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.

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:

How Do We Know What is An “Activity” for Commerce Clause Purposes?
Orin Kerr • December 2, 2010 6:14 pm

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.

Continue reading “The Unconstitutionality of the Individual Mandate” →

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:

Only individuals choose.
The study of the market order is fundamentally about exchange behavior and the institutions within which exchanges take place.
The “facts” of the social sciences are what people believe and think.
Utility and costs are subjective.
The price system economizes on the information that people need to process in making their decisions.
Private property in the means of production is a necessary condition for rational economic calculation.
The competitive market is a process of entrepreneurial discovery.
Money is nonneutral.
The capital structure consists of heterogeneous goods that have multispecific uses that must be aligned.
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 “Are You an Austrian?” →

“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?

Pseudo-Libertarian Sophistry vs. True Libertarianism

In “Our Enemy, the State,” I explain that economic behavior is just an aspect of social behavior. The long-standing treatment of economics as a statistical-mathematical phenomenon exemplifies the rationalism that dominates “learned” discourse. It is my sad duty to report that “liberals” do not hold a monopoly on rationalism.

A rationalist, as Michael Oakeshott explains,

never doubts the power of his ‘reason … to determine the worth of a thing, the truth of an opinion or the propriety of an action. Moreover, he is fortified by a belief in a ‘reason’ common to all mankind, a common power of rational consideration….

… And having cut himself off from the traditional knowledge of his society, and denied the value of any education more extensive than a training in a technique of analysis, he is apt to attribute to mankind a necessary inexperience in all the critical moments of life, and if he were more self-critical he might begin to wonder how the race had ever succeeded in surviving. (“Rationalism in Politics,” pp. 5-7, as republished in Rationalism in Politics and Other Essays)

Thomas Sowell puts it this way:

One of the things intellectuals [his rationalists] have been doing for a long time is loosening the bonds that hold a society [or a nation] 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, have long been treated as suspect or detrimental by the intelligentsia….

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 has ever met or is likely to meet. (Intellectuals and Society, pp. 303, 305)

Sowell’s attack is aimed at left-wing intellectuals, but it could just as well be aimed at pseudo-libertarian sophists.

Nowhere is the rationalist mindset more evident than in a contribution by “libertarian” Brink Lindsey to a Reason debate, “Where Do Libertarians Belong?” Lindsey argues that libertarians — as he defines them — should once and for all back away from Republicans and conservatives:

[A] clear-eyed look at conservatism as a whole reveals a political movement with no realistic potential for advancing individual freedom. The contemporary right is so deeply under the sway of its most illiberal impulses that they now define what it means to be a conservative.

What are those impulses?

First and foremost, a raving, anti-intellectual populism, as expressed by (among many, many others) Sarah Palin and Glenn Beck. Next, a brutish nationalism, as expressed in anti-immigrant xenophobia (most recently on display in Arizona) and it’s-always-1938-somewhere jingoism. And, less obvious now but always lurking in the background, a dogmatic religiosity, as expressed in homophobia, creationism, and extremism on beginning- and end-of-life issues. The combined result is a right-wing identity politics that feeds on the red meat of us versus them, “Real America” versus the liberal-dominated coasts, faith and gut instinct versus pointy-headed elitism.

Lindsey, in his next (metaphorical) breath, confirms his identity as a pointy-headed elitist and a rationalist, to boot:

This noxious stew of reaction and ressentiment is the antithesis of libertarianism. The spirit of freedom is cosmopolitan. It is committed to secularism in political discourse, whatever religious views people might hold privately. And it coolly upholds reason against the swirl of interests and passions. History is full of ironies and surprises, but there is no rational basis for expecting an outlook as benighted as the contemporary right’s to produce policy results that libertarians can cheer about.

And yet, just a few paragraphs earlier, Lindsey was cheering:

Without a doubt, libertarians should be happy that the Democrats’ power grabs have met with such vociferous opposition. Anything that can stop this dash toward dirigisme, or at least slow it down, is a good thing. Seldom has there been a better time to stand athwart history and yell “Stop!” So we should rejoice that at least some conservatives haven’t forgotten their signature move.

To put it baldly, Lindsey wants to piggy-back on conservatism’s renewed resistance to big government, but he wants to be sure that no one mistakes him for a Palin-esque, Beck-ish kind of conservative. Have no fear on that score, Mr. Lindsey, for you are not even a libertarian worthy of the name. You have revealed yourself as a politically correct, pseudo-libertarian, thought-nazi.

Is it not a tenet of libertarianism that people ought to be free to speak their minds, so that their listeners can make up their own minds about the issues under discussion? Why then, should anyone — libertarian or otherwise — stifle his views about religion and matters related thereto? In order to save you the embarrassment of hearing about things you don’t want to hear about? How libertarian of you!

Let us examine the robustness of Lindsey’s objections to the Palin-esque, Beck-ish side of conservatism:

“a raving, anti-intellectual populism” — I don’t know about the “raving,” but if it is anti-intellectual to resist and criticize the emissions of the leftist-dominated academy, the leading lights of which have resulted in the bloodless near-victory of communism, anti-intellectualism in the defense of liberty is no vice.

“a brutish nationalism, as expressed in anti-immigrant xenophobia (most recently on display in Arizona)” — If it is “nationalistic” to oppose illegal immigration and its consequences for the safety and tax burdens of citizens, let nationalism reign. Lindsey, like too many libertarians, wants a borderless world because he imagines that liberty is something that just happens, absent the protection of a limited government. It would surprise Lindsey and his ilk to learn that many Americans cling to “nationalism” precisely because they prize liberty and wish to preserve what little of it has been left to them.

