Right Direction or Wrong Track?


Every week since the first inauguration of Obama, Rasmussen Reports has asked 2,500 likely voters whether they see the country as going in the “right direction” or being on the “wrong track”. The following graph shows the ratios of “right direction”/”wrong track” for Trump and Obama:

Figure 5

The ratio for Trump, after a quick honeymoon start, fell into the same range as Obama’s. But it jumped with the passage of the tax cut in December 2017, continued to rise well into 2018, and remains steady at a value about double Obama’s ratio at the same stage of his presidency.

The numbers suggest that the squishy center of the electorate is lining up behind Trump, despite the incessant flow of negative reporting propaganda aimed at undermining him and his policies. His base is with him all the way.

Freedom of Speech and the Real Resistance

Freedom of speech, under present law, encompasses many things, including this small sample of repugnant acts:

  • counseling abortion
  • disrespecting the emblems of the United States
  • advocating illegal immigration
  • “guiding” children toward transgenderism
  • advocating socialism
  • advocating the disarmament of the United States

The real resistance in America consists of those Americans who push back against the disruptive and destructive movements that have been empowered by “freedom of speech” — such as those represented above.

Related posts:

Rethinking the Constitution: “Freedom of Speech, and of the Press”
Freedom of Speech and the Long War for Constitutional Governance
Academic Freedom, Freedom of Speech, and the Demise of Civility
Freedom of Speech: Getting It Right
Freedom of Speech, to What End?

An Aside about the Cold Civil War

Imprimis has published a lecture by Charles R. Kesler, editor of Clarement Review of Books, about “America’s Cold Civil War“. It’s worth a read, but Kesler’s rendering of the subversion of the Constitution is on the skimpy side, as is his analysis of options for a resolution of the cold civil war. For a more complete treatment of those and related matters, see my page, “Constitution: Myths and Realities“, and the many posts listed at the bottom of the page.

One passage in Kesler’s lecture caught my attention:

Since 1968, the norm in America has been divided government: the people have more often preferred to split control of the national government between the Democrats and the Republicans rather than entrust it to one party. This had not previously been the pattern in American politics. Prior to 1968, Americans would almost always (the exceptions proved the rule) entrust the Senate, the House of Representatives, and the Presidency to the same party in each election. They would occasionally change the party, but still they would vote for a party to run the government. Not so for the last 50 years.

I decided to look at the numbers to see if Kesler has it right. In fact, the “norm” of divided government began in Eisenhower’s presidency. The GOP eked out a narrow hold on both houses of Congress in 1952, when Ike won his first term.. But the GOP relinquished that hold in 1954, and didn’t regain until 1994, during Clinton’s presidency. Since 1952 only JFK, LBJ, and Carter — Democrats all — enjoyed same-party control of Congress throughout their presidencies.

The real story, as I see it, is the unusual era from 1952 through 1988, when Republican presidential candidates outpolled their congressional counterparts. Here, for your entertainment (if not edification), is a graphical version of the story (right-click to open a larger image in a new tab):

55 Years Ago — And Today

From “Where Were You?“, which I posted seven years ago:

I have long since repented of my admiration for JFK (e.g., here). But my repentance is irrelevant to this story. The events in Dallas on November 22, 1963, burned into my brain a memory that will remain with me for the rest of my life….

I have come to see that the emotions that stirred in me 48 years ago were foolish ones. The greatest tragedy of JFK’s passing was LBJ’s succession to the presidency. LBJ’s cynical use of JFK’s memory helped him to unleash policies that have divided America and threaten to bankrupt it.

From “Who Shot JFK, and Why?“:

What about the thesis advanced by James B. Reston Jr. that Oswald’s real target was Connally? Possibly, inasmuch as Oswald wasn’t a sniper-class shooter. Here’s a scenario that’s consistent with the timing of events in Dealey Plaza: Oswald can tell that his first shot missed his target. He got off a quick second shot, which hit JFK, who’s in line with Connally, passed through JFK and hit Connally. There was no obvious, dramatic reaction from Connally, even though he was hit. So Oswald fired a quick third shot, which hit Kennedy in the back of the head instead of hitting Connally, who by that time had slumped into his wife’s lap. (Go here for the Warren Commission’s chronology of the shots and their effects.)…

Reston could be right, but we’ll never know if he is or isn’t. The truth of the matter died with Oswald on November 24, 1963. In any event, if Reston is right, it would mean that there was no conspiracy to murder JFK.

The only conspiracy theory that might still be worth considering is the idea that Oswald was gunning for JFK because he was somehow maneuvered into doing so by LBJ, the CIA, Fidel Castro, the Mafia, or the Russians. (See, for example, Philip Shenon’s “‘Maybe We Missed Something’: Warren Commission Insider Publicly Concedes That JFK Assassination Was Likely a Conspiracy,” The Washington Post, September 22, 2014, republished in The National Post.) The murder of Oswald by Ruby conveniently plays into that theory. But I say that the burden of proof is on conspiracy theorists, for whom the obvious is not titillating enough. The obvious is Oswald — a leftist loser and less-than-honorably discharged Marine with a chip on his shoulder, a domineering mother, an unhappy home life, and a menial job.

From “1963: The Year Zero“:

If, like me, you were an adult when John F. Kennedy was assassinated, you may think of his death as a watershed moment in American history. I say this not because I’m an admirer of Kennedy the man (I am not), but because American history seemed to turn a corner when Kennedy was murdered….

This petite histoire begins with the Vietnam War and its disastrous mishandling by LBJ, its betrayal by the media, and its spawning of the politics of noise. “Protests” in public spaces and on campuses are a main feature of the politics of noise. In the new age of instant and sympathetic media attention to “protests,” civil and university authorities often refuse to enforce order. The media portray obstructive and destructive disorder as “free speech.” Thus do “protestors” learn that they can, with impunity, inconvenience and cow the masses who simply want to get on with their lives and work….

LBJ’s “Great Society” marked the resurgence of FDR’s New Deal — with a vengeance — and the beginning of a long decline of America’s economic vitality….

The Civil Rights Act of 1964 unnecessarily crushed property rights, along with freedom of association, to what end? So that a violent, dependent, Democrat-voting underclass could arise from the Great Society? So that future generations of privilege-seekers could cry “discrimination” if anyone dares to denigrate their “lifestyles”?…

The war on defense has been accompanied by a war on science. The party that proclaims itself the party of science is anything but that. It is the party of superstitious, Luddite anti-science. Witness the embrace of extreme environmentalism, the arrogance of proclamations that AGW is “settled science,” unjustified fear of genetically modified foodstuffs, the implausible doctrine that race is nothing but a social construct, and on and on.

With respect to the nation’s moral well-being, the most destructive war of all has been the culture war, which assuredly began in the 1960s. Almost overnight, it seems, the nation was catapulted from the land of Ozzie and Harriet, Father Knows Best, and Leave It to Beaver to the land of the free- filthy-speech movement, Altamont, Woodstock, Hair, and the unspeakably loud, vulgar, and violent offerings that are now plastered all over the air waves, the internet, theater screens, and “entertainment” venues….

Then there is the campaign to curtail freedom of speech. This purported beneficiaries of the campaign are the gender-confused and the easily offended (thus “microagressions” and “trigger warnings”). The true beneficiaries are leftists. Free speech is all right if it’s acceptable to the left. Otherwise, it’s “hate speech,” and must be stamped out. This is McCarthyism on steroids. McCarthy, at least, was pursuing actual enemies of liberty; today’s leftists are the enemies of liberty….

If there are unifying themes in this petite histoire, they are the death of common sense and the rising tide of moral vacuity….

