Month: June 2019

Do Ends Justify Means?

Sometimes. If, for example, the end is the preservation of innocent human life, and the means (or some of them) are the prohibition of abortion and the right to bear arms.

Sometimes not. If for example, the end is “equality” and the means are such things as racial preferences and income redistribution. Stealing from others doesn’t make a person equal to them, except perhaps ephemerally — a job is gained (though probably to be lost), a certain amount of income is gained (though probably to be squandered). “Equality” is just a slogan, a sloppy excuse for theft. It is not the moral equivalent of  preserving innocent human life.

Sometimes. If the end is liberty and the means include killing to gain or defend it.

Sometimes not. If the end is the subjugation of others and the means include killing, enslavement, muzzling, threatening, or otherwise oppressing those others.

As Leon Trotsky put it:

The end may justify the means as long as there is something that justifies the end.

By their ends you shall know them.

Supreme Court Page, Updated

With the end of the October 2018 term of the U.S. Supreme Court just behind us, I have updated “U.S. Supreme Court: Lines of Succession and Ideological Agreement“. It consists of four parts: Lines of Succession, Ideological Alignment, Polarization, and Judging the Justices: The Thomas Standard. The last two sections are new to the page; I adapted them from now-outdated posts.

“Free Stuff”

Here’s an explainer, which will go over the heads of Democrat presidential hopefuls and most Democrats:

Getting “free” stuff reduces the recipient’s need to work.

Therefore, giving out “free” stuff means that recipients work less than they would otherwise work, where “less” often means “not at all”.

But “free” stuff isn’t really free; someone has to produce it (i.e., work). (The work may be done by machines and computerized systems, but someone has to invent, build, operate, monitor, etc., those machines and computerized systems; and someone has to do some kind of work in order to generate the wherewithal for the invention, construction, and purchase of machines and computerized systems.)

As long as productivity rises fast enough, workers can continue to produce “free” stuff while maintaining or improving their own standard of living.

But if the value of “free” stuff rises faster than the value of the extra output afforded by productivity increases, something has to give. If the something is the real income of workers — what they get after providing “free” stuff for others — they will work less (though they may do so in ways that disguise the slowdown).

Some will argue that workers will just work more in order to maintain their standard of living. But just as companies will offer fewer goods and services as prices decline, so will workers work less as their real wages decline. The ability to buy stuff is an incentive to work, but there are other things to do with one’s time, so if a given amount of work buys less stuff, those other things look more attractive. (Greg Mankiw gives an economist’s explanation here.)

At some point, if productivity doesn’t rise enough (and it has been declining for a long time), while government continues to hand out more “free” stuff, enough workers will have reduced their output (in response to decreases in real wages) that the real (inflation-adjusted) value of total output will decline.

A kind of death-spiral will ensue: lower real wages leads to lower total output which leads to lower real wages (unless the “free” stuff is reduced drastically), etc., etc., etc. In the end, workers will do just enough work to afford a subsistence standard of living, and the actual value of the “free” stuff given to non-workers will be about the same as it is for workers. (In the USSR, most people were nominally employed (though not very productively), but there was so much “free” stuff being handed out — especially to the commissars and their favorites — that the result was the same: low real output and a low standard of living — by Western standards — even for the commissars and their favorites.)

Equality, ain’t it wonderful?

Oberlin

Poetic justice: The “social justice” college was hit with $11 million in punitive damages, $22 million in compensatory damages, for defaming Gibson’s Bakery.

I have warned against drawing conclusions from outliers. But my ditzy, meme-spouting, lesbian*, leftist, Oberlin grad, niece-by-marriage isn’t an outlier. To know her is to know Oberlin. One example: She participated in Occupy Wall Street and then sponged off my investment-banker daughter.

As they say, the problem with socialism is that you eventually run out of other people’s money. But ditzes like her — and AOC (and most of the Dem candidates for president) — just don’t get it. That’s why they’re so dangerous.
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* NTTAWWT, if one is in fact genetically predisposed to homosexuality. But the number of persons thus endowed must be far smaller than the number proclaiming to be homosexual (or something else “queer”) because of the power of social pressure on those of an impressionable age (which most definitely includes college students). The niece-by-marriage, for example, went off to Oberlin as a sexually active heterosexual and emerged from that cesspool of muddled leftist sloganeering as a lesbian, but — tellingly —  a lesbian of the “lipstick” preference.

The Citizenship Question

The Supreme Court’s ruling in Department of Commerce v. New York has effectively killed the use of citizenship question in the 2020 census. The entire case and the arguments for and against the citizenship question seem to have missed the essential questions:

Why is there a census?

