Month: June 2004

Sunstein at The Volokh Conspiracy

Cass Sunstein, a professor of constitutional law at the University of Chicago, is guest-blogging at The Volokh Conspiracy. His maiden effort, “The Greatest Generation, is about the New Deal. It’s not an auspicious start. Here’s the text of my e-mail to Sunstein:

In your first post at The Volokh Conspiracy, you wrote about FDR’s Second Bill of Rights: “The leader of the Greatest Generation had a distinctive project, running directly from the New Deal to the war on Fascism — a project that he believed to be radically incomplete. We don’t honor him, and we don’t honor those who elected him, if we forget what that project was all about.” I think that most readers of The Volokh Conspiracy know quite well what that project was all about. It was about turning Americans into wards of the welfare state — not intentionally, but in effect. And there were plenty of contemporary critics who knew what it was all about and tried in vain to warn their countrymen.

I know as much as anyone my age (63) can know about the Depression and the fears that it spawned in Americans. My parents and their many siblings were young adults during the Depression, and all of them had to go to work at an early age (when they could find work) because their families were poor. Knowing the members of my parents’ generation as I do, I reject the notion that “true individual freedom cannot exist without economic security and independence.” Economic security and independence are always relative matters. I had little economic security when I was 21, but I had plenty of freedom, as did my parents when they were 21. Freedom (in a society that has free political institutions) doesn’t depend on economic security, it depends on inner security (self-reliance) — a trait that many Americans of later generations lack because they have developed the habit of looking to government, instead of themselves, for the solutions to their problems. You are not free if you have sold your soul to the devil in exchange for a bit of gold.

It is fatuous to say that those who are hungry and jobless “are the stuff out of which dictatorships are made.” The United States didn’t become a dictatorship (despite what many Republicans said about FDR). Britain didn’t become a dictatorship, and on, and on. The notable exceptions (Germany, Russia, Italy, and Japan) arose from other, pre-Depression causes. Nevertheless, FDR finally got his way — posthumously — as Truman, Johnson, and others completed most of the work of the New Deal.

The New Deal was born of fear. FDR succumbed to that fear. Ironically, FDR said it best: “the only thing we have to fear is fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.” It was fear that caused FDR to do exactly the wrong thing. Instead of letting the economy work its way out of the Depression, as it would have sooner than it did under FDR’s “stewardship,” he began the long descent into American socialism by turning the tinkerers loose on the economy. (Most of them were — and still are — lawyers and academics with no real idea about the business of business.) At the same time, he seduced most of the masses into dependence on government. The cycle of power and dependence begun by FDR has only gained strength over the years.

I have owned and managed businesses in the regulatory-welfare state of “economic freedom” that is FDR’s legacy. I’m here to tell you that Americans are worse off than they would be if the New Deal had died at birth. That’s FDR’s legacy, and I most decidedly do not want to honor it.

Modern Utilitarianism

Jeremy Bentham (English, 1748-1832) devised modern utilitarianism, which is best captured in the John Stuart Mill‘s phrase “the greatest amount of happiness altogether” (Chapter II of Utilitarianism).

From Bentham’s facile philosophy grew the ludicrous notion that it might be possible to quantify each person’s happiness and, then, to arrive at an aggregate measure of total happiness for everyone (or at least everyone in England). Utilitarianism, as a philosophy, has gone the way of Communism: It is discredited but many people still cling to it, under other names.

Modern utilitarianism lurks in the guise of cost-benefit analysis. Governments often subject proposed projects and regulations (e.g., new highway construction, automobile safety requirements) to cost-benefit analysis. The theory of cost-benefit analysis is simple: If the expected benefits from a government project or regulation are greater than its expected costs, the project or regulation is economically justified. Luckily, most “justified” projects are scrapped or substantially altered by the intervention of political bargaining and budget constraints, but many of them are undertaken — only to cost far more than estimated and return far less than expected.

Here’s the problem with cost-benefit analysis — the problem it shares with utilitarianism: One person’s benefit can’t be compared with another person’s cost. Suppose, for example, the City of Los Angeles were to conduct a cost-benefit analysis that “proved” the wisdom of constructing yet another freeway through the city in order to reduce the commuting time of workers who drive into the city from the suburbs.

