer their services. Why? Let's look again to the economic principles discussed by Reisman:

Price controls also reduce supply, which intensifies the shortages they create.

In the case of anything that must be produced, the quantity supplied falls if a price control makes its production unprofitable or simply of less than average profitability.

It is not necessary that a price control make production unprofitable or insufficiently profitable to all producers in a field. Production will tend to fall as soon as it becomes unprofitable or insufficiently profitable to the highest-cost or marginal producers in the field. These producers begin to go out of business or at least to operate on a smaller scale.

A marginal producer is defined as an "individual producer who is just barely able to remain profitable at current levels of price and production." With the advent of "universal coverage," increased red tape, price controls, and everything else, more and more primary care physicians will fit this definition. Why would someone going into medicine want to live like that if they could go into the relatively unregulated field of plastic surgery, for instance? Economics states that price controls cause a reduction in supply. Dr. Hsieh provides a real-world example highlighting this:

Because of its own rising costs, the [Massachusetts] state government has cut payments to doctors and hospitals. According to family physician Dr. Katherine Atkinson, the state insurance reimbursements often do not cover her expenses: “[E]very time I have a Medicaid patient it’s like handing them a $20 bill when they leave.”

As a result of these rising costs and falling revenues, access to medical care has dwindled for many patients. Fewer doctors are willing to take on new patients for fear of losing even more money.

So far, we have concentrated on the economics of price controls, and assumed that doctors are free agents in the marketplace. Most of the above assumed that the supply of physician services is fully up to the physicians themselves, and that a prospective doctor can pick and choose his specialty at will, practicing medicine where he chooses.

Would Easing Price Controls Be Enough?

Let's switch assumptions for the moment and pretend that government eased price controls somewhat such that primary care doctors could make a profit, but demand was still relatively high for their services and wait times were longer than consumers were happy with. One would think that many doctors, previously discouraged from primary care despite their desire to practice in that field, would move back into primary care.

Not so fast. In a personal email, Dr. Hsieh stressed another significant barrier to the natural workings of the market, saying, "The supply of doctors in general is restricted by the government through medical licensing as well as controls on residency training programs. So unless the government repeals those laws, there's no way for supply to rise to meet demand." (See here and here for more detail about the negative impact of government licensing.)

In a related example, Lapidos concludes her article in Slate with a nearly perfect case of how government intervention in the market -- specifically the attempts at central planning -- wreaks havoc on the actions and plans of rational individuals and institutions responding to the conditions of a free market.

Ironically, just a little more than a decade ago, there was a doctor surplus. In 1996, a committee of the Institute of Medicine warned that the United States had a surfeit of doctors caused by foreign-trained physicians coming here to work and recommended freezing med-school class sizes and limiting first-year residency positions. A year later, Slate ran an article on an alternative strategy for reducing the number of doctors approved by the federal Health Care Financing Administration. Under the Graduate Medical Education Demonstration Project, 41 teaching hospitals received $400 million in exchange for not training between 20 percent and 25 percent of the medical residents they would otherwise have trained over the next six years. [bold added, links dropped]

While she sees the irony in this tragicomedy, Lapidos' article demonstrates that she suffers under the same profound misunderstanding of free markets and government intervention as do the majority. While she sees how poorly this plan worked, she and the Obama administration and nearly all politicians in this country, on both sides of the aisle, take away only the lesson that "if they had just picked the right plan, it would have worked!"

The Right Plan is Freedom

Government planning, in any market, is doomed ultimately to fail. There is no good balance of controls and freedom. The solution is not picking the right government plan, nor is it manipulating the market in the false interests of social justice. The government cannot pick the "right number" of doctors, nor the "right price" for health care services. All such attempts to evade the reality of economics and the individual rights of consumers and producers result in disaster.

The only solution to the "doctor shortage," and the only reform that will respect the rights of all involved, is the total separation of economy and state. Price controls did not work for the gasoline industry in the 1970s and they have not worked in health care. They cause an artificial rise in demand that no amount of supply can satisfy and strongly discourage marginal producers, like primary care doctors, who simply stop producing. Government licensing further distorts the market by keeping free producers from entering the market and practicing medicine in the way they see fit.

Richard Salsman quoted Atlas Shrugged in a 1996 article, [HT: Doug Reich]

Dr. Thomas Hendricks, the brain surgeon...who flees from socialist medicine, explains his choice as follows: "I have often wondered at the smugness with which people assert their right to enslave me, to control my work, to force my will, to violate my conscience, to stifle my mind--yet what is it that they expect to depend on, when they lie on an operating table under my hands? Let them discover the kind of doctors that their system will now produce. Let them discover, in their operating rooms and hospital wards, that it is not safe to place their lives in the hands of a man whose life they have throttled. It is not safe, if he is the sort of man who resents it--and still less safe, if he is the sort who doesn't."

The only solution is to establish the only moral economic system that leaves doctors and patients, producers and consumers, free to trade value for value on an open market without government coercion; laissez-faire capitalism.

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UPDATE:
(2/5/2010) Welcome OJHS students! Please feel free to post comments and ask questions or request additional resources/links to other relevant sources.

