Political Theory

Pin It

America, Religious Freedom, and the Natural Law

by Tom Van Dyke on May 13, 2012

A recent George Weigel commencement address.

Defending Religious Freedom in Full: A Generation’s Challenge

“[A] special word of thanks, today, to the parents of today’s graduates — and the grandparents, and the other family members — who have helped bring you, the Class of 2012, to this pivotal moment in your lives.

natural lawyerToday is, by its nature — and I think at Benedictine College we can still speak of the “nature” of things! — a day of celebration, a day of remembrance, and a day of thanksgiving.

We share, today, a unique and critical moment in the history of the Catholic Church in the United States. At the time of the American Revolution, Catholics accounted for less than one per cent of the population of the thirteen colonies — a tiny population clustered primarily in my native Maryland and a few Pennsylvania counties. Yet within a few decades of the Founding, the great tides of European immigration that began to wash onto the shores of the new nation – those “huddled masses yearning to breathe free,” as they are memorialized on the Statue of Liberty — brought millions of Catholics to the New World: at first, Irish and Germans; later, Italians, Poles, Czechs, Slovaks, Ruthenians, and the many others who wove their lives, their traditions, and their aspirations into the rich tapestry of American democracy. Those 19th century immigrants felt the sting of anti-Catholic prejudice, even anti-Catholic violence. But notwithstanding that bigotry, Catholics have, I believe, almost always felt at home in these United States.

We have felt at home because we have thrived here; with the exception of immigrant Jews, no religious group has prospered more in America than the Catholic community. Yet Catholic “at-homeness” in the United States has had a deeper philosophical and moral texture. One of the great Catholic students of American democracy, Father John Courtney Murray, described that side of the Catholic experience of America in these terms, in We Hold These Truths: Catholic Reflections on the American Proposition, a book published fifty-two years ago:

In this second decade of the third millennium, there are many grave questions be debated in America: the question of the legal protection of innocent human life from conception until natural death; the question of long-term strategy and morally worthy tactics in the war against Islamist jihadism; the question of how we attend to the sick and how we manage immigration; the question of fitting public policy ends to fiscal means; the question of building an appropriate regulatory structure around the biotech revolution so that the new genetic knowledge leads to genuine human flourishing rather than to a stunted and manufactured humanity; the question of the health of American civil society and of the American national character; the list goes on and on. The very question of what should be on “the public policy agenda,” and what ought to be left to the private and independent sectors, is being as vigorously contested in our country today as at any time since the Great Depression and the New Deal. Yet amidst all this churning, the gravest question for our public culture is whether what Father Murray called the “American consensus” — that ensemble of “ethical and political principles drawn from the tradition of natural law” — still holds.

There are reasons to be concerned.

In October 2009, the nation’s political newspaper of record, the Washington Post, ran an editorial condemning what it termed the “extremist views” of a candidate for attorney general of Virginia who had suggested that the natural moral law was still a useful guide to public policy. The Post, determined to nail down the claim that homosexual orientation is the equivalent of race for purposes of U.S. civil rights law, deplored this as “a retrofit [of] the old language of racism, bias, and intolerance in a new context.” Yet the Post’s own claim was, to adopt its language, “extremist.” For it suggested that the label “bigot” ought to be applied to notable historical personalities who had appealed to the natural moral law in causes the Post would presumably regard as admirable: figures such as Thomas Jefferson, staking America’s claim to independent nationhood on “self-evident” moral truths derived from “the laws of nature”; or Martin Luther King, Jr., arguing in his Letter from Birmingham Jail that “an unjust law is a human law that is not rooted in eternal law and natural law”; or Pope John Paul II, who, at the United Nations in 1995, suggested that the truths of the natural moral law — “the moral logic which is built into human life,” as he put it — could serve as a universal “grammar” enabling cross-cultural dialogue.

Appeals to the natural moral law we can know by reason underwrote the American civil rights revolution. Appeals to that same natural moral law underwrite the pro-life movement, the successor to the civil rights movement. And appeals to the natural moral law have underwritten U.S. international human rights policy for the past thirty years. Until, that is, December 2009, when the Secretary of State of the United States, in a speech at Georgetown University, emptied the concept of religious freedom of everything save the “freedom to worship” while asserting, in a catalogue of what she claimed were fundamental international human rights, that people “must be free…to love in the way they choose” — which “choice” must, presumably, be protected by international human rights covenants and national and local civil rights laws.

This speech, as things turned out, was one harbinger of an assault on religious freedom that continues to this day — an assault that imagines “religious freedom” to be a kind of “privacy right” to certain leisure-time activities, but nothing more than that. This dramatic misconception of religious freedom was evident in the present administration’s attempt to re-write federal employment law by dissolving the “ministerial exemption” that had long protected the integrity of religious institutions. It was evident in the administration’s refusal to continue funding the U.S. bishops’ efforts to help women who had been victims of sex-trafficking (because the Church refused to provide abortion as part of that work). And it has been most dramatically evident in the January HHS mandate that requires all employers (including religious institutions with moral objections and private-sector employers with religiously-informed moral objections) to facilitate the provision of contraceptives, sterilizations, and abortifacient drugs like Plan B and Ella to their employees.

All of this suggests that one of the great challenges of your generation, my fellow-members of the Class of 2012 of Benedictine College, will be to rise to the defense of religious freedom in full. And, indeed, what could be a more apt challenge for the graduates of a college named in honor of the saint whose inspired vision and evangelical vision saved the civilization of the classical world when it was in danger of being lost? What better challenge for the graduates of Benedictine College, named for one of the patrons of Europe, whose life-work saved the West as a civilizational enterprise built from the fruitful interaction of Jerusalem, Athens, and Rome?

For the defense of religious freedom in full which you must mount must be both cultural — in the sense of arguments winsomely and persuasively made — and political, in that you must drive the sharp edge of truth into the sometimes hard soil of public policy.

What is this “religious freedom in full” that you must defend and advance?

It surely includes freedom of worship, but it must include more than that; the Kingdom of Saudi Arabia is content with freedom of worship, so long as the Christian worship in question takes place behind closed doors in the American embassy compound in Riyadh. Religious conviction is community-forming, and communities formed by religious conviction must be free, as communities and not simply as individuals, to make arguments and bring influence to bear in public life. If religiously informed moral argument is banned from the American public square, then the public square has become, not only naked, but undemocratic and intolerant. If, on the other hand, religiously informed moral argument is welcome in public life, then we have the possibility of rebuilding, not a sacred public square (a goal the Catholic Church rejected at the Second Vatican Council), but a civil public square, in which tolerance is rightly understood as differences engaged within a bond of civility formed by a mutual commitment to reason.

It is a matter of both political common sense and democratic etiquette that Catholics in public life should make our arguments in ways that our fellow-citizens, who may not share our theological premises, can engage and understand — which is to say, in our particular case, that Catholics should bring to bear in public life the moral truths we hold through arguments framed by the grammar and vocabulary of the natural moral law. That is what John Paul II did at the United Nations in 1979 and 1995. That is what Benedict XVI did at the in 2008 and in the German Bundestag in 2011. That is what the bishops of the United States, and lay Catholics in their millions, have done over the past four decades in defense of life. And if there are some who consider such appeals to the natural moral law a form of tarted-up bigotry, well, we shall simply have to inform them, politely but firmly, that they are mistaken, and then demonstrate why.

