Sowell Writes on the NSA Flap

Thomas Sowell:

"Terrorists and terrorist governments are giving us almost daily evidence of their fanatical hatred and violent sadism, as the clock ticks away toward their gaining possession of nuclear weapons. They not only hold a harmless young woman hostage in Iraq, they parade her in tears on television, just as they have paraded not only the terrorizing, but even the beheading, of others on television.

Moreover, there is a large and gleeful audience in the Arab world for these gross brutalities, just as there was glee and cheering among the Palestinians when the televised destruction of the World Trade center was broadcast in the Middle East.

Yet what are we preoccupied with or outraged about? Whether the American government should intercept the phone calls of these cutthroats to people in the United States.

That question has been sanitized in the mainstream media by asking whether the government should be engaged in 'domestic wiretapping,' just as the terrorists themselves have been sanitized into 'militants' or 'insurgents.'

The way the question is posed by many in the media and in politics, you would think our intelligence agencies were listening in on you talking on the phone to your aunt Mabel.

Be serious! There are more than a quarter of a billion people in the United States. Intelligence agencies have neither the manpower, the time, the money, nor the interest to listen in on you and your aunt Mabel.

Lawyers may differ on fine legal points about the Constitutional powers of the commander in chief during wartime versus the oversight powers of the courts. But, a Supreme Court Justice once pointed out that the Constitution of the United States is not a suicide pact.

The Constitution was meant for us to live under, not be paralyzed by, in the face of death.

When some honcho in the international terrorist network is captured in Afghanistan or Iraq, and the phone numbers in his computer are found by his American captors, it is only a matter of time before his capture becomes news broadcast around the world.

In the hour or two before that happens, his contacts within the United States may continue to use the phones they have been using. Listening in on their conversations during that brief window of opportunity can provide valuable information on enemies within our midst who are dedicated to our destruction."

This reminds me of a passage in David McCullough's Truman:

"It could not have been a more exciting or important time, Clark Cliffor would say, recalling events of 1947 and '48. 'I think it's one of the proudest moments in American history. What happened during that period was that Harry Truman and the United States saved the free world.'

[. . . .]

Their exhilaration derived in part from the tremenous urgency of the moment. Events moved rapidly. 'There was much to be done and little time to do it.' Truman would remember. Plans had to be conceived and clarified with minimum delay, imagination applied, decisions reached, and always with the realities and imponderables of politics weighed in the balance. The pressure was unrelenting. 'You don't sit down and take time to think through and debate ad nauseam all the points.' George Elsey would say, in response to latter-day critics. 'You don't have time. Later somebody can sit around for days and weeks and figure out how things might have been done differently. This is all very well and very interesting and quite irrelevant." (p. 554)

The debates of the law professors are "all very well and very interesting," and maybe they are relevant. The media and the pundits are surely keeping busy and having fun, and politicians are getting face time before We The People. Yet, we have elected one person to be responsible for using the power of our country to protect us from those who are our self-avowed enemies. None of these others have been elected to carry out that awesome responsibility. I suspect none of these others commands nearly all the knowledge that our President has about our enemies and our dangers, and I suspect none of these others has ever faced the awesome pressures of having responsibility for protecting We the People. Sitting around in committee meetings, standing before cameras, and punching keys on a keyboard are faily leisurely activities that individually (and perhaps even in aggregate) really seem to accomplish very little in the daily efforts of our country to defend ourselves from our enemies.

If the members of Congress are truly concerned about spying on those people the President believes are likely to be our enemies, then why not put up, or shut up? Is it not clear that the President should use the resources of our country to spy on those believed to be our enemies? Does the answer to this question depend on whether our enemies our already on our soil or not?

More NSA

Guy Taylor writes:

"The Constitution drew from each, vesting the power to make laws 'in the Congress,' making the president 'commander in chief' of the military, and leaving it to the courts to resolve disputes between the two."

I think the idea that the courts are to resolve disputes between the other two branches of government is simply wrong. If that were there case, why would we think we have 3 co-equal branches of government? Disputes between Congress and the President over national security are political matters that are to be determined, according to the constitution, by political means. Further, as I've read lately about the Supreme Court opinions regarding war powers vis a vis both Congress and the President, it seems to me the Court has most often taken the position I suggest.

He also writes:

"President Bush appears to have permanently carved his place in the debate by acknowledging that since September 11 he has authorized the National Security Agency to electronically spy on people in the United States communicating with suspected terrorist-linked individuals overseas without warrants from a secret court created by a 1978 federal law to oversee such activities."

I don't believe the choice of words here presents the circumstances accurately. I don't believe the President authorized the NSA to electronically spy on people in the United States. Instead, I think the President authorized the NSA to spy on suspected enemies of the United States. I think these two statements are very different. Perhaps the present NSA spy flap would have much less traction if statements in the press were more accurately presented? Or, have I missed the evidence that the NSA program was intended to spy on Americans?

Tax Fairness

Mort Kondracke:

"To me, the most sensible first step to fiscal sanity would be to reform, but not repeal, the estate tax, which could save as much as $400 billion over 10 years. But Republicans are wedded to the idea of repealing what they call the 'death tax,' even though it applies to only the richest 0.5 percent of taxpayers."

What is the reason here? We should have this tax because it applies to only the richest 0.5%? That doesn't make any sense.

It seems to me we should be very unhappy about any tax base that does not apply to every one.

A Bad Economist & A Good One

Frederic Bastiat :

"In the economic sphere an act, a habit, an institution, a law produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them.

There is only one difference between a bad economist and a good one: the bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen."

Perhaps this criterion could also apply to politicians?

Justifying Earmarks

The Washington Times:

"Some members have proposed a ban on earmarks, but top Republican leaders such as House Speaker J. Dennis Hastert of Illinois have defended the practice.
'Who knows best where to put a bridge or a highway or a red light in their district,' he said in a radio interview with Michael Reagan this week. 'We need to change how we do earmarks, we need to do it in the light of day and not the last minute type of situation, but I think we can do some reform on that and still serve what's in the best interest of the American people.'
In a column yesterday in Roll Call, a newspaper covering Capitol Hill, House Appropriations Committee Chairman Jerry Lewis, California Republican, said giving up earmarks would end the congressional power of the purse.
He has proposed putting a cap on the number of earmarks allowed per member, and requiring that the requester submit a letter that would be printed in the Congressional Record.
But earmark opponents like Rep. Jeff Flake, Arizona Republican, said capping the total number of earmarks would just mean lawmakers ask for bigger-ticket items.
The Congressional Research Service said earmarks have grown from 4,126 in 1994, the year before Republicans gained control of Congress, to 15,268 in 2005. "

Wow, what an interesting criterion? Who knows best, eh? I would not want to answer this question by saying that I expect a member of Congress knows best where to spend money back home. Actually, I think the best answer to the question is to let the taxpayers keep their money to begin with. I think I know best how to spend my money? How about you? Perhaps if the members of Congress want to spend their own money on the earmarks, then I could go along with the practice. As it is, I think earmarks are a substantial abuse of Congressional power.

Political Preferences of Economists

Todd Zywicki posts on observations on the political stripes of economists:

"The latest issue of Econ Journal Watch is out and I wanted to call readers' attention to a couple of articles in particular.

William McEachern of the University of Connecticut has an article presenting evidence on the campaign contributions of 'American Economic Association Members, Committee Members, Officers, Editors, Referees, Authors, and Acknowledgees.' Subject to obvious caveats about the nature of the data set, McEachern finds that in the AEA generally the Democratic to Republican contribution ratio is 5.1 to 1 and that on average contributions to Democrats were approximately 20 percent larger than to Republicans. He also finds that about 10% of the editors of the American Economic Review contributed to candidates (9 out of 84 Americans), and of those, all of them contributed to Democrats. McEachern similarly studies the editors, referees, etc., of the Journal of Economic Literature, and Journal of Economic Perspectives. He concludes by asking whether it is possible that the ideological orientations of editors and referees have the potential for influencing their opinions as to the quality and relevance of various articles.

Dan Klein follows-up with an an essay on the possible implications of McEachern's research (and that of others) for the professional practice of economics. Klein makes the provocative argument that the editorial leadership of the AER's various journals may be reflected in the pattern of articles published there. These journals are among the most prestigious in the profession, so there is some import from this. Klein suggests that the ideological predispositions of the editors is reflected in the type of articles that are accepted and published (his argument that McEachern's data reflects itself in the articles published is largely anecdotal). Put crudely here (and with more nuance there), Klein suggests that 'liberal' economists who serve as editors of the AER are less likely to publish articles that are critical of interventionist economic policies."

I don't know if this specific concern with respect to editors makes sense or not. I do wonder if concern about the wider political preferences of economists would be worth considering.

It seems to me that many economists are not very careful these days to keep their positive analyses separated from their normative analyses. The old principle that economists as economists would not recommend the value judgments used to choose alternative policies, but instead would merely develop the implications of different value judgments, seems to have fallen by the wayside. Many times I've read an economist writing about the efficiency implications of public policy as though their analysis is positive in character, and not normative.

Now consider something Arnold Kling writes about a new book by his fellow blogger Brian Caplan:

"For Caplan, the 'wisdom of crowds' only applies in market settings, where people have the incentive to make rational choices. When it comes to voting, we have majority fools.