“it’s-always-1938-somewhere jingoism” — Here’s another pseudo-libertarian theme: Only war-mongers prepare for war. Well, it was “1938” in 1941, when Japanese forces attacked Pearl Harbor, encouraged by vocal isolationism and lac of preparedness on the part of the U.S.; in 1950, when Truman’s foreign policy invited North Korea to invade South Korea; in 1961, when JFK’s withdrawal of support for the anti-communist invasion of Cuba led to the installation there of Soviet missiles aimed at the U.S.; in 1979, when Iran’s radical Islamic regime took Americans hostage, knowing Jimmy Carter’s fecklessness; in 1993, when the bombing of the World Trade Center by terrorists was treated as a criminal matter and not as a hostile attack on the U.S.; in 2001, when the official U.S. response to the WTC bombing and other terrorist attacks emboldened Osama bin Laden.

“dogmatic religiosity, as expressed in homophobia, creationism, and extremism on beginning- and end-of-life issues” — I wonder if, in Lindsey’s brave new world of pure libertarianism, there would be any room for religion or the public expression of religious views. I wonder if he understands that the enforcement of “gay rights,” will most assuredly lead to the denial of the right of conscience, as has been the case with contraception and abortion. I wonder if he truly believes that it is “extreme” to defend life against arbitrary termination. Or should we leave our fate in the hands of the very kind of irreligious leftists that have brought about the near-victory of communism and who are itching to make the world (or at least the U.S.) safe for genetic cleansing through late-term abortion, post-term abortion (i.e., infanticide), genetic engineering, and death panels (i.e., single-payer health care)?

Then there is Lindsey’s charge that

[m]odern conservatism has always had an illiberal dark side. Recall the first great populist spasms of the postwar right—McCarthyism and opposition to desegregation—and recall as well that National Review founder William F. Buckley stoutly defended both.

“McCarthyism” may have been excessive in its methods, but it was aimed in the right direction: the identification of a threat to Americans and their liberty. After all, to the Lindseys’ of this world, there are no threats, just the dire imaginings of those “jingos” for whom it’s always 1938. Inconveniently, for that point of view, the information unveiled by the Venona project

show[s] that the US and other nations were targeted in major espionage campaigns by the Soviet Union as early as 1942. Among those identified are Julius and Ethel Rosenberg; Alger Hiss; Harry Dexter White,^[18] the second-highest official in the Treasury Department; Lauchlin Currie,^[19] a personal aide to Franklin Roosevelt; and Maurice Halperin,^[20] a section head in the Office of Strategic Services.

As for segregation, it is anti-libertarian when it is a government-ordered way of conducting one’s life and business. But segregation as a fact of life is just that, and nothing more. Lindsey practices a kind of segregation when he distances himself from Republicans and rightists. And, like the rest of us, he probably practices other kinds of segregation with respect to where he lives and with whom he associates.

Desegregation, properly carried out, removes the influence of government and renders it neutral with respect to race. But desegregation is neither neutral nor libertarian when it is used as an excuse for depriving persons of liberty by denying their freedom of association, freedom to work, and property rights. Is it any wonder that conservatives opposed the way government went about desegregation?

It’s interesting that Lindsey should point to what he calls the “illiberal dark side” of modern conservatism. Perhaps there’s a bit of projection at work there; in the next paragraph he recalls with fondness the “good old days” of censorship by the media cartel:

To be visible at all in the nation’s public debate, conservatism was forced to rely on intellectual champions whose sheer brilliance and sophistication caused the liberal gatekeepers in mass media to deem them suitable for polite company. People such as Buckley, George Will, and Milton Friedman thus became the public face of conservative ideology, while the rabble-rousers and conspiracy theorists were consigned to the shadow world of mimeographs, pamphlets, and paperbacks that nobody ever reviewed.

How “liberal” of you, Mr. Lindsey! It was all right for “liberal gatekeepers” — many of them beholden to the FCC — to inundate the unwashed with their left-wing views, as long as they kept those same unwashed from hearing conservatives of whom you disapprove. Perhaps you would like the federal government to suppress right-wing talk radio and equivalent web sites. Would you then find public discourse sufficiently civilized?

I have encountered Lindsey’s type before. It is left-libertarian, which is to say not libertarian at all. A left-libertarian wants “liberty,” but only if it yields outcomes favorable to certain groups, and to hell with the liberty and property rights of others. Theirs is a dangerous flirtation with political correctness (PCness), which includes unblinking support of open borders, head-in-the-sand opposition to defense spending, “gay rights,” and premature infanticide. (In what follows, I borrow heavily from an old post.)

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.

Pseudo-libertarianism — as it is found in the writings of Brink Lindsey, Will Wilkinson, Roderick Long, and Steven Horwitz (among others) — is no better than any other kind of rationalism. It simply posits a sterile, abstract standard of conduct — one that has nothing to do with the workaday world of humanity — and finds wanting everyone but those who pay lip-service to that standard of conduct.

That is not libertarianism. It is sophomoric dream-spinning.

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.

It is fitting and proper to close this post with my version of Russel Kirk’s six “canons” of conservatism (summarized here):

Belief that political problems, at bottom, are religious and moral problems.
Affection for the proliferating variety and mystery of traditional life, as distinguished from the narrowing uniformity and egalitarian and utilitarian aims of most radical systems.
Conviction that civilized society requires order.
Persuasion that property and freedom are inseparably connected, and that economic leveling is not economic progress.
Faith in traditional mores and distrust of “sophisters and calculators.” Tradition and sound prejudice provide checks upon man’s anarchic impulse.
Recognition that change and reform are not identical.