Who is to be counted for that purpose?

There is a census because — and only because* — Article I, Section 2, of the Constitution says that the

House of Representatives shall be composed of Members chosen every second Year by the People of the several States….

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States….

… The actual Enumeration [i.e., census for the purpose of determining the apportionment of Representatives among the States, and not for the purpose of counting bedrooms, bathrooms, and square footage] shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years…

At this point, we must turn to Sections 1 and 2 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside [thus overturning Dred Scott v. Sandford, which declared blacks to be non-citizens].

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

I don’t know how the idea arose that non-citizens should be counted, but I chalk it up to sloppy usage. The words “person” and “citizen” are used interchangeably throughout the Constitution. But a “person”, for the purpose of the enumeration that determines the apportionment of Representatives, is a citizen:

All persons born or naturalized in the United States … are citizens….

Representatives shall be apportioned among the several States according to their respective numbers [of citizens, a.k.a. persons]….

The challenge to the citizenship question should have been blown out of the water at the outset. Instead, States that have disproportionate shares of illegal immigrants will have disproportionate representation in the House of Representatives, and will claim disproportionate shares of “free stuff”. California, I’m looking at you.
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* it says in the Constitution that “the actual Enumeration . . . shall be made . . . in such Manner as they shall by Law direct.” But the operative word is “enumeration”. It follows that Congress’s power to direct the “manner” of the enumeration is restricted to such matters as when and at what cost the enumeration shall be made. The census has become an intrusive inquiry into the private affairs of citizens because Congress has stretched its constitutional mandate to “enumerate” because it has enacted unconstitutional laws (e.g., aid to States, public schools, housing subsidies) that require the asking of unconstitutional questions.

Am I a Cockeyed Pessimist?

With apologies to the shade of Oscar Hammerstein II*.

Marteen Boudry, writing at Quillette, describes “Four Flavors of Doom: A Taxonomy of Contemporary Pessimism“. In brief:

The Nostalgic Pessimist

In the good old days, everything was better. Where once the world was whole and beautiful, now everything has gone to ruin. Different nostalgic thinkers locate their favorite Golden Age in different historical periods. Some yearn for a past that they were lucky enough to experience in their youth, while others locate utopia at a point farther back in time, such as the belle époque before the two World Wars, or the simple agrarian life and closely-knit communities of the Middle Ages, or perhaps the distant past of our hunter-gatherer ancestors who lived “in harmony with nature.”…

The “Just You Wait” Pessimist

Some are prepared to admit, unlike the nostalgists, that the world has improved considerably over the past two centuries. But, they maintain, this cannot possibly last. The hubris of modern man, with his naïve belief in progress, must be punished sooner or later. I call this the “Just You Wait” school of pessimism. For now, everything seems to be going smoothly, but soon we will cross some critical threshold, after which we’ll plunge inexorably into the abyss….

The Cyclical Pessimist

This kind of pessimist will agree that things are going pretty well at the moment, but he doesn’t think our current run of luck is historically exceptional. Humankind has experienced periods of relative prosperity and peace before, but all have come to an end sooner or later. The course of history, for the cyclical pessimist, comes and goes like the tides or the seasons….

The Treadmill Pessimist

The treadmill pessimist accepts the reality of some objective measures of progress (more wealth, less violence, longer and healthier lives), but maintains that—despite everything—we haven’t really made advances where it truly matters. Like Alice and the Red Queen in Alice Through the Looking-Glass, we have been running ourselves ragged only to find, when we take a breath and look around, that we are still in the same place where we started.

I am all four kinds of pessimist, to some degree:

  1. America, as something of a united nation, fell apart in the 1960s, and the split grows daily. America might have been unique among nations for a long time, in its combination of economic and social progress and relative liberty. But it has become just another European-style regulatory-welfare state, with an unhealthy admixture of third-worldism (i.e., non-assimilating immigrants and never-assimilating blacks).
  2. Yes, there has been great material progress over the past two centuries, but a man-made cataclysm (e.g., all-out cyberwar) or a natural one (e.g., an asteroid strike) could reverse it and drive mankind back to an earlier stage of economic development. The struggle to survive would be compounded by the unleashing of savage impulses.
  3. This is just a variation of #2, and just as valid (or not) because there have been eras of improvement and decline in the past.
  4. The treadmill theory is about “happiness”, which is impossible to measure objectively and interpersonally. Intertemporal assessments can only be personal ones. I would admit that prosperity generally breeds greater happiness for most people — up to the point where the striving for prosperity (e.g., more work, less leisure, hellish commutes) and non-economic factors (e.g., social discord) tend to make them miserable.

