Take Landsburg’s Money

REVISED 01/01/11 and 01/02/11, with the addition of new material (clearly indicated).

Economist-mathematician Steven Landsburg recently offered a problem and later posted a purported solution to it. Landsburg is so confident that his solution is the correct one that he has offered to bet significant sums of money that it’s the correct one. And, as of this morning, Landsburg still insists that he has the right answer.

The problem is one (among many) that Google has posed to candidates for employment. Landsburg states it as follows:

There’s a certain country where everybody wants to have a son. Therefore each couple keeps having children until they have a boy; then they stop. What fraction of the population is female? [The actual wording of the question, according to this source, is slightly different, but Landsburg’s paraphrase is faithful to the meaning.]

He adds:

Well, of course, you can’t know for sure, because, by some extraordinary coincidence, the last 100,000 families in a row might have gotten boys on the first try. But in expectation, what fraction of the population is female? In other words, if there were many such countries, what fraction would you expect to observe on average?

I first heard this problem decades ago, and so, perhaps, did you. It comes up in job interviews at places like Google. The answer they expect is simple, definitive and wrong.

And no, it’s not wrong because of small discrepancies between the number of male and female births, or because of anything else that’s extraneous to the spirit of the problem. It’s just really wrong. The correct answer, unlike the expected one, is not simple.

According to Landsburg, the “obvious” — but wrong — answer is that one-half of the children are boys and one-half of the children are girls. Landsburg rejects the “obvious” answer, with this explanation:

I’ll start with the case where there’s just one couple. Here are some possible family configurations, with their probabilities:

From this we see that the expected number of boys is

which adds to 1. And the expected number of girls is

which also adds to 1. Sure enough, the expected number of girls is equal to the expected number of boys.

But the expected fraction of girls is

which adds to 1-log(2), or about 30.6%.

For a population of k families, a similar calculation gives an answer of approximately (but not exactly) (1/2) – (1/4k), which, when k is large, is approximately (but not exactly) 1/2.

Elsewhere, Landsburg offers to make bets with readers who disagree with his analysis, and to settle matters through the use of simulation. But (a) I’m not interested in betting and (b) I prefer to treat the problem as one of mathematical expectation, which Landsburg also (rightly) prefers. He suggests the use of simulation only as a way of convincing some skeptics of the correctness of his analysis.

Interestingly, Landsburg’s “solution” — an expected girl fraction of 0.3068 for one family and, presumably, not quite 0.5 for the entire country — is at odds another person’s solution (girl fraction ~0.61),to which Landsburg points favorably. This discrepancy suggests some confusion on Landsburg’s part, which is evident in his depiction of the possible configurations of a single family (the children in the family, actually). He takes a special case — which omits the possibility of a first-born girl. He then generalizes from that special case.


This section added 01/01/11 and revised slightly for clarity on 01/02/11:

What I took for an omission on Landburg’s part (the possibility of a first-born girl), isn’t an omission — in Landsburg’s view. His estimate of the girl fraction for a family is for a completed family (his term, not mine). Thus the configurations B, GB, GGB, GGGB, etc.

But there’s no such thing (in the context of a single family) as a completed family. (In a large number of families, there may be a completed families, but every one of them will be matched by an equal number of uncompleted families. More about that below.)  No particular couple ever has a boy with an a priori probability = 1, which is what Landsburg implies (inadvertently, I’m sure) when he focuses on B, GB, GGB, GGGB, etc., where the B in each case signifies the end of a possible sequence of children.

On the contrary, if PB = 1/2 at all times (and not 1 at arbitrary times) every boy must be accompanied by a girl, with equal probability. (Alternatively, shades of Schrödinger’s cat, the probability wave collapses to PB =1 when Landsburg decides that  enough kids are enough.) Here’s a schematic depiction of what happens when Landsburg doesn’t play with the probabilities:

On the left side of the vertical line, the probable first-born boy, being only probable, is followed by a probable boy or girl, and so on. On the right side, the probable first-born girl is followed by a probable boy or girl, and so on. On both sides, the possible configurations take the form Child 1, Child 1 + Child 2, Child 1 + Child 2 + Child 3, etc.

Landburg, in effect, has restricted his view of the possible  configurations to the left side of the diagram.With the whole diagram in view, it’s obvious that the fraction of girls in each stage, and through each stage, is always 1/2.

End of section. Original post continues below the line.


To analyze the problem correctly it’s helpful to spell out all of its conditions and (sometimes implicit) assumptions:

  • The basic rule — couples have children until a boy is born, but not after that — means that no couple in country X will have more than 1 boy, but the number of girls is limited only to the number of children that a couple generates before having a boy.
  • A couple can generate children endlessly, if necessary. That is to say, there’s no limit on the number of children a couple may produce and no limit on the time in which they may produce them.
  • The probability that any given birth will result in a boy (B) or girl (G)  is 1/2 for each; that is PB = PG = 1/2. (The actual fractions, I gather, are about 0.52 boys and 0.48 girls per birth.) These probabilities never vary, and are always the same for every couple.
  • Given the open-ended nature of the problem, it’s possible that some couples will have an infinite number of children without producing a boy. But, given the preceding statement, the first-born of half the couples will be a boy; those couples will have no more children.
  • The situation begins at a finite time (t = 0) and only those children born to the couples in country X after t = 0 are counted.
  • Children are born at a uniform rate, so that all the first-borns are born at  t = 1; all the second-borns at  t = 2; and so on. (This assumption and the preceding one don’t affect the results, but they allow for a simple illustration of the problem.)
  • In computing the fraction of boys and girls in the population, it’s assumed that there are no abortions or miscarriages, and that no children die at birth or later.

Perhaps the solution to the problem will be easier to see if the problem is recast, so that B = blue ball, G = green ball, and “couple” becomes “player”:

  • There’s a large but finite number of urns. Each is full of colored balls. Half of them are blue (B); half of them are green (G).
  • Positioned at each urn is a player whose job it is to make a blind draw of one ball from his urn at a regular interval (say, 1 minute). Each ball is kept by the player who draws it.
  • As each ball is drawn, the keeper of the urn from which it is drawn replaces it with a new ball of the same color, and mixes the balls thoroughly to ensure the randomness of the next draw.
  • When a player draws a B, he keeps it but doesn’t draw any more balls.
  • When a player draws a G, he keeps it and draws another ball (from the replenished urn) a minute later. This continues until the player draws a B.
  • It’s possible that some players will never draw a B.

All of the other assumptions stated earlier apply in this case (e.g., PB = PG = 1/2, PB and PG never vary and are always the same for every player).

Consider the following illustration of the results of the first four rounds of play:

Illustration of the General Case ( with 10,000 urns)
B G Total G fraction
Minute 1 5,000 5,000 10,000 1/2
Total 5,000 5,000 10,000 1/2
Minute 2 2,500 2,500 5,000 1/2
Total 7,500 7,500 15,000 1/2
Minute 3 1,250 1,250 2,500 1/2
Total 8,750 8,750 17,500 1/2
Minute 4 625 625 1,250 1/2
Total 9,375 9,375 18,750 1/2

The 5,000 players who draw a B at minute 1 stop drawing, but they keep the Bs that they draw. The 5,000 players who draw a G at minute 1 keep their Gs and make another draw at minute 2. That draw results in the selection of 2,500 Bs and 2,500 Gs, which are kept by the players who draw them. The 2,500 players who draw a G at minute 2 make another draw at minute 3, which results in the selection of 1,250 Bs and 1,250 Gs, and so on.

At this point, it’s important to note that the stopping rule has no effect on the fractions of B and G drawn in any round of play. Given that PB and PG are always the same for each and every player, as stated in the list of assumptions, it doesn’t matter whether or when players drop out of the game or join the game, or under what conditions they drop out or join, as long as PB = PG = 1/2, always and for every player. Given those conditions — which are central (implicit) assumptions of the original Google problem — every round of play, from the first one onward, results in equal (expected) numbers of B and G.


This section added and revised 01/02/11.

In the example of 10,000 players with 10,000 urns, the number of players at minute 5 would be an odd number, and the number of players at minute 6 and beyond wouldn’t be an integer. But the example is about expected values (as it should be), so the lack of an even, whole number of players after minute 4 wouldn’t affect the import of the example.

To show what happens in the “end game,” I turn to a slightly different example, which begins with a number of players such that there can be exactly two left in the penultimate round, after all others have drawn a B. What happens when one of the two players draws a B while the other draws a G? Good question. First of all, the draws to and including that round will have resulted in an equal number of B and G. What happens next is a matter of pure chance. The final player — the one whose penultimate draw is a G — has an equal chance of drawing a G or a B on his next and final draw. The chance of drawing a B doesn’t suddenly jump to 1, nor does the chance of drawing a G suddenly jump to 1. The game could end there, with equal numbers of B and G having been drawn and a final draw to be made with PB = PG = 1/2. But there’s no reason to expect that the final draw will be a B, to the exclusion of a G, or vice versa.


(The Gs drawn by players 8191 and 8192 in rounds 1-11 would have been matched, in each round, by other players who draw Bs in those rounds. Players 8191 and 8192, in this example, would be the only players left for round 12.)

End of section. Original post continues below the line.


Mathematically, the expected numbers of B and G (EB and EG) drawn by a single player are as follows:

EB = (1)(1/2) + (1/2)(1/2) + (1/4)(1/2)  + (1/8)(1/2) + … = 1

EG = (1)(1/2) + (1/2)(1/2) + (1/4)(1/2)  + (1/8)(1/2) + … = 1

The expected fraction of G is:

EG/(EG + EB) = (1/2)(1/2) + (1/4)(1/2) + (1/8)(1/2) + … = 1/2,

which reduces to PG/(PG + PB) = 1/2

Given N players, the expected numbers of B and G are:

EB = (N)(1/2) + (N/2)(1/2) + (N/4)(1/2)  + (N/8)(1/2) + … = N

EG = (N)(1/2) + (N/2)(1/2) + (N/4)(1/2)  + (N/8)(1/2) + … = N

Again, given the “rules” of the game (i.e., of the original Google problem), the expected fraction of G is always 1/2, at every point in the game and in its expected (but never reached) outcome.

The stopping rule is a red herring, intended (I suspect) to draw attention from the essential fact that EB = EG, always and for everyone, no matter how many players (couples) there are or when and under what conditions they join or leave the game (start or stop having children).

*     *     *

To Prof. Landsburg, should he read this post:

If you don’t immediately spot a fatal flaw in my analysis, why not have some members of U of R’s stat department check it out? That seems to me to be the best way to settle the issue.

If you conclude that my analysis is correct (in the essentials, at least), you won’t owe me any money because we haven’t made a bet. (You couldn’t send me money, anyway, unless you are able to penetrate my anonymity.) Just acknowledge my contribution prominently in a post on your blog and add a link to my blog in your sidebar (perhaps under the heading “Unclassified Blogs”).

*     *     *

This isn’t the first time that Landsburg has attracted my attention:
Landsburg Is Half-Right
Rawls Meets Bentham
The Case of the Purblind Economist

Does Congress Have the Power to Regulate Inactivity?

Regarding the constitutionality of the individual mandate, Orin Kerr poses the following hypothetical:

If a person comes into innocent possession of child pornography — for example, if you receive an unsolicited book in the mail, or an e-mail with an attachment, that contains child pornography — the law requires you to act to avoid criminal liability. Specifically, the person must:

promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) [take] reasonable steps to destroy each such visual depiction; or
(B) report[] the matter to a law enforcement agency and afford[] that agency access to each such visual depiction.

18 U.S.C. 2252(c). If a person does not do this, then he or she is guilty of a federal felony crime that has quite severe sentences.

I have two questions for proponents of the activity/inactivity distinction. First, in your view, does this law extend beyond Congress’s power by regulating inactivity?

Second, if you think that this mandate exceeds the Commerce Clause power, what law must be struck down? The quoted statute, 18 U.S.C. 2252(c), is a statutory exemption to liability in the child pornography law. It is a “mandate” in the sense that it gives people a way to avoid going to jail. If the child pornography laws are an unconstitutional mandate, must the child pornography laws be struck down at least as applied to innocent possession? In other words, is it beyond the reach of Congress to require those who come into innocent possession of child pornography to take reasonable steps to destroy it or report the matter to law enforcement?

My response:

First, in your view, does this law extend beyond Congress’s power by regulating inactivity?

The law exceeds Congress’s power by attempting to reach beyond interstate commerce. The transmission of pornography across state lines may be within Congress’s reach. What happens to pornography when it reaches a destination is not within Congress’s reach, unless that destination is merely a node in the chain of interstate commerce.

Second, if you think that this mandate exceeds the Commerce Clause power, what law must be struck down?

The law that requires one to act to avoid criminal liability. The possession of pornography (where possession is not for the purpose of interstate transmission) should be covered (or not) by state law.

In sum, the hypothetical doesn’t really address the activity/inactivity issue. A relevant hypothetical: Congress passes a law that requires every household to buy a subscription to a news magazine (Time, Newsweek, etc.) because (a) such magazines are distributed across state lines, (b) there is a compelling interest in their survival, and (c) because of (a) and (b) Congress has the power to regulate inactivity in the market for news magazines by compelling every household to subscribe to at least one of them.

In other words, the purpose of the individual mandate is not to help Congress enforce a legitimate regulation of interstate commerce. The purpose of the individual mandate is to help Congress regulate an entire market, known broadly as “health care,” on the excuse that some of the things involved in that market happen to be transported across state lines. Moreover, the “high costs” that have been used as an excuse for (further) meddling in the market are largely the result of artificially high demand for medical services — encouraged by “free” and “cheap” access via Medicare and Medicaid — combined with the suppression of supply by arbitrarily low reimbursement rates and red tape.

Related posts:
The Unconstitutionality of the Individual Mandate
Does the Power to Tax Give Congress Unlimited Power?

See also “The Constitution: Myths and Realities“.

The Golden Rule and the State

To suggest, as I have in the preceding post and many others, that positive rights are inimical to liberty, is to imply that liberty is an entirely negative thing: the absence of interference in one’s life, except as one interferes in the lives of others. There’s a persistent and often persuasive counter-argument, which says that liberty is hollow if a person lacks the wherewithal to pursue its fruits. That argument for positive rights can be met with three counter-arguments:

  • The use of state power to grant positive rights diminishes the charitable impulse, along with the ability to indulge it.
  • Redistribution of income — which supports positive rights like welfare and results from positive rights like affirmative action — leads to a slower rate of economic growth because (a) it takes money from those most able to fund capital investments and gives it to those who simply consume it and (b) requires firms to employ less-productive workers in favor of more-productive ones. Two key results, which obtain in the  not-very-long run, are (a) fewer and less remunerative jobs for groups that positive rights are meant to help and (b), as noted above, less money for private acts of charity.
  • It’s presumptuous of a third party to decide who deserves more and who deserves less. Any claim that redistributive acts foster “social welfare” rests on the erroneous view that the well-being of individuals can be added, in some fashion, to derive an aggregate measure of well-being. In fact, the harm that’s done to A by giving some of his income to B cannot be undone by whatever enjoyment B derives from the additional income.

At which point, obdurate proponents of positive rights (i.e., left-statists, bleeding hearts, and do-gooders) will say something like this: “Well, it’s only fair/just to help those who are in need/born in poverty/born with the wrong skin color/unlucky in life/etc., etc.” The arguments against positive rights, no matter how well stated or supported, will simply roll off most proponents of such rights because it’s in their nature to want “fairness”/”justice” — and damn the consequences. It’s also in the nature of left-statists to relish the power of controlling others, against which there is no counter-argument but defeat at the polls, civil disobedience, or secession.

The argument about rights, in other words, is a futile one that ought to be abandoned in favor of one that might have more appeal to those who favor positive rights. The alternative — which, I admit, is a long shot — is a very old concept, about which I’ve written before (here and here, for example). The very old concept is the Golden Rule: One should treat others as one would like others to treat oneself. It’s a truly natural law, for reasons I give below.

The Golden Rule can be expanded into two, complementary sub-rules:

  • Do no harm to others, lest they do harm to you.
  • Be kind and charitable to others, and they will be kind and charitable to you.

The first sub-rule — the negative one — is compatible with the idea of negative rights, but it doesn’t demand them. The second sub-rule — the positive one — doesn’t yield positive rights because it’s a counsel to kindness and charity, not a command.

I call the Golden Rule a natural law because it’s neither a logical construct (e.g., the “given-if-then” formulation discussed in the preceding post) nor a state-imposed one. Its long history and widespread observance (if only vestigial) suggest that it embodies an understanding that arises from the similar experiences of human beings across time and place. The resulting behavioral convention, the ethic of reciprocity, arises from observations about the effects of one’s behavior on that of others and mutual agreement (tacit or otherwise) to reciprocate preferred behavior, in the service of self-interest and empathy. That is to say, the convention is a consequence of the observed and anticipated benefits of adhering to it.