Related reading:

Victor Davis Hanson, “Did 1968 Win the Culture War?“, American Greatness, November 22, 2018

Will Lloyd, “How the Myth of JFK Tortured the Democratic Party for 55 Years“, Spectator USA, November 22. 2018

Jamie Palmer, “My Misspent Years of Conspiricism“, Quillette, November 22, 2018

Macroeconomic Modeling Revisited

Modeling is not science. Take Professor Ray Fair, for example. He teaches macroeconomic theory, econometrics, and macroeconometric models at Yale University. He has been plying his trade since 1968, first at Princeton, then at M.I.T., and (since 1974) at Yale. Those are big-name schools, so I assume that Prof. Fair is a big name in his field.

Well, since 1983 Professor Fair has been forecasting changes in real GDP four quarters ahead. He has made dozens of forecasts based on a model that he has tweaked many times over the years. The current model can be found here. His forecasting track record is here.

How has he done? Here’s how:

1. The mean absolute error of his forecasts is 70 percent; that is, on average his predictions vary by 70 percent from actual rates of growth.

2. The median absolute error of his forecasts is 33 percent.

3. His forecasts are systematically biased: too high when real, four-quarter GDP growth is less than 3 percent; too low when real, four-quarter GDP growth is greater than 3 percent. (See figure 1.)

4. His forecasts have grown generally worse — not better — with time. (See figure 2.)

5. In sum, the overall predictive value of the model is weak. (See figures 3 and 4.)


Figures 1-4 are derived from The Forecasting Record of the U.S. Model, Table 4: Predicted and Actual Values for Four-Quarter Real Growth, at Fair’s website.




Given the foregoing, you might think that Fair’s record reflects the persistent use of a model that’s too simple to capture the dynamics of a multi-trillion-dollar economy. But you’d be wrong. The model changes quarterly. This page lists changes only since late 2009; there are links to archives of earlier versions, but those are password-protected.

As for simplicity, the model is anything but simple. For example, go to Appendix A: The U.S. Model: July 29, 2016, and you’ll find a six-sector model comprising 188 equations and hundreds of variables.

Could I do better? Well, I’ve done better, with the simple model that I devised to estimate the Rahn Curve. It’s described in “The Rahn Curve in Action“, which is part III of “Economic Growth Since World War II“.

The theory behind the Rahn Curve is simple — but not simplistic. A relatively small government with powers limited mainly to the protection of citizens and their property is worth more than its cost to taxpayers because it fosters productive economic activity (not to mention liberty). But additional government spending hinders productive activity in many ways, which are discussed in Daniel Mitchell’s paper, “The Impact of Government Spending on Economic Growth.” (I would add to Mitchell’s list the burden of regulatory activity, which grows even when government does not.)

What does the Rahn Curve look like? Mitchell estimates this relationship between government spending and economic growth:

Rahn curve_Mitchell

The curve is dashed rather than solid at low values of government spending because it has been decades since the governments of developed nations have spent as little as 20 percent of GDP. But as Mitchell and others note, the combined spending of governments in the U.S. was 10 percent (and less) until the eve of the Great Depression. And it was in the low-spending, laissez-faire era from the end of the Civil War to the early 1900s that the U.S. enjoyed its highest sustained rate of economic growth.

Elsewhere, I estimated the Rahn curve that spans most of the history of the United States. I came up with this relationship (terms modified for simplicity (with a slight cosmetic change in terminology):

Yg = 0.054 -0.066F

To be precise, it’s the annualized rate of growth over the most recent 10-year span (Yg), as a function of F (fraction of GDP spent by governments at all levels) in the preceding 10 years. The relationship is lagged because it takes time for government spending (and related regulatory activities) to wreak their counterproductive effects on economic activity. Also, I include transfer payments (e.g., Social Security) in my measure of F because there’s no essential difference between transfer payments and many other kinds of government spending. They all take money from those who produce and give it to those who don’t (e.g., government employees engaged in paper-shuffling, unproductive social-engineering schemes, and counterproductive regulatory activities).

When F is greater than the amount needed for national defense and domestic justice — no more than 0.1 (10 percent of GDP) — it discourages productive, growth-producing, job-creating activity. And because government spending weighs most heavily on taxpayers with above-average incomes, higher rates of F also discourage saving, which finances growth-producing investments in new businesses, business expansion, and capital (i.e., new and more productive business assets, both physical and intellectual).

I’ve taken a closer look at the post-World War II numbers because of the marked decline in the rate of growth since the end of the war (Figure 2).

Here’s the revised result, which accounts for more variables:

Yg = 0.0275 -0.340F + 0.0773A – 0.000336R – 0.131P


Yg = real rate of GDP growth in a 10-year span (annualized)

F = fraction of GDP spent by governments at all levels during the preceding 10 years

A = the constant-dollar value of private nonresidential assets (business assets) as a fraction of GDP, averaged over the preceding 10 years

R = average number of Federal Register pages, in thousands, for the preceding 10-year period

P = growth in the CPI-U during the preceding 10 years (annualized).

The r-squared of the equation is 0.74 and the F-value is 1.60E-13. The p-values of the intercept and coefficients are 0.093, 3.98E-08, 4.83E-09, 6.05E-07, and 0.0071. The standard error of the estimate is 0.0049, that is, about half a percentage point.

Here’s how the equation stacks up against actual 10-year rates of real GDP growth:

What does the new equation portend for the next 10 years? Based on the values of F, A, R, and P for 2008-2017, the real rate of growth for the next 10 years will be about 2.0 percent.

There are signs of hope, however. The year-over-year rate of real growth in the four most recent quarters (2017Q4 – 2018Q3) were 2.4, 2.6, 2.9, and 3.0 percent, as against the dismal rates of 1.4, 1.2, 1.5, and 1.8 percent for four quarters of 2016 — Obama’s final year in office. A possible explanation is the election of Donald Trump and the well-founded belief that his tax and regulatory policies would be more business-friendly.

I took the data set that I used to estimate the new equation and made a series of out-of-sample estimates of growth over the next 10 years. I began with the data for 1946-1964 to estimate the growth for 1965-1974. I continued by taking the data for 1946-1965 to estimate the growth for 1966-1975, and so on, until I had estimated the growth for every 10-year period from 1965-1974 through 2008-2017. In other words, like Professor Fair, I updated my model to reflect new data, and I estimated the rate of economic growth in the future. How did I do? Here’s a first look:


For ease of comparison, I made the scale of the vertical axis of figure 5 the same as the scale of the vertical axis of figure 2. It’s obvious that my estimate of the Rahn Curve does a much better job of predicting the real rate of GDP growth than does Fair’s model.

Not only that, but my model is less biased:


The systematic bias reflected in figure 6 is far weaker than the systematic bias in Fair’s estimates (figure 1).

Finally, unlike Fair’s model (figure 4), my model captures the downward trend in the rate of real growth:


The moral of the story: It’s futile to build complex models of the economy. They can’t begin to capture the economy’s real complexity, and they’re likely to obscure the important variables — the ones that will determine the future course of economic growth.

A final note: Elsewhere (e.g., here) I’ve disparaged economic aggregates, of which GDP is the apotheosis. And yet I’ve built this post around estimates of GDP. Am I contradicting myself? Not really. There’s a rough consistency in measures of GDP across time, and I’m not pretending that GDP represents anything but an estimate of the monetary value of those products and services to which monetary values can be ascribed.

As a practical matter, then, if you want to know the likely future direction and value of GDP, stick with simple estimation techniques like the one I’ve demonstrated here. Don’t get bogged down in the inconclusive minutiae of a model like Professor Fair’s.

