Looking around the Internet today, I happened across a three part discussion of sorts between some folks over at the National Review Online.  The essence of the discussion begins as Jeff Rowes and Clark Neily attempt to convince us that it would not be an act of judicial activism for a court to strike down a law banning compensation to organ donors, to the extent that the law bans compensation for bone marrow donation.  Their argument is made in the first post, which is filled with policy reasons why compensation for bone marrow donation should be legal.  The entire discussion, such as it is, is hardly noteworthy, except that it makes clear the hazard that comes from an all too common misunderstanding about the nature and purpose of the Constitution.

Jeff and Clark complain that “[Ramesh Ponnuru's] view, shared by an unfortunate number of conservatives, is that the Constitution created a legislature with the unbridled authority to deprive citizens of liberty arbitrarily, at least in the absence of a (sufficiently) enumerated right.”  They reply by stating:

[It is] just wrong as a matter of text, history, and original understanding of the Constitution. Government officials in America have never had the power to act arbitrarily, and among the most important roles assigned to — though not always discharged by — our judiciary is ensuring that the other branches act within the constitutional bounds assigned to them. Irrationally denying citizens their right to participate in safe, effective, lifesaving medical care is not a legitimate exercise of power. It is not only appropriate but vitally important for courts to fulfill their constitutionally assigned role as a check on the arbitrary exercise of government power,

What is wrong is that Jeff and Clark, like so many others from every political walk of life, and including judges, even those who sit on the Supreme Court, treat the Constitution as some sort of limiting document which restricts the otherwise unbounded power of the federal government.  It is that view which is “just wrong as a matter of text, history, and original understanding of the Constitution.”  Far from being a limiting document, the Constitution is best read as an enabling document.  It is best read according to the following procedure:

1. The government has no power.
2. Except these powers, which the Constitution explicitly grants to the government.
3. Except these powers, which are nowhere in the explicit grants anyway, but which are so important to keep away from the government that we’re going to call them out by name in the Bill of Rights.

The historic defense against arbitrary laws is the fact that the federal government, until around the New Deal era, was understood to not have a great deal of authority with which to enact them.  Indeed, it is hard to imagine which provision of the Constitution would act to enable the federal government to regulate abortion donations at all, at least as long as the organs never crossed state lines to trigger the Interstate Commerce Clause.  Yet, we readily accept that the federal government has this power, absent some specific Constitutional instruction to the contrary.  Jeff and Clark chose the Due Process Clause (presumably the “substantive” flavor), and now get to hope for the best with their argument that the law is arbitrary.

The mere formulation of the essential argument made by Jeff and Clark points out the trouble with interpreting the Constitution backwards.  They are essentially asking a judge to decide whether or not there is a “rational medical reason to imprison people for five years for compensating marrow donors, but not imprison people for compensating blood or sperm donors.” (emphasis added)  A judge, who probably has no training in medicine, is being asked to decide whether or not a law is medically rational?  And yet, that is the required burden to prove that the law is arbitrary.

Under an originalist reading of the Constitution, we would have little need to wonder whether this law is arbitrary.  It would never withstand scrutiny, because it would fall entirely outside the realm of federal power.

Unfortunately, nobody asks anymore where in the Constitution the federal government has the power to do most of the things that it does.  The neglect makes sense; our courts have taught us for nearly a century that between the Commerce Clause, the Due Process Clause, the Necessary and Proper Clause, the General Welfare clause, and emanations from penumbras of all of the above and more, nothing is beyond the federal power except those few things mentioned in the Bill of Rights.  But, if the Constitution is to have any meaning at all, we must ask for the source of federal authority — rooted in the text of the document itself, not what the courts have said about it — in every matter that Congress takes up.

Jeff and Clark deserve deserve to win.  I just wish were practical for them to use a different argument.

Tags: constitution

You would think by now that the speed with which Congress switches back and forth on whether or not to include a “public option” would have the media thoroughly tired of finding ways to spin either outcome as a win for Democrats.  Despite having made more switchbacks than a car on an highway through the mountains, the Washington Post has not slowed down in their ability to churn out nonsense aimed at making anything the Democrats do look intelligent.  A new article discusses what the senate health care deal would mean to consumers which paints a, predictably, much more rosy image of the story than is likely.

Included in the article was an interesting statement from a man named Paul Starr from Princeton:

“It’s good to have the federal government in there negotiating with plans because of the possibility that states will do a very bad job of regulating insurers and managing insurers,” said Paul Starr, a Princeton professor of public affairs. “This is a very important protection against poor implementation by states.”

