Fungible Semantics: The Roberts Decision

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Tax: A contribution for the support of a government required of persons, groups, or businesses within the domain of that government.

Penalty: A punitive measure, regulatory in nature, established by law or authority, to deter certain conduct.

A Supreme Court decision upholding the constitutionality of the healthcare mandate based on the government’s taxing authority?

Well, why not? The tax code has been dragooned into service to influence and shape social behavior for over a hundred years, from a dollar-a-pack cigarette tax, to mortgage relief to encourage home ownership. In addition to the collection of revenue to bankroll government it evolved into an instrument for social engineering and stealth workarounds to advance social policy. Which of the following statements is true?

A tax raises revenue, a penalty raises revenue, therefore a penalty is a tax?

A tax influences behavior, a penalty influences behavior, therefore a tax is a penalty?

That’s right — neither is true. These syllogisms illustrate a well-known logical fallacy that can be found in any college textbook on logic. How, then, could a superior jurist like John Roberts persuade himself that a penalty is a tax? Well, the Chief Justice opined that the penalty for noncompliance with the mandate ($695) was too weak to constitute a deterrent, and must therefore be a tax! This left many to wonder if he had intentionally confounded these two concepts, and thus rewritten the mandate so the Affordable Care Act would pass constitutional muster.

The logic was so bizarre and flawed that some, like Charles Krauthammer, suggested that Roberts resorted to this semantic legerdemain to avoid politicizing the Court and weakening its prestige. But this is to forget that the Constitution was born in crisis and the Court has weathered more violent partisan storms than those of the current climate: just read some of the broadsides in newspapers written one hundred to two hundred years ago. To my knowledge, no Congressmen have been caned to within an inch of their lives in the well of the Senate (though, no doubt, some have deserved it), and no cabinet secretaries killed in duels in the past 100 years. A good rule of thumb: follow the law and let the chips fall where they may.

Misconstruing what is obviously a penalty as a tax may seem a harmless bit of hocus pocus, but playing hard and fast with meaning and general disregard for semantic precision has resulted in a Supreme Court decision that could have unfortunate consequences for the American economy. Or as one editorialist (James Delong) put it:

The ACA is a complex and incoherent law drafted in haste and secrecy, written largely by the healthcare industry to promote its own profits by bringing more people into a government-administered system open to capture and looting. It is defended by an administration trapped by the imperative of defending its handiwork. The product is a Rube Goldberg regulatory system that cannot be made rational, workable, or intelligible, and is a delicious (to Republicans) promise of an endless stream of outrages.

It is all very well for the Chief Justice to defer the issue of constitutionality back to elected officials, but as Ronald Reagan once remarked, “The nearest thing to eternal life we will ever see on this earth is a government program,” and it will be difficult to impossible to repeal the healthcare law even if Mitt Romney is elected president, unless there are significant Republican majorities in both houses of Congress. The stakes were high, very high. This could be the worst Supreme Court decision since Kelo v. City of New London, and it is fair to ask if, during his stormy sessions with the brethren, Justice Roberts experienced some sort of mental lapse.

In the last century or so, no Congressmen have been caned to within an inch of their lives in the well of the Senate — though, no doubt, some have deserved it.

The original sin was, of course, using the tax system as a quick-and-dirty tool to improvise policy, to encourage (say) petroleum exploration or to discourage the use of tobacco, thereby exempting government from the strenuous work of writing carefully crafted long-term programs to advance a coherent policy. The Constitution says that

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . .

The framers did not say that the collection of taxes could or should be used to influence economic behavior or placate special interests, and in this they showed some foresight: broadening the concept of taxation to, for example, provide incentives for certain economic entities, has resulted in a Byzantine tax code so complicated and unwieldy, so corrupted by influence-peddlers and lobbyists, it has become a national embarrassment, and a general disincentive to business and entrepreneurship. Using the sacrosanct tax code as an ad hoc tool to implement policy (rather than enact problem-specific programs) has produced some very bad tax law.

Another institutional casualty, perhaps more fatal than the debasement of the tax system, has been the English language. A general contempt for the elegance and precision of English, e.g. twisting of meaning out of all recognition, demonstrates the dangers that George Orwell warned us about over 60 years ago in his essay, Politics and the English Language. The decline of English, he observed, had entered a deadly spiral:

it becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.

It was Orwell’s belief that words and semantic distinctions matter, that mangling language to suit one's purposes eventually leads to a world where black is white and up is down. How prophetic! We need language to map the world as it is, not as we would like it to be, and a breach of semantics can be even more lethal than a breach of law. Using imprecise language to conceal real meaning is a sure path to chaos. Orwell was talking about communist pamphleteers and flannel-mouthed journalists at the time, but it applies equally to any abuse of language, and that includes the recent decision by Chief Justice Roberts to call a penalty a tax.




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Check Your Premises!

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Ah, NPR — how we love to hate you . . . and guardedly to love you. Love you for such gems as “Car Talk," “A Prairie Home Companion,” and “Freakonomics.” Hate you for the smug sanctimoniousness that passes for “objective” reporting, riddled with questionable premises axiomatically postulated.

It’s not that interviews with the likes of David Axelrod or public sector union bosses are slanted — after all, we expect left-wing boilerplate from them. It’s the public affairs programs, such as “Talk of the Nation” and the “Diane Rehm Show,” which, while pretending to be objective, are blinded by their own unquestioned assumptions. This is particularly evident when the host — be it Rehm or Neal Conan — in an effort to be balanced during roundtable discussions with a potpourri of commentators, plays devil’s advocate. The questions of these devil’s advocates often lack conviction or show a gross misunderstanding of the opposing viewpoint. And they are seldom followed up — after what are invariably short, pro-forma answers.

On Fridays, Rehm hosts a roundup discussion of the week’s news. Recently, the subject was the presidential campaign. At one point she asked the panel whether Mitt Romney’s record at Bain Capital was “fair game” — for an attack by the opposition, I suppose. Instantly, my BS radar quivered, since it’s a given that a candidate’s record should be analyzed and critiqued. The question turned out to be the opening salvo for a nitpicking attack on Romney’s Bain record, private equity in general, obscene profits, and “excessive” wealth. There was no parallel inquiry into whether Barack Obama’s record as a community organizer was “fair game.”

Examine the hidden premises.

In the first instance, the assumption is that work in venture capital and leveraged debt — making a profit by dismembering noncompetitive industries, extracting their residual value, and eliminating the jobs they provide — is problematic, perhaps nefarious. Never mind that failing companies might be better off dissolved, and their assets better employed in a different sector of the economy. Never mind that the benefits to the economy would likely increase employment by making business in a given sector more competitive, despite the short-term loss of jobs. To see this in another way: why should productive capital be wasted subsidizing a dying enterprise producing unwanted goods by overpaid workers at uncompetitive prices?

Although the companies that Bain Capital nurtured back to health and profitability — because, in the judgment of the investors, they showed promise — were dutifully mentioned, the focus of the discussion remained on the euthanatized companies and their lost jobs. Eager to administer the coup de grace, the commentators piled on “excessive” profits and wealth, ignoring whether or not these were acquired honestly through hard work and brains.

Why should productive capital be wasted subsidizing a dying enterprise producing unwanted goods by overpaid workers at uncompetitive prices?

In the second instance — the unasked question (and probably why it wasn’t asked) — the assumption is that work as a community organizer is always noble and beyond criticism. Perhaps it is, but does it qualify a candidate for the presidency, where judgment, leadership and knowledge are paramount?

Mitt Romney’s record — whatever you might think of his policies — at Bain & Company, Bain Capital, and the Salt Lake Winter Olympic games, as well as in the governorship of Massachusetts, demonstrates the sort of judgment, leadership, and knowledge that one expects from a first-class commander-in-chief. In contrast, Barack Obama showed a striking lack of judgment and a foolish naiveté when he promised to close the Guantanamo prison, to have the most open and accessible administration to date, and to do a lot of other things that he has not done, three and a half years into his presidency. The May 26 issue of The Economist displayed its inimitable sense of humor and irony when it reported that

“Barack Obama accepted an award honouring his administration’s commitment to transparency on March 28th 2011. It was given by a coalition of open-government advocates. But the meeting was closed to reporters and photographers, and was not announced on the president’s public schedule. Occasionally life provides perfect metaphors.”

The article then very seriously ups the ante:

“Yet perhaps none of Mr Obama’s transparency promises has rung hollower than his vow to protect whistleblowers. Thomas Drake, who worked at the National Security Agency, was threatened with life imprisonment for leaking to the Baltimore Sun unclassified details of a wasteful programme that also impinged on privacy. The case against him failed — ultimately he pleaded guilty to a misdemeanour charge of ‘exceeding authorised use of a computer’ — but not before he was hounded out of his job. Mr Obama’s administration tried to prosecute him under the Espionage Act, a law passed in 1917 that prohibits people from giving information ‘with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation’. Mr Obama has indicted six whistleblowers, including Mr Drake, under the Espionage Act, twice as many as all prior administrations combined, for leaking information not to a ‘foreign nation’ but to the press.”

Finally, to tie the ribbon properly, The Economist contrasts the Obama administration’s secrecy with the new sunshine policy of Georgia’s Republican administration, which opens vast public access to government files. All this from a newspaper that endorsed Obama over McCain in 2008.

As to leadership, President Obama abdicated any vestige of it when he ignored the balanced-budget recommendations of the bipartisan Simpson-Bowles commission and subsequent Super Committee — both of which he had commissioned. And he left the design of health reform in the capable hands of Harry Reid and Nancy Pelosi.

Obama’s knowledge of community organization might be beyond question, but if his role as a teacher of constitutional law at the University of Chicago meant anything, warning bells ought to have chimed in his head as he signed into law the Patient Protection and Affordable Care Act, otherwise known as Obamacare — as became evident to constitutionalists on June 28 when the Supreme Court’s minority issued vigorously dissenting opinions to the majority’s ruling on its constitutionality.

His lack of economic knowledge is even more abysmal. The Diane Rehm Show referenced above was aired as a follow-up to the Democrats’ critique of Romney’s stint at Bain. TV spots, print advertisements, and an Obama address have caricatured private equity, financiers and of course the Republican candidate as “vampires” and “vultures.” A conflict between profits and unemployment was insinuated. Referring to these attacks, The Economist agreed with Romney’s oft-stated comment that Obama has no idea how the economy works or how jobs are created, and in its June 2 issue opined, “Mr Obama is guilty not of rhetorical excess but of economic muddle. That is far more worrying.”