Nullification and Secession

Joe Wolverton II, writing at The New American, quotes from a five-year old speech by Matthew Whitaker:

As a principle, it has been turned down by the courts and our federal government has not recognized it. Now we need to remember that the states set up the federal government and not vice versa. And so the question is, do we have the political courage in the state of Iowa or some other state to nullify Obamacare and pay the consequences for that?

Wolverton then mounts an effective defense of Whitaker’s position; for example:

… Whitaker asserted that the states “set up the federal government.” There is no logical way to dispute that historical fact.

When the Articles of Confederation (our first constitution) came under criticism from influential statesmen, Congress was compelled to invite delegates to a convention to be held in Philadelphia “for the sole and express purpose of revising the Articles of Confederation.”

Congress’ invitation was sent not to the people, but to the state governments. The state legislatures were invited to send a delegation to help repair rips in the constitutional fabric. This historical fact is irrefutable evidence that a functioning agreement for a government of the United State was the goal. That government, if it was to exist at all, would be the creation of the states that participated in the formation of it.

Additional evidence of the claim that the states were the only interested parties in the compact of the Constitution is found in the way votes were taken and recorded at the convention in Philadelphia. Representatives voted as states, not as individuals. In fact, the journal where those votes were recorded catalogs the yeas and nays according to the name of state, not the name of the delegate.

Another clue to the identity of the parties to the Constitution, is found in Articles V and VII of the document itself.

Article V requires that amendments be “ratified by the legislatures of three-fourths of the states or by conventions in three-fourths thereof.” Not only was the Constitution a binding contract among the states, but any alterations of the provisions of that contract had to be signed off by a super majority of the parties.

Next, the prose and purpose of Article VII makes the issue so clear as to permit no reasonable alternative interpretation. In this brief statement the role of the states as the sine qua non of the Constitution is established. Article VII reads, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

Plainly and purposefully the framers of the Constitution recognized that the document they signed in September 1787 was an agreement among the states represented. Every article was written by the states, voted on by the states, accepted or rejected by the states, ultimately approved by the states, and it would only become binding upon states who ratified it.

Why were the people not polled or asked to vote up or down on the Constitution? Because this was neither a popular nor a national compact; it was a compact creating a confederation of sovereign states.

As constitutional attorney Kent Masterson Brown explains, “The idea that the constitution that they [the framers] had drafted and ratified was entered into ‘by the people,’ as opposed to the states, and was irrevocable once ratified was absolutely unknown to the framers and ratifiers.”

I would add that had these men been convinced that such an arrangement was advocated or even so much as contemplated by those pushing for acceptance of the Constitution, it never would have been ratified by the requisite number of states, and the embryonic American republic would have been stillborn in Philadelphia.

If nullification is to be successfully deployed and defended, states lawmakers must remember that the Constitution is a creature of the states and that the federal government was given very few and very limited powers over objects of national importance. Any act of Congress, the courts, or the president that exceeds that small scope is null, void, and of no legal effect.

Not once during the deliberations at the Constitutional Convention was there a proposal that their work be presented for approval to the body of the populace acting as individuals. From the beginning of the process that culminated on September 17, 1787 with the signing of the Constitution, it was understood that the ratification by at least nine states was the sine qua non of the start of the new government.

Still, the establishment and their media mouthpieces obstinately deny one irrefutable fact: The Constitution never would have gone into legal effect and the federal government never would have been created if state conventions had not met and ratified the document.

I have argued similarly many times. In “Constitution: Myths and Realities“, I say this about the myth that “the people” ratified the Constitution:

The idea that the Constitution is the creature of “the people” is balderdash. It is balderdash of a high order because it was lent credence by none other than John Marshall, Chief Justice of the Supreme Court from 1801 to 1835, whose many opinions shaped constitutional jurisprudence for better and for worse….

Marshall argues [in McCulloch v. Maryland (1819)] against a strawman of his own construction: the insinuation that the Constitution was somehow ratified by “the American people”. He does not come out and say that, but he implies that holding the ratifying conventions in the various States was necessary because of the impracticality of holding a national convention of “the people”. The fact is that the conventions in the States were of modest size. The table given here shows that the total number of delegates voting yea and nay in each State ranged from a low of 26 to a high of 355, for an average of 127 per State. This was hardly anything like “one common mass” of the American people. The 1,648 delegates who voted in the thirteen conventions represented about two-tenths of one percent of the free white males aged 16 and older at the time (and presumably far less than one-half of one percent of the free-white males considered eligible for a convention).

The fact is that the ratifying conventions were held in the States because it was left to each State whether to join the new union or remain independent. The conventions were conducted under the auspices of the State legislatures. They were, in effect, special committees with but one duty: to decide for each State whether the State would join the union.

This view is supported by Madison’s contemporaneous account of the ratification process:

[I]t appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act. [The Federalist No. 39, as published in the Independent Journal, January 16, 1788]

But I go further than Wolverton does (though he might agree with me). I concur in the legitimacy of nullification (which is a form of departmentalism). But I also argue that the Constitution’s provenance as a creature of the States makes secession a legal (constitutional) act. Here are excerpts of my model resolution of secession:

[I]n a letter to Alexander Rives dated January 1, 1833, Madison says that

[a] rightful secession requires the consent of the others [other States], or an abuse of the compact, absolving the seceding party from the obligations imposed by it.

An abuse of the compact most assuredly legitimates withdrawal from it, on the principle of the preservation of liberty, especially if that abuse has been persistent and shows no signs of abating. The abuse, in this instance, has been and is being committed by the national government.

The national government is both a creature of the Constitution and a de facto party to it, as co-sovereign with the States and supreme in its realm of enumerated and limited powers. One of those powers enables the Supreme Court of the United States to decide “cases and controversies” arising under the Constitution, which is but one of the ways in which the Constitution makes the national government a party to the constitutional contract. More generally, the high officials of the national government acknowledge that government’s role as a party to the compact — and the limited powers vested in them — when they take oaths of office requiring them to uphold the Constitution.

Those high officials have nevertheless have committed myriad abuses of the national government’s enumerated and limited powers. The abuses are far too numerous to list in their entirety. The following examples amply justify the withdrawal of the State of _______________ from the compact….

As outlined above, the national government has routinely and massively violated Amendment X, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

We, therefore, the representatives of the people of _______________ do solemnly publish and declare that this State ought to be free and independent; that it is absolved from all allegiance to the government of the United States; that all political connection between it and government of the United States is and ought to be totally dissolved; and that as a free and independent State it has full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Secession isn’t the only possible remedy for the central government’s long record of unconstitutional behavior. Go there and read the whole thing.

A “Referendum” on Trump?

UPDATED 11/20/18

I was wrong when I predicted (here and here) that the Dems wouldn’t retake the House. They did, and in rather convincing fashion. Including three undecided races (two GOP leaders, one Dem leader), the Dems will have gained 39 seats. That’s a pretty good showing by historical standards:

So, was 2018 a “wave election” for Democrats, as many Democrats and pundits expected it to be? I don’t know, and neither does anyone else. “Wave” is vague. (Pun intended.)

But I will say this: If there had been something like a “wave”, the Dems would have retaken the Senate, too. They certainly were in a position to do so, needing only a net gain of only two seats to go from a 49-51 minority to a 51-49 majority. (I’m counting two so-called independents as Dems because that’s how they vote.) But, instead, the GOP added two seats (assuming that Sen. Hyde-Smith of Mississippi retains hers in next week’s runoff), and will open the 116th Congress with a 53-47 majority.

Here’s how 2018 stacks up against previous mid-term results for the Senate:

Why the disparity between the House and Senate in this year’s mid-terms?

If the mid-terms had been a “referendum” on Trump, as often suggested (even by Trump), the House and Senate would have gone in the same direction. They didn’t because the election wasn’t entirely about Trump.

