Archives: 10/2009

More on ‘Hate Crimes’

Law professors James Jacobs and Kimberly Potter make an interesting point:

Laws do not spring forth from a groundswell of public opinion, but rather are the product of lobbying by interested (“interest”) groups that must mobilize support among politicians.  The hate crime laws are passed because of the lobbying efforts of organizations that advocate on behalf of blacks, Jews, gays, and lesbians, a few other ethnic and nationality groups, and in some cases, women. …Regardless of what it accomplishes, the passage of legislation boosts morale and the status of the organizations and their constituencies.

That’s from their excellent book on the subject, Hate Crimes: Criminal Law and Identity Politics (Oxford University Press, 1998), p. 66. 

If liberals write laws to “send messages,” can social conservatives do the same thing if they control the legislative assembly?  Perhaps enact a criminal law against, say, adultery.  Note that the point is not necessarily that the law be actually enforced or have any impact as far as reducing adultery in the jurisdiction.  If the point is simply to “send a message,” liberals are going to be hard-pressed to lodge objections to conservative  symbolic lawmaking.

For more on hate crimes, go here and here.

The Myth of ‘Market Failure’ in Health Care

One argument in favor of a government overhaul of the health care system is that the free market had its chance, and failed when it comes to providing the best possible care.  But as David Goldhill discovered while researching for the September cover article in The Atlantic, the United States has anything but a free-market health care system.

He explains his findings below:

For real market-based reform, see Cato’s new Policy Analysis, “Yes, Mr. President: A Free Market Can Fix Health Care.

The New Republic and Guilt by Association

I watched with interest the J Street debate between Matt Yglesias and The New Republic’s Jonathan Chait over the question “what it means to be pro-Israel.”  Matt’s a very efficient thinker, and Chait’s a particularly sharp debater.  I witnessed him slug it out at length in a debate with David Boaz a while back, not something I’d like to do.

Chait made a straightforward argument: to be pro-Israel, someone has to accept two premises.  First, one has to believe that historically, Israel is the more sympathetic party in the Middle East.  Second, one has to believe that the U.S. should not be even-handed in the Middle East, but rather should be on Israel’s side.

But what was most interesting about his argument was his accusation of guilt by association against J Street.  It was a problem, Chait argued, that J Street had been embraced by people who did not meet his definition of pro-Israel.  Chait rang the alarum that “The American Conservative magazine, which was founded by Pat Buchanan, …has been saying nice things about J Street.”  In addition, “the famous Walt and Mearsheimer have been saying extremely nice things about J Street — embracing J Street.”

This is a pretty straightforward guilt-by-association argument: The American Conservative doesn’t meet Chait’s definition of pro-Israel, therefore, for that magazine to praise J Street tarnishes its pro-Israel bona fides.  Same story with John Mearsheimer and Steve Walt.

First, the person at TAC who’s been praising J Street has a name: Scott McConnell.  Scott has a PhD in history from Columbia, and is the current editor-at-large (previously the editor) of the magazine.  I don’t know in great detail Scott’s views on Israel, but I think it’s fair to say that he thinks it’s very important for America, for Israel, and for the Palestinians to get a two-state solution set up, and sooner rather than later.  He also believes, I think, that in order for this to happen, Washington will have to put pressure on both Israel and the Palestinians to give up things they don’t want to give up.  The same view is held by Mearsheimer and Walt.  So the allegedly guilty parties’ view is certainly less zero-sum than Chait’s (would Chait characterize himself as “anti-Palestinian,” I wonder?), maybe even positive-sum.  But I don’t think that receiving praise from a person with such views on the matter necessarily should serve to taint J Street’s pro-Israel bona fides.

But beyond this, is guilt-by-association really something that Chait wants to engage in at all?  For instance, Chait’s boss at The New Republic, Martin Peretz, wrote last March that Mexican people suffer from “congenital corruption” and possess “near-tropical work habits.”  (The piece is no longer available on TNR‘swebsite, but the passage in question can be found here.)  Should we be asking what Chait’s views on Mexicans are, since he is a writer at TNR under Mr. Peretz?  When Peretz suggested two days ago that President Obama’s views on foreign policy are infused with an ideological narrative, and “Obama’s narrative is assumedly third world, maybe just by dint of his skin complexion,” should we be asking Chait to clarify his views on African-Americans?  Finally, although I’m no expert on Mr. Peretz’s views on Arab people, those who’ve paid closer attention make a good case that he has said some reasonably provocative things about them, as well.  Should Chait be brought in for questioning on these matters?

