Bush won 30 States and 271 electoral votes in 2000, while winning a minority of the two-party popular vote. For that fact, Republicans have been blessing the Electoral College.

Although Bush did better in 2004 — winning 31 States and 286 electoral votes — Republicans can see how Bush might nevertheless have lost, even while “winning” by more than 3 million popular votes. Kerry could have walked off with an electoral-vote victory simply (?) by rolling up another few hundred thousand popular votes in the right places: Ohio, by itself, or Colorado, Iowa, and New Mexico, altogether.

In sum, Kerry came fairly close to trumping Bush’s feat of four years earlier. But before Republicans panic and jump on the bandwagon to abolish the Electoral College, they should consider two reasons for keeping it.

The most obvious, and oft-cited, reason is that the existence of the College narrows the scope for decisive electoral fraud to those “battleground” States whose electoral votes might tip the balance in a close election. Deciding presidential elections by the popular-vote count is an invitation to fraud in every precinct in the land.

A less obvious, but — to me — equally compelling reason is that the abolition of the College would encourage more voters to vote. Think of all those abstaining Republicans in places like Massachusetts and New York and all those abstaining Democrats in places like Texas and Utah. Why do they abstain? Because they know that their votes won’t make a difference. Many of the abstainers would vote if they thought their votes might affect the outcome. But the act of voting might also lead them to expect something in return from the federal government: prayer in public schools, less gun control, more gun control, a ban on gay marriage, support of gay marriage, and on and on. In other words, they would swell the ranks of those who have a stake in the centralization of political power. That’s the last thing we need.

Contain electoral fraud, contain mobocracy — retain the Electoral College.

AP reports, via Yahoo! News:

The Illinois Supreme Court threw out two lawsuits accusing gunmakers of knowingly letting weapons fall into the hands of gang members and other criminals, ruling Thursday that the manufacturers cannot legally be blamed for street violence.

Both rulings were unanimous, but five of the seven justices were so disturbed by allegations raised in the case that they wrote a separate opinion urging the Legislature to create tougher gun regulations….

Chicago’s lawsuit cited a sting in which undercover officers bought guns at suburban shops even after plainly telling the sellers that they were gang members, buying them for gang members, or taking them to Chicago, where handguns are banned.

“Allegations about defendants’ conduct, if true, suggest that defendants were not only aware that their products were used by third parties for criminal acts, but the defendants affirmatively sought to increase their profit by pandering to that market,” the five justices said in their concurring, separate opinion…

Okay, gun manufacturers have no liability for crimes committed with guns. That’s the good news.

But why can’t gun sellers be charged with criminal conduct for knowingly selling guns that will be used for criminal purposes? Seems simple to me. What’s the catch?

I have written before about mandatory mental screening, which still looms as a threat to replace parenting with something like state-sponsored thought control. Here’s the issue, according to a report at NewsMax:

…

By way of background: in April 2002, President George W. Bush created the New Freedom Commission on Mental Health. Its objective was to enhance mental health services to those in need.

Among other things, the commission concluded that there is a need to search for mental disorders – especially in children – and the best way to do this was with mandatory mental health screening for everyone, starting with preschoolers.

According to the Commission’s 2003 report: “Quality screening and early intervention should occur in readily accessible, low-stigma settings, such as primary health care facilities and schools.”

The report goes on to say: “…the extent, severity, and far-reaching consequences make it imperative that our Nation adopt a comprehensive, systemic approach to improving the mental health status of children.”

However, critics of the plan suggest that the random testing of millions of people makes little sense to anyone but the drug companies that will stand to profit from the potential customers.

The New Freedom Commission’s proposed treatment programs are based on the Texas Medication Algorithm Project (TMAP). TMAP, which was first used in Texas in 1996 and has since expanded to other states, is a set of very specific medication recommendations – most of them new, expensive, psychotropic drugs.

Despite the criticisms, the White House has remained solid behind the testing initiative, noting that the commission found that schools are in a “key position” to influence the phenomena of young children being “expelled from preschools and childcare facilities for severely disruptive behaviors and emotional disorders.”

