Not-So-Random Thoughts (XVI)


Links to the other posts in this occasional series may be found at “Favorite Posts,” just below the list of topics. This is an especially long entry in the series, so I’ve labeled each item. You can navigate directly to items by clicking on any of the following links:

“Libertarian” Paternalism

Drug Prohibition

Unconstitutionality of Social Security and Medicare

Où est Charlie Hebdo?

Speaking of Censorship

Censorship-Plus

The Disparate Impact of Government

Putting the Civil War in Perspective

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“Libertarian” Paternalism

Timothy Taylor asks “Who Will Nudge the Nudgers?” in a post about a paper by W. Kip Viscusi and Ted Gayer:

Viscusi and Gayer point out a number of reasons why less-than-rational behavioral responses may be more prevalent among government decision-makers than for economic actors in the private economy. Here are some examples: 1) Private actors (like consumers and firms) need to bear the immediate costs of their decisions in a direct way, while elected officials and regulators do not. 2) Public policies are often influenced by the loud voice of concentrated special interests, who can overwhelm the quieter and more diffuse voices for the general interest. 3) Market actions evolve from an interaction of many buyers and sellers, and the checks and balances that such a process provides, but government actions can evolve from a much smaller number of potentially overconfident technocrats, who have a personal and career interest in pushing their own agendas. [The Conversible Economist, July 21, 2015]

There’s much more. Read it, then see my post, “The Perpetual Nudger.” I point out that “nudgers” (e.g., Richard Thaler) are really wannabe dictators:

What seems to bother Thaler is that most people aren’t Econs [hyper-rational calculators]; their tastes and preferences seem irrational to him, and it’s his (self-appointed) role in life to force them to make “correct” decisions (i.e., the decisions he would make).

There’s much more in the many posts to which I link at the end of “The Perpetual Nudger.”

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Drug Prohibition

The estimable Theodore Dalrymple strikes again:

[I]t is not true that problems with drugs arise only when or because they are prohibited.

The relationship between crime and drug prohibition is also much more complex than the legalizers would have us believe. It is certainly true that gangs quickly form that try to control drug distribution in certain areas, and that conflict between the aspirant gangs leads to violence…. But here I would point out two things: first that the violence of such criminal gangs was largely confined to the subculture from which they emerged, so that other people were not much endangered by it; and second that, in my dealings with such people, I did not form the impression that, were it not for the illegality of drugs, they would otherwise be pursuing perfectly respectable careers. If my impression is correct, then the illegality of drugs might protect the rest of society from their criminality: the illegal drug trade being the occasion, but not the cause, of their violence.

What about Prohibition, is the natural reply? It is true that the homicide rate in the United States fell dramatically in the wake of repeal. By the 1960s, however, when alcohol was not banned, it had climbed higher than during Prohibition…. Moreover, what is less often appreciated, the homicide rate in the United States rose faster in the thirteen years before than in the thirteen years during Prohibition. (In other respects, Prohibition was not as much of a failure as is often suggested: alcohol-related problems such as liver disease declined during it considerably. But no consequences by themselves can justify a policy, otherwise the amputation of thieves’ hands would be universal.) Al Capone was not a fine upstanding citizen before Prohibition turned him into a gangster. [“Ditching Drug Prohibition: A Dissent,” Library of Law and Liberty, July 23, 2015]

This reminds me of my post, “Prohibition, Abortion, and ‘Progressivism’,” in which I wrote about the Ken Burns series, Prohibition. Here’s some of it:

Although eugenics is not mentioned in Prohibition, it looms in the background. For eugenics — like prohibition of alcohol and, later, the near-prohibition of smoking — is symptomatic of the “progressive” mentality. That mentality is paternalistic, through and through. And “progressive” paternalism finds its way into the daily lives of Americans through the regulation of products and services — for our own good, of course. If you can think of a product or service that you use (or would like to use) that is not shaped by paternalistic regulation or taxes levied with regulatory intent, you must live in a cave.

However, the passing acknowledgement of “progressivism” as a force for the prohibition of alcohol is outweighed by the attention given to the role of “evangelicals” in the enactment of prohibition. I take this as a subtle swipe at anti-abortion stance of fundamentalist Protestants and adherents of the “traditional” strands of Catholicism and Judaism. Here is the “logic” of this implied attack on pro-lifers: Governmental interference in a personal choice is wrong with respect to the consumption of alcohol and similarly wrong with respect to abortion.

By that “logic,” it is wrong for government to interfere in or prosecute robbery, assault, rape, murder and other overtly harmful acts, which — after all — are merely the consequences of personal choices made by their perpetrators. Not even a “progressive” would claim that robbery, assault, etc., should go unpunished, though he would quail at effective punishment.

“Progressives” just don’t know where to draw lines. (Witness the many phantom red lines that Obama has drawn for Syria and  Iran.) It’s centuries too late to prohibit the consumption of alcohol (not that I’d wish it had happened); it’s still not too late to prohibit the consumption of hard, death-dealing drugs. If those drugs are legalized, it won’t be long before taxpayers are forced to pay for the drug habits of a growing population of drug abusers. That’s the “progressive” way.

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Unconstitutionality of Social Security and Medicare

Mike Rappaport makes the case, and concludes with this:

Now that we have had Social Security and Medicare for generations and people have relied upon them, I don’t think that the original meaning can be enforced to hold them unconstitutional.  Precedent should allow them to continue.  But it is worth remembering that these programs would have never taken their pernicious form if the Constitution’s original meaning had been followed in the first place. [“The Unconstitutionality of Social Security and Medicare,” Library of Law and Liberty, July 23, 2015]

This comes as no surprise to me. Here’s a bit from a recent post, “Does the Power to Tax Give Congress Unlimited Power? (II),” which refers to a much older one:

[T]he power to tax is not unlimited. Taxes levied by the central government must be levied for the purpose of executing powers specifically enumerated in Article I, Section 8 of the Constitution. Nevertheless, the majority NFIB v. Sebelius chose not only to distort the individual mandate — which is clearly a penalty, not a tax — but also to willfully disregard the Constitution’s expressed limitations on the powers of Congress. Even if the individual mandate were a tax, Congress cannot constitutionally levy such a tax because the Affordable Care Act isn’t contemplated in its enumerated powers. (ACA derives its supposedly constitutional status from the Court’s decision in 1935 to declare the Social Security Act constitutional, even though it isn’t. See my post of October 31, 2004, “Social Security Is Unconstitutional.”)

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Où est Charlie Hebdo?

As dead (in spirit) as the 12 who were murdered in January. Mark Steyn writes:

I mentioned a few days ago the announcement by Charlie Hebdo that they are no longer in the business of Mohammed cartoons:

So another non-senseless act has paid off bigtime for the Islamic enforcers. I regret the decision, although I understand it.

Which I do. Almost everyone who mattered at Charlie Hebdo is dead. What did they die for? A hashtag and a candlelight vigil? None of those who seized eagerly on #JeSuisCharlie as the cause du jour, from Angela Merkel and François Hollande to George Clooney and Helen Mirren to thousands in the streets of Paris and millions across the Internet, were willing to do the one thing that would have mattered, and show the reason why they died. Which is why such sterling champions of free speech as PLO leader Mahmoud Abbas and Sultan Erdogan’s vizier Ahmet Davutoglu were happy to march in the big post-slaughter parade. Do you think they’d have been there if any of the dead’s multitudes of new “friends” were waving Charlie magazine covers?…

And so, after a similar but fortunately less bloody attack in Texas [link added], virtually the entire American media decided to blame the victim and took it as read that Islam now has an opt-out from the First Amendment. You can’t fence off Islam and contain the damage to freedom of speech: the decision to surrender it incrementally leads inevitably to its total loss. On the day of his murder, I quoted the words of Stéphane “Charb” Charbonnier, Laurent Sourisseau’s predecessor as Charlie editor, from two years earlier:

It may seem pompous, but I’d rather die standing than live on my knees.

It’s not pompous, but it is lonely. And the slippery, weaselly nature of the post-bloodbath support told Charlie Hebdo it was only going to get lonelier. It’s hard standing on your feet when everyone else with the #JeSuisCharlie buttons is on their knees, bottoms in the air, prostrate before the fanatics. And so Charb’s successor has opted to live on his knees. [“The Knees Have It,” SteynOnline, July 22, 2015]

Color me unsurprised. In the aftermath of the slaughter in January, I wrote “Sober Reflections on ‘Charlie Hebdo’.” Here’s some of it:

[Charlie Hebdo is] a stridently left-wing rag that mocks religion (of all kinds), and anything else deemed too “respectable” for the adolescent tastes of its staff.

What’s most striking about the “Je suis Charlie” movement is its pure hypocrisy….

Yes, the left gets up in arms when some of its members are slaughtered by Muslim pigs (I love that phrase). But this is the same, hypocritical left that condones and promotes censorship….

The slaughter at Charlie Hebdo is not a reason for solidarity with the left, but a reason to oppose the left and its clients — especially (but not exclusively) the murderous adherents of Islam.

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Speaking of Censorship

Erick Erickson writes about

an organized movement within the gay rights community that is sometimess referred to as the “gay mafia.” They want to harass those who disagree with their agenda and silence any dissent from their agenda. They have worked overtime in the past twenty-four hours because an AP poll shows that the number of Americans who now support gay marriage has declined since the Supreme Court’s ruling and a majority believe Christian businesses should not be compelled to provide goods and services to gay weddings.

They cannot have that. They also cannot have books and data that dispute their claims. One such book is by my friend Ryan Anderson. The book is called Truth Overruled: The Future of Marriage and Religious Freedom. A subgroup of the gay mafia who call themselves “Flying Monkeys” are flinging poo in the direction of Ryan’s book.

In particular, they have organized a campaign to down vote Ryan’s book on Amazon.com. The Daily Signal has screenshots of the gay mafia’s online conversations encouraging people to go “review” Ryan’s book and give it one star reviews.

The people have not read the book. But they want you to think the book is a terrible read. They are attacking Ryan personally and attacking arguments they have not even read. Anyone who knows Ryan knows he takes a very scholarly approach to the marriage arguments and has provided a great deal of foresight into the movement again marriage.

You can order Ryan’s book on the Kindle now or get a print edition next month via Amazon. I highly recommend it. [“The Gay Mafia Wants to Stop You from Doing This,” RedState, July 21, 2015]

I have ordered it.

We in the U.S. have thus far been spared the excesses of censorship that plague Canada. One such excess is the subject of my post, “Free Speech Ends at the Northern Border.” That an overstatement, of course, because censorship is rife in America, especially on college campuses. Just check out the website of The Foundation for Individual Rights in Education.

See also my posts “The Gaystapo at Work,” “The Gaystapo and Islam.” “The Beginning of the End of Liberty in America,” and “The Tenor of the Times.”

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Censorship-Plus

In a closely related development, there’s a portentous recent ruling by the Equal Employment Opportunity Commission:

Last week, the Equal Employment Opportunity Commission dropped an astounding ruling: By a 3-2 vote, it concluded that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

This is a big deal: The Commission’s recommendations shape rulings on federal employees’ workplace-discrimination claims, and its field offices deal with claims made by employees at private organizations, as well. But the ruling is also a reminder of how complicated—and unresolved—the post-Obergefell legal landscape is. The Supreme Court’s ruling in favor of same-sex marriage at the end of June has set the country up for two new waves of discrimination claims: those made by same-sex couples and LGBT workers, and those made by religious Americans who oppose same-sex marriage. The two may seem distinct or even opposed, but they’re actually intertwined: In certain cases, extending new rights to LBGT workers will necessarily lead to religious-freedom objections, and vice versa.

Right now, it’s impossible to know how these claims will fall out. It’s been less than a month since the ruling, and much of the legal theory on these issues is just that: theory. In Congress, there’s at least some effort to reconcile the two sides. As my colleague Russell Berman wrote on Friday, Democrats are pushing for legislation which would include prohibitions on discrimination in education, housing, and public accommodation, and Republicans may well sign on—if that legislation allows for religious exemptions. No matter what passes, the issues will remain tangled. These will be some of the questions courts and legislatures have to untangle in the wake of Obergefell. [Emma Green, “Gay Rights May Come at the Cost of Religious Freedom,” The Atlantic, July 27, 2015]

It’s not just religious liberty that’s under attack, it’s liberty — period. It’s clear that the federal government is gearing up to tell Americans what they may say about others and who they must associate with, like it or not:

Most citizens will, of course, attempt to exercise their freedom of speech, and many business owners will, of course, attempt to exercise their freedom of association. But for every person who insists on exercising his rights, there will be at least as many (and probably more) who will be cowed, shamed, and forced by the state into silence and compliance with the new dispensation. And the more who are cowed, shamed, and forced into silence and compliance, the fewer who will assert their rights. Thus will the vestiges of liberty vanish.

That’s from my post, “The Beginning of the End of Liberty in America,” which I published on the day of the Obergefell diktat.

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The Disparate Impact of Government

Speaking of impending atrocities, Michael Barone takes on “HUD’s ‘Disparate Impact’ War on Suburban America“:

Disparate impact. It’s a legal doctrine that may be coming soon to your suburb (if you’re part of the national majority living in suburbs).

Bringing it there will be the Obama Department of Housing and Urban Development’s Affirmatively Furthering Fair Housing program. It has been given a green light to impose the rule from Justice Anthony Kennedy’s majority opinion in the Supreme Court’s 5-4 decision [link added] in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. [Kennedy must have been warming up for his Obergefell diktat, which came on the following day. — TEA]

The decision purports to interpret the Fair Housing Act of 1968 as authorizing lawsuits if municipal policies have a “disparate impact” as measured by the racial percentages of those affected — this despite the fact that the words of the Fair Housing Act prohibit only intentional racial discrimination….

In every large metropolitan area with a significant black population, you won’t find a single census tract with 0 black residents. Blacks sometimes encounter resistance when trying to buy or rent a house that they can afford, which is unjust and infuriating, and a problem for which the Fair Housing Act provides remedies.

But, of course, that has not created an America in which every community has the same percentage as the national average of blacks and whites, Hispanics and Asians, marrieds and singles, gays and straights, Protestants and Catholics and Jews and Muslims.

Free choice never shakes out that way. Throughout history, Americans and immigrants have tended to choose to cluster with likeminded people….