But back to NPR.

The then soon-to-be-expected Supreme Court ruling on the legality of Obamacare supplied the theme for another recent Diane Rehm roundtable discussion. To the NPR powers-that-be, the constitutionality of the law must have seemed indefensible. So once again, they changed the premise and reframed the debate to stack the deck in their favor. Instead of focusing on the substance of the upcoming decision, discussion focused on the haplessness of five to four decisions and the desirability of broader consensus among the justices. This was chewing on the sizzle instead of the steak. Ironically, even though Obamacare was upheld, it was still a five to four decision.

Conan asked his audience whether NPR offered good value to its listeners, thereby subtly shifting the premise of the argument and justifying the subsidy. He received nothing but paeans of praise for NPR — from its own listeners, of course!

On June 15 President Obama displayed a presidential quality that is anathema to lovers of liberty: a lust for power. Bypassing Congress, he ordered the Department of Justice not to enforce certain measures of immigration law, in effect passing the so-called DREAM act by executive order. On the day it happened, Diane Rehm’s Friday roundtable discussion focused on the decree’s compassion, on Congress’s ineffectiveness, on the Republicans' immigration policy muddle, and on the consequences of the president’s move on the political campaign — in particular, how it stole the thunder of Florida Republican Congressman Marco Rubio, a Cuban-American vice-presidential hopeful whose modified DREAM act had a good chance of being enacted, in a conventional manner. In short, she focused on everything except the executive order’s legality.

A Fox News discussion, on the other hand — and virtually at the same time — questioned the constitutionality of the president’s decree, almost to the exclusion of every other aspect.

On another show, NPR itself was the subject du jour. Whenever the nation’s budget is up for discussion, NPR’s subsidy — relatively small as it is — becomes a point of contention for some Republicans. But the animosity conservatives harbor towards public radio for their leftward slant is almost beside the point. Their more basic concerns are twofold: is the subsidy a proper function of government; and can we afford it?

Those questions are about fundamental premises. Yet they were completely ignored when Neal Conan tackled the subject on NPR’s “Talk of the Nation.” Conan’s show is sometimes a Gatling gun of vox populi sound bites on whatever the current concern happens to be. During these broadcasts he poses a provocative question and solicits callers for their opinions, granting each of them only a few seconds, and seldom engaging them or directly commenting on what they say. On that day Conan asked his audience whether NPR offered good value to its listeners, thereby subtly shifting the premise of the argument and justifying the subsidy. He received nothing but paeans of praise for NPR — from its own listeners, of course!

Premises are not confined to words. Tone can convey its own hidden premises, and Conan is a master of the craft. Merely by the length of his silence and the inflection on the few words he uses to break it following a caller’s comment he can indicate his approval, disapproval or neutrality. The last is the quality he always strives to project, but the careful listener can often almost hear him muffling a censorious tut-tut-tut.

He doesn’t hold a candle, however, to the archly supercilious Nina Totenberg, NPR’s legal affairs correspondent. It’s never difficult to determine Totenberg’s likes and dislikes, which — you can be certain — are always evident, especially when combined with her East Coast Brahmin accent, which lends a certain emphasis to her tone. She can infuse with utter contempt the utterance of a name or story she disapproves; and she can manage to give weight and portent to anything she considers noteworthy, no matter how trivial or anodyne, by the intonation of her voice.

* * *

Writing is seldom objective; reportage never is. Putting an idea into prose requires choosing words to convey the thought, while even selecting what constitutes a news story, deciding how to report it, or how much context to include, invariably slants it.

This seems such a simple observation. Yet most news organizations are loath to recognize or admit it, and don a mask of faux objectivity that few people see through. With one exception: the aforementionedEconomist.

The Economist is an English weekly news magazine in continuous publication since 1843, with a circulation of 1.5 million. Itcalls itself a “liberal newspaper”, but it is not “liberal” in the American sense. Rather, it is “classical liberal”, sometimes advocating radical libertarian positions. Its June 11 issue carried a critique of charitable tax breaks as a cover story. It advocates the legalization of drugs and open immigration, has criticized the “corporate social responsibility” movement from an ethical perspective, and has strongly defended securities short selling and naked speculation as beneficial practices.

Ironically, the journal’s editorial stance results in much more objective reporting than that of an “objective” source such as NPR — for one thing, because a reader knows up front where The Economist is coming from. Contrast with The New York Times (the “newspaper of record”), with a print circulation of 1 million. The NYT has always considered itself the epitome of objectivity, yet a large majority or readers view it as “liberal” (in the American sense). This view was confirmed in a mid-2004 editorial by the then-public editor, Daniel Okrent, in which he admitted that the newspaper did have a liberal bias. But this bias is not the paper’s stated policy position. Both the NYT and NPR would benefit hugely from such a disclosure, as they would no longer draw accusations of hypocrisy. But don’t hold your breath.

One unexpected bonus from The Economist’s openly classical liberal bias is that they can use humor to drive the point of a story home. Reporting on Zimbabwe’s upcoming elections under President Robert Mugabe’s tyrannically corrupt administration, The Economist offered a photograph of an elderly, loincloth-clad shepherd leaning on his crook, next to a coffin under a tree; nearby, a cow grazed. The caption read: “Four votes for Mr Mugabe.”




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Prosecutorial Indiscretion

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On June 15, 2012, hundreds of thousands of foreign nationals living illegally in the United States turned on their television sets to hear that they had become eligible for (1) a renewable two-year deferral of removal from the country and (2) a work permit.

While this may seem like a big change for those immigrants, the focus here will not be on what it might do for them, but how it was done, and why.

How do you think it was done? Choose one of the following: (a) Congress passed a new law and the president signed it, (b) the Supreme Court struck down an existing law, (c) the president issued an executive order, or (d) none of the above.

If you chose (c), it would be understandable, as it was President Obama who announced this change in front of the cameras outside the White House. There was, however, no executive order. An executive order cannot be used to overturn an existing law. On September 28, 2011, President Obama told a group of Hispanic journalists that “this notion that somehow I can just change the laws unilaterally is not true. The fact of the matter is there are laws on the books I have to enforce.” The rest of the transcript is here:

http://blogs.suntimes.com/sweet/2011/09/obama_on_dream_act_cant_just_c.html

The correct answer is (d), none of the above, which leaves the question, “Then how?”

On June 15, Janet Napolitano, Secretary of the Department of Homeland Security, sent a memo to three of her underlings directing them to “exercise prosecutorial discretion” in the cases of certain “low priority” illegal aliens, “effective immediately.” (Yes, she ordered them to exercise discretion.) The memo enumerates the criteria to be used to determine which illegal immigrants will get the deferrals and work permits. The memo is here:

http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

That’s right; it was done by interoffice memo.

It seems odd, doesn’t it? When I hear of prosecutorial discretion, I think of cases in which discrepancies in the chain of custody of a bag of pot lead the prosecutor not to bring charges or perhaps to drop charges, that sort of thing. But in this case, according to the June 15 New York Times, “more than 800,000 young people” are now eligible for deferrals and work permits because an unelected bureaucrat fired off a memo. Upon reading that, I had three thoughts: first, “That’s quite a few people.” Then, “That’s a pretty sweeping change.” And finally, “That’s some discretion.”

In any case, that seems to be how it was done. But why was it was done in just that way?

What follows is an informal examination of the power of prosecutorial discretion in the United States that may help explain the Secretary’s memo.

I once stayed with a friend who lived in the country just outside Düsseldorf. To go into town, I had to walk a few hundred yards to the end of a narrow lane and then cross a road to get to the bus stop. There was a crosswalk with a signal light activated by a button.

The first time I went to town, I walked down the lane, pressed the button and waited. Then I waited some more. With nothing but time on my hands, I looked down the road toward town and saw a straight, empty road that disappeared into some trees about of a quarter mile away. There were neat fields on either side. I turned my head and looked the other way and saw the same thing, fields and all. I then looked across the road toward the bus stop. After a minute or so, the light changed and I crossed.

On my second trip to town, I pressed the button, looked both ways, and, seeing exactly what I had seen before, quickly crossed the quiet, two-lane road.

In the shade of the bus shelter sat a German woman who did not approve of what I had done. I could tell that she did not approve because she told me so. Though my German is limited, I pieced together her strasse, verboten, and dummkopf, along with her gestures and facial expressions, and got the message. As I stood listening, I was reminded that German could do with more vowels and less phlegm. I was also reminded that I was not in Kansas.

Under the signs that tell pet owners to use plastic bags one often finds a fresh reminder of American pragmatism that would make William James proud.

Americans tend toward pragmatism. An American might say, “The purpose of the light is to prevent people from being run over by cars. If there are no cars, then the light, pragmatically speaking, has no purpose.”

Germans tend toward what might be called legalism. A German might say, “The purpose of the light is to tell the pedestrian when it is permitted to cross the street and, more importantly, when it is forbidden to cross the street.” To the German, the cars have nothing to do with it. While this is a simplification, it is not wrong.

In Southern California, where I live now, American pragmatism is on display for all to see. Each citizen sifts all rules, regulations, and laws through a personal pragmatic filter that removes those that are without purpose or of low priority.

A few examples will make the point. Speed limit signs are, of course, viewed as suggestions. Simple rules of the road regarding merging, tailgating, and signaling lane changes are ignored more often than not. Bicyclists are generally oblivious to traffic lanes, signs, and signals. Many locals feign surprise when told that the recreational use of marijuana is not legal. Only tourists stop at the signs that read “STOP”; locals just glide through. Under the signs that tell pet owners to use the plastic bag provided in the little dispenser one often finds a fresh reminder of American pragmatism that would make William James proud.

A German might ask, “What about the police?” In general, the police exercise a great deal of discretion. They use their personal pragmatic filters to screen out low priority violators and violations. Germans are surprised to see that people continue to disobey many laws even when the police are watching. Some of these violations, like dope smoking, depend on the jurisdiction, while others, like breezing past stop signs, are universal. What really shocks the Germans is that the police disobey many laws themselves. Those who doubt this can follow a squad car through traffic in Southern California and count the violations.