But detractors are just as adamant that “problem” children in schools are readily identifiable, making the universal testing an unnecessary tool that does nothing but infringe on a parent’s right to make decisions regarding their child’s welfare.

Yes, and what many “problem” children need is a good swat or two, not a pill. Simplistic? Somewhat, perhaps, but there were far fewer problem children (and problem adults) in the days when giving a kid good swat or two wouldn’t land the swatter in jail.

(Thanks to my daugher-in-law for the tip.)

From Reuters, via Yahoo! News:

U.S. Justice Allows Challengers at Ohio Polls

By James Vicini

WASHINGTON (Reuters) – U.S. Supreme Court Justice John Paul Stevens (news – web sites) Tuesday allowed Republicans to challenge voter qualifications at the polls in Ohio, a key battleground state that could determine the presidential election.

Stevens acted on an emergency request shortly before polls opened in Ohio and across the nation. He refused to set aside a U.S. appeals court order that allowed political parties to send challengers to polling places across the state….

I’m breaking away from election-related posting to touch briefly on a subject close to my heart: the unconstitutionality of Social Security. The Social Security Administration tells us this:

Three Social Security cases made their way to the Supreme Court during its October 1936 term. One challenged the old-age insurance program (Helvering vs. Davis) and two challenged the unemployment compensation program of the Social Security Act. The Court would issue rulings on all three on the same day.

Helvering vs. Davis:

George P. Davis was a minor stockholder in the Edison Electric Illuminating Company. Edison, like every industrial employer in the nation, was readying itself to start paying the employers’ share of the payroll tax in January 1937. Mr. Davis objected to this arguing that by making this expenditure Edison was robbing him of part of his equity, so he sued Edison to prevent their compliance with the Social Security Act. The government intervened on Edison’s behalf and the Commissioner of the IRS (Mr. Helvering) took on the lawsuit.

The attorneys for Davis argued that the payroll tax was a new type of tax not listed in the Constitution’s tally of taxes, and so it was unconstitutional. At one point they even introduced into their argument the definitions of “taxes” from dictionaries in 1788 (the year before the Constitution was ratified) to prove how earnest they were in the belief that powers not explicitly granted in 1789 could not be created in 1935. Davis was also of the view that providing for the general welfare of the aged was a power reserved to the states. The government argued that this was too inflexible an interpretation of the powers granted to Congress, and (loosely) that if the country could not expand the interpretation of the Constitution as it stood in 1789 progress would be impossible and it would still be 1789.

Steward Machine Company:

In the Steward Machine Company case the unemployment compensation provisions of the Act were disputed. The Company dutifully paid its first unemployment tax installment ($46.14) and then sued the government to recover the payment, claiming the Social Security Act was unconstitutional. Steward made the same as points as Davis about the meaning of the word “tax,” and argued in addition that the unemployment compensation program could not qualify as “providing for the general welfare.”

Carmichael vs. Southern Coal & Coke Co. and Gulf States Paper:

This was also a case disputing the validity of the unemployment compensation program. In this variation the companies were challenging the state portion of the federal/state arrangement. Unwilling to pay their share of state unemployment compensation taxes the two companies sued the state of Alabama declaring that it was the Social Security Act, which they deemed unconstitutional, that gave Alabama its authority to tax them in this way and since they believed the Act to be invalid, they did not have to pay the tax. Alabama differed. It was again the same issues as in the two prior cases.

Mr. Justice Cardozo for the Court-

On May 24, 1937 the Supreme Court handed down its decision in the three cases. Justice Cardozo wrote the majority opinion in the first two cases….

Mirroring the situation in Congress when the legislation was considered, the old-age insurance program met relatively little disagreement. The Court ruled 7 to 2 in support of the old-age insurance program. And even though two Justices disagreed with the decision, no separate dissents were authored. The unemployment compensation provisions, by contrast, were hotly disputed within the Court, just as they had been the focus of most of the debate in Congress. The Court ruled 5 to 4 in support of the unemployment compensation provisions, and three of the Justices felt compelled to author separate dissents in the Steward Machine case and one Justice did so in the Southern Coal & Coke case.