The Federal Pay Freeze

BHO supports a measure that would freeze the pay of federal employees for two years. That won’t do much to trim the deficit, but it might do some good things for the economy:

First, it would drive some competent federal employees into the private sector, where they would produce real things instead of messing around with the people and businesses who do.

Second, a freeze would slow the transfer of resources from people who do productive things in the private sector to people who do unproductive and counterproductive things in the public sector. If there were such a thing as social justice, that would be an example of it.

The next best thing would be to freeze the pay of civilian federal employees until their quit rate rises to the quit rate in the private sector. Then, pay parity will have been achieved.

After that? Get serious and eliminate all federal departments that perform unconstitutional functions, that is, most of them. Now we’re talking real money.

Our Enemy, the State

I have written much about the economic and social damage wrought by state action. In this post, I step back from particular instances of state action to explain, in general terms, how it damages the economic and social infrastructure that it is supposed to protect, in a so-called free nation.

I begin with tutorials about economic and social behavior and their intertwining. When I have laid that groundwork, I explain the destructiveness of state action when it goes beyond the protection of life, liberty, and property.

ECONOMIC BEHAVIOR AND “ECONOMICS”

There is more to economic behavior than production and exchange, at arm’s length. But it is those aspects of economic behavior that usually come to mind when one refers to “economics.” In the narrow view, economic behavior has five facets:

Buyers allocate their disposable (after-tax) incomes among various goods (products and services, including forms of saving), according to their individual tastes and preferences, which are influenced by many things (e.g., socioeconomic status, family status, and cultural heritage).

Sellers choose the quantities and prices of goods that they offer to buyers, given the factors that affect their production costs and possibilities (e.g., resource prices, innovation, government intervention).

Buyers and sellers act — through the mechanism known as “the market,” which usually is not a physical place — to determine the mix of goods that changes hands.

The mix of goods exchanged varies across time, as tastes and preferences change; goods change because of invention, innovation, and variations in resource prices; and government intervention varies in type and intensity (usually waxing rather than waning).

The general level of goods exchanged — as measured roughly by their aggregate monetary value — is affected by the foregoing.

All of these actions occur simultaneously and dynamically.

Aggregation has no validity unless it is grounded in an understanding and valid description of the disaggregated behavior of buyers and sellers. Even then, aggregation fails to depict the totality of economic activity because (a) much of it is unmeasured (e.g., so-called household production); (b) not all activity moves in the same direction at the same time; (c) tastes, preferences, and production possibilities are constantly changing; and, most importantly, (d) there is no valid way of aggregating the satisfaction, pleasure, happiness, or utility (call it what you will) that the fruits of economic activity impart to the unique individuals who partake of it.

In any event, the underlying characteristic of economic behavior is its transactional nature. Two or more parties agree to exchange things (goods, money, other stores of value) in an effort by each party to gain satisfaction, pleasure, happiness, or utility (call it what you will). Transactional behavior is a manifestation of social behavior, in that it is cooperative.

ECONOMIC BEHAVIOR AS SOCIAL BEHAVIOR

The kinds of economic behavior listed above typically are studied as “economics,” which — until recent decades — was limited mainly to the explicit exchange of goods for goods or goods for money. But such transactions are not the whole of economic behavior, and are far from the whole of social behavior.

Some kinds of transactional behavior are considered deeply personal — and they are deeply personal — but they involve exchange, nonetheless. One such behavior is friendship; another is sex; a third is loyalty:

Friendship is mutual, so its economic nature should need no explanation.

So is sex mutual, when it is consensual. It may be given for many reasons other than monetary gain, but its essential character is transactional: parties giving each other pleasure.

Loyalty arises from a kind of tacit exchange; that is, loyalty-inducing acts yield loyalty, which can be drawn upon (or not) at the behest of the person who commits loyalty-inducing acts. Loyalty may accompany friendship, but it also may exist apart from friendship.

These and other kinds of “personal” acts are not usually considered to be economic in nature, for three reasons: (a) the medium of exchange is far removed from money (or anything like it); (b) the transactions are so idiosyncratic as to defy the usual statistical-mathematical reductionism of economics; and (c) the transactions are far removed in character from, say, the buying and selling of potatoes.

The distinction between economic and social behavior has almost vanished in recent decades, with the rise of behavioral economics. This brand of economics focuses on the psychological determinants of economic behavior. There is much research and speculation about how and why individuals choose as they do, not only in the spending of money but also it other, more “personal,” types of social interaction.

Formal economics aside, the essential character of economic behavior is, as I have said, transactional. Economic transactions — even those that are deeply personal — are cooperative. But not all social behavior is transactional. In that subtle distinction lies the difference between economic behavior and “pure” social behavior.

“PURE” SOCIAL BEHAVIOR

What is “pure” social behavior? A good example can be found in religion. Certainly, religion has transactional aspects, as in the “giving” of one’s belief in the hope of a heavenly afterlife. But religion, for billions of persons, is much more than that. So is sex in a loving marriage. So friendship can be.

What is this deeper aspect of “pure,” non-transactional (non-economic) social behavior? It is rooted in the capacity of humans for self-generated emotional satisfaction. This can manifest itself as a uni-directional attachment to another person or being, an attachment that does not depend on the actions of its subject. A mundane but not all-encompassing term for it is “unconditional love.” A perhaps more apt term is “needing to belong” to someone or something.