Some Germans find all this pragmatism bracing. Once, when I was camping in Zion National Park, a German with an RV and a sunburn walked up to me. In a beer-fed state of shirtless ecstasy, he threw out his arms and shouted, “Everything in America feels so free!” Most Germans, however, are appalled by our pragmatism. To them, it just seems stupid. I know this because they have told me.

The legal systems of the two countries reflect the difference between pragmatism and legalism. In the United States, as Rebecca Krauss explains in her essay The Theory of Prosecutorial Discretion in Federal Law: Origins and Development,“Prosecutorial discretion is a central component of the federal criminal justice system. Prosecutors decide which cases to pursue and plea bargains to accept, determining the fates of the vast majority of criminal defendants who choose not to stand trial.” She concludes the paragraph by pointing out: “In Germany, however, a rule of compulsory prosecution constrains prosecutorial discretion, checking the prosecutor’s ability to pick and choose which cases to pursue. No comparable regime restrains American prosecutors.” The entire essay can be found here:

http://erepository.law.shu.edu/circuit_review/vol6/iss1/1

Generally, then, in Germany, citizens obey the laws, the police enforce them, and the prosecuting attorneys, if the evidence is sufficient, take cases to trial. By contrast, in the United States, the pragmatic citizenry exercises what might be called perpetratorial discretion, deciding which laws to obey; police exercise enforcement discretion, deciding which offenses and offenders merit citation or arrest; and prosecuting attorneys exercise prosecutorial discretion, deciding which cases will be brought to trial. While this is an exaggeration, it is not wrong. (In China I was told, in response to a question about driving with my headlights on during the day, that “any behavior that is not explicitly permitted should be considered to be prohibited.” They make Germans look like softies.)

There is another connection between American pragmatism and Secretary Napolitano’s use of prosecutorial discretion. Pragmatism is at the root of the illegal immigration problem.

It is obvious that for millions of foreign nationals to reside illegally in the United States, millions of foreign nationals must be exercising perpetratorial discretion and knowingly disobeying what they deem to be low priority laws that cover border crossings and residing in the country without authorization.

In the United States, the pragmatic citizenry exercises what might be called perpetratorial discretion, deciding which laws to obey.

In order for them to stay, of course, it is also necessary for millions of American citizens to exercise their own perpetratorial discretion and knowingly disobey low priority laws that ban hiring illegal aliens. So, undocumented immigrants are hired to pick crops, mow lawns, frame houses, flip burgers, clean hotel rooms, assemble mobile homes, and take care of wealthy people’s children. It is not difficult to find workplaces in Southern California where most of the employees are in the county illegally. Both those doing the hiring and those being hired are getting what they want. As they see it, pragmatically speaking: no harm, no foul.

In addition, entire municipalities, counties, and even states are exercising enforcement discretion, looking at (or not looking at) the offenses and the offenders and deciding that immigration regulations are low priority laws that do not warrant action. Sometimes, the federal government even gently thwarts the efforts of smaller jurisdictions to give these laws a higher priority. Put another way, the crosswalk light says, “Don’t walk,” but there are few, if any, cars.

The consequence of all this perpetratorial and enforcement discretion is that there are very roughly estimated 11 million illegal immigrants living in the United States. What could be a more fitting a punch line to this droll tale than to have the welcome mat put out for 800,000 of these immigrants with an act of mass prosecutorial discretion?

But back to the question: why was the memo sent?

The memo was sent so that the president could announce the good news in front of cameras on the White House lawn. He was pandering for Hispanic votes. Secretary Napolitano could not have sent the memo without his approval. He gave his approval because he wants to keep his job and, for that to happen, there must be a strong Hispanic turnout. The memo will help him get that turnout.

If the release of the memo and its theatrical announcement were not a reelection stunt, the policy could have been quietly announced to the press long ago.

Oh, wait. It was.

According to the Los Angeles Times (August 18, 2011), “The Obama administration announced Thursday that undocumented students and other low-priority immigration offenders would not be targeted for deportation under enforcement programs. . . . The move means that those who are in deportation proceedings will have their cases reviewed and, if they are set aside as low-priority, could possibly be given work permits.” Here is the entire article:

http://latimesblogs.latimes.com/lanow/2011/08/dream-act-students-not-targeted-for-deportatiom.html

So, in effect, the change had already been quietly launched last August. The June 15 memo and White House announcement really were a political circus act.

There is a more serious problem with this memo. Prosecutorial discretion has traditionally been used by government attorneys to quietly decide if individual cases should be tried. If the circumstances of a specific undocumented immigrant’s case were such that the attorney in charge of the case judged deportation to be inappropriate, that attorney already had the discretion to defer removal. With this memo, there is not much discretion left. The criteria for deferring removal are enumerated. Discretion has also ceased to be discrete. Prosecutorial discretion has been transformed into a mass political weapon launched by the president from the White House lawn. Its purpose is not only to win millions of votes and the election in November, but also to circumvent the legislative process.

The memo was sent so that the president could announce the good news in front of cameras on the White House lawn. He was pandering for Hispanic votes.

Since the failure of the DREAM Act to pass the Senate, one of the president’s slogans has been, “We can’t wait for Congress to act.” With this memo, we now see what the slogan means. Executive impatience with the legislative and judicial branches of government has a long and colorful history. Historically, many elected executives have become so impatient with the separation of powers that they have arrogated legislative and judicial powers to themselves. While using prosecutorial discretion to alter, practically speaking, the status of 800 thousand people under existing law in order to win an election may not sink to the level of abolishing the legislature, it is an unfortunate step in that direction.

In her essay (see link above), Rebecca Krauss makes three points about this expansion of prosecutorial power. First, far from being embedded in the constitution, prosecutorial discretion does not make its first appearance in American case law until 1961. It has been cited with increasing frequency ever since. Second, prosecutorial discretion is not subject to normal judicial review, and is consequently outside the balancing framework of the separation of powers. Third, the rapid growth of prosecutorial discretion in both its breadth of scope and its frequency of use has been of increasing concern to legal scholars. Summing up these points, Krauss writes:

The Framers’ “constant aim [was] to divide and arrange the several offices [of government] in such a manner as that each may be a check on the other,” yet the other branches of government provide almost no check on prosecutorial powers. Rachel Barkow has remarked that “[o]ne need not be an expert in separation-of-powers theory to know that combining [modern prosecutorial] powers in a single actor can lead to gross abuses.”

The Napolitano memo was an abuse of prosecutorial discretion. While it may have been legal, it was an electioneering gimmick and a contrived expansion of prosecutorial discretion. Some day, the shoe may be on the other foot. What if a future president, exercising prosecutorial discretion, deems an array of federal gun control laws to be “low priority,” and directs the responsible authorities to defer all action in enforcing those laws and in bringing such cases to trial? What do you suppose the New York Times editorial page will have to say about prosecutorial discretion then? Or suppose a president deems the laws that defend private property to be “low priority” and has one of his secretaries fire off a short memo that suspends “effective immediately” all enforcement of private property rights? What do you suppose libertarian journals will have to say about prosecutorial discretion then?

Our democracy is an untidy system, with its checks, balances, two houses, three branches, and 50 states. It’s full of squabbles and compromises, contradictions and delays. It is that way by design.

Tyrannies are neat. All you have to do is send a memo.

rdquo;; locals just glide through. Under the signs that tell pet owners to use the plastic bag provided in the little dispenser one often finds a fresh reminder of American pragmatism that would make William James proud.




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Why the Moneyed Media Should Pray for Obama's Defeat

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Everybody knows that the Moneyed Media (also known as Mainstream Media) are in trouble. The press, in particular, is doing badly. Readership and advertising income are down. The Pew Research Center for Excellence in Journalism reports that it's so bad they are going to rename themselves the Observatory of Media Mediocrity. Nah, actually, they report that 2011 newsstand circulation was down 43% since 2008. Overall circulation was down "only" 6% thanks to cut-rate subscription rates. Magazine ad pages went down 46% in the same period. Newspaper advertising and circulation, on average, went down about 50%. In short, a bloodbath.

Is it because Americans watch more TV? Nope. According to Nielsen's annual "Television Audience" report, a growing percentage of households in the 18-to-49 core demographic that advertisers so covet do not even own a TV set (about 3% this year, vs. 1% last year). If they ever want to watch a show or a movie, these people play a DVD on their computer or, increasingly, stream video from Hulu, Netflix, or the like. They are exposed to a few ads, but that's nothing in comparison to the 35% of airtime devoted to commercials that cable viewers get to swallow. And of course, all the news and infotainment spewed by network TV never reach these unplugged eyeballs. Even among the declining TV owners, the big networks and their affiliates saw their prime-time audience decline 12% since 2005. Live ratings of programs have been decreasing constantly for the last three years.

All these factors are a good reason to stop calling Big Media "mainstream." They still have income, a payroll, and some notoriety, though, which is why they can be called "the Moneyed Media."

What are the causes of this decline? According to every media consultant I've read, it's because of this darn internet. The ponderous Paperosaurus Rex and Teeveelociraptors are in competition with the small, nimble Internet mammals, and the old beasts are losing.

The modern-liberal media outlets show a disconcerting uniformity and are rarely critical of the Obama administration, except when considering the most irrelevant subjects.

According to the consultants' narrative, professional journalists see their carefully researched stories ripped and copied to multiple sites. Cheap local TV with underpaid, half-starving crews gains an undeservedly equal footing with the major networks, thanks to their websites. And the world mourns the death of Real Investigative Journalism, since these blog writers that now pass for journalists don't leave their mom's basement to go track toxic iPad factories in China or children killers in Africa.

Yes, granted: these factors certainly count. But isn't there another big reason for America's disaffection with the Moneyed Media?

Let's look again at the Pew report mentioned above. In 2011, the only national newspaper that increased its circulation was the Wall Street Journal, a resolute opponent of state intervention in the economy. The WSJ may not be every libertarian's cup of tea, but we have to give them this: they are, with Investor's Business Daily, one of the few national conservative dailies left in the country.

Similarly, Fox News has a notable anti-liberal slant, and gathers almost four times as many watchers as the combined CNN, MSNBC, and HLN (5.7 million vs. 1.5). Are we seeing a pattern here?