Though this is not the first time I’ve heard this sentiment, it is the first time I’ve heard it so plainly applied to health care.  It is an interesting concept that seems to flow from the general notion that the federal government can do no wrong.  It is a quaint, if irrational, argument that seems to flow mostly from the 1960s civil rights era when the federal government, under orders from the Supreme Court and over the objections of Democrats, federalized the race industry and eliminated the Jim Crow policies of the states.  This gave the federal government instnat credibility as a nearly independent body of government which could craft policies without needing to worry too deeply about what the electorate might have to say.

Their policies, most of which are abject failures in terms of meeting their stated goals, sustainability, or both, are now the gold standard which folks like Mr. Starr want health care reform to compare.  The one thing that these programs — which include Medicare, civil rights reforms, and the radical expansion of the regulatory state — have actually succeeded in doing is removing power from the people and placing it in the hands of government.

A noteworthy example of the hollowness of federal “protection” is the FDA.  For drug manufacturers, the patent period is commonly viewed as the time during which they are able to recover the costs of the drugs they invent.  In order to recover their costs, they set their prices artificially high once the drugs are allowed to be sold.  A longer period of sales would allow drug prices to be lowered, because there would be a greater period of time over which they could spread out recovery of their up front costs.  But into this process comes the FDA, with its lengthy and expensive approval process which can take away as much as half of the patented life of a drug.  In, too, is the FDA, which has the power to pull from the market any drug, even ones the FDA has approved, for not being safe.  Thanks to the FDA, drugs cost more than they need to and have no particular guarantee of safety.  This is the sort of “protection against poor implementation” that we can expect from our federal government.

For liberals, though, the trouble reflected in the FDA doesn’t matter.  It only means that those programs need more money, need to be more invasive, and need to accumulate even more power.  But, that power comes with a price.  I found it notable that during the Bush years, the general cry that the federal government can do no wrong tended to fade into the background, if it was even made at all.  It was California, not Washington DC that was the champion of environmental policy.  It was state courts, not the FDA, that championed patients’ rights.  It seemed that the federal government under Bush could suddenly do nothing right.

We have, right now, a chance to have health care run by President Obama.  But he will not be President forever.  I can already hear the commotion now, come 2012 or 2016, when the White House again changes hands.  Just imagine what life will be like under our next President…

Doctor in Chief Sarah Palin.

Tags: Barack Obama, freedom, healthcare, Sarah Palin

Over on Time Magazine, Barbara Kiviat asks the question, “Can the Federal Government Really Create Jobs?“  The answer she comes to is a bit surprising, in that it’s as close as I can imagine anyone from a major news outlet other than Fox News will come to saying that Obama is on a fool’s errand with his latest push to create new jobs.  In an article which is compellingly lucid, Ms. Kiviat concludes that “there are few obvious steps for a government looking to create jobs.”  Along the way, she things which are interesting, and which are certainly worth a closer look.

If we want firms to go out and hire, why not give them an economic incentive to do so? This could be done by flat-out paying companies to hire, or by reducing their share of payroll taxes (the money that gets withheld from workers’ paychecks to pay for Social Security and Medicare). Either way, adding a new worker becomes cheaper.

A position such as this one fits extremely well with what we know of the remarkable benefits of reducing taxes on businesses.  As we have seen repeatedly throughout history, lower taxes lead to a healthier and more productive economy.  There is, however, a noteworthy difference between lowering taxes and “paying companies to hire.”

Lowering taxes provides a sustainable benefit to businesses which they can rely on and pass along to employees in the form of greater hiring, higher wages, or to consumers in the form of lower prices.  “Paying companies to hire,” however, provides no such sustainable benefit.  Giving an incentive to hiring may cause a sudden rise in hiring, but it also keeps the tax burden high (indeed, probably higher, to pay for the payments) and encourages companies to hire people for terms which are effectively temporary, only permanent enough to qualify the company for the benefit.  Companies may profit, at the expense of greater noise in the job market and few new long term jobs.

Of course, what is certain is that the Texas approach of raising unemployment taxes is nowhere close to the right answer.  For companies which are already having trouble making payroll, adding additional costs will only further push businesses past the red line and generate further layoffs.  For companies that are uncertain whether or not to hire employees, the greater tax places a definite thumb on the “no” side of the scale as the penalty for overestimating their labor needs increases.

The conundrum: demand in the U.S. is overwhelmingly consumer-driven and people need to have jobs to feel like it’s once again safe to spend money. It’s a classic chicken-or-egg problem. Direct hiring by the government could, theoretically, sidestep the impasse. The question then becomes whether such a program creates more economic benefit than it does economic inefficiency by having the government dictate job creation. Consider that one criticism of the WPA was that it prevented people from moving to jobs where they would have been more economically productive — and actually slowed down the post-Depression recovery.