Conventional wisdom says that democratic choices are good ones. Caplan, correctly in my view, says otherwise.

Conventional wisdom says that when there are market imperfections, government should step in, implicitly assuming that government is carried out by welfare-maximizing omniscient technocrats. Caplan, correctly in my view, suggests that we should worry about government, because ultimately it is driven by irrational voters."

The idea I note here is that there is an implicit assumption that "government is carried out by welfare-maximizing omniscient technocrats." I can't prove my intution here, but I think many economists seem to harbor this assumption in their normative analyses of the economic efficiency of markets and of public policies. If we also assume that the Democrat political party tends to view government is this way, then perhaps one could justify at least a little concern in the observation that a majority of economists seem to be of the Democrat political persuasion. Of course, there should be less, or little concern, to the extent that economists write about public policy with very explicit statements about their normative views and value judgments.

Earmarks

OpinionJournal:

"So what can be done, apart from denying Congress the money in the first place by keeping taxes low? Representative Jeff Flake of Arizona and Senators Tom Coburn and John McCain have one good idea, which is to bring more transparency to earmarking. They would require that every earmark be specifically included in the text of the legislation Congress is voting on. We'd also like to see a requirement that every earmark list its main Congressional sponsor and its purpose (other than to re-elect the Member)."

Are you kidding, right now earmarks aren't even required to be written into the text of the bill being voted on? So, as it stands now, a member of Congress can pick out a project and or a recipient to get our tax dollars, and he or she isn't identified and doesn't even have to have the earmark written down to have it voted on.

Why isn't this the big Washington political scandal?

Congestion & Colorado

Gary Lindstrom member of the Colorado House and candidate for governor:

"'The worst thing we can do is widen the highway,' he said. 'We need to keep the congestion so people will be interested in the transit.'"

This seems like a pretty interesting policy position to take. Would it be fair to say this position amounts to the following: "I know people don't like to drive in congestion. But, I don't think our public policy should be to expand capacity and reduce congestion. Instead I think we should wait while congestion tightens travel on this highway even more, and then maybe we can get enough support to build transit, something the people really don't want to use."

Of course, the congestion problem is not easily solved by expanding the highway's capacity either. After all, if there is no single-use price for using the highway, the quantity of use demanded for the highway is going to be very large.

Senate Competence and Confirmations:

Todd Zywicki:

"Put otherwise, I think it is an open question as to whether the Framers would have entrusted the advice and consent power to the Senate in the same manner had they known that eventually Senators would be elected directly by the people in partisan elections, and as a result, the nature and tenor of the confirmation process would deviate so dramatically from what was originally anticipated."

I think this is a very interesting question to ponder.

Corruption

The recent Abramoff scandal has increased awareness of corruption in politics. Perhaps the lessons to be learned from this most recent scandal are not quite what they appear to be based upon most of the discussion. Consider a recent commentary by John Fund :

"In the wake of the Jack Abramoff scandal, It seems everyone has discovered the excesses of pork-barrel spending. Voters may now be disgusted enough to make the political costs to a member seeking pork greater than the benefits.

Mr. Abramoff was a master at deploying his lobbying shop to get his clients earmarks, or spending projects that members of Congress directly request for a specific use or beneficiary. While some earmarks are worthy items that simply didn't make a bureaucrat's priority list, many others are howlers such as Alaska's infamous "bridge to nowhere." Abuses can easily happen, since the number and dollar value of earmarks have quadrupled in the last decade. Many of the 15,000-plus earmarks Congress passed last year were quietly slipped into last-minute conference reports. Members thus had no opportunity to debate, amend or question them. That's how the federal transportation bill finances a $3.5 million horse trail in Virginia and a $50 million indoor rainforest in Iowa."

It's kind of hard for me to imagine that our Constitution is consistent with the practice of earmarks. It is certainly true that the Constitution grants Congress the power to tax and spend on programs consistent with the enumerated powers of Congress. But this is a power of Congress and not a power granted to each individual member of Congress. Earmarks allow Congressman X or Senator Y to say that project Z back home, which is the brain child of Mr. K (a friend? neighbor? contributor?), will get money from taxpayers all across the country.

Many seem worried about money in politics "buying influence." Perhaps with earmarks, money can buy a more direct and certain return than just influence, eh? Maybe there would be less corruption in Washington if Congress was significantly constrained in its ability to respond to rent seeking. There was a time in the history of constitutional jurisprudence that the Supreme Court rendered opinions that often constrained such rent seeking. I suspect corruption will always be a part of politics, but perhaps the only effective way of reducing the impact of corruption is to constrain rent seeking in government. If the returns to spending money in politics are reduced, shouldn't we see less effort to buy politicians?

While I have you thinking about the constitution. Notice the 2 illustrations of earmarks in Fund's commentary. One of the earmarks funds a horse trail in Virginia and the other funds a rain forest in Iowa. I'm hard pressed to find an enumerated power in Article I, Section 8 that gives Congress the constitutional power to fund such activities. Can you explain to me why we should think the Constitution gives Congress the power to fund such activities to begin with?

Deja Vu All Over Again

"Conservationists' 'Bogeyman'
Congressman Pombo Pushes
Environmental Conservatism
By JIM CARLTON
Staff Reporter of THE WALL STREET JOURNAL
January 21, 2006; Page A4

WASHINGTON -- Last year, Congressman Richard Pombo and his staff considered selling off 15 national parks, monuments, preserves and historical sites, along with naming rights for visitors' centers and hiking trails, to corporate bidders."

OH MY. I just realized I'm so old now that I'm starting to see things in politics that were tried earlier in my lifetime. I'm now saying, "Hey, I remember when they tried to sell off some national parks. Wasn't that when Reagan was President?"

Social Security

Russell Roberts:

"Private social security failed because the average voter is remarkably unaware of what is coming down the road—either drastically lower benefits or drastically higher taxes. When this choice becomes clearer, even collusive Republicans and Democrats will find it in their self-interest to substitute private savings for government promises."

What Is The Real World?"

Don Boudreaux:

" Indeed, Senator, because I understand that statutes and legal rulings have effects far beyond those which are seen, I dare say that I am more aware of the real-world than are those – such as you, Senator? – who typically judge a rule to be good or bad based exclusively upon how it affects a single or a few identifiable persons.

Senator Biden, the issue isn't whether or not the real world matters. We all agree that it does. What separates you and me, Senator, is that I don’t ignore that part of the real-world that is less visible than that relatively small part that attracts the attention of politicians and the press."

The entire piece is well worth reading.

Who Wrote It

Who do you think wrote the following, and when?

"He seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board. He does not consider that the pieces upon the chess-board have no other principle of motion besides that which the hand impresses on them: but that in the great chessboard of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might choose to impress upon it."

It sounds like the "he" referred to here is a typical member of the legislature, whether Congress or a state legislature, today.

Who wrote this and when? Adam Smith, Theory of Moral Sentiments, 1759.

Kennedy Satire

Todd Zywicki explains that Senator Kennedy has apparently attacked Judge Alito with guilt by association based upon an article which was satire:

"I have not seen any reports on whether the author (supposedly one H.W. Crocker III) intended the article as a farce. But given the over-the-top nature of the language quoted during the hearings and the larger context of the article, it at least raises some question about whether this was intended as a satire. In addition, the goofy pictures and the one-page 'back of the book' nature of the article (rather than a serious in-depth article) seems to add further credence to the suggestion that this was intended as a satire. The article seems to be intended as a tongue-in-cheeck defense of the Princeton eating clubs that were under attack by litigation by Sally Frank at this time."

Jake Tapper reports that Dinesh D'Souza who was editor of the magazine with the article in question also says the article was satire:

"Probing the debate over Alito's having said he was a member of the conservative Concerned Alumni of Princeton on a 1985 job application with the Reagan Justice Department, I spoke to conservative intellectual Dinesh D'Souza of the Hoover Institution yesterday.

D'Souza worked for CAP from 1983 to 1985, editing CAP's controversial Prospect magazine. He said a number of the Democratic attacks on Samuel Alito were based on falsehoods.

First off, D'Souza says, one of the two stories from Prospect that Sen. Ted Kennedy, D-MA, read this week at the confirmation hearings was intended as a satire.

The 1983 essay 'In Defense of Elitism' by Harry Crocker III included this line, read dramatically by Kennedy: 'People nowadays just don't seem to know their place. Everywhere one turns blacks and hispanics are demanding jobs simply because they're black and hispanic...'

The essay may not have been funny, D'Souza acknowledges, but Kennedy read from it as if it had been serious instead of an attempt at humor.

'I think left-wing groups have been feeding Senator Kennedy snippets and he has been mindlessly reciting them,' D'Souza said. 'It was a satire.'"

You can judge for yourself. Go to Senator Kennedy's website and check out the article.

Just another interesting commentary on politicians, eh?

Ah, Politicians

Channel 4 News Pittsburg:

"Team 4 has a voicemail recording of Democratic State Rep. Tim Solobay, of Canonsburg, saying that state lawmakers are preparing an all-out assault on the media. Solobay hints that the first volley is a bill that would start charging sales tax on all advertising in Pennsylvania.