Religious freedom in full also means that communities of religious conviction and conscience must be free to conduct the works of charity in ways that reflect their conscientious convictions. This is neither the time nor the place to discuss the problems that have been posed by tying so much of Catholic social service work and Catholic health care to government funding — save, perhaps, to note that these problems did not exist before the Supreme Court erected a spurious “right to abortion” as the right-that-trumps-all-other-rights, and before courts and legislatures decided that it was within the state’s competence to redefine marriage and to compel others to accept that redefinition through the use of coercive state power. What can be said in this context, and what must be said, is that the rights of Catholic physicians, nurses, and other health care professionals are not second-class rights that can be trumped by other rights-claims; and any state that fails to acknowledge those rights of conscience has done grave damage to religious freedom rightly understood. The same can and must be said about any state that drives the Catholic Church out of certain forms of social service because the Church refuses to concede that the state has the competence to declare as “marriage” relationships that are manifestly not marriages.

My fellow-graduates, your defense of religious freedom is going to require the skills of reasoning and argument that you acquired here at Benedictine College. It is going to require that some of you accept the risk and challenge of public service in elective office. And it going to require all of you to support those who take, as their vocation, the defense and promotion of religious freedom in full.

This will be the work of a lifetime. But it must begin sooner rather than later, for the threats to religious freedom among us are great, and many of them are deeply embedded in postmodern American culture. This work will not be without cost. Some of you may suffer various forms of martyrdom in taking up this cause: the martyrdom of ridicule, of being labeled “intolerant” and “bigoted”; the martyrdom of career paths blocked and promotions denied because of your adherence to the moral truth of things; the martyrdom of political defeat, or a judicial case well-argued but lost. Fidelity to the truth can have its costs. Yet as Blessed John Paul II taught young people all over the world, those costs are worth paying because the truth sets us free in the deepest sense of human liberation. Thomas More, patron saint of Catholics in public life, was never more a free man than when he bent his neck to the executioner’s axe in free adherence to the truth.

Let us pray that it does not come to that for any of you, or indeed for any of us. But let us also be clear on the stakes for which your generation is playing, which are nothing less than the long-term integrity of American democracy. So: be the culture-forming heirs of St. Benedict that your education here has prepared you to be. Be the champions of religious freedom in full. In doing that, you will give America a new birth of freedom — freedom tethered to truth and ordered to goodness, freedom that sets us free in the noblest sense of human liberation.

Godspeed on your journey.

Delivered May 12, 2012 at Benedictine College, Atchison, Kansas.

{ 77 comments }

Pin It

Our Unlovable Constitution

by Tim Kowal on February 7, 2012

A new study by David S. Law and Mila Versteeg concludes that the world’s democracies are no longer emulating the U.S. Constitution, and are instead resorting to other templates that guarantee more “generic building blocks of global rights constitutionalism,” including “women’s rights,” “the right to social security, the right to health care, and the right to food.”  The study suggests that the U.S., “rooted in a libertarian constitutional tradition that is inherently antithetical to the notion of positive rights,” is in danger of becoming a “legal backwater.” 

Supreme Court Justice Ruth Bader Ginsburg seems to agree.  According to a recent interview, Justice Ginsburg said “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said.  She recommends the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights. (Via NY Times.)  Law and Versteeg similarly find that “the average constitution has increasingly grown to resemble the International Covenant on Civil and Political Rights and the European Convention on Human Rights, as well as the African Charter on Human and Peoples’ Rights and the Charter of Civil Society for the Caribbean Community.” 

The other “generic building blocks” Law and Versteeg conclude are missing from the U.S. Constitution include “Right to work,” “Right to unionize and/or strike,” “Physical needs rights,” “Right to education,” and “Limits on property rights” (e.g., “property may be limited by its social function”).  Other popular “rights” include “Citizen duties,” “Right to a healthy environment,” “Other worker’s rights,” and “Artistic freedom.”

Two observations:

First, it is not clear that Americans ought to care whether other countries use the U.S. Constitution as a template.  I can think of just two possible arguments why they should:  (1) conformity is somehow good for its on sake; or (2) other countries’ constitutions are somehow substantively better than ours, and thus we should bring ours up to snuff.  The study does not raise either argument, but it is hard assume the authors have no opinion on the matter and yet proceeded to spill 80 pages of ink painstakingly studying the issue.  This is the way modern social science is done, I understand:  treat all facts as created equal and avoid offering any overt “value judgments.”  The authors’ silence on the values question is so deafening, though, that their refusal to simply lay them on the table is a perhaps unexpected distraction. 

Second, neither the study nor Justice Ginsburg address the role the Court has played in modifying the constitution and preventing formal amendments.  The Constitution used to be formally amended more frequently than it is today.  It is counter-intuitive that it is now seldom amended even as people tend to understand less and less of its “original” meaning.  As I expressed in a recent discussion with James Hanley, by now, the meaning of the Constitution must seem very distant to most Americans.  Most discussions about the Constitution do not even quote its text.  Originalism makes the Constitution distant because it means people need a history degree before they can understand it.  Living constitutionalism makes it distant because it means people need a law degree to understand it.

If Americans are taught that they can’t understand what their Constitution says—or worse, that it has no fixed meaning at all—then they will never agitate for change.  Constitutional participation will never be more than fighting over who gets to nominate and approve Supreme Court justices—the delegates to what Woodrow Wilson called our “constitutional convention in continuous session.”  A recent poll (which I can’t seem to find now) reported the oft-repeated observation that of all American political institutions, the courts are by far the most trusted.  But the poll went on to observe that most Americans believe that, when courts find rights in the Constitution, the rights are really in there and not just spun out of judicial philosophy.  If Americans are astray in their constitutional understanding, they’ve been led there.  

Despite this disconnect between modern Americans and their Constitution, we’ve little hope of amending it.  Even if the breathtaking amount of political will could be mustered, it can be bested or undone by a crack legal team and a carefully selected litigation strategy, or by a willful executive armed with a good crisis to forge a “constitutional moment” that changes our constitutional presumptions without any formal writing at all. 

Americans thus have little reason to feel they can understand the constitution, and less reason to feel they can change it. 

It seems unfair, then, for Justice Ginsburg to criticize the Constitution.  That document has proven fertile ground for her and her living constitutionalist colleagues.  And its ossification owes in no small part to legal and judicial philosophies to which she subscribes. 

Not that this is all the Court’s fault.  The great sin of slavery brought us Civil War, and with it a remade Constitution.  This, even before the progressive and liberal legal revolutions of the 20th century, made it almost impossible to know exactly what would be required by that new constitution, rededicated to the proposition that all men are created equal.  But it is still overwhelmingly true that Americans swear fealty to the original principles of the Declaration and the Constitution—that the basic unit of our political system is the individual and not the state; that rights are something in us and not given to us; that government is best which governs least.  Those American principles seem conspicuously absent from the constitutions in Law and Versteeg’s study.  If that fact has any effect at all on Americans, it will likely only cause them to redouble their commitment.

