No Grownups in Charge: Federal Deficit Edition

Conceding the fact that you should aggressively wash your hands with antibacterial soap should you ever shake hands with Elliot Spitzer, the guy has a point about the federal budget deficit.  Actually, he has half a point.  He is correct for calling Republican House leaders to task for taking cuts to defense, Social Security, Medicare, Medicaid off the table as well as for refusing to consider tax increases.  As Spitzer notes, the numbers are clear and clearly out of whack.

4. Our annual budget is significantly out of balance:

a. Spending is about $3.8 trillion.
b. Revenue is about $2.5 trillion.
c. This leaves a deficit of about $1.3 trillion.

5. The big buckets of spending are pretty clearly separable:

a. Defense—about $900 billion.
b. Social Security—$730 billion.
c. Medicare—$490 billion.
d. Medicaid—$300 billion.
e. Interest—$250 billion.
f. Nondefense discretionary—$610 billion.

Defense. the major federal entitlements, and interest on the current debt are about 80% of federal spending.  Completely eliminating nondefense discretionary spending---everything the federal government does except the military, Social Security, health care for old people and poor people, and paying its credit card bills---would only reduce the current deficit by about half.  So, we could stop building highways, let everyone out of federal prison, eliminate NPR, stop arts funding for homoerotic photography, quit giving poor kids school lunches, ban all earmarks, etc., etc., and still only be halfway done.

To balance the budget, there have to be major cuts to defense, entitlements, and, probably, tax increases.

I say Spitzer has half a point because his critique of Republican intransigence on the deficit goes just as much, if not more so, for Democrats who seem to have no serious deficit reduction plans above and beyond increasing the top marginal income tax rate.

The problems are huge, however, the solutions are as painfully obvious as they are painful.  Retirement ages must be raised and benefits for future retirees must be reduced.  Medicare and Medicaid eligibility have to be tightened and benefits capped.  Defense spending has to be cut.  Sadly, it is also likely that taxes will have to be raised, at least in the short term, to payoff the over-commitments we have previously made to current retirees in terms of benefits and medical coverage.

There are, however, absolutely no grown-ups in charge of our national government.

Neither the President nor congressional leaders have bothered to explain any of this to the country in plain language.  Neither the President nor congressional leaders have bothered to make plans to actually deal with this problem.  Instead, both the President and congressional leaders are content to continue their bipartisan aversion to problem-solving as our nation digs itself deeper and deeper into a fiscal crisis.  Both the President and congressional leaders are content to let things get worse before they get better, to kick the problem down the road to someone else at some other time to deal with, and to work hard together to hoist the anvil that will eventually crash down on our heads, Wile E. Coyote-style, to ever greater heights.

Law School Bound?: New Policy on Letters of Reccomendation

Over the last couple of years, I have become a great skeptic of law school as an appropriate post-college choice for most students.  (I am not alone, of course. See here and here, for example.)  Law school is, typically, very expensive both in terms of the nominal cost of tuition, books, fees, etc., but also in terms of the opportunity cost of lost wages and spending three prime years of young adulthood in yet another structured educational environment.  Given these the tremendous investment up front, it is likely to take most students a very long time to amortize the startup costs of a legal career and earn any sort of reasonable net return on that investment both in terms of compensation and in terms of professional happiness and overall quality of life.  This is especially true for students who are unable to earn places in nationally prominent law schools from which major national and regional law firms draw their new associates. 

A third of new law school graduates in 2009 accepted positions paying $65,000 or less.  That works out to take home pay of about $4,500 a month after federal taxes---though not counting state taxes, health insurance, retirement, or other payroll deductions.  Payments on $50,000 of student loans would be about $400 a month (for a 20 year note at 6.8%), and double that on $100k of student debt (which is not unusual if a student has borrowed money for college and law school).  Asking someone to pay between 10% and 20% of their real income to service student loan debt is an enormous burden and perhaps a crippling one.

Even though I have made a habit of counseling students to be very careful in their choice to attend law school, most students who see me about letters of recommendation eventually ask me to write on their behalf.  Generally, I comply with students' requests, writing letters that convey my evaluation of each student for better or for worse.  I am not playing along any more.  I will no longer write letters of recommendation for students applying to law school who are unlikely to  be competitive for admission to programs that offer a reasonable chance for employment remunerative and engaging enough to justify its cost.

From now on, I will not write on behalf of a student unless he or she has:

1. earned a cumulative GPA of at least 3.5.
2. taken an LSAT exam and earned a score of at least 160.
3. completed some sort of internship, career shadow, or other professional or educational experience that might have reasonably shown them the kind of work that lawyers do day-to-day.
4. researched the cost of law school and made a plan for paying for it.

I realize this policy will exclude a lot of very good students and lead to some awkward conversations.  Still, I can't, in good conscience, support educational choices that I don't support, no matter how much I may like a given student. 