Before constructing the freeway, the city would have to take residential and commercial property. The occupants of those homes and owners of those businesses (who, in many cases would be lessees and not landowners) would have to start anew elsewhere. The customers of the affected businesses would have to find alternative sources of goods and services. Compensation under eminent domain can never be adequate to the owners of taken property because the property is taken by force and not sold voluntarily at a true market price. Moreover, others who are also harmed by a taking (lessees and customers in this example) are never compensated for their losses. Now, how can all of this uncompensated cost and inconvenience be “justified” by, say, the greater productivity that might (emphasize might) accrue to those commuters who would benefit from the construction of yet another freeway.

Yet, that is how cost-benefit analysis works. It assumes that group A’s cost can be offset by group B’s benefit: “the greatest amount of happiness altogether.”

Here’s the proper “utilitarian” rule: If it must be done by government, it isn’t worth doing unless it is done “to establish Justice, insure domestic Tranquility, [or] provide for the common defence.”

What Has Happened to the Fifth Amendment?

The U.S. Supreme Court’s decision yesterday in Hiibel v. Sixth Judicial District Court has created the usual uproar in the civil liberties hen-house. There is much clucking and flapping about the decision, especially its implications for the Fifth Amendment. First some background: Larry D. Hiibel is a Nevada rancher who was stopped by a deputy sheriff who (as reported in the New York Times)

had responded to a telephone report of a man hitting a woman in the cab of a truck parked along a rural road. Arriving to investigate a possible domestic assault, the deputy found a man who turned out to be Mr. Hiibel standing outside the truck, with a young woman sitting inside the cab. She turned out to be his daughter.

Eleven times, the deputy asked Mr. Hiibel for identification, and 11 times, he refused to provide it….

Eventually, Mr. Hiibel was arrested and charged with the misdemeanor of refusing to identify himself. He was convicted and fined $250. The Nevada Supreme Court upheld his conviction.

As the Times notes, “Twenty states…have such laws on their books, as do a number of cities and towns.” The clincher that has civil libertarians all a-twitter is the effect of the Court’s ruling (from the Times, again):

People who have given the police some reason to suspect that they may be involved in a crime can be required to identify themselves unless their very name would be incriminating….

How did we ever get to such a convoluted reading of the Fifth Amendment? It says, in relevant part, “nor shall any person…be compelled in any criminal case to be a witness against himself…”

In other words, if you’re suspected of a crime, the police can’t question you about the crime if you aren’t willing to be questioned. And if you’re charged with a crime, the prosecution can’t compel you to sit in the witness box as a prosecution witness. That seems straightforward enough.

Suppose, however, that by giving your name to a law-enforcement officer you identify yourself as a wanted criminal or suspect in a crime. That is not the same thing as being compelled “to be a witness against” yourself. But some Supreme Court justices (notably Mr. Stevens) and many civil libertarians treat it as if it were the same thing.

Hiibel’s champions didn’t suddenly arrive at such a perverted interpretation of the Fifth Amendment. No, they’ve merely taken what is, for them, the next logical step in a long progression of precedents that has subverted the original meaning of the Fifth Amendment.

What’s worse is that the majority in Hiibel said, in effect, that Hiibel wasn’t denied the protection of the Fifth Amendment because he wouldn’t have incriminated himself by giving his name. The majority suggested, however, that it might rule otherwise in a case in which a person incriminates himself by giving his name.

What seems to have escaped the majority, the minority, and all the other cluckers and flappers in this case is that a person cannot incriminate himself by giving his name. A person is incriminated by his acts, not by his name. Being forced to state your name is by no stretch of the imagination the same thing as being compelled to answer questions about a crime or to give testimony against yourself in court.

Having said that, I confess that I sympathize completely with Hiibel’s refusal to give his name to the deputy. That would have been my reaction in the same circumstances. Hiibel had done nothing wrong and he was not charged for any crime other than refusing to give his name.

But I’m fed up to my eyebrows with the way the Constitution has been tortured all out of recognition. The Fifth Amendment is merely the most recent part of the Constitution to have been stretched on the rack of jurisprudence.

Ideological or Just Logical?

You’ve undoubtedly heard or read something like this: Libertarians are merely ideological parrots who keep repeating “leave it to the free market.” Economic libertarianism isn’t ideological — it’s logical. In fact, it’s better than logical — it’s an empirically sound position.

You’re Driving Me Crazy (Revised Version)

Driving habits that seem to have become universal in the past several years:

1. Pulling onto the road in front of an oncoming vehicle when it’s the only vehicle in sight.

2. Looping left to make a right turn, and vice versa.

3. Making an abrupt turn without giving a signal, when there are other drivers around you who would benefit from knowing your plans.

4. Going just slow enough to make it through a light as it turns yellow, then speeding up after the cars behind you have braked for the light.