{ 61 comments }

Pin It

No, Americans are not “operationally liberal”

by Tim Kowal on January 14, 2012

Responding to my demurrer to “the old saw that Americans are ideologically conservative but operationally liberal,” Yeggmen sticks up for the saw: 

what researchers have (repeatedly) done is get a bunch of people together and have them fill out a long and comprehensive political questionnaire. They ask them to choose an ideological label, vague questions about principles (e.g., whether the government should do more or less), and ask them thousands of questions on specific policies in order to ascertain the ideological character of their policy preferences.

Here’s what they found:

In the aggregate, Americans are always operationally liberal on average.
They prefer policies through which the government does and spends more to solve social
problems. And they are always symbolically conservative on average: they consistently prefer the
conservative label to the liberal one.

With respect, to explain the saw is not to defend it.  My argument is not that Americans do act consistently with their conservative self-identification.  My argument is that if Americans are “operationally liberal,” it’s because they’ve been painted into a corner.  As I wrote on Yeggman’s blog,

one might say Americans are “operationally liberal” who support laws like RLUIPA, or national education reforms, etc. Point being, liberals have changed the way political structures can be influenced, and conservatives have to play by these rules. For example, I might oppose federal dollars being spent on local schools. But a liberal California court changed the way residents paid for their children’s education, resulting in the passage of Prop 13 by concerned homeowners who suddenly lost the value of their investments due to the ruling, which ultimately wound up starving many California schools. ESL and other programs required by law, as well as overhead for liberal teachers unions also use up limited local funds. Am I “operationally liberal” to approve of federal funds or other national reforms to keep the whole patchwork going at least until my daughter graduates? Again, I think it’s a lousy political dig to say so.

Americans might also be “operationally liberal” because programs like Social Security work like, and may even be branded as, investment arrangements when they are actually generic liberal tax-and-spend programs.  Again, as I wrote in the comments on Yeggman’s blog,

many Americans believe that they’re entitled to social security not because young working people have a general moral obligation to pay for their retirement, but because they understand, incorrectly, that they’ve paid into something of a trust account. Thus, their support for social security is actually quite conservative (notwithstanding the big government aspect of it). I’d guess roughly the same psychological phenomenon is happening with medicare. It is disingenuous to call these folks “operationally liberal” when they have been made to pay into a system that looks like a retirement account and acts like a retirement account but is, by design of New Deal liberals, a liberal tax and spend program.

Public education is an especially impacted victim of 20th century progressive liberalism, suffering the confusion, expense, and indignity of having to incorporate the vagaries of First Amendment decisional law—and later other civil rights, some welcome but many bizarre—into the operations of local schools.  When student performance nosedived in the latter half of the century, there was no use in troubleshooting—everything had been changed.  The only thing left to do was follow one period of rash liberal experimentation with another.  And then another.  There’s no such thing as a “conservative” position on education anymore.  It’s got a century of liberalism’s fingerprints all over it. 

Beyond education, many liberal policies have become status quo.  And people don’t tend to assign labels to the political furniture they’ve become accustomed to.  Should we have a progressive tax code?  Well geez, haven’t we always?  Next.  Should the government require that workers get a “living wage”?  What should they get, a dying wage?  Next.  Should we spend a lot of money to protect the environment?  Aren’t we already?  And there’s always those folks mouthing off about how badly we’re still doing.  Better not do any less, then, I guess.  Next.

If this is what “operationally liberal” looks like, you can go right ahead and spare me. 

And this is not to mention favoring policies that directly benefit those being polled, such as laws favoring unions or subsidies, etc.  When President Bush sought to introduce personalized accounts into the Social Security system, a 2005 survey showed the most negative responses to the proposal was from respondents in their 50s—older baby boomers.  This was explored by Andrea Louise Campbell in How Policies Make Citizens.  Government policy was directly connected to this constituency’s well-being.  It would be obtuse to call this “operational liberalism.” 

(I’ll drop this in as a parenthetical, because I can’t figure out how to read the report Yeggman cited.  But the “political questionnaire” referenced there provides only topics, not actual questions.  E.g., “Spending on Welfare,” “Spending on the Poor,” “School Choice,” “Abortion,” etc.  How are the researchers interpreting responses to any of these topics as “conservative” or “liberal”?  I can think of both conservative and liberal reasons to favor and disfavor each of them until they’re made into English sentences.)

There’s all sorts of deck-stacking that goes into why people favor particular policies.  And it’s easy for liberals to sell a single policy, because they sound nice taken individually.  But when offered a choice between political philosophies, theories, worldviews, whatever you want to call them, Americans identify as conservative.  That counts for something.  It means that the informed liberal knows it’s going to take some doing to get these conservative Americans to endorse their policies.   More than just huckstering.  Americans are smarter than they’re sometimes given credit for. 

If Americans won’t be sold on the liberal narrative, then the liberal’s play is scorched earth:  convince them that all narratives are a stupid waste of time.  Liberals, in fact, don’t even have a narrative.  That’s offered as proof enough.  Narratives are then subverted by modern social science that villainizes “value judgments” through which to interpret the endless data it collects, and divorces science from human ends and destroys our ability to learn from or build upon the past.  Sound bite politics works well in this cause.  If I get all my politics in op-eds and four-minute news segments, that’s just enough to hear the conclusions of some of the aforementioned liberal social science data miners.  There’s no possibility I’ll learn the role liberalism played in creating the problem at issue, and thus why I should reject the solution it offers.   Status quo, ho. 

Just please stop calling it liberalism.

{ 27 comments }

Pin It

On the Third Rail: Race, Poverty, Culture

by Tom Van Dyke on January 14, 2012

“Generational poverty” is often used or taken as code for “black.” Even by those who mean well.

However, rural poverty is just as persistent, and it of course is as caucasian as it is anything else and usually more so. I do find Thomas Sowell’s “Black Rednecks” thesis intriguing, that it’s lowbrow Scots-Irish culture that infects the poor of both races:

[Wiki, sorry]: “Sowell argues that the black ghetto culture, which is claimed to be “authentic black culture”, is historically neither authentic nor black in origin. Instead, Sowell argues that the black ghetto culture is in fact a relic of a highly dysfunctional white southern redneck culture which existed during the antebellum South. This culture came, in turn, from the “Cracker culture” of the North Britons and Scots-Irish who migrated from the generally lawless border regions of Britain.

Sowell gives a number of examples that he regards as supporting the lineage, e.g.,

an aversion to work, proneness to violence, neglect of education, sexual promiscuity, improvidence, drunkenness, lack of entrepreneurship,… and a style of religious oratory marked by strident rhetoric, unbridled emotions, and flamboyant imagery.”

I’ve done some poking around on my own, and as recently as 1950 or so, both marriage and employment rates for blacks and whites were approximately equal.