Hey Flanagan

Kinda seems like the Dookies have it in for you:

Flanagan’s a hack and the worst kind of pundit; after years of her hysterical essays, this is common knowledge. But that doesn’t excuse The Atlantic for having printed pages of what is essentially deception, unprofessionalism and, in at least one instance, outright lies.
...
Clearly, Flanagan doesn’t know any better than to write nonsense like this. But the fact that The Atlantic continues to publish her isn’t just shameful—it’s irresponsible.

Failing Stimuli and the Great Recession

Policymakers in the United States have thrown everything they can at the "Great Recession."  Putting aside efforts to rescue specific firms (like AIG or GM) or industries (TARP), which seem to me more complicated cases, the federal government has taken both of its big anti-recession dogs for a walk: fiscal stimulus (borrowing money against future revenue collections to spend now) and monetary stimulus (printing more money to put into circulation).  Neither seems to be doing much, though.

The economy is growing, but its not growing fast enough to add enough to keep up with growth in the labor market.  In general, the whole situation seems like a major win for real business cycle theory.  Having said that, though, I think there is some reasonable historical  evidence that Keynesian and monetarist interventions have had more substantial, positive effects on economic growth. That leads me to some interesting questions: Have the effects of stimulus interventions declined over time?  Have we reached a tipping point beyond which stimuli are not longer sufficiently beneficial in the short run to justify their long runs costs?

My hunch about the first is that stimulus activities are less effective than they used to be for at least reasons.

1. Better information and increased sophistication.  Individuals and firms---particularly the latter---are increasingly better informed about economic policy and its implications (via increased formal education about economics in business education, new sources of economic analysis like cable business news channels, and widely accessible computerized forecasting tools for example) and more sophisticated in their approach to using policy information in spending and investment decisions.  Increasingly, economic actors see through stimulus actions---we know that a deficit has to be repaid by future taxes and that more money in circulation just reduces the value of the dollars we already had.  Handing out stimulus checks or Monopoly money won't catalyze as much new activity from those waiting for the boomerang to come back at them.  Our collective animal spirits are harder to manipulate than they used to be, which reduces the aggregate effectiveness of a stimulus policy.

2. Less elite consensus about the value of stimulus.  Same idea in some ways.  A stimulus depends on motivating "spontaneous optimism rather than mathematical expectations."  A stimulus works (if it works), in part, because it creates confidence.  When people get more confident, they pull money out of their savings accounts, CDs, and mattresses to invest in new ventures and to buy stuff.  Firms get capital to expand, retailers profit, manufacturers get more orders, win, win, win.  When political elites and professional economists give us a unified diagnosis of our economic malady and, in unison, propose taking the same medicine, ordinary economic decisions makers in firms and families may actually get the psychological boost they need to flip their mindset from hoarding to binging (at the margins, of course).  When politicians and economists disagree amongst themselves and express only mixed support for a proposed solution, even the same policy enactment will have less impact on psychological dispositions to spend and invest.  This would reduce the effect of a stimulus policy.

3. Globalization.  Even if the US government can stimulate US consumers into spending and investing, we are increasingly spending and  places besides the US.  Let's just say that Nancy Pelosi's claim that a dollar of stimulus spending nets two dollars of economic growth is right.  In 1960, almost all of that second dollar stayed in the US.  American consumers largely bought products made in American factories, and American investors largely invested in American firms.  In 2010, not so much.  A stimulus program in the US may, indeed, stimulate just as much total economic growth as it did in the past, but that economic growth is dissipated globally.  Again, this would reduce the effectiveness of stimulus policies for growing the domestic economy, and, as a result, Americans would end up subsidizing economic growth in other countries.

Brady Campaign Representative Says Numbers, Tells Us Nothing

In the midst of this story about gun sales in the wake of the shootings in Arizona,

Daniel Vise, senior attorney with the Brady Campaign, said Arizona received a score of two out of 100 on the organization’s rating of state gun laws, and that the rate of gun deaths in the state is one and a half times the national average.

First of all, Arizona's rate of murders by firearms (3.04 per 100,000) is almost exactly the same as the rate for the country as a whole (2.98).  Leaving that aside, though, telling us Arizona's Brady Campaign score and its gun death rates without other data is meaningless.  Here's a scatterplot of 2009 firearm murders rates by state and 2009 Brady Campaign scores:

Arizona is the blue dot in the bottom left corner, right on the regression line.  It has the same Brady Campaign score as Louisiana (10.46 firearm murders per 100,000) and Idaho (0.33 firearm murders per 100,000).  It has about the same firearm murder rate as Illinois (Brady Campaign score 29) and California (Brady Campaign score 79---the highest in the nation).  As the equation for the regression line indicates, there is essentially no bivariate relationship between firearm murder rates and Brady Campaign scores.

As I wrote earlier today:

[S]tate-level variance in gun-related crimes is no-doubt tied up with cross-sectional variance in cultural, economic, and demographic factors as well as public policy choices, all of which are temporally related to one another and to changes in national patterns of crime and policy.  Taking any slice of data and trying to sort out the various causal mechanisms at work in the face of terrible problems of measurement, endogeneity, serial correlation, and cross-level effects pushes the limits of meaningful statistical analysis.