Solobay left the voicemail message for editor Cody Knotts, who works at The Weekly Recorder, in Claysville, Washington County.

In the message, Solobay says, 'But you know, for the most part, the majority of the legislative feeling about the media right now is if there's something they can do to screw them, you can imagine it may occur.'

'That got my blood boiling because the Legislature thinks they're invulnerable,' said Knotts.

Like many newspaper editors in Pennsylvania, Knotts wrote prolifically last year about the 16 percent pay raise that lawmakers took, and then gave back under heavy media pressure.

Then, last month, he learned of a bill in Harrisburg that would hit the media hard -- lifting the sales tax exemption on advertising, along with some other services."

Things aren't exactly clear to me, but this story seems to involve action by the legislature to give itself a raise, even though the rules are that a given legislature cannot give itself a raise. Legislative raises are supposed to be passed by one legislature, and then implemented with the next legislature. Apparently the Pennsylvania legislature was trying some sneaky way of giving itself a raise and the news media made their sneaky actions public. In response, the suggestion here is that the legislature is planning to take revenge. Now, that seems like a legitimate use of legislative power, eh?

Beating Up on Wal-Mart

Washington Post editorial:

"AMERICAN BUSINESS has few whipping boys so irresistibly whippable as Wal-Mart Stores Inc., whose treatment of employees, competitors and suppliers conjures cold-eyed corporate heartlessness. . . . state lawmakers in Maryland are preparing to impose legislation on the retailer so arbitrary that it may achieve the near-impossible feat of casting Wal-Mart as the victim.

The Maryland bill would force firms with more than 10,000 in-state employees to spend at least 8 percent of their payrolls on workers' health insurance plans or make compensatory payments to the state. Only three other Maryland employers have more than 10,000 workers on their payrolls -- Johns Hopkins University, Northrop Grumman Corp. and Giant Food Inc. -- and they already meet or exceed the 8 percent threshold. Apparently, only Wal-Mart, with about 15,000 full- and part-time employees in Maryland, does not; thus the bill applies uniquely to Wal-Mart. 9emphasis added)

Maryland's legislature passed the bill last year, but Gov. Robert L. Ehrlich Jr. (R) vetoed it. Lawmakers, urged on by big unions, appear on the verge of overriding the veto despite furious lobbying by Wal-Mart. The legislators, joined by Giant Food (Wal-Mart's unionized competitor), insist disingenuously that they are not singling out the big-box retailer but are merely setting a standard. . . . ."

Is this not the epitome of rent seeking? Can't we find a clause in our Constitution that would bar state government, as well as Congress, from engaging in rent seeking? How about:

". . .No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." [14th Amendment]

Does it make sense to say the 14th Amendment allows a state legislature to create a statute that singles out a specific business?

Madison on Government and Force

On June 16, 1788 James Madison spoke in the Virginia Ratifying Convention on the topic of control of the military. In his speech I find the following:

". . .Was there ever a constitution, in which, if authority was vested, it must not have been executed by force, if resisted? . . .That the laws of every country ought to be executed cannot be denied. That force must be used if necessary, cannot be denied. Can any government be established, that will answer any purpose whatever, unless force be provided for executing its laws? . . ."

Also:

". . .There never was a government without force."

Surprisingly, this is an observation that often seems lost in discussions of government today. Government is, by it's very nature, coercive. One of the points I think Madison's comments here emphasize is that when we think of the role of government in our lives we should be thinking about the ways in which it is legitimate for government to be using force and coercion in our everyday lives.

When you think about public policy issues, I think it might be a good idea to think specifically about the way government will be using force in our lives. Here is one illustration. In the famous Supreme Court opinion Wickard v. Filburn, the Court was considering a Congressional statute regarding agricultural quotas. The specific situation at issue involves a farmer who was growing wheat on his own land. He did not grow the wheat for commercial purposes. Rather, he grew the wheat for use on his farm and for use by his household in making bread. He was in court because our national government said that growing his wheat violated his alloted quota. The Court said our national government could constitutionally use force in this man's life in this way because Congress had the power to regulate interstate commerce. In other words, even though this man did not sell the wheat he grew on his own land, the Court found it was constitutionally acceptable for our national government to force him to stop growing wheat on his land. And, there's more. Since he used the wheat to make bread for his own family, our national government was using force to compel this man to have to purchase bread from others. Does this seem like an acceptable use of force and coercion in our lives? My own answer is NO.

Politicians

Tom Bevan:

". . . it seems fair to ask: how many Democrats sitting on the Judiciary Committee could be confirmed using their own standards? How many of them could withstand the same sort of exhaustive examination and distortion of their own careers and records that's now being given to Sam Alito's?

The answer, just off the top of my head and without resorting to extensive research or digging through trash, is not very many."

The politician by politician analysis goes like this. There are obvious reasons Senator Kennedy couldn't. Senator Biden has plagiarism that would plague him. Senator Feinstein has issues with campaign expenditures. Senator Schumer could have campaign finance issues, not to mention the people within his employ that may have illegally obtained a credit report. Senator Durbin said Roe v. Wade was wrong, before he said Roe v. Wade was right. Senator Leahey has issues as "leaky Leahy," having leaked classified information to the press. Bevan couldn't think of issues for the other 2 democrat Senators on the Committee. Should we guess that the republican Senators on the Committee would generate a similar list of issues?

Eminent Domain

Eminent domain has been suggested for this blighted neighborhood.

Sowell on Curing Poverty

Thomas Sowell:

"'China is lifting a million people a month out of poverty.'

It is just one statement in an interesting new book titled 'The Undercover Economist' by Tim Harford. But it has huge implications.

I haven't checked out the statistics but they sound reasonable. If so, this is something worth everyone's attention.

People on the political left make a lot of noise about poverty and advocate all sorts of programs and policies to reduce it but they show incredibly little interest in how poverty has actually been reduced, whether in China or anywhere else.

You can bet the rent money that the left will show little or no interest in how Chinese by the millions are rising out of poverty every year. The left showed far more interest in China back when it was run by Mao in far left fashion -- and when millions of Chinese were starving."

So, I wonder how millions are rising out of poverty every year. Here is Sowell's answer:

" First of all, what does it even mean to say that "China is lifting a million people a month out of poverty"? Where would the Chinese government get the money to do that?

The only people the Chinese government can tax are mainly the people in China. A country can't lift itself up by its own bootstraps that way. Nor has there ever been enough foreign aid to lift a million people a month out of poverty.

If the Chinese government hasn't done it, then who has? The Chinese people. They did not rise out of poverty by receiving largess from anybody.

The only thing that can cure poverty is wealth. The Chinese acquired wealth the old-fashioned way: They created it."

I think something here is worth significant attention and emphasis.

THE ONLY THING THAT CAN CURE POVERTY IS WEALTH.

More NSA

The WJS's view of the NSA controversy:

"Eternal vigilance, it's been rightly said, is the price of liberty. But Americans are not well served by politicians in Washington who keep crying wolf over imagined violations of their civil rights.

The latest hysteria surrounds the Bush Administration's warrantless wiretapping of terror suspects. Congress is planning hearings, and even many usually sound legislators continue to question the White House. But it's become clear in the weeks since the story broke that Administrations of both parties as well as the courts have always held that warrants are not required for such intelligence gathering."

What Economics Finds About Redistribution

Russell Roberts mentions a work by Robert Lucas, a nobel economist, and writes:

"In America, at least, many people feel that the improvement in the well-being of the poor comes from government programs that protect the poor from greedy businesses. Without such protections, the dog-eat-dog world of ruthless capitalism would grind the poor to dust."

He then quotes Lucas:

"But of the vast increase in the well-being of hundreds of millions of people that has occurred in the 200-year course of the industrial revolution to date, virtually none of it can be attributed to the direct redistribution of resources from rich to poor."

This seems so very important, yet this message seems to seldom, if ever, be picked up by our political leaders.

Constitution, Congress & the President

I started reading John Yoo's The Powers of War and Peace a few days ago. He pointed out something about the Constitution that I had not sufficiently noted before. Consider Article I, Section I:

All legislative Powers herein granted shall be vested in a Congress of the United States . . . .

Next, consider Article II, Section I:

The executive Power shall be vested in a President of the United States of America. . .

Do you notice the difference? The power of Congress is not stated as "the legislative power shall be vested in a Congress of the United States." In contrast to the executive branch of government, the power of the legislative branch is granted as specific enumerated powers. Of course, the enumerated powers are provided in Article I, Section 8. Congress is supposed to only have the legislative powers specifically written and thereby granted by the Constitution.

In contrast, the President has the executive power and there is no specific enumeration of the executive powers. It seems the President has all the executive powers we might think to enumerate. Of course, this does not mean the power of the Presidency is unchecked. After all, the power to tax and spend is not an executive power but a legislative power.

There seem to me at least 2 reasons why I should find this observation important. First, the contrast emphasizes that constitutionally the power of Congress is specifically enumerated and granted by We The People. If a legislative power has not been specifically granted in the Constitution, then Congress should be thought to not have that legislative power.

Second, in the arena of national security I think we should take note of whether or not Congress has been specifically granted enumerated legislative powers in this arena. As I read through Article I, Section 8 it seems to me Congress has specifically been granted the constitutional legislative power to create and finance the means by which the United States protects itself from external threats to the safety of We the People. These specific powers do not seem to directly include the power to choose how these means of national security will be utilized and directed. The specific applications of the means of national security are among the powers of the Presidency.