Fox and the WSJ are rare exceptions. In their enormous majority, the Moneyed Media are consistently modern-liberal. In 2007, the aforementioned Pew Research Center surveyed journalists and found that about 80% of these professionals identify themselves as liberals or at least as Democrats. Only 8% identify themselves as conservative (which would, presumably, include libertarian or classical liberal). It is a truism that most newsrooms are staffed with liberals and that a conservative journalist has very few employment opportunities in the Moneyed Media.

Now, let's put ourselves a second in the Birkenstocks of Dave Democrat and Lisa Liberal. They want to read a paper or a magazine during their train commute, and after their tofu and granola dinner, they want to watch some political commentary TV. They won't watch Fox or buy the WSJ, of course. But once past this initial filter, hundreds of publications and shows compete for their attention, from the allegedly moderate ones that Dave Democrat might favor to the rabidly leftist ones that Lisa Liberal may prefer. Lisa is even suffering from an embarrassment of riches: recall that only 19% of Americans call themselves liberal, yet a disproportionate share of the media caters to them.

The modern-liberal media outlets show a disconcerting uniformity and are rarely critical of the Obama administration, except when considering the most irrelevant subjects, such as Michelle's wardrobe or the antics of Secret Service agents. A grayish, soothing conformism oozes from all these mouths that babble without actually saying anything important, spewing a verbiage that carefully avoids important problems. It's a nice, relaxing way for Dave and Lisa to reinforce their biases, but it's pretty boring.

At the end, Dave will browse the Democratic Underground on his iPad while Lisa will read Daily Kos. At least, the crazy comments sometimes elicit a smirk.

And here lies the problem of the Moneyed Media: it's all the same leftist drivel, a uniform river of meaningless information that never evokes crucial problems.

The Moneyed Media carefully minimize all the news items that could harm or ridicule Obama and his peons. And yet, what golden material the Obama administration offers! The shady, undocumented past — even his student records are sealed. The illegal alien relatives. The DOE subsidies and loans to dubious firms, with taxpayers' money ending up in the pockets of rich Democratic donors. The gun-running scandals, which NBC News didn't mention until mid-June. The runaway regulations. The EPA undoing congressional laws. The beyond-reason deficit. The laws and court decisions that are ignored — sorry, "not enforced" — except in the case of medical marijuana, against which the law is sternly invoked. The continuing unemployment four years after the financial crisis started. The lawsuits against states. The gleeful, careless waste of money by the federal administration. The secret meetings while golfing. Why, if Nixon had done any of this, popular culture would still reverberate from the outrage!

If only half of Obama's stupid gaffes had been uttered by Bush I or II, they would be sarcastically recounted daily on every channel, in every paper.

And the gaffes, the gaffes! Whenever Obama strays from his teleprompter, hilarity ensues. "I've now been in 57 states" during the campaign was a howler by itself. Then we had "I don't speak Austrian" — yeah, I hope you speak Australian at least. We heard a Navy member being called a "corpse-man." We saw the president, parading at a goofy show, disparage his own bowling, comparing it to the Special Olympics — how classy. Oh, but that's OK, because "We're the country that built the Intercontinental Railroad." Too bad the country is inhabited by working-class voters, because "they get bitter, they cling to guns or religion or antipathy to people who aren't like them." Then we basked in his wisdom: "Middle East is obviously an issue that has plagued the region for centuries." But don't think he is unpatriotic: to a veteran crowd, he said, "I see many of the fallen heroes in the audience here today as we celebrate Memorial Day." And there are many more. If only half of these stupid things had been uttered by Bush I or II, they would be sarcastically recounted daily on every channel, in every paper, and used as icebreaking jokes by every attendee of conferences.

And then there are unexplainable acts that occupy a class by themselves, Obamaisms that, by their weirdness, leave any Bushism far behind. Bowing to the Saudi king. Bowing to the Japanese emperor. Giving a speech during "God Save the Queen" at Buckingham Palace. You can treat these awkward moments as fodder for comedy or for indignation, but they certainly deserve better than the silence that greeted them in the Moneyed Media.

You see, our talking heads are being protective of this "mainstream African-American who is articulate and bright and clean and a nice-looking guy," in the immortal words of Joe Biden. (And speaking of comedy, Biden's bloopers would have launched a hundred standup routines in a less leftist America.) But this unflinching support makes the heads uninteresting drones who can no longer connect to an audience or a readership. The public is bound to notice mindless idolatry, at some point. And it has. It pays less and less attention to the babbling poseurs in the Moneyed Media. That's why business is down.

The remedy is obvious. Since all these fine intellects in the newsrooms are currently paralyzed by unconditional devotion, let's turn the love into rage. Let's replace blatant self-censorship with thundering, fact-exposing editorials. In a word, let's have a Republican president. Faced with the fall of the One, all the creative energy currently spent in covering up scandals and making media boring will suddenly get channeled into the pursuit of truth. If the present GOP favorite is elected, we won't see much difference (alas) in the level of statism, but we'll immediately be regaled with the slightest nuggets of scandal unearthed from a boring Mormon life. After four years of self-muzzling, our media will once again learn to analyze documents, discern truth, and expose coverups. The moneyed media will be back in business.

But of course, they will fight tooth and nail against it.




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Like the Father or the Dog Just Died

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Leading up to Father’s Day, I count my victories in small bites. This month, it was a button.

While filling in my son’s information on ePACT, an online emergency preparedness resource for families, I noticed that on the mother’s page there was a button for "same address as child." For the father, there was no such button. I wrote a letter. Now fathers have a button too. A button-sized victory for dads everywhere. Well, for dads in British Columbia anyway.

There’s still a part of me that feels ridiculous writing complaint letters about these sorts of things. Two years ago, I would never have noticed the discrepancy. Who cares about a button? But after two years as a single dad — two years of dealing with gender-role stereotypes at nearly every level — there I was, not only noticing but writing letters.

Unfortunately, not every institution is as responsive as the nice folks at ePACT. There is, to pick on the local 800-pound gorilla as an example, Revenue Canada. Its policy for the Canada child tax credit explicitly and unabashedly discriminates based on gender: “If there is a female parent who lives with the child, we usually consider her to be [the primary caregiver]. However, if the male parent is primarily responsible, he must attach to Form RC66, Canada Child Benefits Application, a signed note from the female parent that states he is primarily responsible for all of the children in the household.” And if the female parent will not provide a signed note, then the burden of proof on the father is somewhere between that of a criminal trial and the Spanish Inquisition.

In my case, a sole-custody court order was deemed insufficient to prove that I have “primary responsibility” for my son. I was asked to provide letters from his school, from his afterschool activities, and from community leaders such as doctors and lawyers. For a mom, it’s automatic. For a dad, it’s a two-year treasure hunt.

But resistance is futile, so I tried to comply. In doing so, I noticed that my son’s elementary school had changed his student information from “Father has sole custody” to “Mother has sole custody” despite the fact that the school had a copy of the court order. Like ePACT, the school is full of good people. The teachers, the principal, everything about it is great, and it was apologetic about the error — a simple accident, not conscious discrimination. But even as an accident, it says volumes about social expectations. People assume that the mother is the caregiver to such a strong extent that it changes what they see on the page.

It’s somehow become socially acceptable (again) throughout North America to devalue a human being purely because of an identity-characteristic such as gender.

Dealing with this over and over has made me hypersensitive, a bit like a feminist in the 1980s. When my son’s teacher corrected his grade-one essay about his family from “My family is my dad, my mom, and . . .” to “My family is my mom, my dad, and . . .” I asked the teacher why. She told me I was “ridiculous” and “offensive” to bother her with such an issue. She was both right and wrong. It is ridiculous to complain about a simple swapping of the word order — though not that dissimilar from the campaign 20 years ago to change “businessman” to “businessperson” — yet when you correct a child you’re telling him he’s wrong, that he made a mistake. Why is it a mistake to put “dad” first?

When did it become such a bad thing to be male? Why has “testosterone” become a dirty word? Thinking about these things, I started to do something men don’t often do: I talked, communicated. First during poker games with friends who happened also to be single fathers. Then through a website I started for single dads, initially as a fitness site for dads with little spare time. And finally through systematic research for a book that grew out of this frustration.

What I’ve seen coming out of all this talking is that it’s somehow become socially acceptable (again) throughout North America to devalue a human being purely because of an identity-characteristic such as gender. In the US, President Obama's method of counting civilian casualties excludes all military-age males, within a strike zone, who have not been explicitly proven innocent. Meaning that it’s official government policy that in certain situations the simple fact of being male makes you guilty until proven innocent.

Here in Canada, we have a Ministry for the Status of Women — a cabinet-level government ministry — that publishes reports of journalists who write articles discussing the gender discrepancy that’s leaving boys behind in schools, and reframes this as a “hate” issue against women. A report from 2003 titled School Success by Gender: A Catalyst for the Masculinist Discourse, for example, argued for greater government monitoring of websites that seek to help boys in school or give fathers support in custody disputes. "Some masculinist groups use the Internet as a vehicle for hate-mongering against feminists. This accessible and virtually universal medium gives them the opportunity to say and post almost anything. It is no accident that this medium is being used by those on the extreme right, pedophiles and pornographers.”

This is not a fringe group writing. It’s a report for a government ministry associating men with pedophiles and pornographers simply because they are seeking each other’s support — something that women do far more naturally than men for reasons of culture and history. If men are forming support groups, if they’re seeking a greater role in caring for their sons and daughters, if fathers are engaged with their sons’ education and well being, then those are all good things. They should be encouraged. It means we’re slowly moving to a post-gender society. Ironically, however, all the institutions we’ve put in place to help enable that transition are precisely the ones that are now causing the greatest obstacles.

The philosopher Ivan Illich once pointed out that every institution gradually becomes counterproductive to its original intentions: the medical industry causes illness, educational institutions induce ignorance, the judicial system perpetuates injustice, and national defense makes a nation less secure. Similarly, the fight for gender equality has now made it almost politically incorrect to acknowledge equality among parents.

