Louisiana's Looters

In the Washington Post:

"THE NATION is at war. It is mired in debt. It has been hit by floods and hurricanes. In the face of this adversity, congressional leaders have rightly dropped proposals for yet more tax cuts, and some have suggested removing the pork from the recently passed transportation bill. But this spirit of forbearance has not touched the Louisiana congressional delegation. The state's representatives have come up with a request for $250 billion in federal reconstruction funds for Louisiana alone -- more than $50,000 per person in the state. This money would come on top of payouts from businesses, national charities and insurers. And it would come on top of the $62.3 billion that Congress has already appropriated for emergency relief.

Like looters who seize six televisions when their homes have room for only two, the Louisiana legislators are out to grab more federal cash than they could possibly spend usefully. For example, their bill demands $7 billion for rebuilding evacuation and energy supply routes, but it also demands a separate $5 billion for road building and makes no mention of the $3.1 billion already awarded to the state in the recent transportation legislation. The bill demands $50 billion in community development block grants, partly to get small businesses going, but it also demands $150 million for a small-business loan fund plus generous business tax breaks. The bill even asks for $35 million for seafood marketing and $25 million for a sugar-cane research laboratory. This is the equivalent of New York responding to the attacks on the World Trade Center by insisting upon a federally financed stadium in Brooklyn."

Perhaps this is a clear illustration of the incentives faced by those in legislatures. What do legislatures do? They spend money. They make more laws.

When does "disaster relief" become just another example of "rent seeking?"

Porkbusters

What an interesting website. If you ever want to understand just how large the federal government pork barrel was, then this might be the place to start looking.

Scalia on Government Arts

Scalia:

"Scalia said Thursday he believes the government did not violate the First Amendment in the case of the Serrano photo - it did not pass any law to throw the 'modern day DaVinci' into jail nor did it stop him from displaying his art, he said.

'I can truly understand the discomfort with government making artistic choices, but the only remedy is to get government out of funding,' he told the audience."

Let's review the relevant Constitutional language:

"Congress shall make no law . . . abridging the freedom of speech. . ." (1st Amendment).

Justice Scalia argues that when government spends money it can spend it on any art it wants, and that, what government cannot constitutionally do is make a law that would constrain what someone else wants to say through his or her art.

It seems to me this is the plain meaning of the language we find in our Constitution. What do you think?

Senator Salazar: Basic Function of Government

US Senator Ken Salazar:

"The basic function of the federal government is to respond to national disasters just like Hurricane Katrina."

What is this all about? The BASIC FUNCTION of the federal government is to respond to national disasters?

Maybe we need to look closely at the language spoken by politicians. I suppose by "federal government" he could mean the combined system of state, local, and national government. If so, then perhaps we could sign on to this assertion. On the other hand, neither the President nor the Congress is responsible for the entire system of state, local, and national government. I suspect Senator Salazar is really saying he thinks the basic function of our national government, and therefore of Congress, is to respond to national disasters. And, this assertion I think is false. I suggest the basic function of the federal government is "to provide for the common Defense" (to borrow a phrase from the Constitution). I've read Article 1, Section 8 of the Constitution to no avail. I do not find there that Congress has the power to respond to disasters resulting from hurricanes.

And, that brings up a second interesting aspect of Senator Salazar's assertion. Note that he uses the term NATIONAL DISASTER, and not the term NATURAL DISASTER. Of course, a hurricane can result in a natural disaster, but I'm not really clear on why we have seen a national disaster. Using the word "national" seems to suggest damage that is nation wide. The hurricane leads to a great many individual disasters because of damaged property and lost lives. It even causes damage to city and state government infrastructure and services. But, it seems to me this is really not accurately discribed as "national." In contrast, the attacks of 9/11 were attacks on this nation of citizens, and is truly a NATIONAL disaster. Of course, responding to such national disasters does seem to be the basic function of our national government. I think it is stretching way too far to think the basic function of our national government is to respond to natural disasters.