This said, while Congress does not have enumerated powers to directly constrain Presidential power in the arena of national security, Congress does have significant indirect powers relative to Presidential power. First, Congress taxes and makes appropriations, and in this way Congress can constrain the Presidential power with respect to national security by refusing to fund specific ways in which the means of national security are utilitized. Second, Congress has the power of Presidential impeachment should it find that any of the constitutional powers of the President have been abused by the President.

Perhaps all of this constitutional musing suggests one further insight. When Congressional politicians are seen and heard in public attacking Presidential actions with respect national security, one might suspect the attacks are more self-interested than reflections of a love and commitment to the Constitution. After all, if a Congressional politician thinks the President is using the means of national security inappropriately, shouldn't that politician utilize his legislative power to ask his colleagues in the Congress to tug on the purse strings in ways that the President will not like? Such action would seem to fit the structure of government found in our Constitution. If a politician chooses not to speak legislatively, but instead in the media, perhaps the politician is simply trying to get more face time. If a politician says the President should be impeached, then perhaps he or she should "put up" by formally pursuing that Congressional action.

Politicians

Michael Barone discusses the historical context of the Abramoff scandal:

"And then there is Jack Abramoff. A close associate of Messrs. DeLay and Norquist and a longtime Republican activist, he seems to have been determined to make gigantic sums of money. Not content with the $1 million or so a year he could easily have made, he squeezed Indian tribes for tens of millions (Indian gambling laws have created a class of naive clients) and engaged in some very shady dealings in the gambling cruise ship business. There will always be such individuals: Abe Fortas, a lawyer of the highest intellectual caliber, was not content with a Supreme Court justice's salary and arranged for outside income from a former client, the disclosure of which led him to resign from the court. There is a fine and sometimes indistinct line between bribery, which requires a specific quid pro quo, and legal mutually beneficial conduct.

Mr. Abramoff's guilty pleas have both parties scampering to offer up lobbying reform; as fervent a Republican as he was, he made sure his clients gave money to Democrats too. His testimony could end the careers of some members of Congress and could threaten the Republicans' House majority. But there will be no end to lobbying: It is protected by the Constitution, and people will always seek to affect the decisions of a government that can have such great impact on them.

Over the last 35 years, I have watched as more and more office buildings have been going up in Washington. K Street, the prime market for my Almanac, has been spreading -- metastasizing, some would say -- and for every new 1,000 square feet some calculable number of my books will be sold. None of these buildings will be torn down, except to be replaced by new buildings with ever gaudier marble lobbies, even if Jack Abramoff resides for a time in public housing. The poor we may or may not always have with us. But we will always have K Street."

People in the media, as well as voters, seem to be extremely myopic. It seems as though every new political scandal and every new revelation of corruption is treated as though there have been no previous cases. As Michael Barone suggests with his short history lesson, we should perhaps learn to expect scandal and corruption. Instead of thinking we may get more honorable politicians, and instead of thinking the answer to political corruption is some new rule for our politics, perhaps we should simply assume that there will always be scandal, corruption, and abuse of power. Perhaps the answer to scandal, corruption , and abuse of power by our politicians is to return to the original constitutional design for our system of political economy and thereby to return to a national government that is much more limited in size and much more constrained in the enumerated powers we grant to it. Scandal, abuse of power, and corruption would still be with us, but perhaps the impact of abuse of power would far less significant. Or maybe not. Maybe we simply have to expect such abuses, and then when they are discovered, we throw the bums out and into a jail.

New Risen Book Sheds Light on NSA Surveillance

Orin Kerr comments on the book by Risen which has led to the discussion of President Bush and the NSA:

" Reading over this part of Risen's book, it seems that most of the new surveillance program was not about domestic surveillance at all; most of it was about the surveillance of entirely international calls and e-mails that just happened to be routed through U.S. networks in the course of delivery. According to Risen, the program typically monitored about 7,000 individuals overseas at any given time, as compared to about about 500 people who were located in the United States. From an operational perspective, then, the big difference between prior NSA practices and the new program was that the NSA was using a back door into domestic privider switches in the U.S. to monitor communications that were mostly foreign to foreign."

Very interesting. Here again we seem to have an illustration of why I think you can never trust the "news" you read or hear. The fevered discussion of the President and the Constitution seems to have painted a different picture from that in the very source for this public controversy. Notice that in this description even the reference to 500 people in the United States (versus 7000 others) is not a reference to 500 citizens of the United States. It also seems to me that this description of the situation at issue suggests that even if some or all of those 500 people were U.S. citizens, the reasons they were monitored by the NSA were of a coincidential nature following upon efforts by our government to discover all they could about the enemy.

Do the Poor Deserve Life Support?

Steven E. Landsburg has an interesting essay on how some think about helping those who are poor. Here is his bottom line:

"You can't do that with every government service. You can't offer people a choice between police protection and its cash value, because police patrols tend to protect entire neighborhoods at once, not just specific individuals. You might not want to offer people a choice between a flu vaccine and its cash value, because you'd really prefer to have vaccinated neighbors. But critical life support isn't like that; the benefits are targeted to specific individuals. There's no reason those individuals shouldn't be allowed to choose different benefits if they want them.

Tirhas Habtegris would probably have taken the cash. Then she'd have gotten sick and regretted her decision. And then we as a society would have been in exactly the same position we were in last week—deciding whether to foot the bill to keep Ms. Habtegris alive a little longer.

At that point, there's a powerful human instinct to come to the rescue. Well, more precisely, there's a powerful human instinct to demand that someone else come to the rescue. (I'm guessing that in the wake of the Habtegiris case, nobody at the Daily Kos has taken to funding ventilator insurance for the poor.) Be that as it may, choices have to be made. A policy of helping everyone who needs a ventilator is a policy of spending less to help the same class of people in other ways. Accounting for 'economic considerations' means—by definition—trying to give people what they'll value the most. In other words, economic considerations are the basis of true compassion."

I take special note of: ". . .there's a powerful human instict to demand that someone else come to the rescue." Now, isn't that a powerful insight?

Economic Resolutions for Politicians

In today's WSJ N. Gregory Mankiw offers 7 New Year's resolutions for Washington's politicians. Here is #7:

"This year I will be modest about what government can do. I know that economic prosperity comes not from government programs but from entrepreneurial inspiration. Adam Smith was right when he said, 'Little else is required to carry a state to the highest degree of opulence from the lowest barbarism but peace, easy taxes, and a tolerable administration of justice.' As a government official, I am not going to promise more than I can deliver. I am going to focus my attention on these three goals -- peace, easy taxes, and a tolerable administration of justice -- and I am going to trust the creativity of the American people to do the rest."

If only a few of them would so resolve, eh?

Social Snowflakes & Human Action

Steven Horwitz:

"When I see that snowflake, it engages my reverence for the beauty of the undesigned order of the natural world. Look at the symmetry and detail of that snowflake, and then consider that is the product of undesigned natural processes. I find it an object of awe that natural processes can produce a thing of such detail, complexity and beauty. It is said that only God can make a snowflake. Well for those who understand the science, or who are atheists, we know that you don't need God to do so. But even to an atheist like myself, the spontaneous order of nature can (and should!) generate the same awe, reverence, and wonder that the contemplation of God generates in those who believe. Unfortunately, whenever my wonder at the beauty of nature is engaged, it is with a tinge of frustration.The frustration I feel is that so many smart and caring people seem unable to see and appreciate the identical processes of undesigned order in the social world. 'Social snowflakes' are all around us, yet precious few seem to be able to understand and appreciate them to the degree we do the snowflakes found in nature. And too many people think that these 'social snowflakes' require a 'Creator.'"

[ . . . ]

"My fervent wish for the 21st century is that more smart and caring people can begin to see and appreciate "social snowflakes." People who are so willing to accept the existence and beauty (and benevolence!) of undesigned order in the natural world should be more willing to open themselves to the possibility that there are processes of undesigned order at work in the social world too. These people know that no one can make a snowflake, but seem blind to the fact that much of the innocent blood that was spilled in the last century was because too many people thought they could intelligently design the social world. Not repeating those mistakes will require a renewed aesthetic appreciation of, and deep desire to understand, the awesome beauty and complexity of the undesigned order of "social snowflakes.""

Most Excellent Rent Seeking

Today's WSJ editorial page includes a discussion of the recent Congressional defeat of the "Byrd Amendment:"

"The repeal of the protectionist Byrd Amendment in Congress's year-end reconciliation bill is more than a rare legislative victory. It's closer to a Christmas miracle.

Named after the West Virginia Senator who snuck it into law without debate in a 2001 appropriations bill, Byrd directs antidumping and countervailing duties into the pockets of U.S. companies that petition for the tariff protection. Byrd was nothing more than a wealth transfer from U.S. consumers and industries that use imports to a small network of savvy protectionists. The miracle is that repeal happened even with all that concentrated 'interest' flowing to politicians who supported Byrd.