How did disparate impact come into the law? In a 1971 Supreme Court case, Griggs v. Duke Power Co., the Court, acting when memory was still fresh of Southern resistance to desegregation, ruled that the company’s aptitude test amounted to discrimination because whites passed at higher rates than blacks. But that’s true of most aptitude tests — which as a result aren’t used much in hiring any more. [creators.com, July 21, 2015]

Don’t tell it to the “social justice” police in D.C. They don’t want to hear it.

The 1971 “disparate impact” ruling by the Supreme Court ranks among the 16 cases that I list as examples of “the judicial betrayal of the constitutional scheme of limited government, and of order and traditional morality,” in “The Fall and Rise of American Empire.” (I would now add the Kennedy Court’s decisions about “disparate impact,” same-sex “marriage,” and Obamacare subsidies.)

“Disparate impact” isn’t just about where people live and work. Malcolm Pollack is on the case:

Here is an item that’s been going around over the past couple of days: an essay by Paul Sperry describing the Obama administration’s latest race-leveling operation.

The idea is to fish for “disparate impact” violations, wherever they can be found — in housing, lending, school discipline, academic performance, enrollment in gifted-student programs, etc. — and to use the coercive power of the State to flatten outcomes.

The Left has a secret weapon here, and in the current cultural climate, it’s a beaut. Here’s how it works:

1) If you go looking for disparate outcomes by racial groups (or by sex), you’ll certainly find them. They are real, and persistent. (See, for example, just how persistent they can be, here.)

2) When such disparate outcomes occur, there are only two possible causes: either they are due to an external obstacle, or something intrinsic to the group itself.

3) If all racial groups are assumed, as by current social convention they must be, to have exactly identical distributions of every cognitive and behavioral trait, then any variation in outcome that disparately affects a particular racial group must be evidence of some external obstacle. This can only be due to racism and injustice, and therefore it is just and proper for the State to detect and remove it, by whatever means necessary.

4) If however, you suggest that disparities under neutral policies may be due, even in part, to innate differences in the distribution of cognitive and behavioral characteristics in different racial groups, then you are a racist. (If you present actual evidence of such differences, you’re a “scientific” racist.) Moreover, the fact that you are even thinking such things is evidence of the persistence and prevalence of racism in general, which in turns confirms the assumption that disparate outcomes are the result of pervasive and intractable racism, and not innate differences. This is what justifies redoubled efforts on the part of the State to bring every aspect of our lives under racial scrutiny, and impose corrective measures wherever disparate outcomes are found.

So: notwithstanding that race, as we are told, is a “social construct” with no basis in reality, the government will spare no effort to group people by race, and to scour vast collections of intrusively gathered data to find inequalities in social and economic outcomes — not on any individual basis, but by race. But despite race being real enough, apparently, to justify making such racial categorizations, race can have no deeper reality as regards any shared characteristics that might contribute to such inequalities. Race is, in other words, real, but only real enough to serve, somehow, as a marker for defining groups, and thereby to serve as the basis of racism, without having any other actual properties. Moreover (and this is what makes the whole thing work so beautifully): if you disagree with any of this, you are yourself a racist — and you have thereby just demonstrated that persistent racism is indeed the problem.

Thanks to this secret weapon, we have moved beyond — far beyond — the idea that particular differences in outcomes may be due to specific and remediable instances of conscious and intentional racism. As we go Forward, we have a new paradigm: differences in outcomes simply ARE racism, now and forever.

That’s some catch!

[“A Respectful Whistle,” waka waka waka, July 21, 2015]

(I couldn’t resist reproducing Pollack’s brilliant post in its entirety. If you don’t already follow his blog, you should do so.)

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Putting the Civil War in Perspective

Walter Williams does it brilliantly:

Was President Abraham Lincoln really for outlawing slavery? Let’s look at his words. In an 1858 letter, Lincoln said, “I have declared a thousand times, and now repeat that, in my opinion neither the General Government, nor any other power outside of the slave states, can constitutionally or rightfully interfere with slaves or slavery where it already exists.” … Debating Sen. Stephen Douglas, Lincoln said, “I am not, nor ever have been, in favor of making voters or jurors of Negroes nor of qualifying them to hold office nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races, which I believe will forever forbid the two races living together on terms of social and political equality.”

What about Lincoln’s Emancipation Proclamation? Here are his words: “I view the matter (of slaves’ emancipation) as a practical war measure, to be decided upon according to the advantages or disadvantages it may offer to the suppression of the rebellion.” …

Lincoln did articulate a view of secession that would have been heartily endorsed by the Confederacy: “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. … Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people that can may revolutionize and make their own of so much of the territory as they inhabit.” Lincoln expressed that view in an 1848 speech in the U.S. House of Representatives, supporting the secession of Texas from Mexico.

Why didn’t Lincoln share the same feelings about Southern secession? Following the money might help with an answer. Throughout most of our nation’s history, the only sources of federal revenue were excise taxes and tariffs. During the 1850s, tariffs amounted to 90 percent of federal revenue. Southern ports paid 75 percent of tariffs in 1859. What “responsible” politician would let that much revenue go? [“Historical Ignorance II,” creators.com, July 22, 2015]

Yes, it can be asserted (with some degree of accuracy) that slavery was the proximate cause of the Civil War, because it was the issue of slavery that brought the longstanding tension between North and South to a head. But the leaders of the South also had a righteous cause, in principle: the cause of constitutional government. This is from my post, “The Southern Secession Reconsidered“:

What tends to be forgotten is the South’s pre-Civil War stance with respect to the central government. Southern resistance to the centralization of political power, and to the central government’s unconstitutional exercises of power, long pre-dated the Southern secession and was founded on a valid interpretation of the Constitution.

The Civil War, as a forcible act of reunification, is defensible only insofar as a main result was the end of slavery in the United States. On constitutional grounds, however, the Southern secession was valid and should not have been contested. [Chapter and verse follows.]

My current view of the Constitution — “How Libertarians Ought to Think About the Constitution” — is more cynical and sweeping:

What does all of this mean for secession? Here it is, from the beginning and by the numbers:

1. The Constitution was a contract, but not a contract between “the people.” It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States….

2. Despite their status as “representatives of the people,” the various fractions of the populace that drafted and ratified the Constitution had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations….

3. The Constitution was and is binding only in the way that a debt to a gangster who demands “protection money” is binding. It was and is binding because state actors have the power to enforce it, as they see fit to interpret it….

4. The Constitution contains provisions that can be and sometimes have been applied to advance liberty. But such applications have depended on the aims and whims of those then in positions of power.

5. It is convenient to appeal to the Constitution in the cause of liberty … but that doesn’t change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

6. Any person and any government in the United States may therefore, in principle, reject the statutes, executive orders, and judicial holdings of the United States government (or any government) as non-binding.

7. Secession is one legitimate form of rejection….

8. An  act of secession may be put down — through legal process or force of arms — but that doesn’t alter the (limited) legitimacy of the act.

9. Given the preceding, any act of secession is no less legitimate than was the adoption of the Constitution.

10. The legitimacy of an act of secession isn’t colored by its proximate cause, whether that cause is a desire to preserve slavery, or to escape oppressive taxation and regulation by the central government, or to live in a civil society that is governed by the Golden Rule. The proximate cause must be evaluated on its own merits, or lack thereof.

 

If the feds continue their assault on liberty, secession will become an increasingly attractive option. There are other options, including de facto secession.

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A Case Study: Empathy vs. Intellect

A guest post by L.P. See this post for an explanation of cognitive and affective empathy.

Referring back to part 5 of my series on empathy, Edwin Rutsch, Director of the Center for Building a Culture of Empathy and Compassion invited me to participate in a video interview to be published on YouTube. I’ll explain in detail why the interview never took place since Rutsch allowed me to divulge the contents of our interactions.*

In Cognitive Empathy and Emotional Empathy in Human Behavior and Evolution, Adam Smith writes “empathic overdevelopment might be at the expense of other mental abilities,” such as an intellectual deficit. Smith acknowledges that he’s conducting exploratory theorizing, making predictions about the relationship between cognitive and affective empathy (referred to as “emotional empathy” or EE in his article) and that these predictions need testing.

Rutsch’s actions after issuing the invitation offer a case study of the trade-off between empathy and intellect. What’s more, Rutsch exhibits dishonesty, a weak sense of personal boundaries, and an unhealthy obsession with tracking down “anti-empathy” people. See his attempts to pressure Kevin D. Williamson (via petition) and Paul Bloom to interview. In the latter’s case, Rutsch divulged the contents of their email exchange (to Bloom’s discomfort) and subsequently created several YouTube videos about Bloom’s article.

Upon receiving Rutsch’s invitation to do the interview, I established that I’d only talk about my “Getting Real About Empathy” series, and Rutsch agreed. He set up a Google+ document to list topics for the video interview. As soon as I looked over this document, I knew that he had read only the recap points at the end of the posts.

Rutsch demonstrates his failure to read and understand my posts in his listing of me as an “anti-empathy” author at his site for his emergency response team to deal with. Oh, so “Empathy leads to the lack of empathy” huh Edwin? Well, alrighty then! I wonder what other nuggets of wisdom he gleaned from glancing at my posts. Perhaps 1 + 2 = 4 also Edwin? This is so precious that I’ll include an image of this, just in case the summary at his site is ever fixed. (Click to enlarge images below.)

Empathy leads to the lack of empathy

During the time that Rutsch and I communicated on the Google+ document, I urged him to read my posts and indicated that I’d cancel the interview if he didn’t demonstrate having read and understood the contents of my writing. Rutsch never did, so this became the basis for canceling the interview. In the image below, Rutsch’s words appear in green while mine appear in blue.

Edwin Rutsch copy of Google doc part 3

Rutsch was probably desperate because, the night before the interview was supposed to take place, he lied about having read my posts that night. I challenged his claim and he did not offer an explanation for how he could have read the posts without visiting this blog that night.

Rutsch lies part 1

Rutsch lies part 2

Speaking of contradictions, the following image contains Rutsch’s stance on government-mandated empathy programs. Note that just 2-3 weeks prior, in the YouTube video I referenced (my comments in red this time), he and some members of his team kept circling back on the topic of how to force those who’re reluctant to be more empathetic and conform to their values and expectations:

Rutsch on mandated empathy programs

Despite the hard tone of my narration of events, I don’t take pleasure in singling out and publicly criticizing an individual. However, I hope that speaking out may help some of his 30,000+ followers to see Rutsch for what he actually is. Perhaps there’s also a sliver of hope that Rutsch will learn how moronic it is to engage in knee-jerk pursuits and attempts to wear down authors of articles he didn’t read and understand in an effort to censor negative evaluations of empathy.

Henceforth, I won’t respond to Rutsch or his followers because I value my time. He or any member of his cult can still properly respond to my “Getting Real About Empathy” series by first reading and understanding it (along with the several scientific studies I cited – all essential in supporting my arguments) and then by writing an article with logical and supported rebuttals to each point that I made.

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*Below is my message (which conveys how fed up I was with his persistence) and Rutsch’s response. He clearly gave me permission to divulge the contents of our interaction:

Edwin,

We’re already having a recorded dialog about my empathy articles. Welcome to my writing show!!! Everything you’ve said here and the Google+ doc will go out to the public on the world wide web… including your resistance to learning, your resistance to new information, your unwillingness to read, your lack of integrity, and your futile attempts at controlling this conversation with me via empathic dialogue.

Rutsch permits publicly divulging contents of interaction

Free Speech Ends at the Northern Border

But you already knew that if you’ve followed the travails of Ezra Levant, and Mark Steyn, who fought Canada’s “hate speech” laws with some degree of success — but not complete success, it seems:

A business professor at a college in Canada has lost his job after posting a vehemently antigay message on Facebook.

Rick Coupland, a professor at St. Lawrence College in Kingston, Ont., last week shared a report from a Florida TV station about the raising of LGBT flags in St. Petersburg for Pride Month. He added this comment: “It’s the queers they should be hanging, not the flag.”

After college administrators received complaints, they began investigating the matter, and today on the school’s Facebook page, they announced, “Mr. Coupland is no longer an employee at St. Lawrence College.” An earlier post had noted that his comment was “not a reflection of our college values.”

St. Lawrence College is funded by the Province of Ontario, and therefore a government institution. In the United States, St. Lawrence College would be bound by the First Amendment, and Coupland’s remarks would be protected speech.

When I learned of the politically correct lynching of Coupland at a blog that I follow, I posted this comment:

I thought that only a humor-challenged leftist would consider a remark like Coupland’s as an actual death wish, which — even if it were — wouldn’t constitute an actual threat. I take Coupland’s remark as nothing more than a commentary about the extent to which “celebration” of gayness has gone over the top. If he actually hates gays, they’re free to return the favor on Facebook or any other forum of their choosing.

This led to the following exchanges between a reader of the French-Canadian persuasion (hereinafter “Pepsi“) and me (hereinafter “Moi’):

Pepsi — He is very clearly advocating genocide, and as such it is a crime under section 318 of the Criminal Code of Canada. I wouldn’t even try spinning such a perfectly clear statement into something innocuous. He was duly fired.

Moi — As I said, humor-challenged.

Pepsi — Don’t be ridiculous. What he said was crystal-clear and requires no exegesis…. The professor most clearly did not have the right to say this under Canadian law. He will be lucky to escape without a criminal complaint. He has lost his job, so I assume most will consider the matter closed.

Moi — Luckily, I don’t live in Canada.

Pepsi — Or practically anywhere else in the Western world. But you could enjoy the freedom to hate anyone you want in private. As one of my ex-FB friends from the USA said when discussing a similar issue, “I love my hate.” Too bad for those who would hope for the freedom to live without being publicly targeted by hatred; it just does not count for freedom on your side of the border.[*]

Moi — Ah, the reflexive application of the “h” word to those who disagree with you. I don’t hate homosexuals or anyone else, unless they’re actively trying to deprive me of life, liberty, or property. You’re jumping to another unwarranted conclusion, just as you were when you assume — I repeat, assume — that Coupland was actually advocating genocide. Unless you have information about Coupland that I lack, I venture to say that you don’t know whether he was advocating genocide, expressing his disdain for homosexuals, or expressing his weariness with the subject of homosexuality. On the evidence of your comments, I gather that you would take “va te faire foutre”[**] literally, though no one who says it means it literally.

End of discussion.