5. Staying in the left lane of an interstate highway while driving at the speed limit (or slower). (This habit dates back at least 20 years, but it has become standard practice in certain places: Virginia and Florida, to name two.)

6. Going 55 mph in the middle lane of an interstate highway when the speed limit is 65 or 70 mph. (Can’t you and the jerks in the left lane read the signs that say “Slower Traffic Keep Right”?)

7. Getting all ticked off and speeding up when someone tries to pass you on an interstate highway, even though you had been dawdling along obliviously at 55 mph.

8. Yielding the right of way when it’s yours — out of a misplaced sense of courtesy — thus confusing the driver who doesn’t have the right of way and causing traffic behind you to back up needlessly.

9. Of course, there’s talking on a cell phone while driving in heavy traffic.

10. Then there’s talking on a cell phone while driving in heavy traffic and leaning into the back seat to slap your child. (Here’s a case where I think the government should confiscate your car — and your child.)

11. How about those drivers who cross the center line while taking a curve because they can’t exert the bit of effort required to stay in the proper lane? (What, no power steering, you self-centered jerks?)

12. Don’t you love those drivers who like to take corners by cutting across the oncoming lane of traffic? Jerks, jerks, jerks.

13. Then there are the drivers who simply drive down the middle of unstriped roads and parking-lot lanes. They either have poor spatial judgment, suffer from extreme nervousness, or flunked sharing in Kindergarten.

14. What are those stripes for on either side of a parking space? Might they be meant to be parked between? No, they’re just targets to aim for. As long as your car is straddling one stripe or the other, you’re okay. SUV drivers — being mostly obnoxious jerks — are the worst offenders, but yuppie women in small BMWs are close contenders.

The longer I make this list, the more irritated I get. I’m ready to hop in my car and go 30 mph through a 20 mph school zone. Then I will keep going 30 mph when I get onto a nice 45 mph boulevard. Then I will honk at you if you dare pass me. Why not? Everyone else seems to do it.

With Apologies to a Female INTJ

In “IQ and Personality” (March 14, 2004), I said “if you encounter an INTJ (Introverted, iNtuitive, Thinking, Judging), there is a 37% probability that his IQ places him in the top 2 percent of the population.” That is, among the 16 personality types in the Myers-Briggs taxonomy, INTJs are the most likely (by a large margin) to have a very high IQ.

A reader has commented on my use of the masculine pronoun in the passage quoted above: “Just letting you know that I am an INTJ and I am a female.”

I’m guilty of lazy writing, for which I apologize. Even though I’m a type-proud, male INTJ, I don’t assume that all INTJs are males.

His Life As a Victim

The New York Times has posted a piece about Bill Clinton’s memoir, My Life. Should we laugh, cry, or scream at Weeping Willie’s latest outrage? You be the judge.

Let’s start with the Jones case, which led to Clinton’s impeachment. The Times says that Clinton

takes the whip to [among others] the Supreme Court, which ruled unanimously in 1997 that Paula Jones’s sexual harassment case against him could go forward while he was in office. He called that one of the most politically naive and damaging court decisions in years.

Of course, he would place himself above the course of justice. You know, the person who holds the presidency is only holding a job temporarily. He’s not indispensible; in fact, he’s rather easily replaced. It was Clinton’s fault that he was sued for sexual harassment. If he couldn’t defend the suit and do his job at the same time, he had two options: resign the presidency or step down temporarily under the provisions of Amendment XXV of the Constitution.

Then there’s this compelling bit about terrorism:

Mr. Clinton defends his record on terrorism, arguing that he pressed the allies for more of a focus on counterterrorism and citing speeches in which he called terror “the enemy of our generation.”

He also notes that in 1996 he signed two directives on terrorism and appointed Richard A. Clarke to be the administration’s terrorism coordinator.

That’s telling ’em, boy. But I guess bin Laden wasn’t listening to Bill’s speeches or reading his directives. Osama damn sure wasn’t impressed by Dick Clarke.

Whitewater? Oh, that:

[Clinton] explained the sudden appearance of Mrs. Clinton’s legal billing records in the White House residence as the product merely of sloppy record-keeping in Arkansas.

Huh?

Finally, we come to the “new, new, new” Clinton:

Mr. Clinton closes the book with a short meditation on the lessons he has learned about accepting personal responsibility, letting go of anger and granting forgiveness. He said that in the many black churches he had visited he had heard funerals referred to as “homegoings.”

“We’re all going home,” he wrote, “and I want to be ready.”