[See also Herbert G. Gutman's seminal The Black Family in Slavery and Freedom, 1750-1925.]

Something happened since then. Indeed, whites have been similarly beset by an increase in these pathologies, albeit not as accentuated as in the urban black community.

Indeed, see Theodore Dalrymple’s Life at the Bottom: The Worldview That Makes the Underclass, of which John Derbyshire wrote

Americans may find it surprising that most of the people wallowing in this slough of ignorance, illiteracy, promiscuity, bastardy, intoxication, vice, folly, lawlessness, and hopelessness are white English people. Much of what is described here is the sort of thing Americans instinctively associate with this country’s own black underclass. There is some satisfaction, I suppose, though of a very melancholy kind, to be drawn from the revelation that sufficiently wrong-headed social policies, persisted in with sufficiently dogged refusal to face simple truths, will visit moral catastrophe on people of any race.

I find this essential to keep in mind while discussing this subject. Race may be a factor but only in degree, not kind. “Code” is unnecessary [and then the predictable implication of a racist agenda] in looking at the problem, if we’re to look at it at all.

{ 26 comments }

Pin It

Abortion and Eugenics

by Tom Van Dyke on December 31, 2011

Eugenics still exists. There’s no nice or PC way to say this, but we abort our imperfects now.

JP Morgan, a rich bastard everybody hated and for good reason, was drug up before the Senate for whatever. A flak for the Ringling-Barnum circus stuck a midget in his lap as a PR stunt.

Lya Graf didn’t like the world spotlight, retired back to Germany. She was decreed a “useless person” by the Nazi state, arrested in 1937, sent to Auschwitz in 1941. The rest is obvious.

In the 21st century, we tend to make sure that such persons are never born in the first place. This is progress.

____________________

At the request of Christopher Carr and Brother Rufus—and spurred by some of the thought-provoking comments, I did think there was interest in discussing this further.

Eugenics, of course, was one of the first very big and very lousy ideas of post-Darwin modernity. When man came down from his self-built pedestal and became just another animal, there seemed no logical or scientific reason why he couldn’t breed himself into something more perfect: smarter, stronger, more beautiful. This also meant that some individuals or groups were considered better breeding stock than others—and it made sense to breed more of the better and less of the worse.

We look back with disgust on the 1927 Supreme Court forced-sterilization case Buck v. Bell, where Oliver Wendell Holmes infamously ruled that “three generations of imbeciles are enough,” that

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.

Nazism took these modern ideas to the absurd extreme, a self-anointed “master race,” and suppression and extermination of the lesser ones. Lya Graf wasn’t only a midget, she was half-Jewish, born Lia Schwartz. She had no chance.

We are properly revolted at Nazi eugenics, and we are agreed, Never Again.

But as Brother Rufus pointed out, in the Western world, we now routinely abort over 90% of Down Syndrome pregnancies. In the UK, where abortions are more restricted than in the US, spina bifida, cleft palate and club feet are still reasonable grounds for abortion.

And in the developing world, in India and particularly China, pregnancies are aborted for gender selection: in China, so much so that among those under 20, there are now 123 boys for every 100 girls [the natural ratio is 106 to 100].

The Western world is largely appalled. However, under our own rightstalk, abortion is a “choice,” but as we see, it’s only a legitimate and allowable choice if “we” agree with the reasons.

An interesting play of some years back was called “Twilight of the Golds.” In some not-distant future the “gay gene” has been identified [it has not been, so far], and a family is faced with the choice whether to abort.

“Choice” was seen as a solution to our legal and moral conundrum, as if it’s the last word on the subject. But all it has done is mask the dilemma—we have not yet begun to think about the question at all, we’ve simply buried it under a single facile word. We remain moral imbeciles.

{ 125 comments }

Pin It

John & Yoko’s Happy X-Mas: Not Very Happy

by Tom Van Dyke on December 23, 2011

[Do stick around for the punchline.]

So I’m in the local liquor store here in SoCal, owned by the Mexican Mafia and clerked by Armenians, buying a few oil cans of Foster’s green, the ale, not the blue one, the lager. [Ace, the closest thing to an English bitter you'll find stateside in mass production.]

Anyway, it’s all Christmasy on the overhead music. Burl Ives’ “Holly Jolly Christmas,” jingle bell rockin’ kind of non-sectarian non-Jesusy stuff.

Feeling kind of up. Holidays are cool, esp the one that makes us somewhat less sucky to each other for a month.

Then John Lennon comes on. Now, I dig Lennon completely as an artist, even his solo stuff. And as a songwriter meself, I’m just in awe of this one, “Happy XMas [War is Over].” Even has a brilliant key change from the verse to the chorus, holding the sub-dominant and sneaking it in as the dominant to lead into the chorus.

I get it. A nice, even a great, piece of art. So this is Christmas, a Martian or a philosopher might say, from a very great distance above the human Christmas herd.

As for the “message” in the verses, there isn’t one. The near and the dear ones, the old and the young, whatever, blahblah.

So, on to the chorus, the reason for the song being:

A very merry Christmas
And a happy New Year

What’s not to like? Major chordy, fit for Burl Ives, all holly and jolly.

Then the minor chord hits, sung with

Let’s hope it’s a good one

Shit, it sounds ominous now. Not holly or jolly atall.

Without any fear…

Thx, John & Yoko. But I wasn’t thinking about “fear” in the first place. Don’t think of a pink elephant! I wasn’t even thinking about “fear” until you mentioned it. Now all I’m thinking about is fear and not Merry Xmas.

Bummed me out. Fear. Thanks a lot, guys. Not feeling holiday atall anymore, just you can feel good, Tom, but not too good. Not with all the human suffering in the world. You have no right. To feel good while others are suffering, without any fear, well, you selfish bastard you.

The “official” video is an even bigger buzzkill. You want undifferentiated human suffering, you wanna feel bad about feeling good, this video’s for you, human suffering on parade if you needed to go find some.

So, picking up my tale, I’m making my way out with me Foster’s ale apologetically tucked under me arm, away from John & Yoko, and then the guy behind me has the nerve to wish me Merry Christmas. He obviously felt good about it, despite all the suffering in the world and all.

It was all I could do to hold the door open for him instead of slam it in his face, the selfish bastard.

LATE ADD: So the punchline is, a friend asked me to do a charity gig for the children, and I had to learn and sing harmony on Happy X-Mas [War is Over], if you want it, as if wanting wars to end makes it so. Now I can’t get the frigging song out of my head.

What a humbug.

war is over

{ 3 comments }

Pin It

Under Siege: How Government Centralization and Expansion Puts Democracy in the Service of Special Interests

by Tim Kowal on December 18, 2011

In its first full year of business in 1998, the 99 Cents Only store in the north Los Angeles city of Lancaster did over $5 million in sales. This was welcome news to the city, given the space had been vacant ever since the new “Power Center” shopping development, where 99 Cents was located, opened ten years earlier. Almost immediately, however, 99 Cents’ next door neighbor, Costco, told the city it needed to expand. The owner of the center offered Costco optimal space behind 99 Cents, but Costco insisted that the city use its power of eminent domain to condemn 99 Cents’ business. If the city refused, Costco threatened to relocate to neighboring Palmdale, who surely would use ever tool at its disposal to attract the lucrative big box store’s business. To seal the deal, Costco issued an additional threat: not only would it relocate to Palmdale—it would leave its existing store shuttered and vacant as an economic deadweight on the city’s key commercial center. Backed against the wall, the terrified city relented. It condemned 99 Cents’ store, paid the shopping center owner $3.8 million, and give the parcel to Costco for one dollar.