Realism is a more apt word than pessimism, it seems to me.
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* Hammerstein was a lyricist whose notable composing partners included Jerome Kern, Sigmund Romberg, and Richard Rogers. Rogers and Hammerstein created a string of hit musicals, including South Pacific, the score of which includes “A Cockeyed Optimist“:

When the skies are brighter canary yellow
I forget ev’ry cloud I’ve ever seen,
So they called me a cockeyed optimist
Immature and incurably green.
I have heard people rant and rave and bellow
That we’re done and we might as well be dead,
But I’m only a cockeyed optimist
And I can’t get it into my head.
I hear the human race
Is fallin’ on its face
And hasn’t very far to go,
But ev’ry whippoorwill
Is sellin’ me a bill,
And tellin’ me it just ain’t so.
I could say life is just a bowl of Jello
And appear more intelligent and smart,
But I’m stuck like a dope
With a thing called hope,
And I can’t get it out of my heart!
Not this heart…

The Left-Libertarian Axis

I long ago concluded that the path to liberty is found in conservatism, not in what is called “libertarianism”. By conservatism I mean the disposition to rely on the tried-and-true, which doesn’t preclude a willingness to innovate but does insist that the acceptance of innovation must be voluntary. (See “Social Norms and Liberty” and the posts listed at the end. “True Libertarianism, One More Time” and “Why Conservatism Works” are especially relevant here.)

Among many reasons for my rejection of “libertarianism” is its essential similarity to leftism, both ideologically and in its implementation.

The ideological similarity is evident in Arnold Kling‘s three-axes model, which he explains in The Three Languages of Politics: Talking Across the Political Divide. Here are some relevant passages:

In politics, I claim that progressives, conservatives, and libertarians are like tribes speaking different languages. The language that resonates with one tribe does not connect with the others. As a result, political discussions do not lead to agreement. Instead, most political commentary serves to increase polarization. The points that people make do not open the minds of people on the other side. They serve to close the minds of the people on one’s own side.

Which political language do you speak? Of course, your own views are carefully nuanced, and you would never limit yourself to speaking in a limited language. So think of one of your favorite political commentators, an insightful individual with whom you generally agree. Which of the following statements would that commentator most likely make?

(P) [Progressive] My heroes are people who have stood up for the underprivileged. The people I cannot stand are the people who are indifferent to the oppression of women, minorities, and the poor.

(C) [Conservative] My heroes are people who have stood up for Western values. The people I cannot stand are the people who are indifferent to the assault on the moral virtues and traditions that are the foundation for our civilization.

(L) [Libertarian] My heroes are people who have stood up for individual rights. The people I cannot stand are the people who are indifferent to government taking away people’s ability to make their own choices….

I call this the three-axes model of political communication. A progressive will communicate along the oppressor-oppressed axis, framing issues in terms of the (P) dichotomy. A conservative will communicate along the civilization-barbarism axis, framing issues in terms of the (C) dichotomy. A libertarian will communicate along the liberty-coercion axis, framing issues in terms of the (L) dichotomy….

If there is a real difference between P and L, I cannot find it. “Liberty-coercion” is just another way of saying “oppressor-oppressed”. One who isn’t oppressed is therefore (in the view of the “progressive”) enjoying liberty, or is at least one step closer to it.

The operational similarity between leftism and “libertarianism” is the enthusiasm shown by many “libertarians” for government intervention when it advances their particular causes. The following passages, lifted from an old post of mine, elaborate on the ideological and operational similarities of leftism and “libertarianism”.

Some “libertarians” have become apologists for PCness. Will Wilkinson, for example, suggests that

most PC episodes mocked and derided by the right are not state impositions. They are generally episodes of the voluntary social enforcement of relatively newly established moral/cultural norms.

Wilkinson grossly simplifies the complex dynamics of PCness. His so-called “newly established … norms” are, in fact, norms that have been embraced by insular élites (e.g., academics and think-tank denizens like Wilksinson) and then foisted upon “the masses” by the élites in charge of government and government-controlled institutions (e.g., tax-funded universities). Thus it is no surprise that proposals to allow same-sex marriage fare poorly when they are submitted to voters. Similarly, the “right” to an abortion, almost four decades after Roe v. Wade, remains far from universally accepted and meets greater popular resistance with the passage of time.

Roderick Long is another “libertarian” who endorses PCness:

Another issue that inflames many libertarians against political correctness is the issue of speech codes on campuses. Yes, many speech codes are daft. But should people really enjoy exactly the same freedom of speech on university property that they would rightfully enjoy on their own property? Why, exactly?

