Sick Pay Pays II

Last week we discussed how the problem of “adverse selection” works to undermine insurance markets, including the market for paid sick leave and unemployment insurance. We noted that the cure is to make insurance mandatory for all – as President Obama did recently, by making paid sick leave mandatory for employees of federal contractors. In developed countries, many forms of insurance are mandatory: disability, unemployment, old age, auto, and health are among the most common.

But even universal insurance faces the “moral hazard” problem. That’s the fact that people, for good and bad, behave differently when they have insurance. Old age insurance (like social security) may diminish your incentive to save for retirement. Auto insurance may facilitate riskier driving. Unemployment insurance may make you less deferential to your boss. And indeed, all else being equal, people with paid sick leave should be expected to miss work more often than people without it.

But the key insight about moral hazard, is that we are still better off with insurance than without it. In other words, while it imposes a cost, that cost is almost invariably exceeded by the benefits. For example, it’s been suggested that unemployment insurance and social security have the combined effect of allowing people to take riskier decisions on where to work – giving a hi-tech start-up a chance, for example, instead of playing it safe with an established firm. In the aggregate, such risk-taking may be a significant boost to a modern economy dependent upon constant innovation.

Auto insurance makes transportation risks more manageable, letting people commute to their job of choice; while also facilitating distribution networks, giving consumers more options. Health insurance correlates with better health, and can reduce costs when people make use of preventive care before a problem gets out of hand and lands them in the ER.

There is no free lunch. Paid sick leave, ultimately, is paid for by employees, reducing their wage compensation, leaving total compensation (including benefits) unchanged. The same is true for paid maternity leave, unemployment insurance and even social security. While an employer nominally pays out for those items, direct employee compensation is reduced by the same amount.

Taken together, benefits like paid sick leave confer a further benefit: they seem to make employment more desirable, such that more people offer themselves on the labor markets. This is seen in higher labor-force participation rates in the working-age population of countries that have liberal labor standards; and in relatively low labor-force participation rates in the US.

Most people want benefits with employment – including caps on hours, unemployment insurance, paid holiday and vacation time, and paid sick and maternity leave. But the market has no route from this equilibrium (their absence) to another equilibrium (their ubiquity), without help from legislation.

The point is not that a central planner knows better than individuals at the point of contract. Rather, we must recognize that there are obstacles that prevent market participants from coming to terms. Well-tailored labor regulations can ameliorate these obstacles, to let the market work its magic.

 

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Sick Pay Pays

On Labor Day, President Obama issued an executive order mandating that federal contractors offer paid sick leave to their employees. Such mandates serve as a back-door means of improving labor standards, albeit for a relatively small number of workers.

Most countries make paid sick leave mandatory for full-time employees. The US is alone among developed countries is not doing so. Outside of a few American cities and states that legally require paid sick leave, most Americans are at the mercy of their employer.

One can fairly ask why we shouldnt simply leave it to the markets. If paid sick leave is really so desirable, one can argue, laborers will ask for it, and employers will offer it. But the problem is that paid sick leave – like paid maternity leave – is a lot like insurance, and beset by the same problems. Chief among them is that insureds typically have better information on their own circumstances than might a would-be insurer. And so when someone asks for insurance, an insurer can reasonably infer that that person – for reasons that may be undetectable – is more likely to be a bad risk than someone taken at random.

That simple fact naturally leads to a feedback loop, whereby insurance gets pricier, making the people who are willing to pay that price even worse risks; which in turn makes insurance pricier still, and so on and so on until the market fails – with many people who want insurance, and firms who would provide it, unable to come to terms.

This dynamic was famously observed in the market for used cars, in a piece entitled “The Market for Lemons,” which won for its author, George Akerlof, the Nobel Prize for economics. People are suspicious about used cars because some defects are readily known to the seller, but are exceedingly difficult for a buyer to ascertain. Because of the buyer’s perception of risk, his offer price drops. As a consequence, sellers of good used cars cant get fair compensation, making them less likely to bring them to market. This dynamic feeds on itself until the market contains only the worst used cars.

You can readily envision the same problem occurring in the market for unemployment insurance, if it werent mandatory. A worker asking for such insurance at the time of hire would flag himself as a bad risk – one who is likely to be let go. He might be passed over for a position simply for asking! Consequentially, we should expect unemployment insurance to get more and more expensive; and as it does, only the most at-risk employees would be willing to pay for it – and so on and so on, as the market fails.

This same problem befalls virtually every form of insurance – including disability, old age, and health. The cure is to make insurance mandatory, so that people cant “self-select” into or out of insurance. Insurers are then better able to estimate the risks, because they can look at the population as a whole.