Scientism

The Austrian Economists :

"The effort by economists to ape the scientific methodology of the natural sciences is one of the most intellectually dangerous ideas of the 20th century. Unfortunately, despite the rise in the 1980s and 1990s of serious philosophical challenges to the hegemony of scientism, economists in the 21st century seems to be moving along unaffected by this critique. At least in the 1940s and 1950s, economists sought philosophical justification for their practice of model and measure. Now-a-days, the focus is on conventionalism. The only justification is that economists do what other economists do, and what they do is build models and test for statistical significance."

There is probably more than a little truth in this, don't you agree?

Economics & Economic Literacy

Russell Roberts:

"Too many economics classes at the undergraduate level are a dumbed-down version of graduate economics, which in turn is often a dumbed-down version of physics. Kidding about the physics, but I do think economics over the last 25 years has added what is thought to be rigor, in hopes of being more like the respected physical sciences, with little gain in understanding of the real world.

Rather than being like physics, economics is more like biology, or better, ecology. Too often the economy is viewed as an engine or some other linear set of relationships, where it is presumed that by pushing lever A, I can move object B. I would argue that the economy is better understood as an ecosystem, a complex system of interactions where order emerges rather than being imposed from above."

The models we teach as economics to undergraduates do indeed encourage students and even other economists to see the economy as a machine with controls that government can manage if only we economists provide the necessary information. Indeed, I agree the economy would be better understood as a dynamic system with spontaneous order and emergent novelty. Unfortunately, none of our textbooks look like this.

"The other problem I think we have in reaching people is that some special interests have a vested interest in spreading economic misinformation. So labor unions, for example, encourage people to believe that Wal-Mart is driving down wages or that manufacturing is the key to economic growth in America. I find it interesting that people don't view these arguments more skeptically, the same way they would view any self-interested argument. I don't know whether people presume that unions are altruistic or whether such arguments successfully tap into the reader's or listener's already-existing worldview. The proliferation of bad economics from folks who profit from ignorance is a big challenge."

Very well put. I'm not optimistic since I have good reasons to assume that voters are rationally ignorant.

Civilization Advances

"Civilization advances by extending the number of important operations which we can perform without thinking about them."

Alfred Whitehead

I'm wondering how government would help in advancing civilization?

Kelo on Kelo

Susette Kelo:

"Today, I am scheduled to testify before the U.S. Senate Judiciary Committee on eminent domain abuse. I sincerely hope Congress will do what judges and local legislators so far have failed to do for me and for thousands of others across the nation: protect our homes under a plain reading of the U.S. Constitution, which says government may only take private property for a 'public use.' "

It just doesn't seem like that language is difficult to understand, eh?

This is how Susette see the case:

Why did the City and the New London Development Corp. (NLDC) want to kick us out? To make way for up-scale condos and other private developments that could bring in more taxes to the city and possibly more jobs. The poor and middle class had to make way for the rich and politically connected.

If the government was taking our property for a road or firehouse, I would be prepared to sell without a fight. But the government should not be able to force me to sell my home so someone else can enjoy my view. NLDC wants my land to market to a developer for projects to "complement" our area's new Pfizer facility. This is for private profit, not public use.

Her view seems about right to me.

Like my neighbors up the street, I worked hard (in my case, at up to three jobs at a time) to pay for my home. And we should not be forced out by our own government simply because someone else who carries more political clout wants the land for a nonpublic use. Isn't that what the courts, Congress and the Constitution are supposed to protect us from?

As I sat there in the U.S. Supreme Court back in February and listened to the justices hear my case, I was so disappointed their very first question and first concern was for the power of government rather than the rights of citizens.

WOW! It seem to me, that if the Judicial branch of government doesn't think it's first priority is to protect individuals from government, then we might just as well not have a Judicial branch of government. The logic of getting elected means that neither the Legislative branch, nor the Executive branch, will see incentives to protect individuals from government.

Sadly, she might be right about the following as well:

In many ways, my neighbors and I are the victims of legislators, lawyers and judges who believe it is somehow a sign of intelligence to make language that clearly means one thing mean something exactly the opposite: "Public use" now means private use; judges don't judge but instead let legislators decide whether they're violating the Constitution. There is nothing intelligent about misusing language in this way to take away people's homes and their rights.