Well, he ain’t ready yet, as these snippets from the Times article attest:

[the] autobiography…is by turns painfully candid about his personal flaws and gleefully vindictive about what he calls the hypocrisy of his enemies….The book’s length gives the former president plenty of room to settle scores, and he does so with his customary elan….He reserved special venom for Kenneth W. Starr….

Of course he did. Starr’s determined effort to uphold the rule of law finally resulted in a small measure of justice when Clinton was disbarred by the State of Arkansas and the U.S. Supreme Court. Such is Clinton’s “legacy”.

Very Helpful, I’m Sure

Headline:

World Leaders Condemn Hostage Slaying

I remember when anti-Vietnam War protesters circled the Pentagon, joined hands, and tried to will an end to the war. That was more effective than the rote condemnation of terrorists for the killing of Paul Johnson in Saudi Arabia.

The same article quotes Human Rights Watch (a world leader in what?) as calling Johnson’s slaying “a heinous crime that no political cause can justify.” You know all you need to know about Human Rights Watch when it elevates al Qaeda’s Islamo-fascist agenda to the status of a political cause. Right up there with George Washington and company. Moral relativism just makes me sick.

The 9/11 Commission

The fault-finding commission deluxe. But I’ve already said all that needs to be said about these 10 turkeys in search of headlines.

Where Your Tax Dollars Go — Installment 9,999,999,999

From the web site of a taxpayer-funded think tank:

Throughout The X Corporation, employees, in small groups and through individual efforts, are making a difference in the quality of their communities and in the lives of their friends, neighbors, and the many who are in need. Through innumerable acts of kindness and concern and commitments of time and boundless energy, a culture has grown within X that shows that extraordinary acts by ordinary people can make a difference in the world.

Giving back to the community is a priority at The X Corporation….

How about focusing on the work that taxpayers are paying you for? That would be the best way to “give back to the community.”

P.S. This is small potatoes. The real ripoff is in the absurdly high salaries paid by such tax-exempt organizations.

P.P.S. Oh, yes, and what would we do without diversity? Here’s what The X Corporation has to say about its diversity program, which is run by a full-time Diversity Coordinator:

Differing points of view, different frames of reference, and a broad range of life experiences bring an energy to the workplace that has helped X become a world leader in producing effective, insightful analysis. [Actually, if this organization is a “world leader” in anything, it’s b.s. Good analysis requires educated intelligence and perspicacity.]

X maintains an all-inclusive diversity program. Supported by an advisory committee, X’s diversity efforts are designed to ensure that we attract, develop, respect, motivate, and retain highly skilled people without regard to race, ethnicity, gender, personal background, religious beliefs, sexual orientation, education, or position within X. [An all-inclusive diversity program, by definition, ensures the hiring of people — some of them not highly skilled — precisely because of their race, etc., etc.]

See all the great things you get for your tax dollars?

What, No Trial?

I’m sure we’ll hear from Human Rights Watch about this (courtesy AP via Yahoo News):

Saudi al-Qaida Leader Reportedly Killed

CAIRO, Egypt – The purported leader of al-Qaida in Saudi Arabia was killed in a raid in the capital Friday, Saudi security officials said. Abdulaziz al-Moqrin, 31, was killed by security forces who had surrounded militants in a downtown neighborhood shortly after the discovery of the body of an American killed earlier in the evening, the officials said, speaking on condition of anonymity.

Or perhaps Madonna will share her views with us.

Tokyo Rose Meets Professor Irwin Corey

More ethereal transmissions from Madonna (courtesy BBC News World Edition):

Madonna has said US President George Bush and ex-Iraqi leader Saddam Hussein are alike because “they are both behaving in an irresponsible manner”….

During the US interview Madonna tried to draw a line under her wild days, vowing to be “part of the order, not the chaos, of the world”.

She said: “The stance of a rebel is ‘I don’t care what you think’. But if it’s just for the sake of upsetting the apple cart, you’re not really helping people.

“You turn the apple cart over and then what? Then everyone’s looking at an apple cart that’s turned over and they’re like, well, now what do I do?”

The 45-year-old mother-of-two said her days of shedding her clothes on stage or in front of the camera are also over.

Madonna wants to shed her old image

“I thought I was liberating mankind but, like I said, I wasn’t really offering an alternative.

“To a certain extent I was saying ‘Look, you know, why do men only get the job of objectifying women in a sexual way? I want to do it too.’

“There was an element of that, but there was also an element of being an exhibitionist and saying ‘look at me’. It wasn’t that altruistic. I can admit that.”