Asserting a causal relationship between gun laws and crime on the basis of a single case is silly at best. 

Correspondence Between Gun Laws and Gun Murders?

The attempted assassination of Rep. Gabrielle Giffords and the murder of several bystanders including a federal judge and a 9 year old girl have raised reasonable questions about the role that Arizona's relatively permissive gun laws played in this crime and in rates of violent crime in general.  This is a vexing question since state-level variance in gun-related crimes is no-doubt tied up with cross-sectional variance in cultural, economic, and demographic factors as well as public policy choices, all of which are temporally related to one another and to changes in national patterns of crime and policy.  Taking any slice of data and trying to sort out the various causal mechanisms at work in the face of terrible problems of measurement, endogeneity, serial correlation, and cross-level effects pushes the limits of meaningful statistical analysis.

Having said all that, economist Steve Levitt's analysis of the causes of declining rates of violent crime through the late 1990s offers one of the most convincing---in my mind, anyway---claims about the relationship between gun laws and gun crimes: there is little evidence that restricting or increasing access to guns has any significant impact on gun crimes.  On the one hand, Levitt writes, "There is, however, little or no evidence that changes in gun control laws in the 1990s can account for falling crime."  Making guns marginally harder to obtain through legitimate channels has little effect on criminals' ability to obtain weapons through illegitimate means including theft and purchase on the black market.  On the other, "Ultimately, there appears to be little basis for believing that concealed weapons laws have had an appreciable impact on crime."  Making it legal for a small number of citizens inclined to carry weapons for legitimate purposes does not significantly influence an overall deterrent against violent crime.  Gun laws---in the range historically enacted in the United States---are unlikely to have any appreciable effect on overall crime rates or to prevent any determined individual with criminal intentions from carrying them out.

I Call Bullshit on Paul Krugman (In a Strictly Academic Sense)

Back in 2008,  Paul Krugman sensed danger:

The crisis isn’t the only scary thing going on. Something very ugly is taking shape on the political scene: as McCain’s chances fade, the crowds at his rallies are, by all accounts, increasingly gripped by insane rage. It’s not just a mob phenomenon — it’s visible in the right-wing media, and to some extent in the speeches of McCain and Palin.
...
What happens when Obama is elected? It will be even worse than it was in the Clinton years. For sure there will be crazy accusations, and I wouldn’t be surprised to see some violence.

Writing in Sunday's The New York Times, Krugman reminds us of his foresight:

When you heard the terrible news from Arizona, were you completely surprised? Or were you, at some level, expecting something like this atrocity to happen?

Put me in the latter category. I’ve had a sick feeling in the pit of my stomach ever since the final stages of the 2008 campaign. I remembered the upsurge in political hatred after Bill Clinton’s election in 1992 — an upsurge that culminated in the Oklahoma City bombing. And you could see, just by watching the crowds at McCain-Palin rallies, that it was ready to happen again.

...

One of these days, someone was bound to take it to the next level. And now someone has.

The only problem is, of course, that the murderer of six people, Jared Lee Loughner, is, by all accounts now available, no fan of John McCain, Sarah Palin, Glenn Beck, Bill O'Reilly or anyone else implicated by name by Krugman for inciting Loughner to violence.  Nick Baumann at Mother Jones reports that Loughner has has a history of increasingly bizarre behavior.  He had become obsessed with the idea that words have no meaning, that the physicial world is some sort of dream-state illusions, and that those who could see their way through the illusion could control reality Matrix-style. During the last year, Loughner's behavior became so erratic that he was removed from classes and eventually expelled from Pima Community College in Arizona.  One of Loughner's classmates, documented some of her impressions of him in e-mails from the time, including this eerily prescient remark:

We have a mentally unstable person in the class that scares the living cr** out of me. He is one of those whose picture you see on the news, after he has come into class with an automatic weapon. Everyone interviewed would say, Yeah, he was in my math class and he was really weird.

Baumann also reports that Loughner fixed his anger on Giffords as early as 2007 (before anyone south of Vancouver had heard of Sarah Palin), when she couldn't provide a satisfactory answer to his question, "What is government if words have no meaning?"  Whether or not Loughner is legally insane in the sense of being culpable for his actions, we don't yet know.  It is reasonably clear, though, he is crazy.  Bat-shit crazy.  

It is also reasonably clear that he is not a Republican, a conservative, a libertarian, a Tea Partier, a militia member, or whatever bogeymen Krugman tries to conjure.  Loughner was not sitting at home reading the collected works of Ayn Rand between Tea Party rallies and Fox News's primetime lineup.  He was not under a spell cast by the Palin-O'Donnell-Angle coven.  He was not moved to act by the rhetorical excesses of John McCain. 