A uni-directional attachment becomes a “pure” social relationship when individuals join to celebrate an attachment in common. To offer a short list of examples, the attachment may be to a family (nuclear or extended) as a family, apart from mutual attachments between individuals; religion; club; patriotic organization; or even a neighborhood, where the attachment is to the neighborhood itself, instead of or in addition to neighborly friendships. Membership in such organizations — the feeling of belonging to something “bigger” than oneself — can complement and heighten the underlying uni-directional attachment felt by each member.

POLITICS

Politics, as I use the term here, is simply an aspect of social behavior. It is the working out of the rules (signals, customs, taboos) and roles that individuals will follow and adopt in transactional and “pure” social relationships. Some rules may be confined to particular relationships; others may spread widely through emulation and necessity. Necessity arises when there is a network of transactional and “pure” social relationships that comprises disparate local sub-groups. Common rules, in such a case, help to ensure that members are recognized, and that their behavior is consistent with the purpose of the social network.

Rules range from the use of secret handshakes (to signal membership in a particular organization) to shunning (as a signal that the target has been ejected from a particular social organization). In between, there are things like the religious symbolism (e.g., the way in which the Sign of the Cross is made), deportment (stiff upper lip, and all that), the use of drugs (or not), and myriad other tokens of membership in the overlapping social groupings that comprise humanity. Such groupings include the fraternity of individualists, who despite their individualism, share an allegiance to it and variations on themes that justify it.

Roles denote one’s standing in a social group. Roles are determined by rules and signaled by the observance of certain of them. The role of a wife in many cultures, for example, was (and remains) overt subservience to the edicts of the husband. Subservience is signaled by the observance of rules that include, for example, standing while the husband eats his meal, and eating only when he has finished. The extent to which a particular wife is truly subservient to her husband — bowing to his political judgments or, alternatively, influencing them — is a political matter that lies between them and depends very much on the individuals involved.

Here, I must digress about the difference between voluntarily evolved social distinctions and dominance by force. Busybodies are quick to adopt the view that outward signs of subservience — and similar social phenomena that seem to create classes of individuals — indicate the forceful imposition of rules and roles. Busybodies, in other words, cannot (or do not wish to) tell the difference between something as abhorrent as slavery and a time-honored rule or role that, by facilitating social behavior, saves time and effort and reduces the likelihood of conflict. The role of a busybody is to question and challenge everything that is not done the way he would do it; a busybody, in other words, is a person of limited empathy and imagination. (For more about the proper role of the state with respect to social behavior, see “The Principles of Actionable Harm.”)

THE INDIVISIBILITY OF SOCIAL AND ECONOMIC BEHAVIOR

Everything I have discussed to this point involves real politics: transactions for mutual benefit, within a framework of voluntarily evolved rules and roles, without the imposition or threat of force by the state.

For example, the dietary laws of Judaism, when observed strictly (as they are in certain sects) affect the kinds of foodstuffs that observant Jews will grow, raise, or buy. Those of us who are old enough to remember when the three top-selling makes of automobile in the U.S. were Ford, Chevrolet, and Plymouth will also remember that the choice of which to buy was (in certain socioeconomic circles and age groups) a sign of membership in a loose affiliation of kindred auto owners. More generally, the demand for certain kinds of clothing, electronic equipment, beverages, automobiles, and so on is determined to some extent by socioeconomic status and group membership. Outsiders may mimic insiders in an effort to increase their standing with peers, to signal an aspiration to belong to a certain group, or as a sign of membership in an auxiliary group (e.g., a fan club, or whatever it is called now).

Thus we have real politics as the lubricant of social behavior. And we have economic behavior as an aspect of social behavior.

There is nevertheless a widely held view that economic behavior is distinct from social behavior. But when the state taxes or regulates “economic” activity, it shapes and channels related “social” activity. For example, the family that pays 25 percent of its income in taxes is that much less able to join and support organizations of its choice, to own and exhibit tokens of its socioeconomic status, to afford better education for its children, and so on. The immediate rejoinder will be that nothing has been changed if everyone is affected equally. But because of the complexity of tax laws and regulations, everyone is not affected equally. Moreover, even if everyone were deprived equally of the same kind of thing — a superior education, say — everyone would be that much worse off by having been deprived of opportunities to acquire remunerative knowledge and skills, productive relationships, and mental stimulation. Similarly, everyone would be that much worse off by being less well clothed, less well housed, and so on. Taxes and regulations, even if they could be applied in some absolutely neutral way (which they can’t be), have an inevitably deleterious effect on individuals.

In sum, there is no dividing line between economic and social behavior. What we call social and economic behavior are indivisible aspects of human striving to fulfill wants, both material and spiritual. The attempt to isolate and restrict one type of behavior is futile. It is all social behavior.

“POWER POLITICS”: OR, ENTER THE STATE

The activity that we usually call “politics” is not politics at all. Real politics, as I have said, is the voluntary working out of rules and roles, in the context of social behavior, which encompasses so-called economic behavior. With voice and exit, those who are unhappy with their lot can try to persuade the other members of their voluntary association to adopt different rules. If they fail, they can choose a more congenial social set (if one is available to them), which may involve moving to a different place. The ability to “vote with one’s feet” is an instrument of persuasion, as well, for it signals the group that one leaves (or credibly threatens to leave) of a defect that may cause others to leave, thus endangering the attainment of the group’s common objective.

What we usually call “politics” is entirely different from true politics. I call it “power politics.” It amounts to this:

A state is established, either by force alone or through a combination of consent, by limited to certain social and/or interest groups, and force, imposed on dissenting and uninvolved persons.

The state enjoys a monopoly of force, which it may — in the beginning, at least — apply to limited purposes, usually the defense of its citizens from aggression, intimidation, fraud, and theft.

