My friend and former professor, John Eastman:
John Eastman on the Electoral College and National Popular Vote
Our Undemocratic Constitution
Jeff G. at Protein Wisdom responds to the old argument, recently repeated by Ezra Klein and Paul Sterne, that the Senate is undemocratic because it gives residents of less populous states greater relative voting power than residents of more populous states. Jeff’s response, while a bit heavy handed, is basically right: not everyone is resigned to the notion that the federal government has rendered the states obsolete. Though the Ninth and Tenth Amendments—those other symbols of the confederation of sovereigns—are seldom given voice in our courts and capitols, yet still they live! James Madison, he still speaks for them, and the Senate, too:
A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.
In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.
Let, therefore, the Senate be undemocratic. It is no sin. To the contrary, the genius of the Constitution exceeds that which a session of Congress can match. It is an extension of that same genius, then, that the power of its undoing was put beyond the grasp of the simple majority’s representatives.
Besides, do we demand greater dignity than our nations on the basis of our relative superiority in population? Certainly not. Sovereignty commands a respect all its own; no inquiry is made into its census. Just so the united States. Their recognition as separate sovereigns is not impaired by the disparate birthrate of its members, or their tendencies to attract large populations to urban centers, or their tendencies toward merely moderate growth. Nothing in our intellectual history suggests this understanding of sovereignty has substantially evolved in favor of the views of Klein, Sterne, or Sanford Levinson.
As for the effect of undemocratic institutions of impeding the legislative will of the majority, it is de minimis. Or it would have been. That is, there ought to be little to complain about were the federal government limited to national defense, postal service, regulating commerce with foreign nations, Indian tribes, and among the several states, and its few other enumerated powers. Through judicial amendments to the Constitution, however, the federal government is now capable of reaching far beyond its original limits. With seemingly nothing left to keep it from doing so, statists chafe at the idea that the Senate, that undemocratic institution, can purport to deny the will of the majority. And for what? That tired old symbol of state’s rights? Why, we would have found a friendly court to tidy up that vestige were not Article 1, section 3 of such sturdy construction: “The Senate of the United States shall be composed of two Senators from each State.” These words are simply not susceptible to mischief.
Sandefur on the Activity/Inactivity Distinction
As clear an explanation as I’ve seen:
In Lopez, Morrison, and Raich, the leading Supreme Court decisions on the limits of the Commerce Clause, the Court held that the federal government could regulate minute, barely significant, actions because as a group, those actions have an effect on the economy. But the Court also made clear that Congress could do this only if those actions are economic in nature. It drew this economic/non-economic distinction not from the text of the Constitution (which of course does not use that word), but from the advantages that sprang from drawing the line in that spot—specifically, that drawing the line here allowed Congress to (in Justice O’Connor’s words) regulate more than nothing and less than everything. Drawing the line here was also basically consistent with the Constitution’s language and served the judiciary’s goal of policing the constitutional boundary without intruding into the realm of policy-making. In short, it’s relatively easy for courts to tell when something is not economic in nature, and thus bar Congress from expanding its powers. That’s what’s known as a “judicially manageable standard.”
For the same reasons, it makes a lot of sense, when trying to determine what Congress can do under the Commerce and Necessary and Proper Clauses, to draw the line at the activity/inactivity distinction. While at a certain level, inactivity blends into activity—just as economic and non-economic sometimes overlap—in the vast majority of cases, it’s very easy to judge the difference between acting and not acting. It is empirically verifiable, in most cases, whether a person has voluntarily acted or not. Drawing the line here is relatively easy for courts, and avoids drawing them into complicated policy-making decisions. And, like the economic/non-economic distinction in Lopez and other cases, the activity/inactivity distinction prevents Congress from expanding its power into a general police power.
(Boldface added.)
Consistency Check: Torture, Abortion, & the Individual Mandate
It’s easy to take an indignant moral position on a single issue. “Torture is wrong.” “Abortion is wrong.” “Coerced transactions are wrong.” Such positions aren’t rare, and thus not particularly interesting. What is rare, however, is the ability to demonstrate consistency in taking several unequivocal moral positions. That is, those who take an unequivocal moral stand with respect to torture, or abortion, or the individual mandate are less likely to purport to take such a fervent an unequivocal a position as to all three. Yet, if we’re talking about objective morality and deontology—which we almost always are when we’re taking absolute, unequivocal positions—then we really have no excuse.