I must qualify the term “convention,” to say that the Golden Rule will be widely observed within any group only if the members of that group are generally agreed about the definition of harm, value kindness and charity (in the main), and (perhaps most importantly) see that their acts have consequences. If those conditions are not met, the Golden Rule descends from convention to admonition.

Is the Golden Rule susceptible of varying interpretations across groups, and is it therefore a vehicle for moral relativism? I say “yes,” with qualifications. It’s true that groups vary in their conceptions of permissible behavior. For example, the idea of allowing, encouraging, or aiding the death of old persons is not everywhere condemned, and many recognize it as an inevitable consequence of a health-care “system” that is government-controlled (even indirectly) and treats the delivery of medical services as a matter of rationing. (I am willing to bet that the affluent left-statists who strongly support nationalized medical care would find ways to avoid the verdicts of “death panels,” when it comes to them and their families.)  Infanticide has a long history in many cultures; modern, “enlightened” cultures have simply replaced it with abortion. Slavery is still an acceptable practice in some places, though those enslaved (as in the past) usually are outsiders. Homosexuality has a long history of condemnation and occasional acceptance. To be pro-homosexual — and especially to favor homosexual “marriage” — has joined the litany of “causes” that signal leftist “enlightenment,” along with being for abortion and against the consumption of fossil fuels (except for one’s SUV, of course).

The foregoing recitation suggests a mixture of reasons for favoring or disfavoring certain behaviors. Those reasons range from purely utilitarian ones (agreeable or not) to status-signaling. In between, there are religious and consequentialist reasons, which are sometimes related. Consequentialist reasoning goes like this: Behavior X can be indulged responsibly and without harm to others, but there lurks the danger that it will not be, or that it will lead to behavior Y, which has repercussions for others. Therefore, it’s better to put X off-limits or to severely restrict and monitor it. Consequentialist reasoning applies to euthanasia (it’s easy to slide from voluntary to involuntary acts, especially when the state controls the delivery of medical care), infanticide and abortion (forms of involuntary euthanasia and signs of disdain for life), homosexuality (a depraved, risky practice that can ensnare impressionable young persons who see it as an “easy” way to satisfy sexual urges), alcohol and drugs (addiction carries a high cost, for the addict, the addict’s family, and sometimes for innocent bystanders). A taste or tolerance for destructive behavior identifies a person as an untrustworthy social partner.

It seems to me that the exceptions listed above are just that. There’s a mainstream interpretation of the Golden Rule — one that still holds in many places — which rules out certain kinds of behavior, except in extreme situations, and permits certain other kinds of behavior. There is, in other words, a “core” Golden Rule that comes down to this:

  • Killing is wrong, except in self-defense. (Capital punishment is just that: punishment. It’s also a deterrent to murder. It isn’t “murder,” muddle-headed defenders of baby-murder to the contrary notwithstanding.)
  • Various kinds of unauthorized “taking” are wrong, including theft (outright and through deception). (This explains popular resistance to government “taking,” especially when it’s done on behalf of private parties. The view that it’s all right to borrow money from a bank and not repay it arises from the mistaken beliefs that (a) it’s not tantamount to theft and (b) it harms no one because banks can “afford it.”)
  • Libel and slander are wrong because they are “takings” by word instead of deed.
  • It is wrong to turn spouse against spouse, child against parent, or friend against friend. (And yet, such things are commonly portrayed in books, films, and plays as if they are normal occurrences, often desirable ones. And it seems to me that reality increasingly mimics “art.”)
  • It is right to be pleasant and kind to others, even under provocation, because “a mild answer breaks wrath: but a harsh word stirs up fury” (Proverbs 15:1).
  • Charity is a virtue, but it should begin at home, where the need is most certain and the good deed is most likely to have its intended effect.

None of these observations would be surprising to a person raised in the Judeo-Christian tradition, or even in the less vengeful branches of Islam. The observations would be especially unsurprising to an American who was raised in a rural, small-town, or small-city setting, well removed from a major metropolis, or who was raised in an ethnic enclave in a major metropolis. For it is such persons and, to some extent, their offspring who are the principal heirs and keepers of the Golden Rule in America.

An ardent individualist — particularly an anarcho-capitalist — might insist that social comity can be based on the negative sub-rule, which is represented by the first five items in the “core” list. I doubt it. There’s but a short psychological distance from mean-spiritedness — failing to be kind and charitable — to sociopathy, a preference for harmful acts. Ardent individualists will disagree with me because they view kindness and charity as their business, and no one else’s. They’re right about that, as far as I’m concerned, but I’m talking about proclivities, not rights. But kindness and charity are indispensable to the development of mutual trust among people who live in close proximity, without the protective cover of an external agency (e.g., the state). Without mutual trust, mutual restraint becomes problematic and co-existence becomes a matter of “getting the other guy before he gets you” — a convention that I hereby dub the Radioactive Rule.

Nevertheless, the positive sub-rule, which is represented by the final two items in the “core” list, can be optional for the occasional maverick. An extreme individualist (or introvert or grouch) could be a member in good standing of a society that lives by the Golden Rule. He would be a punctilious practitioner of the negative rule, and would not care that his unwillingness to offer kindness and charity resulted in coldness toward him. Coldness is all he would receive (and want) because, as a punctilious practitioner of the negative rule; his actions wouldn’t necessarily invite harm.

But too many extreme individualists would threaten the delicate balance of self-interested and voluntarily beneficial behavior that’s implied in the Golden Rule. Even if lives and livelihoods did not depend on acts of kindness and charity — and they probably would — mistrust would set it in. And from there, it would be a short distance to the Radioactive Rule.

Of course, the delicate balance would be upset if the Golden Rule were violated with impunity. For that reason, the it must be backed by sanctions. Non-physical sanctions would range from reprimands to ostracism. For violations of the negative sub-rule, imprisonment and corporal punishment would not be out of the question.

Now comes a dose of reality. Self-governance by mutual consent and mutual restraint — by voluntary adherence to the Golden Rule — is possible only for a group of about 25 to 150 persons: the size of a hunter-gatherer band or Hutterite colony. It seems that self-governance breaks down when a group is larger than 150 persons. Why should that happen? Because mutual trust, mutual restraint, and mutual aid — the things implied in the Golden Rule — depend very much on personal connections. A person who is loathe to say a harsh word to an acquaintance, friend, or family member — even when provoked — often waxes abusive toward strangers, especially in this era of e-mail and comment threads, where face-to-face encounters aren’t involved.  More generally, it’s a human tendency to treat acquaintances differently than strangers; the former are accorded more trust, more cooperation, and more kindness than the latter. Why? Because there’s usually a difference between the consequences of behavior that’s directed toward strangers and the consequences of behavior that’s directed toward persons one knows, lives among, and depends upon for restraint, cooperation, and help. The allure of  doing harm without penalty (“getting away with something”) or receiving without giving (“getting something for nothing”)  becomes harder to resist as one’s social distance from others increases.

When self-governance breaks down, it becomes necessary to spin off a new group or to establish a central power (a state) to establish and enforce rules of behavior (negative and positive). The problem, of course, is that those vested with the power of the state quickly learn to use it to advance their own preferences and interests, and to perpetuate their power by granting favors to those who can keep them in office. It is a rare state that is created for the sole purpose of protecting its citizens from one another and from outsiders, and rarer still is the state that remains true to such purposes.

In sum, the Golden Rule — as a uniting way of life — is quite unlikely to survive the passage of a group from community to state. Nor does the Golden Rule as a uniting way of life have much chance of revival or survival where the state already dominates. The Golden Rule may have limited effect within well-defined groups (e.g., parishes, clubs, urban enclaves, rural communities), by regulating the interactions among the members of such groups. It may have a vestigial effect on face-to-face interactions between stranger and stranger, but that effect arises mainly from the fear that offense or harm will be met with the same, not from a communal bond.

In any event, the dominance of the state distorts behavior. For example, the state may enable and encourage acts (e.g., abortion, homosexuality) that had been discouraged as harmful by group norms; the ability of members of the group to bestow charity on one another may be diminished by the loss of income to taxes and discouraged by the establishment of state-run schemes that mimic the effects of charity (e.g., Social Security).

In a future post, I will address the challenge of re-forming the state to reinvigorate the Golden Rule.

What Are “Natural Rights”?

Readers who are coming here from Timothy Sandefur’s “Teleology Without God” should read my post, “Evolution, Human Nature, and ‘Natural Rights’,” after reading this post.

I have written several times about rights and their source:

The last item includes some comments about Timothy Sandefur’s views on the subject of “natural rights.” Sandefur has responded to those comments. In this post, I take Sandefur’s response as a starting point for a further examination of “natural rights.”

To begin with, I’m pleased that  Sandefur seems to agree with my observation that

rights can’t be rights if they can’t be held universally, without cost to others. The right not to be murdered is such a right; the right to live on the public dole is not. We can, in theory, forbear from murdering each other, but we cannot all be on the public dole except (possibly) at different times. And even then we must impose on others (including those who would prefer to be on the public dole at the same time).

All of this is a way of stating  the doctrine of negative rights, which is the basis of libertarianism. But negative rights can’t be applied universally if there are some holdouts who want others to give to them without having to give to others.

But the doctrine of negative rights  is simply a logical consequence of a definition of rights: they “can’t be rights if they can’t be held universally, without cost to others.” There’s nothing in that definition to suggest that it’s the only possible definition of rights.

In fact, there are many who would disagree that negative rights are the only rights. Leftists, for example, would assert various positive rights: to a “living wage,” to “decent housing,” and the like. (See, for example, the UN Declaration of Human Rights,) Such positive rights, a leftist would say, are universal, in that they could be enjoyed by everyone at one time or another. Furthermore, the fact that their enjoyment would impose a cost on others (those not then enjoying them) should be of no consequence. A right is a right, after all. Moreover, as I will show, the argument for “natural rights” advanced by Sandefur (and many others) lends itself to the recognition of positive rights as “natural” ones.

What are “natural rights,” as Sandefur understands them? A search of his blog yields some evidence of his views. There’s a post in which he quotes approvingly the following statement:

[E]ach person should be free to do as they please so long as their actions do not harm another person against their will, take away their equal liberties, or rob them of the fruits of their labors. There is no right to murder or to steal within the natural rights framework for the obvious reason that it deprives the rights of others.

In another post, Sandefur makes a similar statement:

[T]he natural rule against taking the “goods of another” is not an arbitrary postulate…. [T]he basis of the right against deprivation is equality—that is, the fact that no person is naturally justified to rule over another.

These are restatements of the doctrine of negative rights, which — as I’ve pointed out — is a matter of definition, not necessity. Sandefur would disagree, of course, because he sees “natural (negative) rights” as an inherent feature of the human condition:

[W]hat the word “natural” means is simply that these rights are not merely conventional. They do not exist just because we have agreed to them; they are not simply a matter of agreement or habit. Their existence is on account of something outside of, or prior to, mere convention, in the way that, say, the human capacity for language, or sexual desire, or the law of supply and demand, are not simply products of convention, but arise from the nature of the people or the things involved.

I find this unenlightening, because it is teleological. Sandefur might as well say that it is in the “nature” of a baseball to be

a sphere formed by yarn wound around a small core of cork, rubber or similar material, covered with two strips of white horsehide or cowhide, tightly stitched together. It shall weigh not less than five nor more than 5¼ ounces avoirdupois and measure not less than nine nor more than 9¼ inches in circumference.

However, the “nature” of a baseball, as I’ve just defined it, is a matter of human design. It doesn’t arise “naturally” from the baseball.

Perhaps, then, Sandefur would say that it’s in the “nature” of a baseball to be thrown, hit, and caught, just as it’s in the nature of humans to have certain rights. But, again, the nature of a baseball to be thrown, hit, and caught is a matter of human design — of convention, if you will.

Sandefur, I’m confident, would reject the premise that humans and their “natural rights” are designed, but (as far as I know) he is loathe to explain how humans have come to possess a “nature” that incorporates certain rights. Perhaps those rights arose spontaneously, as humans evolved from primordial ooze to homo sapiens. But that leaves me wondering where they’re located. As far as I know, they’re not in any part of the body or brain that’s been identified by medical science. Perhaps they’re just floating around us, like souls.

The latter notion is consistent with an earlier post by Sandefur, where he states the following: “Our natural rights and our liberty derive from nature, more specifically, from our nature as human beings.” The link leads to a facsimile of the Declaration of Independence, which contains this famous phrase:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Does Sandefur, an avowed atheist, believe that “natural rights” are endowed by a Creator? I doubt it.

Sandefur would reject such a notion because it smacks of a supernatural explanation. Rights, according to him, are natural; that is, it is in the nature of humans to have rights. But that strikes me as a circular argument, which can be stated as follows:

  • All humans possess certain rights by virtue of their nature as humans.
  • It is inherent in those rights that no person is naturally justified to rule over another person.
  • Therefore, all humans, by their nature, have the right to be left alone by others, which implies a reciprocal obligation to leave others alone, except in the defense of life, liberty, and property.

The conclusion simply restates and elaborates the assumptions contained in the major and minor  premises. I am looking for something like this:

  • Einstein’s special theory of relativity states that when two bodies move at different speeds, time passes more slowly for the faster of the two bodies.
  • Many experiments have confirmed the theory; none has refuted it.
  • Therefore, it’s very likely true that time slows as velocity increases.

That is, I’m looking for evidence, not supposition.

Perhaps there’s something in Sandefur’s reference to “the human capacity for language.” It’s true that humans have a capacity for language, but language doesn’t simply emerge spontaneously from that capacity. Sounds do, but language doesn’t. Language is a convention, shaped by eons of application and evolution. Two facts attest to the conventional nature of language: (a) there are so many languages, each of them originally developed in a circumscribed geographical area, and (b) there is so much hue and cry (in some quarters) about the violation of “rules” and the coinage of new words and phrases. In other words, the human capacity for language doesn’t give rise to a single, “natural” language that flows automatically from the brains and tongues of all humans.

What about the human capacity for sexual desire? There’s nothing mysterious about it; it has a physiological explanation. In that sense, it’s entirely natural. The problem is that sexual desire is an active consequence of physiology, whereas “natural rights” — in Sandefur’s accounting — are simply there. They just exist, in the same way that human physiology exists. But human physiology can be explained in physical (natural) terms, whereas there is no similar explanation for the mysterious thing known as “natural rights.”

Turning to the “law of supply and demand,” Sandefur says:

The nature of scarcity is such that when something is in demand, and there isn’t enough of that thing, its price will go up—whether we want it to, or not.

I don’t know what it means to say “the nature of scarcity.” Scarcity isn’t an entity with a “nature” of its own. Scarcity is a condition that can be characterized by saying that “there isn’t enough of [a] thing.”  Defining it doesn’t give it an independent existence and a “nature.”

Similarly, the “law of supply and demand” isn’t really a “law,” it’s a description of the willingness of buyers to buy and sellers to sell particular goods and services under a variety of conditions, price, quantity, marginal cost, and marginal utility being among them. There’s no freestanding “law of supply and demand,” there’s simply what we observe of human behavior and its (relative) predictability under certain, specified conditions. The “law of supply” and demand — like “scarcity” — is the description of particular aspects of human behavior, not an antecedent of human behavior with a “nature” of its own.

What does it mean, then, to say that it’s in the nature of humans to have “natural (negative) rights”? It means that Sandefur begs the question of the source of rights. I want answers, not circular statements. If rights are innate in humans, which is another way of saying that they arise from the nature of humans, I want to know how they get there.

I’m not asking what humans want, because Sandefur would spot the trap in that. When humans want things, they bargain with each other in an effort to get them. But Sandefur insists that rights — “natural” ones, at least — don’t arise in that way. They just “are.”

Having failed to find a natural explanation of “natural rights” in my gleanings of Sandefur’s blog, I must turn to other sources. Sandefur points the way, in this passage from his response to my earlier post:

What natural law or natural rights theories actually do (or attempt to do) is to explain political society in terms of nature—that is, by avoiding the ipse dixit argument that rights exist because Somebody says so, or because that’s our tradition, or our social consensus, but by instead saying that these rights or these principles are implied by human nature and the nature of the world in which we live. As [Randy] Barnett writes, “natural law describes a method of analysis of the following type: ‘given that the nature of human beings and the world in which they live is X, if we want to achieve Y, then we ought to do Z.’” Natural law or natural rights theory simply holds that the political society is bounded by pre-political principles, logical, normative, physical, and so forth. One need not agree with such a method of reasoning to admit that there is nothing mystical or arbitrary about it.

We shall see whether it is mystical (my characterization) or arbitrary.