There is a constant struggle for control of the state, either by force or by the kind of “politics” endemic to the state. The “politics” amounts to non-violent contests between and among various social and/or interest groups. The contests are conducted according to formal rules established under the aegis of the state, not a working-out of a modus vivendi in the normal course of real politics.

Control of the state enables the winners to override the rules that arise voluntarily through social cooperation. Rules imposed by the state come in the form of statutes, regulations, executive orders, judicial decrees, and administrative decisions (which may take a life of their own).

The effects of the various statutes, etc., are long-lasting because they often are not repealed when power changes hands. Instead, they remain in place, with the result that state power accrues and expands, while — as a result — the scope of social behavior shrinks and becomes less potent.

In other words, power in the hands of the state — and those who control it — is anti-social. Acts of the state are not acts of “society” or “community.” Those terms properly refer to consenting relationships among individuals — relationships that are shaped by real politics.

The state, in its ideal form, upholds and defends “society” and “community.” But when it oversteps its legitimate bounds, it commits the very acts of aggression, intimidation, fraud, and theft that it is supposed to deter and prevent. Moreover, it undoes the fabric of “society” and “community” by unraveling the voluntarily evolved social rules that bind them and guide them in peaceful cooperation.

A Modest (Passenger-Screening) Proposal

It seems that TSA allows some government officials to skip airport security. That’s fair enough; they’re probably trustworthy individuals, even if I wouldn’t want to have a beer with them or invite them to my home.

In their trustworthiness lies the solution to the screening brouhaha. Well, almost. Democrats aren’t trustworthy because they hang out with the likes of Bill Ayers and Jeremiah Wright. (Belated repudiations don’t count.)

So, let’s start with high-ranking Republican officials. A good place to start would be with the 290 or so Republican members of the next Congress, the one that will convene in January. Let’s allow each of them to name 20 other trustworthy U.S. citizens. Assuming a duplication rate of 50 percent, the net result would be a list of 2,900 trustworthy persons (290 x 10). If each of them names 20 other trustworthy persons (of whom half are duplicates), the next round produces a list of 29,000 persons. The next round produces 290,000; the next, 2,900,000; and the next 29,000,000.

If, along the way, some of the Republicans name Democrats who are trustworthy — which is possible, I suppose — the next round would bring the total to 290,000,000 trustworthy persons. That’s certainly more than the number of U.S. citizens who would want to fly on a commercial aircraft.

So, in a matter of seven rounds, which should take only a few months to complete, TSA could have a list of all the citizens who don’t need to be screened for flights leaving the U.S. or bound for the U.S. Everyone else (in the U.S. or abroad) would have to endure a body scan, pat-down, or whatever else TSA can dream up to make them uncomfortable. Foreign-based flights wouldn’t be allowed to land in the U.S. unless passengers not on the trustworthy list are screened under TSA supervision.

P.S. To ensure that individuals give some thought to the trustworthiness of the persons they name, there would be a harsh penalty attached to the naming of a person who commits, or tries to commit, a terrorist act on an airplane or in an airport. The penalty? The prominent publication via the internet of the irresponsible person’s body scan — front, sides, and back — accompanied by the person’s mug shot and home address.

Is Jeter Worth It?

Rumor has it that the Yankees have offered Derek Jeter a three-year contract worth $45 million. The annual rate of $15 million would be a comedown from Jeter’s 2010 pay of $22.6 million (source), but in terms of on-field performance, Jeter would be grossly overpaid. And he wants to be more grossly overpaid, of course.

Let’s look at Jeter’s value to the Yankees since 1996, the first year for which his salary is known:

				OPS+ per
Year	Age	OPS+	Salary	$10 mn
1996	22	101	$130,000	0.07769
1997	23	103	$550,000	0.01873
1998	24	127	$750,000	0.01693
1999	25	153	$5,000,000	0.00306
2000	26	128	$10,000,000	0.00128
2001	27	123	$12,600,000	0.00098
2002	28	111	$14,600,000	0.00076
2003	29	125	$15,600,000	0.00080
2004	30	114	$18,600,000	0.00061
2005	31	125	$19,600,000	0.00064
2006	32	132	$20,600,000	0.00064
2007	33	121	$21,600,000	0.00056
2008	34	102	$21,600,000	0.00047
2009	35	125	$21,600,000	0.00058
2010	36	90	$22,600,000	0.00040

		119	$205,430,000	0.00087

OPS+ is a measure of offensive performance. It is on-base percentage plus slugging average (OPS) adjusted for year and ballpark. An OPS+ of 100 represents the average for the league and year.

Jeter’s on-field value to the Yankees, as an offensive player, peaked in 1999, when his OPS+ reached a career-high 153. His OPS+ per $10 million of salary in that year was 0.00306. It has been all downhill since, both in terms of OPS+ (though there have been some good years since 1999) and OPS+ per $10 million of salary. The latter figure dwindled to 0.00040 in 2010, when Jeter’s OPS+ fell to 90, that is, 90 percent of the league average.

It is only reasonable to assume that Jeter’s productivity will decline further from its peak, even if he recovers somewhat from the 2010’s unusually weak performance. Even at $15 million per season, Jeter will be an over-priced commodity, given his likely on-field performance.

So, if Jeter is worth $15 million a year, or more, it’s only because of his leadership qualities (which can’t be measured) and his draw as a symbol of Yankee greatness. I suspect that Jeter’s leadership qualities will not be enough to reverse the Yankees’ evident decline. Further, that decline will more than offset whatever value Jeter has at the box office.

I look forward, with sadness, to some relatively lean years in the Bronx, and to buyer’s remorse on the part of the Yankees if they settle with Jeter for much more than $15 million a season.