For instance, a prototypical conservative might take unequivocal positions against abortion and the individual mandate, yet refrains from taking absolutist positions on the torture question, and instead offers ticking time bomb scenarios and subtle nuances as to why waterboarding isn’t torture, etc.1 Similarly, a prototypical libertarian might take unequivocal positions against torture and the individual mandate, yet offers subtle nuances explaining why a fetus isn’t a person, or why rights do not extend into the womb. The prototypical liberal, like the libertarian, might categorically reject all mitigating factors offered in support of coercive interrogations, yet makes “the greater good” the centerpiece of his justification of the coercive individual mandate.
On these and most every other important issue, we scoff at one another for pledging to principle on certain things, and excoriate one another for parsing principle on others. This phenomenon—at work in many other examples, some of which I’ve listed previously—demonstrates how our underlying judgments about what is objective and what is merely instrumental define our reality. For example, is economic liberty an end in itself, or merely an instrumentality? I submit that the deviations in these sorts of judgments are the key to many if not most of our moral and political disagreements, and explain why we parse some principles yet stand indignant on others.
[1] You can probably put me in this camp as to “enhanced interrogation techniques.” I acknowledge that certain techniques that cross the line into “torture” are always morally unacceptable. Assuming an appropriate showing is made that the interogatee is in possession of information concerning a threat to national security, one might say that interrogation techniques that are not torture are justified because, although they amount to coercion, it is coercion against a thing the interrogatee has no moral right to do in the first place: withhold information about immoral and illegal acts to harm or kill others. This same approach permits one also to say that abortion is wrong (excepting certain extreme cases) because, while it arguably amounts to coercion, it is coercion against a thing no person has a moral right to do: kill an human being conceived through natural consensual relations.
Quote of the Day
Matt Zwolinski on Rand Paul equating universal health care with slavery:
[P]erhaps it’s inevitable that politicians are going to badly over-simplify moral arguments. And I suppose that if I had to choose, I’d much rather have a Senator who over-simplified in the direction of Murray Rothbard than, for instance, whatever moral philosopher Al Franken is butchering.
(As an aside, isn’t it finally time we crunched “health care” down into one word?)
“Increasing Demand” Is Code for “Statism”
I found this post from Adam Ozimek interesting, explaining why drastically increasing wages has consequences that are, even if unintended, not unpredictable. The response at Democracy in America complains that Mr. Ozimek’s post “doesn’t seem to be taking [the higher-wage side’s argument] on its own terms.” I won’t engage the specific arguments and rebuttals here, but it seems that some of the terms used in “the higher-wage side’s argument,” as described at Democracy in America, need some unpacking:
[I]ntensifying pressure for higher corporate profits has combined with weak labour bargaining power (in part due to the decline of unions) to depress wages. This has depressed buying power, threatening growth. Over the past decade the Federal Reserve responded by keeping credit cheap, allowing consumers to borrow money to pump up the economy. That led to a credit bubble and a real-estate bubble that popped in 2008, with devastating results. Basically, too little of GDP is being paid in wages to sustain adequate demand; for a while, we made up the difference with credit, but that turned out to be unsustainable. By rebalancing national income away from profits and towards wages (through, for example, stronger collective bargaining), we could re-establish adequate demand to fuel growth, which would lead to higher employment, rather than lower.
There’s something about the way economists talk about “establishing demand” and “increasing demand” that doesn’t sit well. I’ve written before about how “injustice” concerning wealth and wages can be approached through either a “procedural” lens or a “substantive” lens. In the former case, we say wages are “inadequate” because the processes in place are inadequate to ensure market signals accurately translate into appropriate wage increases (or decreases, as the case may be). In such cases, perhaps collective bargaining presents a solution (or, in the public employee context, the problem). In the latter or “substantive” case, we say wages are “inadequate” because they miss the mark of some otherwise predetermined result—i.e., we say the output (the wage) should, irrespective of input (the work), afford the worker a certain minimum standard of living.
To my understanding, any approach to the question about whether a given wage is appropriate will fall within one of those two very broad conceptual models. However, when economists talk about manipulating “demand,” they don’t seem to be working from either of these models. They don’t seem to be saying, in a prescriptive sense, either that workers should have more bargaining power, or that they deserve a greater wage. Instead, they simply run thought experiments about what would happen if, say, the value of picking grapes or tomatoes were suddenly twice as much as it is. They assign the experiment a benign term like “increasing demand,” and then report, in a descriptive sense, whether it would lead to desirable economic outcomes. “If you take money from Adam and give it to Bob and Chuck, Bob and Chuck will buy stuff from Doris and Edna, and, as a result, government accountants will produce balance sheets with more appealing numbers.”