The implication that a reasonable political movement, supported by something like half of the country, is behind this shooting is bullshit, in the academic sense of the word---a statement made without regard for the truth of the matter.  Whatever emotions Paul Krugman detected at political rallies that he very likely never attended appear to have no connection to this case.  Krugman has just thrown out an assertion based on little more than his literary fancy and personal predisposition to see the worst possible motives in those with whom he disagrees. 

Hey Dookies

Kinda seems like Caitlin Flanagan has it in for you:

In 2009, GQ magazine named Duke America’s second-douchiest college, a distinction that came with a caveat: “They’re probably number one. But we’d rather not rank Duke number one at anything.” It’s difficult to argue with GQ’s thinking on either score; something ugly is going on at the university—a mercenary intensity that has been gathering strength for the past two decades, as the institution made the calculated decision to wrench itself into elite status by dint of its fortune in tobacco money and its sheer ambition. It lured academic luminaries—many of them longer on star power than on intellectual substance—built a fearsome sports program, and turned its admissions department into the collegiate version of a head-hunting firm. (I was a college counselor at a prep school in the ’90s, and the zeal with which Duke gunned for our top students was unseemly.)

In some respects Duke has never moved on from the values of the 1980s, when droves of ambitious college students felt no moral ambivalence about preparing themselves for a life centered largely on the getting and spending of money. With a social scene dominated by fraternities and sororities (a way of life consisting of ardent partying and hooking up, offset by spurts of busywork composing angry letters to campus newspapers and taking online alcohol-education classes), with its large share of rich students displaying their money in the form of expensive cars and clothing, and with an attitude toward campus athletics that is at once deeply southern (this is a part of the world where even high-school athletes can be treated with awestruck deference by adults) and profoundly anti-intellectual, it’s a university whose thoughtful students are overshadowed by its voraciously self-centered ones.

Krugman Messes with Texas

Paul Krugman's piece on the state of the economy and budget in Texas hits the Lone Star State over the head for having an unremarkable unemployment rate and a sizeable budget deficit to fill.  He infers from these two pieces of information that claims of a boom economy are overblown and that the state's conservative policies are a failure.  I'm sure that folks out there have overstated the Texas case.  The recession hit Texas, too, costing the state jobs and tax revenue over the last two years.  Having said that, though, Krugman overstates his countercase as well.

On jobs, Krugman is correct that unemployment in Texas is better than average, but not substantially so:

And when you look at unemployment, Texas doesn’t seem particularly special: its unemployment rate is below the national average, thanks in part to high oil prices, but it’s about the same as the unemployment rate in New York or Massachusetts.

But that's only half the story.  Texas's population has boomed in recent years, a trend that may have accelerated in the last two years.  As R.A., blogging at The Economist, points out, Texas has added roughly 650,000 people to its labor force since December of 2007.  Since the bottom of the recession last year, Texas has added 200,000 jobs.  To put that in perspective, R.A. notes, "About 20% of the jobs created in America last year, 200,000 or so, were created in Texas."  So, Texas is rebounding faster and bigger from the recession than the economy as a whole and certainly more so than, say, New York, which Krugman sets up as a point of comparison, which has added something like 60,000 jobs during the recovery, less than a third produced in Texas.

Krugman is also right about the deficit in Texas.  It's there and its big, around $25 billion.  The deficit emerged for the same political reason that it did in other states.  The legislature added a lot of new spending during the last expansion that can't be supported by the recession-savaged tax base.  Krugman seems doom in the process:

Given the complete dominance of conservative ideology in Texas politics, tax increases are out of the question. So it has to be spending cuts.

Yet Mr. Perry wasn’t lying about those “tough conservative decisions”: Texas has indeed taken a hard, you might say brutal, line toward its most vulnerable citizens. Among the states, Texas ranks near the bottom in education spending per pupil, while leading the nation in the percentage of residents without health insurance. It’s hard to imagine what will happen if the state tries to eliminate its huge deficit purely through further cuts.

I don’t know how the mess in Texas will end up being resolved. But the signs don’t look good, either for the state or for the nation.

Texas operates under a constitutional requirement of a balanced budget, so money in will be made to equal money out through some combination of tax increases and spending cuts.  I agree that Texas is likely to rely more heavily on the latter than the former.  That's about where the agreement ends, though.  Krugman seems only doom and despair and a state economy that isn't adding jobs fast enough to keep up with its growing population.  I see a state drawing hundreds of thousands of people in who are smart enough to know that they are much more likely to find and keep a job here in Texas over the foreseeable future than they are in Michigan, New York, California, or most of the rest of the country.  As the national and world-wide economy gradually and fitfully continues its recovery, I think I can lay my hands on a crisp one dollar bill to bet Professor Krugman that Texas's economy grows more and adds more jobs proportional to its population over the next five years than the American economy as a whole.