Justice Cardozo wrote the opinions in Helvering vs. Davis and Steward Machine. After giving the 1788 dictionary the consideration he thought it deserved, he made clear the Court’s view on the scope of the government’s spending authority: “There have been statesman in our history who have stood for other views. . .We will not resurrect the contest. It is now settled by decision. The conception of the spending power advocated by Hamilton . . .has prevailed over that of Madison. . .” Arguing that the unemployment compensation program provided for the general welfare, Cardozo observed: “. . .there is need to remind ourselves of facts as to the problem of unemployment that are now matters of common knowledge. . .the roll of the unemployed, itself formidable enough, was only a partial roll of the destitute or needy. The fact developed quickly that the states were unable to give the requisite relief. The problem had become national in area and dimensions. There was need of help from the nation if the people were not to starve. It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose [other] than the promotion of the general welfare.”

And finally, he extended the reasoning to the old-age insurance program: “The purge of nation-wide calamity that began in 1929 has taught us many lessons. . . Spreading from state to state, unemployment is an ill not particular but general, which may be checked, if Congress so determines, by the resources of the nation. . . But the ill is all one or at least not greatly different whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey’s end is near.”

With these cases decided, Justice Stone could then dispose of the third case in short order. “Together the two statutes now before us embody a cooperative legislative effort by state and national governments, for carrying out a public purpose common to both, which neither could fully achieve without the cooperation of the other. The Constitution does not prohibit such cooperation.”….

It is no coincidence that the Supreme Court reversed its record of opposition to the New Deal when faced with the certainty that Congress would approve Roosevelt’s court-packing plan and dilute the authority of the sitting justices. As SSA tells it:

Despite the intense controversy the court-packing plan provoked, and the divided loyalties it produced even among the President’s supporters, the legislation appeared headed for passage, when the Court itself made a sudden shift that took the wind out of the President’s sails. In March 1937, in a pivotal case, Justice Roberts unexpectedly changed his allegiance from the conservatives to the liberals, shifting the balance on the Court from 5-4 against to 5-4 in favor of most New Deal legislation. In the March case Justice Roberts voted to uphold a minimum wage law in Washington state just like the one he had earlier found to be unconstitutional in New York state. Two weeks later he voted to uphold the National Labor Relations Act, and in May he voted to uphold the Social Security Act. This sudden change in the Court’s center of gravity meant that the pressure on the New Deal’s supporters lessened and they felt free to oppose the President’s plan. This sudden switch by Justice Roberts was forever after referred to as “the switch in time that saved nine.”

In the end, the Court decided wrongly to legalize Social Security by invoking Hamilton’s supposedly looser view of the powers vested in Congress, and by improperly interpreting the “general welfare” clause.

Madison — the “Father of the Constitution” — had this to say about the general welfare in Federalist No. 41:

Some who have denied the necessity of the power of taxation [to the Federal government] have grounded a very fierce attack against the Constitution, on the language on 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….

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 or more common than first to use a general phrase, and then to explain and qualify by an enumeration of the 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 … what would have been thought of that assembly, if, attaching themselves to these general expressions and disregarding the specifications which limit their import, they had exercised an unlimited power of providing for the general welfare?…[quoted in testimony before Congress]

Was Hamilton of a different mind? Apparently not:

The Federalist Papers are one of our soundest guides to what the Constitution actually means. And in No. 84, Alexander Hamilton indirectly confirmed Madison’s point.

Hamilton argued that a bill of rights, which many were clamoring for, would be not only “unnecessary,” but “dangerous.” Since the federal government was given only a few specific powers, there was no need to add prohibitions: it was implicitly prohibited by the listed powers. If a proposed law — a relief act, for instance — wasn’t covered by any of these powers, it was ipso facto unconstitutional.

Adding a bill of rights, said Hamilton, would only confuse matters. It would imply, in many people’s minds, that the federal government was entitled to do anything it wasn’t positively forbidden to do, whereas the principle of the Constitution was that the federal government is forbidden to do anything it isn’t positively authorized to do.