So let me put my cards on the table before I get added to the ministry’s list of “certain writers acting as the customary spokespersons for the masculinist discourse.” I’m not a misogynist. I’m not anti-feminist. I like feminists, and I have read more feminist literature than any man I know. I don’t agree with all of it. I tend to prefer French deconstructive feminists, such as Luce Irigaray, and literary ones such as Gayatri Spivak, over the more combative ones, such as Andrea Dworkin and Catherine McKinnon,who once wrote that "to be rapable, a position that is social not biological, defines what a woman is." Which inevitably implies that to be a rapist defines what a man is.But I’ve read them all, I appreciate them all, and I think it’s time for men to start learning from them all.

That's because it is time for a masculinist discourse to complement feminist discourse, especially in family matters where the unofficial policy often seems to be mirroring the official “guilty until proven innocent” approach to defining war casualties based on gender. We don’t need men shouting words like “feminazi,” which is the way masculinists are caricatured — but it's worth pointing out that to be a good feminist you also have to be a masculinist (and vice versa). I’m not suggesting that everyone needs to become as hypersensitive as I am now to missing buttons for the dad’s address or the constant bombardment of “man as idiot” commercials on radio and TV. But we do need to start some sort of conversation about gender that is rooted in today rather than in history. I have a son, and to me that trumps any notion of historical wrongs. I don’t want him to grow up voiceless, any more than a feminist 30 years ago wanted her daughter to grow up second class.

And if not for your sons who will one day become fathers, then do it for the girls. Because if you assume men cannot raise healthy, well-adjusted, and confident children just as well as women can, then you’re also implicitly re-opening the question of whether a female firefighter can perform certain rescues as proficiently as a stronger male counterpart.

In the song "Everybody Knows," Leonard Cohen sings the line, "You've got that broken feeling, like your father or your dog just died." Within family matters in North America it does sometimes seem that this is the status that fathers are assigned. So on this Father’s Day, let’s give the dads a promotion. Fathers are wonderful. They’re just as cool as mothers.




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Tort Reform vs. “Loser Pays”

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The concept of reforming the American legal system to adopt the “loser pays” system used in most foreign countries, by which the loser pays the winner’s attorney’s fees, is popular among libertarians. “Loser pays” is proposed as a means of deterring frivolous litigation and solving the problem of excessive lawsuits. When Texas recently adopted the system, it was championed as a victory for small business. I have seen John Stossel advocate it, and in Liberty I have seen Gary Jason endorse it in a comment on one of my essays. “Loser pays” is a policy that might seem reasonable to a non-lawyer layperson. To a lawyer like me, unfortunately, it looks like a policy with unintended and unfavorable consequences — and a policy that has little chance of accomplishing its purpose.

The idea that it will deter frivolous litigation hinges on the idea that the frivolous litigant will lose. Yet if frivolous litigants actually stand a good chance of winning, then “loser pays” deters nothing except poor people, who would find it riskier to access the justice system. In torts lawsuits, the laws are such that bad plaintiffs with bad suits often have a good chance of winning. For instance, Liebeck v.McDonald’s was a lawsuit in which a woman sued McDonald’s because she spilled hot coffee and burned herself, for which McDonald’s was held liable at trial for millions of dollars (mostly punitive damages) and ultimately settled the appeal. This is the quintessential bad lawsuit, and it was held up as a poster child for tort reform. Yet the plaintiff won at trial, on the argument that the coffee was excessively hot and the cup’s warning label was too small.

This lawsuit could have been stopped by reforming the law, that is, by creating a bar to punitive damages whenever there is a warning label. Because the case settled, it would have been unaffected by “loser pays.” Under “loser pays” the risk of having to pay McDonald’s’ legal defense fees if the plaintiff lost might have factored into her calculation of whether or not to sue. But she won the case at trial, and if cases like this happen, then who really expects plaintiffs with bad cases to be excessively afraid of losing? As I will explain below, you don't win a lawsuit because of the rationality of your claim but because of the emotions of the jury. So if a tort plaintiff can reach a jury, the jury trial system will be favorable to stupid lawsuits. The best solution is to reform the tort laws so that plaintiffs with ridiculous cases have no legal way to reach a jury.

You don't win a lawsuit because of the rationality of your claim but because of the emotions of the jury.

Meanwhile, “loser pays” is likely to scare poor people with valid claims away from court, by inspiring the fear not only of losing but also of paying the huge legal fees of a wealthier opponent’s high-powered law firm. The landmark civil rights litigation that helped to end Southern segregation might never have been filed in a “loser pays” system.

As for frivolous suits — There are already legal ethics rules and civil procedural rules that forbid and punish lawyers for bringing “frivolous”, “vexatious”, “abusive” suits, and there are provisions that enable judges quickly to dismiss baseless or groundless claims. “Loser pays” will add little to the tools that are already there to deal with the frivolous. In fact, the only way to prevent bad litigation is to eliminate the bad laws that form the legal basis of bad lawsuits.

Let me clear: I am an advocate of tort reform, just not of “loser pays” in particular. There are many tort reform policies to choose from that would reduce unnecessary or harmful litigation without toxic side effects. We could, for instance:

1. Reduce the percentage of the tort plaintiff’s contingent fees that are considered “reasonable.” Legal ethics rules ban lawyers from charging “unreasonable” fees, but a whopping 30% is considered reasonable, and 30% is the typical rate. I think a cap of 5% as “reasonable” would cut the amount of frivolous litigation in half. In this way, torts plaintiff lawyers would enter their practice with some other goal than becoming multimillionaires by exploiting the tragedies of their poor clients.

2. Eliminate class actions. The whole concept of class actions has always bothered me. To say that someone else has the right to litigate my claim without my consent or involvement, just because our claims are identical, is absurd, even if there are requirements of judicial consent and competent representation and the ability to opt out. Judicial efficiency, which is the valid motive of class actions, is not an excuse to let someone else litigate my case. Because class actions have millions of plaintiffs but only one law firm, the lawyers often make millions while the plaintiffs each get a few cents.

Now, there is already a rule in legal ethics codes that bans lawyers from representing multiple clients who have conflicts of interest with one another — something I believe most class action clients have, because each client’s claim is slightly different and might benefit from the case’s being tried differently. The conflict of interest rules are considered to be among the most important, yet class actions have a loophole. So instead of effecting a statutory ban, I propose simply to close the loophole and force class action lawyers to vet every member of the class for conflicts of interest. Any conflict would remove that class member. This would sharply reduce the volume of class action litigation.

3. Change the products liability tort standard from strict liability to negligence. Products liability cases are typically tried under a theory of “strict liability,” which means that fault (i.e. blame) need not be proven. Strict liability is an affront to logic, an abomination. While some see the purpose of tort law as deterrence, I see it as compensatory justice, which means that damages are supposed to restore a victim to the condition he or she would be in, had the defendant not made a bad decision. I view tort law and contract law as twin aspects of free will and personal responsibility, as recognized by law: contract law means that your choices will bind and control you, whereas tort law means that someone else’s choices will not be allowed to ruin you. If defendants have not made bad choices, there is no reason to make them pay.

If a tort plaintiff can reach a jury, the jury trial system will be favorable to stupid lawsuits.

Although a layperson might think of negligence as something that happened to cause an unintended accident, the better understanding is that it consists of the choice to be careless and risk-prone. The strict liability standard has been justified on the grounds that product defects are technologically complicated and it would be too difficult to prove negligence, but this is no excuse for bad law. We should force plaintiffs to prove negligence. Then everyone will benefit from cheaper prices, because manufacturers’ litigation costs will decrease.

4. Reform the standard of negligence for medical malpractice, so as to create a safe harbor. Medical fees skyrocket when doctors are forced to pay huge medical malpractice insurance premiums, and the practice of medicine is compromised when doctors based their decisions on fear of being sued, not the health needs of their patients. My safe harbor proposal is that if a medical practice or hospital had a written policy of procedures designed to prevent the type of malpractice that is at issue in a case, and the policy was implemented and regularly enforced and internally audited for compliance, then negligence cannot be proven. Similarly, if a surgeon or delivery obstetrician had a checklist of risks to prevent, a list that multiple doctors double-checked at the time of the surgery or childbirth, and the negligence at issue was on the list, then the doctor would have entered a safe harbor.

This is simply common sense: if the doctors were taking every possible systematic action to limit risk, then they were not negligent. Such precautionary policies would protect patients from accidents far more effectively than the tort lawsuits that drive up medical costs. Such a negligence test would cut frivolous lawsuits. State legislatures can codify my safe harbor rule, but clever judges could tacitly incorporate it into preexisting common law med mal negligence standards.

5. Put a statutory dollar limit cap on damages. My understanding is that a civil trial is really just a popularity contest in which the jury votes for the lawyer it liked the most. Instead of faithfully interpreting the judge’s instructions to the jury (which are often so technical that only a lawyer could properly apply them), the jury awards lots of money to the party it likes and punishes whichever parties it disliked, by making them pay huge damages. Usually poor old helpless plaintiff Mr. P, the janitor with a wife and five children who is suing because he broke his leg, is more sympathetic than the rich big business defendant Corporation D, especially when Mr. P’s lawyer slyly insinuates that D cut corners on safety in order to make a profit. This is the open secret, the 800-pound gorilla in the room, when people talk about tort lawsuits and tort reform. This is also one reason why “loser pays” is ridiculous: from a practical, pragmatic, no-nonsense point of view there is no reason to believe that the loser is the one who deserved to lose.

The right to a jury trial in cases that are “at law” (i.e. where the plaintiff seeks money) is constitutionally “inviolate,” and I leave for another essay the question of whether jury trials should be comprehensively reformed. However, at a bare minimum justice demands that we solve the problem of headstrong juries by removing jurors' discretion to award damages in excess of what the intent of the law indicates, simply because they happen to feel sympathy for one side or another. Activist judges who do not faithfully apply the law are a problem, but so too are activist juries. A legislative statutory solution to place reasonable, honest dollar value caps on each of the different types of damages, or to lower the caps that already exist, is one feasible fix.

In conclusion: “loser pays” is far inferior to the American Rule, in which each party pays his own attorney’s fees regardless of who wins or loses the trial;but there are tort reform solutions available if voters elect legislators and judges who will use them.