Andrew Cohen Totally Misreads Federalist 78

Blogging at the Atlantic, Andrew Cohen, legal editor at CBS News, opines that opening the new Congress by reading the Constitution is pointless, and maybe even bad, because Congress was never intended to interpret the Constitution.  He rests his case on Alexander Hamilton's arguments about judicial independence in Federalist 78, which he quotes, in part:

It can be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

From this, Cohen extrapolates:

Writing as Publius, Hamilton goes on and on—he got paid by the word, didn't he? —but you get the gist. The Congress may be the first branch of government but it was never designed to have the last say. The tyranny of majority rule was just as much a concern to Hamilton and his compatriots as it ought to be today. The Constitution, like any other important document, must be read in context and with perspective. If it to be used as a sword, as House Republicans contemplate, it should also serve as a shield.

Though he doesn't come right out and say it, Cohen clearly takes the view that Congress has no duty or capacity to be attuned to the Constitution; that's the judiciary's job.  In other words, he's saying Congress should do what it wills and let the courts sort out what is and is not constitutional.

This is fundamentally wrong reading of Hamilton in two ways.

First, Hamilton's argument is not principally about the tyranny of the majority, it is about legislatures that fail to be responsive to the people. Hamilton is worried about legislatures substituting their will for the the will of the people.  The point of judicial independence and judicial review is not to protect the Constitution from the people, it is to protect the will of the people embodied in the Constitution from a legislature that has run amok.  Thus, elsewhere in Federalist 78, he writes:

Some perplexity respecting the right of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorise, but what they forbid.

Legislatures (and courts) act on authority delegated to them by the people through the Constitution.  When the legislature acts "contrary to the tenor of the commission" courts should consider the law invalid, not because the courts have some special ability to interpret the Constitution or some peculiar duty to apply it, but because all branches of government are equally bound by the Constitution.  If the Congress fails to respect the Constitution, the courts must still do their duty to the people by refusing to uphold the law.  Moreover, this conclusion, Hamilton writes, does not "by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both."  Hamilton doesn't want courts to stifle the people, he wants courts to ensure that the people's constitutional voice is not ignored by Congress.

Secondly, Hamilton does not make the claim that courts have a unique and exclusive right to interpret the Constitution.  In fact, Hamilton's argument is that courts also have the ability to interpret a written Constitution along with legislatures.  Reading Hamilton with the "context and perspective" he deserves, we should remember that American state legislatures had been laboring with and under written constitutions established on the authority of the people of each states since 1776 in some cases by the time the Federal constitution was proposed in 1787.  It was well understood that legislatures operated only under the authority granted to them by the people through the constitution and the those elected bodies that failed to heed this constitutional guidance might provoke electoral backlash, efforts to "alter or abolish" a constitution to be replaced by a new one, or outright rebellion.  Legislatures, therefore, had a concrete duty to act within the limits imposed on them by their constitutions.  This was not the open question in 1788, when Hamilton wrote Federalist 78 in 1788.  Rather, the question was: can courts also interpret and apply the Constitution?  After all, what right does an unelected judiciary have to tell a branch of government composed of the elected representatives of the people what is and is not constitutional?

This point was raised by the Antifederalist writer Brutus in his Essay XV:

Had the construction of the constitution been left with the legislature [rather than the courts], they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them, and do themselves right; and indeed I can see no other remedy that the people can have against their rulers for encroachments of this nature. A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people chuse at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.

Hamilton's arguments in Federalist 78 should be thought of as a response to the concerns of Antifederalists like Brutus, who were doing a very good job of obstructing ratification of the Constitution by New York. (New York's convention ratified the Constitution in late July 1788 by a vote of only 30-27.  Ratification was achieved only once news arrived that Virginia had ratified the Constitution [also by a narrow margin] and Federalists had promised to support efforts to add a Bill of Rights to the Constitution during the first Congress.)  Hamilton is not telling us the courts get to be in charge of the Constitution.  That is, in fact, precisely the charge he is answering.  Instead, he is defending the structure of the Constitution which leaves open the possibility of judicial review, although it is nowhere expressly authorized.

Gordon Wood explains this point better than I could in a passage from an essay, "'Influence' in History," in The New York Review of Books from 1981:

The sovereign people... were not fully represented in any single institution of government.  They had many different agents to carry out many different tasks, including judges with the responsibility of upholding the fundamental law of the constitution.  thus judges, said Hamilton, were only acting as another sort of agent of the people, equal in popular authority to the legislative representatives of the people... However fully today we accept this view of judicial review, it was for eighteenth century Anglo-Americans a revolutionary doctrine, implying a wholly new way of seeing the people's relationship to government.

This point is reinforced by Hamilton in Federalist 81, where he discusses what to do about judges who trespass on legitimate uses of legislative authority:

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

In essence, he brushes off critics who accuse the Constitution of giving courts too much power.  First, he points out that the elected branches of government may ignore and refuse to enforce improper judicial decisions since a court suffers a "total incapacity to support its usurpations by force."  Secondly, he notes Congress's "power of instituting impeachments," thus eliminating any "danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations."  Hamilton clearly saw Congress having an important role in interpreting and applying the Constitution, going so far as to argue that Congress might ignore and impeach judges who interfered with the legitimate exercise of its constitutional authority.