More about the Quality of Films

In “The Quality of Films over the Decades,” I compare my ratings of 1,900-plus feature films with the ratings given those same films by IMDb users:

An obvious reason for the difference is that many IMDb users, unlike me, have a strong taste for films of the 1940s through the mid-1970s. I, on the other hand, generally prefer the films of 1932-1942 (the “Golden Age”) to what has been produced since. (My high marks for films of 1920-1931 are based on small samples, and should be ignored for purposes of this discussion.)

It is evident, however, that I am in step with IMDb users with regard to the average quality of films produced from 1975 to 1995. I am less enthusiastic than IMDb users about the output of the last 15 years. (The jump in my ratings for 2009-2010 reflects limited viewing.)

That I am selective in what I choose to view is born out by the following graph:

The blue bars denote the ratings given by IMDb viewers to some 113,000 feature films. The average rating assigned to all of those films is 5.8, in contrast with the 7.1 assigned by IMDb users to films I’ve rated (my average rating, 6.8). The distribution of the red and green bars, relative to the blue ones, attests to my selectivity in choosing films to watch.

It is the difference between the red bars and the green bars that I find most interesting. Because of my selective viewing habits, I have given ratings of 8, 9, or 10 to 13 percent of the films I’ve rated; whereas, IMDb users apply ratings of 8, 9, or 10 to less than 6 percent of the same features. The picture then changes. I am less generous with ratings between 5 and 7, and more willing to apply ratings below 5.

It gives me solace, for two reasons, to know that the average rating for all feature films at IMDb is only 5.8. First, it means that I haven’t missed much by being selective. Second, it means that the average viewer (at least the ones who rate films at IMDb) is willing and able (at least somewhat) to tell what’s good, what’s bad, and what’s indifferent.

Finally, there’s a good reason for being selective: It prevents a sad waste of time. If the average length of the 113,000 features rated at IMDb is 105 minutes (1.75 hours), it would take about 100 years (at five hours a day, five days a week) to watch every film all the way through. That’s a lot of popcorn.

The Body-Scan Brouhaha, Revised and Extended

Here.

The Body-Scan Brouhaha

REVISED AND EXTENDED 11/21/10

I am sympathetic to those who detest the thought — and intrusiveness — of body scans and pat-downs.

One solution — which has the ring of rationality — is to allow airlines to offer flights with varying degrees of preflight screening, and to price the flights accordingly. But that solution is unworkable; there just aren’t enough flights going to the same place at about the same time to afford the traveler a real choice for any particular trip.

It is evident that travelers are paying the price for political correctness, and that the price is getting too high for a lot of them. In a case like this, I take vociferous opposition by some travelers, together with the outraged outpourings of columnists and editorialists, as evidence that the silent majority is fed up. (See, for example, this, this, and this.) Now, the question is whether there will be enough outrage among members of Congress to put a stop to the foolishness and follow the lead of the Israelis.

On this issue, I blame Geogre W. Bush, who wanted to seem so even-handed toward Muslims that he wouldn’t overrule then-sectrary of transportation Norman Mineta’s anti-profiling policy. Once TSA’s screening policy headed in that direction, a Democrat administration certainly wasn’t about to reverse it.

The answer, it seems to me, is to adopt El Al’s way of doing things:

Passengers are asked to report three hours before departure. All El Al terminals around the world are closely monitored for security. There are plain-clothes agents and fully armed police or military personnel who patrol the premises for explosives, suspicious behavior, and other threats. Inside the terminal, passengers and their baggage are checked by a trained team. El Al security procedures require that all passengers be interviewed individually prior to boarding, allowing El Al staff to identify possible security threats. Passengers will be asked questions about where they are coming from, the reason for their trip, their job or occupation, and whether they have packed their bags themselves. The likelihood of potential terrorists remaining calm under such questioning is believed to be low (see microexpression).^[38]

At the check-in counter, passengers’ passports and tickets are closely examined. A ticket without a sticker from the security checkers will not be accepted. At passport control passengers’ names are checked against information from the FBI, Canadian Security Intelligence Service (CSIS), Scotland Yard, Shin Bet, and Interpol databases. Luggage is screened and sometimes hand searched. In addition, bags are put through a decompression chamber simulating pressures during flight that could trigger explosives.^[39] El Al is the only airline in the world that passes all luggage through such a chamber.^[40] Even at overseas airports, El Al security agents conduct all luggage searches personally, even if they are supervised by government or private security firms.^[41]

….

Critics of El Al note that its security checks on passengers include racial profiling^[51] and have argued that such profiling is unfair, irrational, and degrading to those subject to such screening. Supporters of El Al argue that there is nothing inherently racist about passenger profiling and that special scrutiny of Muslims may often be necessary for security purposes.

The alternative — which, I gather, libertarian purists would prefer — is to drop screening altogether because, after all, how much risk is there, really? Well, libertarian purists are the kind of people who would have us disarm because, after all, no one is threatening to invade the country, right?

When I get on an airplane, everyone else on that plan (except my wife) is a potential threat to me. I am willing to put up with security measures of the right kind. I am not willing to put up with unnecessarily intrusive measures, which are inflicted on me and most of my fellow travelers simply because “our” government refuses to focus on the source of the threat.