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* This incomprehensible statement leads me to believe that “Pepsi” is either mentally retarded or has a poor command of English — though both could be true.

** The French version of a rather rude expression that is often used by speakers of American English. You can quickly find its meaning by using your favorite internet search engine.

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Related reading [added 07/24/15]: Mark Steyn, “Is the Alberta ‘Law’ Society Even Crazier than the Crazy ‘Human Rights’ Commission?,” SteynOnline, July 24, 2015

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Related posts:

The Gaystapo at Work
The Gaystapo and Islam
The Beginning of the End of Liberty in America

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More about Social Norms and Liberty

I recently revised my page, “Social Norms and Liberty,” and announced that revision in this post. I say in the post that “social norms — long-standing and voluntarily evolved — [are] the bedrock of a truly libertarian order.” Neither the page nor the post is meant to stand alone in supporting that proposition. Many of the posts listed at the bottom of the page are meant to do that.

But I fear that I’ve never been clear enough about which social norms foster liberty. Thus the following rough taxonomy of social norms and their relationship to each other and to liberty:

Taxonomy of social norms

Liberty is attainable where civil society prevails — where there is in fact and spirit a regime of willing, peaceful coexistence and beneficially cooperative behavior. Such a regime allows for a minimal state, one that is limited to the protection of citizens from predators, foreign and domestic, who commit (or would commit) prohibited acts.

How do I know when someone isn’t to be trusted with my liberty? When he habitually signals — by deeds, words, or allegiances — the rejection of core social norms that conduce to liberty.

I do not distinguish between “personal” and “official” behavior. The actions of tyrants belie whatever honeyed words they use to justify those actions. A politician like Obama, for example, is as much of a tyrant (if less murderous) as a Hitler, Stalin, Mao, or Castro — his election by “the people” and his rhetoric about “fairness,” etc., to the contrary notwithstanding. His policies are destructive of economic and social liberty, and may yet prove destructive of the physical liberty of Americans. Those who adulate and enable him (and his ilk) are simply not to be trusted, even if their adulation and support are naive.

The same goes for anyone in this country who adheres to a version of Islam that professes jihad against America and Americans. Any such person (or group) may be “American” in man-made law, but he or she is no more to be respected or trusted than a murdering, drug-pushing, woman-beating gang member.

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Related reading: Theodore Dalrymple, “The Simple Truth about J.S. Mill’s Simple Truth,” Library of Law and Liberty, July 20, 2015

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Related posts — everything listed at “Social Norms and Liberty,” but especially:

Facets of Liberty
“We the People” and Big Government

Obama at the 13/16 Mark

Barack Obama today completes 13/16 of his allotted two terms as president. “Only” 18 months to go. It will seem like an eternity.

How’s our boy doing so far? Pretty badly, in the judgment of most folks. (Chalk up his re-election to Mitt the Insipid.) Here’s a look at O’s polling history since January 20, 2009:

Historay of Obama and Obamacare ratings
Source: Rasmussen Reports, Obama Approval Index History and sporadic polling about Obamacare (latest report here).

Each of the three lines is a plot of the ratio of favorable to unfavorable views of Obama and Obamcare. Values above 1 mean that the favorables outweigh the unfavorables; values below 1 mean that the unfavorables outweigh the favorables. The blue line tracks the 7-day average of Obama’s overall rating with likely voters. The black line tracks the 7-day average of Obama’s rating with likely voters who express strong approval or disapproval. The green line is a plot of Obamacare’s standing, as measured by the ratio of strong approval to strong disapproval among likely voters. (Rasmussen’s last ratings of Obamacare were published on May 25, 2015.)

Here’s a closeup of Obama’s ratings for the past 52 weeks:

Obama's net approval ratings_140721-150720

The bump in late June-early July — since deflated by news of Obamacare premium hikes and the surrender to Iran — followed closely upon Obama’s “victories” in the Supreme Court on same-sex “marriage” and subsidies for Obamacare.

The bump  — like Obama’s surge after the 2012 election — reflects the shallowness and fickleness of many (too many) voters. Some of the people may get the government that they want, but all of the people get the government that they don’t deserve.

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Related reading: Richard Winchester, “What Hath Obama Wrought?,” American Thinker, July 22, 2015

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Related posts:

Another Obama Lie, and a Rant
“We the People” and Big Government
The Culture War
The Fall and Rise of American Empire
O Tempora O Mores!
Presidential Treason
“A Date Which Will Live in Infamy”
Romanticizing the State
The Criminality and Psychopathy of Statism
Governmental Perversity
Greed, Conscience, and Big Government
The Slow-Motion Collapse of the Economy
The Obamacare Effect: Greater Distrust of Government
Does Obama Love America?
Obamanomics in Action
Democracy, Human Nature, and the Future of America
1963: The Year Zero
The Beginning of the End of Liberty in America

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Social Norms and Liberty

I often refer to social norms — long-standing and voluntarily evolved — as the bedrock of a truly libertarian order. This page serves as a permanent home for my views about social norms. It includes a long list of posts about social norms, liberty, libertarianism, and the destructive role of government.

Marriage: Privatize It and Revitalize It

REVISED 07/15/15 (AS NOTED BELOW)

Privatize marriage. That’s the standard libertarian response to the dispute about same-sex marriage. The idea is to get government out of the marriage business by letting couples (and larger groups, I suppose) enter into contracts without government licensing. Such contracts might be styled marriage contracts, civil unions, cohabitation agreements, domestic partnership agreements, or what have you. But they would be private contracts, entered into by consenting adults without government’s permission or imprimatur.

I used to oppose the privatization of marriage because I believed, naively, that it would be protected by government. By “marriage” I mean the ages-old institution through which heterosexual couples conjoined their lives — an institution that arose without benefit of government, and which government has subverted.

I now believe privatization to be a good idea because a majority of the Supreme Court has made a mockery of marriage with its ruling in Obergefell v. Hodges. As a private institution, marriage would be accorded more respect than it will be accorded as a definitional whim of five justices.

That’s only the latest bit of damage caused by government. Consider the state of affairs in the United States: a high divorce rate (even if it’s somewhat lower than a few decades ago), rampant serial cohabitation, and a rising out-of-wedlock birth rate. All of this, and more, can be laid to the easing of divorce laws, programs that encourage mothers to work outside the home, and programs that encourage illegitimacy and discourage parental responsibility (e.g., AFDC, CHIP, SNAP, PPACA, and extended unemployment benefits).

Marriage — “thanks” to government — is a far cry from what it was and should be: a lifetime commitment to a spouse; the raising of children to be moral, hard-working citizens; the creation and continuation of family ties that bring with them the joy of belonging and understood obligations to help each other through hard times, unto death. Marriage is (or was), in other words, a binding force for good — a force that has been undermined by government through actions ranging from no-fault divorce laws to welfare for unwed mothers to the orchestrated attack by federal courts that culminated in Obergefell v. Hodges. Given the abdication of its responsibility to preserve, protect, and defend a vital institution, government should get out of the marriage business.

Marriage will be better served if loving couples reject government’s (now irrelevant and destructive) role and enter into private marriage contracts. Such contracts should be so thoroughly drawn that government wouldn’t have to approve or be a party to separations, divorces, property settlements, custodial arrangements, or any of the other messiness that goes on in family courts. Couples would carefully consider and agree ahead of time how to deal with certain contingencies, and make contractual provisions for them — including private counseling and arbitration. Perhaps the covenant marriage contract, which fosters marital and familial stability, would become the model for a large fraction of contracts. (Catholics, Orthodox Jews, and others would enter into even more stringent contracts, of course.)

How can government exit the marriage business? Rather easily, I believe. Each State still has the power to regulate marriage within its borders. A State could simply repeal its extant constitutional provisions and marriage laws and replace them with a fairly simple statute; for example [revised to eliminate the possibility of polygamy, and to remove all traces of governmental involvement]:

Marriage in this State is a private contractual arrangement between two mentally competent, adult persons whose consanguinity is of the 5th degree or greater, and who are not currently in a marriage.

This State shall not dictate the terms and conditions of marriage contracts, but each marriage contract must specify:

  • conditions (if any) for separation and divorce
  • provisions for financial support, the division of property, and the custody of children in the event of separation or divorce
  • obligations of the parties with respect to any children from a previous marriage
  • provisions for private counseling, and the arbitration of disputes arising under the marriage contract.  (If the parties are still in dispute after private proceedings, either or both of them may initiate a civil action, but there will be no special courts devoted to marital disputes and related matters.)

Every marriage contract shall be witnessed by two mentally competent adults.

The signing of a marriage contract, in the sole discretion of the parties thereto, may be preceded, accompanied, or followed by a ceremony and/or celebration, which shall be held in a private home, other private location, or place of religious worship. In accordance with the First and Fifth Amendments to the United States Constitution, neither this State nor the government of the United States may require any person, organization, or religious institution to perform or host a marriage ceremony and/or celebration.

No marriage ceremony or celebration shall be held in or on property owned, leased, or otherwise controlled by this State or any political subdivision or entity of this State.

No official of this State or of any political subdivision or entity of this State, acting in his or her official capacity, shall witness a marriage contract or perform or host a marriage ceremony or celebration.

In accordance with the First, Ninth, and Tenth Amendments to the United States Constitution, neither this State nor the government of the United States may require a person to witness a marriage contract against his or her will. It shall be the responsibility of the parties to a contract to obtain willing witnesses.

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Related posts:

The Marriage Contract Libertarianism, Marriage, and the True Meaning of Family Values Same-Sex Marriage “Equal Protection” and Homosexual Marriage Marriage and Children Parenting, Religion, Culture, and Liberty “Family Values,” Liberty, and the State The Myth That Same-Sex “Marriage” Causes No Harm Surrender? Hell No! Posner the Fatuous Getting “Equal Protection” Right The Writing on the Wall How to Protect Property Rights and Freedom of Association and Expression Judicial Supremacy: Judicial Tyranny The Beginning of the End of Liberty in America

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Substantive Due Process, Liberty of Contract, and States’ “Police Power”

I published this post at Liberty Corner almost ten years ago. I was prompted to re-publish it (with minor changes) upon reading George Will’s column about Chief Justice Roberts’s egregious treatment of Lochner v. New York and substantive due process in the Chief’s otherwise commendable dissent from the majority in Obergefell v. Hodges.

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Judge Raymond Randolph, in a speech to the Federalist Society’s National Lawyer’s Convention on November 11, 2005, discussed Judge Henry Friendly’s draft opinion in a suit challenging New York’s abortion prohibition in 1970. According to Juan Non-Volokh (Jonathan Adler) of The Volokh Conspiracy, Judge Friendly’s opinion

was never published because New York amended its law before the case was decided. Had it been issued, it would have been the first federal court opinion on the constitutionality of a state abortion law. Judge Randolph was one of Friendly’s clerks at the time, and kept a copy of the never-issued draft.

According to the draft, Judge Friendly would have upheld the law, not because he was anti-abortion, but because the law was a constitutional exercise of state power — and that many of the inherently arbitrary policy judgments about abortion should or should not be permissible are better made by elected legislatures than a panel of federal judges. As described by Randolph, the decision anticipated many of the subsequent questions about the legitimacy of non-prohibitory abortion regulations that would follow in the wake of Roe.

Aside from that, Randolph had much to say about substantive due process, privacy, and a Court that has lost sight of the Constitution in its zeal to attain certain results:

. . . Substantive due process is the idea that the Due Process Clause of the 14th Amendment protects rights even if they are not set out specifically in the Constitution.

The Due Process Clause states simply that ““nor shall any State deprive any person of life, liberty, or property, without due process of law.”” Given the theme of this conference, one must ask about the original meaning of these words. The 14th Amendment due process clause is identical to the due process clause in the Fifth Amendment, applicable to the federal government. Two current Justices — you may guess who they are –– think the phrase ““substantive due process”” is an oxymoron. Process means procedure, not substance –– and that is what it meant historically. That the due process clause ever came to apply to legislation, as it did for the first time in the infamous Dred Scott case, is strange enough. What is the process due from a legislature? A quorum? An accurate vote count? There is something else I find quite odd about this concept. In many of the substantive due process cases the Court has stated that ““fundamental liberties”” are protected. Roe v. Wade is an example. Freedom of religion is, by all accounts, a fundamental liberty. Are we to suppose that freedom of religion is a right the state can take away so long as it does so with due process? That would be protecting a civil right in one amendment, the First, only to allow it to be taken away through another.

The Framers were smart people; they could not have intended such an absurdity. And they did not. History shows that the meaning of ““liberty”” as used in the 5th and 14th Amendments is simply freedom from restraint — that is, imprisonment. This explains why the Framers placed the due process clause in the Fifth Amendment, which deals almost entirely with criminal proceedings. Learned Hand, found the historical evidence supporting this interpretation clear beyond — in his words –– any ““reasonable doubt.” Yet the chances of the Supreme Court going back to the original understanding are, I think, slim to none.

But . . . the Fifth Amendment does not deal exclusively with criminal proceedings, the Fourteenth Amendment has nothing to do with criminal proceedings, and both do explicitly prohibit the taking of life, liberty, or property without due process of law. Given the Due Process Clauses of the Fifth and Fourteenth Amendments, I do not see how a legislature can enact any law that simply amounts to a “taking” of liberty or property for no valid constitutional purpose.

The Framers were smart people, as Randolph says. That’s why the Constitution, in Article I, Section 9, says explicitly that “No Bill of Attainder or ex post facto Law shall be passed” by Congress. That’s why the Constitution in Article I, Section 10, says explicitly that “No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts. . . .”

The Framers understood very well that obligation of contracts (or liberty or freedom of contract) is both a matter of liberty and a matter of property. To interfere legislatively with liberty of contract amounts to a deprivation of due process because such interference prevents willing parties from employing their labor or property in the pursuit of otherwise lawful ends. That is, the legislature finds them “guilty” of otherwise lawful actions by forbidding and penalizing those actions.