PolySci 3240

Via Randex, comes this short note on an upcoming course offered at Northwestern State U. in Natchitoches, LA. According to their press release:

A new class at Northwestern State University will examine a topic which has dominated the news in recent months; the relationship between government and the economy.

Political Science 3240, Capitalism and Democracy, will be taught by Professor of Political Science Dr. Alex Aichinger.

“This is a class I have wanted to teach for a number of years and recent events have made this class even more relevant,” said Aichinger. “This is the type of class that can be adjusted in response to current events.”

Aichinger said the class would focus on ways in which politics affects the structure and performance of the economy and the ways in which the economy affects the structures, institution and practices of politics.

The course will include classic works by Aristotle and John Locke, more contemporary readings from economist Milton Friedman and novelist and philosopher Ayn Rand and recent books by founder of The Vanguard Group John Bogle and former U.S. Secretary of Labor Robert Reich.

Ayn Rand and Robert Reich? That will provide quite a contrast. Still, it's pretty cool to see a new course like this popping up, even if I couldn't pick out Natchitoches, LA from a map to save my life.

Only a Fool Would Take This Job

The government is having a tough time filling all the spots of the executives and directors it has ousted recently. As Joann Lublin reports in the Wall St. Journal,

The federal government's expanding involvement in finance companies and auto makers has saddled it with another tricky task: executive recruiter.

As part of Chrysler LLC's bankruptcy filing last week, the government has the right to appoint four directors to Chrysler's board. Government agencies are running, aiding or monitoring searches for executives or directors to help lead at least five other companies receiving government aid: General Motors Corp., GMAC LLC, American International Group Inc., Citigroup Inc. and Freddie Mac.

But government officials and outside observers fear it will be tough to find seasoned executives to step into high-profile positions with limited authority and limited pay. Executives and directors at these companies will have to balance obligations to taxpayers and other shareholders, all the while under close scrutiny by Congress and the media. [bold added]

Do they really think it will be that difficult? Hmm. Let's see... intrusive oversight by politicians and regulators, low pay, and the possibility that the political winds could change at any moment and an angry busload of ACORN protesters could be outside your door, harassing your kids on the way to school. This of course is on top of the moral culpability of taking part in the creeping (galloping?) fascism taking hold in the country.

With that in mind, Lublin quotes Charles Elson of the U. of Deleware business school:

"No one who has much sense will want to put themselves in that position."

This is undoubtedly true. Despite the fact that it is absolutely wrong that the government is in the position to hire and fire executives at will, they will eventually fill the positions. But if only a fool would take the job...

Professor Pragmatist Follow-up

The Bench Memos blog at National Review Online has a good post about the NY Times story I wrote about yesterday. Following are a few choice quotes. First, concerning the idea that consistency and principle aren't prized, and abstract theory -- more broadly, the act of abstraction itself -- isn't valued:

Consistency and principle are at the heart of all legal reasoning—and arguably "abstraction" is the indispensable tool in their service. Only by de-personalizing the legal issues before them—i.e., by abstracting from the personal qualities or situations of the parties—can judges do justice to them. After all, judges have been called on since 1789 to "solemnly swear or affirm, that [they] will administer justice without respect to persons, and do equal right to the poor and to the rich, and that [they] will faithfully and impartially discharge and perform all the duties incumbent on [them] . . . agreeably to the constitution and laws of the United States." If that isn't an explicit call for abstraction, principle, and consistency, I don't know what is. And the president isn't drawn much to such things? And this is supposed to be a good thing? [bold added]

On "minimalism" and Cass Sunstein:

As for Obama's being a "minimalist" who will appoint a "pragmatist," these terms sorely need some fleshing out. The most prominent exponent of "minimalism" on the Supreme Court is Obama's erstwhile Chicago colleague Cass Sunstein... At least since his 1999 book One Case At a Time, Sunstein has made the argument that the courts should not press too hard for too much social change all at once. But he argues this chiefly in order to avoid backlashes and to preserve the capacity of the courts to effect social change, regardless of whether the Constitution itself provides a rationale for the change in question. This "minimalism" would more accurately be called "gradualist maximalism"—the accretion of ever-greater power to the judiciary by baby steps... This is not what any traditional understanding of the judicial function would call "minimalism." [bold added]

Noting the apparent use of the term "pragmatism" to hide the attempt to put more power into the hands of the government, the author of the post, Matthew Franck, ends with a particularly good thought, stating that "Senators interested in exposing something interesting about President Obama's nominee should not be buffaloed by claims of "pragmatism," a notion that has been no friend to the Constitution or to the rule of law. "

And related to a point raised in the comments on my last post, he refers to the fact that Obama's allies were quoted in the NY Times piece: "They should probe the nominee for the very things the president is said—by his friends!—not to be interested in: principle, consistency, and abstraction."

Profile of Professor Pragmatist

The details of President Obama's time as a law professor never fully came out during the campaign, as far as I saw. Perhaps now that he has been elected, more of his former students and colleagues are willing to talk, as evidenced by this fascinating article in the New York Times, "As a Professor, a Pragmatist About the Supreme Court."