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In the Land of Blind Men

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I, like you, have become accustomed to the hypocrisies of collectivists established in politics and the popular culture. Examples are legion, but here are two that have stuck with me:

  • Sen. John Kerry, who once called Americans who avoid high taxes “traitors,” showed all the integrity you’d expect from a gigolo by docking his rich wife’s multi-million-dollar yacht in Rhode Island instead of his native Massachusetts to avoid paying some $500,000 in sales tax and other fees in the Bay State.
  • More recently, the past-his-expiration-date pop singer Bruce Springsteen grasped desperately at street credibility by claiming spiritual kinship with the Occupy Wall Street movement in between jaunts across the pond to watch his daughter jump horses in front of the Queen of England.

There’s a hardened cynicism to these charlatans that I can almost respect. They’re like the Soviet Union’s porcine apparatchiks, mumbling allegiance to the proletariat during the week before speeding off to their dachas for weekends of vodka, caviar, and ritzy mistresses. Decadent men, stewing in the karmic juices of false words and incoherent lives.

But I’m troubled by the paste-eating stupidity of younger collectivists. They’re too dumb to be cynical, too oblivious to be decadent. And they aren’t worthy adversaries.

Consider one Will Doig, a featured essayist for the online magazine Salon.com. The callow Mr. Doig’s beat is “Dream City,” which the mandarins of “progressive” politics at Salon.com describe as follows:

How should we build the cities of our dreams? How do we create the urban spaces which reflect our values and the ways we want to live? In cities around the world, the future is being created now — and Will Doig will chronicle the most exciting and innovative ideas.

Presumptuous use of pronouns. In the immortal words of Tonto: “What do you mean ‘we,’ paleface?” Or “our”? And these points keep coming up.

A recent Doig essay was titled and blurbed “When the 1 percent say no / Cities need public transit and affordable housing. But outdated laws make it easy for the wealthy to block progress.” I’m not going to fisk the entire thing — if you’re so inclined, you can read it yourself. But I do want to point out a few, instructive examples of its stupidity.

Both title and subtitle smack of search-engine optimization (SEO) — the Internet marketing discipline of writing in a way that increases a web page’s likely ranking on Google, Yahoo, etc. In a relatively short space come several phrases cherished by collectivists: “1%,” “public transit,” “affordable housing,” “outdated laws,” and, of course, “the wealthy.” These phrases have taken on totemic qualities — and have lost any real meaning to a broad audience. As George Orwell points out in “Politics and the English Language,” such clichés elicit emotional response in a few hearts but cease to mean any actual thing.

(A note: Doig probably did not write the title/subtitle himself. At most magazines, staff editors do that. That’s especially true when the titles are chock-full of SEO buzzwords.)

Mr. Dream City begins his essay by excoriating the burghers of Beverly Hills for using California’s environmental-impact laws to prevent a segment of subway from being burrowed under their homes.

Right off, Doig makes several lazy mistakes:

  • His characterization of Beverly Hills as an enclave of the wealthiest few is wrong. Most of the city’s residents are professionals, mid- to upper-level corporate managers, and small-business owners desperate enough for status to rent or buy homes in an overpriced — even by southern California standards — ZIP code. The 1% live closer to the Pacific Ocean.
  • Opposition to the subway in Los Angeles is not limited to the strivers in Beverly Hills. Property owners (both residential and commercial) in just about every affected neighborhood have objected to the nuisance of lengthy construction since the decades-old project’s earliest days. The focus on the latest stage of the fight shows considerable selection bias.
  • Doig shows a remarkable obliviousness to irony. The strivers of Beverly Hills are using the same tactics that environmentalist opponents of private-sector real estate development have been using in California for decades. As a man of the Left, Doig should recognize Alinsky tactics: the attorneys and VPs are making the state follow the same Kafkaesque rules that they have to follow.

This blindness to irony abounds in Doig’s essay. Some of his complaints sound more like Donald Trump or the owner of your local strip-mall than Le Corbusier:

The threat of lawsuits and endless public hearings have delayed the project. . . . public micromanagement has become such a problem that several cities are now trying to rein in the Not-In-My-Backyard crowd. “The current process does not work for anyone,” one urban design expert told the San Francisco Chronicle. “We want the Planning Commission to focus on big planning issues, not micro-design issues.”

Public micromanagement? Dude, who’s supposed to oversee public projects? Some urban design expert’s “we”? I, for one, don’t want Planning Commissions focusing on anything. In most situations, I’d like to see them abolished. Put all land in private hands and let the largest property-owners in an area decide among themselves whether they want to spend the millions — or billions — required to build a mass transit system.

Of course, Doig’s “we” is the same as Pauline Kael’s “anyone.” More a reflection of the limits of his worldview than a first-person, plural.

Dream City also fails to grok, or even acknowledge, the role of personal property rights in the social contract. You won’t find the word “property” anywhere in the essay. And, as Doig doesn’t understand personal property, he doesn’t understand takings — something that the founders of this country understood so well that they limited the government’s property-taking power in several ways.

Here’s as close as he comes to stumbling across the concept of takings:

. . . in 1970, the California Environmental Quality Act gave anyone in that state the power to stymie development by questioning its eco-friendliness, a right that’s routinely abused. These rules, designed to check the power of city officials, now perversely consolidate immense power in the hands of a few outspoken “concerned citizens.” . . . Worst of all, these rules have created a new norm in which individual residents just assume that their personal opinions should carry great weight in routine planning decisions.

A “new norm” where citizens assume their opinions carry weight? The stupidity of these sentences is so thick the passage reads like Swift satire. Sadly, it’s not. But it is an almost complete inversion of the reality of the last 40 years, when bogus public interest groups have stymied the plans of individuals and private entities to develop their own property.

To be clear, precious Will: the “personal opinions” of “individual residents” should carry great weight, especially when those residents own the land under which “we” would like to dig a massive subway tunnel. They are an important check against “our” taking or doing things that diminish the value of personal property.

The column ends up butchering the writings of several left-wing economists who study risk theory. The goal seems to be to set “anti-development activism” in the context of bad economic policy. But it fails because Doig doesn’t realize that most “development” is carried out not by some collectivist “we” but by individual private-sector entities. Even in Dream Cities.

I do like one of his conclusions, though: “if a proposed development’s impact is unclear, it’s crucial to take into account not just its unforeseen negative effects, but its unforeseen positive ones, too.” I’ll break out that quote the next time enviro-hipster carpetbaggers come to my county to protest the development of an empty lot into a golf course.

Salon.com isn’t a serious political magazine. Its business model seems to be to launch the TV careers of left-wing talking heads whose rising media profiles will result in clicks and advertising revenue. Bon chance. If its talking heads are as oblivious as Will Doig, we won’t have Salon.com to kick around for very much longer.




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Ron Paul and the Future

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Four years ago, when Rep. Ron Paul suspended his campaign for the Republican Party’s nomination for president, he would not endorse the party’s nominee, was not invited to the party’s convention, and held a counter-convention of his own. By all appearances, he’s not going to do that this year.

At Antiwar.com, Justin Raimondo urged Paul to run as an independent, “because a third party candidacy will leave a legacy, a lasting monument to your campaign and the movement it created.” I can’t see a lasting monument in it, or the sense. I note that Paul’s forces are continuing to push in the caucus states for convention delegates, which confirms that Paul expects to attend the convention as a loyal Republican.

In 2008, I wrote in Liberty that Paul ought to endorse the party’s nominee, John McCain. Paul wouldn’t have to campaign for McCain, I said, and he could remind people how he was different from McCain, but to preserve his influence in the party he’d have to endorse McCain as preferable to Obama. Well, he didn’t. Paul endorsed Constitution Party nominee Chuck Baldwin, a pastor and radio talk show host whom few Americans had heard of, and who received 0.15% of the general election vote.

Paul’s forces are continuing to push in the caucus states for convention delegates, which confirms that Paul expects to attend the convention as a loyal Republican.

This year Paul turns 77. He is not running to keep his seat in Congress. His career as an elected politician is at an end. But since January 2011 he has had a son, Rand Paul, in the Senate. There is talk of the junior senator from Kentucky being Romney’s vice-presidential choice and more talk of him running for president in four years, or eight. Either way, for Ron Paul, having a 49-year-old son in the Senate changes the calculus about party loyalty and his movement.

Again, I say: endorse the nominee. It doesn’t mean you agree with everything the nominee says. It means that in a field of two, you prefer your team’s candidate to the other one’s. It means there is a Republican label on you and your supporters. And that is important, especially regarding them.

Is an endorsement a betrayal?

What was the point of the Paul campaign? To put Ron Paul in the White House? That was never possible. In public, Paul had to pretend that it was, because those are the American rules, and his supporters have been pretending it even harder. But it was a fairy tale. Ron Paul’s purpose has been to advance the cause of liberty, sound money, and a non-imperial foreign policy. He could do this even if he fought and lost, depending on how he did it. He was introducing new ideas (or old ones) into political discourse, creating a new faction that aimed to redirect the mainstream of one of the two great national parties.

That is not a defeatist notion. It may be a task with a lasting monument, though it is too early to say.

A political leader changes the thought of a party by persuading people to embrace new ideas. To do that, he needs the media’s attention, and in politics, equal attention is not given an outsider. It has to be earned by such things as polls, the size and behavior of crowds, money raised and, ultimately, by electoral results.

Endorse the nominee. It doesn’t mean you agree with everything the nominee says. It means that in a field of two, you prefer your team’s candidate to the other one’s.

Paul achieved none of these things in 1988 as the nominee of the Libertarian Party. He was nobody, and he went home with 0.47% of the vote. But in 2008, in the Republican Party’s primary campaigns, he did unexpectedly well, measured by straw polls, crowd behavior, and campaign donations. Unfortunately, the media pegged his support as narrow-but-deep (they were right) and mostly ignored him. He took 5.56% of the Republican vote — one vote in 20.

This year they still slighted him, though less than before. And he received 10.86% — one vote in almost nine. His support was still narrow-but-deep, but wider in almost every state. He was not the top votegetter in any of them, but he came close in Maine and garnered more than 20% of Republican support in six caucus states: Maine, 36%, North Dakota, 28%, Minnesota, 27%, Washington, 25%, Alaska, 24%, and Iowa, 21% — and in three primary states: Vermont, 25%, Rhode Island, 24% and New Hampshire, 23% (not counting Virginia, 40%, where his only opponent was Romney).

Paul’s support is not typical for Republican politicians. He is from south Texas, but seems to do best in states on the Canadian border. Most of his best states are Democrat “blue” rather than Republican “red.” He was the oldest candidate in the race, but exit polls showed in state after state that he had the youngest supporters. In New Hampshire, a Fox News exit poll showed Paul winning 46% of Republican voters 18 to 29 years of age.