Ohio-based ball bearing manufacturer Timken raked in the most Byrd money this year, more than $62 million, while Timken subsidiary MPB Corporation was second with almost $19 million. Ball bearing maker Emerson Power Transmission Corp. finished third with better than $16 million, ahead of candle maker Lancaster Colony Corp. with winnings of $11 million. Total 2005 Byrd distributions were $226 million, 80% of which went to just over 30 companies."

Of course, it is good news to hear that Congress rejected this amendment this time around. But, is this not the epitome of rent seeking? In 2001 Congress passed a law that directed "antidumping and countervailing duties into the pockets of U.S. companies that petition for the tariff protection." It seems Congress had "loaned" it's power to tax to various private companies. Do you suppose this could possibly be consistent with the Constitution?

Three Roles of the Market

Frederic Sautet:

"If you were to summarize in three points what the fundamental roles of the market are; what would you say? Austrians have a comparative advantage in this exercise, as they are the only ones with a truly realistic and fully coherent market theory. There is actually too much to say and it is hard to summarize it all in three points – which is also why it is interesting to try.

In my view, the market’s three main roles are:

* A knowledge discovery process via entrepreneurial competition;
* A feedback process via the profit and loss system; and
* The result of the first two leads to an accountability role providing governance."

Notice that there is no mention of "allocate" or "ration" resources. The view of the market presented by these 3 fundamental roles is a view of the market as a dynamic process. Thinking of markets as allocating resources relies on a very static view of the market. These days I thinking it is much more important to think of the market as a dynamic proces.

Cheney Defends Policy Of Domestic Spying

In the Wall Street Journal today:

"Vice President Dick Cheney on Tuesday vigorously defended the Bush administration's use of secret domestic spying and the expansion of presidential powers, saying, 'it's not an accident that we haven't been hit in four years.'"

Note the assertion in this "news" article of an expansion of presidential powers. Perhaps such assertion in the lead sentence of the news story is more commentary than statement. The best I can figure out at this point is there has been no expansion of Presidential powers. It seems most likely to me that Congress was exceeding its Congressional power with its efforts to make FISA relevant to the activities of the President as Commander in Chief. Of course, that's my sense of the debate at this point. Apparently the Supreme Court has not opined in relevant ways to date. That observation alone seems to me to imply that there has been no expansion of Presidential powers. After all, if no clear statement has been made in the past, then the limits of the President's powers must currently be ambiguous in this area of Constitutional interpretation.

NSA3

Byron York explains how President Clinton approached FISA:

"In the end, Congress placed the searches under the FISA court, but the Clinton administration did not back down from its contention that the president had the authority to act when necessary."

I decided to take a quick look at FISA. My take is consistent with my earlier discussions of the Constitution. It seems to me that FISA is primarily about the gathering of foreign intelligence as a matter of routine government operation in the name of national security. Further, it seems to me that when Congress explicitly authorizes the President to use military force under the War Powers act, it is the equivalent of Congress declaring war. As such, intelligence activities at a time of war should be thought of as falling under the President's powers as Commander in Chief. I believe this is essentially what President Clinton argued, and what I understand is the position of President Bush.

But, President Clinton went farther by asserting that the Commander in Chief powers were his even if we were not involved in war. It seems the idea is that as Commander in Chief, the President has the power to act in ways that protects the national security of our country, even if the country has not committed military forces to a war against an enemy. This may well be the best definition of the President's power as Commander in Chief.

Of course we people are discussing the law and the Constitution as it has been interpreted. Much of the discussion that I've seen seems to suggest the Judicial branch of government accepts the idea that the Court has no power to constrain the President's power as Commander in Chief. So, it seems to me there are two key questions: (1) Did the President authorize secret monitoring activities as a means of carrying out the war authorized by Congress against our self-avowed enemy? (2) Does the President's Commander in Chief power embody all activities by which the President seeks to protect the national security of our nation? My own answer to the first question is yes (unless there is evidence the President used the pretense of war to spy on Americans he wanted to know about)? My answer to the second question is that at this point I tend to think it is best to include national security in general under the President's power as Commander in Chief.

Wealth of Nations

Ronald Bailey discusses a new study by the World Bank:

"Where is the Wealth of Nations? convincingly shows what countries need to do to create wealth and lift billions of people out of abject poverty. Establish the rule of law and educate people. The big question that the World Bank researchers don't answer is : How can the people of the developing world rid themselves of the kleptocrats who loot their countries and keep them poor? "

Is it possible that Iraq will lead the way?

Toward Freedom In The Arab World

Anthony Bradley:

"Regardless of one’s view of the war in Iraq, we all can agree on the desirability of a dignity-oriented freedom for individuals and families in the Arab world. Economic, political, and religious liberty, however, do not come in a valueless vacuum. Freedom rings when society is ordered so that all people, rich and poor alike, are free to pursue economic and moral goods. The same ordering that led to freedom in the Western world are the same ancient, time-tested truths that will bring liberty to all people everywhere in the world.

The Fraser Institute’s recent report, titled “Freedom In the Arab World,” reminds us that economic freedom will inhabit the Arab world when individuals are free to acquire property without the use of force, fraud, or theft and can freely use their property to do goods things. Additionally, sustained economic freedom in the Arab world will exist when individuals are free to use, exchange, or develop their property in ways that benefit them without violating the identical rights of others.

As history demonstrates, individuals or families having freedom to determine their own economic destiny liberates them from government dependence and long-term dependence on charity. This reminder is especially apt in developing economies all over the world. Positive changes in national economic growth rates rise only as both rich and poor alike are provided equal structures for pursuing goods."

What's Broken? Congress? The Army?

I agree with Glenn Reynolds:

"MAJOR JOHN TAMMES, an Illinois National Guardsman recently returned from Afghanistan, responds to Rep. Murtha's 'broken army' comments, and he's not happy:

Unmitigated crap. And I don't say this out of defensiveness or service pride - I'll tell you about how far we have had to come in a bit. First, though, a little material for you to mull over. . . .

As anyone who has read this blog knows, The Inner Prop and I served in Operation Enduring Freedom V (Afghanistan, March 2004-March 2005). We stood at the end of the longest sustained supply line in the history of human conflict. We were in war-torn Central Asia. Af-frickin'-ghanistan. We had decent food, e-mail, phone (OK, sometimes they weren't always working, but almost all the time) excellent medical support, good pay, regular (if slow) mail. We had a PXs at most of the larger bases, and coffee places sprang up too. We had so damned much ammunition that we needed to build a bigger ammunition supply point at Bagram, AF. We had so many vehicles that we were constantly squabbling over where to put them all - and we had enough up-armored ones too. Our supply warehouses were stuffed with clothing, boots, body armor and the like. 'Living hand to mouth' is the worst lie of the bunch.

The constant stream of re-enlistments was a revelation to me. When I was the Executive Officer of the garrison at Bagram Airfield (a job I gladly traded away after 5 months) I had to find room to more than double the size of the Retention Office. I personally administered the oath of re-enlistment to an E-5 and an E-7. The E-5 was a mother of two young children and the E-7 was eligible to retire when we got home!

Broken? Hardly. Is it difficult work? Yes."

Read the whole thing.

My own opinion is that Congress is 'broken.' But not, alas, living hand-to-mouth. CONGRESS IS BROKEN.

NSA2

This evening I heard Jonathan Alter of Newsweek discuss the NSA story with Hugh Hewitt on Hewitt's radio show. Just before a commercial break Jonathan and Hugh were both expressing their views over each other, but, I'd guess I heard Mr. Alter say that the President was secretly spying on the American people. I think I've heard or read others make the same kind of statement.

My earlier post on this topic, NSA1, considered the war powers of Congress, the Commander in Chief powers of the President, and the lack of clear powers by the Supreme Court to constrain either Congress or the President with respect to these powers. My thoughts were that if the NSA was told by the President to secretly spy on members of the enemy, then such actions would fall easily within the Commander and Chief powers of the President. The suggestion that the President was secretly spying on the American people leads me to think some people may see the issues differently. Imagine that, eh?

This time I want to start by considering what it would mean for the President to "secretly spy on the American people" through the use of warrantless phone taps. My first guess about what this means is that the wire taps at issue must have involved phone conversations of 2 citizens of the United States. Such phone conversations could easily be characterized as "spying on 2 of the American people," and therefore as "spying on the American people." But, suppose one of the people involved in the secretly monitored phone conversation was not a citizen of the United States. Could we clearly characterize this secret monitoring as "spying on the American people." In general, I don't think we clearly can. One possible reason for secretly monitoring the phone conversation might be that the government thought that one of the people involved in the conversation was not a citizen and was an enemy of the United States. Another possible reason for secretly monitoring the phone conversation might be to keep track of the American citizen who was on the phone. If this was the case, then that would indeed look like spying on a member of the "American people." I think in that case it is clear that such secret "spying" would be unconstitutional unless it were authorized by court order.

With this I am led to the Fourth Amendment:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

If the subject of investigation in monitored phone calls is a citizen of the United States, then the Fourth Amendment seems relevant to me. This Amendment in our Bill of Rights is the reason I suggested just above that secretly monitoring a U.S. citizen without a warrant would be unconstitutional. Of course, the NSA story itself is about circumstances in which the subject of investigation in the monitored phone calls is not a citizen of the United States. Further, the subject of "investigation" is thought to be a member of enemy forces. I don't believe the right spoken of in the Fourth Amendment is a right held against our government when the person involved is not a citizen of the United States. And, certainly, I don't think the Constitution grants such a right "against unreasonable searches and seizures" to a member of an enemy we are at war against. Further, I hope relatively few of my fellow Americans would want the Constitution to extend such rights to members of enemy forces, and particularly when the enemy has already successfully killed fellow Americans within the borders of our country.