This story typifies what drives all rent-seeking: Motive and opportunity. Businesses seek economic advantage wherever they can find it, and they frequently find it in the coercive power of the state. Ill-defined limits on government powers—of which eminent domain is just one example—give businesses easy access to this power. When the economy grows, the motive to capture the government intensifies. When government is centralized, the opportunities to capture it get cheaper and more convenient. When the limits on government recede, these opportunities get still cheaper and more abundant. Motive explains why rational private interests engage in rent-seeking: to gain a competitive edge. Opportunity—that is, the opportunity for access to government power through ill-defined limits on that power—explains why rational government officials yield to special interests: they face a “race to the bottom.” If the Lancasters of the world refuse to use their coercive government power for the benefit of special interests, some other government official or agency will. Denying access to special interests just means they will look elsewhere. And they will surely find it, so long as giving in to special interests is a matter of legislative “discretion.”

Motive and opportunity answers the problem of political corruption at the heart of Lawrence Lessig’s new book, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It. Corruption, for Lessig, is not limited to vile, money-in-the-briefcase, quid pro quo corruption. The kind of corruption destroying American politics is systemic, in which ordinary people—both those in power and those seeking access to it—respond logically to powerful incentives. The opportunity for access to influence in the increasingly centralized federal government is overwhelming. This access has caused trust in government to reach an all-time low. Just 12% of Americans in 2008 had confidence in Congress, falling to 11% midway through Obama’s presidency. According to Lessig’s own poll, a staggering 75% believe “campaign contributions buy results in Congress.”

The distrust is justified according to Lessig by looking at the dramatic recent increase in campaign contributions. From 1974 to 2008, the average Congressional reelection campaign surged from $56,000 to over $1.3 million. The total spent by all candidates in the eight years prior to 1982 increased 450%. By 2010, it spiked another 525% to $1.8 billion. The financial sector alone spent $1.7 billion in campaign contributions and $3.4 billion in lobbying expenses between 1998 and 2008. The contributions of just 100 financial firms since 1989 total more than those of the entire energy, health care, defense, and telecom industries combined.

The motive for all this lobbying? Access to power over a national economy that, over the past 70 years, has been increasingly centralized in a single legislature—i.e., Congress. Henry Manne recognized in 1966 that “the federal government is the largest producer of information capable of having a substantial effect on stock-market prices.” According to University of Kansas researchers, every dollar spent on lobbying in D.C. returns between $6 and $20. The effectiveness of these dollars increases exponentially for major firms. After about $800,000, an additional 1% in lobbying produces tax benefits between $4.8 and $16 million—a 600% to 2,000% return. Rational economic actors are hard pressed to find better opportunity to advance their motive. This explains why, from 1971 to 1981, the number of registered lobbying firms in D.C. jumped from 175 to almost 2,500, and to 13,700 by 2009. These firms spend about $6.5 million per federal legislator per year. These lobbyists and the special interests they represent follow the model of Tammany Hall boss George Washington Plunkitt who, in explaining his self-styled “honest graft,” said “I might sum up the whole thing by saying: ‘I seen opportunities and I took ‘em.’”

A national economy governed by a single, centralized government, offers a rich variety of opportunities to access the levers of power. Lessig offers corn subsidies as an example. High-fructose corn syrup, a new invention in 1980, enjoyed a 35% share of sugar consumption in the U.S. just five years later, and a 41% share by 2006. Not that the stuff is actually profitable. Lessig notes that “every $1 of profits earned by ADM’s corn sweetener operation costs consumers $10, and every $1 of profits earned by its ethanol operation costs taxpayers $30.” This is due to high tariffs that keep competition largely limited to eight manufacturers who receive $1 billion in extra profits from the tariffs at a cost of about $3 billion to consumers.

These policies lead to freakonomics-style unintended consequences: In addition to hurting legitimate American businesses, consumers, and developing nations, federal corn subsidies and cane tariffs contribute to the proliferation of drug-resistant suberbugs like E. coli and salmonella. Cows and their seven stomachs are evolved to digest grass. By contrast, corn digests poorly, giving bugs time to brew, making the cows sick. In response, farmers supplement the cows’ corn diet with tons of antibiotics—25 million pounds every year, eight times the amount consumed by humans. Because corn is so heavily subsidized by the federal government, however, corn feed plus 25 million pounds of drugs still costs less than grass. This proliferation of antibiotics among cows, and passed up the food chain to us, fosters stronger, antibiotic-resistant bacteria.

The federal government extends similar subsidies and protections to the dairy industry. Price setting and other regulations increase the price consumers pay for milk by 26%, cheese by 37%, and butter by 100%. Again, the principal recipients of these subsidies are those farms with the greatest access to influence: 10% of the recipients of farm subsidies collect 73% of the subsidies, while the bottom 80% take just $3,000 each on average.

At one level, none of this ought to be surprising. Special interests are nothing new, and Lessig acknowledges that the warped influence of special interests on government was “the single most important corruption that the Framers were working to cure.” Nor can we reasonably claim surprise at the effects of wealth on politics. A hundred years ago, prominent statesman Elihu Root observed that as population and wealth increased, so would rent-seeking: “[P]olitical organizations controlled the operations of government, in accordance with the wishes of the managers of the great corporations. Under these circumstances our governmental institutions were not working as they were intended to work, and a desire to break up and get away from this extra constitutional method of controlling our constitutional government has caused a great part of the new political methods of the last few years.” Teddy Roosevelt concurred: “Corporate expenditures for political purposes… have supplied one of the principal sources of corruption in our political affairs.”

At another level, however, we have reason to suspect we are suffering more injury from special interests and crony capitalism than we have a right to. Had the Constitution’s limits on federal and state government power survived the 20th century, special interests simply would not have the opportunities they have today to capture government influence. Consider the nature of the opportunity that gave Costco access to Lancaster’s eminent domain power. It wasn’t money: the Constitution did not subject protection of private property to a highest-bidder qualification. It wasn’t cronyism: Lancaster officials, caught in the crossfire between rent-seeker and the awesome authority to decide the fate of private property, did everything it could to dissuade Costco and keep both stores. Instead, the cause was ill-defined limits on the government power. As a result of a series of U.S. Supreme Court decisions (culminating in Kelo v. City of New London a few years later in 2005), Lancaster was empowered—ironically, to its own detriment—to wield the eminent domain power subject to its own discretion and effectively without judicial oversight. This created opportunity for Costco to pit one city against another to demolish its competition, all removed from the actual marketplace. Though a federal district court in 2001 invalidated Lancaster’s transfer, Kelo upheld a similar transfer four years later.