One story is that the Dems gained in the House because of a focus on health care. It is the Dems’ own creation — Obamacare — that has pushed health-care costs and premiums ever higher in recent years. But that matters not to ignorant voters, who are sucked in by promises to “get it right”. Dems are good at making such promises.

The Senate results tell a different story. It was possible for Trump to lend visible and vocal support to GOP Senate candidates in a way that he couldn’t for the vastly greater number of GOP House candidates. So, if anything, the “referendum” on Trump occurred in Senate races, and Trump won.

Wildfires and “Climate Change”, Again

In view of the current hysteria about the connection between wildfires and “climate change”, I must point readers to a three-month-old post The connection is nil, just like the bogus connection between tropical cyclone activity and “climate change”.

The Polarized Court

First of all, polarization isn’t necessarily a bad thing. Imagine (horror of horrors) a Supreme Court whose members voted en bloc with Ruth Bader Ginsburg. What’s left of the Constitution would disappear in no time.

So, hurrah for polarization when it means that the likes of RBG and her allies on the Court are opposed by — and sometimes defeated by — the likes of Clarence Thomas and his allies on the Court. As of now, Justice Thomas’s allies are (with certainty) Justices Gorsuch and Alito, (sometimes) Chief Justice Roberts, and (one hopes) Justice Kavanaugh, who replaces the too-often compromising Justice Kennedy.

It is therefore my earnest hope that the Court will be, if anything, more polarized than it has been in recent years and decades. How polarized is that? According to Richard L. Hasen, a professor of law at the University of California,

[t]he trend toward presidents choosing more ideologically reliable court appointments began with Democratic president Bill Clinton, following two surprises under Republican president Ronald Reagan. The conservative Reagan appointed perennial “swing” justices Anthony Kennedy and Sandra Day O’Connor (Bartels 2015). Reagan chose Kennedy after the Senate rejected Judge Robert Bork, a more conservative nominee on some key issues (Epstein & Segal 2005).

The days of ideological surprise from appointed justices appear to be over. Today, presidents place “near-exclusive focus on ideological compatibility and reliability” (Bartels 2015, p. 177). Devins & Baum (2017) argue that although both Democratic and Republican presidents have increasingly taken ideology into account in the last four decades, there has been more dramatic movement on the Republican side since the Reagan administration—the first to consider conservative ideology the paramount criteria for selecting nominees. They further contend that the Federalist Society, a private organization of conservative and libertarian lawyers, judges, and activists, has played a central mediating role in the cultivation and choice of Republican judicial nominees (Devins & Baum 2017). This trend has only accelerated in the Trump administration….

Today no one doubts that the Supreme Court is growing more polarized in its decision making. The Court has long been divided into two ideological camps, liberal and conservative, in a bimodal distribution with a center fluctuating in size. While the Court long has been polarized on the basis of ideology [see Clark (2009) on the ways this polarization has been measured over time], it used to boast a larger center and fewer justices at the poles. Ideological polarization has increased in the last 50 years (Gooch 2015)….

For the past few decades and until recently, the Court featured four generally conservative justices, all appointed by Republican presidents; four generally liberal justices, all appointed by Democratic presidents; and swing justice Anthony Kennedy, who often sided with conservatives but sometimes sided with liberals on issues such as same-sex marriage (Bartels 2015, p. 172; Devins & Baum 2017; Hasen 2016)….

… Gone are justices appointed by Democratic presidents who sometimes voted conservatively (Kennedy-appointed Justice Byron White voted against abortion rights) and justices appointed by Republican presidents who sometimes voted liberally (Ford-appointed Justice John Paul Stevens voted in favor of abortion rights) (Bartels 2015, Devins & Baum 2017). Today, each justice’s ideology is better defined and aligned with the political party of the appointing president. Justices are more likely to be ideologically in line with the interests of their nominating president’s party and less likely to drift ideologically (or “evolve”).

Those observations, which will surprise no one who is more than a casual observer of the Court, are from Hasen’s “Polarization and the Judiciary“, Annual Review of Political Science, May 2019 (forthcoming). (Literature cited in parentheses is listed at the end of the paper.)

Hasen goes off course when he ventures into quantitative measures of polarization on the Court:

Bartels (2015) notes a “polarization paradox” whereby the percentage of 5–4 (or other one vote margin) Supreme Court decisions has been increasing at the same time that the percentage of unanimous opinions is increasing. Figure 2 shows both of these increases from 1971 to 2016 (Epstein et al. 2015, Washington University Law 2017). Note the sharp drop-off in one-margin decisions and sharp rise of unanimous decisions following the 2016 death of Justice Scalia, a temporary period of a 4–4 evenly divided partisan Supreme Court.

In fact, the Court wasn’t evenly divided during the interregnum between Scalia and Gorsuch. The only reliable conservative votes were those of Alito and Thomas. Kennedy and Roberts were swing votes, as discussed later in this post. Breyer, Ginsburg, Kagan, and Sotomayor formed a solid “liberal” bloc.

Moreover, Hasen’s figure 2 looks odd. Here it is:

Neither of the lines in Hasen’s figure 2 resembles, in shape, the results I derived from the Stat Packs at SCOTUSblog, which cover the 1995-2017 terms:

Unanimous decisions include all cases in which there was no dissenting vote, including per curiam decisions, even where the majority opinion was accompanied by one or more concurring opinions. Given the similarity of the two graphs with respect to unanimous opinions, that must be the definition used by Epstein et al. (the source of Hasen’s figure 2).

I am especially struck by the disparity between Hasen’s figure 2 and my graph with respect to the trend (or lack thereof) in decisions with a one-vote margin. (All such decisions during the 1995-2017 terms were by a 5-4 vote.) There is no “polarization paradox”. To the contrary — and as one would expect — there is a strong (though not perfect) negative relationship between unanimous and 5-4 decisions:

Color me unimpressed by Professor Hasen, at least on the evidence of “Polarization and the Judiciary”.

Just how polarized is the Court — or, rather, how polarized has it been recently? Quite polarized.

In “U.S. Supreme Court: Lines of Succession and Ideological Alignment“, I draw on the SCOTUSsblog Stat Packs to summarize the degree of disagreement among the various justices in non-unanimous cases during each of the Court’s past 13 terms. (The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.) The statistics yield an index of polarization (P) for each justice, by term:

P = maximum percentage of non-unanimous cases in which a justice disagreed with any other justice during the term


A slight upward trend over the past 13 terms? Perhaps. But trend or no trend, it’s clear that there has been a great deal of polarization among most of the justices. Roberts joined Kennedy in the middle during the past four terms, but there have been (at least) seven highly polarized justices on the Court. In the past two terms, it has been Alito, Gorsuch, and Thomas (on the right) against Breyer, Ginsburg, Kagan, and Sotomayor (on the left).

I relish the hope that Kavanaugh will shore up the right. Now, if Roberts would only revert to his 2005-2013 form….

2020 Vision (II)

I made a bold prediction in “2020 Vision“:

  • Trump holds Florida, Iowa, Michigan, Ohio, and Pennsylvania.
  • He adds Maine, Minnesota, Nevada, and New Hampshire.
  • Of the usually Red States that are sliding toward the Blue column — Arizona, Georgia, North Carolina, and Texas — he loses only Arizona.

Bottom line, 318 electoral votes, and possibly even a majority of the fictitious “national” popular vote.

I will now temper that prediction by pointing out (unnecessarily) that the GOP candidate (probably Trump) will have a higher hill to climb than the Democrat candidate.

Here’s how the 2020 electoral vote looks to me, at the moment: solid Democrat, 235; solid Republican, 132; in play, 171. I am still confident that Trump (or his successor) can win in 2020 — the “Blue Wall” is a myth. But victory won’t come as easily as my earlier post implied.