If the answer is that the purposes of a university are best served by an atmosphere of free exchange of ideas — is there no validity to the claim that certain kinds of speech might tend, through an intimidating effect, to undermine just such an atmosphere?…

At my university [Auburn], several white fraternity members were recently disciplined for dressing up, some in Klan costumes and others in blackface, and enacting a mock lynching. Is the university guilty of violating their freedom of expression? I can’t see that it is. Certainly those students have a natural right to dress up as they please and engage in whatever playacting they like, so long as they conduct themselves peacefully. But there is no natural right to be a student at Auburn University.

Long — who describes himself as a “left-libertarian market anarchist” (whatever that is) — makes a clever but fallacious argument. The purposes of a university have nothing to do with the case. Speech is speech, except when it really isn’t speech, as in sit-ins (trespass), child pornography (sexual exploitation of minors), and divulging military secrets (treason, in fact if not in name).

Long is rightly disgusted by the actions of the fraternity members he mentions, but disgust does not excuse the suppression of speech by a State university. It is true that there is no “natural right” to be a student at Auburn, but there is, likewise, no “natural right” not to be offended.

Steven Horwitz is a kindred spirit:

Yes, legislation like the Civil Rights Act of 1964 involved some interference with private property and the right of association, but it also did away with a great deal of state-sponsored discrimination and was, in my view, a net gain for liberty.

Well, some parts of the Civil Rights Act of 1964, together with its progeny — the Civil Rights Acts of 1968 and 1991 — did advance liberty, but many parts did not. A principled libertarian would acknowledge that, and parse the Acts into their libertarian and anti-libertarian components. A moral scold who really, really wants the state to impose his attitudes on others would presume — as Horwitz does — to weigh legitimate gains (e.g., voting rights) against unconscionable losses (e.g., property rights and freedom of association). But presumptuousness comes naturally to Horwitz because he — like Lindsey, Wilkinson, and Long — stands high above reality, in his ivory tower.

Wilkinson is sympatico with Horwitz in the matter of state action:

Government attempts to guarantee the worth of our liberties by recognizing positive rights to a minimum income or certain services like health care often (but not always) undermine the framework of market and civil institutions most likely to enhance liberty over the long run, and should be limited. But this is really an empirical question about what really does maximize individuals’ chances of formulating and realizing meaningful projects and lives.

Within this framework, racism, sexism, etc., which strongly limit the useful exercise of liberty are clear evils. Now, I am ambivalent about whether the state ought to step in and do anything about it.

Wilkinson, like Horwitz, is quite willing to submit to the state (or have others do so), where state action passes some kind of cost-benefit test. (See “Utilitarianism vs. Liberty.”)

In any event, what more could the state do than it has done already? Well, there is always “hate crime” legislation, which (as Nat Hentoff points out) is tantamount to “thought crime” legislation. Perhaps that would satisfy Long, Horwitz, Wilkinson, and their brethren on the “libertarian” left. And, if that doesn’t do the trick, there is always Richard Thaler’s “libertarian” paternalism (with its statist slant), and Cass Sunstein’s proposal for policing thought on the internet. Sunstein, at least, doesn’t pretend to be a libertarian.

Where is libertarianism to be found? In conservatism, of all places, because it is a reality-based political philosophy.

But what does conservatism have to do with libertarianism? I have in various posts essayed an answer to that question (here, here, here, and here, for example), but now I turn the floor over to John Kekes, who toward the end of “What Is Conservatism?” says this:

The traditionalism of conservatives excludes both the view that political arrangements that foster individual autonomy should take precedence over those that foster social authority and the reverse view that favours arrangements that promote social authority at the expense of individual autonomy. Traditionalists acknowledge the importance of both autonomy and authority, but they regard them as inseparable, interdependent, and equally necessary. The legitimate claims of both may be satisfied by the participation of individuals in the various traditions of their society. Good political arrangements protect these traditions and the freedom to participate in them by limiting the government’s authority to interfere with either.

Therein lies true libertarianism — true because it is attainable. Left-libertarians believe, foolishly, that liberty is to be found in the rejection of social norms. Liberty would be the first victim of the brave new disorder that they wish for.

The New York Times Has More to Worry About, Part 2

In “If the New York Times Is Worried [I’m Happy]” I quote an opinion piece by a law professor; in particular:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

In a sequel, “The New York Times Has More to Worry About“, I write about Justice Gorsuch’s majority opinion in United States v. Davis; this passage in particular:

Only the people’s elected representatives in Congress have the power to write new federal criminal laws.

I go on to say this:

Guess who concurred fully in the opinion? Not Roberts, Thomas, Alito, and Kavanaugh — all of whom dissented. No, Gorsuch was joined by Ginsburg, Breyer, Sotomayor, and Kagan — the “liberals” on the Court.