Enthusiasm among the young is a special political asset, but with a liability: the zeal of believers can go over the top. Some believe that Ron Paul is the only man who can save America, and that anyone who opposes him is evil. They don’t see themselves as joining a party; they aim to take it over. In the unfamiliar turf of parliamentary procedure, they are quick to cry foul and sometimes are right. At the moment, their strategy in the caucus states is to outstay the Romney supporters and snatch the national delegates away from them.

And that makes for nastiness.

This is from a Politico story by James Hohmann, May 14:

Those close to [Ron Paul] say he’s become worried about a series of chaotic state GOP conventions in recent weeks that threaten to undermine the long-term viability of the movement he’s spent decades building. In the past few days alone, several incidents cast the campaign in an unfavorable light: Mitt Romney’s son Josh was booed off the stage by Paul backers in Arizona on Saturday, and Romney surrogates Tim Pawlenty and Gov. Mary Fallin received similarly rude treatment in Oklahoma.

Booing is the public stuff. I know a political operative who crossed the Paul forces and received death threats — so many, he said, that he turned off his phone for two weeks.

Enthusiasm can become something else. (For more examples, google “Ron Paul supporters are”.)

Given the strength — and sometimes the immaturity — of his supporters, what is Paul to do? Endorse Romney or not, he will soon be a non-candidate and a non-congressman.

Enthusiasm among the young is a special political asset, but with a liability: the zeal of believers can go over the top.

What then? One poll asked Paul supporters whom they would vote for in November. The answer: Obama, 35%; Romney, 31%; Gary Johnson, 16%. The Paul movement splinters.

How they vote in November might change if Paul made an endorsement; and anyway, how they think is the more important thing in the long run. If a large number of the young ones went into one political party and stayed there, they might change that party — and that could be the lasting monument.

All this is something for Ron Paul to think about as he ponders whether to endorse, what to do with his 100-plus delegates, and what to say if the party gives him a chance to address the national convention.




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Green Grief

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Periodically I like to review the news from the gay world of Gaia worship — that is, to pass along the latest stories on all matters green. And there is a lot to report.

Start with some interesting news from the animal kingdom. Despite sad sagas of emperor penguins disappearing as Antarctica allegedly melts (allegedly because of our greedy species’ greenhouse gas emissions), a recent story reports that more studies — ones that use satellite imagery to count the nattily attired birds — reveal that the penguins are doing just fine. By former estimates, there are about 270,000 to 350,000 of the waddling beasts. Now it appears that in reality, there are 595,000 of them! The aerial survey discovered a whole flock of new colonies. If the ice is melting, it doesn’t seem to be harming these birds.

Moving quickly to the other pole of the Earth: polar bears are also in great demographic shape. The bears have been centerpieces in some of the most lurid global warming tales: remember the infamous shot of a miserable looking polar bear clinging to a tiny ice floe. Because of such tales, the US put polar bears on the endangered species list. This, in spite of the fact that the beasts are far from cuddly — they are one of the few predators with a taste for human flesh, especially the human liver (with or without Fava beans).

But another recent story reports that in the crucial Nunavut region of Canada, the polar bear population — which in 2004 had been estimated at around 935 (22% lower than estimates made 20 years earlier), and was projected to fall even further, to 610 animals by 2011 — has now been more accurately counted. The Canadian government did aerial surveys and found 1,013 cute but vicious carnivores in that region alone. The population, far from dwindling, seems to be thriving, despite global warming and illegal hunting. (polar bear pelts fetch up to $15,000 in Russia and China, and about 450 bears are illegally killed each year). Despite the heat and the hunters, the polar bear population now appears to have reached the highest peak ever recorded — something like 25,000 across the Canadian Arctic.

Reports such as these are continually coming in. They may be the reason that no less a green guru than scientist James Lovelock, the fellow who came up with the whole “Gaia Concept,” now admits that his earlier warnings about a rapidly heating, life-killing earth were alarmist.

Turning now to green energy, here too a slew of politically incorrect reports continues to gut the Great Green Narrative. Start with the fascinating news that a recent survey of hybrid car owners (conducted by R.L. Polk and associates) indicates that hybrid owners of any model are unlikely to buy another hybrid — either the same model or any other. These are not good tidings for the future growth of the hybrid car market, as it shows that actual experience with the product tends to make consumers dislike it. Hardly a good omen.

Despite the heat and the hunters, the polar bear population now appears to have reached the highest peak ever recorded.

The Polk data show that only 35% of hybrid owners of any brand bought another hybrid of any sort. At the high end was the Prius, but only 41% of Prius owners bought another hybrid (again, of any sort). At the other end of the scale is the Honda hybrid: only a pathetic 20% of Honda owners went on to buy another hybrid of any sort. And the aggregate numbers bear this poll out. At their peak in 2008 (when domestic gas prices hit their highest level ever), hybrid sales were only a miserable 2.9% of the American car market. Last year they dropped to 2.4%.

The problem is several-fold. First, regular internal combustion engines keep getting better and better gas mileage. The 2013 Nissan Altima is rated at 38 mpg, and the Ford Fusion is rated at 37 mpg — both quite close to what hybrids deliver. Second, hybrids are more expensive than similar internal combustion engine models. Indeed, it can take seven to ten years of ownership merely to recover the extra cost, and many Americans like to change cars more often than that.

And, by the bye, hybrids actually seem to get lower gas mileage than the EPA estimates. A recent piece reports that the EPA overestimated hybrid gas efficiency by 20% before 2008 and is still overestimating it now. This report also notes that as much as 40% of any real gas savings by hybrids is nullified by the extra driving done by the owners. The report reminds us that hybrids have batteries with lots of acid, lead, and other toxic crap, all of which requires enormous amounts of energy to mine and manufacture, and which subsequently fouls the environment when the batteries wear out and must be disposed of.

Finally — and this the article doesn’t note — most Americans view hybrids as cramped, clunky, slow, and butt-ugly.

Checking now on green power, we discover the great news that First Solar, maker of solar equipment, is cutting a third of its work force — over 2,000 jobs — closing a factory in Germany, halting another in Vietnam, and postponing the opening of yet another in Arizona. The company has lost 83% of its market capitalization over the past year, while losing nearly $40 million in the same period. The problem in this case is simple and clear. It is cheaper for power companies to buy solar panels from China. More importantly, countries around the world are cutting subsidies for solar power — and without government aid, solar is generally uncompetitive.

We confiscate money from taxpayers to build inefficient, wasteful plants that kill tortoises and birds — and we do it all in the name of ecology!

Grimly ironic is the report that BrightSource Energy’s Ivanpah solar power project, located in the Mojave Desert, is killing desert tortoises — an endangered species! The Ivanpah project is huge: it will use 3,500 acres of public land — six square miles! — and cost $2 billion to produce only 400 megawatts of electricity at max (i.e., when the sun is shining overhead and no clouds are present). BrightSource says it has paid $56 million to help protect the environment, but tortoises are still dying. They die because even after BrightSource moved them out of the way of the construction, they still got crushed under truck tires or became vulnerable to predators. One research ecologist — Jeff Lovich, who has studied the impact of “renewable” energy projects on desert tortoises — notes, “What I determined is science is playing catch-up to energy concerns. . . . This is all a grand experiment and we need more research — both on the short-term effects and the long-term effects that projects like these are going to have on the wildlife and the ecosystem.” But he concludes ruefully, “For the desert tortoise, it really is death by a thousand cuts.”

So, surprise, solar power farms destroy flora and fauna. No surprise here, really — remember, wind farms also destroy massive amounts of wildlife — specifically, birds. American wind farms shred about 400,000 birds a year. The problem again is physics. Solar and wind power are just power derived directly or indirectly from the sun, and they collect only feeble amounts of solar radiation. Thus either form of energy requires a huge footprint — you need many acres of solar collectors or wind turbines to get appreciable amounts of power, compared to a small nuclear or fossil fuel powered plant. And bigness is bad for small animals.

About wind power there is a spate of bad news. Start with the report out of Nevada on the results of one of the state’s programs to get people to install wind turbines (especially outside of cities). The report points out that one of these programs, started five years ago, is already proving a costly, miserable failure.

Specifically, Rich Hamilton of the Clean Energy Center testified to the state Public Utilities Commission about the program’s problems. For one thing, the PUC gives rebates to customers who put up turbines, whether or not they actually generate appreciable energy. Under the 2007 law, the state has paid $46 million for 150 wind turbines. But in Reno, for example, the $416,000 it spent on wind turbines resulted in its receiving $150,000 in rebates but a laughable $2,800 savings in electricity costs. The bureaucrat who runs Reno’s renewable energy program, one Jason Geddes, had an amazing suggestion: accurately research wind patterns before building turbines. Obviously, this hasn't been done up till now.

The breathtaking brilliance of all this! We confiscate money from taxpayers to build inefficient, wasteful plants that kill tortoises and birds — and we do it all in the name of ecology!

Then there is the hilarious news that wind power may be harming the environment in a hitherto unsuspected way. We’ve known all along that wind turbines massacre birds. But it turns out that wind power actually increases ground temperature around the turbines. This is the result of a study published by Liming Zhou in the journal Nature Climate Change. Apparently the turbine blades pull down warmer air, displacing the cooler air on the ground.

The reason this is bad news is that heat can hurt crops and cattle, or the native ecosystem. This is especially troublesome for Texas (where the study was done), because it is already suffering from a drought and uses night irrigation, which may be affected by the action of the turbines.

Add to all that the Reuters report about Obama’s green energy jobs program. Despite his promise that his green energy push would create “millions” of jobs, it has been a costly failure. Since 2009, for example, during a period when the oil and gas industry created 75,000 high-paying blue-collar jobs — even in the face of a regulatory blitzkrieg by the Obama administration — the wind industry lost 10,000 jobs. Obama's $500 million green energy “job training” program was guaranteed to produce 80,000 jobs by 2013. So far, it has trained a miserable 20,000, to what lame standards we can only guess. Even the administration’s own Labor Department’s inspector general recommended last year that the department should end the boondoggle and give the unspent money back to the treasury.