I don’t possess a copy of the book by Barnett to which Sandefur links. But the relevant discussion is found, verbatim, in Barnett’s article, “A Law Professor’s Guide to Natural Law and Natural Rights.” Here’s a helpful passage, which comes soon after the one quoted by Sandefur:

Defining justice in terms of rights, especially natural rights, will invite confusion, however, unless we are clearer about what it means to call something a right. A nice description is provided by Allen Buchanan:

[A]ssertions of rights are essentially conclusory and hence argumentative. An assertion of right is a conclusion about what the moral priorities are. At the same time, because it is a conclusion, it is an admission that it is appropriate to demand support for this conclusion, reasons why such priority ought to be recognized. And it is vital to recognize that there is a plurality of different kinds of considerations that can count as moral reasons to support a conclusion of this sort and that the conclusion that an assertion of a right expresses will usually be an all-things-considered judgment, the result of a balancing of conflicting considerations.

Thus, to call something a natural right is to assert one’s conclusion; it is no substitute for presenting the reasons why this conclusion is justified. What makes natural rights natural is the type of given-if-then reasons that are offered in support of its conclusions, based as they are on the “givens” of human nature and the nature of the world in which humans live. What makes such concepts rights is the “natural necessity,” to use H.L.A. Hart’s felicitous term, of adhering to them if we are to solve certain pervasive social problems that must be solved somehow if persons are to achieve their objectives.

There’s more in Barnett’s working paper, “The Imperative of Natural Rights in Today’s World“:

So natural rights addresses the question: given the nature of human beings and the world in which we live, if you want a society in which persons may pursue happiness while living in close proximity to others, then you ought to do Z. What you ought to do (Z) is properly define and respect the natural rights or liberties that enable persons to pursue happiness without interfering with the like pursuit of others with whom they interact. What you ought not do is violate these properly defined rights.

Later in the same paper, Barnett says:

[T]he whole point of a natural rights analysis is to address the problem of human vulnerability and interconnectedness. No one person is strong or independent enough to pursue happiness in the face of concerted opposition from the masses or from a concerted handful of other people—or from even a single obsessed or evil individual. Natural rights attempts to identify conceptually the space within which vulnerable people need to be free to make their own choices about the directions of their lives, which includes crucially the choices of how to acquire, use, and dispose of scarce physical resources. Once these rights are identified, it a somewhat but not entirely separate matter of institutional design to see how they can best be protected in a world in which others are more than willing, if given half a chance, to interfere with the well being of others.

Natural rights, therefore, do not enforce themselves. They are rather a mode of normative analysis used to evaluate and critique the positive law that is needed to reinforce them. But nevertheless, if they are correctly formulated, there are real world consequences for violating these rights. Human wellbeing will suffer and die. No society will survive as a society if these principles are disregarded completely….

Natural rights attempts to identify conceptually the space within which vulnerable people need to be free to make their own choices about the directions of their lives, which includes crucially the choices of how to acquire, use, and dispose of scarce physical resources. Once these rights are identified, it a somewhat but not entirely separate matter of institutional design to see how they can best be protected in a world in which others are more than willing, if given half a chance, to interfere with the well being of others.

Natural rights analysis can identify the fundamental liberties that all human beings require to pursue happiness while living in close proximity to others—the rights of several property, freedom of contract, first possession, self defense, and restitution.

Natural rights, then, are not “natural” in the sense that they inhere in humans. Rather, they are “natural” in the sense that they are the rights that humans ought to possess if they are “to be free to make their own choices about the directions of their lives,” that is, “to pursue happiness while living in close proximity to others.”

Moreover, as Barnett says in his “Guide,” natural rights do not proscribe how rights-holders ought to act towards others. Rather they describe how others ought to act towards rights-holders.” That is to say, in a regime of “natural rights,” (quoting Barnett’s “Imperative” again) each person would accord all others “the rights of several [private] property, freedom of contract, first possession, self defense, and restitution.” Such rights — as I understand them — are necessary complements to the essential “natural right”: the right to be left alone as one leaves others alone. That right, when you think about it, must flow toward its holder, not from its holder.

At this point, let us turn to Objectivism, of which Sandefur is (or was) an adherent. According to the article, “Ayn Rand,” at the Stanford Encyclopedia of Philosophy, these are Rand’s views on the subject:

The concept of rights, says Rand, “provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others… Individual rights are the means of subordinating society to moral law” These natural rights are basically rights to action, not to things or outcomes, and can be violated only through the initiation of force or fraud. Hence, all natural rights are negative, that is, claims on others’ non-interference, and not claims on them to provide one with certain goods or outcomes.The fundamental right is the right to life: the right to take the actions necessary for sustaining the life proper to a human being. All other rights follow from this right. Thus, the right to liberty is the right to act (including to write and speak) on one’s judgment; the right to the pursuit of happiness is the right to pursue goals for one’s own fulfillment; the right to property is “the right to gain, to keep, to use and to dispose of material values”

“Claims on others’ non-interference” equals “natural rights do not proscribe how rights-holders ought to act towards others. Rather they describe how others ought to act towards rights-holders.”

I must now admit that there’s nothing mystical about such reasoning. But I must say that it’s arbitrary, for reasons I’m about to adduce.

At the risk of associating myself with utilitarianism, which I reject, I find Jeremy Bentham apt:

Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense–nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense: for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, upon any occasion whatever, abrogate the smallest particle.

…What is the language of reason and plain sense upon this same subject? That in proportion as it is right or proper, i.e. advantageous to the society in question, that this or that right–a right to this or that effect–should be established and maintained, in that same proportion it is wrong that it should be abrogated: but that as there is no right, which ought not to be maintained so long as it is upon the whole advantageous to the society that it should be maintained, so there is no right which, when the abolition of it is advantageous to society, should not be abolished. To know whether it would be more for the advantage of society that this or that right should be maintained or abolished, the time at which the question about maintaining or abolishing is proposed, must be given, and the circumstances under which it is proposed to maintain or abolish it; the right itself must be specifically described, not jumbled with an undistinguisable heap of others, under any such vague general terms as property, liberty, and the like.  (“Anarchical Fallacies: Being an examination of the Declaration of Rights issued during the French Revolution“)

Bentham’s intemperate language aside, there is truth in what he says. The truth is that the language of “natural rights” obfuscates their essential arbitrariness, which is revealed by looking more closely at Barnett’s formulation:

[G]iven the nature of human beings and the world in which we live, if you want a society in which persons may pursue happiness while living in close proximity to others, then you ought to do Z. What you ought to do (Z) is properly define and respect the natural rights or liberties that enable persons to pursue happiness without interfering with the like pursuit of others with whom they interact.

What aspects of “the nature of human beings” are relevant to the inquiry? Human beings are complex organisms with many needs and desires, the most basic of which (survival) requires food (everywhere) and clothing and shelter (in most places). Those things may not be attainable “without interfering with the like pursuit of others with whom they interact.” If I have a “natural right” to survive, because the instinct of survival is in my “nature,” why do others have the “natural right” to withhold from me that which I need to survive just because those others claim a “natural right,” as Barnett puts it, to “fundamental liberties … require[d] to pursue happiness while living in close proximity to others—the rights of several property, freedom of contract, first possession, self defense, and restitution”?

And what about my health? Don’t I have a “natural right” to the enjoyment of good health? Otherwise, how can I pursue happiness to the extent of my innate ability? If I’m unable to afford medical attention, others are obliged to pay on my behalf. Likewise, I’m obliged to pay for the health care of others when I’m able to do so.

My ability to deduce positive rights by applying the  “given-if-then” formulation leads me to suspect that the formulation can be (and is) used to deduce a long list of positive rights. The UN Declaration of Human Rights includes at least a dozen statements of positive rights, including some open-ended ones. Another example is found in the writings of a philosopher, Mortimer Adler:

… What is not the product of legal or social conventions must be a creation of nature, or to state the matter more precisely, it must have its being in the nature of men. Moral rights are natural rights, rights inherent in man’s common or specific nature, just as his natural desires or needs are. Such rights, being antecedent to society and government, may be recognized and enforced by society or they may be transgressed and violated, but they are inalienable in the sense that, not being the gift of legal enactment, they cannot be taken away or annulled by acts of government.

The critical point to observe is that natural rights are correlative with natural needs….

For example, if I have a moral — or natural — right to a decent livelihood, that can be the case only because wealth, to a degree that includes amenities as well as bare necessities, is a real good … and thus indispensable to a good life. The fact that it is a real good, together with the fact that I am morally obliged to seek it as part of my moral obligation to make a good life for myself, is inseparable from the fact that I have a natural right to a decent livelihood….

Our basic natural right to the pursuit of happiness, and all the subsidiary rights that it encompasses, impose moral obligations on organized society and its institutions as well as upon other individuals. If another individual is unjust when he does not respect our rights, and so injures us by interfering with or impeding our pursuit of happiness, the institutions of organized society, its laws, and its government, are similarly unjust when they deprive individuals of their natural rights.

Just governments, it has been correctly declared, are instituted to secure these rights. I interpret that statement as going further than the negative injunction not to violate the natural rights of the individual, or deprive him of the things he needs to make a good life for himself. It imposes upon organized society and its government the positive obligation to secure the natural rights of its individuals by doing everything it can to aid and abet them in their efforts to make good lives for themselves – especially helping them to get things they need that are not within their power to get for themselves [emphasis added]. (“Natural Needs = Natural Rights“)

In other words, the identification of “natural rights” with negative rights is entirely arbitrary. Those who prefer a regime of negative rights can use the “given-if’-then” formulation to find them “natural”; those who prefer a regime of positive rights can use the “given-if-then” formulation to find them “natural.” I can only conclude that the identification of anything as a “natural right” is arbitrary, or — as Bentham says — nonsense upon stilts.

Contrary to Sandefur’s assertion, “natural rights” are the result of an “ipse dixit argument that rights exist because Somebody says so.” The Somebody is whoever happens to assert that a “given-if-then” analysis happens to produce a certain “natural right.”

If the identification of “natural rights” weren’t an arbitrary exercise, there would be no concern about the consequences of such rights. But there is, as Barnett admits in his “Guide”:

Is a natural rights analysis utilitarian? Although I do not have a strong view on this question, for what it is worth, my answer depends on how the term “utilitarian” is used. If utilitarian is viewed as a consequentialist approach that evaluates practices by their consequences, then the conception of natural rights sketched here appears to be consequentialist, though only indirectly….

If utilitarianism is viewed as a general theory of ethics or morality, however, then the natural-rights approach presented here, though consequentialist, is not utilitarian….

…For the indirect consequentialist analysis presented here suggests that respecting natural rights, not the calculation and aggregation of subjective preferences, promotes the common good. And the common good is viewed, not as a sum of preference satisfaction, but as the ability of each person to pursue happiness, peace, and prosperity while in acting in close proximity to others.

Barnett has more to say about consequences in “Foreword: Of Chickens and Eggs — The Compatibility of Moral Rights and Consequentialist Analysis“; for example:

A natural rights analysis does not rest content with generat­ing a set of substantive and procedural precepts of justice and the rule of law from general observations about the nature of the human condition. It also “tests” the conclusions such an analysis provides by examining the consequences of adhering to these precepts. This may be done hypothetically or empiri­cally. If it is revealed that a particular form of jurisdiction actu­ally retards rather than enhances the ability of persons to pursue happiness in society, this showing does not automati­cally refute the rights being scrutinized. Instead, the analysis must return to the legal precepts used to elaborate moral rights to see if the original precept can be refined to better deal with the problem or if an entirely different precept would be better.

In short, a supposed “natural right” can lend itself to many instrumental interpretations. When the consequences of a particular interpretation are tested and found to be wanting, by some criterion that is thought to be relevant to the “natural right,” it’s back to the drawing board. The example subsequently offered by Barnett suggests that it’s merely a matter of attuning the law to enforce negative “natural rights.” But that’s because his preconception of “natural rights” is that they are of the negative variety. And, as I’ve discussed, it’s just as easy to arrive at “natural rights” of the positive variety.

All of this leaves me standing precisely where I stood before — entirely unsympathetic to the notion of “natural rights” — even though I now agree that “natural rights” needn’t be the product of mysticism. The latter fact, however, doesn’t prevent leftists, bleeding hearts, and do-gooders from conjuring positive rights and arguing for their imposition because it’s the “right thing to do,” as if the resulting curtailments of liberty and economic growth were of no consequence.

In any event, philosophical arguments will not persuade the proponents of positive rights and their enablers (including much of the voting public) to abandon their quest for Nirvana on Earth through statism. If liberty (negative) rights are to be defended, the only hope of defending them effectively is a double-barreled appeal to

  • liberty as an end in itself, which — on the evidence of the popular response to Obamacare and “stimulus” — hasn’t lost its appeal to a large fraction of Americans, and
  • the dire consequences of positive rights, even for the intended beneficiaries of such rights.

I am tempted, at this point, to drop the subject of “natural rights” and take up concrete issues. But my ruminations on “natural rights” have led me to revisit a related subject: the Golden Rule. I take it up in the next post.

Does the Power to Tax Give Congress Unlimited Power?

Some commentators have suggested that the law requiring individuals to buy health insurance (the individual mandate) would be upheld if it had been cast from the beginning as a tax rather than a penalty for failing to participate in commerce. A tax, according to the commentators, need not be tethered to the Commerce Clause because the power to tax is separate and distinct from the power to regulate commerce. The implication of that argument is that the power to tax is unlimited in its scope and purpose.

This is just another way of trying to grant unlimited power to the federal government. And yet, the Constitution specifically limits and enumerates the powers of the federal government — specifically, the subjects upon which Congress may legislate. (The “living Constitution,” government by executive order, and legislation by judicial fiat are “liberal” ways of getting around the limitations of the Constitution.) If follows that the power to tax is limited to taxation for the affirmative purposes enumerated in Article I, Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

As I have shown (“The Unconstitutionality of the Individual Mandate“), Obamacare (along with Social Security, Medicare, Medicaid, and much else) is not comprehended in the power to regulate interstate commerce, from which it follows that the individual mandate is not a necessary and proper law.

What about the “general Welfare”? May not Congress levy taxes for the purpose of promoting it? That power seems to be unrestricted, or so “liberals” would have it.

But the admonition to “provide for … the general Welfare,” is not a license to do anything and everything within the imagination of congressional majorities. It is in fact a further limitation on the enumerated powers of Congress.

The General Welfare Clause, as it is known, means that when Congress executes any of its enumerated powers, it is supposed to execute them in a way that is beneficial for the whole of the United States, as opposed to favoring particular States or regions. Were Congress to take the Constitution seriously, American taxpayers would not suffer the abominations known as “earmarks” and “pork barrel” legislation.

My view is that of James Madison, who explained the General Welfare Clause in the course of the debate about the ratification of the Constitution:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to 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,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. (Federalist No. 41)

The more expansive view — of an unlimited power to tax (and spend) for any purpose — did not prevail until the New Deal era, when the U.S. Supreme Court lost its way.

See “The Constitution: Myths and Realities“.

The Fall and Rise (and Fall?) of Obamacare

There are portents (aside from Judge Hudson’s timely ruling against the individual mandate):

Derived from this article and its predecessors at Rasmussen Reports. Poll results before passage of Obamacare represent strong approval minus strong disapproval. Poll results after passage of Obamacare represent strong approval of repeal minus strong disapproval of repeal.

“Intellectuals and Society”: A Review

Thomas Sowell‘s Intellectuals and Society is a rewarding and annoying book.

The book is rewarding because it adds to the thick catalog of left-wing sins that Sowell has compiled and explicated in his long career as a public intellectual. When Sowell criticizes the anti-gun, soft-on-crime, peace-at-any-price, tax-spend-and-regulate crowd, he does it by rubbing their noses in the facts and figures about the messes that have been created by the policies they have promoted.

Having said that, I must also note the ways in which Intellectuals and Society annoys me, namely, that it is verbose and coy about the particular brand of intellectualism that it attacks.


Regarding verbosity, here is a randomly chosen example, from page 114:

Abstract people are above all equal, though flesh-and-blood people are remote from any such condition or ideal. Inequalities of income, power, prestige, health, and other things have long preoccupied intellectuals, both as things to explain and things to correct. The time and effort devoted to these inequalities might suggest that equality is so common or so automatic that its absence requires an explanation. Many intellectuals have approached equality in much the same spirit as Rousseau approached freedom: “Man was born free, and he is everywhere in chains.” To much of the modern intelligentsia, man is regarded as having been born equal but as having become mysteriously everywhere unequal.

Which means:

The notion of equality propounded by left-wing intellectuals bears no relation to the reality of the human condition. But the false ideal of equality enables leftists to advance the notion that disparities of income, power, prestige, and health (among other things) are injustices that call out for correction.

There are other ways of saying the same thing — all of them equally concise and therefore easier for the reader to grasp. Dozens, if not hundreds, of other passages in Intellectuals cry out for the same kind of ruthless editing. With that done, the book would be more compelling, because the facts and figures that make Sowell’s case against leftist intellectuals would stand out more sharply.