The concept of substantive due process is in bad odor, in large part because (as the Wikipedia article explained in November 2005) it

was first applied by the Supreme Court in a subsection of Dred Scott v. Sandford (1856), though it can be argued that the doctrine dates back to Calder v. Bull (1798). Dred Scott was a slave who claimed that passing into territory where slavery was prohibited destroyed his owner’s property rights over him. The court ruled in three parts. First, it argued that Dred Scott was not a citizen of the United States and therefore he had no right to liberty under the Constitution of 1856 — this argument, now harshly repudiated, is not based on the Due Process clause but did establish that the Court considered Dred Scott to be property. Second, the court argued that no Federal law could exist which per se appropriated property without advance notice and opportunity for judicial review — —this was a Due Process argument. Thus, the decision established lack of procedure violates Due Process just as much an unfair procedure. After the Fourteenth Amendment applied due process restrictions to states, the Supreme Court used this same doctrine to protect a liberty of contract by routinely striking down (such as in Lochner v. New York) those economic and labor regulations which restricted particular economic activities per se without opportunity for judicial review.

Lochner v. New York is the 1905 case in which the Supreme Court struck down a State statute that attempted to impose a maximum-hours limitation on bakers. Lochner is a bête noire to liberals because it triggered a wave of Supreme Court decisions deemed “pro-business” (as if business were an enemy). But Lochner and its offspring were decided rightly because they upheld, as a matter of due process, the Constitution’s explicit guarantee of liberty of contract. As Justice Peckham wrote for the Lochner majority,

[t]he [New York] statute . . . interferes with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U.S. 578 , 41 L. ed. 832, 17 Sup. Ct. Rep. 427. Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment. . . .

This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the state it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: Is it within the police power of the state? and that question must be answered by the court.

The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. . . .

It is a question of which of two powers or rights shall prevail,-the power of the state to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.

Justice Holmes, in his famous dissent in Lochner, said that “[t]he 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Social Statics (according to the Wikipedia article in November 2005) is a “conception of social justice, which emphasized the responsibility of the individual for their [sic] nature and actions.” Holmes, in other words, preferred a paternalistic government, as opposed to the government of liberty and individual responsibility clearly intended by the Framers.

Lochner — properly understood — is not about enacting Mr. Spencer’s Social Statics nor (as usually charged) is it about achieving a certain “pro-business” result through “judicial activism.” Lochner is about honoring the Constitution’s explicit guarantee of liberty of contract, and about ensuring that that guarantee is not vitiated by legislative overreaching. It is a violation of due process when a legislature deprives citizens of liberty or property by enacting laws forbidden by the Constitution. And that, in essence, is what the Lochner Court said.

Turning to liberty of contract, I quote from Richard Epstein’s article in The Heritage Guide to the Constitution on freedom of contract (pp. 171-5):

What is clear . . . is that in the antebellum period the Obligation of Contract Clause was the only open-ended federal constitutional guarantee that applied to the states. . . .

Everyone conceded that the clause applied to ordinary contracts between private persons, including partnerships and corporations. . . .

. . . At this point, one way to read the clause is to hold that its prohibitions [affect prospective contracts] but are not absolute. The state may alter the rules governing future contracts only in ways that offer just compensation to all contracting parties in the form of greater security and stability in their contractual obligations. The three legislative reforms that arose most frequently in the early debates — a statute of frauds, a statute of limitations, and recording acts — are all measures that meet this standard.

By refusing to give the clause any prospective role, Ogden [1827] opened the gateway to partisan legislation that limited the ability of some parties to contract without imposing similar restrictions on their economic competitors. . . .

But liberty of contract survived Ogden. I have written here about the long life and eventual demise of liberty of contract, a demise that coincided with the rise of States’ “police power”:

The Court upheld [liberty of contract] in Bronson v. Kinzie (1843). According to The Oxford Guide to United States Supreme Court Decisions (Oxford University Press, 1999, p. 33),

Chief Justice Roger B. Taney held that [a] legislative attempt to modify the terms of [an] existing mortgage was an unconstitutional impairment of the obligation of contract. Taney agreed that a state could alter the remedies available to enforce past as well as future contracts. He nonetheless emphasized that such changes could not materially impair the rights of creditors. In broad language Taney extolled the virtue of the Contract Clause: “It was undoubtedly adopted as part of the Constitution for a great and useful purpose. It was to maintain the integrity of contracts, and to secure their faithful execution throughout this Union.”

The Oxford Guide continues :

The Court long adhered to the Bronson rule, invalidating state laws that interfered with contractual rights in the guise of regulating remedies. The decision was effectively superseded, however, by Home Building and Loan Association v. Blaisdell (1934), in which the justices ruled that contracts were subject to the reasonable exercise of state police power.

Just what is “reasonable exercise of state police power”? In Home Building and Loan Association, according to Chief Justice Hughes, writing for the Court, it is this:

We come back, then, directly, to the question of impairment. As to that, the conclusion reached by the court here seems to be that the relief [from mortgage foreclosures] afforded by the [Minnesota] statute does not contravene the constitutional provision because it is of a character appropriate to the emergency and allowed upon what are said to be reasonable conditions.

That is, the Court simply decided to uphold a Minnesota statute that altered the terms of a contract because it wanted to do so, not because it had constitutional authority for doing so. The Constitution doesn’t forbid States to impair contracts except in emergencies or to exercise their “policing power”; the Constitution flatly forbids States to impair contracts. A libertarian Court would begin to restore freedom of contract by reversing Home Building and Loan Association v. Blaisdell….

As for States’ so-called policing power, an article at FindLaw tells this tale:

[I]deas embodying the social compact and natural rights, which had been espoused by Justice Bradley in his dissent in the Slaughter-House Cases, 43 had been transformed tentatively into constitutionally enforceable limitations upon government. 44 The consequence was that the States in exercising their police powers could foster only those purposes of health, morals, and safety which the Court had enumerated, and could employ only such means as would not unreasonably interfere with the fundamentally natural rights of liberty and property, which Justice Bradley had equated with freedom to pursue a lawful calling and to make contracts for that purpose. 45

So having narrowed the scope of the state’s police power in deference to the natural rights of liberty and property, the Court next proceeded to read into the concepts currently accepted theories of laissez faire economics, reinforced by the doctrine of Social Darwinism as elaborated by Herbert Spencer, to the end that ”liberty,” in particular, became synonymous with governmental hands-off in the field of private economic relations. In Budd v. New York, 46 Justice Brewer in dictum declared: ”The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government.” …

To the State was transferred the task of demonstrating that a statute interfering with the natural right of liberty or property was in fact ”authorized” by the Constitution, and not merely that the latter did not expressly prohibit enactment of the same.

In 1934 the Court in Nebbia v. New York 52 discarded this approach to economic legislation, and has not since returned to it. The modern approach was evidenced in a 1955 decision reversing a lower court’s judgment invalidating a state statutory scheme regulating the sale of eyeglasses to the advantage of ophthalmologists and optometrists in private professional practice and adversely to opticians and to those employed by or using space in business establishments.

And there we are. In a single year (1934) the Supreme Court demolished liberty of contract and created out of whole cloth what amounts to an unlimited “police power” for the States — liberty and property be damned.

It is long past time for a return to the substantive due process epitomized by Lochner, that is, to the defense of constitutionally guaranteed liberties against governmental usurpation of those liberties.

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Related reading: Damon Root, “Yes, the 14th Amendment Protects Economic Liberty,” Hit & Run Blog (Reason.com), July 13, 2015

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The Tenor of the Times

Below are some links that I’ve collected about the culture war, political correctness, political hypocrisy, and other disturbing features of the contemporary scene. I don’t agree with everything said by the writers, but I believe that they are broadly right about the madness into which America seems to be rapidly descending.

Each link is followed by an excerpt of the piece that is linked. The excerpt — usually but not always the lede — is meant to entice you to follow the link. I urge you to do so.

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Adam Marcus and Ivan Oransky, “Author Retracts Study of Changing Minds on Same-Sex Marriage after Colleague Admits Data Were Faked,” Retraction Watch, May 20, 2015 (et seq.):

In what can only be described as a remarkable and swift series of events, one of the authors of a much-ballyhooed Science paper claiming that short conversations could change people’s minds on same-sex marriage is retracting it following revelations that the data were faked by his co-author. [Leftists love to fake data to make political points (e.g., economics and climate studies). — TEA]

Jason Morgan, “Dissolving America,” American Thinker, June 29, 2015

The instant media consensus is in: the Confederate flag atop the South Carolina statehouse has got to go.  The battle flag of the Army of Northern Virginia, we are told, just doesn’t represent who we are as a nation anymore.

But if we are going to take the Confederate flag down because it no longer represents us, then there is no reason why we shouldn’t take the American flag down, too.  Not just from the government buildings in South Carolina, but from every home, ship, office, and church throughout the entire American territory.  Because neither flag has anything to do with who we are anymore.  Old Glory is now just as much a meaningless relic as the republic that created it — as obsolete as the Stars and Bars became in April of 1865.

Bill Vallicella, “SCOTUS and Benedict,” Maverick Philosopher, June 30, 2015:

[Quoting Rod Dreher]:

It is time for what I call the Benedict Option. In his 1982 book After Virtue, the eminent philosopher Alasdair MacIntyre likened the current age to the fall of ancient Rome. He pointed to Benedict of Nursia, a pious young Christian who left the chaos of Rome to go to the woods to pray, as an example for us. We who want to live by the traditional virtues, MacIntyre said, have to pioneer new ways of doing so in community. We await, he said “a new — and doubtless very different — St. Benedict.”

So now you are out in the desert or the forest or in some isolated place free of the toxic influences of a society in collapse.  The problem is that you are now a very easy target for the fascists.  You and yours are all in one place, far away from the rest of society and its infrastructure.  All the fascists have to do is trump up some charges, of child-abuse, of gun violations, whatever.  The rest of society considers you kooks and benighted bigots and won’t be bothered if you are wiped off the face of the earth.  You might go the way of the Branch Davidians.

Heather Mac Donald, “The Shameful Liberal Exploitation of the Charleston Massacre,” National Review, July 1, 2015:

In fact, white violence against blacks is dwarfed by black on white violence. In 2012, blacks committed 560,600 acts of violence against whites (excluding homicide), and whites committed 99,403 acts of violence (excluding homicide) against blacks, according to data from the National Crime Victimization Survey provided to the author. Blacks, in other words, committed 85 percent of the non-homicide interracial crimes of violence between blacks and whites, even though they are less than 13 percent of the population. Both the absolute number of incidents and the rate of black-on-white violence are therefore magnitudes higher than white-on-black violence. There is no white race war going on.

Steve McCann, “America’s Destiny in the Balance,” American Thinker, July 1, 2015:

Beginning in the 1930’s, under the aegis of Franklin Roosevelt, the nation began a drift to the left as a reaction to the Great Depression.  However, those truly committed to socialist/Marxist philosophy and tactics remained in the shadows until the 1960’s.  The Viet Nam war protests unleashed far more than just a demand for an end to the war.  Those that blamed America for all manner of alleged sins in the past and determined to transform the United States into a socialist/Marxist nirvana were able to step out from behind the shadows and enter the mainstream of national legitimacy.  This swarm of locusts soon enveloped the higher levels of academia spawning countless clones to further infiltrate all strata of society — most notably the mainstream media, the entertainment complex and the ultimate target: the Democratic Party.  These vital segments of the culture are now instruments of indoctrination, propaganda and political power.

Victoria Razzi, “Asian American Studies Professors Stay Silent on Asian vs. Black Integration,” The College Fix, July 1, 2015:

An 80-year-old Duke University professor recently argued that Asian Americans have integrated into America better than African Americans, a controversial and contentious assertion that caused uproar and prompted the scholar to be labeled a racist.

Eugene Slavin, “The White Privilege Lie,” American Thinker, July 1, 2015:

Of all the invectives launched against the United States by the resurgent American Left, the charge that in America, White Privilege reigns supreme is the most insidious and culturally ruinous.

Its intent is unambiguous: leftists perpetuate the White Privilege lie to smear America and its institutions as inherently racist, and therefore unworthy of adulation and in need of fundamental socioeconomic transformation.

David Limbaugh, “I Told You Things Are Getting Crazier,” CNSNews.com, July 7, 2015:

The world is upside down, inside out, sideways, crazy, nutso. Bad is good; up is down. Left is right; right is wrong. Evil is good; insanity is sanity. Abnormal is normal. Circles are squares. Hot is cold. Luke warm is red hot — among Republicans, anyway. Common sense is uncommon. The world is otherworldly. Dissent is “hate.” Diversity means conformity. The good guys are the bad guys; virtue is vice; sophistry is intellectualism; jerks are celebrated; debauchery is glorified; the holy is debauched. Let me share some of these headlines, which speak for themselves — loudly and depressingly.

Robert Joyner, “The Hypocrisy of #Black Lives Matter, July 4th EditionTheden, July 9, 2015:

As Theden has argued before, the Black Lives Matter movement is one that very clearly does not care about its own stated goals. The name implies that the movement exists to protect and enrich the lives of blacks, but it spends its time protesting often spurious cases of police brutality and, more recently, the flying of “offensive” flags. It is conspicuously silent on the number one threat to black lives in America, which is other blacks. The movement routinely hectors whites, but frankly the preponderance of evidence shows that whites already value black lives more than blacks do themselves.

Fred Reed, “‘Payback’s a Bitch': Rural Wisdom and the Gathering Storm,” Fred on Everything, July 9, 2015:

The furor over the Confederate flag, think I, has little to do with the Confederate flag, which is a pretext, an uninvolved bystander. Rather it is about a seething anger in the United States that we must not mention. It is the anger of people who see everything they are and believe under attack by people they aren’t and do not want to be—their heritage, their religion, their values and way of life all mocked and even made criminal.

Bill Vallicella, “Is Reason a White Male Euro-Christian Construct?,” Maverick Philosopher, July 10, 2015:

[Quoting John D. Caputo]:

White is not “neutral.” “Pure” reason is lily white, as if white is not a color or is closest to the purity of the sun, and everything else is “colored.” Purification is a name for terror and deportation, and “white” is a thick, dense, potent cultural signifier that is closely linked to rationalism and colonialism. What is not white is not rational. So white is philosophically relevant and needs to be philosophically critiqued — it affects what we mean by “reason” — and “we” white philosophers cannot ignore it.

This is truly depressing stuff.  It illustrates the rarefied, pseudo-intellectual stupidity to which leftist intellectuals routinely succumb, and the level to which humanities departments in our universities have sunk.

It’s all depressing. Have a nice day.

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Will Texas Pay My Taxes?