An Encounter with a Marxist

A post by David Henderson at EconLog reminds me of an exchange I had with a former neighbor, who is among a circle of acquaintances whom my wife and I occasionally join for dinner. In the post, Henderson quotes Robert Heilbroner:

Indeed, the creation of socialism as a new mode of production can properly be compared to the moral equivalent of war–war against the old order, in this case–and will need to amass and apply the power commensurate with the requirements of a massive war. This need not entail the exercise of command in an arbitrary or dictatorial fashion, but certainly it requires the curtailment of the central economic freedom of bourgeois society, namely the right of individuals to own, and therefore to withhold if they wish, the means of production, including their own labor. [Italics added]

The former neighbor, who acquired a Ph.D. in economics in the early 1960s, is a Marxist who views the world through the lens of class conflict. His world is a world in which the “bad guys” — rich capitalists and their cronies in government — victimize the rest of us, often with the aid of duped victims.

Because, in the former neighbor’s view, everything is rigged by the “bad guys,” he is unable to acknowledge that competition and mutually beneficial voluntary exchange, fueled by the continuous emergence of innovations and entrepreneurs, prevents the very kind of rigged game that he rightly abhors. It is not free markets but state action — taxation and regulation — that stands in the way of economic progress and widespread prosperity

The former neighbor see the solution to the non-problem through his Marxist lens. That solution is to use the power of the state to do the right thing — as long as he is judge of what is right, of course.

I understand that point of view, even though I abhor and disrespect it. But my tolerance for Marxist rhetoric drops to zero when I am told — as the former neighbor told me — that state action to redistribute income (through Social Security, for example) is a matter of “sharing” within “the community.”

I pointed out, rather heatedly, that when government — which enjoys a monopoly of force — effectively puts a gun to my head and says “share,” that isn’t sharing. Nor does government represent a “community,” for a community — to be worthy of the name — must be a voluntary association, not a group of citizens bound by the power of government to compel “sharing.”

The discussion ended there. Not because I instantly converted a long-standing Marxist to libertarianism, but because he saw the fury in my eyes and the set of my jaw.

The quotation from Heilbroner reminded me of the contretemps with my former neighbor because of their shared attitude: We know what’s good for you, and we’re willing to use the power of the state to make it so. Such individuals can claim, with a straight face, to be on the side of “the people” only because their arrogance allows them to equate force with benevolence.

The American League’s Greatest Hitters: Part II

SUPERSEDED BY “THE AMERICAN LEAGUE’S GREATEST HITTERS: III“

UPDATED 12/08/11

When last seen, the best of the American League’s greatest hitters were:

Adjusted	Nominal	Player	Years in AL		Batting average		% change	# change
rank*	rank	(all-caps, Hall of Fame;	From	To	Nominal	Adjusted	in BA	in rank
		* indicates active)
1	12	Ichiro Suzuki*	2001	2010	.331	.353	6.2%	11
2	1	TY COBB	1905	1928	.366	.353	-3.9%	-1
3	2	Shoeless Joe Jackson	1908	1920	.356	.351	-1.3%	-1
4	10	NAP LAJOIE	1901	1916	.336	.333	-0.9%	6
5	3	TRIS SPEAKER	1907	1928	.345	.331	-4.0%	-2
6	16	ROD CAREW	1967	1985	.328	.331	0.9%	10
7	11	EDDIE COLLINS	1906	1930	.333	.326	-2.2%	4
8	6	BABE RUTH	1914	1934	.343	.324	-6.1%	-2
9	8	LOU GEHRIG	1923	1939	.340	.323	-5.4%	-1
10	18	JOE DIMAGGIO	1936	1951	.325	.322	-0.7%	8
11	4	TED WILLIAMS	1939	1960	.344	.319	-7.9%	-7
12	15	WADE BOGGS	1982	1999	.328	.319	-2.8%	3

I left the earlier post hanging on the question of how the top hitters would compare when their batting averages were adjusted further, for age. I now have some of the answers.

To get the answers, I quantified the relationship between adjusted batting average and age for the 120 hitters considered in the earlier post. (As a reminder, those hitters attained nominal lifetime averages of .285 or better in at least 5,000 plate appearances in the American League. Their averages take into account long-term and year-to-year changes in playing conditions, as well as differences among ballparks at a give time and over time.) Here is the relationship, in graphical form:

I used the equation shown on the graph to adjust each hitter’s annual batting average according to the age at which he attained the average. If the “normal” hitter peaks at 28, as the equation suggests, averages attained before and after the age of 28 are “understated.” That is, if a player hits .300 at the age of 20, that’s equivalent to hitting .315 at the age of 28; and if a player hits .300 at the age of 40, that’s equivalent to hitting .341 at the age of 28.

My analysis of age-adjusted batting average has yielded two key findings, thus far. The first finding, which is captured in the following graph and its accompanying table, is that the top averages for ages 18-41 were accomplished by just seven different players. This graph compares the year-by-year, age-adjusted averages for each of the seven players:

For ease of viewing, I omitted the five players (Speaker, Carew, Collins, Ruth, and Gehrig) who never hold the top spot at any age, despite their impressive career averages. The top hitters at each age are as follows:

		Age-adjusted
Age	Player	BA
18	Cobb	.267
19	Cobb	.336
20	Cobb	.369
21	Jackson	.392
22	Cobb	.395
23	Cobb	.399
24	Cobb	.387
25	Cobb	.397
26	Cobb	.391
27	Cobb	.380
28	Cobb	.379
29	Lajoie	.383
30	Cobb	.396
31	Cobb	.387
32	Cobb	.369
33	Suzuki	.377
34	DiMaggio	.362
35	Lajoie	.414
36	Suzuki	.364
37	Lajoie	.373
38	Williams	.398
39	Williams	.343
40	Cobb	.357
41	Boggs	.343

Given that information, it shouldn’t surprise you to learn that Ty Cobb returns to the top of the heap when his single-season averages are age-adjusted, and weighted by his at-bats in each season, to obtain an age-adjusted lifetime average. Here is the age-adjusted list of top-12 career batting averages:

	Batter	Age-adjusted career BA
1	Ty Cobb	.3639
2	Shoeless Joe Jackson	.3559
3	Ichiro Suzuki*	.3582
4	Nap Lajoie	.3405
5	Tris Speaker	.3313
6	Rod Carew	.3307
7	Ted Williams	.3306
8	Eddie Collins	.3258
9	Babe Ruth	.3236
10	Lou Gehrig	.3228
11	Joe DiMaggio	.3223
12	Wade Boggs	.3190

	* Through 2010 season; before .272 average in 2011 reduced career BA by .0054.