If people only wrote for magazines every word of which they agreed with, few people would write for magazines.  Even if people took the much more modest step of steering clear of writing for magazines that regularly publish offensive material like the above, consumers of magazines like The New Republic would suffer.  But the fact that Chait doesn’t feel the need to distance himself from Mr. Peretz’s various racial foibles ought to raise either questions about his views on Mexicans, blacks, and Arabs, or else questions about his standing to level charges of guilt by association.

Wisdom of the Anti-Federalists

Everybody reads the Federalist Papers. (I hope!) Written by Alexander Hamilton, James Madison, and John Jay, they are generally regarded as the most profound collection of political theory ever written in America. And since they deeply inform our understanding of our fundamental law, they are essential to understanding the American version of limited, constitutional government. But the ratification of the Constitution was a close thing in 1787–89, and the Anti-Federalists (who said that actually they were the federalists, while their opponents were nationalists) also had some insightful things to say about liberty and limited government.

Now the invaluable Liberty Fund has made available a collection of anti-federalist writings, The Anti-Federalist Writings of the Melancton Smith Circle. The publisher says:

The Anti-Federalist Writings of the Melancton Smith Circle makes available for the first time a one-volume collection of Anti-Federalist writings that are commensurate in scope, significance, political brilliance, and depth with those in The Federalist. Included in this volume as an appendix is a computational and contextual analysis that addresses the question of the authorship of two of the most well-known pseudonymous Anti-Federalist writings, namely, Essays of a Federal Farmer and Essays of Brutus. Also included are the records of Smith’s important speeches at the New York Ratifying Convention, some shorter writings of Smith’s from the ratification debate, and a set of private letters Smith wrote on constitutional subjects at the time of the ratification struggle.

One reason it’s important to study the ideas of the Anti-Federalists was offered by Jeffrey Rogers Hummel in The Encyclopedia of Libertarianism:

Most of the Amendments comprising the Bill of Rights restricted the national government’s direct authority over its citizens. Only one section dealt with the relationship between the state and central governments; the 10th Amendment “reserved” to the states or the people all powers not “delegated to the United States by the Constitution.” Nothing better illustrates that, whereas the Anti-Federalists had lost on the ratification issue, they had won on the question of how the Constitution would operate. The Constitution had not established a consolidated national system of government as most Federalists had at first intended, but a truly federal system, which is what the Anti-Federalists had wanted. In simpler terms, the Federalists got their Constitution, but the Anti-Federalists determined how it would be interpreted.

In a world where it’s easy to find a “Dirty Dozen” of Supreme Court decisions that have expanded government and eroded freedom, that may be hard to believe. But it’s important to read both halves of early American debate over the Constitution in order to understand the foundations of our system.

The Death of Private Investment

The Bureau of Economic Analysis released third-quarter gross domestic product numbers yesterday, and overall real growth at 3.5 percent was pretty good.

But examining the components of GDP reveals a more disturbing picture. While consumption, exports, and the government sector were up, private investment has fallen through the floor.

Figure 1 reveals a dramatic collapse of private investment over the last two years. In nominal dollars, private investment in 2009 has only been at about the same level as the bottom of the last recession eight years ago (BEA Table 1.1.5).

Figure 2 has the same data in real 2005 dollars (BEA Table 1.1.6). It shows that private investment is stuck in a rut at about 17 percent below the lowest level reached at the bottom of the last recession.

The third quarter GDP numbers show that the economy is only starting to “recover” because of growing government and expanding consumption, which has been artificially inflated by large government transfers.

Business investment continues to be in a deep recession. Companies are simply not building factories or buying new machines and equipment.

Why not? I suspect that many firms are scared to death of higher taxes, inflation, health care mandates, increased labor regulation, and other profit-killers coming down the road from Washington. That is speculation, but I haven’t heard a better explanation of the death of private investment in America.