On the other hand, perhaps it is even worse than this. Could it be that far too many learned people no longer truly value the liberty of the individual, and value instead finding ways to grab hold of the coercive power of government. I don't know, could be I'm still just in a bad mood.

The Cynical Optimist

Bryan Caplan:

"I've thought of myself as a cynic since junior high at the latest. But I've also long considered myself an optimist. Is it possible to be both? At least as I use the terms, it is.

In large part, I think of cynicism as the view that the average quality of human beings and the world is a lot lower than it could and ought to be. Professors should be passionate about answering the Big Questions of their fields, but most of them are boring careerists. Movies and tv ought to be creative and thoughtful, but most of it is derivative claptrap. And so on.

So how can I think this and remain an optimist? Because optimism, as I practice it anyway, is an attitude and a strategy, not a description of the world. As an optimist, I try not to dwell on boring careerists and derivative claptrap. Instead, I seek out the exceptions to the rule and appreciate what I find. Just because the average is low doesn't mean that you can't personally consume high quality. And even when the quality I consume is far from ideal, I try to mentally change the subject to another dimension where I have blessings to count."

I think I might be a cynical optimist.

Senators On Judiciary

Eric Jaffe:

"I am struck, watching the hearings, at the complete disconnect between the criticisms of many of those opposing Judge Roberts and a cogent view of the role of the courts. It seems that many of the criticisms are policy based — x or y rulings would lead to bad RESULTS — and make no reference whatsoever regarding whether such results are in fact the correct interpretation of the law (or the Constitution). Judge Roberts's repeated point was that he was committed to the law, and not to a political agenda, yet most of the criticism seems to be that he lacks a particular favored agenda on things like civil rights, the environment, etc. But certainly the critics cannot have it both ways, pissing and moaning that he might reject a substantive conclusion that they favor, yet demand that he not bring his personal views into the judging process. Unless they think that he will misinterpret the law in a way that follows his allegedly retrograde views and opposes their more 'enlightened' views, it seems that their criticism should be about the laws as written, or the Constitution itself, and not about the jurist who interprets them faithfully. Demanding a Justice that would distort the laws to serve a particular end, be it civil rights, the environment, or what have you, is basically demanding a jurist who would be dishonest and violate his oath of office."

Law Professor Disapproval

Eric Jaffe:

"I see that in the hearings Charles Fried makes a point similar to mine. August company for me, less so for him. The professors complaining about Judge Roberts continue to fall into the same trap. The notion that the courts should be a beacon for some particular substantive agenda rather than simply for scrupulous adherence to the law and the Constitution is troubling, to say the least."

Could it be that the complaining professors, and throw in complaining Senators, simply don't like the very idea of constitutional government?

Is there a meaningful idea of constitutional government if there is a "living constitution" as this term is defined today?

An Honest Constitutional Republic

With the recent Roberts confirmation hearings, and given that I'm teaching my course in Constitution and the Economy this semester, I've been thinking about the Constitution a lot lately.

I guess I make 2 assumptions or perhaps accept 2 principles: (1) a person should be able to read and understand our written Constitution without being a constitutional scholar or an attorney practicing constitutional law, and (2) it is better, other things constant, to be more honest, rather than less honest, with our constitutional system of government.

I find it hard to match the written words in our Constitution, as published, with our system of government today.

I wonder what words we would write down for our Constitution today, assuming that we wanted it to summarize, in a simple way, what the Supreme Court thinks it means? I suppose this is a bit like Barnett's idea of the "lost constitution" . But, I think it would be of great value to have an honest constitutional republic, and therefore, to consider how we would have to rewrite the words in our Constitution to be consistent with the real constitution, i.e., with the constitution as it is viewed by the Supreme Court today.

I want to suggest language for some clauses that would have to be included in a constitution that honestly reflected our constitutional system of government today. This is just my suggestion for a first draft, if you will, of some of the clauses:

A. The Supreme Court shall have the power to amend the written words of the Constitution by simple majority vote.

B. Congress and State governments shall have the police power.

C. Congress shall have the power to regulate any aspect of our individual lives, and this includes the power to prohibit behavior.