With Gorsuch’s opinion as precedent, the “liberals” have just opened the door to a future ruling that enforces the non-delegation doctrine. (Just what the lawprof fears.)

If it’s true that only the people’s elected representatives in Congress have the power to write new federal criminal laws, it’s equally true that only the people’s elected representatives in Congress have the power to write new laws, period. And writing new laws is just what executive-branch agencies do when they write regulations pursuant to vague congressional directives to “do good”, or words to that effect.

Yes, the writing is on the wall for the hands-off doctrine that has effectively transferred legislative (and judicial) power from Congress (and the courts) to legions of unelected bureaucrats.

John C. Eastman, writing at RealClearPolitics, underscores the significance of Alito’s seemingly miscast vote in Gundy v. United States, where he sided with the Court’s “liberals”:

[Gundy] lost because Justice Brett Kavanaugh was recused from the case, and [Justice Samuel Alito] rather than casting a vote in line with his own previously expressed views on the subject (“The principle that Congress cannot delegate away its vested powers exists to protect liberty,” [as] he noted in the American Railroads case), … concurred in the judgment against Gundy, providing the necessary fifth vote to Justice Elena Kagan’s plurality opinion upholding the delegation of authority in this particular case.

To understand how strategic a vote that was, a little inside-baseball background is required.  When a justice is recused from a case and the remaining eight justices are evenly divided, the court merely issues a one-line order noting that the judgment of the lower court “is affirmed by an equally divided” court.”  In Gundy’s case, that would mean the decision of the U.S. Court of Appeals for the Second Circuit against him would stand, and we would have nothing further about the non-delegation doctrine coming from the Supreme Court in the case.  Had Alito joined Justice Neil Gorsuch’s dissenting opinion thoroughly analyzing (and reviving) the non-delegation doctrine, that opinion would no longer have been a dissent.  But neither would it have been a majority, because of Kavanaugh’s recusal.  Instead, the court would have merely affirmed the Second Circuit’s decision by an equally divided court, and neither Kagan’s nor Gorsuch’s opinions would have seen the light of day.  Indeed, the public would not even know what the actual line-up of the justices was, as the perfunctory affirmance by an equally divided court doesn’t even list which justices were on which side of the divide, much less their reasons.

Yet Alito left no doubt where he stands on the matter.  Significantly, he did not join Kagan’s opinion (thereby making it only a plurality opinion), but concurred only in the judgment, noting that he could not say the statute lacks a “discernible standard that is adequate” to support the delegation “under the approach this Court has taken for many years.”  But he added that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”  In a case in which Kavanaugh is not recused, there is likely to be the necessary majority to undertake the very reconsideration that Alito said he would support. Kavanaugh’s tenure on the D.C. Circuit was marked, after all, by a strong devotion to separation-of-powers principles, and there is no separation of powers principle more basic than the non-delegation doctrine.  So I say to the non-delegation doctrine, “Welcome back!”

Hear, hear!

World War II As an Aberration

I began and ended “Beware of Outliers” thus:

An outlier, in the field of operations research, is an unusual event that can distract the observer from the normal run of events. Because an outlier is an unusual event, it is more memorable than events of the same kind that occur more frequently….

I am beginning to think of America’s decisive victory in Word War II as an outlier.

To be continued.

Continuing …

Victory in World War II, though generally attributed to “America” was in fact the product of patience on the part of the military leaders of the United States (including the civilian commander-in-chief and his civilian advisers). Patience is the key to victory when certain other conditions are met; namely,

  • strategy — a broad and feasible outline of a campaign to attain a major objective
  • intelligence — knowledge of the opposition’s objectives, resources, and tactical repertoire, supplemented by timely reporting of his actual moves (especially unanticipated ones).
  • resources — the physical and intellectual wherewithal to accomplish the strategic objective while coping with unforeseen moves by the opposition and strokes of bad luck.
  • tactical flexibility — a willingness and ability to adjust the outline of the campaign, to fill in the outline with maneuvers that take advantage of the opposition’s errors, and to compensate for one’s own mistakes and bad luck.

Then comes patience, which is more than mere passivity. Determination might be a better word — the willingness by the military leadership to pursue an attainable goal despite setbacks and nay-saying by others (especially political opponents and pundits).

World War II wasn’t an outlier, in that respect, but it was the last war fought by the United States in which the military leadership possessed the patience — the determination — to secure a decisive victory.