This brings me to the “intellectuals” who are the subject of the book. Sowell’s definition of intellectuals is so broad that it includes him and others of his ilk:

Here “intellectuals” refers to an occupational category, people whose occupations deal primarily with ideas — writers, academics, and the like. Most of us do not think of brain surgeons or engineers as intellectuals, despite the demanding mental training that each goes through, and virtually no one regards even the most brilliant and successful financial wizard as an intellectual.

At the core of the notion of an intellectual is the dealer in ideas, as such — not the personal application of ideas, as engineers apply complex scientific principles to create physical structures or mechanisms. A policy wonk whose work might be analogized as “social engineering,” will seldom personally administer the schemes that he or she creates or advocates. That is left to bureaucrats, politicians, social workers, the police or whoever else might be directly in charge of carry out the ideas of the policy wonk. (Intellectuals and Society, pp. 2-3)

Sowell’s definition encompasses thinkers who devoted much (or all) of their careers to combating the kinds of statist policies advanced by the left-wingers who are the real targets of Intellectuals and Soceity. Sowell even mentions two anti-statist intellectuals — Friedrich Hayek and Milton Friedman — in the first chapter of his book, in a context which suggests that they are among his targets. But Sowell later invokes Hayek, Friedman, and other “conservative” intellectuals as he confronts left-wing ideas and their consequences.

There can be no doubt that Sowell’s fire is directed at left-wing academicians and pundits — and their enablers in political-bureaucratic-media complex — for the many good reasons documented in the book. A truth-in-packaging law for book titles — a left-wing idea if ever there was one — would require the renaming of Intellectuals and Society to Left-Wing Intellectuals and the Dire Consequences of their Ideas.

My aim is not to quibble with Sowell’s title, but to lament his lack of clarity about which set of intellectuals he is attacking, and why that set of intellectuals deserves reproach, whereas Hayek, Friedman, and company do not. Surely the author of Intellectuals and Society — who is, by his own definition, an intellectual — does not mean to denigrate his decades of research and writing in the service of liberty. (This is not to say that conservatives and self-styled libertarians are above reproach; they are not, as I show elsewhere in this blog. But left-wing “intellectuals” deserve a special place in hell for their contributions to the destruction of the social fabric and demise of liberty, which Sowell so thoroughly documents.)


Now for the meat of Intellectuals and Society. And beneath an over-abundance of dressing, there is plenty of meat. Sowell draws on his own work and that of many distinguished philosophers and scholars as he puts the lie to left-wing ideas and policies. Thus we find the likes of Gary Becker, William F. Buckley Jr., Edmund Burke, Richard Epstein, Friedman, Hayek, Eric Hoffer, Paul Johnson, Jean-Francois Revel, Adam Smith, and James Q. Wilson pitted against left-wing stars of the past and present, including Louis D. Brandeis, Noam Chomsky, the Clintons, Herbert Croly, John Dewey, Walter Duranty, Ronald Dworkin, Paul Ehrlich, William Godwin, Edward Kennedy, Paul Krugman, Harold Laski, Roscoe Pound, Jean-Jacques Rousseau, Arthur M. Schlesinger Jr., George Bernard Shaw, the Webbs, and H.G. Wells.

Because of the timing of the book’s publication, Barack Obama makes only a cameo appearance as a senator who opposed the surge in Iraq:

[Obama] said in January 2007 that the impending surge was a “mistake that I and others will actively oppose in the days to come.” He called the projected surge a “reckless escalation,” and introduced legislation to begin removal of American troops from Iraq no later than May 1, 2007…. Another 20,000 troops [Obama said] “will not in any imaginable way be able to accomplish any new progress.” (p. 268)

Intellectuals and Society does not directly address the “highlights” of Obama’s presidency to date: “stimulus” spending, Obamacare, and new financial regulations. But they are merely new manifestations of old policies that — among others — the book amply discredits.

But I am getting ahead of myself. The hunt for left-wing error begins in earnest with “Knowledge and Notions,” Chapter 2 of Intellectuals and Society. There, Sowell highlights some leading tendencies of left-wingers. There are the experts in particular fields who act as if their expertise gives them license to expound on any and all subjects. Appositely, Sowell quotes Roy Harrod on John Maynard Keynes:

He held forth on a great range of topics, on some of which he was thoroughly expert, but on others of which he may have derived his views from the few pages of a book at which he had happened to glance. The air of authority was the same in both cases. (p. 12)

Sowell then turns to the matter of centralized, expert knowledge vs. decentralized knowledge, and how the former can never substitute for the latter when it comes to making personal and business decisions — left-wing dogma to the contrary. Here, Sowell echoes Hayek’s Nobel Prize lecture, “The Pretence of Knowledge.”

The final pages of Chapter 2 are devoted to a critique of rationalism. This is the habit of mind, usually found on the left, by which intellectuals superimpose their views of what “ought to be” on decades and centuries of human striving, and pronounce the results of that striving “irrational.” (A recent case in point is Judge Vaughn Walker’s fatuous decision in Perry v. Schwarzenegger.)

Chapter 4, which is out of place, continues in the same vein as Chapter 2. That is, it expose more systemic errors of the left-wing view of the world. The sequence opens with a reprise of the theme of Sowell’s earlier book, A Conflict of Visions, which is followed by a departure from the studied neutrality of that book:

Th[e] vision of society … in which there are many “problems” to be “solved” by applying the ideas of morally anointed intellectual elites is by no means the only vision, however much that vision may be prevalent among today’s intellectuals. A conflicting vision has co-existed for centuries — a vision in which the inherent flaws of human beings are the fundamental problem and social contrivances are simply imperfect means of trying to cope with that problem…. (p. 77)

[That conflicting] vision is a sort of zero-based vision of the world and of human beings, taking none of the benefits of civilization for granted. It does not assume that we can begin with what we already have and simply tack on improvement, without being concerned at every step with whether these innovations jeopardize the very processes and principles on which our existing level of well-being rests…. Above all, it does not assume that untried theories stand on the same footing as institutions and practices whose very existence demonstrate their ability to survive in the world of reality…. (p. 79)

If you happen to believe in free markets, judicial restraint, traditional values and other features of the [constrained] vision, then you are just someone who believes in free markets, judicial restraint and traditional values. There is no personal exaltation resulting from those beliefs. But to be for “social justice” and “saving the environment,” or to be “anti-war” is more than just a set of beliefs about empirical facts. This [unconstrained] vision puts you on a higher moral plane as someone concerned and compassionate, someone who is for peace in the world, a defender of the downtrodden, and someone who wants to preserve the beauty of nature and save the planet from being polluted by others less caring. In short, one vision makes you somebody special and the other vision does not. These visions are not symmetrical…. (pp. 79-80)

That is to say, adherents of the constrained vision (conservatives) put great stock in what works, and change it only for the sake of improving it, and not for the sake of changing it because it doesn’t comport with their a priori views of how the world “ought to be.” By contrast, adherents of the unconstrained vision (the left) are wedded to the rhetoric of “ought to be” and its close relation, the Nirvana fallacy. They judge existing arrangements against unattainable standards of perfection (invented by themselves), and proclaim themselves to be on the side of all that is good. The adherents of the constrained vision point out, quite rightly, that the left’s proposals are inherently flawed because they fail to take into account the ways in which human nature produces unintended consequences.

Sowell has more to say about the unconstrained vision; briefly, it invents “rights” (to a “living wage,” “decent housing,” and “affordable health care,” and so on) that cause “compassionate” politicians to impose obligations on third parties (i.e., hapless taxpayers). This legalized theft — for that is what it is — is committed with scant regard for the good that taxpayers would do with their own money; for example:

  • Save it in the form of bank deposits, bonds, and stocks so that businesses may be formed, expand, and adopt more productive technology, thus creating jobs and fueling economic growth.
  • Help private charities and members of their immediate families, who are no less worthy of such help than complete strangers (unless, of course, you are an omniscient leftist who thinks otherwise).

But such considerations are beneath the left, whose mission is to “do good,” and damn the consequences.

On that note, I return to Sowell’s dissection of left-wing rhetoric. Here are some other incisive passages from Chapters 4:

That some people [the left] should imagine that they are particularly in favor of progress is not only another example of self-flattery but also of an evasion of the work of trying to show, with evidence and analysis, where and why their particular proposed changes would produce better end results than other people’s proposed changes. Instead, [those other people] have been dismissed … as “apologists for the status quo.” (pp. 101-2)

If the real purpose of social crusades is to make the less fortunate better off, then the actual consequences of such policies as wage control become central and require investigation…. But if the real purpose of social crusades is to proclaim oneself to be on the side of the angels, then such investigations have a low priority…. The revealed preference of many, if not most, of the intelligentsia has been to be on the side of the angels. (pp. 104-5)

…William Godwin’s notion that the young “are a sort of raw material put into our hands” remains, after two centuries, a powerful temptation to classroom indoctrination in schools and colleges…. This indoctrination can start as early as elementary school, where students are encouraged or required to write about controversial issues…. More fundamentally, the indoctrination process habituates them to taking sides on weighty and complex issues after hearing just one side of those issues…. In colleges and universities, whole academic departments are devoted to particular prepackaged conclusions — whether on race, the environment or other subjects…. Few, if any, of these “studies” include conflicting visions and conflicting evidence, as educational rather than ideological criteria might require. (pp. 108-9)

While logic and evidence are ideal criteria for the work of intellectuals, there are many ways in which much of what is said and done by intellectuals has less to do with principles than with attitudes…. During the earlier [“progressive”] era [of the early 1900s], when farmers and workers were the special focus of solicitude, no one paid much attention to how what was done for the benefit of those groups might adversely affect minorities or others. Likewise, in a later era, little attention was paid by “progressive” intellectuals to how affirmative action for minorities or women might adversely affect others. There is no principle that accounts for such collective mood swings. There are simply reasons du jour, much like the adolescent fads that are compulsive badges of identity for a time and afterwards considered passé…. (pp. 110-12)

…Anyone who suggests that individuals — or worse yet, groups — are unequal is written off intellectually and denounced morally as biased and bigoted toward those considered less than equal. Yet the empirical case for equality ranges from feeble to non-existent…. Does anyone seriously believe that whites in general play professional basketball as well as blacks? [For readers new to Sowell: He is black.] How then can one explain the predominance of blacks in this lucrative occupation, which offers fame as well as fortune? For most of the period of black predominance in professional basketball, the owners of the teams have all been white, as have most of the coaches. Then by what mechanism could blacks have contrived to deny access to professional basketball to whites of equal ability in that sport? (p. 114)

Thus armed against the essential fallacies of left-wing intellectualism, the reader is treated to dissections of left-wing error with respect to economics (Chapter 3), the media and academia (Chapter 5), the law (Chapter 6), and war (Chapters 7 and 8).


Chapter 5 (“Intellectuals and Economics”) is a sustained litany of the left’s obdurate insistence on the truth of economic fallacies. If there were a Nobel Prize for Economic Illiteracy, it would be awarded to left-wing academics (some of them economists) and pundits, as a group.

One of the left’s favorite preoccupations is “income distribution”:

Although such discussions have been phrased in terms of people, the actual empirical evidence cited has been about what has been happening over time in statistical categories — and that turns out to be the direct opposite of what has happened over time to flesh-and-blood human beings…. [I]n terms of people, the incomes of those particular taxpayers who were in the bottom 20 percent in income in 1996 rose 91 percent by 2005, while the incomes of those particular taxpeayers who were in the top 20 percent in 1996 rose by only 10 percent by 2005 — and those in the top 5 percent and top one percent actually declined. (p. 37)

The left’s systematic misunderstanding of economics rises to astounding heights on many other issues:

  • High interest rates — “immoral,” even though they reflect the risk of lending to borrowers who are likely to default.
  • Capitalism — “exploitative,” even though it has brought workers to much higher standards of living than under socialism and communism.
  • Competition — “chaotic,” because shallow thinkers cannot conceive of progress without central planning and control (though they are ready enough to concede man’s superior mental capacity to the chaotic thing known as evolution).
  • Government intervention — “essential and beneficial,” despite generations of evidence to the contrary (which is ignored by wishful thinkers on the left).
  • Business — “economically dominant,” despite the rise and fall of many a business empire, and the fact that business is at the mercy of consumers, not the other way around. (See “capitalism” and “competition.”)
  • Recessions and depressions — “the result of capitalist excesses,” even though — normal business cycles aside, government intervention (so cherished by the left) has caused or exacerbated several recessions (including the present one) and the Great Depression.

(In the foregoing list, I have violated the letter, but not the spirit, of Sowell’s commentary on economic subjects.)


The title of Chapter 5 is “Optional Reality in the Media and Academia.” The subtitle of the entire book could well have been “The Left and Optional Reality,” for in Chapter 5 and elsewhere Sowell exposes leftism and left-wing intellectuals as unconnected with reality. There is a preferred leftist version of the world — which changes from time to time and drags devoted leftists in its wake. From that preferred vision, leftists concoct their view of reality.

As Sowell reminds us in Chapter 5, the left’s concocted view of reality has included:

  • air-brushing the brutality of totalitarian regimes then being held up as leftist ideals (e.g. the USSR, Communist China, Cuba)
  • suppressing data that would show affirmative action to be counterproductive
  • depicting gun ownership as an unmitigated evil
  • trying to pin poverty among blacks on “racism,” when it predominates among the families of single, black mothers who have been lured into a cycle of dependency on welfare
  • portraying homosexuals as “victims,” except when they happen to be priest of the despised Catholic religion
  • giving publicity and credibility to trumped-up charges of rape and arson, when the victims are black or the alleged perpetrators are “privileged” whites
  • exaggerating the incidence of poverty in the United States
  • demonizing the left’s enemies by attributing to them evil deeds that they didn’t commit
  • coining euphemisms to promote pet causes (e.g., bums as homeless persons, swamps as wetlands, trolleys as light rail, liberalism as progressivism)
  • justifying all of the foregoing (and more) on the ground that truth is subjective
  • portraying Americans as barbaric, in the face of true barbarism among cultures currently in favor with leftists
  • exaggerating the importance of isolated events, for the sake of promoting the left’s agenda, while ignoring the great advances that have resulted from the hum-drum, daily work of millions of “average” Americans.

The point of all of this deception and self-deception is simple and straightforward: it is to make the case (first to oneself and then to the public) for the left’s vision of how the world should be run. In the left’s Alice-in-Wonderland world of reality, the vision precedes and shapes the facts, not the other way around.


Nowhere is the left’s upside-down world more evident than in the development and application of law, which is the subject of Chapter 6 (“Intellectuals and the Law”). As Sowell observes,

There can be no dependable framework of law where judges are free to impose as law their own individual notions of what is fair, compassionate or in accord with social justice. Whatever the merits or demerits of particular judges’ conceptions of these terms, they cannot be known in advance to others, or uniform from one judge to another, so that they re not law in the full sense of rules known in advance to those subject to those rules….

By the second half of the twentieth century, the view of law as something to be deliberately shaped according to the spirit of the times, as interpreted by intellectual elites, became more common in the leading law schools and among judges. Professor Ronald Dworkin of Oxford University epitomized this approach when he dismissed the systemic evolution of the law as a “silly faith,” — systemic processes being equated with chaos, as they have been among those who promoted central economic planning rather than the systemic interactions of markets. In both cases, the preference has been for an elite to impose its vision, overriding if necessary the views of the masses of their fellow citizens…. (pp. 157-160)

The left’s approach to the law is, in a word, rationalistic. That is, it would uproot tradition — which embodies the wisdom of experience — simply because it is tradition, and replace it with reductionist constructs that have been tested only in the minds of left-wing intellectuals. The left’s insight into human nature, and all that it entails, is profoundly shallow, to coin an apt oxymoron.

Sowell documents many of the ways in which the left has tortured the Constitution, so that it no longer serves its intended, minimalist role of preserving the liberty that had been won by the War of Independence. The story of how the Constitution — the supreme law of the land — became, in the hands of the left, a weapon in their war against liberty is too depressing (and long) to recount in detail. I will say, simply, that Sowell has the story down pat:

  • disregard for the original meaning of the Constitution (and, thus, disregard for the rule of law)
  • judicial interpretation of the Constitution in ways intended to reach outcomes favored by the left, even when those outcomes clearly ran contrary to the letter and spirit of the Constitution
  • the expansion of the power of the federal government, in the service of those outcomes, to a point where there is nothing beyond its dictatorial reach, and no one is secure in the right to the peaceful enjoyment of life, liberty, and property.

It is not only that government now enjoys unlimited reach, but that it has failed in its duty to curb the reach of the predators among us:

As noted in Chapter 2, a retired New York police commissioner who tried to tell a gathering of judges of the dangerous potential of some of their rulings was literally laughed at by the judges and lawyers present. In short, theory trumped experience….