Ryan H. Murphy offers a tantalizing idea:

In Texas, taxes on income are against the state constitution. However, Texans still pay the federal income tax.

In principle, the state could effectively end the federal income tax by using two surprisingly simple and straightforward legislative maneuvers—neither of which involves secession. Texas could choose to send its federal taxpayers a check in the form of a state tax credit equal to their federal income tax liability. It could then pay for the credit by increasing the state sales tax in a revenue neutral way. effectively, t hat would mean the end of all income taxes in the state while significantly raising sales taxes. This isn’t about cutting taxes per se; rather, this is the tax swap to end all tax swaps….

This would constitute a drastic policy shift, but why not do it? The superiority of consumption taxes to income taxes has long been argued by many neoclassical economists. The real difference between a consumption tax and an income tax is that a consumption tax encourages saving and thrift. We have good reason to believe  that (relatively speaking) discouraging saving—and therefore investment—has significant negative effects on growth….

[Jens] Arnold’s work indicates that consumption taxes and property taxes are distinctly superior to income taxes, especially to an income tax with high progressivity. William McBride of the Tax Foundation summarizes this in a 2012 study, “What Is the Evidence on Taxes and Growth?” What is clear is that a U.S. state that is willing to move its tax environment strongly in this direction would attract investment, entrepreneurs, and workers from the other 49 states. [“How States Can Effectively End the Federal Income Tax — and Why They Should,” Regulation, Summer 2015]

Murphy doesn’t try to assess the legality of the maneuvers, nor will I. I’m interested in the arithmetic of Murphy’s proposal.

I dismiss Murphy’s emphasis on the supposed advantages to a particular State: attracting “investment, entrepreneurs, and workers from the other 49 states.” That just a kind of mercantilism. What’s critical is that sales taxes encourage saving and investment, while income taxes discourage them. (That’s a relative statement for a given level of tax revenue. In fact, saving and investment would be maximized when the sum of all tax receipts is just sufficient to maintain public order and national defense, and when those receipts come from sales and use taxes.)

As a resident of Texas — one of seven States that doesn’t levy an income tax — I’m keenly interested in Murphy’s scheme. But is it feasible for Texas to pay the federal income taxes of its residents, then collect the same amount through sales taxes? I think not.

In fiscal year 2008, for example, the residents of Texas owed $89 billion in federal income taxes. In the same fiscal year the State’s sale tax receipts were $22 billion. (The State’s sales-tax rate is 6.25 percent on taxable items. Cities, counties, and other jurisdictions are allowed to collect up to an additional 2 percent on taxable items, but there’s no need to include those taxes in this analysis, as you’ll see.)

Assuming that ratio of federal income taxes to State sales taxes hasn’t changed much since 2008, Texas would have to quintuple its sale-tax rate from 6.25 percent to more than 31 percent in order to pay the federal income taxes of Texas residents while netting its usual sales-tax income. How likely is that?

The nationwide picture looks much the same. All U.S. taxpayers owed the feds $1.1 trillion in fiscal year 2008. Sales tax receipts across the country came to $443 billion in the same period. (This amount includes receipts of local jurisdictions as well as States.) Sales-tax rates would have to be multipled by 3.5 if all States were to finance federal income-tax bills while they (and local governments) net their usual sales-tax income. How likely is that?

Partial subsidies might be feasible, though politically difficult. There’s always great resistance to increases in sales-tax rates because sales taxes are said to be regressive.

Murphy’s idea sounds good, but it’s not a practical one. Also, if adopted widely it would lighten the federal income-tax burden on high-income individuals. That’s a good thing and a bad thing. On the bad side, it would make high-income individuals less mindful of the need to fight for lower tax rates and the spending cuts that should go with lower tax rates. The proper objective — if you favor liberty and economic growth — isn’t to disguise the burden of federal spending, as Murphy’s scheme would do, but to reduce that burden, by a whole lot.

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Related posts:

Income Inequality and Economic Growth
A Case for Redistribution, Not Made
McCloskey on Piketty
The Rahn Curve Revisited
The Slow-Motion Collapse of the Economy
How to Eradicate the Welfare State, and How Not to Do It
The Real Burden of Government
Diminishing Marginal Utility and the Redistributive Urge
Obamanomics in Action
Capitalism, Competition, Prosperity, and Happiness

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Further Thoughts about the Keynesian Multiplier

In “The True Multiplier,” I argue that the upper limit of the Keynesian multiplier is 1. That is, real economic output can’t be increased by more than the amount of an exogenous increase in demand. If there are unemployed resources, for example, and government tries to employ them by printing money and spending it on those unemployed resources, the real output of the economy will increase only by the amount of real output produced by those hitherto unemployed resources. The real output of the economy will not – and cannot – increase by a multiple of the amount spent by government to employ unemployed resources.

A Keynesian would disagree. He would say that if the marginal propensity to consume is 0.8, the theoretical multiplier is 5. (See “The Keynesian Multiplier: Phony Math” for the derivation.) The Keynesian would probably agree that the actual multiplier is less than 5 because for at least some of the reasons discussed in “A Keynesian Fantasy Land,” but would insist that it’s greater than 1. But it can’t be, for the reasons given in “The Keynesian Multiplier: Phony Math” and “The True Multiplier.”

There’s another reason; thus this post.

Consider a static, full-employment economy, in which the same goods and services are produced year after year, yielding the same incomes to the same owners of the same factors of production, which do not change in character (though capital goods are maintained and replaced in kind). The owners of the factors of production spend and save their incomes in the same way year after year, so that the same goods and services are produced year after year, and those goods and services encompass the maintenance and in-kind replacement of capital goods. Further, the production cycle is such that all goods and services become available to buyers on the last day of the year, for use by the buyers during the coming year. (If that seems far-fetched, just change all instances of “year” in this post to “month,” “week,” “day,” “hour,” “minute,” or “second.” The analysis applies in every case.)

What would happen if there were a sudden alteration in this circular flow of production (supply), on the one hand, and consumption and investment (demand), on the other hand? Specifically, suppose that a component of the circular flow is a bilateral exchange between a gunsmith and a dairyman who produces butter: one rifle for ten pounds of butter. If the gunsmith decides that he no longer wants ten pounds of butter, and therefore doesn’t produce a rifle to trade for butter, the dairyman would reduce his output of butter by ten pounds.

A Keynesian would describe the situation as a drop in aggregate demand. There is no such thing as “aggregate demand,” of course; it’s just an abstraction for the level of economic activity, which really consists of a host of disparate transactions, the dollar value of which can be summed. Further, those disparate transactions represent not just demand, but demand and supply, which are two sides of the same coin.

In the case of the gunsmith and the dairyman, aggregate output drops by one rifle and ten pounds of butter. The reduction of output by one rifle is voluntary and can’t be changed by government action. The reduction of output by ten pounds of butter would be considered involuntary and subject to remediation by government – in the Keynesian view.

What can government do about the dairyman’s involuntary underemployment? Keynesians would claim that the federal government could print some money and buy the dairyman’s butter. This would not, however, result in the production of a rifle; that is, it would not restore the status quo ante. If the gunsmith has decided not to produce a rifle for reasons having nothing to do with the availability of ten pounds of butter, the government can’t change that by buying ten pounds of butter.

But … a Keynesian would say … if the government buys the ten pounds of butter, the dairyman will have money with which to buy other things, and that will stimulate the economy to produce additional goods and services worth at least as much as the rifle that’s no longer being produced. The Keynesian would have to explain how it’s possible to produce additional goods and services of any kind if only the gunsmith and dairyman are underemployed (one voluntarily, the other involuntarily). The gunsmith has declined to produce a rifle for reasons of his own, and it would be pure Keynesian presumption to assert that he could be lured into producing a rifle for newly printed money when he wouldn’t produce it for something real, namely, ten pounds of butter.

Well, what about the dairyman, who now has some newly printed money in his pocket? Surely, he can entice other economic actors to produce additional goods and services with the money, and trade those goods and services for his ten pounds of butter. The offer of newly printed money might entice some of them to divert some of their production to the dairyman, so that he would have buyers for his ten pounds of butter. Thus the dairyman might become fully employed, but the diversion of output in his direction would cause some other economic actors to be less than fully employed.

Would the newly printed money entice the entry of new producers, some combination of whom might buy the dairyman’s ten pounds of butter and restore him to full employment? It might, but so would private credit expansion in the normal course of events. The Keynesian money-printing solution would lead to additional output only where (1) private credit markets wouldn’t finance new production and (2) new production would be forthcoming despite the adverse conditions implied by (1). And the fact would remain that economic output has declined by one rifle, which fact can’t be changed by deficit spending or monetary expansion.

This gets us to the heart of the problem. Deficit spending (or expansionary monetary policy) can entice additional output only if there is involuntary underemployment, as in the case of the dairyman who would prefer to continue making and selling the ten pounds of butter that he had been selling to the gunsmith. And how do resources become involuntarily underemployed? Here are the causes, which aren’t mutually exclusive:

  • changes in perceived wants, tastes, and preferences, as in the case of the gunsmith’s decision to make one less rifle and forgo ten pounds of butter
  • reductions in output that are occasioned by forecasts of lower demand for particular goods and services
  • changes in perceptions of or attitudes toward risk, which reduce producers’ demand for resources, buyers’ demand for goods and services, or financiers’ willingness to extend credit to producers and buyers.

I am unaware of claims that deficit spending or monetary expansion can affect the first cause of underemployment, though there is plenty of government activity aimed at changing wants, tastes, and preferences for paternalistic reasons.

What about the second and third causes? Can government alleviate them by buying things or making more money available with which to buy things? The answer is no. What signal is sent by deficit spending or monetary expansion? This: Times are tough, demand is falling, credit is tight, In those circumstances, why would newly printed money in the pockets of buyers (e.g., the dairyman) or in the hands of banks entice additional production, purchases, lending, or borrowing?

The evidence of the Great Recession suggests strongly that printing money and spending it or placing it with banks does little if any good. The passing of the Great Recession — and of the Great Depression seventy years earlier — was owed to the eventual restoration of the confidence of buyers and sellers in the future course of the economy. In the case of the Great Depression, confidence was restored when the entry of the United States into World War II put an end to the New Deal.

In the case of the Great Recession, confidence was restored (though not as fully) by the end of “stimulus” spending. The lingering effort on the part of the Fed to stimulate the economy through quantitative easing probably undermined confidence rather than restoring it. In fact, the Fed announced that it would begin to raise interest rates in an effort to convince the business community that the Great Recession is really coming to an end.

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Related reading:

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Related posts:

A Keynesian Fantasy Land
The Keynesian Fallacy and Regime Uncertainty
Why the “Stimulus” Failed to Stimulate
Say’s Law, Government, and Unemployment
Regime Uncertainty and the Great Recession
Economics: A Survey (also here)
Why Are Interest Rates So Low?
Vulgar Keynesianism and Capitalism
The Keynesian Multiplier: Phony Math
The True Multiplier
The Real Burden of Government
Obamanomics in Action
The Unemployment Rate Isn’t 5.3 Percent, and It Didn’t Drop in June

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Capitalism, Competition, Prosperity, and Happiness

Capitalism is a misnomer for the system of free markets that could deliver abundant prosperity and happiness, were markets left free. Free does not mean unfettered; competition for the favor of consumers exerts strong discipline on markets. And laws against theft, deception, and fraud would serve amply to keep markets honest, the worrying classes to the contrary notwithstanding.

Capitalism is but one pillar of free markets — an essential pillar, to be sure. But it is competition that drives capitalists, entrepreneurs, managers, and workers alike to excel in the satisfaction of consumers’ wants and to make the best use of resources as they satisfy those wants.

I argue that it is the curtailment of competition, due to the enlargement of government, that has caused the economies of the West to yield much less prosperity than they could, and much less psychic satisfaction than workers, managers, and entrepreneurs (if not to capitalists) would otherwise enjoy.

One reason for the ease with which competition has been stifled is the word’s negative connotation, which seems to hold sway even among millions of Americans who compete gladly for more business, better jobs, and higher incomes. The negative view of competition may date from 1845, when Friedrich Engels wrote these words:

Competition is the completest expression of the battle of all against all which rules modern civil society. [The Condition of the Working-Class in England in 1844, 1892 edition, p. 75]

Thanks to Engels and his ilk, most notably Karl Marx, competition became and remains a dirty word, with respect to economic activity if not with respect to games, sports, and idiotic TV shows. Economic competition is too much thought of as a brutal contest in which there are relatively few winners and myriad losers.

In fact, economic competition has myriad winners, consumers prominent among them. Adam Smith explained it in 1776:

When the quantity [of a commodity] brought to market exceeds the effectual demand, it cannot be all sold to those who are willing to pay the whole value of the rent, wages, and profit, which must be paid in order to bring it thither. Some part must be sold to those who are willing to pay less, and the low price which they give for it must reduce the price of the whole. [An Inquiry into the Nature and Causes of the Wealth of Nations, Chapter 7]

Consumers benefit not only from competition among the sellers of a particular good or service, but also from competition among the sellers of a variety of goods and services. In the first instance, consumers benefit from lower prices or higher quality when there’s more than one seller of a particular item (or items that are close substitutes, such as compact cars). In the second instance, the availability of a variety of items requires sellers of all of those items to compete for the consumer’s patronage, either on the basis of price or quality (or both). In either case, sellers often compete by offering new and improved goods and services, thus further benefiting consumers.

The owners of a particular business might wish that they had no competition. But even if the wish is seemingly granted (e.g., by crony-friendly regulations that prevent the formation of similar businesses), that business still has to compete with other kinds of businesses for the favor of consumers.

Most consumers are also sellers of their labor. And as sellers, they compete for jobs. Unless government steps in to designate winners (as in the case of affirmative action), labor competition enables employers to hire and promote workers who have seem to have skills and experience best suited to the work at hand. This is a boon to consumers because competition among workers enables the producers of goods and services to get the most “bang” from their labor budgets.

Labor competition is also a boon to workers. Rarely are workers in a situation where they have only one prospective employer. Employers must usually compete against one another for the services of workers. Competitive labor markets — markets that are free of arbitrary government rules and union-imposed restrictions on about hiring and promotion — help workers to find employment for which they are best suited, and help them maximize their income, given their skills and experience.