The Civil War, it should be noted, was a defeat for almost half the nation. The Cold War ended in victory, thanks to President Reagan’s determination, on which Bush 41 capitalized. But subsequent presidents failed to secure that victory in their zeal (with the eager participation of Congress) to spend money on non-essential (i.e., non-defense) programs. The Gulf War of 1990-91, though seemingly decisive, was a strategic defeat because Bush 41 deliberately chose not to take the opportunity to rid the Middle East of Saddam Hussein. Bush 43 seized a later opportunity but made two grave mistakes in his execution of the Iraq War:

  • He put too few boots on the ground.

 

  • He tried to “build” a new Iraq when he should have secured a strategic stronghold for the U.S. in the Middle East, as with the occupation of Germany and Japan after World War II.

In both cases, Bush 43 (like his father) lacked the determination to do what needed to be done — a character flaw that is found in compromisers.

(See also “A Grand Strategy for the United States“, “LBJ”s Dereliction of Duty“, and “Presidents and War“.)

The New York Times Has More to Worry About

A few days ago I wrote about a piece in the NYT, in which a lawprof worries that the Supreme Court might curb Congress’s unconstitutional delegation of power to executive-branch agencies. Here is a quotation from that piece, with my comments in brackets:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

Today, Justice Gorsuch issued the majority opinion in United States v. Davis, in which he wrote this:

Only the people’s elected representatives in Congress have the power to write new federal criminal laws.

Guess who concurred fully in the opinion? Not Roberts, Thomas, Alito, and Kavanaugh — all of whom dissented. No, Gorsuch was joined by Ginsburg, Breyer, Sotomayor, and Kagan — the “liberals” on the Court.

With Gorsuch’s opinion as precedent, the “liberals” have just opened the door to a future ruling that enforces the non-delegation doctrine. (Just what the lawprof fears.)

If it’s true that only the people’s elected representatives in Congress have the power to write new federal criminal laws, it’s equally true that only the people’s elected representatives in Congress have the power to write new laws, period. And writing new laws is just what executive-branch agencies do when they write regulations pursuant to vague congressional directives to “do good”, or words to that effect.

Yes, the writing is on the wall for the hands-off doctrine that has effectively transferred legislative (and judicial) power from Congress (and the courts) to legions of unelected bureaucrats.

A Bad Bargain

Justice Oliver Wendell Holmes Jr. (1841-1935) wrote in an opinion that “Taxes are what we pay for civilized society”. Well, since Holmes issued his fatuous dictum in 1927, the tax burden on Americans has rise from 10 percent of GDP to nearly 40 percent of GDP.

If taxes promote civilization, so do regulations, a fortiori. The federal regulatory burden, which was nearly zero in the 1920s is now so imposing that its myriad strictures reduce GDP by more than 10 percent. (I haven’t found an estimate of the undoubtedly huge State and local burden.)

So the total burden of government on the U.S. economy has increased more than five-fold in the past 90 years. Has the United States become a more civilized country as a result? I submit that since the advent of the Great Society, when the tax and regulatory burdens began to rise in earnest, things have gone to hell in a handbasket.

Government seems to be a bad bargain. I demand a refund.

Beware of Outliers

An outlier, in the field of operations research, is an unusual event that can distract the observer from the normal run of events. Because an outlier is an unusual event, it is more memorable than events of the same kind that occur more frequently.

Take the case of the late Bill Buckner, who was a steady first baseman and good hitter for many years. What is Buckner remembered for? Not his many accomplishments in a long career. No, he is remembered for a fielding error that cost his team (the accursed Red Sox) game 6 of the 1986 World Series, a game that would have clinched the series for the Red Sox had they won it. But they lost it, and went on to lose the deciding 7th game.

Buckner’s bobble was an outlier that erased from the memories of most fans his prowess as a player and the many occasions on which he helped his team to victory. He is remembered, if at all, for the error — though he erred on less than 1/10 of 1 percent of more than 15,000 fielding plays during his career.

I am beginning to think of America’s decisive victory in Word War II as an outlier.

To be continued.

If The New York Times Is Worried …

… I’m happy.

In particular, there’s an opinion piece in today’s Times by one Nicholas Bagley, who is identified as a professor of law at the University of Michigan. The professor writes:

In Gundy v. United States, which concerned the constitutionality of a law requiring the registration of sex offenders, four of the more conservative justices endorsed a controversial legal theory according to which Congress lacks the power to delegate broad powers to agencies like the Food and Drug Administration and the Department of Heath and Human Services.

For now, the four more-liberal justices have brushed back the challenge, ruling 5 to 3, with Justice Samuel Alito, that Congress can give to the executive branch the authority to implement that specific law. But a close reading of the decisions in the case — and the fact that Justice Brett Kavanaugh was recused — suggests that the liberals may not have the votes to turn back the conservative assault on Congress’s powers.