It is an admiring piece, digging into Mr. Obama's views on the Supreme Court and Constitutional law, as well as how his thinking and past decision making might influence the choice he has now: to make a nomination for the soon-to-be vacant seat on the Court. It is this detailed look at his temperament and thought process that is illuminating.

This may be his distinguishing quality as a legal thinker: an unwillingness to deal in abstraction, a constant desire to know how court decisions affect people’s lives.

“The University of Chicago was and is full of eminent theorizers who wrap up huge areas of the law by applying some magic key,” said David Franklin, a former student. “He didn’t do any of that; he wasn’t interested in high theory at all.” [bold added]

By the rules of pragmatism, this is the perfect attitude. Why deal in "high theory" if there are no priniciples, no objective facts of reality? It is only the impact on people, the thoughts and feelings of others, that is real.

Former students say that Mr. Obama does not particularly prize consistency or broad principle. Adam Bonin arrived in Mr. Obama’s class with the firm belief that drawing districts to ensure minority representation should be illegal. “It struck me as wrong that the legislature should pick and choose what interests should be represented in the legislature,” Mr. Bonin said.

“What I took from the class and the reading materials was the reality that unless these voices are physically present in a legislature, they won’t be heard,” he said. “As long as everyone is grabbing for power, members of racial minority groups ought to do the same.” [bold added]

Principle: 0. Power-grabbing: 1. True to the second-handedness of his views, political power -- inevitably, the ability of one group to impose its views on another -- is more important than anything else. The important thing is that the process is democratic. One can presume, based on everything else we know about the man, that individual rights are not the key concern, but the deliberative nature of democracy, and that everyone feels like they have a say.

“He sees the political process as the place that a lot of these large, difficult public policy questions ought to be resolved,” said Richard Pildes, a professor at New York University law school whom Mr. Obama met through their mutual interest in election law.

Even as law review president, Mr. Obama de-emphasized his own views and instead made himself a channel for those of others. His decision making was “about the group sentiment and what the group majority might agree to,” said Nancy McCullough, a fellow editor. [bold added]

What if, after the majority rules, it's not what he thinks represents social justice?

Mr. Obama often expressed concern that “democracy could be dangerous,” Mr. Stone said, that the majority can be “unempathetic — that’s a word that Barack has used — about the concerns of outsiders and minorities.”

This is why the behavioral economist brain trust of Cass Sunstein, Dan Ariely and others, is so valued by Mr. Obama. By nudging, he and his administration can ensure that his deeply held progressive ideas can be implemented without hurting anyone's feelings, or his having to come out and say anything definitive. With the Democratic majorities in the Congress, he has less to be concerned with in terms of righting social wrongs imposed by elected officials, but I'm sure it's a nice cushion to have. He can even nudge in support of the progressive policies enacted by Congress, a perfect one-two punch, knocking out liberties in favor of entitlements to the oppressed.

I highly recommend reading the full NYTimes piece. During the Bush years, it was important to understand his thought process or lack thereof; it's hard to call "having a personal conversation with Jesus" actual thought. It is similarly important to understand Mr. Obama's thought process, and this article is quite informative in that regard.

Worm Poop

Last weekend, my 5-yr-old got on the swing in the backyard, and then I heard "DAD!  What's THIS?"  She was crouched down over a patch of dirt, so I went over to help her out.

She was looking at little piles of dried mud that are the castings of worms from the night before.  "That's worm poop," I said.  And I told her about how worms stay underground during the day because the sun and heat dries them out, but they come out at night and eat dirt and dead plants.  When they poop, it's just really good dirt.

She was fascinated -- this is the kid who takes woolly bear caterpillars to preschool show-and-tell, and collects inch worms in the spring -- and she asked if she could pick it up.  "Of course," I said.  "It's not like dog poop or people poop.  It's just dirt."

That was all it took.  For the rest of the week, she searched for and collected worm poop, and informed us that her plan was to take it into class for show-and-tell.  My wife did some research and printed out a list of interesting facts that the teacher could use for the class, and A. took it all in on Friday.

Unlike the caterpillars, which were a huge hit, apparently other 5-yr-olds are not that interested in little mounds of dried mud that someone tells them is worm poop.  But my curious, wonderful daughter, though disappointed in her classmates, was undaunted, and she's still looking for worm castings... sorry, worm poop.

Sunstein, Philosopher Kings, and the Ideal Citizen

Don't miss Doug Reich's excellent post about Cass Sunstein. News outlets and the blogosphere have been exploding over the past few days with discussions of Sunstein's views on regulating the Internet with a fairness doctrine, among other radical ideas. Doug goes further and deeper in his analysis than you'll see elsewhere. I'll leave the title of this post as a teaser for you to go read Doug's...

With the imminent departure of Souter from the Supreme Court, Sunstein is also being discussed as a potential candidate. He has for months been my dark horse pick for one of Obama's nominations to the Court, but I don't think it will be now. To satisfy the race- and gender-based factions of his party, I predict Obama will pick a woman or a non-white first. Because of course the skin color or gender of a person means they will be more fair minded or some such nonsense.

My hope is that the public outcry about Sunstein's radically leftist ideas will continue, making him impossible to nominate.