[A]fter many years of rising crime rates had built up sufficient public outrage to force a change in policy, rates of imprisonment rose — and crime rates began falling for the first time in years. [Leftist intellectuals] lamented the rising prison population in the country and, when they acknowledged the declining crime rate at all, confessed themselves baffled by it, as if it were a strange coincidence that crime was declining as more criminals were taken off the streets….

In light of the fact that a wholly disproportionate amount of crime is committed by a relatively small segment of the population, it is hardly surprising that putting a small fraction of the total population behind bars has led to substantial reductions in the crime rate….

…The very mention of “Victorian” ideas about society in general, or crime control in particular, is virtually guaranteed to evoke a sneer from the intelligentsia. The fact that the Victorian era was one of a decades-long decline in alcoholism, crime and social pathology in general … carries virtually no weight among the intelligentsia, and such facts remain largely unknown among those in the general public who depend on either the media or academia for information.

Thus are the wages of leftist idealism and the left’s rationalistic dismissal of traditional ways and mores.


Sowell rolls out the heavy guns in Chapter 7 (“Intellectuals and War”) and Chapter 8 (“Intellectuals and War: Repeating History”). A good way to summarize the lessons of these chapters is to say that the left’s attitudes toward war resemble the ebbing and flowing of an emotional tide. War is good, in the abstract, when it is a distant memory and the one in the offing presents an opportunity to “do good” — “the war to end all war,” and all that.

Then comes a war and its aftermath, both of which are far messier than intellectuals had expected them to be, given that their minds run to abstraction. A reflexive anti-war posture then sets in, and becomes a sign of membership in the leftist coalition,much as a fraternity pin dangling from a watch chain used to be a sign of membership in this or that exclusive circle. Given the left’s dominance in the various mass media, anti-war propaganda soon dominates and colors the public’s view of war.

Anti-war sentiment — inflamed by the left — might have kept the U.S. out of WWII, with disastrous results, had it not been for the Hitler’s decision to attack the USSR  and Japan’s miscalculated attack on Pear Harbor. The former event was more important to left than the latter, which caused non-intellectual isolationists to awaken from their slumber.

A generation later, anti-war propaganda disguised as journalism helped to snatch defeat from the jaws of victory in Vietnam. What was shaping up as a successful military campaign collapsed under the weight of the media’s overwrought and erroneous depiction of the Tet offensive as a Vietcong victory, the bombing of North Vietnam as “barbaric” (where the Tet offensive was given a “heroic cast), and the deaths of American soldiers as somehow “in vain, ” though many more deaths a generation earlier had not been in vain. (What a difference there was between Edward R. Murrow and Walter Cronkite and his sycophants.)

Were it not for the determined leadership of Ronald Reagan, the left’s anti-war and anti-preparedness rhetoric — combined with a generous dose of fear-mongering — would have derailed the defense buildup in the 1980s, to which the collapse of the Soviet Union should be attributed. The left, of course, refuses to go along with the truth, preferring instead to credit the feckless Mikhail Gorbachev.

Only the 9/11 attacks helped to reverse the Clinton defense build-down of the 1990s. It has often been said, and said truly, that Clinton balanced the budget on the back of defense. But the 9/11 attacks might not have occurred had it not been for the “wall” of separation between foreign intelligence and domestic law-enforcement that was erected and maintained under Clinton’s Justice Department.

Only the determined leadership of George W. Bush (say whatever else you want to about him) brought about a reversal of fortune in the Iraq war, over the vocal and obstructive voices of the left — among which one must number the present occupant of the White House.

Then there is the constant campaign of leaks — originated through leftist media outlets — that compromise defense plans, intelligence operations, and anti-terrorist activities. That campaign meshes well with the left’s resolute determination to treat terrorists as criminal suspects, even when they are able to evade civilian justice because the evidence against them is too sensitive to be divulged in civilian courts.

Members of the armed forces are useful to the media mainly as a weapon with which to beat the anti-war, anti-defense drum. Aside from the occasional token remembrance of their sacrifices, they are mainly portrayed by the media as “victims” (because of war wounds), suicidal (though less so than the population at large), and violent (though less so than civilians of the same demographic group).

The beat goes on, relentlessly. In the meantime, America’s enemies and potential enemies take heart.

Americans now face a far more serious budget-balancing exercise, as the nation’s tax-payers face the looming mountain of debt arising from the accrual of “commitments,” past and present known as Social Security, Medicare, Medicaid, and their expansion through CHIP, the Medicare prescription drug program, and Obamacare. Instead of confronting the real problem, politicians will duck it — for a while — by cutting other programs and raising taxes. Defense will carry a disproportionate share of the burden.

Will the U.S. be prepared for the next Pearl Harbor, the one that is far more devastating than the 9/11 attacks? In light of history and the way in which politics is played, the answer is “no.” And the next time, the U.S. will not have months and years in which to mobilize for a counter-attack. The next time, the enemy — whoever it is — will strike directly at America’s energy, telecommunications, and transportation networks with devastating blows that cripple the economy and spread fear and chaos throughout the land. (Here, I should remind the left that a sudden defeat would deprive its members of the opportunity to do what they do well when their leaders signal approval of a war: writing propaganda pieces for the home front, making propaganda films (often thinly disguised as entertainment), and commandeering the economy to  plan wartime production, set price controls, and establishing ration quotas.)

Shouldn’t the nation be preparing assiduously against such a contingency, and spending what it takes to prevent it, to work around it, and to recover from it quickly? You would think so, but — thanks largely to the left-wing agenda of bread and circuses — the necessary steps will not be taken. And the left will be out in front of the opposition to preparedness, shouting that the nation cannot afford more defense spending when it faces critical social “obligations.”

On that note, I close this portion of the review with an apt quotation that I am fond of deploying:

It is customary in democratic countries to deplore expenditure on armaments as conflicting with the requirements of the social services. There is a tendency to forget that the most important social service that a government can do for its people is to keep them alive and free. (Marshall of the Royal Air Force Sir John Cotesworth Slessor, Strategy for the West, p. 75)


The title of this final portion of a long review sums up the thesis of Intellectuals and Society. Sowell’s eponymous concluding Chapter 9 is not consistently on target, but it has its moments; for example:

The general public contributes to the income of intellectuals in a variety of ways involuntarily as taxpayers who support schools, colleges, and various other institutions and programs subsidizing intellectual and artistic endeavors. Other occupations requiring great mental ability — engineers, for example — have a vast spontaneous market for their end products…. But that is seldom true of people whose end products are ideas. There is neither a large nor a prominent role for them to play in society, unless they create it for themselves. (pp. 286-7)

*     *     *

While the British public did not follow the specific prescriptions of Bertrand Russell to disband British military forces on the eve of the Second World War, that is very different from saying that the steady drumbeat of anti-military preparedness rhetoric among the intelligentsia in general did not imped the buildup of a military deterrence or defense to offset Hitler’s rearming of Germany (p. 288)

In international issues of war and peace, the intelligentsia often say that war should be “a last resort.”… War should of course be “a last resort” — but last in terms of preference, rather than last in the sense of hoping against hope while dangers and provocations accumulate unanswered, while wishful thinking or illusory agreements substitute for serious military preparedness — or, if necessary, military action. As Franklin D. Roosevelt said in 1941, “if you hold your fire until you see the whites of his eyes, you will never know what hit you.” The repeated irresolution of France during the 1930s, and on into the period known as the “phony war” that ended in its sudden collapse in 1940, gave the world a painful example of how caution can be carried to the point where it becomes dangerous (pp. 289-90)

*     *     *

The period from the 1960s to the 1980s was perhaps the high tide of the influence of the intelligentsia in the United State. Though the ideas of the intelligentsia still remain the prevailing ideas, their overwhelming dominance ideologically has been reduced somewhat by counter-attacks from various quarters….

Nevertheless, any announcement of the demise of the [leftist intellectualism] would be very premature, if not sheer wishful thinking, in view of [its] continuing dominance … in the educational system, television and in motion pictures that deal with social or political issues. In short, the intellectuals’ vision of the world — as it is and as it should be — remains the dominant vision. Not since the days of the divine rights of kings has there been such a presumption of a right to direct others and constrain their decisions, largely through expanded powers of government. Everything from economic central planning to environmentalism epitomizes the belief that third parties know best and should be empowered to over-ride the decisions of others. This includes preventing children from growing up with the values taught them by their parent if more “advanced” values are preferred by those who teach in the schools and colleges. (pp. 291-92)

*     *     *

Unlike engineers, physicians, or scientists, the intelligentsia face no serious constraint or sanction based on empirical verification. NOne bould be sued for malpractice, for example, for having contributed to the hysteria over the insecticide DDT, which led to its banning in many countries around the world, costing the lives of literally millions of people through a resurgence of malaria. (pp. 296-7)

*     *     *

One of the things intellectuals have been doing for a long time is loosening the bonds that hold a society together. They have sought to replace the groups into which people have sorted themselves with groupings created and imposed by the intelligentsia. Ties of family, religion, and patriotism, for example, hav long been treated as suspect or detrimental by the intelligentsia, and new ties that intellectuals have created, such as class — and more recently “gender” — have been projected as either more real or more important. (p. 303)

*     *     *

Under the influence of the intelligentsia, we have become a society that rewards people with admiration for violating its own norms and for fragmenting that society into jarring segments. In addition to explicit  denigrations of their own society for its history or current shortcomings, intellectuals often set up standards for their society which no society of human beings has ever met or is ever likely to meet.

Calling those standards “social justice” enables intellectuals to engage in endless complaints about the particular ways in which society fails to meet their arbitrary criteria, along with a parade of groups entitled to a sense of grievance, exemplified in the “race, class and gender” formula…. (p. 305)

I remind you that Sowell (and I) are, in the main, talking about the left — especially its elites. These are the so-called intellectuals and technocrats who dominate the media, academia, left-wing think tanks, and the upper layers of government bureaucracies. The smugness, sameness, and other-worldliness of their views is depressingly predictable.

The left advances its agenda in many ways, for example, by demonizing its opponents as “mean” and even “fascistic” (look in the mirror, bub), appealing to envy (stuck on “soak the rich,” with the connivance of some of the guilt-ridden “rich”), sanctifying an ever-growing list of “victimized” groups (various protected “minorities”), and taking a slice at a time (e.g., Social Security set the stage for Medicare which set it for Obamacare).

The left’s essential agenda  is the repudiation of ordered liberty of the kind that arises from evolved social norms, and the replacement of that liberty by sugar-coated oppression. The bread and circuses of imperial Rome have nothing on Social Security, Medicaid, Medicare, Obamacare, and the many other forms of personal and corporate welfare that are draining America of its wealth and élan. All of that “welfare” has been bought at the price of economic and social liberty (which are indivisible).

Leftists like to say that there is a difference between opposition and disloyalty. But, in the case of the left, opposition arises from a fundamental kind of disloyalty. For, at bottom, the left pursues its agenda because  it hates the idea of what America used to stand for: liberty with responsibility, strength against foreign and domestic enemies.

Most leftists are simply shallow-minded trend-followers, who believe in the power of government to do things that are “good,” “fair,” or “compassionate,” with no regard for the costs and consequences of those things. Shallow leftists know not what they do. But they do it. And their shallowness does not excuse them for having been accessories to the diminution of  America. A rabid dog may not know that it is rabid, but its bite is no less lethal for that.

The leaders of the left — the office-holders, pundits, and intelligentsia — usually pay lip-service to “goodness,” “fairness,” and “compassion.” But their lip-service fails to conceal their brutal betrayal of liberty. Their subtle and not-so-subtle treason is despicable almost beyond words. But not quite…

The Bowles-Simpson Band-Aid

I have twice blogged about the Bowles-Simpson deficit-reduction plan (here and here). As I said in the first of the two posts, Bowles-Simpson

aims at too many spending targets, and misses the elephant in the room: “entitlement” commitments, namely, Social Security, Medicare, and Medicaid (and their promised expansion via Obamacare).

How badly does Bowles-Simpson miss the real target, namely, so-called entitlements? Here’s a closer look:

Bowles-Simpson ducks the long-term problem and focuses on the deficit through 2020. From now until then, the annual rate of spending on entitlement programs is expected to rise by $1.3  trillion (that’s projected spending in 2020 less spending in 2010). At
the same time, the annual rate of so-called discretionary spending  (which includes defense) is expected to rise by less than $0.2
trillion. The other big kicker is interest, which is expected to rise by $0.7 trillion.

So, Bowles-Simpson would reduce the projected increases in Social Security and government health-care programs by a “whopping” $0.1 trillion, while  whacking about the same amount out of discretionary spending, jacking  up tax revenues by $0.2 trillion, and saving about $0.2 trillion in  interest expenses. Net result: the projected deficit for 2020 shrinks  by about $0.8 trillion. (I derived the estimates from Figures 15 and 16 of the  appendix to the Bowles-Simpson report.)

What the Bowles-Simpson report doesn’t say is that the bill for entitlement spending will keep growing after 2020. You can tell that by looking at the trends in the “mandatory” spending lines of Figure 15 (the “plausible baseline”). And you can see the trend starkly in figure A-1 of  of CBO’s long-term budget outlook, as of August 2010. Social Security’s share of GDP rises until the 2030s, then levels off. But the expected share of GDP consumed by federal heath-care programs just keeps rising.

The Bowles-Simpson band-aid would merely mask the essential problem for another 10 years, at which point it will be that much harder to trim the “commitments” represented by entitlement programs, and that much harder to find places to cut “discretionary” spending. (Defense, as usual, will be a tempting target.)

The bottom line: If long-term entitlement “commitments” aren’t reduced soon, the tax increases required to bring the deficit under control will be huge and economically crippling. Entitlements will suck up money that could go into growth-producing investments, and the economy will be locked in a death-spiral toward permanent stagnation.

Positivism, “Natural Rights,” and Libertarianism

A note to readers who arrive here from Timothy Sandefur’s “Some Odd Confusion about Natural Rights.” I followed up with “What Are ‘Natural Rights’?” Sandefur’s comments on that post appeared in his “Teleology without God.” I responded to that post with “Evolution, Human Nature, and ‘Natural Rights’.” See also my followup, “What Are ‘Natural Rights’?

Orin Kerr, in “One More Round with Tim Sandefur,” waxes plaintive about an exchange with Timothy (not Tim) Sandefur:

Tim[othy] Sandefur has responded to my post below.

To be candid, I find Sandefur’s response perplexing. He seems to want to wage epic battles over natural law versus positivism, with him as the champion of natural law and me as the evil positivist. But the questions we were discussing have nothing to do with natural law or positivism. When I was explaining what the cases say, I wasn’t saying that I think the cases are right, are true, reflect God’s will, or anything like that. I wasn’t staking out any jurisprudential ground at all. I was just saying that’s what the cases say, for those who happen to care about such things. If you want to have a theory of the True Constitution that makes caselaw irrelevant, that’s great: Just say that you think the cases are irrelevant and move on. I won’t object.

I, too, have been on the receiving end of a Sandefur tirade about my supposed “positivism.” As far as I can tell, what he means is that the “positivist” in question doesn’t share his Objectivist set of priors.

One of those priors seems to be the pre-existence of “natual rights,” as they are defined by Sandefur or some Objectivist guru, of course. Those rights are “natural” because they don’t come from anywhere, they “just are” (like Original Sin, I suppose).

This kind of Platonic mysticism seems out of character for a loudly self-proclaimed atheist like Sandefur. (A link to The Out Campaign — some kind of atheist, not homosexual, support organization is posted at the top of his sidebar.) If there is no God (or the functional equivalent thereof), then where do those pre-existing rights come from? Perhaps they were created spontaneously at the moment of the Big Bang, but can be perceived only by persons equipped with the proper antennae.

And by what grace does Sandefur know a true “natural right” from the plethora of privileges listed as rights in the UN Declaration of Human Rights, which seems to be popular on the left? Unless you want to admit that your views are based on religious morality (and I’m sure that Sandefur doesn’t), then you have to start with something other than mysticism.

A good place to start is with the axiomatic observation that rights can’t be rights if they can’t be held universally, without cost to others. The right not to be murdered is such a right; the right to live on the public dole is not. We can, in theory, forbear from murdering each other, but we cannot all be on the public dole except (possibly) at different times. And even then we must impose on others (including those who would prefer to be on the public dole at the same time).

All of this is a way of stating  the doctrine of negative rights, which is the basis of libertarianism. But negative rights can’t be applied universally if there are some holdouts who want others to give to them without having to give to others. (Of course, at that point you’ve lost the bleeding hearts and jingos, who want to make exceptions in the name of the “truly deserving” and “national pride.”)

Then comes the hard part. You must haggle about things like the necessity of law-enforcement and defense forces, and what they should be allowed to do, and how they should be paid for. And the extent to which government should override social custom, if at all, in an effort to ensure negative rights. And all the while, you are fending off the bleeding hearts and jingos, not to mention the pseudo-libertarians who believe that liberty is something that “just happens” without the expenditure of blood, sweat, and tears.