D. Congress shall have the power to tax income, wealth, and any form of economic activity. It shall have the power to impose taxes differentially among the citizens.

E. Congress shall have the power to subsidize any aspect of our lives, and to do so differentially among the citizens.

F. Congress and State governments shall have the power to grant special privileges and immunities differentially among the citizens.

G. Congress shall have the power to own property. Congress owns the air and the wildlife of the country, and may take food or shelter for its wildlife from individuals without compensation.

H. Any level of government shall have the power to take private property for any public purpose, and this includes the power to take private property for private ownerhip by others. This power to take private property requires compensation be paid by government, but full compensation is not required for use of this power.

I. The powers of Congress and of the States are constrained by the following:

1. There must be a strict separation between government and religion.
2. No law may be made abridging the freedom of speech in the areas of politics and certain forms of art.
3. No law shall be made abridging an individual's right to privacy.
4. No law shall be made impairing the obligation of contracts, except on the expressed written agreement of a majority of the Justices of the Supreme Court.
5. No law shall be made that deny's equal protection of the laws to every person, except on the expressed written agreement of a majority of the Justices of the Supreme Court.

J. There are no individual rights retained by the people, nor are there powers specifically reserved to the states. If at some time in the future, Congress shall want to undertake an activity which has not been covered specifically by this Constitution, then Congress shall have the general power to tax and spend as it sees fit, unless a majority of the Justices of the Supreme Court disagrees.

Could be I'm just in a bad mood this morning.

How do you think our Constitution would have to be rewritten so that we wouldn't have to be constitutional scholars to know what it says?

Kopel, Reynolds, & Congress on Commerce

Dave Kopel and Glenn Reynolds:

"The president's moral views on cloning are not unreasonable — though any time you find yourself agreeing with Luddites like Jeremy Rifkin and Kirkpatrick Sale is probably a good time to reconsider whether you're right. But whether or not cloning research is a bad idea, the president needs to spend a lot more time thinking about whether it's something that the federal government even has the power to ban.

The federal government, as the president has reminded us, is a government of limited powers, powers that are enumerated in the Constitution. And nothing in the Constitution grants the federal government the power to ban research into cloning, or to suppress other types of science.

The fact that Congress has the power to raise armies, enact bankruptcy laws, and create a Postal Service obviously doesn't give Congress the power to ban scientific research. There's only one enumerated power of Congress for which even a bad-faith argument can be made in favor of congressional power. The Constitution grants Congress power "to regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes" (Art. I, sec. 8, cl. 3). From the 1960s through the 1980s, the Supreme Court interpreted this congressional power to regulate some types of commerce as congressional power to regulate anything, anytime, anywhere."

I think this view of the interstate commerce power of Congress makes sense. In view of many of the questions and statements made by Senators in the Roberts hearing this week, I wonder what those in Congress think about the commerce clause. Chief Justice Marshall wrote for the Court in the first case to interpret the Commerce Clause that when the Constitution says that Congress has the power to regulate interstate commerce this also means that there are some areas of economic activity that Congress does not have the power to regulate. I wonder what those in Congress would include on a list of those areas of economic activity Congress does not have the power to regulate?

Last night I heard a Senator say on television something like (I'm paraphrasing): "Roberts says we cannot regulate manufacturing. Nobody else says that." So, I take that to mean that at least this Senator thinks this is true: manufacturing = interstate commerce. If manufacturing is interstate commerce, then what aspects of economic activity cannot be regulated by Congress? Can anybody suggest a list of things Congress cannot do? What do you think members of Congress would put on this list?

FIRE - First Amendment and Academic Freedom Triumph at Brooklyn College

"BROOKLYN, N.Y., September 14, 2005—In a swift and crucial victory for freedom of speech and academic freedom, Brooklyn College has affirmed that prominent professor KC Johnson will not be subjected to an unconstitutional inquisition into his views. The college surrendered mere days after the Foundation for Individual Rights in Education (FIRE) came to Johnson’s public defense.

Since May of this year, Johnson has been speaking out against the use of “dispositions” theory by Brooklyn College’s School of Education (SOE). Since this theory requires that education students’ commitment to “social justice” be evaluated along with academic performance, Johnson fears its use constitutes an ideological litmus test and invites viewpoint discrimination.