The supply of influence is increased when limits on government authority are eroded or ill-defined. This opens the floodgates of money into politics, largely in the form of independent expenditures from rational rent-seekers. Regardless of whether this results in actual buying-and-selling of votes, the more certain and more disastrous result is the erosion of legitimacy in our democratic institutions: the individual sees his voice and political contributions drowned out by special interests with motive and opportunity to conscript lawmakers into their service.

Murray Kane, a Los Angeles redevelopment lawyer who helps cities take property for government projects, is perhaps an unlikely critic of ill-defined government power, at least when it comes to eminent domain. Yet, in 1995 Mr. Kane challenged the city of Diamond Bar when it similarly extended that power as an opportunity to serve private motives. Even though his clients benefit from eminent domain, Mr. Kane warned that eroding its limits would result in “a legislative backlash.” That backlash “could go beyond stopping redevelopment abuse, and will also hurt redevelopment in truly blighted areas where redevelopment is really needed.” Power exercised never fails to instill fear. It engenders trust only when its exercise is limited, and only so long as those limits are honored.

Members of Congress have not gleaned this lesson. Lessig explains how federal legislators increase the opportunity for special interests to extort rents from government—”[i]ncreasing ‘extortion’-inducing ‘rents’ produces only one thing: more extortion!” Our leaders seemed to have understood this at one time. Lessig recalls that 30 ago, Senator John Stennis, chairman of the Armed Services Committee, balked at hosting defense contractors at a fundraiser. “Would that be proper?” Stennis asked. “I hold life and death over those companies. I don’t think it would be proper for me to take money from them.” By 2006, however, Senator Chuck Hagel observed that “We’ve blown past the ethical standards, we now play on the edge of the legal standards.”

In his new book, Throw Them All Out, Peter Schweizer argues that the only reason politicians have not blown past legal standards as well is because, as the ones who write the legal standards, they’ve made themselves exempt. Congress imposes conflict-of-interest rules on everyone in the executive and judicial branches of the federal government. But Schweizer reports that the House’s 400-page ethics manual and the Senate’s 500 page manual “are silent on the matter of inside trading” when it comes to Congress. He provides example after example of members of Congress, both Republican and Democrat, who engage in substantial stock trading at the same time they negotiate pending legislation concerning the very companies whose stock they trade. In the private sector, we call this insider trading. When Nancy Pelosi heavily invested in natural gas IPOs at the same time she championed federal legislation favoring the development of natural gas, she told Tom Brokaw, “That’s the marketplace.” In the real marketplace, however, the average American investor underperforms the market. The average corporate insider trading his own company’s stock and the average hedge fund outperforms the market by about 7%. The average U.S. senator, however, outdoes them all, beating the market by a stunning 12%. When Washington insiders talk about “the marketplace,” then, they’re speaking a different language.

Oddly, Lessig is reluctant to dole out blame for legislators’ perverse motives. Yielding to special interests “isn’t selling out,” he reasons. “It is surviving.” Congress passes laws with “sunset” provisions and “tax extenders” in order to drum up donations from laws’ supporters when expiration draws near. “For every time a ‘targeted tax benefit’ is about to expire,” Lessig explains, “those who receive this benefit have an extraordinarily strong incentive to fight to keep it.” Lessig notes that in the 1990s, there were fewer than a dozen tax extenders in the U.S. tax code. Now there are more than 140. Because the average legislator cannot stand up to special interests and still draw enough contributions for the next reelection campaign, Lessig contends, can we really blame them for playing along?

But the dog wags his own tail, too. Schweizer describes how members of Congress use “juicer bills” or “milker bills” to extort campaign contributions and favors from businesses and individuals. For example, Schweizer recalls that in 2006, Senate Majority Leader Harry Reid “announced that he wanted a tax hike on hedge funds,” and the following January, after Democrats captured both houses, “Senator Charles Schumer sat down to dinner with a number of top hedge fund managers” whose net worth totaled more than $100 billion. According to the New York Times, hedge funds were not significantly involved in lobbying or campaign spending until that time—typically well less than $2 million per year. After being “juiced” by Senators Reid and Schumer, however, hedge funds more than tripled their lobbying and campaign spending, clocking in at more than $6 million in 2007 and more than $7 million in 2008.

Legislators also deliberately create rents by limiting entry to economic activity, granting monopolies, restricting corporate charters, imposing tariffs, quotas, and regulations, and so on. By creating these rents, legislators form coalitions with rent-seekers who express their support through campaign contributions. This crony capitalism—not partisan politics or rigid ideology—explains American political dysfunction. “Our tax system is an abysmal inefficient mess not because of idiots at the IRS or on the Joint Committee on Taxation,” Lessig explains, “but because crony capitalists pay top dollar to distort the system to their benefit.” For the same reason, real financial reform remains out of reach so long as the government remains invested in protecting bloated banks. And real health care reform was impossible where “insurance companies and pharmaceutical companies had the power to veto any real change to the insanely inefficient status quo.”

Notably, Lessig expresses a brutal indignation for one politician who vowed, more earnestly and persuasively than any other in recent memory, to confront the breach of trust in Washington. This message earned space on millions of Americans’ bumpers and carried on the lips of many otherwise jaded young people. Now on the back nine of his term, Obama is “an opportunity missed”; “a bad joke”; “the last straw”; and, worst of all, “conventional.” As a further insult, Democrats have been aped by the Tea Party as the vehicle of true reform. “Earmarks were blocked in the 2011 budget because the Tea Party insisted upon it,” Lessig concedes. “There is an Office of Congressional Ethics, the only independent watchdog ensuring that members live up to the ethical rules, because the Tea Party insisted upon it.” To Lessig’s chagrin, this is not a message his compatriots on the left are ready to hear.

The motive and opportunity problem is structural. The motives of special interests are not problematic because they are illegal or unethical (though they are immoral). They are problematic because they are based in human nature and thus intractable. Just as water always flows downhill, the motives of special interests will always flow toward rational self-interest. These motives become problematic where the opportunities to promote self-interest are procedurally unjust. Blaming special interests or self-interest for the corruption in American politics makes no more sense than blaming rain for a leaky roof. The solution in both instances is structural: Fix the structure so as to prevent the intractable force of nature from flowing where it does not belong. In the case of special interests, this means ensuring political opportunities are procedurally fair by breaking up concentrations of political power and carefully constraining government’s power over economic transactions.

Concentrations of power draw special interests into politics. The larger the concentration of power, the more overwhelming the demand. When the average legislator represents a relatively small number of constituents and a relatively small share of the economy—i.e., where the concentration of power is low—rents tend to decrease. Like any other valuable resource, political power responds to supply and demand.

Consider the nature of the “supply” of power in D.C. Congress’s 535 members wield power over more than 300 million Americans—including their wealth-producing activity. Responsible for 30 volumes and 6,200 pages of statutes, and regulations consuming over 25 feet of shelf space, Congress presides over an annual economy well over $14 trillion. The average member of Congress wields power over a share of population of about 573,000 people, and a share of GDP worth more than $27 billion. Little surprise, then, that in 2010—the year the Supreme Court held in Citizens United that corporations had the same right to make independent campaign expenditures as individuals—independent expenditures tripled from 2006 to over $210 million. Focusing on the right to participate in the political process misses the point: it’s the incentives that matter.