The States in play in 2020 (and the number of electoral votes for each) are:

Florida (29)
Georgia (16)
Maine (4)
Michigan (16)
Minnesota (10)
Nevada (6)
New Hampshire (4)
Ohio (18)
Pennsylvania (20)
Texas (38)
Wisconsin (10)

Visually (with blue for Republican, red for Democrat, and purple for in play):

Adapted from the electoral map for 2016 at Dave Leip’s Atlas of U.S. Presidential Elections. Leip uses blue for Republican and red for Democrat.

2020 Vision

Trump confounded most expectations in 2016 by taking Florida, Iowa, and Ohio — all Blue since 2004 — and nudging two long-time Blue States — Michigan and Pennsylvania — into the Red column.

What about 2020? A lot of water will flow under the bridge and over the dam in the next two years, but at the moment I see it this way:

  • Trump holds Florida, Iowa, Michigan, Ohio, and Pennsylvania.
  • He adds Maine, Minnesota, Nevada, and New Hampshire.
  • Of the usually Red States that are sliding toward the Blue column — Arizona, Georgia, North Carolina, and Texas — he loses only Arizona.

Bottom line, 318 electoral votes, and possibly even a majority of the fictitious “national” popular vote.

Change of Face

I posted “Fascism with a ‘Friendly’ Face” more than nine years ago. It holds up well (though many of the links are probably dead). It was still possible at the time to suggest that American fascism — leftism, that is — hid its evil aims behind a friendly face. That is no longer true, obviously. The rage-filled face of American fascism accurately reflects its evil aims, which are to control the minutiae of Americans’ lives and to dictate what Americans may write and say.

In any event, if you would like to stroll through my old posts about American fascism, here are the links (listed in chronological order):

FDR and Fascism
Fascism with a “Friendly” Face
Fascism and the Future of America
FDR and Fascism: More Data
Leftism As Crypto-Fascism: The Google Paradigm

There’s much more here. See also the many posts tagged “leftism“.

“House of Cards” Implodes

I watched the Netflix version of House of Cards for four seasons. I gave up on it early in the fifth season because the plot twists had become too bizarre — even more bizarre than having vice-president presumptive Frank Underwood (Kevin Spacey) push Zoe Barnes (Kate Mara) under a D.C. Metrorail train early in the second season.

Evidently, a lot of viewers didn’t share my disenchantment with the series. The ratings assigned by Internet Movie Database (IMDb) users held up through the end of the fifth season. And the average ratings for that season are only a touch below the ratings for earlier seasons.

But when Spacey got the axe, the House of Cards fell apart — ratings-wise, that is. Here’s the story in a graph, where the black line traces the ratings for individual episodes and the horizontal bars measure season averages:

Frank/Kevin has the last laugh. Actually, it would be the first laugh for House of Cards, a somber though often gripping fantasy.

Peak Leftism?

Leftists used to be somewhat subtle in their efforts to win the hearts of the populace. I would say minds, too, but leftism is an emotional, delusional stance — not a reasoned or scientific one, leftist propaganda to the contrary notwithstanding. Whereas conservatism is about learning from experience, which requires personal responsibility and teaches self-reliance, leftism gives primacy to “hope” (blind faith) and “change” (for its own sake), shirks personal responsibility, and teaches reliance on government.

Now, leftism — a.k.a. fascism in the name of utopianism — seems to reach new heights of hysteria every day. Gone is the appearance of sweet reason and “compassion”. Fangs are bared, cudgels are in motion, bullets are flying.

Isn’t this bound to end, to “burn itself out”? Not necessarily. Consider the American Revolution, the French Revolution, the American Civil War, the Bolshevik Revolution, Hitler’s rise to power, and the Chinese Communist Revolution. What do they have in common with each other and with the not-so-stealthy revolution that has been taking place in America?

For one thing, the historical movements succeeded in overthrowing the established political order — for better and (usually) for worse. The ongoing stealth revolution has done so, too, but mainly by exploiting the established order’s rules, that is, by co-opting and subverting the legislative, executive, and judicial functions. The First Amendment, to take a leading example, has been exploited by the media to subvert America’s defenses; exploited by purveyors of filth and decadence to subvert social norms against such filth and decadence; and exploited by purveyors of anti-constitutional measures to advance those measures through asymmetrical ideological warfare.

The present and historical revolutions have several things in common:

  • “intellectuals” who enunciate the revolution’s aims
  • active, visible, and vocal hard-core followers who are prepared to sacrifice (and even to die) for the cause
  • fringe followers who support the cause (by word, deed, or vote) because they believe in it, or come to believe in it because of social pressure to do so
  • “financiers” who lend substantial material support to the cause because they believe in it or stand to benefit from its success.

The not-so-stealthy revolution in America is unlike the historical ones because its participants — for the most part — are not considered subversive, or cannot be treated as subversive under prevailing legal norms. One of those norms, as mentioned above, is an overly broad interpretation of the First Amendment, which empowers the enemies of liberty. Defenders of liberty, on the other hand, are being suppressed by universities and social media, acting with state-like power.

More generally, there has been an almost unrelenting assault on the Constitution, the design of which was intended to “secure the Blessings of Liberty to … our Posterity”. The stage for this assault was set when, in the words of Bertrand de Jouvenel,

the government at Washington … launch[ed] a war such as Europe had never yet seen to crush the attempt of the Southern States to form themselves into a separate unity.

As in so many instances since the Civil War, the government at Washington wrapped itself in a mantle of holiness (i.e, anti-slavery) to impose a decidedly unholy agenda on the nation. The agenda in the case of the Civil War was the destruction of the co-sovereign relationship between the States and central government that was at the heart of the Constitution. The government at Washington thereafter, and by various means, has

  • arrogated to itself power that belongs to the States under the Constitution — power which is most evident in the alphabet soup of agencies doing things that aren’t contemplated in the Constitution
  • usurped rights belonging to the people, including, but far from limited to, freedom of association and peaceful use of one’s property
  • undermined civilizing social norms, including but far from limited to, religious observances that do not constitute an establishment of religion, and the peremptory redefinition of marriage.

These power grabs have sometimes been executed boldly, and with the support of broad masses of people — especially but not exclusively during the Progressive Era, and under the aegis of the New Deal and the Great Society. But since the Progressive Era there has been a general accretion of power, often through subtle regulatory aggression, even during Republican administrations.

Given the great successes enjoyed by the enemies of liberty — by the left, that is — why the present hysteria? The unrelenting “resistance” to Trump. The phony sexual-assault allegations against Kavanaugh. The “hate whitey” campaign, to which many white leftists subscribe. The “hate” hoaxes perpetrated by their supposed (leftist) victims. The increasingly obvious pro-left bias that pervades most “news” media. The promises by congressional Democrats of post-election retribution against Republicans. And on and on.

The hysteria stems from a fear of losing ground. There is a ratchet effect in politics that has worked to the left’s advantage for more than a century. What if the ratchet effect were reversed, obviously and decisively, by the efforts of one man — a man whom the left (and dupes on the right) have done their best to thwart and discredit? Would this not embolden more advocates of liberty to speak and act boldly — to reject the compromising, emasculated, collaborationist “conservatism” of the Bushes, McCain, and Romney?

It probably would. And that’s what the left fears. And its fears are evident in the present hysteria.

That’s why today’s elections are so important. Today may well mark a turning point in the not-so-stealthy revolution. If the GOP holds the House and Senate, Trump will have been vindicated. He will have more allies (outside of Congress if not within it) in his battles to build a judiciary of constitutionalists; to fend off the cultural and electoral threat from south of the border, to rebuild America’s defenses and pursue a pro-American foreign policy, and generally to put the forces of liberty on the offensive for a change.