Hamilton too posed some rhetorical questions: “For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?” Such a provision “would furnish, to men disposed to usurp, a plausible pretence for claiming that power” — that is, a power to regulate the press, short of actually shutting it down.

We now suffer from the sort of confusion Hamilton foresaw. But what interests me about his argument, for today’s purpose, is that he implicitly agreed with Madison about the narrow meaning of “general welfare.”

After all, if the phrase covered every power the federal government might choose to claim under it, the “general welfare” might be invoked to justify government control of the press for the sake of national security in time of war. For that matter, press control might be justified under “common defense.” Come to think of it, the broad reading of “general welfare” would logically include “common defense,” and to speak of “the common defense and general welfare of the United States” would be superfluous, since defense is presumably essential to the general welfare.

So Madison, Hamilton, and — more important — the people they were trying to persuade agreed: the Constitution conferred only a few specific powers on the federal government, all others being denied to it (as the Tenth Amendment would make plain).

Now we are embarked on a great mission to undo what Congress did so wrongly almost 70 years ago. The first step is to privatize Social Security. The next step is to abolish it. The ultimate step is to abolish Medicare and Medicaid. But one step at a time…as my father always said.

While the Supreme Court hears arguments about the death penalty for teen killers, Ohio dispatches one (from AP via Yahoo! News):

A teen killer who told the parole board that he regretted letting eyewitnesses survive was executed Wednesday for a shotgun murder during a $15 robbery.

And good riddance.

Ted Goertzel wants to believe that it doesn’t. In “Capital Punishment and Homicide: Sociological Realities and Econometric Illusions,” he asks and answers the question:

Does executing murderers cut the homicide rate or not? Comparative studies show there is no effect. Econometric models, in contrast, show a mixture of results. Why the difference? And which is the more reliable method?

His argument for comparative studies is simplistic, to say the least:

The first of the comparative studies of capital punishment was done by Thorsten Sellin in 1959. Sellin was a sociologist at the University of Pennsylvania and one of the pioneers of scientific criminology….

Sellin applied his combination of qualitative and quantitative methods in an exhaustive study of capital punishment in American states. He used every scrap of data that was available, together with his knowledge of the history, economy, and social structure of each state. He compared states to other states and examined changes in states over time. Every comparison he made led him to the “inevitable conclusion . . . that executions have no discernible effect on homicide rates”….

Sellin’s work has been replicated time and time again, as new data have become available, and all of the replications have confirmed his finding that capital punishment does not deter homicide (see Bailey and Peterson 1997, and Zimring and Hawkins 1986). These studies are an outstanding example of what statistician David Freedman (1991) calls “shoe leather” social research. The hard work is collecting the best available data, both quantitative and qualitative. Once the statistical data are collected, the analysis consists largely in displaying them in tables, graphs, and charts which are then interpreted in light of qualitative knowledge of the states in question. This research can be understood by people with only modest statistical background. This allows consumers of the research to make their own interpretations, drawing on their qualitative knowledge of the states in question.

This is laughable. You compile a bunch of data and display it in “tables, graphs, and charts which are then interpreted in light of qualitative knowledge of the states in question.” In other words, you see what you want to see, and scores of researchers who want to believe that capital punishment doesn’t deter homicide have simply squinted at their “tables, graphs, and charts” in just the right way, so that they could “prove” what they already believed. Qualitative, gut-feeling, ouija-board analysis — in Goertzel’s view — is superior to rigorous statistical analysis, which he pooh-poohs. Worse than that, he seems to pooh-pooh it without understanding it:

Econometricians inhabit the mythical land of Ceteris Paribus, a place where everything is constant except the variables they choose to write about. Ceteris Paribus has much in common with the mythical world of Flatland in Edwin Abbot’s (1884) classic fairy tale. In Flatland everything moves along straight lines, flat plains, or rectangular boxes. In Flatland, statistical averages become mathematical laws. For example, it is true that, on the average, tall people weigh more than short people. But, in the real world, not every tall person weighs more than a shorter one. In Flatland knowing someone’s height would be enough to tell you their precise weight, because both vary only on a straight line. In Flatland, if you plotted height and weight on a graph with height on one axis and weight on the other, all the points would fall on a straight line.