Devolving basic governmental functions back to the states would go a long way toward breaking up the dangerous concentration of centralized power and curbing the destructive incentive to rent-seek. For example, Alaska—one of the 10 states for which independent expenditure data has been collected—is substantially more democratic than Congress. Alaska legislators represent on average fewer than 12,000 people and a share of about $760 million of the state’s total annual GDP. Iowa’s legislature is also relatively democratic: each state legislator represents about 20,000 people and about $980 million of GDP. Even less democratic states seem Athenian when compared to D.C. A vote in the state capital speaks for 43,000 people and $1.9 billion in Wisconsin; 45,000 and $2.4 billion in Washington; 50,000 and $2.6 billion in Colorado; 67,000 and $2.5 billion in Michigan; 71,000 and $2.9 billion in Arizona; and 117,000 and $4.7 billion in Florida. Special interest dollars invested in these states thus get substantially less mileage in these states than in D.C.

Conversely, the most undemocratic state in the union, California, fares even worse than D.C. in terms of political rent-seeking. Heavily concentrated Sacramento governs both the nation’s largest population and largest economy, yet has the 16th smallest legislature: The average vote purports to speak for a staggering 310,000 people and a $16 billion share of GDP.

These numbers matter when stacked up against independent political expenditure dollars. In 2010, independent expenditures in Alaska were less than $4 million—about $62,000 per legislator. In Iowa, the number is even more modest at about $40,000 per legislator. In power-concentrated Sacramento, by contrast, independent expenditure dollars flood in at a rate of more than $1 million per legislator. Note that in the chart below, the states are arranged left-to-right according to the population per legislator (per the graph above):

Rent-seeking thus becomes more aggressive where political institutions are less democratic. The centralization of power in legislatures like those in D.C., California, and Florida empowers lobbying and campaign dollars and creates influence-buying opportunities too good for special interests to pass up.

Rent-seeking opportunities are also tightly correlated with activist regulatory policy. In June 2011, George Mason University’s Mercatus Center published its Index of Personal and Economic Freedom, ranking the 50 states according to the impact of their respective regulatory landscapes. States with pervasive labor regulations, health-insurance coverage mandates, strict occupational licensing requirements, weak limits on eminent domain, and other negative impacts on economic liberty and property rights are given a lower score on the index. The rankings are indicated in the graph as follows:

Using the Mercatus Center’s regulatory freedom ranking, the trend in independent expenditures tilts decidedly upwards as regulatory impact increases:

Rent-seeking tracks regulatory intensity. This is not an indictment of the merits of the regulations, of course. For purposes of the exercise, we can assume that the regulatory landscapes of Florida, Colorado, Alaska, and California—the states with both the highest reported independent expenditures per capita and among the least regulatory freedom—were crafted with scrupulous dedication to the public interest. But it is special interests’ motives, not the lawmakers’, that matter. Again, Lancaster had no desire to condemn 99 Cents. Yet this did not deter Costco from leveraging ill-defined government power against it. And recall the political game Lessig describes that legislators must play: simplifying the law, removing tax extenders, and other measures in the public interest deprive politicians from much needed fundraising opportunities.

Similarly, there is no reason to assume the New Deal’s massive expansion of government programs was the result of anything but good intentions. This does not change the fact that, as Peter Schweizer points out, the Export-Import Bank is now known as “Boeing’s Bank,” devoting almost 40% of its entire $21 billion annual business in 2008 alone to that single special interest. We could also stipulate that the U.S. Fish and Wildlife Service and the EPA are charged with important work. Not that this matters to special interests. According to Schweizer, “states with House members on the budget oversight subcommittee responsible for funding the U.S. Fish and Wildlife Service and the Environmental Protection Agency had significantly fewer listings than other states,” and “‘Congressional representatives who sit on the Interior subcommittee of the House Appropriations Committee use their position to shield their constituents, at least partially, from the adverse consequences of ESA.’” Similarly, according to one study, “the IRS actually shifts enforcement away from congressional districts represented by legislators who sit on committees with oversight of the IRS.”

Centralization makes our democratic institutions less democratic, making fewer representatives responsible for the fate of greater shares of the economy and the population. This decline makes it easier for special interests to buy influence. The pressures of this influence lead lawmakers to engage in policymaking designed as much to elicit campaign dollars as to benefit the public. This conflicted-interest policymaking results in more opportunities for rent-seekers to buy or extract further political influence. Decentralization of federal power and returning governance to states and local governments will increase the democratic function of legislative institutions and make it more difficult and expensive to buy influence. States like California and Florida with poor democratic representation can increase the number of state legislators to make rent-seeking a more expensive proposition. These measures would substantially dry up opportunities for crony capitalism, and direct special interests’ profit motive to the marketplace where it belongs.

Regulatory reform, on the other hand, can only be achieved by the courts restoring the original understanding with respect to economic liberty. Even assuming pure motives on the part of a state legislature, the very fact that courts defer to its judgment on matters of economic and property rights creates opportunity for special interests to achieve their profit-driven motives through political influence rather than the market.

Modern movements demanding more government action in response to concentrations of wealth get the problem exactly backwards. Corruption and cronyism are fundamentally the result of concentrations of political power, which give special interests inexpensive one-stop shopping. For this reason did Montesquieu approvingly observe that the separation of government powers “should naturally form a state of repose or inaction.” Every act and agency of government taxes the people not only of their property and freedom, but of their trust in their democratic institutions. We must ask, then, whether the progressive new business government is charged to conduct is worth the increased corruption that will be transacted through the back door.

{ 97 comments }

Pin It

Can the Occupy Movement Tackle Crony Capitalism?

by Tim Kowal on October 29, 2011

In a comment on Shawn Gude’s previous post on the main page about the Occupy movement, I asked who the “1%” is and whether Occupy protesters were primarily aggrieved about “Wall Street,” or whether they were aggrieved about “wealth inequality” more generally.  Commenter Michael Drew referred me to this post at Rortybomb entitled “Who are the 1%, and what do they do for a living?” purporting to get right to the point.  Here’s the operative chart:

These numbers show that the wealth share of CEOs and other private sector executives has actually decreased almost 14% since 1979.  In contrast, the share of financiers increased more than 80%.  Yet the rest of the Rortybomb piece lumps business leaders into the same category as financiers.  Why? 

The most obvious explanation is that the Occupy movement is primarily organized around a moral commitment to a particular definition of “fairness” oriented around results rather than process.  I previously outlined the problems with drawing a necessary connection between wealth inequality and “unfairness” or “injustice.”  But I have also discussed the real problem of power inequality:

There is nothing unjust about economic inequality.  What does become unjust, however, is when those who benefit from an organized system of laws to amass wealth[ ] then use that wealth to abuse that system of laws.  What results, then, is not just wealth inequality (which I contend is no sin by itself), but power inequality.  Where power inequality exists in great enough measure, a political system can no longer sufficiently guarantee procedural fairness.  And where there is no guarantee of procedural fairness, wealth inequality suddenly becomes a real injustice—inequality of wealth is only just to the extent it is the result of free choices, and free choice cannot be presumed where there exists an inequality of power.