Now, perhaps there is still a concern regarding conversations between a member of the enemy and an American citizen. I can't imagine the concern is defined with respect to the enemy. So, there may be a concern that the American citizen should not be secretly monitored in such conversations without a warrant. If so, then I'm not sure that makes much sense to me. The subject of investigation is not the citizen, but the enemy. It seems coincidental that the monitored conversation of a member of the enemy turns out not to be another member of the enemy, but an American citizen. I suppose some might assert that in such cases we should say the secret monitoring of the American's conversation is an unreasonable search, unless the monitoring was authorized by Court order, which would also require some probable cause to believe the citizen should be monitored. I cannot agree with such an assertion because, a coincidence seems neither reasonable nor unreasonable in general. Coincidences happen. Further, when the very purpose of the secret spying on people involves a member of enemy forces, I think it is quite reasonable to listen in on any conversations by that enemy that we can. If such a conversation happens to include a fellow American, I cannot conclude that government has unreasonably searched that fellow American.

The NSA story seems only to involve "spying on a member of the enemy" without a warrant. Such a warrant seems to me not to be needed in general because the President has the power of Commander in Chief to carry out a war against the enemy. For some reason the President's critics seem more concerned with politics than with fighting a war against an enemy that has killed fellow Americans right here at home. Certainly if the President has authorized warrantless "spying" on the phone conversations of Americans, and such conversations did not involve the belief that at least one party to the conversation was a member of the enemy, then such actions by the President would clearly be unconstitutional. At this point, all I've heard in the story is that the President authorized monitoring phone conversations of the enemy without a Court's prior approval. When the issue involves waging war against the enemy, I don't think the Constitution gives the Judicial branch of government the power to constrain the means by which the President uses his power as Commander in Chief.

NSA1

I've been listening and reading many offer analysis of the NSA wiretaps. I hear some calling for impeachment. Others profess profound shock and concern that our President would authorize secret actions in the name of war and in the name of protecting us from an enemy that declared war on our system of political economy years ago. Many of the lawyer and law professor blogs are ablaze with analysis. And, yes, I understand that the wiretaps being discussed involved one participant to a phone call that was a citizen of the United States. I would like to make an informed judgment about this controversy, but I'm afraid the public conversation is likely to be so filled with inaccuracies and even outright lies, that I'm not optimisitc that an informed judgment on my part is possible. But, I'm going to start by taking out my copy of the Constitution.

Article 2, Section 2:

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States. . . ."

So, what do we suppose the words mean? My first thought is that the President has power which has been granted from We The People to be Commander in Chief. Second, this granted power would be called, I think, a "plenary power." That means that neither Congress, nor the Judiciary, shares any of the power of the President as Commander in Chief. It is a power that, in terms of this part of the Constitution, has no constraints on it that are written down. This is unlike the power of Congress to regulate interstate commerce because this Congressional power is constrained by the Necessary and Proper Clause of Article 1, Section 8.

I look next at Article 1, Section 8 to consider the powers of Congress, and I find:

"The Congress shall have Power . . . .To declare War. . ."

Now it seems to me the language we find in the Constitution says that Congress, not the President, has the power to declare war. This power seems to me to be much like the President's power as Commander in Chief in that there are no written constraints or limits on this power. And, neither the President, nor the Supreme Court, can declare war.

If we put both these clauses together, Congress declares war, or in the more modern language of today, Congress authorizes the President to use military force. The President, on his own power, cannot authorize the use of military force, and the President cannot declare war. Likewise, Congress has no power to implement the use of military force that has been authorized, nor does Congress have the power to check or constrain the choices of the President as Commander in Chief. Further, since the Supreme Court is not mentioned in either of the Constitutional clauses, it would seem that the Supreme Court has no power to constrain Congress in the ways it authorizes the use of the country's military, nor does it have the power to constrain the President in the ways in which the Commander in Chief power is carried out.

Of course, I haven't studied Supreme Court opinions on these aspects of the Constitution. But, perhaps that isn't too relevant, since it is my belief that any of us should be able to read the words written in the Constitution and have a darn good chance of knowing what the Constitution means.

What could all of this mean for Presidential authorization of wiretaps by the National Security Agency? It seems to me that we should see the National Security Agency as falling within the realm of Commander in Chief power, especially if the National Security Agency is acting against an enemy for which Congress has authorized the use of the country's military power. Wiretaps to monitor phone calls by such an enemy, even if those phone calls include another person located within the United States (whether this person is a citizen or not), would seem to me to involve the President's use of the Commander in Chief power to wage an authorized war against the enemy. As such, it would seem that we should not think either Congress or the Supreme Court have the Constitutionally granted power to constrain the President's choices to secretly monitor the phone calls of the enemy.

Now I understand that people are talking about various statutes and various Judicial opinions as being relevant. The talk seems to be asserting that this President broke the law. But, if the relevant law attempts to constrain the President's waging war against an enemy for which force has been authorized by Congress, then it would seem to me such a law was not a law because it would be unconstitutional.

In other words, I'm thinking that my reading of the Constitution suggests that the real issue with respect to secret NSA wiretaps is whether or not: (1) the President has been authorized to wage war against an enemy, and (2) do the wiretaps involve secretly monitoring individuals who the President believes are among the members of this enemy. If the President authorized secret monitoring of the enemy, I can't imagine that such an action is inconsistent with these clauses in the Constitution. Nor, can I imagine that a large percentage of my fellow Americans would not want the President to secretly monitoring our enemy.

Do I misread the words of our Constitution? Do I misread the nature of the secret wiretaps?

Media Bias Economics

From UCLA News:

"While the editorial page of The Wall Street Journal is conservative, the newspaper's news pages are liberal, even more liberal than The New York Times. The Drudge Report may have a right-wing reputation, but it leans left. Coverage by public television and radio is conservative compared to the rest of the mainstream media. Meanwhile, almost all major media outlets tilt to the left.

These are just a few of the surprising findings from a UCLA-led study, which is believed to be the first successful attempt at objectively quantifying bias in a range of media outlets and ranking them accordingly.

'I suspected that many media outlets would tilt to the left because surveys have shown that reporters tend to vote more Democrat than Republican,' said Tim Groseclose, a UCLA political scientist and the study's lead author. 'But I was surprised at just how pronounced the distinctions are.'

'Overall, the major media outlets are quite moderate compared to members of Congress, but even so, there is a quantifiable and significant bias in that nearly all of them lean to the left,' said co‑author Jeffrey Milyo, University of Missouri economist and public policy scholar.

The results appear in the latest issue of the Quarterly Journal of Economics, which will become available in mid-December."

Hmmm. If it's published in QJE, it has to be right, eh?

Constitutional Radicalism

Noah Graubart writes:

"Thomas' radicalism on this front is perhaps best demonstrated by his 2004 dissent in Elk Grove Unified School District v. Newdow, the infamous Pledge of Allegiance case. The majority of the Court held that Michael Newdow -- the father who sued over his daughter's school's practice of reciting the pledge in class -- lacked standing to challenge the pledge because his ex-wife, not he, was the child's custodial parent entitled to bring such actions. Thomas disagreed with that assessment. He also went one giant step further, arguing that the First Amendment's Establishment Clause does not even apply to the states. That this is a radical conclusion in itself is probably obvious (most scholars would also probably call it dubious, at best). What is more striking, though, is that Thomas felt it appropriate to make the argument at all. The majority did not even reach the merits of the case. The portion of Thomas' dissent discussing the First Amendment, therefore, was entirely gratuitous -- a fact that is indicative of his unwillingness to let sleeping dogs lie when it comes to precedent. Furthermore, Thomas' approach undercuts decades of precedent presuming that states are limited in their ability to establish religion. The school district did not even take this radical position, although the amicus brief of Phyllis Schlafly's Eagle Forum did (always a good indicator of the reasonableness of a position). As troubling as the idea of the Baptist State of Kentucky may be, it is equally troubling to know that Justice Thomas is so cavalier about introducing such an interpretation."

I'm bothered by the suggestion here that Justice Thomas has a radical view of the Constitution. I think it is certainly the case that Constitutional jurisprudence at this stage has said the First Amendment's Establishment Clause applies to the states. Justice Thomas apparently thinks this clause in the Bill of Rights does not apply to the states, and Mr. Graubart says such a conclusion is "radical" and suggests that other scholars would "probably call it dubious at best."

I'm concerned by this because it seems clear to me that such a position was the original meaning of the Constitution. After all, at the time the Bill of Rights was ratified there was at least one state (Mass. I think) that had an official government religion, and if my memory serves me, there were perhaps two other states with official government established religions. Ratification of the Bill of Rights did not make those state religions unconstitutional. And, this seems sensible to me since these are the words actually written as the First Amendment: "Congress shall make no law respecting an establishment of religion. . . " Surely, different language, e.g. "Congress, as well the states, shall make no law respecting an establishment of religion", could have been written that would have made the establishment clause applicable to state governments. But there are no such words written in my copy of the Constitution.