Of course, econometricians know that they don’t live in Flatland. But the mathematics works much better when they pretend they do. So they adjust the data in one way or another to make it straighter (often by converting it to logarithms). Then they qualify their remarks, saying “capital punishment deters homicide, ceteris paribus.” But when the real-world data diverge greatly from the straight lines of Flatland, this can lead to bizarre results.

They don’t adjust their data to make it “straighter,” they introduce relevant controlling variables, which cannot done in any way other than through econometric (multiple regression) analysis. Try looking at “tables, graphs, and charts” of comparative homicide data while mentally accounting for such factors as income, age, race, gender, and population density, and see what you come up with. Nothing at all, unless you choose to ignore those and other relevant factors. Goertzel is either stupid or he simply chooses to misrepresent multiple regression analysis.

Goertzel does acknowledge and discuss some econometric analyses, for the purpose of contrasting their results:

…Mocan and Gittings…concluded that each execution decreases the number of homicides by five or six while Dezhbaksh, Rubin, and Shepherd…argued that each execution deters eighteen murders. Cloninger and Marchesini…published a study finding that the Texas moratorium from March 1996 to April 1997 increased homicide rates, even though no increase can be seen in the graph….The moratorium simply increased homicide in comparison to what their econometric model said it would have otherwise been….[Exactly. That’s what econometric models do.]

Cloninger and Marchesini concede that “studies such as the present one that rely on inductive statistical analysis cannot prove a given hypothesis correct.” [That’s simply a standard scientific disclaimer, which Goertzel wouldn’t understand.] However, they argue that when a large number of such studies give the same result, this provides “robust evidence” which “causes any neutral observer pause.”…[But Goertzel isn’t a neutral observer, as you can tell.]

Econometricians often dismiss the kind of comparative research that Thorsten Sellin did as crude and unsophisticated when compared to their use of complex mathematical formulas. But mathematical complexity does not make for good social science. The goal of multiple regression is to convert messy sociological realities into math problems that can be resolved with the certainty of mathematical proof…[No, the goal is to take relevant factors into account.]

Enough of Goertzel. The econometric evidence is there, for those who are open to it: Capital punishment does deter homicide. See, for example, the careful analysis by Hashem Dezhbaksh, Paul Robin, and Joanna Shepherd, “Does capital punishment have a deterrent effect? New evidence from post-moratorium panel data,” American Law and Economics Review 5(2): 344–376 (available in PDF format here). Dezhbaksh, Rubin, and Shepherd argue that each execution deters eighteen murders. That number may be high, but the analysis is rigorous and it accounts for relevant variables, such as income, age, race, gender, population density, and use of the death penalty where it is legal. It’s hard to read that analysis and believe that capital punishment doesn’t deter homicide — unless you want to believe it. I certainly wouldn’t take “Ouija Board” Goertzel’s opinion over that of careful econometricians like Dezhbaksh, Rubin, and Shepherd.

Now, I must say that I don’t care whether or not capital punishment deters homicide. Capital punishment is the capstone of a system of justice that used to work quite well in this country because it was certain and harsh. There must be a hierarchy of certain penalties for crime, and that hierarchy must culminate in the ultimate penalty if criminals and potential criminals are to believe that crime will be punished. When punishment is made less severe and less certain — as it was for a long time after World War II — crime flourishes and law-abiding citizens become less secure in their lives and property.

Related posts:
Libertarian Twaddle about the Death Penalty
Crime and Punishment
Abortion and Crime
Saving the Innocent?
Saving the Innocent?: Part II
More on Abortion and Crime
More Punishment Means Less Crime
More About Crime and Punishment
More Punishment Means Less Crime: A Footnote
Clear Thinking about the Death Penalty
Let the Punishment Fit the Crime
Another Argument for the Death Penalty
Less Punishment Means More Crime
Crime, Explained