That Madonna — always reinventing herself. Give her 10 years and she’ll be a Republican.

More about the Worrying Classes

I wrote recently about the worrying classes. Worriers are the many among us who cannot be convinced that people would be better off with less regulation, with private Social Security accounts, with even fewer restraints on international trade, and on, and on. Worriers seem incapable of envisioning the greater good that economic freedom brings to most people. There are several worrying classes.

In my previous post I wrote about the the jabberers. They are the denizens of Capitol Hill, the media, universities, and so-called knowledge professions whose main task is to promote the worriers’ agenda.

The other worrying classes are the activists, the entrenched, the “engineers”, and the romantics. Activists are represented by such organizations as Greenpeace, the Sierra Club, and other irresponsibly luddite groups. Then there are all the groups that represent outraged feminists, homosexuals, persons of color, and their sympathizers. To top it off, there are the groups that want to spend your tax dollars for their pet diseases and disabilities.

The entrenched class includes labor unions, regulated industries, and various professions (notably medicine and law). They promote laws and regulations to shelter themselves from competition by playing on the fears of the worrying masses.

“Engineers” are those physical and social scientists who try to out-think free markets. They’re smarter than the rest of us, you see.

Romantics simply want a better world. Their tenuous grasp of reality causes them to believe in peace through surrender and prosperity through socialism. Many of them are activists. Those who are not activists constitute a large fraction of the worrying masses — those who lend their votes, money, and sympathy to the worrying classes.

"Those Who Can, Do,…

…those who can’t, teach,” the old saying goes. These days it should be “those who can are forced to put up with those who merely think and talk.” The jabbering class — which resides on Capitol Hill, and in the media, universities, and so-called knowledge professions — talks a good game, but most of its members aren’t equipped to play the real game of life. They thrive only when they have the power of government on their side. That is why they try so avidly to control it, shape its rules, and divert tax dollars to their causes.

If we truly had constitutional government and laissez-faire capitalism, most members of the jabbering class would be begging on corners. And they wouldn’t do it very well.

It Is the Economy — And a Few Other Things

Predicting presidential elections is fairly easy. To begin with, the incumbent or the nominee of the incumbent party wins most of the time — 60 percent of the time from 1920 through 2000. (I’ve picked 1920 as the starting point for this analysis because it marks the birth of the modern, post-Teddy Roosevelt, more-or-less laissez-faire Republican Party.)

Why do incumbents or the incumbent party’s nominee tend to win? Because the private economy grows most of the time. (My measure of growth in the private economy is the change in real GDP per capita, net of government spending.) Naive voters (that’s most of them) tend blame or credit the current president with the state of the economy. Such blame or credit is seldom merited.

With three exceptions, which I’ll come to, the incumbent or the incumbent party’s nominee lost the election when the private economy was shrinking in election year or was about where it had been four years earlier. Such was the case in 1920 (Cox lost to Harding), 1932 (Hoover lost to FDR), 1952 (Stevenson lost to Eisenhower), 1960 (Nixon lost to JFK), 1976 (Ford lost to Carter), 1980 Carterr lost to Reagan), and 1992 (Bush I lost to Clinton). The more attractive personalities of Eisenhower (vs. Stevenson), JFK (vs. Nixon), and Reagan (vs. Carter) may also help to explain their victories. Clinton’s personality may have helped him beat Bush I, but he was helped greatly by Perot, who probably siphoned far more votes from Bush I than he did from Clinton.

The only three election outcomes that violate the rule of growth are those of 1944, 1968, and 1980. The private economy was growing in 1944, but it had shrunk since 1940. However, it had shrunk because of the massive diversion of resources to a popular war. People understood that and stuck with Roosevelt, albeit by a smaller margin than in 1932, 1936, and 1940.

In 1968 and 2000, by contrast, incumbent vice presidents (Humphrey and Gore) failed to win election in their own right, despite strong economic growth.

The 1968 election was, as much as anything else, a referendum on the war in Vietnam and the cultural war in America. Humphrey was the target of the electorate’s rage for the failure of the war in Vietnam and for the rise of the counter-culture. Nixon’s victory over Humphrey would have been even larger had Wallace not captured a large part of the counter-counter-culture vote.

The 2000 election was Gore’s to lose, and he lost it, but barely. Yes, the U.S. Supreme Court made the right decision, albeit for the wrong reason. The Florida Supreme Court tried, selectively, to give some voters a second chance after they had failed to cast proper ballots, in contravention of the rules adopted by the Florida legislature and therefore in contravention of the U.S. Constitution.