I have not extended my analysis to include the 2011 season, but it is clear that Suzuki now belongs in 3rd place. The loss of .0054 from his nominal career BA in 2011 is far greater than his age-adjusted lead (.0023) over Jackson through 2010.

Time Out

It’s not that I’m going “on hiatus” as they say in blogworld. It’s just that I have a couple of things to “share” that aren’t about politics or economics. I maintain, and occasionally update, a blog called Americana, Etc., which is about “baseball, history, humor, language, literature, movies, music, nature, nostalgia, philosophy, psychology, and other (mostly) apolitical subjects.” (Actually, I do address history, language, literature, music, philosophy, and psychology here, but not in an apolitical way.)

In a relative frenzy of activity at Americana, Etc., I added yesterday (after two weeks’ work) a post in which I compare the greatest hitters in the history of the American League. (That’s a baseball thing-y, in case you’re wondering.) The title of the post, oddly enough, is “The American League’s Greatest Hitters.” Here’s a teaser: Ichiro Suzuki supplants Ty Cobb as the best all-time hitter — batting-average-wise — in the history of the American League. To find out why, and to see the entire list of 120 top hitters, click on the link in the sentence before last. [UPDATE: With a further adjustment to take age into account, Ty Cobb reclaims his title as the all-time American League batting champion. Ichiro Suzuki drops to second place. Shoeless Joe Jackson remains in third place. Details here.]

Today’s entry is “The Quality of Films over the Decades,” in which I revisit and reaffirm earlier posts to the effect that movies have been in a long decline since 1942.

Thank you for your kind attention.

-30-

The Quality of Films over the Decades

I have written before about my judgment of the quality of films in various eras. In 2007, I characterized the eras from 1933 to then as follows:

the Golden Age (1933-1942) — 179 films seen, 96 favorites (54 percent)

the Abysmal Years (1943-1965) — 317 films seen, 98 favorites (31 percent)

the Vile Years (1966-present) — 1,496 films seen, 359 favorites (24 percent)

Favorites are films that I have rated 8, 9, or 10 on IMDb’s 10-point scale.

I offered the following explanation for what I saw as a steady decline in quality after 1942:

The Golden Age had deployed all of the themes that could be used without explicit sex, graphic violence, and crude profanity — none of which become an option for American movie-makers until the mid-1960s.

Prejudice got significantly more play after World War II, but it’s a theme that can’t be used very often without boring audiences.

Other attempts at realism (including film noir) resulted mainly in a lot of turgid trash laden with unrealistic dialogue and shrill emoting — keynotes of the Abysmal Years.

Hollywood productions sank to the level of TV, apparently in a misguided effort to compete with that medium. The garish technicolor productions of the 1950s often highlighted the unnatural neatness and cleanliness of settings that should have been rustic if not squalid.

The transition from abysmal to vile coincided with the cultural “liberation” of the mid-1960s, which saw the advent of the “f” word in mainstream films. Yes, the Vile Years have brought us more more realistic plots and better acting (thanks mainly to the Brits). But none of that compensates for the anti-social rot that set in around 1966: drug-taking, drinking and smoking are glamorous; profanity proliferates to the point of annoyance; sex is all about lust and little about love; violence is gratuitous and beyond the point of nausea; corporations and white, male Americans with money are evil; the U.S. government (when Republican-controlled) is in thrall to that evil; etc., etc. etc.

How do things look now? About the same, on the whole, after another look at my ratings, which now extend into 2010.

I compared my ratings of individual movies with the ratings given the same movies by hundreds, thousands, and (sometimes) tens of thousands of viewers. Here’s how our ratings compare, year by year and overall, from 1920 through 2010:

I’m not surprised that my ratings, on average, are lower than those of other viewers, on average. Assuming that the difference is merely a matter of tough grading on my part, I scaled up my ratings so that my overall average is the same as that of others who rated the same films. The result:

The band of vertical bars across the middle of the graph indicates the normal range of the annual ratings. Points above the vertical bands are in the upper 1/6 of my ratings; points below the vertical bands are in the bottom 1/6 of my ratings.

I find it a bit shocking to see that there is a period during the vile years with normalized ratings above 100 percent of the IMDb average, specifically, 1978 through 1997. On the other hand, the first graph shows that I considered the films of that period generally inferior to the films of earlier periods. Moreover, going back to the first graph, it is evident that there was a consensus (of which I was part) about the vileness of the Vile Years (give or take a few of them).

So, I will stick to my guns, with one amendment — the Golden Age began in 1932:

the Golden Age (1932-1942) — 184 films rated, 110 favorites (60 percent)

the Abysmal Years (1943-1965) — 284 films rated, 107 favorites (41 percent)

the Vile Years (1966-present) — 1,425 films rated, 416 favorites (29 percent)

Will movies ever get better? Only time — and a lot of movie-viewing — will tell.

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