Much has been made throughout the recession of this so-called “chicken-or-egg” problem being a disaster of contrary incentives resulting in a death spiral to total economic collapse.  At every step along the way, that “conundrum” has been a justification for invasive government action: The only economic rules the federal government needs to follow are the ones that it doesn’t feel like ignoring.  By spending when nobody in their right mind would spend, by hiring when nobody in their right mind would hire, the government is in a unique position to prime the economy.  Or so the argument goes.

But like all good paradoxes, there are two sides to this story.  While the stock market downturn may have been a disaster for people who recently retired or who intended to retire in the near future, it was a boon to a younger generation of investors who are just beginning their economic journey.  In the age old adage of “buy low, sell high,” what better time could there be to buy than at the bottom of a recession?  What better time could there be for hiring than when labor rates are low?

In a free market, one person’s problem is another person’s opportunity.  As prices fall and investment becomes more attractive, new investors enter and prices eventually level off.  As the private sector creates value, that value fuels future growth in the economy.  From future growth comes future jobs, and long term recovery.

The government, by contrast, cannot participate in that process.  They produce no goods and they provide few services. Every dollar the government spends paying its employees came from taxing the private sector; taxing companies which could have given that person a productive, value creating job.  The idea of government hiring to create jobs is a broken window fallacy: Instead of having an employee who makes suits, you merely have an employee.  Nobody is better off.

Tags: economics, free markets, spending, stimulus

It seems judicial activism is alive and well in Tennessee.  Though information is scarce, it appears that a judge has ruled unconstitutional a law recently enacted by the state which allowed guns to be legally carried in restaurants that serve alcohol.  The opinion was apparently issued from the bench and I haven’t yet been able to hunt down a written opinion or transcript, but if a news report is to be believed, the judge’s decision is a mess of illogic and policy driven judicial craftsmanship.

As I understand the background of the case, it arises out of the new Tennessee law which allows guns to be carried in restaurants which sell alcohol, but not in bars.  The law works by repealing most of an earlier provision that prohibited guns in any alcohol-serving establishment.  A group of permit holders challenged the law in court, seeking a declaration that the law is unconstitutionally vague.  The law is vague, they claim, because it fails to clearly distinguish between restaurants (where guns are allowed) and bars (where they are not).  The judge agreed and struck down the law, which, by my understanding, reverts everything to the pre-law conditions where guns are prohibited wherever alcohol is sold.

Examining the results of the case closely, it becomes apparent that the court’s decision, however the opinion was written, was an exercise of judicial policymaking.  In order to even be heard in court, the challengers would have needed to show that they were harmed by the vagueness of the law (or, if this is a declaratory judgment, that they are likely to be harmed by it).  The only way someone is harmed by vagueness in the law is if they violate the law unknowingly.  The only possible way to violate the law unknowingly is to carry a gun into a bar that they thought was a restaurant.

The court’s decision purports to solve this problem by (effectively) making it illegal to carry guns in restaurants.  But this is not a solution at all.  Under the court’s decision, it is still illegal to carry a gun into a bar that you think is a restaurant.  Nothing changes except that a great number of legal carries now become illegal carries, causing harm to the rights of restaurateurs and patrons who had no problem having guns at the table.

Assuming that the law truly is vague on this point, the court had two valid options available.

The first option is a variation on the option chosen by the court: Eliminate the distinction between restaurants and bars.  However, the distinction would need to be eliminated in favor of gun carriers, because that is the only way to remove the hazard of being caught with a gun in a bar that you thought was a restaurant.  This option eliminates the vagueness entirely, and solves the problem at hand.  The downside, however, is that it rewrites the law to produce a result, guns in bars, which was expressly rejected by the political process.  Though not the atrocity of the actual opinion, this choice would still have been activist.

The second option is effectively to punt: Dismiss the case and leave the law, as it is, intact.  Over time, courts will be called on to decide whether or not particular establishments are restaurants or bars, building a body of common law precedent in the absence of legislative definition.  This sort of case by case decision making is certainly not as clean as a proper definition from the legislature, but it is a common procedure undertaken by the courts which ultimately yields a workable standard.  Further, while true that some people will end up on the wrong side of uncertainty, the Rule of Lenity will generally protect these people from harm.

It is that final option which the court should have selected.  Instead, the court chose to deviate from the duly enacted will of the people in pursuit of an outcome which does not resolve any harm the law may have caused.  Such a decision is hard to reconcile with anything other than an apparent policy preference from a judge now translated into law.

Tags: 2nd Amendment, court opinions, logic