Again, absent government- and union-imposed restrictions, workers must use their skills and experience productively. If they don’t, they will be fired or at least not promoted beyond the level at which they are worth their pay. If employers are prevented from firing or demoting unproductive workers, better workers are denied opportunities to earn more. And consumers are harmed because they are forced by widely applicable government- and union-imposed restrictions to subsidize the products of inferior labor. The only escape from federal mandates is the substitution of capital for labor, which is why government-imposed minimum wages (among many things) harm the very groups that they are meant to help.

Engels, Marx, and their purportedly empathic successors want to do away with competition because they don’t understand how it helps consumers and workers. The “ideal” alternative to competition is communism (with a small “c”). But communism, like anarchism, is a system that works only for relatively small numbers of like-minded or genetically bonded persons, and then not for long. The only lasting substitute for communism has been state socialism (also known in its more draconian manifestations as Communism with a capital “c”).

State socialism — even in its relatively mild but still heavy-handed American form — decrees the variety of goods and services that may be produced, and restricts their production. This differs in degree but not in kind from Communism, which produced disastrous consequences for the material and psychic well-being of the hundred of millions of persons who labored and still labor under it. (Party leaders, officials, and favorites were and are given special treatment, of course. Elites never disappear, they just assume different titles.)

The false premise of central planners and those who believe in central planning is that a group of persons — even armed with massive computing power — can anticipate and satisfy the vastly varied and ever-changing skills, wants, tastes, and preferences of a diverse populace. All that the central planners can do, at best, is impose their own preferences on others and make some groups (mainly themselves and their favorites) better off at the expense of others.

A bureaucracy which is set on producing X when people want Y will go on producing X for many years after businesses would have shifted to the production of Y. A bureaucracy that stifles innovation (as bureaucracies do) is unlikely to take a chance on introducing Z, which some consumers might prefer to X or Y, but the introduction of Z is what businesses do every day. Nor are stodgy bureaucracies likely to improve their methods of producing X, Y, Z, or anything else, and so they will use labor and other resources in wasteful ways. All for the sake of avoiding what shallow thinkers like to call “wasteful competition.”

It’s ironic that competition (in contexts other than sports, games, and idiotic TV shows) became a dirty word. Most people compete daily without giving it a second thought. It’s simply a matter of doing the best that one can do — or that one is willing to do — and accepting the consequences, or doing better if one is dissatisfied with the consequences. It is gratifying — not demeaning — to meet life’s challenges, and to meet them successfully (or as successfully as one is able).

Engels and Marx’s pseudo-intellectual successors in politics, the academy, and the punditocracy would recognize the truth of this if they were capable of candid introspection. Assuming that they are (sometimes) capable of it, they must believe themselves to be different from (and superior to) the great mass of people, who must be “rescued” from competition. This belief is a compound of psychological projection and condescending hogwash.

Yes, it’s true that most people are willing and eager to get something for nothing. But until the advent of state socialism (also known euphemistically as democratic socialism) most people were unable to get something for nothing. Yes, there have always been those with access to power — like today’s so-called crony capitalists (whose reliance on cronyism disqualifies them as capitalists) — but they were the major exception. Today’s cronies, “capitalist” and other, run the gamut from CEOs of major corporations to physically and mentally able dole collectors to retirees whose productive investments in economic growth have been stunted by the lure (and cost of) “free” Social Security and Medicare benefits.

It needn’t have been thus. The Framers of the Constitution meant to limit the central government’s powers to those sixteen (enumerated in Article I, Section 8) that would “provide for the common Defence and general Welfare.” And the powers of the central government remained within the Framers’ limits for well over a century. But once the government’s powers began to spread beyond their constitutional boundaries, there was no turning back — or so it seems.

The growth of dependency on the state, which in the United States began in earnest with the New Deal, is a cancer that has eaten away the competitive spirit that once animated Americans’ economic striving. The cancer needn’t have taken hold and spread, but it did, thanks to ambitious politicians and know-it-all academicians and pundits, whose siren song of “something for nothing” has lured too many Americans into the arms of the nanny state. And those who have resisted the siren song are nevertheless forced to pay for the “something” that others get for nothing.

Competition is a good word, not a dirty one. It should be praised and emulated, not derided and denigrated. It is at the heart of psychically satisfying and materially enriching economic activity.

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Related reading:

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Related posts:

Fear of the Free Market — Part I
Fear of the Free Market — Part II
Fear of the Free Market — Part III
The Cost of Affirmative Action
Socialist Calculation and the Turing Test
Monopoly and the General Welfare
Slopes, Ratchets, and the Death Spiral of Liberty
Academic Bias
Intellectuals and Capitalism
Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Fascism with a “Friendly” Face
The Interest-Group Paradox
Parsing Political Philosophy
Monopoly: Private Is Better Than Public
Gains from Trade
Trade
The Near-Victory of Communism
Tocqueville’s Prescience
The Real Burden of Government
The Left
The Constitution: Original Meaning, Corruption, and Restoration
The Illusion of Prosperity and Stability
The Deficit Commission’s Deficit of Understanding
Our Enemy, the State
“Intellectuals and Society”: A Review
Competition Shouldn’t Be a Dirty Word
The Stagnation Thesis
Social Justice
The Left’s Agenda
More Social Justice
Luck-Egalitarianism and Moral Luck
Empathy Is Overrated
Union-Busting
In Defense of Wal-Mart
Taxing the Rich
More about Taxing the Rich
The Evil That Is Done with Good Intentions
Understanding Hayek
The Left and Its Delusions
Creative Destruction, Reification, and Social Welfare
The Arrogance of (Some) Economists
The “Jobs Speech” That Obama Should Have Given
Regime Uncertainty and the Great Recession
Regulation as Wishful Thinking
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
In Defense of the 1%
Are You in the Bubble?
Lay My (Regulatory) Burden Down
The Burden of Government
Economic Growth Since World War II
The Eclipse of “Old America”
Genetic Kinship and Society
Government in Macroeconomic Perspective
How High Should Taxes Be?
The Value of Experience
Economics: A Survey (also here)
Why Are Interest Rates So Low?
Vulgar Keynesianism and Capitalism
America’s Financial Crisis Is Now
“We the People” and Big Government
The Keynesian Multiplier: Phony Math
The True Multiplier
Parsing Political Philosophy (II)
Some Inconvenient Facts about Income Inequality
Modern Liberalism as Wishful Thinking
Mass (Economic) Hysteria: Income Inequality and Related Themes
The Pretence of Knowledge
Alienation
Income Inequality and Economic Growth
A Case for Redistribution, Not Made
Ruminations on the Left in America
McCloskey on Piketty
The Rahn Curve Revisited
The Slow-Motion Collapse of the Economy
Nature, Nurture, and Inequality
How to Eradicate the Welfare State, and How Not to Do It
The Real Burden of Government (II)
Diminishing Marginal Utility and the Redistributive Urge
Obamanomics in Action
Academic Ignorance
Judicial Supremacy: Judicial Tyranny
Does the Power to Tax Give Congress Unlimited Power? (II)
The Beginning of the End of Liberty in America

And guest-blogger L. P.‘s posts about the downside of empathy: here, here, here, here, here, and here.

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Baseball Trivia for the 4th of July

It was a “fact” — back in the 1950s when I became a serious fan of baseball — that the team that led its league on the 4th of July usually won the league championship. (That was in the days before divisional play made it possible for less-than-best teams to win league championships and World Series.)

How true was the truism? I consulted the Play Index at Baseball-Reference.com to find out. Here’s a season-by-season list of teams that had the best record on the 4th of July and at season’s end:

Teams with best record on 4th of July and end of season

It’s obvious that the team with the best record on the 4th of July hasn’t “usually” had the best record at the end of the season — if “usually” means “almost all of the time.”   In fact, for 1901-1950, the truism was true only 64 percent of the time in the American League and 60 percent of the time in the National League. The numbers for 1901-2014: American League, 60 percent; National League, 55 percent.

There are, however, two eras in which the team with the best record on the 4th of July “usually” had the best record at season’s  end — where “usually” is defined by a statistical test.* Applying that test, I found that

  • from 1901 through 1928 the best National League team on the 4th of July usually led the league at the end of the season (i.e., 75 percent of the time); and
  • from 1923 through 1958 the best American League team on the 4th of July usually led the league at the end of the season (i.e., 83 percent of the time).

I was a fan of the Detroit Tigers in the 1950s, and therefore more interested in the American League than the National League. So, when I became a fan it was true (of the American League) that the best team on the 4th of July usually led the league at the end of the season.

It’s no longer true. And even if it has happened 55 to 60 percent of the time in the past 114 years, don’t bet your shirt that it will happen in a particular season.

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Related post: May the Best Team Lose

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* The event E occurs when a team has the league’s best record on the 4th of July and at the end of the season. E “usually” occurs during a defined set of years if the difference between the frequency of occurrence during that set of years is significantly different than the frequency of occurrence in other years. Significantly, in this case, means that a t-test yields a probability of less than 0.01 that the difference in frequencies occurs by chance.

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The Unemployment Rate Isn’t 5.3 Percent, and It Didn’t Drop in June

The official unemployment rate dropped from 5.5 to 5.3 percent between May and June, while the real unemployment rate rose from 11.7 to 11.9 percent.

How can I say that the real unemployment rate is almost 12 percent, even though the official rate is only 5.3 percent? Easily. Just follow this trail of definitions, provided by the official purveyor of unemployment statistics, the Bureau of Labor Statistics:

Unemployed persons (Current Population Survey)
Persons aged 16 years and older who had no employment during the reference week, were available for work, except for temporary illness, and had made specific efforts to find employment sometime during the 4-week period ending with the reference week. Persons who were waiting to be recalled to a job from which they had been laid off need not have been looking for work to be classified as unemployed.

Unemployment rate
The unemployment rate represents the number unemployed as a percent of the labor force.

Labor force (Current Population Survey)
The labor force includes all persons classified as employed or unemployed in accordance with the definitions contained in this glossary.

Labor force participation rate
The labor force as a percent of the civilian noninstitutional population.

Civilian noninstitutional population (Current Population Survey)
Included are persons 16 years of age and older residing in the 50 States and the District of Columbia who are not inmates of institutions (for example, penal and mental facilities, homes for the aged), and who are not on active duty in the Armed Forces.

In short, if you are 16 years of age and older, not confined to an institution or on active duty in the armed forces, but have not recently made specific efforts to find employment, you are not (officially) a member of the labor force. And if you are not (officially) a member of the labor force because you have given up looking for work, you are not (officially) unemployed — according to the BLS. Of course, you are really unemployed, but your unemployment is well disguised by the BLS’s contorted definition of unemployment.

What has happened is this: Since the first four months of 2000, when the labor-force participation rate peaked at 67.3 percent, it has declined to 62.6 percent:

Labor force participation rate
Source: See next graph.

Why the decline, which had came to a halt during G.W. Bush’s second term but resumed in late 2008? The slowdown of 2000 (coincident with the bursting of the dot-com bubble) and the shock of 9/11 can account for the decline from 2000 to 2004, as workers chose to withdraw from the labor force when faced with dimmer employment prospects. But what about the sharper decline that began near the end of Bush’s second term?

There we see not only the demoralizing effects of the Great Recession but also the lure of incentives to refrain from work, namely, extended unemployment benefits, the relaxation of welfare rules, the aggressive distribution of food stamps, and “free” healthcare” for an expanded Medicaid enrollment base and 20-somethings who live in their parents’ basements.* Need I add that both the prolongation of the Great Recession and the enticements to refrain from work are Obama’s doing? (That’s on the supply side. On the demand side, of course, there are the phony and even negative effects of “stimulus” spending, the chilling effects of regime uncertainty, which has persisted beyond the official end of the Great Recession, and the expansion of government spending.)

If the labor-force participation rate had remained at its peak of 67.3 percent, so that the disguised unemployed was no longer disguised, the official unemployment rate would have reached 13.1 percent in October 2009, as against the nominal peak of 10 percent. Further, instead of declining to the phony rate of 5.3 percent in June 2015, the official unemployment rate would have stayed hovered between 11.7 percent and 13.6 percent.

In sum, the real unemployment rate was 3.1 points above the nominal rate in October 2009; the real rate is now 6.6 points above the nominal rate. The growing disparity between the real and nominal unemployment rates is evident in this graph:

Actual vs nominal unemployment rate
Derived from SeriesLNS12000000, Seasonally Adjusted Employment Level; SeriesLNS11000000, Seasonally Adjusted Civilian Labor Force Level; and Series LNS11300000, Seasonally Adjusted Civilian labor force participation rate. All are available at BLS, Labor Force Statistics from the Current Population Survey.

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* Contrary to some speculation, the labor-force participation rate is not declining because older workers are retiring earlier. The participation rate among workers 55 and older rose between 2002 and 2012. The decline is concentrated among workers under the age of 55, and especially workers in the 16-24 age bracket. (See this table at BLS.gov.) Why? My conjecture: The Great Recession caused a shakeout of marginal (low-skill) workers, many of whom simply dropped out of the labor market. And it became easier for them to drop out because, under Obamacare, many of them became eligible for Medicaid and many others enjoy prolonged coverage (until age 26) under their parents’ health plans.