Federal agencies have been vested with expansive authority since the dawn of the republic, but the administrative state as we know it really took off in the 20th century. The rise of agencies like the Office of Price Administration, the Social Security Administration and the Environmental Protection Agency was essential to the prosecution of two world wars, the creation of the post-New Deal welfare state and the regulation of novel risks such as industrial pollution.

Slippery stuff, that argument. The “conservative assault” isn’t on Congress’s powers, but on Congress’s unconstitutional delegation of its powers, not to mention the judiciary’s powers, to the executive branch. Furthe, Bagley implicitly assumes that OPA, SSA, EPA, and a long list of unnamed co-conspirators are both constitutional in themselves, and that they actually perform beneficial functions. There is a a lot of evidence that most of the agencies of the executive branch have made things worse for Americans. (See, for just one example, “Economic Growth since World War II“.)

Bagley continues:

Since 1935, the Supreme Court has approved laws telling agencies to regulate “in the public interest” and to set pollution standards “requisite to protect the public health.” Not once in the 84 years since has the Supreme Court invalidated a law because it offends the so-called nondelegation doctrine.

And for good reason. To run a functional, modern government, Congress has no choice but to delegate authority and discretion to federal agencies. Doing so allows Congress to make use of agencies’ resources and scientific expertise, to enable a nimble response to emerging problems and to insulate technocratic decisions from raw politics.

In other words, it’s okay with Bagley (and a host of “liberals”) if unelected bureaucrats tell people — in minute detail — how to run their businesses and lives, and to act as judge and jury of the people whose actions do not comport with bureaucratic wisdom. Oh, and about those “nimble” bureaucracies — have you ever encountered one?

Bagley nevertheless says something that makes me happy:

Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].

Near the end, Bagley asserts this:

The Constitution broadly empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution” its authorities. Congress does not surrender its legislative power by delegating. It exercises that power.

If follows, by Bagley’s “logic”, that Congress could write a law which delegates all of its power — and all of the judicial branch’s power — to executive-branch agencies. Why not just resurrect the Third Reich or Stalin’s USSR and be done with it?

The Golden Rule and Social Norms

The Golden Rule (a.k.a. the ethic of reciprocity) is summarized as “Do unto others as you would have them do unto you”. Commandments IV – X are specific examples of the application of The Golden Rule. The Golden Rule has been expressed in many ways in many different cultural settings. I therefore see it as principle that arises out of social necessity, even though it has the imprimatur of various religions.

“Doing unto others as they would do unto you” implies an accepted set of social norms, which go beyond actual harm (e.g., murder, theft). The norms arise gradually as close-knit groups (families, clans, tribes, ethnic groups) coexist over a period of time. Coexistence yields lessons about behaviors that are acceptable (they advance in-group trust and cooperation) and behaviors that are unacceptable (they undermine in-group trust and cooperation). So the norms will include not only obvious things like the prohibition of murder (though not killing in self-defense), but also what I call instrumental or signaling behaviors to show that one is a trustworthy member of the group who abides by its norms and can be counted on to advance the interests of the group. This latter phenomenon is disparigingly called “tribalism” by “cosmopolitan sophisticates”, even though they are extreme tribalists in their own right.

Behavioral signaling is an inevitable and invaluable feature of harmonious coexistence. You can probably think of many examples of the kinds of persons whom you wouldn’t trust, based on their mannerism, clothing, hair styles, tastes in music, and — above all – political views.

It is certainly possible and desirable to apply The Golden Rule to members of out-groups. (The Parable of the Good Samaritan is meant to encourage such behavior.) But, as President Reagan said famously about relations with the Soviet Union: “Trust, but verify.” In other words, remain wary. Overt friendliness can be a dangerous trap.

(See also “Real Americans“.)

Summer School?

Summer has long been my favorite season, not least because it meant summer vacation for many years. In those days of yore, school stayed in session until mid-June and didn’t resume until after Labor Day. (In fact, my college was on the quarter system, and school didn’t resume until late September.) Does anyone know why school (in large swaths of the country) now ends in early May and resumes in mid-to-late August? It doesn’t make sense to me because (1) there’s still cool, rainy weather in May, (2) there’s still a lot of summer left after school resumes, and (3) taxpayers must be paying for a lot of extra air-conditioning as a result of (1) and (2).

There are explanations for this idiocy (e.g., here), but I find them unpersuasive and rather like explanations of how the tail wags the dog.

The Next Irish Famine?