P.S. (on the morning after election day): The Dems have won a majority in the House, though a narrow one. Meanwhile, the GOP has increased its majority in the Senate. That is the better half of the loaf because control of the Senate means that Trump can continue to remake the judiciary in a conservative image. Further, the House will be perceived as the obstructionist body for the next two years, setting the stage for a GOP restoration there. Barring the unforeseeable, a largely successful Trump presidency will set the stage for Republican dominance in 2020.

True Populism

Populism, according to Wikipedia,

refers to a range of approaches which emphasise the role of “the people” and often juxtapose this group against “the elite”. There is no single definition of the term, which developed in the 19th century and has been used to mean various things since that time. Few politicians or political groups describe themselves as “populists”, and in political discourse the term is often applied to others pejoratively….

[T]he ideational approach … defines populism as an ideology which presents “the people” as a morally good force against “the elite”, who are perceived as corrupt and self-serving. Populists differ in how “the people” are defined, but it can be based along class, ethnic, or national lines. Populists typically present “the elite” as comprising the political, economic, cultural, and media establishment, all of which are depicted as a homogenous entity and accused of placing the interests of other groups—such as foreign countries or immigrants—above the interests of “the people”. According to this approach, populism is a thin-ideology which is combined with other, more substantial thick ideologies such as nationalism, liberalism, or socialism. Thus, populists can be found at different locations along the left–right political spectrum and there is both left-wing populism and right-wing populism.

Just as “the elite” isn’t homogeneous, neither is “the people”. True populism therefore demands a decentralized polity, according to the principle of subsidiarity:

[M]atters ought to be handled by the smallest, lowest or least centralized competent authority. Political decisions should be taken at a local level if possible, rather than by a central authority.

This is a conservative principle because deciding matters locally means that they are usually handled in accordance with social norms that prevail locally, and which reflect local conditions. This is in contrast with one-size-fits-all “solutions” imposed by distant officials who have no appreciation of local knowledge and norms, and who — in any event — are usually hostile to those things.

Subsidiarity is also, in theory, a libertarian principle. Too many self-styled libertarians, however, are quick to abandon the principle in favor of state-imposed rules that favor their views about how “society” should be organized. Thus — and to the detriment of social comity and stability — we have state-imposed abortion, a state-imposed edict to honor same-sex “marriage”, state-imposed “tolerance” of unsafe sexual acts, the rending of families by lax divorce laws, and on and on.

It is populist resentment of elite dominance that enabled Trump’s electoral victory. “Drain the swamp” is a good part of it. The rest is mainly a desire for the preservation (or restoration) of traditional American culture, the protection of which requires selective immigration and strong defenses.

The principle and spirit of populism — and its enemies — is captured by Bertrand de Jouvenel in his 1945 epic, On Power: The Natural History of its Growth:

Every Power is sure to attack centrifugal tendencies. But the behaviour of democratic Power offers in this respect some peculiar features of a striking kind. It claims its mission to be that of liberating man from the constraints put on him by the old Power, which was the more or less direct descendant of conquest. But that did not stop the Convention from guillotining the Federalists [in the French Revolution], the English Parliament from wiping out, in some of the bloodiest repressions of history, the separatist nationalism in Ireland, or the government at Washington from launching a war such as Europe had never yet seen to crush the attempt of the Southern States to form themselves into a separate unity….

This hostility to the formation of smaller communities is inconsistent with the claim to have inaugurated government of the people by itself, for clearly a government answers more closely to that description in smaller communities than in larger. Only in smaller communities can citizens choose their ruler directly from men whom they know personally. Only in them can justification be found for the encomium pronounced by Montesquieu:

The people is well fitted to choose …. The people knows well whether a man has often seen active service and what successes he has won: therefore it is well equipped to choose a general. It knows whether a judge attends to his duties; whether most people leave his court satisfied; whether or not he is corrupt: therein is knowledge sufficient for it to elect a praetor…. These are all facts which make a public square a better-informed place than the palace of a king.

But the new men whom the popular voice has made masters of the imperium have never shown any inclination to a regime of that kind. It was distasteful to them, as the heirs of the monarchical authority, to fritter away their estate on subordinating themselves. On the contrary, strong in the strength of a new legitimacy, their one aim was to increase it. Against the federalist conception [the Abbe] Sieyès [1748-1836] was their mouthpiece: “… a general administration which, starting from a common centre, will reach uniformly to the remotest parts of the Empire — a body of laws which, through its elements are provided by the body of citizens, takes bodily form at as distant a level as that of the National Assembly, to whom alone it belongs to interpret the general wish, that wish which thereafter falls with all the weight of an irresistible force on those very wills which have joined in the formation of it.” [Liberty Press edition (1993), pp. 286-288, links added, emphasis in original]

Plus ça change, plus c’est la même chose.

A Bobo in Cloud-Cuckoo Land

Bret Stephens, one of the tame “conservatives” at The New York Times, has an op-ed to which my attention was drawn this morning: “Why Aren’t Democrats Walking Away With the Mid-Terms?“.

Stephens touches upon a thesis that has been enunciated by many. I will come to it by way of Arnold Kling — an unusually sensible economist (e.g., he calls standard macroeconomics “hydraulic economics” and derides the implicit assumption that the economy is single unit — a big GDP factory). Kling has written a book (now in second edition) called The Three Languages of Politics: Talking Across the Political Divide. Here are some relevant passages:

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

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

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

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

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

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

I do not believe that the three-axes model serves to explain or to describe the different political ideologies. I am not trying to say that political beliefs are caused by one’s choice of axis. Nor am I saying that people think exclusively in terms of their preferred axis. What I am saying is that when we communicate about issues, we tend to fall back on one of the three axes. By doing so, we engage in political tribalism. We signal to members of our tribe that we agree with them, and we enhance our status in the tribe. However, even though it appears that we are arguing against people from other tribes, those people pay no heed to what we say. It is as if we are speaking a foreign language….

The three axes allow each tribe to assert moral superiority. The progressive asserts moral superiority by denouncing oppression and accusing others of failing to do so. The conservative asserts moral superiority by denouncing barbarism and accusing others of failing to do so. The libertarian asserts moral superiority by denouncing coercion and accusing others of failing to do so….

In 2016, Donald Trump surprised many people— including me— by emerging as a powerful political force and prevailing in the presidential election. Trump’s success confounded many analytical frameworks that had worked well in the past, and the three-axes model is not particularly helpful, either.

Progressives certainly viewed Trump through the oppressor-oppressed axis, seeing his pronouncements and his supporters as tinged with racism and threats toward other victim classes. Libertarians viewed Trump through the liberty-coercion axis, seeing him as authoritarian and a danger to liberty.

Conservatives, however, were divided. One faction, represented by a number of writers at the conservative publication National Review, viewed Trump negatively along the civilization-barbarism axis. They saw Trump as scornful of important traditional institutions, including civil discourse, the U.S. Constitution, the Republican Party, and the principle of free trade.

The other conservative faction saw Trump’s opponent in the general election, Hillary Clinton, as a greater threat to civilization. Writing under the pseudonym, Publius Decius Mus, an essayist on the Claremont Institute website described voting against Clinton as analogous to the passengers on one of the planes hijacked on 9/ 11 who managed to storm the cockpit and keep the hijackers from hitting their intended target.

In my view, Trump opened up a new axis. He accomplished that by appealing to people who differ from those with whom I am most acquainted. Some have termed this new axis populist versus elite, or outsider versus insider….