The bigger picture that links both of these preferable readings of Hamilton is the Madisonian view that the Constitution is a statement of popular will, a statement made by the sovereign people about the rules under which they want their government to operate.  While the structures of constitutional government (e.g. the separation of powers, checks and balances, federalism) are intended as safeguards against government exceeding its authority, these are merely backups against the principal bulwark against abusive government: the active expression of popular will. As, Madison writes in Federalist 51, "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."  Madison emphasizes the point in Federalist 49, writing, "The several departments being perfectly coordinate by the terms of their common commission, none of them... can pretend an exclusive or superior right of settling the boundaries between their respective powers... without an appeal to the people themselves."  Courts are part of the system of keeping government in place, but they are just a part.

Coming full circle, opening Congress by reading the Constitution is surely a symbolic gesture, but it is symbolic of precisely the right attitude about democratic government.  The Constitution is a statement made by us, the people, about the purposes for which we authorize government action and the rights and liberties against which the power we delegate to government may not trespass.  It is the essential statement of Congress's mandate to govern, and an institution rededicating itself to representing the will of the people can hardly do better than starting by reading the Constitution.

Defensive Democrats?: An Untested Theory for an Uncertain Observation

Blogging at The Economist, E.G. writes:

There seems to be a certain temperamental difference between conservatives and Republicans on the one hand and liberals and the Democrats on the other. In broad strokes, Republicans, especially of the tea-party stripe, are typically proud, at least unapologetic, and sometimes belligerent about their beliefs. Democrats, in contrast, seem to adopt the defensive position by default.

I see this a lot from left-leaning writers, though it doesn't really match my own observations about Democratic politicians' demeanor.  (Amusingly, you often read it from right-leaning writers discussing the lack of conviction and fortitude among Republican politicians, but c'est la vie.)   Obama, Pelosi, and Reid have a pretty reasonable record of confident self-righteousness, presuming our observations are not taken only from moments in which their party has recently suffered a massive electoral defeat.

Presuming the observation of partisan differences in style is correct, though, E.G. offers a couple of theories about their origins:

Democrats are constrained by their insecurities, a holdover from being made fun of by George W Bush and Fox News. Democrats are undermined by deeper, historical anxieties; with the Republicans having co-opted the rhetoric of being the "real America", Democrats feel that they have to explain themselves before they can proceed. Or, there's something cultural going on: there are temperamental traits that draw a person to the Democratic or Republican parties, and those same traits, aggregated, are manifested by the parties themselves. Commenters, what do you think? Or am I overstating the entire premise?

Again, I am a bit dubious about the scope of the phenomenon that needs explaining here, but, to drop my two cents, partisan differences in political behavior can often be traced to differences in the values orientations of the two major parties.  As Chris Ellis and I wrote in a recent paper for the last APSA meeting:

Though the space of contemporary American political values, ideologies, and belief systems is undoubtedly complex—embracing “freedom, equality, individualism, democracy, capitalism, and several others” (Feldman and Zaller 1992, p. 271)—and often develops idiosyncratically at the individual level (Lane 1962, 1973).  Yet, for many Americans, the competing values of individualism and egalitarianism dominate their engagement with the political world.  Individualism connotes support personal liberty and laissez-faire economic principles while egalitarianism includes equality and social welfare.  Within this framework, Republicans predominantly express the core value of individualism. Democrats generally articulate the core value of egalitarianism, although Democratic partisanship is characterized by more values-based ambivalence than that of Republicans, as Democrats also often espouse broadly individualistic attitudes as well (Feldman and Zaller 1992; see also Goren 2001). [Notes omitted.]

If Democrats are systematically more defensive than Republicans, part of the answer may lie that Democratic partisanship is inherently values ambivalent.  When Democrats advocate redistributive tax policies, say, they are serving their allegiance to egalitarianism, but they are sacrificing their commitment to individualism.  This underlying tension may lead them to be especially sensitive to criticism that their proposals are contrary to personal liberty, market principles, and the like.

Republicans, in contrast, are substantially less ambivalent.  Individualism is the whole ballgame.  This more pure, less complex political orientation may lend itself to a more unabashed political style.

Justice Scalia v. Alexander Hamilton

The latest issue of California Lawyer includes a short interview with Supreme Court Justice Antonin Scalia.  As you might expect, Justice Scalia offered some robust statements of his personal views on the nature of the Constitution and how the it should be interpreted.  I like Justice Scalia, and I usually agree with him on the proper disposition of cases before the Court, but I think his views constitutional  metaphysics are a bit off base.

You believe in an enduring constitution rather than an evolving constitution. What does that mean to you?
In its most important aspects, the Constitution tells the current society that it cannot do [whatever] it wants to do. It is a decision that the society has made that in order to take certain actions, you need the extraordinary effort that it takes to amend the Constitution. Now if you give to those many provisions of the Constitution that are necessarily broad—such as due process of law, cruel and unusual punishments, equal protection of the laws—if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all. If the cruel and unusual punishments clause simply means that today's society should not do anything that it considers cruel and unusual, it means nothing except, "To thine own self be true."