In response to Johnson’s constitutionally protected statements, dozens of SOE professors demanded in a June 20 letter that he cease his “attacks.” Most chillingly, it was also alleged at an “emergency academic freedom meeting” of the faculty union that Johnson would face an official investigation by an “Integrity Committee.”

Johnson never received any notice of such an investigation, nor did the administration confirm or deny its existence. Since he faced a similar secret investigation during a 2002 tenure dispute—and the administration dissolved the student government last fall for passing a resolution it did not like—he was not overly confident that his freedom of speech would be protected.

“Professors certainly have a right to disagree about pedagogy,” noted David French, president of FIRE. “It would have been both illegal and immoral for Brooklyn College to allow KC Johnson to face another official inquisition. Thankfully, this dire outcome has been averted.”"

Wow, basing a student's achievement in her major on her commitment to social justice. I'm kind of disappointed to hear there is a constitutionally protected right to speak out against such a practice. I would like to be able to evaluate my students' commitment to individual liberty, or even to economic efficiency.

Seriously, I'm glad FIRE exists.

The Numbers are Broken

Russell Roberts:

"I know, there are lots of complications to this argument, lots of caveats and lots of footnotes. But the bottom line is that to correctly account for the impact of housing prices on my well-being you would have to take account of depreciation and taxes and maintenance and capital gains and expected capital gains. Too complicated. You can't leave housing out of the index. That would make the index meaningless. But the index as currently estimated is a poor measure for deflating my salary and particularly poor when housing prices and rental rates are rising steadily."

The numbers may be "broken." Perhaps there is another possibility. Perhaps such numbers can't tell us much that is worthwhile and accurate in general. It certainty seems that the numbers cannot tell us the things many people are saying the numbers tell us.

Ann Althouse On Senator Feinstein

Ann Althouse:

"Here's the part I heard in the car that lowered my opinion of Feinstein:

Commerce clause, the 14th Amendment, Lopez, which began a chain of about 36 cases, striking down major pieces of legislation. It's not easy to get a bill passed here. I mean, there are hearings, there are discussions, there are markups, there's one house, there's another house, there's a president.

It goes through most of the time scrubbed pretty good before it gets to the president.

Gun-free schools -- struck down in 1995, an impermissible use of the commerce clause.

'96, Moses Lake, Washington -- shooting in a school. '97, Bethel, Alaska, principal and one student killed. '97, Pearl, Mississippi, two students killed and seven wounded by a 16-year old. 1997, West Paducah, three students killed, five wounded.

Stamps, Arkansas, two students wounded. Jonesboro, '98, four students, one teacher killed; 10 others wounded outside West Side Middle School. Edinboro, Pennsylvania, one teacher killed, two students.

And on and on and on -- an impermissible use of the commerce clause to prohibit possession of a weapon in schools.

Now, at what point does crime influence commerce?

Why did I dislike that so much? Because there is a complete disconnect between the legal question, the scope of the Commerce Clause, and the rhetorical listing of victims of violence. Is the listener not supposed to notice that there are state laws against murder that don't prevent all murders? Why would a federal law against gun possession have been more effective? Or is one of Congress's enumerated powers the power to show it cares?"

Yes, I think that is one of Congress's enumerated powers, isn't it? She comments on most of the rest of Senators, and I thought it was fun. You might want to read all of it.

Senator Feinstein

Senator Feinstein:

"In fact, over the past decade, the Rehnquist court has weakened or invalidated more than three dozen federal statutes. Almost a third of these decisions were based on the commerce clause and the Fourteenth Amendment. FEINSTEIN: If you, Judge Roberts, subscribe the Rehnquist court’s restrictive interpretation of Congress’s ability to legislate, the impact could be enormous. It would severely restrict the ability of a Congress to tackle nationwide issues that the American people have actually elected us to address."

I hope Justice Roberts is at least like Justice Rehnquist, and I will be quite happy if he is more like Justice Thomas.

Justice Roberts

Justice Roberts:

"Mr. Chairman, when I worked in the Department of Justice, in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme court.