Perhaps the main dividing line is best described in terms of cosmopolitanism. The sections of the country that most strongly supported Hillary Clinton were large cities located along the coasts, where affluent people are used to engaging with foreign cultures, either locally or by traveling abroad. The sections of the country that most strongly supported Donald Trump were rural and small-town areas located away from the coast, where interaction with foreign cultures is much less frequent.

To describe the cosmopolitan outlook, recall the expression “bourgeois bohemians,” coined by journalist David Brooks almost two decades ago. Brooks was describing a cosmopolitan elite, one that enjoys foreign travel and celebrates cultural diversity. The Bobos, as Brooks dubbed them, probably feel more comfortable in Prague than in Peoria.

As I see it, Donald Trump’s supporters were the anti-Bobos. They distrusted foreign people and cultures. But above all, they distrusted and resented the Bobos, and the feeling was mutual. Thus, the axis that I believe best fits the Trump phenomenon is Bobo versus anti-Bobo.

I think this is right. Bret Stephens is a Bobo who believes that “the real threat of the Trump presidency isn’t economic or political catastrophe. It’s moral and institutional corrosion — the debasement of our discourse and the fracturing of our civic bonds.”

Stephens seems not to understand that — in the view of anti-Bobos — civic bonds were fractured long ago by the Bobos who championed school busing, affirmative action, and all that followed under the heading of identity politics, including “open borders”. The anti-Bobos of the North were taken for granted as reliable Democrat voters, largely ignored (by both parties), and then sneered at by Democrats. Hillary Clinton’s characterization of the anti-Bobos (of all regions) as “deplorables” was merely confirmatory, and probably enabled Trump’s victory by putting him over the top in Iowa, Michigan, Ohio, Pennsylvania, and Wisconsin. Trump’s genius has been to speak the language of anti-Bobos and make them feel as if they are valued.

It is unclear to me what “deeper threat [Trump’s] his presidency represents”, as Stephens puts it. Trump, as I argue above, is not divisive. Bobo policies — shared by “establishment” politicians of both parties — have been divisive. Stephens and his ilk (of all parties) simply want the anti-Bobos to shut up, get back in the fold, and accept the crumbs that fall from the Bobos’ table. The “deeper threat”, in other words, is an end to the Bobos’ long reign of error in Washington.

Stephens’s Bobo-ism is fully on display in the final paragraph of his op-ed, where he writes that “The tragedy of Pittsburgh illustrates, among other things, that the president cannot unite us, even in our grief.” What I saw was an immediate attack on Trump for having created an “atmosphere of hate” (shades of Dallas 1963). Trump’s personal behavior — which reflects his long-standing pro-Jewish sympathies — was exemplary, as was the behavior of Rabbi Myers. How, precisely, was Trump supposed to “unite us” when there are tens of millions of Americans — goaded on by the mainstream media — who despise him for the sheer enjoyment of it?

Saving the Innocent, Revisited

Paul Cassell, writing at The Volokh Conspiracy, offers statistical evidence about the wrongful conviction rate:

Justice Scalia cited a figure of 0.027% as a possible error rate. But the conventional view in the literature is that, for violent crimes, the error rate is much higher—at least 1%, and perhaps as high as 4% or even more.

My article suggests a much lower estimate is appropriate. Based on a careful review of the available empirical literature, it is possible to assemble the component parts of a wrongful conviction rate calculation by looking at error rates at trial, the ratio of wrongful convictions obtained through trials versus plea bargains, and the percentage of cases resolved through pleas. Combining empirically based estimates for each of these three factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate appears, tentatively, to be somewhere in the range of 0.016%–0.062%—a range that comfortably embraces Justice Scalia’s often-criticized figure.

This reminds me of a pair of posts from 13 years ago, which I combine below, with minor editing.

*    *     *

Better that ten guilty persons escape than that one innocent suffer.

— English jurist William Blackstone


“n” — the number of guilty persons — has increased since the late 1700s, when Blackstone wrote. Alexander “Sasha” Volokh offers some useful perspective:

Charles Dickens generously endorsed a value of n = “hundreds” for capital cases, and not just “that hundreds of guilty persons should escape,” but that they should escape “scot-free.” Dickens was, in fact, so generous that hundreds of guilty persons escaping scot-free was not only better than one innocent person suffering — it was even better “than that the possibility of any innocent man or woman having been sacrificed, should present itself, with the least appearance of reason, to the minds of any class of men!”…

Of course, such blithe invocation could easily lead too far down the road to “inconsiderate folly” and “pestiferous nonsense.” As one author noted, there is “nothing so dangerous as a maxim”:

Better that any number of savings-banks be robbed than that one innocent person be condemned as a burglar! Better that any number of innocent men, women, and children should be waylaid, robbed, ravished, and murdered by wicked, wilful, and depraved malefactors, than that one innocent person should be convicted and punished for the perpetration of one of this infinite multitude of crimes, by an intelligent and well-meaning though mistaken court and jury! Better any amount of crime than one mistake in well-meant endeavors to suppress or prevent it!…

Jeremy Bentham, founder of utilitarianism, warned against the warm fuzzy feeling that comes from large values of n:

We must be on guard against those sentimental exaggerations which tend to give crime impunity, under the pretext of insuring the safety of innocence. Public applause has been, so to speak, set up to auction. At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fix the number ten; a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused person to be condemned, unless evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished….

James Fitzjames Stephen suggested that Blackstone’s maxim

resembles a suggestion that soldiers should be armed with bad guns because it is better that they should miss ten enemies than that they should hit one friend. . . . Everything depends on what the guilty men have been doing, and something depends on the way in which the innocent man came to be suspected….

The story is told of a Chinese law professor, who was listening to a British lawyer explain that Britons were so enlightened, they believed it was better that ninety-nine guilty men go free than that one innocent man be executed. The Chinese professor thought for a second and asked, “Better for whom?”

That’s the question, isn’t it? Better for whom? It’s better for the guilty, who may claim more victims, but certainly not better for those victims.

Now I read this (on July 27, 2005):

[Texas] Gov. Rick Perry changed the 28 sentences to life in prison after the Supreme Court ruled that juveniles cannot be executed because of the Eighth Amendment ban on cruel and unusual punishment.

History shows release is possible for some of them.

Death penalties [in Texas] were halted for four years after the 1972 Supreme Court decision in Furman vs. Georgia.

According to state prison records reviewed by The Dallas Morning News, 40 of the 47 Texas inmates who left death row then have been released from prison.

Two died in prison and five remain behind bars.

At least two who were released killed again. One was Kenneth McDuff, who was convicted in 1992 for killing two women. He was executed in 1998.

Of the 40 who were released, 22 committed new offenses ranging from misdemeanors to murder. About half of those paroled returned to prison because of new crimes or violations of parole. Many led quiet lives.

Evidently, in our “enlightened” society, it is better that many innocent persons be victimized so that some murderers can lead “quiet lives.”

Teachable Moments


Friend: Johnny shouldn’t play so rough with that cat, it will scratch him.

“Liberal” parent: Johnny is just exploring his boundaries.

Johnny: SCREAM!

“Liberal” parent: Bad kitty. Johnny didn’t mean to hurt you, he was just being himself.

Soon-to-be ex-friend: Kitty was just being herself — and defending herself.


Parent: Johnny, where are you going?

Johnny: Out.

Parent: What are you going to do?

Johnny: Nothing.

Parent: When will you be home?

Johnny: I don’t know.

“Liberal” parent: Well, have a good time. It’s important to explore your boundaries.

Parent who actually cares about Johnny: Your answers are unacceptable. You’re grounded until you are honest with me. I may not be able to keep you from getting in trouble, but I can at least warn you of some of the dangers you might face. You’ll hate me now, but you’ll thank me in the long run — and I want you to live long enough to become a parent and behave responsibly toward your children, as I’m doing.