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Related posts:

Are We Mortgaging Our Children’s Future?
In the Long Run We Are All Poorer
Mr. Greenspan Doth Protest Too Much
Rationing and Health Care
The Fed and Business Cycles
The Commandeered Economy
The Perils of Nannyism: The Case of Obamacare
The Real Burden of Government
Toward a Risk-Free Economy
The Illusion of Prosperity and Stability
More about the Perils of Obamacare
Health Care “Reform”: The Short of It
The Mega-Depression
I Want My Country Back
The “Forthcoming Financial Collapse”
The Deficit Commission’s Deficit of Understanding
The Bowles-Simpson Report
The Bowles-Simpson Band-Aid
The Stagnation Thesis
Taxing the Rich
More about Taxing the Rich
Understanding Hayek
Money, Credit, and Economic Fluctuations
A Keynesian Fantasy Land
The Keynesian Fallacy and Regime Uncertainty
Why the “Stimulus” Failed to Stimulate
The “Jobs Speech” That Obama Should Have Given
Say’s Law, Government, and Unemployment
Regime Uncertainty and the Great Recession
Regulation as Wishful Thinking
Don’t Just Stand There, “Do Something”
The Commandeered Economy
The Burden of Government
Progressive Taxation Is Alive and Well in the U.S. of A.
Government in Macroeconomic Perspective
Keynesianism: Upside-Down Economics in the Collectivist Cause
The Economic Outlook in Brief
Is Taxation Slavery? (yes)
Taxes Matter
Economic Horror Stories: The Great “Demancipation” and Economic Stagnation
Economics: A Survey (also here)
Why Are Interest Rates So Low?
Vulgar Keynesianism and Capitalism
America’s Financial Crisis Is Now
The Keynesian Multiplier: Phony Math
The True Multiplier
Some Inconvenient Facts about Income Inequality
Mass (Economic) Hysteria: Income Inequality and Related Themes
Income Inequality and Economic Growth
A Case for Redistribution, Not Made
McCloskey on Piketty
The Rahn Curve Revisited
The Slow-Motion Collapse of the Economy
How to Eradicate the Welfare State, and How Not to Do It
The Real Burden of Government
Diminishing Marginal Utility and the Redistributive Urge
Obamanomics in Action (the first three graphs and related discussion)

Signature

It’s Official: Kennedy Is Now a Member of the Court’s “Liberal” Wing

Anthony Kennedy’s authorship of the majority (5-4) opinion in Obergefell v. Hodges confirmed his conversion to the Supreme Court’s “liberal” wing. And I have the numbers to prove the conversion, which occurred in the Court’s October Term 2014 (OT14).

The following analysis is based on the frequency of the justices’ disagreement with their colleagues in non-unanimous cases. (The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.) To illustrate the statistics, I’ll take Justice Kennedy’s record in the non-unanimous cases of OT14 as an example:

  • Kennedy disagreed with his former allies — Roberts, Scalia, Thomas, and Alito — a total of 125 percent of the time. His average disagreement with each ally was 31 percent (125 percent divided by 4).
  • Kennedy disagreed with the four “liberals” 81 percent of the time, for an average of 20 percent.
  • Dividing the second average by the first one, I find the ratio of the two averages, which is 0.65 in this case. That is, Kennedy disagreed with his former opponents (the “liberals”) only about two-thirds as often as he disagreed with his former allies.

In sum, the higher the ratio, the more often a justice has agreed with his supposed allies; the lower the ratio, the less often a justice has agreed with his supposed allies. A ratio of less than 1 means that a justice has moved to the other side of the Court’s ideological divide — as Kennedy did in OT14.

The following table summarizes the ratios for each justice in each of the last ten terms, from OT05 through OT14. Justices are grouped by wing (leaving Kennedy in the conservative wing, for purposes of this post) and then listed in order of seniority (the Chief is always first, by virtue of his office). Green and  red shadings indicate the most “agreeable” and most “disagreeable” ratios for each wing and each term. Trends are simple linear estimates of each justice’s performance in OT15, given his or her record in preceding years. (Right-click to open a larger image in a new tab.)

Supreme Court_ratios of disagreements among justices_OT05-OT14
Derived from statistics reported and archived by SCOTUSblog. Specific sources are listed at the bottom of this post. Justice O’Connor’s truncated participation in OT06 is omitted.

The year-to-year variations in mean ratios suggest that some terms are more fraught with ideologically divisive cases than others. I therefore normalized the year-to-year results by dividing each justice’s ratio for each year by the mean ratio for that justice’s wing. The following table gives the normalized ratios. (Right-click to open a larger image in a new tab.)

Supreme Court_normalized ratios of disagreements_OT05-OT14

Kennedy’s unsurprising but definite lurch to the left is a less compelling story than the degree of cohesion among the the “liberal” justices in OT14. Look again at the first graphic and focus on the range of ratios for OT14:

  • 4.27 to 5.15 for the “liberals”
  • 1.32 to 1.80 among the four conservatives (counting Roberts as one despite his wobbliness).

I take this as evidence that the conservatives tend to think carefully about the cases before them; whereas, the “liberals” are bent on finding clever words to justify their predictable positions. That was certainly true of Kennedy’s fatuous opinion in Obergefell v. Hodges, which the dissenters exposed as a sophomoric flight of fancy.

The left’s cohesion on the Court is of a piece with its (generally successful) political strategy: Agree on a goal, stick together, sing the same tune, ignore the facts, and (usually) win.

*     *     *

Related posts:

The Court in Retrospect and Prospect
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
The Constitution: Original Meaning, Corruption, and Restoration
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?
Does Congress Have the Power to Regulate Inactivity?
A Declaration of Civil Disobedience
Questioning the National Debt
Rethinking the Constitution: “Freedom of Speech, and of the Press”
A Balanced-Budget Amendment and the Constitution
The Repealer
Abortion and the Fourteenth Amendment
Obamacare: Neither Necessary nor Proper
Our Perfect, Perfect Constitution
Constitutional Confusion
Reclaiming Liberty throughout the Land
A New Constitution for a New Republic
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
How Libertarians Ought to Think about the Constitution
An Agenda for the GOP
Wrong for the Wrong Reasons
The Court in Retrospect and Prospect (II)
The States and the Constitution
Posner the Fatuous
Getting “Equal Protection” Right
The Writing on the Wall
How to Protect Property Rights and Freedom of Association and Expression
The Principles of Actionable Harm
Judicial Supremacy: Judicial Tyranny
Does the Power to Tax Give Congress Unlimited Power? (II)
The Beginning of the End of Liberty in America

See also U.S. Supreme Court: Lines of Succession for term-by-term and justice-by-justice rates of disagreement in non-unanimous cases.

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Sources of statistics about disagreements in non-unanimous cases, by term (in ascending chronological order):

http://www.scotusblog.com/movabletype/archives/GULCSupCtInstituteFinalReportOT2005_30June06.pdf

http://www.scotusblog.com/archives/SuperStatPack.pdf; http://www.scotusblog.com/wp-content/uploads/2008/06/nonunan07.pdf

http://www.scotusblog.com/wp-content/uploads/2009/06/justice-agreement.pdf

http://www.scotusblog.com/wp-content/uploads/2010/07/Final-Charts-070710-JA.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2011/06/SB_OT10_stat_pack_final.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2012/06/SB_agreement_OT11_final.pdf

http://scotusblog.com/wp-content/uploads/2013/06/agreement_OT12.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/SB_tables_OT13.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2015/06/SCOTUSblog_agreement-tables_OT14.pdf

Signature

Getting Real About Empathy – Part 5 of 5: Addendum

A guest post by L. P. Here are links to part 1, part 2, part 3, and part 4.

As I’ve been cordially invited to participate in an upcoming interview that might be published on YouTube, I’m presenting my talking points here for all who’re interested:

There are ethical, moral considerations that the empathy movement needs to take into account. This, in effect, establishes a limit on their mission. Each and every person has a natural, fundamental right (wherever they are on the empathy spectrum) to be who they are, live their lives how they want to, and grow in whatever direction they desire – as long as they don’t harm, or encroach upon, others. Hence, unempathetic people who haven’t done any wrong or who don’t pose a threat to society (people with Asperger’s or Autism for example) have every right to be who they are without others trying to mold them into someone they are not.

This is something I think empathetic people need to understand, respect, and accept (instead of insisting that they are the only valid, ideal version of how a human should be – this position, no matter who it comes from, is egoistic and selfish), and I don’t think empathetic people would like having an opposite movement try to make them be who they are not either. In fact, one of the basic lessons psychologists learn in education and training is that one cannot control others.

What this means is, if those in the empathy movement are helping individuals who want to increase their empathy then this is fine. However, to foist one’s own way of being and one’s own values on someone else (who’s living life innocently and doesn’t want to change) is wrong and counterproductive. When people are different and their values conflict, “good fences makes good neighbors” as the saying goes.

A positive direction for empathetic people to take, to be truly 100% empathetic, is to empathize with the unempathetic (a way of thinking that has Buddhist roots). This is similar to how a “tolerant” person isn’t tolerant (in a pure sense) unless he or she also tolerates the intolerant. Empathetic people need to understand how their movement oppresses people who are different from them. The empathy movement, in fact, mirrors the way extroverts (a majority in society) pressure introverts (a minority that they often find repugnant) to be more like them. Another positive direction is to cultivate “detached compassion” whereby one learns to prioritize others’ need to learn through life experience over one’s own urge to help. To give one’s urge to help precedence over others’ need to learn for themselves is selfish because one is now taking valuable life experiences away from others.

It’s a problem when people like who they are and take pride in themselves to a degree that they miss out on the positive attributes and contributions of their opposites. Diversity on all traits (including empathy), not homogeneity, ensures humanity’s well-being and survival. Mother nature is wise. For example, extroverts often miss the fact that if a pandemic swept the world killing billions that it is the hermit who has the best chances of survival – thus being able to continue humanity’s lineage. Empathetic people, likewise, don’t seem to realize that they need unempathetic people to serve certain roles and make certain contributions in order for society to function well.

If the interview is featured on YouTube, I will share it along with additional thoughts the conversation inspires.

Getting Real About Empathy – Part 4 of 5: Final Thoughts

A guest post by L. P. Here are links to part 1, part 2, part 3, and part 5.

Leftists have tunnel vision when it comes to the assessment of traits that they favor; an empathetic person is “good,” a person considered unempathetic (and who favors impartial justice) is “bad.” Except for sexual orientation, the left focuses its diversity agenda on physical diversity (e.g., race, gender). Much diversity that stems from internal disposition is disregarded (e.g., diversity of political thought, certain personality traits). Researchers like Sáez et al. (who’re, ironically, going against their own espoused value of being fair-minded) are willing to advocate tweaking humanity in a eugenic bid to create a utopia. And they’re willing to do so without balanced consideration of its dangers.

As mentioned in part 3, the empathy spectrum has genetic roots; it’s not just a byproduct of dysfunctional parenting or traumatic childhoods, as is often suggested. Hence, variations on this trait are functional, like other products of nature as demonstrated in the examples related to occupational roles and contributions in part 2. Another example, not mentioned in part 2, is the need for judges to base their decisions on facts and law, not feelings. Where would the rule of law – true justice – be without such judges? Empathy-based rulings offer a compelling explanation for why known rapists and killers are given second and third chances. (Readers may assess prisoner recidivism rates here.) Regardless of any existing alternative explanations for this phenomena, bias derived from empathy is obviously undesirable in the justice system.

Being abnormal, or just different, gives an individual a unique perspective. It’s easy for me to view issues concerning empathy differently because I am differently empathetic, or even unempathetic (considering how affective empathy is prized in popular culture). On Baron-Cohen’s 7-point scale, from 0 to 6, I’d rate myself at least a 5 on cognitive empathy because I’ve proven to have the necessary cognitive empathy to excel at competitive card games that involve reading people and accurately assessing their situations and intentions. However, I’d score 0 on affective empathy because, throughout my life, I have not felt another individual’s feelings (and am content with this). Affective empathy is the type of empathy that women, as a group, are known for. Hence, I’m an outlier among women.

What’s most frustrating about the current pro-empathy bandwagon is that it’s made telling my side of the story difficult. People often say, “We need to get more women into leadership positions so that we’ll have more empathy up there,” and expect a positive reaction from me. I don’t disagree with the statement if we’re talking about randomly plucking women from the general population and foisting them into leadership positions. (Random selection would, of course, be undesirable.) It is comical, by the way, when the same people who insist that men and women, as groups, are identical also say, “But women are more empathetic than men.”

Individuals who initiate these awkward encounters don’t seem to think that it is acceptable for the less empathetic to reveal the truth about themselves. Pro-empathy people think less empathetic people are “monsters.” However, as discussed in part 2 of this series, Baron-Cohen, Kevin Dutton in The Wisdom of Psychopaths, and other researchers establish that empathetic people, particularly psychopaths who have both affective and cognitive empathy, can be “monsters” too.

In fact, Kevin Dutton’s point about psychopaths generally being able to blend in and take on the appearance of the average person makes it obvious that they must have substantial emotional intelligence (linked to cognitive empathy) and experience of others’ feelings in order to mirror others so well. To be fair, however, even “monsters” like psychopaths (who don’t easily experience fear) have the potential to function in pro-social occupational roles that aren’t well-suited for the average person. Consider, for example, the final minutes of this interview (which I’ve cued to this very moment) between psychiatrist Park Dietz and Richard Kuklinski, “The Iceman,” where the psychiatrist names a number of occupational roles (e.g., race car driver, test pilot, fighter pilot, bomb disposal technician, law enforcement officer) suitable for individuals who have a weaker-than-average fear response.

Another point to consider however, as mentioned in part 1, is that those who try to empathize with others by imagining how they would experience another’s situation aren’t truly empathetic. They’re just projecting their own feelings onto others. This brings to mind Jonathan Haidt’s study on morality and political orientation. On the “Identification with All of Humanity Scale,” liberals most strongly endorsed the dimension regarding identification with “everyone around the world.” (See page 25 of “Understanding Libertarian Morality: The psychological roots of an individualist ideology.”) How can anyone empathize with billions of persons about whom one knows nothing, and a great number of whom are anything but liberal?

Haidt’s finding is a terrific example of problems with self-evaluation and self-reported data – liberals overestimating themselves in this case. I’m not judgmental about not understanding everyone in the world. There are plenty of people I don’t understand either. However, I don’t think people who overestimate their ability to understand people should be in a position that allows them to tamper with, or try to “improve,” the lives of people they don’t understand.

To elaborate on my post on dysfunctional helpers, I can speculate on how my empathetic colleagues, who’re focused on becoming humanity’s helpers, spent so many years studying psychology but did not emerge with an understanding of the variety of people. Comparatively speaking, it’s easy for highly empathetic people to take their viscerally-based understanding of people for granted. In contrast, not having the luxury of assuming that I completely understand people drives me to engage in meticulous observation and study.

On the topic of group differences in empathy, let’s not forget there are within-group differences as well (as my point about being the odd woman out illustrates). It may be true that those on the left, on average, are more empathetic and compassionate than those on the right. But there is certainly variation within a political faction. In fact, it is quite possible for empathetic, compassionate people to support free markets and small government, as Dan Mitchell argues. It’s also possible for unempathetic people (who think they’re empathetic) to support a welfare state. All empathetic people don’t agree with each other. Neither do unempathetic people. There are many other factors that influence people’s opinions as well (e.g., intelligence, imagination, the capacity to see the big picture).