When policy makers manipulate “demand,” however, they do so without ever passing judgment on those preliminary questions above. Economists are entitled to skip the “ought” questions because economists are not moralists or politicians. But before economic theory can be translated into economic policy, mustn’t policy makers engage those questions? Mustn’t they pass on the questions about whether the wages are correct or incorrect, just or unjust? Economic policy questions should be posed in the form of, would it be appropriate if…? Instead, the questions are usually posed in the form of, what will happen if…? And if the answer to the latter question is sufficiently pleasant, issues of appropriateness are deemed moot.
In that regard, something about economic policy is fundamentally disingenuous, as it eventually means no one can have any sound idea what the value of anyone’s labor actually is. Instead, we only know, based on the current iteration of the tax code and the menu of available entitlements, what kind of lifestyle is available. In that case, the source of a better life becomes the state rather than ourselves.
In which my praise of Dearborn Muslims is condemned as Islamophobic
Here’s a response to my post where I praised Dearborn Muslims for their reaction to the Terry Jones kerfluffle. Blogger “Shams” associates my post with “birtherism,” “racism,” “homophobia,” the Iraq war, the Afghanistan war, the price of gasoline, American middle eastern policy, and the economy generally. Shams also accuses me of being “islamophobic” for having offered the observation that “there does seem to be a general sense of avoidance of these questions [concerning what Sharia is and how moderate Muslims feel about efforts to implement portions of it in the U.S.] by the moderate Muslim community.”
Although my original post immediately goes on explain why “there might be a good reason for this,” and although I indicated this important context had been omitted from Shams’s condemnation, Shams refused to acknowledge or update his post, instead offering a profane epithet. Like my first comment to Shams’s post—which took several days to air because Shams “moderates” his comments (certainly not to filter profanity or incivility!)—my most recent response is still awaiting moderation.
I realize this is only anecdotal evidence of my general observations about the breakdown in our discourse over Muslim issues, but still…
“Discrimination” and “Equality”: When Words Take on Lives of Their Own
I was amused to find that Marc Angelucci—the attorney who sued a small business owner for thousands of dollars for minor and unintentional ADA violations while his restaurant was under construction—posted a response to my recent post about California Senator Leland Yee’s new language discrimination bill. Mr. Angelucci purported to correct me by pointing out that he has “not done ADA or Unruh Act lawsuits in a long time.” Good! But I never suggested otherwise. Mr. Angelucci also purported to admonish me for
fail[ing] to mention that even though the ADA has been around for many years scores of businesses still don’t use ramps and fail to remove their barriers, and that the AG does virtually nothing about that. And, of couse, he never mentions that it took these ADA plaintiffs to force serious changes, as thousands of businesses suddenly start removing their barriers after they hear about the lawsuits in the media and elsewhere.
Fine, but I never talked about “ramps” or “barriers,” either. And importantly, in his famous case of Gunther v. Lin, neither did Mr. Angelucci.
Proposed language discrimination bill might mean new jobs for California lawyers
The Orange County Register reports that the California Senate passed a bill this week, sponsored by Leland Yee, D-San Francisco, to “protect California’s foreign language speakers” by making it illegal for the state’s businesses to require its employees to speak a specific language be spoken at the business unless it qualifies for a narrowly defined business necessity. [PDF]
Such discrimination is already prohibited against employees or renters under the California Fair Employment and Housing Act. Yee’s measure would extend the protection to customers and allow them to sue privately and receive minimum damages of $4,000 per violation.
Opponents complain that the proposed law would generate “meritless lawsuits to be filed for the sole purpose of obtaining a quick settlement.” They’re right.
There’s “Fair,” and then there’s “Fair”
Professor Mondo has a recent post on a topic of particular interest to me: our disparate underlying conceptions of the meaning of “fairness.” (The Professor and I also share an appreciation of Richard Weaver.) One particularly good point:
But both sides will cheerfully claim the mantle of fairness for their goals. As the two definitions don’t really seem compatible, it seems like somebody’s misusing the word. An interesting question (to me, anyway) becomes not so much the definition the rhetor is using (as the emotional impact of the God-term supersedes the denotation, in many cases), but the definition held by the rhetor’s audience. The question then becomes one of which side is using the word fair in a counterintuitive (not to say disingenuous) manner for the larger audience.