And then you come to the question of open borders. Which, some would say, must be a good thing, because all God’s children have negative rights. Or do they? Negative rights cannot be be honored except through mutual recognition backed by strong enforcement. Therefore, it is eminently reasonable to say that a regime that honors negative rights can enforce them only for those persons who are bound to honor that regime and help pay for its defense. (The implication of this statement for the rightful home of leftist peaceniks I defer to a future post.)

After all of that, I am left with the strong feeling that there is nothing natural about “natural rights,” and a lot that is natural about the messy process of defining and securing rights.

Perhaps Sandefur will deign to address these matters in the comment thread for Kerr’s post, inasmuch as his blog seems closed to comments. Not that there’s anything wrong with that. It’s a matter of personal preference; perhaps even a “natural right.” It’s a right of which I avail myself, being of the view that my blog is like my house, and I’m very picky about who enters it.

Related posts:
Parsing Political Philosophy
Negative Rights
Negative Rights, Social Norms, and the Constitution
The Devolution of American Politics from Wisdom to Opportunism
Goodbye, Mr. Pitts
Rights, Liberty, the Golden Rule, and the Legitimate State
The Unreality of Objectivism
“Natural Rights” and Consequentialism
The Left
More about Consequentialism
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism

The Unconstitutionality of the Individual Mandate

There are sophisticated arguments for unlimited governmental interference in the affairs of citizens. By sophisticated, I mean that they seem, superficially, to resort to the text and meaning of the Constitution. Here is a good example:

I appreciate Ilya [Somin]’s post below on the meaning of “activity” in Commerce Clause jurisprudence, and I wanted to add two brief observations:

1) If I understand Ilya’s argument, he begins with an assumption as to how much power Congress has, and he then reasons backwards to infer the meaning of “activity” in order to make that assumption correct. A conscious decision not to do something cannot be an “activity,” the thinking goes, because that would give Congress more power than a fair reading of the Commerce Clause would permit. Perhaps, but it seems to me that this argument largely assumes its conclusion. It uses the fact that Congress must have significant limits on its power to show that “activity” has a narrow meaning, which then is used to prove that Congress has significant limits on its power that the individual mandate exceeds. If you start with a different assumption, however, the argument doesn’t work. For example, if you start with the assumption about the scope of the Commerce Clause that Justice Kennedy articulates in his Lopez concurrence, then you can get a different meaning of “activity.”

I suspect some readers will object to this argument on the ground that they share Ilya’s assumption: Because Ilya’s assumption is correct, the argument works. That’s a fair point within the group that shares the assumption. The problem is that others don’t share the assumption, and starting with it won’t go very far in persuading them. That doesn’t necessarily mean Ilya is right or wrong. But I do think it means that this argument is likely not have a lot of force among the people not already inclined to agree with it.

2) More broadly, I still think that the easiest path to resolving the constitutionality of the individual mandate is that it is a “necessary and proper” means of trying to regulate the massive interstate market in health care that is around 1/7th of the United States economy. As I have blogged before, I think that’s a very strong argument based on Supreme Court caselaw on the meaning of “necessary and proper.” I realize that Ilya thinks that the Supreme Court precedents on the meaning of “necessary and proper” have not actually addressed what is “proper,” and thus that there is a still yet unarticulated limitation on the scope of federal power that remains to be developed — and that should be read as adding a level of scrutiny that the individual mandate fails to satisfy. But I don’t think the cases can be fairly read in that way, so it seems to me that the necessary and proper clause caselaw leads to the conclusion that the mandate should be upheld without getting into what counts as an “activity.”

Somin has replied to Kerr, who has replied to Somin, who has replied to Kerr, who has replied to Somin, etc. Their exchange could go on forever, so I will strike out on my own and leave Somin and Kerr to fight it out between themselves. In what follows, I use Kerr as a convenient whipping-boy, even though (in my understanding) he is only representing the defenses that others make of Obamacare and the individual mandate.

For my part, I have three questions about Kerr’s glib defense of the individual mandate: First, what does the size of the “market” for “health care” — an amorphous entity — have to do with the power of Congress to regulate it? Second, if “health care,” as an amorphous entity, is not a proper subject of regulation, then how can the individual mandate be a “necessary and proper” enactment? If Congress has always had the constitutional authority to regulate an industry (or something that loosely resembles one) — which it must if the Constitution is to be dispositive — why did it wait so long to exercise that authority (over railroads), in the Interstate Commerce Act of 1887?

With regard to the first question, Kerr seems to suggest that the fraction of GDP spent on “health care” justifies federal supervision of it. The estimates of GDP and its components given in Table 1.5.5 of the National Income Account tables (available here), indicate that health care accounts for 1/9th (not 1/7th) of GDP. The lower value is still a large share of GDP, but there is nothing in the Constitution that gives Congress the power to regulate loosely defined segments of the economy just because they account for more than X percent of GDP.

The Constitution simply gives Congress the power to regulate interstate commerce. And not all activities comprised in “health care” occur in transactions that are properly considered interstate commerce. In fact, significant portions of it (e.g., the manufacture of products used in health care, the use of those products by health-care providers, and the personal services rendered by health-care providers) clearly occur outside the activities properly understood as interstate commerce: the sale and transmission of goods (tangible and intangible) across State lines.

With regard to the second question, it follows that the mandate cannot be “necessary and proper” if Congress lacks the authority to regulate “the massive interstate market in health care,” in the first place. On that point, I refer you to the Constitution. Here are the relevant portions, the “Commerce Clause” and the “Necessary and Proper Clause”:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…. (Article I, Section 8, third clause, emphasis added)

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Article I, Section 8, final clause, emphasis added)

To dispose of the third question, the Interstate Commerce Act of 1887, and much that has followed in its vein, is the culmination of raw politics and flawed interpretations of the Constitution. In 1887, Congress responded to public pressure (fomented, no doubt by competing interests and do-gooders) for action to quell the supposedly monopolistic practices of railroads. No principle of constitutional interpretation that takes the Constitution as something more than window-dressing can claim public pressure as a source of constitutional authority, unless public pressure leads to the adoption of a constitutional amendment in accordance with Article V. The many subsequent aggrandizements of Congress’s regulatory power are owed to the excesses of the “Progressive Era,” the “New Deal,” the “Great Society,” and the general failure of the Supreme Court to check those excesses.

Which brings us back to the regulation of “health care.” If the power of Congress to regulate “health care” cannot be found in its power to regulate interstate commerce, where can it be found? Nowhere in the Constitution. And if such a power cannot be found in the Constitution, then there can be no “necessary and proper” law that requires individuals to buy health insurance — or that authorizes Medicare, Medicaid, or their extension through Obamacare.

The defenders of Obamacare and the individual mandate would argue that it is “necessary and proper” to regulate activities (commercial or not) that are tangentially related to the portion of “health care” that is comprised in interstate commerce. That is so, in their view, because otherwise the effort to regulate the portion comprised in interstate commerce would fail to have the desired effect. In other words, they would regulate everything that can be labeled “health care,” and everything beyond that which threatens to undermine the intended regulatory outcome.

In so many words, the defenders of Obamacare and the individual mandate, like many others before them, want Congress to have the power to regulate anything and everything that they want Congress to regulate. This is nothing new under the sun, or the dome of the Capitol. Through the concatenation of the many regulatory regimes that have been granted similarly sweeping powers, Congress works its will on Americans, without regard for their liberty and property. Surely, that is not what the Framers intended when they vested in Congress specific powers — to the exclusion of powers not enumerated.

And so, the real issue — and the main subject of this post — comes down to this: Does Congress’s power to regulate interstate commerce extend to “health care” generally, just because some aspects of it involve interstate commerce? In particular, can Congress constitutionally impose the individual mandate under the rubric of the Commerce Clause or the Necessary and Proper Clause?

To answer that question, I examined the relevant writings of the Framers and two early justices of the U.S. Supreme Court, whose writings are taken as authoritative. (Relevant excerpts are below the fold.) I compared what I found in those writings with the opinions of Justice Clarence Thomas in two salient cases: United States v. Lopez (1995) and Gonzalez v. Raich (2005). I focused on Justice Thomas because he has been the most reliable interpreter of the Constitution’s original meaning since he joined the Court in 1991. It is evident, even to this lay (but experienced) reader of legal documents, that Justice Thomas accurately represents the original meaning of the Constitution with respect to Congress’s regulatory power over interstate commerce. (If you’re anxious to get to the bottom line, scroll past the long excerpts of Thomas’s opinions to the concluding paragraphs of this post.)

Here are relevant excerpts of Thomas’s concurring opinion in United States v. Lopez. In that case, a 5-4 majority held that the Gun Free School Zones Act of 1990, which forbids “any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone,” exceeded Congress’s Commerce Clause authority:

The Court today properly concludes that the Commerce Clause does not grant Congress the authority to prohibit gun possession within 1,000 feet of a school, as it attempted to do in the Gun Free School Zones Act of 1990…. Although I join the majority, I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause….

We have said that Congress may regulate not only “Commerce . . . among the several states,” … but also anything that has a “substantial effect” on such commerce. This test, if taken to its logical extreme, would give Congress a “police power” over all aspects of American life….

At the time the original Constitution was ratified, “commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes…. In fact, when Federalists and Anti Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably….

As one would expect, the term “commerce” was used in contradistinction to productive activities such as manufacturing and agriculture. Alexander Hamilton, for example, repeatedly treated commerce, agriculture, and manufacturing as three separate endeavors….

Moreover, interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems. For example, one cannot replace “commerce” with a different type of enterprise, such as manufacturing. When a manufacturer produces a car, assembly cannot take place “with a foreign nation” or “with the Indian Tribes.” Parts may come from different States or other nations and hence may have been in the flow of commerce at one time, but manufacturing takes place at a discrete site. Agriculture and manufacturing involve the production of goods; commerce encompasses traffic in such articles….

The Constitution not only uses the word “commerce” in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that “substantially affect” interstate commerce. The Commerce Clause does not state that Congress may “regulate matters that substantially affect commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In contrast, the Constitution itself temporarily prohibited amendments that would “affect” Congress’ lack of authority to prohibit or restrict the slave trade or to enact unproportioned direct taxation…. Clearly, the Framers could have drafted a Constitution that contained a “substantially affects interstate commerce” clause had that been their objective.

In addition to its powers under the Commerce Clause, Congress has the authority to enact such laws as are “necessary and proper” to carry into execution its power to regulate commerce among the several States…. But on this Court’s understanding of congressional power under these two Clauses, many of Congress’ other enumerated powers under Art. I, §8 are wholly superfluous. After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl. 6. Likewise, Congress would not need the separate authority to establish post-offices and post-roads, cl. 7, or to grant patents and copyrights, cl. 8, or to “punish Piracies and Felonies committed on the high Seas,” cl. 10. It might not even need the power to raise and support an Army and Navy, cls. 12 and 13, for fewer people would engage in commercial shipping if they thought that a foreign power could expropriate their property with ease. Indeed, if Congress could regulate matters that substantially affect interstate commerce, there would have been no need to specify that Congress can regulate international trade and commerce with the Indians. As the Framers surely understood, these other branches of trade substantially affect interstate commerce.

Put simply, much if not all of Art. I, §8 (including portions of the Commerce Clause itself) would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of §8 superfluous simply cannot be correct. Yet this Court’s Commerce Clause jurisprudence has endorsed just such an interpretation: the power we have accorded Congress has swallowed Art. I, §8.

Indeed, if a “substantial effects” test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that “substantially affect” the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the clauses of §8 all mutually overlap, something we can assume the Founding Fathers never intended.

Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the “substantial effects” test should be reexamined.

The exchanges during the ratification campaign reveal the relatively limited reach of the Commerce Clause and of federal power generally. The Founding Fathers confirmed that most areas of life (even many matters that would have substantial effects on commerce) would remain outside the reach of the Federal Government. Such affairs would continue to be under the exclusive control of the States….

Yet, despite being well aware that agriculture, manufacturing, and other matters substantially affected commerce, the founding generation did not cede authority over all these activities to Congress. Hamilton, for instance, acknowledged that the Federal Government could not regulate agriculture and like concerns:

“The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things in short which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.” The Federalist No. 17, at 106.

In the unlikely event that the Federal Government would attempt to exercise authority over such matters, its effort “would be as troublesome as it would be nugatory.” Ibid. [n.4]

The comments of Hamilton and others about federal power reflected the well known truth that the new Government would have only the limited and enumerated powers found in the Constitution…. Even before the passage of the Tenth Amendment, it was apparent that Congress would possess only those powers “herein granted” by the rest of the Constitution….

Where the Constitution was meant to grant federal authority over an activity substantially affecting interstate commerce, the Constitution contains an enumerated power over that particular activity. Indeed, the Framers knew that many of the other enumerated powers in §8 dealt with matters that substantially affected interstate commerce. Madison, for instance, spoke of the bankruptcy power as being “intimately connected with the regulation of commerce.” The Federalist No. 42, at 287. Likewise, Hamilton urged that “[i]f we mean to be a commercial people or even to be secure on our Atlantic side, we must endeavour as soon as possible to have a navy.” Id., No. 24, at 157 (A. Hamilton).

In short, the Founding Fathers were well aware of what the principal dissent calls ” `economic . . . realities.’ “… Even though the boundary between commerce and other matters may ignore “economic reality” and thus seem arbitrary or artificial to some, we must nevertheless respect a constitutional line that does not grant Congress power over all that substantially affects interstate commerce.

If the principal dissent’s understanding of our early case law were correct, there might be some reason to doubt this view of the original understanding of the Constitution. According to that dissent, Chief Justice Marshall’s opinion in Gibbons v. Ogden, … established that Congress may control all local activities that “significantly affect interstate commerce,”… And, “with the exception of one wrong turn subsequently corrected,” this has been the “traditiona[l]” method of interpreting the Commerce Clause….

In my view, the dissent is wrong about the holding and reasoning of Gibbons. Because this error leads the dissent to characterize the first 150 years of this Court’s case law as a “wrong turn,” I feel compelled to put the last 50 years in proper perspective.

In Gibbons, the Court examined whether a federal law that licensed ships to engage in the “coasting trade” pre-empted a New York law granting a 30 year monopoly to Robert Livingston and Robert Fulton to navigate the State’s waterways by steamship. In concluding that it did, the Court noted that Congress could regulate “navigation” because “[a]ll America . . . has uniformly understood, the word `commerce,’ to comprehend navigation. It was so understood, and must have been so understood, when the constitution was framed.”… The Court also observed that federal power over commerce “among the several States” meant that Congress could regulate commerce conducted partly within a State. Because a portion of interstate commerce and foreign commerce would almost always take place within one or more States, federal power over interstate and foreign commerce necessarily would extend into the States….

At the same time, the Court took great pains to make clear that Congress could not regulate commerce “which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States.”… Moreover, while suggesting that the Constitution might not permit States to regulate interstate or foreign commerce, the Court observed that “[i]nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State” were but a small part “of that immense mass of legislation . . . not surrendered to a general government.”… From an early moment, the Court rejected the notion that Congress can regulate everything that affects interstate commerce. That the internal commerce of the States and the numerous state inspection, quarantine, and health laws had substantial effects on interstate commerce cannot be doubted. Nevertheless, they were not “surrendered to the general government.”

Of course, the principal dissent is not the first to misconstrue Gibbons. For instance, the Court has stated that Gibbons “described the federal commerce power with a breadth never yet exceeded.”… I believe that this misreading stems from two statements in Gibbons.

First, the Court made the uncontroversial claim that federal power does not encompass “commerce” that “does not extend to or affect other States.”… From this statement, the principal dissent infers that whenever an activity affects interstate commerce, it necessarily follows that Congress can regulate such activities. Of course, Chief Justice Marshall said no such thing and the inference the dissent makes cannot be drawn.

There is a much better interpretation of the “affect[s]” language: because the Court had earlier noted that the commerce power did not extend to wholly intrastate commerce, the Court was acknowledging that although the line between intrastate and interstate/foreign commerce would be difficult to draw, federal authority could not be construed to cover purely intrastate commerce. Commerce that did not affect another State could never be said to be commerce “among the several States.”

But even if one were to adopt the dissent’s reading, the “affect[s]” language, at most, permits Congress to regulate only intrastate commerce that substantially affects interstate and foreign commerce. There is no reason to believe that Chief Justice Marshall was asserting that Congress could regulate all activities that affect interstate commerce…

The second source of confusion stems from the Court’s praise for the Constitution’s division of power between the States and the Federal Government:

“The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.”…

In this passage, the Court merely was making the well understood point that the Constitution commits matters of “national” concern to Congress and leaves “local” matters to the States. The Court was not saying that whatever Congress believes is a national matter becomes an object of federal control. The matters of national concern are enumerated in the Constitution: war, taxes, patents, and copyrights, uniform rules of naturalization and bankruptcy, types of commerce, and so on…. Gibbons‘ emphatic statements that Congress could not regulate many matters that affect commerce confirm that the Court did not read the Commerce Clause as granting Congress control over matters that “affect the States generally.” Gibbons simply cannot be construed as the principal dissent would have it.