Further, as I understand the history of Constitutional jurisprudence, the Supreme Court's opinions for many years were precisely this -- the Bill of Rights does not apply to state governments. The reason the establishment clause is now thought to apply to state governments is that the 14th Amendment was ratified. The Supreme Court, over time, has come to the position that the 14th Amendment changed the Constitution to say, among other things, that the Bill of Rights no longer constrains just Congress, but it constrains state governments as well. Unfortunately, the 14th Amendment does not itself, include words that directly say something like: "The Constitution is now amended to include the constraints found in the Bill of Rights to state governments as well as to Congress." If you read the 14th Amendment, perhaps you will wonder whether ratification of the 14th Amendment really did change the Constitution so that state governments were to be constrained by the Bill of Rights.

Can an interpretation of the Constitution really be said to be radical if such a view was once, and for quite a long time, the clear view on which the Supreme Court reached opinions? Can it really be dubious to assert that the establishment clause does not apply to the states when the actual language in the Constitution mentions only Congress and not state governments? Perhaps we could more easily argue that when there are no specific words and clauses in the Constitution that say the establishment clause constrains state governments, that the present state of Constitutional jurisprudence in this area is "dubious at best?"

Perhaps when the Constitution is changed in ways that are not the result of the formal ratification process it is only to be expected that people will argue interpretations and even assert some interpretations (by others of course) are radical and dubious. But, it does seem difficult to me to assert that a view of the Constitution is radical and dubious when I have my own copy and the words I read sound very much like what is asserted to be radical and dubious.

Schumer's Checks & Balances

From the WSJ today:

"'Sen. Frist has thrown down the gauntlet at a time when the country least needs it,' said New York Sen. Chuck Schumer, a Democratic member of the Judiciary Committee. 'The American people know that checks and balances are an integral part of our government.'"

Interesting. I suppose Senator Schumer is referring to his role as Senator in checking and balancing the power of the President to put a person on the Supreme Court. And, of course, such a "check and balance" is of value. But, in reading Senator Schumer's comment, I was reminded of something he said during the process of Senate consenting to Justice Roberts. Senator Schumer was concerned that Justice Roberts seemed to think the Congressional power to regulate interstate commerce was a limited power, whereas Senator Schumer seemed to think the power to regulate interstate commerce meant that he and has colleagues in Congress could regulate any aspect of economic activity. This suggests to me that the power of the President isn't the only relevant issue regarding "checks and balances" in question with respect to new members of the Supreme Court. Specifically, Senators will be voting to consent or not to the appointment of a new Supreme Court justice who will later make decisions about the Constitution that will either serve to check the power of Congress (and Senator Schumer) or that will not check the power of Congress.

Consensual Capitalist Acts

Don Boudreaux:

"Proponents of immigration restrictions, and especially of the so-called “Minutemen” who police against “illegal” immigrants, often make the following argument:

Whether current levels of immigration are good or not, the fact is that many immigrants are in the United States illegally – that is, without the permission of the government. Breaking laws is wrong. Therefore, anyone in the U.S. illegally is a wrongdoer and should return to his own country. If he then applies for and receives permission to enter the U.S. legally, then he’ll be welcome.

Minutemen help government enforce laws on the books; therefore, they should be applauded.

(The wording above is mine, but if you survey much of the anti-immigration, pro-'Minuteman' literature -- including some of the comments on this blog-post -- you'll find it, I believe, to be a fair rendition of a much-used argument.)

This argument is weak.

First, it fails to appreciate the fact that unjust laws deserve to be broken, or at least don’t deserve to be obeyed. Wasn’t it noble to violate the fugitive-slave laws and Jim Crow legislation? (I understand, of course, that there’s some danger in a decentralized system for deciding which laws are worthy of respect and which laws aren’t. But there’s also danger in a centralized system for declaring which laws should be obeyed.) My moral sense is that politicians, bureaucrats, and “Minutemen” have no business telling me which peaceful persons I can befriend or make love to in my own home or hire in my own factory. My moral sense tells me also that foreigners are not morally obliged to obey American politicians who would keep them from engaging in consensual capitalist acts on these shores."

Would you say this is a sound position based on the normative perspective of liberty? Or would liberty suggest that the citizens of the United States have agreed to a "social contract", while illegal immigrants have not?

"More Freedom Than Any Other People"

Alex Kozinski:

"Dr. Buchanan advances a vision of government—especially the federal government—that I find attractive. There is, alas, a lingering nostalgia for the vision of the minimalist state as a purer form of government, one that advances everyone’s economic well-being while maximizing personal freedom. While I have a romantic attachment to this vision, I’m far from convinced that it would achieve the goals set for it—that we’d be living in a better world today if only we repudiated the New Deal, or had never adopted it in the first place. Whenever I try to imagine what such a world would look like, I look at the world we do live in and recognize that we don’t have it so bad at all. We have the world’s strongest economy by far; we are the only superpower, having managed to bury the Evil Empire; and we have more freedom than any other people anytime in history. We must be doing something right."

Could it be true that "we have more freedom than any other people anytime in history"? The Index of Economic Freedom does not rank our system of political economy at the top of the heap today, and it seems to show economic freedom on the decline in our system of late. Could it really be true that the people of the United States prior to the Democrat Supreme Court's of FDR and Truman had less economic freedom than we do today? Could it really be true that the people of the United States had less economic freedom during the "economic due process era" of Supreme Court constitutional jurisprudence than we do today? Can it really be true that we have greater freedom today when government can take a person's house to become the private property of another, than the people of the United States had when the Supreme Court said this could not be done?

Wal-Mart

Have you heard there are people arguing over Wal-Mart? A commentary at OpinionJournal.com puts the issues in perspective. Consider:

"But even if you buy into the myths, there's no getting around the fact that somewhere out there, millions of people are spending billions of dollars on what Wal-Mart puts on its shelves. No one is making them do it. To the extent that mom-and-pop stores are threatened by Wal-Mart, it's because the same people who supposedly so value their Main Street hardware store find that Wal-Mart's selection, or prices, or parking lot--something about it--is preferable. Wal-Mart can't make mom and pop shut down the shop any more than it can make customers walk through the doors or pull out their wallets. You don't sell $300 billion a year worth of anything without doing something right.

What about the workers? In response to long-running criticisms about its pay and benefits, Wal-Mart's CEO, Lee Scott, recently called on the government to raise the minimum wage. But as this page noted at the time, Wal-Mart's average starting wage is already nearly double the national minimum of $5.15 an hour.

So raising it would have little effect on Wal-Mart, but calling for it to be raised anyway must have struck someone in the company as a good way to appease its political critics. (Bad call: Senator Ted Kennedy quickly pocketed the concession and kept denouncing the company.) The fact is that the company's starting hourly wages not only aren't as bad as portrayed, but for many workers those wages are only a start. Some 70% of Wal-Mart's executives have worked their way up from the company's front lines."

Note first, the attention to Wal-Mart isn't forcing anybody to buy its products. Nor is it forcing people to stop buying at the "Mom-and-Pop" stores. Nor is it forcing people to become employees.

Second, note Wal-Mart's average starting wage, and the observation that 70% of Wal-Mart's executives worked their way up in the organization.

Third, consider the following:

". . . the vanguard of the Wal-Mart haters is composed of unions that have for decades kept retail wages and prices artificially high, especially in the supermarket business. Those unions have had next to no success organizing Wal-Mart employees and see Wal-Mart's push into groceries as a direct threat to their market position. And on that one score, they may be right.

But seen in that light, it becomes clear that much of the criticism is simply a form of special-interest lobbying in socially conscious drag. And why an outside observer should favor the interests of unionized supermarket employees over those of Wal-Mart shoppers and employees is far from clear (unless you're a politician who gets union contributions)."

So, the criticism of Wal-Mart is in support of the interests of unions, and unions, by their nature are, coercive. Further, note that government has historically, with legislation, thrown it's coercive power behind the unions. Thus the arguments over Wal-Mart seem to involve those on one side who point to the voluntary actions of buyers, employees, and Wal-Mart, versus those on the other side who want to use force and coercion to interrupt those voluntary actions.

Everything Changes

Jason Potts:

"I ended the last post with the notion that, in an evolving economy, everything changes, and that that is the reason government cannot do anything useful with respect to innovation policy. So let me say that I am not down on the role of government. I see absolute certainty in its role in providing law & order, defence, property rights, and that is all."

[. . . .]

"Economic evolution (as driven by innovation) is an ever ongoing process. There is no end. There never can be an end. Economic evolution (and economic development and growth) is an ongoing process. The point is that in an economic system, everything eventually changes because everything is eventually subject to competitive challenge. No economic activity is an island. No policy can ever hope to be specific."

It seems to me that this is correct. Unfortunately, the static models of economics cannot capture this aspect of economic activity. The idea of economic efficiency, since it evaluates consequences or results, fits very well the static models of economic activity. But, it does not fit at all well with the truly dynamic and evolutionary nature of the economy. The static models combined with the idea of economic efficiency encourage us to think government can find policies that will get efficient results from economic activity. Instead, I think recognizing that "no economic activity is an island" should lead us to emphasize process rather than consequence when we examine public policy and government. Paying attention to process leads us to emphasize individual liberty, not economic efficiency as pareto optimality.