Pointing generally to wealth inequality fails to take into account the threshold-earner phenomenon and the clarion call of cultural critics to work less and eschew building financial fortune and to spend more time in non-economic activities. It also fails to account for the fact that, in real terms, the poor have experienced significant economic improvement in the past 30 years. The rest of us, too, get the benefit of the new technology and other cheap consumer goods that corporations invent, develop, manufacture, and distribute, many of which undeniably improve our lives. I previously made and developed these and other points on these pages in my review of Paul Krugman’s book.

If power inequality—e.g., “crony capitalism”—is the problem, does the Occupy movement have a solution?  Simply more regulation and more central control won’t get us there.  In fact, that road may wind up making matters worse.  Cronyism is a two way street.  True, the bigger an industry gets, the more resources it can devote to rent-seeking.  But that has nothing to do with the incentive to rent-seek.  A powerful interest has little reason to buy influence in a weak government.  The problem of faction and “crony capitalism” thus gets worse as government becomes more powerful and centralized. 

The controversial 2005 Supreme Court opinion in Kelo v. New London provides a worthwhile illustration.  The Supreme Court’s failure to enforce the “public use” clause of the Fifth Amendment, a structural check against the influence of factions, has led directly to more crony capitalism.  For example, corporations’ and developers’ wealth had little to do with the crony capitalism that befell Suzette Kelo when her home was taken by the city council of New London, Connecticut at the behest of the Pfizer Corporation—who later scrapped their plans and abandoned her bulldozed neighborhood as a blighted vacant lot.  Had the Court faithfully applied the Constitution according to its plain language—so as not to give near-unfettered discretion to local governments—Pfizer would have had no reason to rent-seek in the first place.  Had the law of the land clearly prohibited the taking of property from one private party to hand over to a more politically favored private party, Pfizer would not have bothered asking the town council to exercise a power it clearly didn’t have.

Fixing the damage done by Kelo is relatively straightforward because we know where the system failed.  Constitutional checks were already in place but the Supreme Court ignored them.  The Court can and at some point will reverse Kelo. 

The rest of our problems concerning economic and regulatory policy are more difficult because we’ve been operating off book.  Who do we blame for our financial crisis?  “Fat cats”?  “Crony capitalists”?  “Corrupt politicians”?  These are not new phenomenon.  They were baked in the cake as we evolved our federal government by way of court decisions and “Constitutional Moments.”  We got the progress and economic growth hoped for, but we failed to install structural checks against the downsides.  No wonder “class warfare” is brewing:  populist forces are rushing to fill the vacuum created by having altered the balance of governmental power that has given factions  more access to the levers. 

Somewhere under the din of bongos, the Occupy movement has some legitimate grievances.  However, a generalized grievance of against wealth disparity will not get us the structural checks we’ve been lacking.  The movement could take up a more intellectually cohesive position by rallying against centralized economic and financial planning and restoring America to a more constitutional model.  Unless it does that, I predict we’ll see some legislative reforms pandering to the vague demands of the movement, but little in the way of serious reform. 

[Cross-posted at the main page]

{ 1 comment }

Pin It

JonahG: Why “Liberaltarianism” is Doomed

by Tom Van Dyke on October 9, 2011

I wouldn’t even know what “Liberaltarianism” is except for this blog. It exists only in the ether of the blogosphere: I bet you could round up 2 liberaltarians, and a third would refuse the invitation to join them for tea. Goldberg writes:

But the gist of it goes like this. There are libertarians who really hate conservatism and/or the Republican party. They like liberals for one reason or another. Therefore, they want to dissolve the conservative-libertarian marriage and get the libertarians and liberals hitched instead.

Smells like that from here–united by what they hate: hey, you’re cool, I’m cool, let’s hook up. But that only goes so far. Liberals [I prefer "leftists" in this context] believe in legislation and better systems as the most effective solution to the ills of the human condition. Libertarians consider legislation and “systems” to be the absolute last resort to any human problem.

What the left and the libertarians have in common is pretending the status quo—conservatism, if you will—simply doesn’t exist except that it sucks. The left wants to reinvent the status quo; the libertarian wants to dispense with it as much as is possible.

All they really have in common is their distance from reality. Not to say that things can’t be improved, for any system or status quo is by definition imperfect since man is imperfect, but all the leftist and the libertarian have in common is discontent. One blasts off for the sun, the other for the stars, in completely different gravitational directions.

I admire them for their joint commitment to leaving Earth orbit. Progress is necessary to the human condition. But they’ll never agree as to their destination, so they can never get off the ground together. Checking out isn’t the same thing as going somewhere.

{ 90 comments }

Pin It

#OccupyWallStreet: Taking Up Space

by Tom Van Dyke on October 8, 2011

Tea Party-haters are taking painful pains to elevate #OccupyWallStreet, et al. to more cosmic importance than those populist twits.

My favorite so far is a fellow named Matt Stoller at michaelmoore.com, who writes:

the leftover left

“What these people are doing is building, for lack of a better word, a church of dissent.”

Wow. Impressive. A church, even.

Me, though, I think of the even more wise Jerry Garcia:

“It’s pretty clear now that what looked like it might have been some kind of counterculture is, in reality, just the plain old chaos of undifferentiated weirdness.”

It’s no fun keeping it to yourself–undifferentiated weirdness needs some place to go, some place to be. So if not here, where? If not now, when?

The entire “Occupy” mini-phenomenon [I must consider it "mini" here in Los Angeles until they can outdraw the Clippers] is beatified by Stoller as

“…a group of people, gathered together, to create a public space seeking meaning in their culture. They are asserting, together, to each other and to themselves, ‘we matter’”.

Oh, my. True in its way, because we all matter, in our way. But besides the Leftover Left in all their craggy glory as heroically depicted above, #Occupy is a function of the young, who have been let down by the system.

Greed: I want my turn!

I feel you, brother. $70,000 in hock to the Educational-Industrial Complex and still no job to pay off your medical bills, the ones you ran up spending your cash on clubs and sushi and gadgets instead of insurance. Now you’re streetcamping, trying to figure out how to make a meal out of Cup O’Noodles and a can of Red Bull.

Stickin’ it to The Man. The Man sucks, whoever He is.

Another quote from the sainted JerryG:

“We’ve been trying to sell out for years–nobody’s buying!”

The rubber just met the road. At least Jerry could play a good guitar. $70K worth of Education later, you don’t even know how to change the oil in a car, for which someone would actually pay you.

See, the #OccupyYoungbloods never got their chance to sell out, to cash in, never got their turn to get good and greedy. No wonder they’re pissed. It’s just not fair.

The worst thing in the world is to try to sell your soul and get no takers.

{ 7 comments }

← Previous Entries