I am aware of no cases prior to the New Deal that characterized the power flowing from the Commerce Clause as sweepingly as does our substantial effects test. My review of the case law indicates that the substantial effects test is but an innovation of the 20th century.

Even before Gibbons, Chief Justice Marshall, writing for the Court in Cohens v. Virginia, … noted that Congress had “no general right to punish murder committed within any of the States,” … and that it was “clear that congress cannot punish felonies generally,”… The Court’s only qualification was that Congress could enact such laws for places where it enjoyed plenary powers–for instance, over the District of Columbia…. Thus, whatever effect ordinary murders, or robbery, or gun possession might have on interstate commerce (or on any other subject of federal concern) was irrelevant to the question of congressional power.

United States v. Dewitt … marked the first time the Court struck down a federal law as exceeding the power conveyed by the Commerce Clause. In a two page opinion, the Court invalidated a nationwide law prohibiting all sales of naphtha and illuminating oils. In so doing, the Court remarked that the Commerce Clause “has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States.”… The law in question was “plainly a regulation of police,” which could have constitutional application only where Congress had exclusive authority, such as the territories….

In United States v. E. C. Knight Co., … this Court held that mere attempts to monopolize the manufacture of sugar could not be regulated pursuant to the Commerce Clause. Raising echoes of the discussions of the Framers regarding the intimate relationship between commerce and manufacturing, the Court declared that “[c]ommerce succeeds to manufacture, and is not a part of it.”… The Court also approvingly quoted from Kidd v. Pearson … :

” `No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce . . . . If it be held that the term [commerce] includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested . . . with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining–in short, every branch of human industry.’ “…

If federal power extended to these types of production “comparatively little of business operations and affairs would be left for state control.”… Whether or not manufacturing, agriculture, or other matters substantially affected interstate commerce was irrelevant.

As recently as 1936, the Court continued to insist that the Commerce Clause did not reach the wholly internal business of the States…. The Federal Government simply could not reach such subjects regardless of their effects on interstate commerce.

These cases all establish a simple point: from the time of the ratification of the Constitution to the mid 1930’s, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause. Moreover, there was no question that activities wholly separated from business, such as gun possession, were beyond the reach of the commerce power. If anything, the “wrong turn” was the Court’s dramatic departure in the 1930’s from a century and a half of precedent.

Apart from its recent vintage and its corresponding lack of any grounding in the original understanding of the Constitution, the substantial effects test suffers from the further flaw that it appears to grant Congress a police power over the Nation. When asked at oral argument if there were any limits to the Commerce Clause, the Government was at a loss for words…. Likewise, the principal dissent insists that there are limits, but it cannot muster even one example…. Indeed, the dissent implicitly concedes that its reading has no limits when it criticizes the Court for “threaten[ing] legal uncertainty in an area of law that . . . seemed reasonably well settled.”… The one advantage of the dissent’s standard is certainty: it is certain that under its analysis everything may be regulated under the guise of the Commerce Clause.

The substantial effects test suffers from this flaw, in part, because of its “aggregation principle.” Under so called “class of activities” statutes, Congress can regulate whole categories of activities that are not themselves either “interstate” or “commerce.” In applying the effects test, we ask whether the class of activities as a whole substantially affects interstate commerce, not whether any specific activity within the class has such effects when considered in isolation….

The aggregation principle is clever, but has no stopping point. Suppose all would agree that gun possession within 1,000 feet of a school does not substantially affect commerce, but that possession of weapons generally (knives, brass knuckles, nunchakus, etc.) does. Under our substantial effects doctrine, even though Congress cannot single out gun possession, it can prohibit weapon possession generally. But one always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce. Under our jurisprudence, if Congress passed an omnibus “substantially affects interstate commerce” statute, purporting to regulate every aspect of human existence, the Act apparently would be constitutional. Even though particular sections may govern only trivial activities, the statute in the aggregate regulates matters that substantially affect commerce.

This extended discussion of the original understanding and our first century and a half of case law does not necessarily require a wholesale abandonment of our more recent opinions. It simply reveals that our substantial effects test is far removed from both the Constitution and from our early case law and that the Court’s opinion should not be viewed as “radical” or another “wrong turn” that must be corrected in the future. The analysis also suggests that we ought to temper our Commerce Clause jurisprudence.

Unless the dissenting Justices are willing to repudiate our long held understanding of the limited nature of federal power, I would think that they too must be willing to reconsider the substantial effects test in a future case. If we wish to be true to a Constitution that does not cede a police power to the Federal Government, our Commerce Clause’s boundaries simply cannot be “defined” as being ” `commensurate with the national needs’ ” or self consciously intended to let the Federal Government ” `defend itself against economic forces that Congress decrees inimical or destructive of the national economy.’ “… Such a formulation of federal power is no test at all: it is a blank check.

At an appropriate juncture, I think we must modify our Commerce Clause jurisprudence. Today, it is easy enough to say that the Clause certainly does not empower Congress to ban gun possession within 1,000 feet of a school.

Thomas was in the minority in Gonzalez v. Raich, where a 6-3 majority held that Congress’s Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. Thomas’s dissent restates points he made in his opinion in United States v. Lopez, but delves further into the scope of the Necessary and Proper clause:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers….

Respondents’ local cultivation and consumption of marijuana is not “Commerce … among the several States.”… By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade…. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct….

The majority advances three reasons why the CSA is a legitimate exercise of Congress’ authority under the Commerce Clause: First, respondents’ conduct, taken in the aggregate, may substantially affect interstate commerce … ; second, regulation of respondents’ conduct is essential to regulating the interstate marijuana market, ante … ; and, third, regulation of respondents’ conduct is incidental to regulating the interstate marijuana market…. Justice O’Connor explains why the majority’s reasons cannot be reconciled with our recent Commerce Clause jurisprudence. The majority’s justifications, however, suffer from even more fundamental flaws….

The majority’s treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce–any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers…. Whatever additional latitude the Necessary and Proper Clause affords, … the question is whether Congress’ legislation is essential to the regulation of interstate commerce itself–not whether the legislation extends only to economic activities that substantially affect interstate commerce….

…This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce…. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “ ‘the production, distribution, and consumption of commodities.’ ”… This carves out a vast swath of activities that are subject to federal regulation…. If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate “Commerce,” and respondents’ conduct does not qualify under any definition of that term. The majority’s opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from “ ‘commerce,’ ” … to “commercial” and “economic” activity, … and finally to all “production, distribution, and consumption” of goods or services for which there is an “established … interstate market”…. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.

The majority’s rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively…. The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers…. Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce–not to mention a host of local activities, like mere drug possession, that are not commercial.

One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that “ ‘[t]he Constitution created a Federal Government of limited powers.’ ”… That is why today’s decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of “Commerce among the several States.” Congress may regulate interstate commerce–not things that affect it, even when summed together, unless truly “necessary and proper” to regulating interstate commerce….

The majority also inconsistently contends that regulating respondents’ conduct is both incidental and essential to a comprehensive legislative scheme…. [T]he majority further claims that, because the CSA covers a great deal of interstate commerce, it “is of no moment” if it also “ensnares some purely intrastate activity.”… So long as Congress casts its net broadly over an interstate market, according to the majority, it is free to regulate interstate and intrastate activity alike. This cannot be justified under either the Commerce Clause or the Necessary and Proper Clause. If the activity is purely intrastate, then it may not be regulated under the Commerce Clause. And if the regulation of the intrastate activity is purely incidental, then it may not be regulated under the Necessary and Proper Clause….

It is safe to say that a proper reading of the Constitution, as exemplified in the authoritative opinions excerpted above, yields no authority for Obamacare. That monstrosity — the official, Orwellian title of which is the Patient Protection and Affordable Care Act (PPACA) — attempts to reach an aggregation known as “health care,” without any differentiation between interstate commerce, intrastate commerce, and activities that are part of neither, namely, the choices of individuals with respect to health insurance.

It may be a valid exercise of Congress’s power to regulate actual interstate commerce that touches on the provision of health care. It is not a valid exercise to aggregate everything called “health care” and to regulate it as if it were all within the reach of Congress. When that happens, there is no room left — in “health care” nor, by extension, any other loose aggregation of activities — for State action or individual choice.

In sum, Obamacare is neither a valid regulation of interstate commerce nor necessary and proper to a valid regulation of interstate commerce. It is a governmental seizure of 1/9th of the economy. The individual mandate — which is a central feature of that seizure — is nothing more than coercion. It is no less peremptory than the military draft.

And thus has the power to regulate interstate commerce evolved from its original purposes — the protection of American industry in its infancy and the prevention of trade wars among the States — to an instrument of dictatorship. For that is what it is, regardless of the participation of the “people’s representatives.”

It is long past time for the Supreme Court to reverse the long string of Commerce Clause decisions through which the federal government has acquired and exercised dictatorial power. Otherwise, we might as well shred the Constitution, once and for all, and quit paying lip-service to it.

Related post: Social Security Is Unconstitutional

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The Bowles-Simpson Report

The National Commission on Fiscal Responsibility and Reform (a.k.a. the Bowles-Simpson commission) issued a report on December 1. Voting on December 3, the 18 commissioners cast 11 votes for the report and 8 against it. Those who voted for it — including some fiscal conservatives — see it as a place to start. Presumably the fiscal conservatives who voted against it see it for what it is:

This report contains a ten-year net tax hike of over $1 trillion and increases tax revenues from their historical 18 percent of GDP to a record and permanent 21 percent.  This report shifts the debate from where it properly should be—spending—and onto deficit reduction, and thereby tax increases.

The report confirms my earlier view, based on the co-chairs’ proposal, that

It aims at too many spending targets, and misses the elephant in the room: “entitlement” commitments, namely, Social Security, Medicare, and Medicaid (and their promised expansion via Obamacare).

The report also confirms my view of Alan Simpson as a Bob Dole Republican: a tax collector for the welfare state.

Yes, there are proposals about Social Security, Medicare, and Medicaid, but their main thrust is to make those programs even more “progressive”; that is, to use them as instruments of income redistribution. Well, that’s to be expected from a gaggle of politicians, most of whom cannot imagine a world in which individuals take responsibility for themselves. There is much to criticize in the report, beyond the permanent tax increase noted above. Here are some of its more egregious statements and proposals:

P. 11 — Rising debt will also hamstring the government, depriving it of the resources needed to respond to future crises and invest in other priorities.

What crises and what priorities? The only crises contemplated by the Constitution are insurrection, rebellion, and war. But that isn’t what the authors have in mind. Is this a signal that the authors approve the federal government’s bailouts and “investments” in failing businesses?

P. 12 — We must ensure that our nation has a robust, affordable, fair, and sustainable safety net. Benefits should be focused on those who need them the most.

Why must “we” have any kind of tax-funded safety net? Family, friends, and private charities could provide an ample “safety net,” if only government would leave the money in the private sector where it could be invested. As a result, there would be fewer persons in need and more sources of private support for those who are. I will not even bother to say anything about moral hazard and the cycle of dependency, except that they are natural and inevitable consequences of things like Social Security, Medicare, and Medicaid.

P. 13 — We need to implement policies today to ensure that future generations have retirement security, affordable health care, and financial freedom.

We” do, do “we”? See the preceding comment.

P. 21 — RECOMMENDATION 1.2: CUT BOTH SECURITY AND NON-SECURITY SPENDING. Establish firewall between the two categories through 2015, and require equal percentage cuts from both sides. — In other words, balance the budget on the back of national defense. This, combined with later recommendations about war spending, suggests that Bowles-Simpson believe in instant defense. There’s no need, in their view, to build and maintain defense capabilities against undetected and unforeseen threats. No, the necessary capabilities will materialize magically, as they are needed.

P. 23 — [F]ederal budgets rarely set aside adequate resources in anticipation of such disasters, and instead rely on emergency supplemental funding requests. The Commission plan explicitly sets aside funds for disaster relief and establishes stricter parameters for the use of these funds.

What is the federal government doing in the business of disaster relief, anyway? “Stricter parameters” will vanish in a bleeding-heartbeat. And, with a permanent fund to milk, the idiots will continue to build homes and businesses in places where floods, tornadoes, hurricanes, and wildfires are as predictable as sunrise. Talk about moral hazard and cycles of dependency!

P. 24 — RECOMMENDATION 1.7: FULLY FUND THE TRANSPORTATION TRUST FUND INSTEAD OF RELYING ON DEFICIT SPENDING. Dedicate a 15-cent per gallon increase in the gas tax to transportation funding, and limit spending if necessary to match the revenues the trust fund collects each year.

How far we have come from the Constitution’s grant of authority to build “post roads” and make interstate commerce regular (i.e., regulate it) so that it flows freely. This proposal, like the one about disaster funding, is simply designed to ensure that an unconstitutional function enjoys a permanent claim on tax dollars. And it opens the door to more bridges and roads to nowhere. I would like to put Bowles and Simpson on a flight to nowhere.

P. 25 — The Commission recommends creating a new, bipartisan Cut-and-Invest Committee to be charged each year with identifying 2 percent of the discretionary budget that should be cut and identifying how to redirect half of that savings, or 1 percent, into high-value investment. Over the next decade, the Cut-and-Invest Committee will be expected to recommend more than $200 billion in discretionary cuts, freeing up $100 billion for high-priority investments America will need to remain competitive, such as increasing college graduation rates, leveraging private capital through an infrastructure bank, and expanding high-value research and development in energy and other critical areas.

It is depressing to think that a bunch of politicians and bureaucrats get to decide how the hard-earned income of citizens should be spent, and to presume that their judgments are better than the judgments of individuals and businesses acting cooperatively through free markets. A serious deficit-cutting exercise would include a proposal to get government completely out of “investing” in anything other than defense and law enforcement.

Pp. 29-30 — Maintain or increase progressivity of the tax code. Though reducing the deficit will require shared sacrifice, those of us who are best off will need to contribute the most. Tax reform must continue to protect those who are most vulnerable, and eliminate tax loopholes favoring those who need help least…. The Commission proposes tax reform that relies on “zero-base budgeting” by eliminating all income tax expenditures….

In other words, Bowles-Simpson would raise taxes by cutting so-called tax expenditures, while trying to disguise that fact by advertising lower rates. And they would shift the burden of higher taxes in the direction of high-income earners. It so happens that high-income earners already “contribute” a disproportionate share of their incomes. (You know you’re up against con-men when their word for “taxes” is “contributions,” and they view as “spending” anything that reduces the tax-collector’s take.) Greater progressivity is a recipe for slower economic growth because it will (a) further reduce the incentive to acquire and apply skills and (b) further reduce the amounts invested in capital formation.

P. 37 — RECOMMENDATION 3.3: PAY FOR THE MEDICARE “DOC FIX” AND CLASS ACT REFORM. Enact specific health savings to offset the costs of the Sustainable Growth Rate (SGR) fix and the lost receipts from repealing or reforming the CLASS Act. To offset the cost of the SGR fix and recover lost receipts in the first decade from repealing or reforming the CLASS Act, the Commission proposes a set of specific options for health savings that, combined, total nearly $400 billion from 2012 to 2020.

Everything that follows on pages 37-40 could — and should — be done anyway. This isn’t deficit reduction, it’s window dressing.

P. 41 — RECOMMENDATION 3.6: ESTABLISH A LONG-TERM GLOBAL BUDGET FOR TOTAL HEALTH CARE SPENDING. Establish a global budget for total federal health care costs and limit the growth to GDP plus 1 percent.

What follows is a classic cop-out. Some of the commissioners want more government intrusion into the health-care business, others want less. Ho-hum. The “compromise” is a victory for those who want more government intrusion, which is a main reason for the growth of government-funded and private health-care costs in the first place. They’re like idiots who try to put out a fire by pouring gasoline on it.

P. 45 — IV. Other Mandatory Policies

Slightly less than one-fifth of the federal budget is dedicated to other mandatory programs. These include civilian and military retirement, income support programs, veterans’ benefits, agricultural subsidies, student loans, and others.

These mandatory programs are not projected to be the main drivers of rising deficits over the next ten years, but they nevertheless should be part of a comprehensive plan to correct our fiscal path. This is especially true because mandatory spending is not subject to the scrutiny of the annual appropriations process – so poorly directed spending can continue for years with minimal oversight. The Commission’s goals in reforming these policies are:

Protect the disadvantaged. About 20 percent of mandatory spending is devoted to income support programs for the most disadvantaged. These include programs such as unemployment compensation, food stamps, and Supplemental Security Income (SSI). These programs provide vital means of support for the disadvantaged, and this report does not recommend any fundamental policy changes to these programs.