“Liberal” voter: I’m going to vote for the city’s proposed bond issues.

Friend: Why?

“Liberal” voter: Because the city will be able to do good things for residents if the bonds are approved.

Friend: What has happened to your property taxes over the past 10 years?

“Liberal” voter: They’ve more than doubled.

Friend: Why do you suppose they’ve doubled?

“Liberal” voter: Beats me, I’m no accountant.

Friend: You don’t suppose they’ve more than doubled because of the bond issues that have been approved in the past 10 years?

“Liberal” voter: Could be, but think of all the great things the city has done.

Friend: For you?

“Liberal” voter: Not for me, but for the disadvantaged people of this city. There are affordable housing projects and subsidies, for example.

Soon-to-be ex-friend: Did you ever stop to think that do-good voting has lots of unintended consequences? Hasn’t housing become less affordable because of the taxes engendered by bond issues? Aren’t affordable-housing tracts high-crime areas? Don’t larger city payrolls soak up much of the revenues from bonds? Couldn’t you have made substantial charitable contributions if your taxes hadn’t more than doubled in the past 10 years? What about your own children and their college educations, which have become exorbitantly expensive? Do you value the welfare of strangers — which won’t be affect much by the city’s programs — over the welfare of your own children. Do you believe that poor people are incapable of working hard and saving money to afford better housing, just as you and your parents did, or do you believe that they should be taught dependency on government? In summary, do you ever think before you vote, or do you just vote to feel good about yourself?


Generic “liberal”: I hope the migrant caravan reaches the U.S. border and overwhelms the government’s efforts to stop it.

Friend: Why do you hope that?

Generic “liberal”: Well, for one thing, borders are arbitrary. Everyone has the right to go anywhere in the world in an effort to benefit himself or herself.

Friend: You don’t believe in the sovereignty of the United States and the duty of the government to defend the territory of the United States? You don’t believe that illegal immigrants (to call them what they are) place a burden on America’s social infrastructure, a burden that taxpayers must bear — most of whom never reap the supposed benefits of immigration? You don’t believe that immigrant hordes include a disproportionate number of criminals, many of whom have been known to commit violent crimes against U.S. citizens? You don’t believe that the effect of mass, low-skill immigration is to reduce the wages and employment prospects of the economically disadvantaged Americans about whom you care so much?

Generic “liberal”: Well, all I know is that people have a right to go anywhere in search of betterment.

Soon-to-be ex-friend: So its okay if an illegal immigrant squats in your house, eats your food, and uses your credit cards?

Generic “liberal”: That’s different.

Soon-to-be ex-friend: No, it’s the same. You think it’s different because you’re wealthy enough not to be bothered by somewhat higher taxes — unlike the residents of your city who are being squeezed out by higher taxes. You live and work in places where you’re unlikely to be a victim of a violent immigrant. Your high-paying won’t be jeopardized by an influx of illegal immigrants. You are just a hypocrite.

Trump and Election 2018

This was a final update before election day. The Dems won a majority in the House, though  a narrow one. Meanwhile, the GOP has increased its majority in the Senate. That is the better half of the loaf because control of the Senate means that Trump can continue to remake the judiciary in a conservative image. Further, the House will be perceived as the obstructionist body for the next two years, setting the stage for a GOP restoration there. Barring the unforeseeable, a largely successful Trump presidency will set the stage for Republican dominance in 2020.

How is Trump’s popularity these days? And how will his standing with voters affect the outcome of tomorrow’s elections?

Trump’s approval ratings have been fairly steady since early in the year, with a recent uptick that bodes well for GOP candidates:

Derived from Rasmussen Reports approval ratings for Trump.

Lest you believe that those numbers are weak, consider this comparison with Obama’s numbers:

Derived from Rasmussen Reports approval ratings for Obama and Trump.

In this age of polarization, it’s hard for any president to routinely attain high marks:

Source: Same as figure 2.

The good news, again, is that Trump’s strong approval rating has been significantly higher than Obama’s for the past several months.

Ratios of the ratios in figure 2 yield enthusiasm ratios: the strength of strong approval ratings relative to overall approval ratings:

Source: Same as figure 2.

Since the spike associated with the Singapore summit, Trump”s enthusiasm ratio has settled into a range that is comfortably higher than Obama’s.

There is a different poll that is more revealing of Trump’s popularity. Every week since the first inauguration of Obama, Rasmussen Reports has asked 2,500 likely voters whether they see the country as going in the “right direction” or being on the “wrong track”. The following graph shows the ratios of “right direction”/”wrong track” for Trump and Obama:

Source: Rasmussen Reports, “Right Direction or Wrong Track“.

The ratio for Trump, after a quick honeymoon start, fell into the same range as Obama’s. But it jumped with the passage of the tax cut in December 2017, and has remained high since then, despite the faux scandals concocted by the leftist media and their concerted attack on Trump.

Figure 5 suggests that the squishy center of the electorate is lining up behind Trump, despite the incessant flow of negative “reporting” about him and his policies. (See “related reading” at the end of this post.) His base is with him all the way.

Trump’s coattails may be be decisive in November. Based on an analysis of the relationships between Obama’s popularity (or unpopularity) and the outcome of House elections, it looks like the GOP will hold the House while losing about 10 seats. (This is a very rough estimate with a wide margin of error.)

Rasmussen’s generic congressional ballot affords a similar view. The polling data, which are behind a paywall, span April 2007 to May 2015 (when the poll was discontinued), and January 2018 (when the poll was resumed) to the present.

This graph compares the polling results to date with the actual nationwide vote shares compiled by House candidates in the general elections of 2008, 2010, 2010, and 2014:


Taking a closer look:


Rasmussen advertises a 2-percentage-point margin of error, which is borne out by the results for the elections of 2008-2014. In fact, the generic congressional ballot was spot-on in 2010 and 2012, while the GOP under-performed slightly in 2008 (the year of the financial crisis) and over-performed slightly in 2014 (a mid-term referendum on Obama).

Let’s say, for the sake of argument, that this year’s polls are spot-on. The latest poll (figure 7) gives the GOP 51 percent of the two-party vote. How does that translate into House seats? Recent history is probably the best guide:


A 51-percent share of the vote would give the GOP about 52 percent of House seats; that is, the GOP would hold the House. In fact, two years ago the GOP won more than 55 percent of House seats with 50.5 percent of the two-party vote.

There’s more evidence against the loss of the House:

1. I correlated measures of Obama’s popularity (or lack thereof) with with the outcomes of House mid-terms during his presidency. I then applied those correlations to measures of Trump’s popularity (or lack thereof), which is markedly higher than Obama’s at this stage of their respective presidencies (according to Rasmussen, at least).

2. I correlated the outcomes of post-WWII mid-terms during GOP presidencies with the GOP presidents’ shares of the 2-party vote in the preceding elections. I then applied that result to Trump’s share of the 2-party vote in 2016.

Both methods yield the same result for 2018: a loss of 4 House seats by the GOP (yes, four seats, not 4 percent of seats). The estimates are surrounded by a wide margin of error. Given that, the results support the view that the GOP will hold the House.

In the end, the outcome will depend on turnout. Are Democrats more charged up than Republicans? I don’t think so.

Stay tuned.

Related reading:

Alex Castellanos, “How Trump Has Managed to Defy Gravity“, RealClearPolitics, July 31, 2018

Selwyn Duke, “Media Collusion: 100-Plus Papers Agree to Simultaneously Run Anti-Trump Editorials“, The New American, August 14, 2018

Dennis Prager, “The Greatest Hysteria in American History“, RealClearPolitics, July 24, 2018

Ned Ryun, “None Dared Call It Treason … When It Was a Democrat“, American Greatness, July 24, 2018