That said, whether you empathize with people or not, there are various courses of action to choose from. One flaw with Sáez et al.‘s study is that they designed “a simple economic game in which they divided money between themselves and an anonymous recipient.” This limits the solution to inequality (to “give money or not”) rather than simulating the range of solutions available in the real world (such as ones that maximize opportunity for people to climb out of poverty in a way that preserves their dignity and sense of agency). It’s also unfortunate that these researchers are driving at support for one solution (i.e., give more money) as the definitive measure of sensitivity to inequality and, by proxy, empathy.

Much more often than not, scientists and opinion leaders don’t provide a public accounting of the trade-offs associated with altering people’s empathy levels. Instead of being skeptical and asking questions, most people accept this version of science, along with the mission to “improve” humanity. It’s a sad state of affairs that empathy and compassion have been politicized, as this further reduces people’s propensity to think objectively about this subject. With a greater appreciation of the complexity of empathy, dangerous utopianism based on engineering people to be more empathetic would be rejected.

I conclude by quoting C. Daniel Batson who acknowledges the prevailing bias when it comes to evaluating altruism as a virtue. This is from his paper, “Empathy-Induced Altruistic Motivation,” written for the Inaugural Herzliya Symposium on Prosocial Motives, Emotions, and Behavior:

[W]hereas there are clear social sanctions against unbridled self-interest, there are not clear sanctions against altruism. As a result, altruism can at times pose a greater threat to the common good than does egoism.

The Beginning of the End of Liberty in America

SEVERAL ITEMS HAVE BEEN ADDED TO THE LIST OF RELATED READINGS SINCE THE INITIAL PUBLICATION OF THIS POST ON 06/26/15

Winston Churchill, speaking in November 1942 about the victory of the Allies in the Second Battle of El Alamein, said this:

This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.

We may have reached the end of the legal battle over same-sex “marriage” with today’s decision by five justices of the Supreme Court in the case of Obergefell v. Hodges. But that decision probably also marks the beginning of the end of liberty in America.

Consider these passages from Chief Justice Roberts’s dissent (citations omitted):

…Today’s decision … creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage…. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage…. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage…. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n]or stigmatiz[e]” same-sex couples…. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors…. These apparent assaults on the character of fair minded people will have an effect, in society and in court…. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted….

Justice Alito puts it more plainly:

[Today’s decision] will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion,the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women…. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected…. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools….

…By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Erick Erickson drives it home:

Make no mistake — this is not the end of a march, but the beginning of a new march. You will be made to care. You will be forced to pick a side. Should you pick the side of traditional marriage, you can expect left to be ruthless. After all, the Supreme Court has said gay marriage is a not just a right, but a fundamental right. [“The Supremes Decide,” RedState, June 26, 2015]

Erickson counsels civil disobedience:

It’s time to defy the court on this. It’s time to fight back. Nonviolent civil disobedience is the only option we have been left under this terrible ruling. We will be heard. [“It’s Time for Civil Disobedience,” RedState, June 26, 2015]

Most citizens will, of course, attempt to exercise their freedom of speech, and many business owners will, of course, attempt to exercise their freedom of association. But for every person who insists on exercising his rights, there will be at least as many (and probably more) who will be cowed, shamed, and forced by the state into silence and compliance with the new dispensation. And the more who are cowed, shamed, and forced into silence and compliance, the fewer who will assert their rights. Thus will the vestiges of liberty vanish.

That’s how it looks from here on this new day of infamy.

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Related reading:

*     *     *

Related posts:

The Marriage Contract
Libertarianism, Marriage, and the True Meaning of Family Values
Same-Sex Marriage
“Equal Protection” and Homosexual Marriage
Marriage and Children
Civil Society and Homosexual “Marriage”
The Constitution: Original Meaning, Corruption, and Restoration
Perry v. Schwarzenegger, Due Process, and Equal Protection
Rationalism, Social Norms, and Same-Sex “Marriage”
Asymmetrical (Ideological) Warfare
In Defense of Marriage
A Declaration of Civil Disobedience
The Myth That Same-Sex “Marriage” Causes No Harm
Liberty and Society
The View from Here
The Culture War
Surrender? Hell No!
Posner the Fatuous
Getting “Equal Protection” Right
The Writing on the Wall
How to Protect Property Rights and Freedom of Association and Expression
The Gaystapo at Work
The Gaystapo and Islam

Signature

Does the Power to Tax Give Congress Unlimited Power? (II)

Today’s opinion of a majority of the Supreme Court in the case of King v. Burwell upholds subsidies to participants in federally established Obamacare exchanges despite the plain language of the Affordable Care Act. In the words of Justice Scalia, whose dissent was joined by Justices Alito and Thomas,

this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State”means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

I dissent.

And I most vehemently dissent.

Today’s decision is a painful reminder of three posts that I published in December 2010: “The Unconstitutionality of the Individual Mandate,” “Does the Power to Tax Give Congress Unlimited Power?,” and “Does Congress Have the Power to Regulate Inactivity?.” The posts appeared 18 months before Chief Justice Roberts’s twisted logic in NFIB v. Sebelius upheld the Affordable Care Act’s individual mandate by calling it a tax.

In the second of the three posts listed above, I argued that the power to tax is not unlimited. Taxes levied by the central government must be levied for the purpose of executing powers specifically enumerated in Article I, Section 8 of the Constitution. Nevertheless, the majority NFIB v. Sebelius chose not only to distort the individual mandate — which is clearly a penalty, not a tax — but also to willfully disregard the Constitution’s expressed limitations on the powers of Congress. Even if the individual mandate were a tax, Congress cannot constitutionally levy such a tax because the Affordable Care Act isn’t contemplated in its enumerated powers. (ACA derives its supposedly constitutional status from the Court’s decision in 1935 to declare the Social Security Act constitutional, even though it isn’t. See my post of October 31, 2004, “Social Security Is Unconstitutional.”)

In the first edition of this post, I cited James Madison and linked to “The Unconstitutionality of the Individual Mandate,” where I cite many more. But I neglected Henry St. George Tucker III, who in a speech given at a meeting of the Georgia Bar Association in June 1927 put paid to the notion that Congress’s power to tax is unlimited in scope. The speech, “Judge Story’s Position on the So-Called General Welfare Clause,” is quite long, and deserving of quotation at length. (The links are mine, of course):

The words “the general welfare” are to be found in two places in the Constitution—in the preamble thereto and in Article 1, section 8, clause 1. All reputable writers concur in the statement that the words of the preamble to the Constitution consti­tute no grants of power, and therefore our investigation is confined to the words as found in Article 1, section 8, clause 1. which reads,

“The Congress shall have power lo lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States but all duties, imposts, and excises shall be uniform throughout the United States.” …

Hamilton’s fight in the Convention [of 1787] was to give to Congress unlimited power. Pinckney’s plan pre­scribed definite powers to Congress. This was the struggle of the Convention, and while Hamilton’s plan, on this clause, was practically voted down six times in the Convention, either directly or by vot­ing up a distinct opposing proposition, his followers have struggled to show that the words “the general welfare” put into clause 1, section 8, Arti­cle 1. really mean what was specifically rejected by the Convention six times….

Judge [Joseph] Story’s position on this subject can best be seen from quoting his own words on the sub­ject, beginning at Sec. 906 of his Commentaries, page 628, Vol, 1….

The argument of Judge Story  (contained in sections 909 and 910) which demolishes the theory of the Hamiltonians, shows conclusively that the words “the common defense and general welfare,” as found in [Article I, section 8], constitute no substantive grant of power; and he further denies that these words contain any power whatsoever. His argu­ment is irresistible in its conclusion to any un­biased mind, but it furnishes an equally powerful argument against his claim that the words “to pro­vide for the common defense and general welfare” are merely words of limitation on the taxing power, for his argument for the latter claim is based upon the relationship of those words solely to the first clause of section 8, and excludes their relationship to the other seventeen distinct clauses in that sentence. He would thus exclude these words “common de­fense and general welfare” from any participation in the construction of the whole sentence. How can that consist with his language in sections 909 and 910?…

…[T]he framers of the Con­stitution left this  matter  in  no  doubt,  for the eighteenth clause of this section 8, after enumer­ating one by one seventeen grants of power, reads:

“The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing posters, and all other powers vested by this Con­stitution in the Government of the United States, or in any Department or Officer thereof.”

This coefficient clause therefore constitutes the constitutional limitation on the taxing power of Congress; but any law passed by Congress to carry out an express grant must be necessary and bona fide appropriate to the end. So Congress, desiring to carry out some regulation of commerce that requires an appropriation, may by law appropriate money for it under this coefficient clause, for the end is legitimate and the appropriation is bona fide appropriate to the end. So as to every other grant of power to Congress that may require money….

The proposition of Mr. Hamilton would have given Congress unlimited power to create recep­tacles and then fill them up with appropriations from the treasury. Judge Story stoutly denies such power as intended to be given in the Constitution, but claims the power in Congress to appropriate money to any persons, associations, or corporations if in their opinion it would conduce to the general welfare of the people. Under this view the courts are without power to obstruct any such measure, as it is to be left to Congress alone to determine, and not the courts. Judge Story denies that the Hamil­tonian claim could be sound because it would make of the Government one of unlimited powers, which he says, as we have seen, was never intended by the Convention; but if Congress is without restraint in selecting objects of appropriation, and the tax power is likewise unlimited, is it not apparent that the union of these two unlimited powers in Con­gress creates a government of unlimited power? The roads may be different that lead to the same end, but it the end, a government of unlimited power, which Judge Story well says, was never in­tended be the same, his construction must be re­jected, as it leads inevitably to the same result, if not to a worse result….

Judge Story’s conclusion that these words “common defense and general welfare” are simply a limitation upon the taxing power of the Govern­ment, while denying to them any constructive power, results in this anomalous condition, that the Federal Government, under these words, can con­struct or create no instrumentality unless the power be granted in the Constitution, but may yet appro­priate the money raised by taxation to such organ­ization constructed by the States or other power; that is, that while the Congress could not create a university in every State, it would have the power, if in its opinion it was for the “general welfare” to appropriate money to run them after being estab­lished by the States….

If Judge Story’s interpretation of this clause be ad­mitted, namely that these words are merely limita­tions on the taxing power of Congress, the real difficulty is still left unsolved, for he assumes, once it is granted that they are merely words of limitation on the taxing power, that Congress is clothed with the power of determining what is the common defense and general welfare. But this is mere assumption. If no definition or description of these words is found in the Constitution, and if the Constitution failed to give their meaning, there might be some reason to adopt his suggestion; but if there be a reasonable construction of the Constitution defining these words, why should that reasonable construction be set aside to give to Congress an unlimited control over the whole Government, which Judge Story has so eloquently decried? What is the common defense? What is the general welfare of the United States, Who is to determine this common defense and general welfare? What authority, under the Constitution, has the power to say what objects come within these two terms’ If taxation can be had legitimately to meet the demands of these two extensive terms where shall taxation end? What are its limits? If the objects to which taxation can be applied are unlimited, then the union of the power of taxation with the power of determining the objects to which it may be applied constitute the most tremendous engine of oppression of a free people every [sic] conceived of by the ingenuity of man. Yet, Judge Story assumes that Congress has the power to de­termine what is the common defense and what is the general welfare of the United States, and that when Congress has determined that a certain object is for the common defense or the general welfare, it may appropriate the tax money which it is authorized to levy, for that purpose. This unites in Congress two great powers, dangerous because unlimited, the one to select the objects of its favor, and the other the power to appropriate money from the treasury for such ob­jects. The unlimited power to tax and the unlimited power to determine their benefactions, are, by Judge Story, united in the Congress, and yet Judge Story (Section 909) affirms that this Government was intended to be a government of limited powers only. The relief from this illogical impasse, into which the learned Judge would drive us, is found in the simple examina­tion of Article I, section 8, clause 1, and the seventeen succeeding clauses, constituting the whole sentence. The manner in which this Article was considered and adopted in the Convention, the care with which each grant was discussed and adopted, constituting the limitations on the powers of Congress, show con­clusively that no one power, which could submerge all other powers, was ever intended by the framers of the Constitution….

…Three times in two days, on the 22nd and 2srd of August [1787], the Convention indorsed a resolution of this nature: That the Congress should “fulfill the engagements and discharge the debts of the United States”. What engagements had the United States? They are chiefly specified in the eighteen specific grants in the Pinckney plan finally adopted August 16th.  Do not the words “fulfill the engage­ments” interpret the meaning of “common defense and general welfare”? Are not those the only engagements of the Government Of the United States? Undoubtedly, having determined for the honor of their country that there should be an express provision to pay the debts some other words would have to be supplied to save to the Congress the right to carry out the grants of power to Congress thereinafter enumerated, and to show that its power to appropriate money was not confined alone to the payment of the debts. What should these additional words be? They selected these words: “To provide for the common defense and general wel­fare” as they embraced all the subsequent [enumerated] grants of power which the Convention had already determined should constitute that amount of common defense and of general welfare which the Federal Government ought to control; and being merely words of general import and without power in the Articles of Confed­eration from which they came, brought with them to the Constitution of the United States the same in­nocuous character [emphasis added]….

Thus we find in our conclusion that there is no general welfare clause in the Constitution; that the power of Congress to legislate for every object which in their opinion might be for the benefit of the people, pressed by Mr. Hamilton in the Convention, was six times, directly or indirectly, rejected by that body; and, in spite of that, his followers have sought to con­strue these words as meaning what the authors of the Constitution had six times successively rejected….

Congress, various presidents, and the Supreme Court have subsequently undone the work of the Framers, most recently on June 24, 2015, in King v. Burwell. The Constitution has become a hollow shell into which the proponents of dictatorial government may pour any meaning that advances their dictatorial whims.

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More on the Debate about Judicial Supremacy
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Freedom of Contract and the Rise of Judicial Tyranny
Judicial Interpretation
Is Nullification the Answer to Judicial Supremacy?
The Alternative to Nullification
No Way Out? The Wrong Case for Judicial Review
An Answer to Judicial Supremacy?
The Constitution: Who Has the Last Word?
The Slippery Slope of Constitutional Revisionism The Real Constitution and Civil Disobedience
The Constitution: Original Meaning, Corruption, and Restoration
Our Perfect, Perfect Constitution
How Libertarians Ought to Think about the Constitution
Judicial Supremacy: Judicial Tyranny