There's a longer point to be made here, which I may make another day, but for now I'll just note that Justice Scalia clearly sees the Constitution as an exogenous instrument for controlling the political impulses of the people.  It's there to tell "the current society that it cannot do [whatever] it wants to do."  It's something separate from and above the people, and, implicitly, its the job of the Supreme Court to protect the Constitution from the people.

That strikes me as a bit off-base.  Consider Hamilton's argument for judicial review in Federalist 78:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorise, but what they forbid.

...A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcileable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

For Hamilton, the Constitution is an expression of the sovereign people's plan for government.  It is statement of the specific purposes for which the powers it delegates to the general government may be used and, taking in the Bill of Rights and other liberty-oriented amendments, a statement of certain individual rights that may not be violated by the government even if it is in the service of those enumerated powers.  The Constitution, therefore, is an endogenous statement of popular will meant to protect the people from their government.  By extension, constitutional judging is about ensuring that a legislature---be it Congress or a state assembly---does not constitute itself as a faction against the people and proceed to enact legislation that violates the people's will expressed in the Constitution. 

I've written at greater length about judicial power and its relationship to public opinion here and here.

Bainbridge v. Levinson

UCLA Law Professor Stephen Bainbridge "find[s] it hard to take [UTexas Law Professor] Sandy Levinson seriously" on democracy in the Senate and the Tea Party.

PolitiFact's Lie of the Year

I know I am late getting to this one, but the St. Petersburg Times's "PolitiFact editors and reporters have chosen 'government takeover of health care' as the 2010 Lie of the Year."  Peter Suderman at the Reason Foundation's Hit & Run blog has a nice piece taking PolitiFact to task for this one, which is pretty much summed up by it's title, "PolitiFact's Lie of the Year is an Exaggeration with a ring of Truth."  Here's Suderman:

If you want to point out that the GOP stretched this one, then by all means go ahead. The PPACA wasn’t strictly a government takeover of the entire health care system. No, it was just a dramatic increase in government regulation, oversight, and control of many parts of the system.

This pretty much nails it.  The Patient Protection and Affordable Care Act creates or authorizes regulations on health insurance providers that dictate what their insurance plans must cover, the people they must cover, the prices they may charge, and profits they may make.  If my homeowners' association suddenly passed rules that required me to rent out room in my home to others, prevented me from exercising discretion over to whom to rent, and dictated the rents I was permitted to charge, I suppose the HOA did not takeover my home in the sense of legally transferring the property from me to them, but it certainly would have taken over control of my property from me.  So, I would actually go a bit further than Suderman and say that the PPAC was essentially a takeover of the private health insurance industry.

One other point.  In the midst of the debate over the various versions of health care reform that were percolating in Congress since President Obama took office, I frequently voiced the concern that many of the proposals, especially those that included a so-called public option and national health insurance exchanges would lead to a government takeover of the health care system.  My claim was (and is) that forcing heavily regulated private plans to compete against heavily subsidized state-run insurance plans would eventually make private health insurance an untenable business, forcing out private providers, pushing more people onto the public option, and creating a de facto single-payer system until---at some point in time---the whole house of cards tumbled over and an actual single-payer system was established.  In fact, at least one prominent architect and advocate of the public-option/insurance exchange plan publicly claimed that a single-payer system was the inevitable and intended result of the plan.

Whatever the relative merits of the old health system, the regime created by PPACA, or plans offered by other prospective reforms, the main point is that PolitiFact is really off base.

For better or for worse, political debates in this country are conducted in some measure via slogans, soundbites, and bumper-stickers.  If you've got a point to make, you have to have make it quickly---before the next commercial break.  Calling PPACA and its sister proposals a "government takeover of health care" is a reasonably fair, four word summary of the principal small government conservative and libertarian critique of of health care reform proposals that rely on heavy regulations and subsidies.  Sure, it doesn't get all the nuances, but neither does the "If you like your plan, keep it" rhetoric Democrats and others on the left were happy to spread.  (Jake Tapper's ABC News blog Political Punch deals with that particular claim here.)  Calling "government takeover of health care" the biggest lie of the year seems to say much more about the political preferences of PolitiFact than it does about the health care debate.

As for me, I prefer FactCheck, run by the Annenberg center, anyway.

P.S. David Goldhill's piece, "How American Health Care Killed My Father" from the September 2009 Atlantic remains the best piece of writing on the problems of the American health care system and the flaws of insurance-based reform plans I have seen.

Private Sector v. Public Sector

CNN is reporting that the IRS won't be ready to accept tax returns from those claiming itemized deductions for several weeks:

The IRS said that it needs until mid- to late-February to reprogram its processing systems because Congress acted so late this year cleaning up the tax code. The bill, which includes deductions for state and local sales taxes, college tuition and teacher expenses, wasn't signed into law until Dec. 17.