Data note: the measure of “government” here is government production as a share of GDP, not total government spending, which includes transfers.

We Should All Pay for Cal Athletics!

You might recall that a  few weeks ago University of California at Berkeley Chancellor Robert Birgeneau co-authored a Washington Post op-ed calling on the federal government to provide direct support – meaning taxpayer dollars – to select public universities. Birgeneau decried decades of “material and progressive disinvestment by states in higher education,” despite, as I pointed out, no such disinvestment actually occurring.

Well now we know where much of the precious investment in Cal was going – to subsidize sports. According to Inside Higher Ed, over just the past few years Berkeley has provided tens-of-millions of dollars in subsidies and loan forgiveness to its sports programs, which are supposed to be self-supporting.

Now, the whole college athletics undertaking is one that deserves lots of scrutiny for its subsidies and excesses. Cal is certainly not alone in this. But for Birgeneau to take to the pages of the Washington Post, cry poverty, and call for the nation’s taxpayers to foot his school’s bills while he quietly pushes millions of dollars to water polo, rugby, golf, and sundry other sports? That takes a lot of gall. Of course, rent-seeking gall is not in short supply when it comes to higher education.

Thankfully, at least this time it looks like the arrogant aggressiveness is going to backfire. Birgeneau is scrambling, and seems doomed to be thrown for a loss.

Putting Private Insurance Out of Business

Over at Think Progress, Matt Yglesias takes me to task for saying that the so-called public option in the House’s health care bill “would all but eliminate private insurance and force millions of Americans into a government-run system.”

Yglesias apparently still buys into the myth that the public option is, well, an option.

For people who receive health insurance through their employers, which is to say the vast majority of the Americans who currently have health insurance, the House bill would change very little. Or, rather, the biggest change would simply be the confidence that if, in the future, you cease to get health insurance from your employer (maybe you’ll lose your job or want to change jobs) that you’ll still be able to get health care. What’s more, of the minority of Americans who would be getting health care through the new “exchange,” the majority will probably sign up for private health insurance and everyone will have the option of doing so. If the government-run public plan is, for whatever reason, vastly more appealing than the private options then it will dominate. But if you believe the government can’t run health care well, there’s no reason to think that will happen. Whatever you think of that, though, the basic fact is that even if the public option does dominate the exchange most people will still have private employer-provided insurance.

That might be true if the new government-run program were going to compete on anything close to a level playing field.  But, because the public option is ultimately supported by the taxpayers, the playing field can never be level.   True, the bill does say that the new program is supposed to be self-sustaining, covering administrative and benefit costs entirely out of premium revenues.  But remember that Medicare Part B was originally supposed to support 50 percent of its costs through premiums.  That has shrunk to the point where premiums pay for less than 25 percent of the program’s cost.

And the government has a myriad of ways to prevent the true cost of the program from showing up in premium prices.  For example, the government-run plan will not have to pay state or federal taxes, and unlike private insurance plans, who can be sued in state courts, the government-run plan could only be sued in federal court.

At the very least, the program carries with it an implicit guarantee against future losses.  Suppose the public option prices its products too low and loses money.  Can you imagine that Congress is simply going to let it go bankrupt, go out of business?  Would a Congress that has bailed out banks and automobile companies because they are “too big to fail” resist subsidizing the government’s insurance plan if it began to lose money?   Even without the actual bailout, such an implicit guarantee has a value. For example, the implicit guarantees behind Fannie Mae and Freddie Mac were estimated to have saved those institutions $6 billion per year.

All of this means that the government-run plan would be significantly cheaper than private insurance, not because it would out-compete private insurance or because it was more efficient, but because it had unfair advantages.  The lower cost means that businesses, in particular, would have every incentive to dump workers from their current health insurance plan into the government plan.  And, if other provisions of the bill make insurance more expensive, as is likely, the incentive for employers to shift workers to the government plan would be even greater.   Estimates suggest that nearly 90 million workers could eventually be forced into the government plan.

As Robert Samuelson, dean of economic columnists, writes in the Washington Post, “a favored public plan would probably doom today’s private insurance.”

Samuelson is right.  There is nothing “optional” about a public option.  And that is just the way the Left wants it.