The report gives figures that show a paradigm deflating. In 2008, Obama boastfully promised that if the taxpayers spent $150 billion on green energy, it would create five million jobs. A year later, VP Biden more modestly promised that the $90 billion in tax dollars then put aside for green energy jobs would buy 722,000 of them. A year after that (November 2010), the administration could show only 225,000 jobs created, and even that estimate appears to have been overly optimistic.

The green statist worldview faces a huge and swelling number of anomalies. That wouldn’t normally be so bad — every worldview faces some anomalies, after all. But the enviro worldview is the one being shoved down our throats. That is, it is the one that is being used by the state and federal governments to limit our liberties and prosperity, and to do so in a massive way.




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Elizabeth Warren and the Poison of Identity Politics

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Seven months ago, I considered Harvard Law School Prof. Elizabeth Warren from a libertarian perspective. The establishment media darling and Democratic candidate for the US Senate from Massachusetts didn’t offer much to like.

Since then, she’s become considerably more entertaining. And thought-provoking, though not in a way she would have intended.

During the past few weeks, Warren has been caught in a moronic controversy that has put her campaign on the defensive, led supporters to question her political savvy, and — perhaps most damaging — confirmed the impression that she’s a charlatan. The gist of it: for about 15 years, from the late 1980s to the early 2000s, Warren listed herself in various academic professional directories as a member of a racial minority. Specifically, an American Indian.

Like a raw amateur, Warren denied ever having claimed minority status in a professional setting.

Reporters from the Boston Herald asked Warren about her claims of minority status: why she’d made them, then stopped making them, and whether she’d “played the race card” when applying for teaching positions at posh law schools such as Penn and Harvard.

Like a raw amateur, Warren denied ever having claimed minority status in a professional setting.

Then, faced with hard evidence from several directories (including the Association of American Law Schools’ annual directory of minority law teachers), she “clarified” her answer. What she’d meant to say was that she’d never made the claims while applying for teaching jobs.

But there were more rakes in the yard . . . and Warren promptly stepped on them. When reporters asked her to explain in detail her claim of Native American ancestry, she babbled:

My Aunt Bee . . . remarked that he — that her father, my papaw — had high cheekbones, like all of the Indians do! Because that’s how she saw it. And she said, “And your mother got those same great cheekbones and I didn’t.” She thought this was the bad deal she had gotten in life. . . . I was listed [in the minority directories] because I thought I might be invited to meetings where I might meet more people who had grown up like I had grown up. And it turned out that’s — there really wasn’t any of that.

Note the passive voice of “I was listed.” By all accounts, she did the listing. Her nervous rhetoric betrayed her effort to shirk responsibility for the mendacious act of including herself among minority professors. And some pundits focused on the lazy, verging on racist, generalizations behind the dizzy professor’s words: “high cheekbones” are something “all of the Indians” have.

Not exactly Prof. Kingsfield.

Warren’s campaign rushed into damage control mode. Smoother spokespeople explained that, on a marriage license application in 1894, Warren’s great-uncle claimed that his grandmother — a woman named Neoma O.C. Sarah Smith — had been a Cherokee. The campaign then produced a Utah-based genealogist who confirmed that Neoma, Warren’s great-great-great-grandmother, was at least half Cherokee. (According to some, the initials “O.C.” meant native Cherokee; according to others, contemporary documents described Neoma as “white” which, by the practice of the time, could mean she was half Indian.)

If Neoma was a full-blooded Cherokee, Warren is 1/32; if she was half Cherokee, the professor is 1/64. A thin reed, but the campaign was determined to hang Warren’s robes on it. Staffers pointed out that Bill John Baker, the current chief of the Cherokee nation, has a similarly slight blood connection to the tribe.

Really, this is madness.

When I was in college, we read Mark Twain’s satiric short novel Pudd’nhead Wilson, which rightly ridicules racial distinctions based on 1/8, 1/32, or 1/64 ancestry. The story is often dismissed as an angry product of Twain’s bitter late period — and it is angry. But it’s also a strong perspective on the games that identity-politics practitioners such as Warren play. And have been playing for more than 100 years.

Jonathan Crawford, Warren’s great-great-great-grandfather — served in a Tennessee militia unit that rounded up Cherokees and herded them (literally, on foot) to Oklahoma.

Warren’s handlers can spin the story — but the damage is done. On the Internet, ever merciless, the dismissive nicknames have started: Pinocchio-hontas, Fauxcahontas, Sacajawhiner. As Hunter S. Thompson famously wrote, paraphrasing Lyndon Johnson: in some cases, the substance of a charge isn’t important; the response — however skillful — is damaging in itself.

(Actually, what LBJ said was: “I don’t care if the story [that his opponent had sex with farm animals] is true. I just want to hear the son of a bitch deny it.”)

A few days after Warren’s campaign came up with the marriage license application, the story took an ironic turn. While Neoma’s provenance remains murky, her husband — a man named Jonathan Crawford, Warren’s great-great-great-grandfather — served in a Tennessee militia unit that rounded up Cherokees and herded them (literally, on foot) to Oklahoma. About 4,000 Cherokees died on that “Trail of Tears.” So, even if she’s part Indian, Warren is also descended from an oppressor in one of the most disgraceful episodes in US history.

Here we reach the logical end of racial identity politics — a muddle of conflicting conclusions based on incomplete or contradictory government documents. Statist bureaucrats love categorizing people; but their categories are usually false, so they don’t hold up over time.

And a mediocrity like Elizabeth Warren ends up being vilified by partisans both Left and Right.

The Boston Herald’s populist grievance merchant Howie Carr put Warren’s miscues in the disgruntled right-wing frame:

The problem the elites have understanding the power of this story is simple. They’ve never been passed over for a job they were qualified for because of some allegedly disadvantaged person who wasn’t. . . . [T]he upper classes have no comprehension of the “rottenness” of this system. . . . [S]omeone in the Harvard counseling office might sadly inform a young Trustafarian that he might have a problem getting into the law school. But then Someone who knows Someone picks up the phone and young Throckmorton suddenly bumps a kid from Quincy with higher LSATs . . .

In this worldview, Warren’s shenanigans cost a “real” disadvantaged minority person a slot teaching at a first-rate law school. But the problem with right-leaning populism is that it embraces rentseeking. It settles for asking that the corruption be administered equitably.

Carr comes close to the truth when he tells the story of the smart kid from working-class Quincy — but falls just short of real insight. He gives in to emotional paranoia about the corrupt phone call. The best solution isn’t to “fix” the crooked preference system; it’s to eliminate rentseeking entirely because it always leads to corruption. The kid from Quincy doesn’t need a redistribution system that spreads spoils equitably; he just wants to be evaluated objectively.

To which a Warren supporter replied, without irony: “Fuck off, racist.”

On the Left, partisans voice contempt for “box-checking” by free riders like Warren. Last summer, the Coalition of Bar Associations of Color passed a Resolution on Academic Ethnic Fraud. The resolution noted that “fraudulent self-identification as Native American on applications for higher education ... is particularly pervasive among undergraduate and law school applicants.”

In a recent editorial, The Daily News of Newburyport wrote:

It seems clear that Warren’s “box-checking” on law reference application forms was designed to help further her career. Similarly, Harvard Law School benefited by citing Warren as a minority faculty member at a time its diversity practices were under fire.

Warren’s claim that she checked the box claiming Native American heritage in her application for inclusion in the Association of American Law Schools desk book so that she could meet people with similar backgrounds is laughable.

This touches on a critical point: identity politics corrupts institutions as well as people. In 1996, when Harvard Law School was criticized by campus groups for a lack of racial diversity among its faculty, officials touted Warren’s supposed Cherokee roots. According to a Harvard Crimson story at that time:

Although the conventional wisdom among students and faculty is that the Law School faculty includes no minority women, [spokesman Michael] Chmura said professor of law Elizabeth Warren is Native American.

These days, Harvard’s press office says that the university doesn’t make official pronouncements about employees’ ethnic or racial backgrounds. Which seems a bit . . . carefully . . . timed.

Of course, the whole story beggars belief. Warren skeptics are even showing up on Daily Kos, the left-wing political opinion web site that practically launched the professor’s political aspirations. Its Native American columnist Meteor Blades recently wrote:

What’s unclear is whether Warren checked the “Native American” box solely out of pride or because it might perhaps give her a one- or two-percent edge over some other job candidate without that heritage. She says she didn’t. . . . What Warren also didn’t do was step up in 1996 when it became clear that Harvard, under pressure from students and others about the lack of diversity on its law faculty, was touting her Native heritage. . . . What Harvard did was despicable. What Warren didn’t do enabled Harvard to get away with it. She was wrong, very wrong, to let that pass.

If she’s lost Daily Kos, Warren is in deep trouble.

Others on the Left are distancing themselves from Warren, frustrated that she was supposed to be a winner and now may not be. In the online magazine Salon, Edward Mason noted:

The story about Elizabeth Warren’s Native American heritage refuses to die. . . . Some Democrats, haunted by the infamous meltdown of Martha Coakley against Scott Brown two years ago, are wondering if it’s déjà vu all over again. “The people in Washington are saying, ‘The people in Massachusetts are a bunch of fuck-ups who couldn’t run a race for dog catcher,’” said one veteran Massachusetts Democratic insider.

But, to me, the most relevant material came in the reader comments that followed Mason’s cautious story. One commenter earnestly tried to make sense of the hullabaloo:

At no time on any census was OC Sarah Smith, nor any of her off-spring listed as anything other than White. . . . As a contrast, my Great Great Grandmother was listed on the Census and Marriage Certificate as White Indian (Cherokee) but even my relative may not have been full blooded. There is no actual evidence, other than family lore, that Sarah Smith was Cherokee, and zero chance she was full blooded Cherokee. At best, and there’s no evidence to support this, Warren could be 1/64 Cherokee.

To which a Warren supporter replied, without irony: “Fuck off, racist.”

Identity politics is a poison that sickens people, intellectually and spiritually. It abandons them in a madness of paranoia, pettiness, and profanity. Ambitious statists like Elizabeth Warren believe that they can manage the poison more effectively than the little people whose support they assume they have. But they’re lying — to themselves first and to the little people eventually. And inevitably.

rsquo;t do enabled Harvard to get away with it. She was wrong, very wrong, to let that pass.




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