Of course, the IRS isn't the only one who has to deal with last minute changes in the tax code.  Private tax preparation companies like H&R Block and Turbo Tax need to have their products up to date to reflect current law also.  Don't worry, though, these guys have you covered:

Meanwhile, Turbo Tax said its customers can e-file with the company as early as Jan. 6, and it will hold onto the filings until the IRS is ready to process them.

It's unfair to overgeneralize about the efficiency of the private and the public sector from a single incident, of course.  There are some incredibly effective government operations, like the Marine Corps, that haven't, probably couldn't, and perhaps shouldn't) be duplicated by the private sector on a similar scale.  It would be equally foolish, though, to dismiss out-of-hand the idea that some government functions could be improved by permitting private firms to handle some public business, even if they are just contracted to manage the internal operations of a public agency.

Take the IRS.  Employers report data on wages and withholding to the IRS, lenders report data on qualified interest payments, and so on.  All of those reports are indexed by Social Security Numbers.  Surely, a large, but fairly simple database could collect the various pieces of reported data for Social Security Number, cross-reference them, and automate most of the tax return preparation and processing.  Individuals could then submit additional data, on charitable contributions or contributions to tax-deferred accounts, electronically, updating their tax file as they went.

Private companies do this sort of thing all of the time.  Think of the electronic banking features available at even modestly sized financial institutions.  Account balances are recorded, debits processed, deposits credited, interest computed, transfers recorded, fees assessed,and so on and so on---and all of it visible to customers through online interfaces that essentially update in real time.  The IRS has to processes a finite set of similar financial transactions for each tax-payer only once a year, and it has nothing comparable to offer the public.  It seems reasonably obvious that part of the difference is that banks are private organizations operating in a very competitive marketplace in which customers and potential customers place a premium on accuracy in managing transactions and the availability of information.  Banks that didn't manage their customers' financial transactions reliably or couldn't provide customers with information about their account activity would quickly find themselves out of business.  The IRS has no similar competitive incentives and can, therefore, afford, so to speak, to offer an inefficient and opaque service to the public.

Judicial Vacancies and the Scope of Judicial Power

The Chief Justice of the United States, John Roberts, has released his Year-End Report on the Federal Judiciary.  The Wall Street Journal notes that the report draws attention to the increasingly slow process of confirming federal judges and the problems resulting from unfilled judicial vacancies:

Chief Justice John Roberts decried the partisan warfare that has slowed the appointment of federal judges to a crawl, writing in his year-end report Friday that political gamesmanship on Capitol Hill has left some courts burdened with "extraordinary caseloads."

Chief Justice Roberts places blame for the problem with Congress and the President.

Over many years, however, a persistent problem has developed in the process of filling judicial vacancies. Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes. This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads. I am heartened that the Senate recently filled a number of district and circuit court vacancies, including one in the Eastern District of California, one of the most severely burdened districts. There remains, however, an urgent need for the political branches to find a long-term solution to this recurring problem.

It is easy enough to simply blame congressional obstructionism, which has surely increased along with partisan polarization in Congress over the last four decades.  To the extent that Republicans and Democrats in government become more ideologically divided, it becomes increasingly unlikely that judicial nominees who share the political preferences and legal and constitutional views of the President and members of his part in Congress will be acceptable to members of the opposition party, all other things begin equal.  The pool of qualified judicial nominees will increasingly fall into a zone of gridlock: those who are politically palatable to the president to nominate will not garner support from his opponents in the Senate, who may block any nomination with a modest coalition of 40.


Another part of the problem, though, lies in the judiciary itself.  The federal courts are not simply a "venue where justice is achieved through impartial judgment and dispassionate application of law" as Chief Justice Roberts puts it.  Over the last century or so, and especially in the post-World War II era, the federal judiciary in general and the Supreme Court in particular has become increasingly prominent in contemporary political debates.  On an array of salient issues, ranging from abortion and the death penalty to campaign finance regulation and the handling of suspected terrorists and even the resolution of a contested presidential election, the federal judiciary has more-or-less abandoned its classic posture of deference to legislative authority.  Instead, federal courts have assumed a supervisory role over the political process, dictating the limits of and terms under which policy may be made by the states, Congress, and executive agencies in issue domains in which the courts have opened the premise of constitutional ambiguity or statutory uncertainty.

Over time, this process of creeping judicial oversight and regulation of the political process raises the stakes of judicial appointments.  If federal judges are increasingly prone to venture into politics, by, say, invalidating and enjoining a state constitutional amendment defining marriage (however foolish it may be) or  imbalancing Congress's statutory scheme for regulating the sale of health insurance (whatever the wisdom of that scheme may be), then it is naive to think that political actors in other branches of government would dismantle their prerogatives to exercise maximal oversight of the branch of government that claims to hold an irreversible veto over their policy choices.  The logjam of judicial nominees is not likely to break until judges themselves begin to back away from imposing their views of the law and the Constitution on the political process except where legislative and administrative actions cannot be supported by any reasonable constitutional and legal reasoning.