Ireland’s increasingly loony politicians seem to be paving the way for it:

From Breitbart

Drivers will be forced off the roads in Ireland and the population packed into “higher density” cities under a long-awaited climate plan which will ‘revolutionise’ people’s lifestyle and behaviours, according to local media.

“Nudge” policies such as huge tax hikes, as well as bans and red tape outlined in the plan, will pave the way to a “vibrant” Ireland of zero carbon emissions by 2050 according to the government, which last year committed to boost the country’s 4.7 million-strong population by a further million with mass migration.

In order to avert a “climate apocalypse”, the government plans to force people “out of private cars because they are the biggest offenders for emissions”, according to transport minister Shane Ross whose proposals — which include banning fossil fuel vehicles from towns and cities nationwide — are posed to cripple ordinary motorists, local media reports.

Launching the plan in Dublin, leader Leo Varadkar outlined his vision for an Ireland of ‘higher density’ cities consisting of populations whose lifestyles and behaviours have been totally transformed by ‘carrot and stick’ policies outlined in the climate plan.

“Our approach will be to nudge people and businesses to change behaviour and adapt new technologies through incentives, disincentives, regulations and information,” the globalist prime minister said.

“We are going to change how electricity is produced and consumed, how our homes and workplaces are heated; the way we travel; the types of vehicles we purchase; and how food is produced.

So the Irish who aren’t killed in the womb by abortion, will be killed by their oppressive government’s policies.

Ireland is becoming a poster child for a more restrictive immigration policy along the lines of the old “no Irish need apply” employment policy. There’s enough zaniness in American politics without compounding it with (more) Irish politicians.

A Sad Commentary …

… on the state of political discourse in the United States:

The sad part isn’t the abysmal ignorance and anti-social (pro-socialist) pronouncements of Alexandria Occasio-Cortez*, it’s that large numbers of Americans** take her seriously.
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* Or Occasional Cortex, as Tim of Angle aptly calls her.

** But not real Americans.

Gearing Up for the 2020 Census

You probably received in the mail a first notice from the Census Bureau, demanding that you complete an online questionnaire. I ignored that one, and received a follow-up questionnaire a few days later, which I will also ignore. But I did take the time to annotate the second notice for your amusement:

This is in keeping with my non-compliance with the desires of the census snoops in 2000 and 2010, as I relate here and here. The reason for my non-compliance is given in the post at the first link:

[T]he Constitution mandates the census, for the purpose of apportioning membership in the House of Representatives among the States. And it says in the Constitution that “the actual Enumeration . . . shall be made . . . in such Manner as they shall by Law direct.” But the operative word is “enumeration.” It follows that Congress’s power to direct the “manner” of the enumeration is restricted to such matters as when and at what cost the enumeration shall be made.

The census form (even the short one) has long since become intrusive and vastly overblown in relation to the constitutional purpose of the census. Now, as in 2000 and 2010, I refuse to violate the Constitution.

Namby-Pamby Conservatism

That’s what’s on display in a post by Rich Logis at The Federalist; for example:

[T]ens of thousands of political content creators live in fear that what they produce, whether on a commercial or personal level, will be subject to Big Tech’s arbitrary and baffling speech standards.

I am not looking to put tech companies out of business. What I am looking to do, and what I hope CMIC personalities will consider, is to leverage the free market principles our side claims to hold so dear. There is an untapped opportunity for those who have built immensely visible and influential brands within the CMIC to operate as their own YouTube, where freedom of speech and opinions will thrive, rather than be subjugated to authoritarian-minded arbitration.

I have tried several of the “conservative”* alternatives to Facebook, etc., and they are laughably amateurish. But putting that aside, the possibility that “conservative”* alternatives might eventually become widely known and used doesn’t excuse what amounts to state-sponsored censorship by Big Tech. It is a grave mistake to condone such censorship by erroneously invoking the First Amendment.

Big Tech must be brought to heel before, like public schooling, it becomes an ineradicable instrument of leftist indoctrination.
__________
* “Sneer quotes” because the sites that I’ve tried are intellectually incoherent.

Empty Desk, Empty Mind?

That’s the implication of a quotation erroneously attributed to Einstein (as Bill Vallicella notes):

If a cluttered desk is a sign of a cluttered mind, of what, then, is an empty desk a sign?

Clever, regardless of who said it, but too clever by half. A cluttered desk isn’t necessarily a sign of a cluttered mind; a person with an orderly mind may have a cluttered desk and still be able to quickly retrieve from the clutter whatever item he needs. An empty desk is a sign of a person who likes order (neatness, symmetry), which usually reflects an orderly mind.

Therefore:

A cluttered desk may be a sign of an orderly mind; an empty desk is almost surely a sign of an orderly mind.