I always found it very moving to stand before the justices and say, I speak for my country.

But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system.

Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.

That is a remarkable thing.

It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless.

President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality."

Senator Landrieu On New Orleans

Senator Landrieu interviewed yesterday:

"WALLACE: Senator Landrieu, I want to ask you — and I'll ask you both, but let me start with you — about the local response.

Was it incompetent and insulting for Mayor Ray Nagin to order a mandatory evacuation, but then to leave buses — and we have a picture of them — hundreds of buses idle, so that they could be flooded, instead of using them to get people out.

LANDRIEU: Well, Chris, I was there, as you know, through the whole ordeal with state and local officials, and was right there with Louisiana Democrats and Republicans, city council members, police chiefs, mayors, the governors, and could watch what Haley Barbour was doing and Governor Riley in Alabama.

I am not going to level criticism at the local level. These people did...

WALLACE: But I'd like you to answer, if you could, this one specific question.

LANDRIEU: Well, I will. I will answer it. I am not going to level criticism at local and state officials. Mayor Nagin and most mayors in this country have a hard time getting their people to work on a sunny day, let alone getting them out of the city in front of a hurricane. And it's because this administration and administrations before them do not understand the difficulties that mayors — whether they are in Orlando, Miami, or New Orleans — face.

(CROSSTALK)

LANDRIEU: In other words, this administration did not believe in mass transit. They won't even get people to work on a sunny day, let alone getting them out...

WALLACE: But Senator, there were hundreds of buses sitting in that parking lot. Can I just ask the question?

LANDRIEU: You can, but let me finish, if I could, please.

(CROSSTALK)

WALLACE: Well, look in the picture here. There were hundreds of buses in parking lots. The city and the state.

LANDRIEU: That is underwater. Those...

WALLACE: It wasn't underwater before the...

LANDRIEU: Those buses were underwater. Those buses...

WALLACE: They weren't underwater on Saturday; they weren't underwater on Sunday.

LANDRIEU: We had two catastrophes. We had a hurricane and then we had a levee break. When the levee broke, not only did New Orleans go underwater, but St. Bernard when underwater and St. Tammany Parish went underwater.

WALLACE: But they weren't underwater on Sunday.

LANDRIEU: And Plaquemines went underwater. And because the mayor evacuated the city, we had the best evacuation between Haley Barbour and Kathleen Blanco of any evacuation I've seen. I'm 50 years old; I've never seen one any better.

WALLACE: But there were a hundred thousand people left in the city.

LANDRIEU: They did a hundred thousand people left in the city because this federal government won't support cities to evacuate people, whether it's from earthquakes, tornadoes, or hurricanes. And that's the truth.

And that will come out in the hearing."

Well. . . .Does this sound like a politician, or what?

Global Warming & The Precautionary Principle

Jordan Ballor:

"Vernon L. Smith, a Nobel laureate and professor of economics and law at George Mason University, recognizes the economic concerns that are often overlooked. He writes, “If we ignore this rule of optimality and begin abatement now for damages caused by emissions after 100 years, we leave our descendants with fewer resources - 100 years of return on the abatement costs not incurred - to devote to subsequent damage control. The critical oversight here is the failure to respect opportunity cost. Each generation must be responsible for the future effect of that generation’s emission damage. Earlier generations have the responsibility of leaving subsequent generations a capital stock that has not been diminished by incurring premature abatement costs.”

Often those arguing in favor of global warming policies today will make reference to "the precautionary principle," which seems to be an idea that amounts to "we shouldn't take chances with the future." Support for global warming policies today is also argued on the grounds that the present generation has obligations of justice to future generations. It seems to me that Vernon Smith's analysis suggests that those wanting government policies toward global warming today are quite possibly misguided in terms of those specific concerns. Would you agree?

Here is another thought. It seems to me that while the precautionary principle sounds reasonable, it doesn't really tell us very much at all. Specifically, while it suggests we should take precautions against a risk that a harmful event will occur in the future, it doesn't give us any basis for deciding what is a sufficient amount of precaution. On the other hand, it seems to me that Vernon Smith's approach leads us to think directly about that very question. Would you agree?