End wasteful spending. The first place to look for savings must be wasteful spending, including subsidies that are poorly targeted or create perverse incentives, and improper payments that can be eliminated through program integrity efforts.

Look to the private sector. Some mandatory programs, like federal civilian and military retirement systems, are similar to programs in the private sector. When appropriate, we should apply innovations and cost-saving techniques from the private sector. (p. 45)

Gee whiz, how compassionate and original. The “compassion,” of course, is the cheap kind that politicians purchase with other people’s money. The “originality” is found in the bankrupt view of government as business: “end wasteful spending” and “look to the private sector,” indeed. Government is neither a charitable institution nor a profit-motivated one. It is an instrument of force, and ought to be recognized and treated as such. What follows, on pages 45-47, is mostly pap, when it isn’t merely wrong-headed.

Take government pensions and government pay, for example. Studies that purport to compare the compensation of government employees with the compensation of private-sector employees are simply a waste of time and money, and usually end up justifying government’s largesse toward a large, safely Democrat, voting bloc. The way to attain pay and pension equity is as follows:

  • Abolish all the unconstitutional departments, agencies, and bureaus.
  • Cut the pay of the employees in the surviving departments, etc., until the government quit rate rises to the level of the private sector. (Exclude from the private sector any firm that derives more than, say, 50 percent of its revenues from government contracts. Such firms tend to have padded salaries and benefits.)
  • Add 25 percent to resulting pay level, in lieu of benefits. Government employees would have the choice of how to take allocate the 25 percent between cash compensation, participation in a health-insurance plan (e.g., a local Blue Cross-Blue Shield group), and tax-sheltered contributions to a private retirement plan. The accrual of government pension benefits would cease immediately upon adoption of this plan, and active government employees would receive a tax-free, lump-sum settlement in lieu of future benefits, based on length of service and years spent at various pay grades.

Now, that’s the kind of deficit reduction the overburdened taxpayers of this country deserve.

P. 48 — V. Social Security

Social Security is the foundation of economic security for millions of Americans. More than 50 million Americans – living in about one in four households – receive Social Security benefits, with about 70 percent going to retired workers and families, and the rest going to disabled workers and survivors of deceased workers. Social Security is far more than just a retirement program – it is the keystone of the American social safety net, and it must be protected….

The Commission proposes a balanced plan that eliminates the 75-year Social Security shortfall and puts the program on a sustainable path thereafter. To save Social Security for the long haul, all of us must do our part. The most fortunate will have to contribute the most, by taking lower benefits than scheduled and paying more in payroll taxes. Middle-income earners who are able to work will need to do so a little longer. At the same time, Social Security must do more to reduce poverty among the very poor and very old who need help the most.

There’s nothing in these pages (pp. 48-55) but recommendations that would increase moral hazard and reinforce the cycle of dependency, topped off with a healthy dose income redistribution. There’s not even a hint of real reform, which would be to phase out Social Security and replace it with private accounts. Those would fund actual investments in economic growth, raise incomes, and reduce the incidence of “poverty,” which isn’t the fault of high-income earners in the first place.

P. 56 — VI. Process Reform

The few pages under this heading (pp. 56-58) deliver more pap and mirrors. Here’s a sample, consisting of paraphrases (bold italics) followed by my comments:

Hide the rising cost of living by switching to chained CPI. — Not that I’m a big fan of CPI-indexed pay and benefits — I’m not. But a chained price index is simply a dishonest way of representing price increases. If the price of apples rises relative to the price of oranges, and consumers buy fewer apples and more oranges as a result, simple introspection will tell you that consumers (most of them, anyway) are worse off unless their “real” incomes have risen and they switch from apples to oranges as a matter of taste.

Adopt a “debt stabilization” process to enforce deficit reduction. — If it ain’t happening, it ain’t happening. A spendthrift Congress can change the law at a whim, and that’s exactly what will happen with this idea. What’s needed is a balanced-budget amendment to the Constitution that very strictly spells out what’s in the budget (namely every red cent spent by government for any reason), and imposes harsh civil penalties on the president, Senate majority leader, speaker of the House, and other leading lights if the budget is not balanced. Period. No excuses about economic conditions. (We’ve seen how “stimulating” the “stimulus package” has been.) Just do it.

Replace ad-hoc extensions to unemployment benefits with automatic triggers. — In other words, make Congress even less accountable than it is now.

*     *     *

I am sorely underwhelmed by the work of the Bowles-Simpson Commission. “The Moment of Truth” — the grandiose sobriquet applied to the report (by Bowles and Simpson, presumably) — is nothing more than a waste of time, money, paper, and electrons.

The report begins with what seems to be a honest effort to estimate the size of the problem. But in the end it amounts to nothing more than a quibble about how to spend our money.

I’ll tell you how to spend my money. Just defend the country, administer justice, and send me a bill at the end of the year for my share of the cost — and don’t try to pad the bill, because I’ll be watching what you do.

There’s nothing to see in the Bowles-Simpson report, folks. Move along.

The Folly of Pacifisim

Bryan Caplan — one of my favorite pseudo-libertarian targets — pooh-poohs the idea that “if you want peace, prepare for war”:

This claim is obviously overstated.  Is North Korea really pursuing the smart path to peace by keeping almost 5% of its population on active military duty?  How about Hitler’s rearmament?  Was the Soviet Union preparing for peace by spending 15-20% of its GDP on the Red Army?

All Caplan has demonstrated is that there are aggressive people and regimes out there, and that non-aggressors are naive to believe that those people and regimes will not attack you if you are not armed against them.

Caplan’s particular brand of pacifism is worse than naive, however. It is also imbued with moral relativism, which I address in “Inside-Outside“:

[W]ho better to help you defend yourself than the people with whom you share space, be it a neighborhood, a city-state, a principality, or even a vast nation? As a member of one or the other, you may be targeted for harm by outsiders who wish to seize your land and control your wealth, or who simply dislike your way of life, even if it does them no harm….

…[Caplan] considers the differential treatment of insiders and outsiders to be an unmitigated wrong. But group cohesion is a prudential social instinct that no amount of rationalism can obliterate. Differential treatment of insiders and outsiders is an inevitable aspect of that prudential social instinct. It is not, at bottom, a moral issue.

To the Caplans of this world, the outsider who would attack you is your moral equal. He just happens to be “over there.”

It is true that one may be attacked from within, by one’s supposed allies. But that does not lessen the need to be prepared for attacks from without. In fact, it points to the virtue of preparedness, generally.

Ronald Reagan, in the context of arms-limitation talks with the USSR, often said “Trust, but verify.” I would change the saying to this: “Trust those who have earned your trust; be armed against the rest.”

The wisdom of preparedness is nowhere better illustrated than in the world of the internet, where every innocent user is a target for the twisted and vicious purveyors of malware. I am far from a computer expert, but my limited knowledge of computing has enabled me to root out malware thrice in the past few years — once for my wife, once for my father-in-law, and once (just yesterday) for myself. Think of the many completely inexpert users whose systems are fatally compromised or restored only at great trouble and expense because they are defenseless against the jackals who roam the internet.

The Caplans of this world simply don’t want to admit that there are “good” people and “bad” people, and that it is  necessary for the “good” people to arm themselves against the “bad” people. In fact, the actions of individuals who promulgate malware and terrorist groups like Al Qaeda make a good case for preemptive warfare.

As for the true state of the world, I find apt a passage from Simon Mawer’s novel, The Gospel of Judas, which centers on a laicized Catholic priest named Leo Newman. Toward the end of the story, which is about the discovery of an alternative account of the life and death of Jesus by Judas Iscariot, a French priest encounters Newman and says,

Newman, you are one of those sentimentalists, who see Jesus Christ as a kind of social worker and the Christian faith as a series of conveniently liberal moral precepts. No wonder you abandoned the Church…. The Almighty is not a liberal, Monsieur Newman… The Almighty is  the driving force for the entire universe and the universe is not a very liberal place. That is what the modern world seems not to understand….

Pacifists are sentimentalists who see the world as a benign place, which can be tamed by their moral precepts. They can afford their naivete because they are sheltered from the real world by the cops and soldiers whose efforts they scorn.

Are You an Austrian?

There is a detailed explanation of Austrian economics at The Concise Encyclopedia of Economics. In summary:

  1. Only individuals choose.
  2. The study of the market order is fundamentally about exchange behavior and the institutions within which exchanges take place.
  3. The “facts” of the social sciences are what people believe and think.
  4. Utility and costs are subjective.
  5. The price system economizes on the information that people need to process in making their decisions.
  6. Private property in the means of production is a necessary condition for rational economic calculation.
  7. The competitive market is a process of entrepreneurial discovery.
  8. Money is nonneutral.
  9. The capital structure consists of heterogeneous goods that have multispecific uses that must be aligned.
  10. Social institutions often are the result of human action, but not of human design.

Read the whole thing. Then take the 10-question quiz about Austrian economics at the website of the Ludwig von Mises Institute. I took the quiz a few years ago, and found that I was 95-percent Austrian in my economic views. Upon sober reflection, I remain obdurate in my “Chicago” answer to question 6, and therefore 95-percent Austrian.

If you don’t want to bother with the quiz, the questions and Austrian answers are below the fold. Continue reading

“Net Neutrality”

“Net neutrality” is a dumb idea, on a par with “buy local.”

The logic of net neutrality is as follows: All autos must be black Model-Ts. It’s not “fair” if someone offers to make a Mustang for those who want something better. It’s not “fair” if Mustang owners can get from place to place faster than Model-T owners. We must all be the same. No more of this male or female nonsense, or allowing batters to hit more than their “share” of home runs, etc.

Almost everything that one can buy comes in different gradations of quality: automobiles, shoes, bread, haircuts, computers, internet service, and on and on. Those gradations of quality enable each of us to buy goods and services that meet our particular needs, given our income constraints and preferences.

Why should I object if certain producers of web content get better service (faster delivery of their content) if they pay a fee for that better service? They’re paying a fee for a service, just as I’m paying a higher fee for my high-speed DSL service than are many other consumers who can’t afford or choose not to pay as much for their internet service as I do. My higher fee enables me to obtain web content faster than those other consumers. Should I be forced to accept a slower speed so that they won’t be relegated to “second class” status? What about those consumers who pay even more than I do and, in return, get even faster DSL or cable service? What about those consumers who buy big Lexuses when others can only afford Honda Civics? What about those consumers who buy tailored suits when others can only afford to buy their clothes at Wal-Mart?

You can see the end of it can’t you? By the “logic” of net neutrality, everyone would be forced to accept goods and services of the same quality. That quality would be poor because there would be no incentive to produce better goods and services to earn more money in order to buy better goods and services — because they couldn’t be bought. Reminds me of the USSR.

But it’s “different” for providers of web content. Or so say the proponents of net neutrality. The providers of web content aren’t consumers, they’re producers. (Aren’t we all, in one way or another?) If they’re able to deliver their content faster than other producers, they’ll have an “unfair” advantage over those other providers. To which I say balderdash. Here’s why:

1. A demand for faster delivery of web content will be met by a supply of greater internet capacity, as supliers of internet capacity upgrade their networks in their competitive efforts to meet the demand for faster delivery. That is, the loss of net neutrality is unlikely to have any effect on other content providers. But there’s more to it . . .

2. Faster delivery will command a premium, just as a Lexus commands a premium over a Honda Civic.

3. Content providers will demand faster delivery and pay the premium for it only to the extent that it yields a positive return (i.e., greater profit).

4. Faster delivery will yield a positive return only to the extent that consumers actually respond to the products and services offered by buying sufficiently more of them.

5. Those consumers, therefore, will pay the premium for the faster delivery of web content.

End of discussion.

P.S. Well, almost the end of the discussion. A friend responded to the first paragraph of this post, which I put on my Facebook wall. He wrote:

Logic is all roads must be open to all. The vehicles you drive may range from Model A Fords to $300,000 race cars. But we all have access to the same highways. NN is very similar to Eisenhower’s Interstate Highway program of the 50s. Don’t confuse product using Net with the Net itself.

To which I replied:

The “road” is open, but it has some toll lanes. Moreover, the “road” is privately owned. Don’t confuse someone else’s property and business with your own.

And…NN says that even if you own a race car, you can’t go faster than a Model A. NN is like the Interstate Highway program would have been if government had commandeered privately built highways and dictated the terms of their use. NN is like telling you that your restaurant can serve only grilled cheese sandwiches because there are customers who can’t afford steak.

He does own a restaurant, and you might think that he would not favor big government. But he does, out of long habit and “religious” fervor. The restaurant is a post-retirement extravagance. He continues to believe (as lefties do) that government is a precision instrument, which can and will be applied only to those ends that they favor. And yet (as lefties do) he complains when government is controlled by Republicans and does things of which he disapproves.

“Buy Local”

I’ve never understood the “buy local” movement (if you can call it that).

Should I buy only those things that have local origins? Probably not, unless I have a strong preference for near-nudity, walking everywhere, and eating raw meat, wild cherries, and a limited selection of uncooked vegetables. Why raw meat and uncooked vegetables? Well, unless I’m very good at making things like ranges and cooking utensils (out of what?), I won’t have anything to cook on or with. Or maybe I’d be expected to cut down all the trees on my property for a few months’ worth of open fires, which I would start … how, by rubbing sticks together?

Anyway, what’s “local”? Is it the places I can walk to in, say, four hours, so that I have time to walk back home and prepare my meal of raw meat, and so on? It must be, if “buy local” rules out the purchase of a bicycle (not made locally) or a car (not made locally), which requires fuel (not made locally).

Well, let’s say that “buy local” means that I should buy only from local merchants, regardless of the source of the things they sell. Is Sam’s Club a local merchant? I think so. After all, the store sits in Austin, and the people who work there must live in and near Austin.

Oh, but I can’t buy things at Sam’s Club because it’s not a locally owned store. It’s part of a big, nationwide chain of stores — an offshoot of Wal-Mart. And stores like that put “local” merchants out of business. Or is it that wise consumers, who don’t like to ripped off, put “local” merchants out of business by taking their business elsewhere?

The fact that Sam’s Club, etc., are local stores, pay local taxes, and hire local people doesn’t matter, you say? The fact that the lower prices charged by outfits like Sam’s Club are a boon to consumers (many of them low-income consumers) doesn’t matter, you say? We should just suck it up and pay a premium to “local” merchants? Why? So they can sell us the same, mostly non-local stuff at higher prices because their operations are less efficient than those of Sam’s Club and the like? (I love to use Sam’s Club as an example because (a) I shop there and (b) it drives my left-wing acquaintances nuts. They talk as if the employees of Sam’s and Wal-Mart are slaves who have been dragooned into service, unlike the employees of Costco.)

And what about internet retailers like Amazon.com? Are they off-limits, too? Heaven forbid that I should be able to get more for my money, and save a lot of time and trouble, by shopping online. I could spend a lot more time, consume fuel, and wear out tires and brakes by going to a bunch of “local” stores for the same things. If they offer them. And if they do, I’ll probably pay more, to boot.

Perhaps “we” should go back to the “good old days” of the  late 1800s, when most things were purchased locally. (Though not made locally out of locally available materials.) No one had cars to bother with, just dirty, smelly horses and uncomfortable buggies and wagons. Anyway, when cars came along, they weren’t produced locally, so people were just as well off without them.

Wait a minute. The relative lack of mobility of the late 1800s led to the innovation known as catalog shopping. Remember Montgomery Ward and Sears, Roebuck and Company? If you don’t you ought to look them up. They were the Amazon. com of the day — and for many long years.  Not only that, but they also had “local” stores across the country, as did J.J. Newberry, F.W. Woolworth, and (within a few decades) S.S. Kresge, J.C. Penney, and many others. Then there was A&P, which — despite its later reputation as a third-rate grocery chain — led the way in bringing to American consumers a wider variety of foodstuffs at affordable prices.

I could go on, but I hope you get the idea. If you’re serious about buying “local” — in the strictest sense — you’re doomed to a life of hard labor and rudimentary shelter, clothing, food, entertainment, medical care, and everything else. Plus, there’s all that stuff you’ll never miss, like your iPhone, Facebook, the internet itself, movies, TV, radio, and whatever else passes for amusement these days.

You see, I just don’t know where one is supposed to draw the line when it comes to buying “local.” And once you go beyond that line — wherever it is — have you done something bad? Like enjoying a healthier, better-nourished, better-clothed, better, housed, more richly entertaining life? Like getting more for your money? Like providing employment for local people who don’t happen to work for “local” companies? Like providing employment for people who don’t live locally but are able to make things that can’t be made locally, at all, or as well or as cheaply?

All of this confusion about “buy local” is driving me nuts. Maybe I’ll sue the local chamber of commerce for emotional distress. But I’ll have to hire a lawyer who’s a native of Austin and who got his law degree at UT. Of course, there might be better lawyers who aren’t natives and who got their law degrees in other places. But that’s my tough luck, isn’t it?

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