The strong desire of conservative voters to punish Gore for Clinton’s sins was probably offset by the strong desire of liberal voters to vindicate Clinton by electing Gore. Gore may have been hurt by the contrast between his own rather scolding, school-marmish personality and Clinton’s sunny personality, but Bush certainly wasn’t (and isn’t) an Eisenhower, JFK, or Reagan. Gore simply ran a bad campaign; he zigged left and zagged right, always transparently pandering to one interest group or another. He ultimately lost the election because many people on the far left suspected his bona fides and cast their votes for Nader. And there went Florida. Gore was the Titanic of presidential candidates — seemingly robust but fatally vulnerable.

What will happen in 2004? Bush stands a good chance if the economy continues to rebound strongly until election day. But he will probably lose if the economy stutters or if voters see Iraq as a second Vietnam. A major terrorist attack in the United States could cut either way. It will be close.

Fair’s Fair

Doctor Proposes Not Treating Some Lawyers

AP reports that Dr. J. Chris Hawk, a South Carolina surgeon, asked “the American Medical Association to endorse refusing care to attorneys involved in medical malpractice.” According to AP, Dr. Hawk “said he made the proposal to draw attention to rising medical malpractice costs. The resolution asks that the AMA tell doctors that — except in emergencies — it is not unethical to refuse care to plaintiffs’ attorneys and their spouses.”

Of course, there were loud protests, and Dr. Hawk withdrew his proposal. But I like the idea.

Next target: politicians who meddle with health care.

The Worriers

The worrying classes got hold of government in the 1930s. Then the worrying masses got in the habit of looking to government to solve every problem — no, to anticipate every problem so that nothing bad ever happens to anyone.

Rational people — libertarians, thinking conservatives, and free-market economists — can talk until their throats go dry, but it won’t sway the worriers. Worriers cannot be convinced that people would be better off with less regulation, with private Social Security accounts, with even fewer restraints on international trade, and on, and on. Worriers seem incapable of envisioning the greater good that economic freedom brings to most people. And having lost the habit of private charity, they cannot imagine that the many who profit by economic freedom will help the few who do not.

Ironically, FDR said it best: “the only thing we have to fear is fear itself–nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.” But FDR, as usual, did exactly the wrong thing. He turned government over to the worrying classes and seduced the worrying masses into dependence on government. The cycle of power and dependence remains unbroken.

Why Not Just Use SAT Scores?

Here’s what happens when universities insist on having a “diverse” student body (from the New York Times online):

Diversity Plan Shaped in Texas Is Under Attack
By JONATHAN D. GLATER

AUSTIN, Tex., June 8 — Texas lawmakers thought they had found the ideal alternative to race-based affirmative action.

Seven years ago, after a federal court outlawed the use of race in the admissions policies of the state’s public universities, the Legislature came up with an answer: It passed a law guaranteeing admission to the top 10 percent of the graduating class from any public or private high school. After a few years of hard work, diversity was restored and other states, including California and Florida, adopted similar approaches. The law looked like a success.

But the 10 percent rule, which seemed to skirt the tricky issue of race so deftly, is coming under increasing attack these days as many wealthy parents complain that their children are not getting a fair shake. A consensus seems to be building that some change is necessary.

Parents whose children have been denied admission to the University of Texas at Austin, the crown jewel of Texas higher education, argue that some high schools are better than others, and that managing to stay in the top 25 percent at a demanding school should mean more than landing in the top 10 percent at a less rigorous one. The dispute shows how hard it is to come up with a system for doling out precious but scarce spots in elite universities without angering someone.

Of course, the Times had to work in a gratuitous reference to “wealthy parents.” The real question is whether the 10-percent rule discriminates against the more intelligent high school grads in Texas. The answer is: It must.

The amount of money a school district has to spend per student depends on the average income of households in the school district. Income depends, to a large degree, on intelligence. And intelligence is a heritable trait. Thus, students from “wealthier” school districts are generally more intelligent than students from “poorer” school districts — because they were born smarter, not because of their more expensive schooling.

The 10-percent rule thus has the same effect as old-fashioned affirmative action. It discriminates against brighter students.

Favorite Posts: Affirmative Action and Race

The Right Is Smarter Than the Left

This content of this post is now incorporated in “Intelligence, Personality, Politics, and Happiness.”

In the "Old News" Department

Headline from AP, via Yahoo News:

Research Shows Dogs Can Comprehend Words

Science once again catches up with reality.