Urban Planning

Jane Jacobs:

". . .for while [Ebenezer]Howard was not planning cities, he was not planning dormitory suburbs either. His aim was the creation of self-sufficient small towns, really very nice towns if you were docile and had no plans of your own and did not mind spending your life among others with no plans of their own. As in all Utopias, the right to have plans of any signficance belonged only to the planners in charge. . ." [The Death and Life of Great American Cities, p. 17]

Enough said.

Give Me Liberty Instead

Jason Potts:

"What should an economy maximize? We normally say utility or some such if we are microeconomists, or savings and investment if we are macroeconomists. These objectives define our welfare assumptions. Recently, there's been a lot of discussion as well as noise and confusion about the ethics and welfare meaning of economic growth (Norberg, Hamilton, et al). Yet all of it eventually drills down to the meaning of income and wealth. Recently even economists have revived the criteria of happiness.

But what if all of this is wrong. What if the proper welfare and objective function is actually a flow, and moreover an ephemeral flow. What if instead of maximizing income or wealth, the proper liberal market maximand is novelty.

This is what evolutionary economists believe. And it is also true that neoclassical growth theorists and mystics alike always insist upon there being a something that is maximized. It might be some notion of eternal goodness and welfare, or it might be some notion of growth. Yet the great development economist Amarta Sen says that what should be maximized is forward opportunity. The great uber-economist Friedrich Hayek says the same thing, noting that this means the growth of knowledge. And theoretical evolutionary biologists all insist (since Fisher) that what evolution maximizes subject to reproduction constraints is variation."

I think the question is a good one: "But what if all of this is wrong?" I'm thinking that the answer isn't to maximize novelty. Not because I suspect novelty isn't really valued. Rather, I'm not so sure we should think the "market" is supposed to ideally maximize anything.

I also suspect that Hayek might well disagree that he thought the "market maximand" was forward opportunity. I suspect Hayek might well have said that the market is not supposed to ideally maximize anything.

My suggestion is that the goal is generally individual liberty, and therefore I value "the market" because this is a realm of daily life that, of itself, is the very essence of liberty. Even when government coercively seeks to force the market in one direction or the other, "the market" tends to move of "it's" own accord. Individuals don't like to be forced, so they move their activity and their choices away from the force and in the direction of some other realm of daily life that allows liberty. The significance of the market seems to me to be liberty, and the icing on the cake that is the market is that, as Smith and Hayek taught, spontaneous order emerges from the realm of individual liberty we call "the market."

Windfall Accounting Tax

From an editorial in today's WSJ:

"But wait, this time it's worse. The current Senate proposal would actually require oil companies with daily production of 500,000 barrels or more to disregard generally accepted accounting principles, by revaluing their oil inventories. GAAP accounting (and current tax law) allows oil firms to value barrels of oil sold at what it costs to replace that barrel.

The Senate bill would require the companies to revalue their inventories by $18.75 a barrel -- an arbitrary number if there ever was one. In effect, this means that Congress is creating the illusion of higher oil profits, and thus raising the tax liability of oil companies by an estimated $5 billion next year. This would be on top of the 35% tax rate they already pay on their actual profits."

Isn't this just about par for the course? Could our fearless elected leaders really consider mandating that oil companies value a barrel of oil at $18.75 for the purposes of calculating a tax burden? And, I wonder who benefits from such a law?

Liberty or Efficiency

Peter Boettke:

"James Buchanan has just published a paper that everyone should read -- 'Cost, Choice and Catallaxy: An Evaluation of Two Related But Divergent Virginia Traditions,' in Charles Rowley and Francesco Parisi, eds., The Origins of Law and Economics (Edward Elgar, 2005). Rowley organized a lecture series over several years which brought to GMU all the founding fathers of law and economics and the current leaders in the field. These lectures are now published in this wonderful volume.

In his essay Buchanan seeks to explain the similarities and differences between himself and Coase with respect to the economic analysis of the law. Coase is an opportunity cost thinker, as is Buchanan, but Coase according to Buchanan is an objectivist while Buchanan states that: 'I have been, I hope consistently, almost throughout my whole career, a subjectivist, a stance that will not allow me to lay down normative criteria for courts or for anyone else.' Buchanan's position cuts at the core of the cost/benefit analysis that is crucial to standard law and economics. As might be expected from Buchanan, he directs his subjectivist critique of cost/benefit and equilibrium analysis and argues instead for a subjectivist, process and constitutional perspective."

These days I'm with Buchanan, and I think it is important to consider the differences in perspectives. The idea is that while both Buchanan and Coase emphasize opportunity costs, the subjectivist stance of Buchanan is that opportunity costs are subjectively known by each individual decision maker, and not something that can be objectively observed and measured by an external perspective. Coase takes this objectivist stance that opportunity cost can be measured by an external observer.

If law and economics is a field of study that relies on economic efficiency analysis, then it will have to be a field of study that accepts the objectivist position. Without the belief that we economists can measure the relevant benefits and costs that individual actually perceive when making decisions, we would be unable to pursue empirical efforts to identify public policies that are efficiency.

Of course, this is precisely Buchanan's position. Because he finds individual values and opportunity costs to be subjective and understand by individual decision makers but not objectively measurable by economist, Buchanan says he cannot "lay down normative criteria for courts or for anyone else." Instead he emphasizes process and decisions about government from a constitutional perspective, not from the perspective of the normative properties of allocative consequences.

My suggestion is that individual perceptions of well-being, economic value, and opportunity cost are indeed subjective. Perhaps we might think we are able to estimate such values at the margin in various ways, but the models that lead us to such conclusions are static, not dynamic and evolutionary. Our lives are not static and determinate. Individual lives are dynamic and adaptive, evolutionary and emergent. Combine subjective individual values of benefits and costs with a dynamic view of economic life and the conclusion seems to me to be to leave economic efficiency behind, and emphasize liberty and process.

Our Budget Woes

From today's Wall Street Journal editorial:

"In one corner are the Republicans, who propose to 'cut' entitlements over the next five years by $35 billion (Senate) and $59 billion (House). GOP 'moderates' were so spooked by even this amount that last week they forced their leadership to pull the budget from a scheduled vote on the floor. The Republicans could not corral even a single Democratic vote for a budget they say contains savage cuts. To which we can only respond: what cuts?

The reality is that over the next five years the total federal budget is expected to exceed $13.855 trillion. The Republican faux-Slimfast plan basically erases the rounding error, or the $0.055 trillion, and leaves the $13.8 trillion untouched. To put it another way, the GOP plan reduces the increase in the federal budget by a microscopic 0.25% over the next five years. The new prescription drug bill by itself adds some $300 billion to the budget over this same five years, or six times what this 'deficit reduction' bill would save.

In the other corner are the Democrats who supposedly learned 'fiscal discipline' at the knee of Robert Rubin. Not quite. Their Congressional leaders, Nancy Pelosi and Harry Reid, have denounced even these paltry GOP savings as 'shameful' and 'immoral.' They even brought a dozen Katrina Hurricane victims to Washington, trotted them out in front of the national media, and proceeded to lambaste Republicans for shredding the social safety net.

The hypocrisy here is nearly immeasurable. Earlier this year when President Bush tried to fix Social Security with private investment accounts and slower benefit growth for high-income seniors, his critics said the health care cost 'crisis' was more urgent. But now liberals are assailing even the tiniest slivers in Medicare and Medicaid as shameful and anti-poor.

Here's a reality check on the state of the safety net: For the past five years federal spending on anti-poverty programs has increased by 41%. Medicaid, which provides health care for the poor, is scheduled to grow by 7.9% a year, and under the GOP plan it would grow by 7.5% a year. Either way the program expands by more than double the rate of inflation through 2011. Meanwhile, we still await those Democrats who fancy themselves as deficit hawks to propose even one remotely serious entitlement reform."

What are we to do? Both sides of the political isle seem to embrace more spending and larger national government. Years ago David Stockman wrote a book about the national government budget, and he argued that "we" (meaning citizens and taxpayers) got what we wanted, i.e., big national government. Is this really what "we" intended to do -- elect a bunch of politicians to spend our money like drunken sailors?

Avian Flu - What To Do

Have you been hearing about the avian flu? Are you wondering what public policy should be regarding avian flu? You might be interested in Tyler Cowen's analysis. He has several suggestions for what to do. Here are his don'ts:

"We should not do the following:

1. Tamiflu and vaccine stockpiling have their roles but they should not form the centerpiece of a plan. In addition to the medical limitations of these investments, institutional factors will restrict our ability to allocate these supplies promptly to their proper uses.

2. We should not rely on quarantines and mass isolations. Both tend to be counterproductive and could spread rather than limit a pandemic.

3. We should not expect the Army or Armed Forces to be part of a useful response plan.

4. We should not expect to choke off a pandemic in its country of origin. Once a pandemic has started abroad, we should shut schools and many public places immediately.

5. We should not obsess over avian flu at the expense of other medical issues. The next pandemic or public health crisis could come from any number of sources. By focusing on local preparedness and decentralized responses, this plan is robust to surprise and will also prove useful for responding to terrorism or natural catastrophes."