Once you solve the “adverse-selection” problem (also known as the “asymmetrical information” problem), you run into the next big issue in insurance markets: moral hazard, which we’ll take up when the Field Guide returns next week.

 

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Stupid Originalist Tricks

Why should liberals expend energy bashing conservatives – when conservatives do the job so much better? This week, the Field Guide takes aim at “originalism,” to again demonstrate that conservatism, at its roots, has no principles. It is not a political philosophy – it’s just a bunch of crap packed together by historical accident, and held together through a firm commitment to not thinking it to death.

Originalism, nominally, holds that the US Constitution should be interpreted the way the people who wrote it and-or ratified it would have interpreted it. Take the 14th amendment’s birthright citizenship clause:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Hard to imagine how anyone who ever complained about judicial activism could suggest that the 14th amendment means anything but what it says: if you are born in the US, you are a US citizen. But it hasnt prevented conservatives from claiming that the US-born children of illegal aliens are exempt from the 14th amendment’s plain meaning.

Their argument seizes on the “subject to the jurisdiction thereof” requirement, somehow asserting that illegal aliens are not subject to US jurisdiction. Anyone who knows a little bit about law should know what the consequence of that would be. It would mean that illegal aliens could not be tried for any crime, nor compelled to appear for civil disputes either. They would have the same immunity as do diplomats (the actual, intended targets of the jurisdiction requirement), who can be expelled from the country, but cannot be brought to court to answer for their misdeeds. If that sounds crazy, wait – there’s more.

At the time of the 14th amendment’s ratification, the US had never had an illegal alien. The borders were open, and had been since colonial times. Anyone could emigrate to the US – and, under the common law, their children automatically became citizens. How could the writers and ratifiers of the 14th amendment possibly have intended an exception for a class of people that didnt exist!?

Moving on to the next stupid originalist trick: If you saw the GOP debate, you may have caught Marco Rubio advancing the loopiest anti-abortion argument to date. Per Rubio, the 5th amendment’s due process clause,

No person shall… be deprived of life, liberty, or property, without due process of law….

applies to fetuses and embryos. And so we dont need state or federal anti-abortion statutes – abortion is already illegal under the US Constitution – we just need five justices to say so.

We happen to know that Rubio is an originalist, because after the Supreme Court’s decision in Obergefell, (legalizing gay marriage nationwide), Rubio said,

It must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.

So did the 5th amendment, “as written and originally understood”, really include fetuses and embryos as “persons” – and outlaw abortion from way back in 1791?

To answer that question, it helps to know that abortion was legal in all 13 states at the time the Bill of Rights was adopted – as it had been in all 13 colonies previously – as it had been for several hundred years under the common law. And so Rubio will have to find some other pretext for his political beliefs. Or he can simply abandon originalism, and interpret the Constitution according to some other style. We at the Field Guide are betting that he does neither – self-contradiction, after-all, is the conservative way.

 

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A Good Deal with Iran

Last week, the Field Guide took on the critics of the Iran deal. This week we get further into the deal’s specifics, showing why it’s by far the best option for the US and world community, in its effort to head off Iran’s development of a nuclear weapon.

Nuclear weapons can be fueled by plutonium or uranium. The Iran deal, known formally as the Joint Comprehensive Plan of Action (JCPOA), tackles Iran’s ability to use either material as a basis for a weapon.

Plutonium does not occur in nature – it must be produced. Production requires a specific type of nuclear reactor. Iran has such a reactor at Arak. However under JCPOA, Iran will modify that facility to minimize plutonium production. The International Atomic Energy Agency (IAEA) will participate in Arak’s redesign and reconstruction, and the entire site will be subject to constant IAEA surveillance – before, during and after.

Uranium, by comparison, is relatively plentiful in nature. But for uranium to be used in a nuclear weapon, it must first be “enriched.” Uranium enrichment is a complex process requiring, among other things, the use of sophisticated centrifuges. JCPOA controls both the quantity and quality of Iran’s centrifuges, while also placing hard and fast limits on the quantity and quality of enriched uranium that Iran can possess. The reductions in Iran’s nuclear infrastructure are dramatic. Iran’s operational basic centrifuges will be reduced by more than two-thirds. All of their advanced centrifuges will be shut down. Iran’s stockpile of enriched uranium will be reduced by 98%. Relevant sites will be subject to constant IAEA monitoring. Iran’s release from sanctions is contingent on the IAEA’s verification of compliance.

JCPOA’s strictures are tough enough to have won the endorsement of many nuclear scientists. Other commentators suggest that Iran’s considerable concessions are without precedent for a country that was not defeated militarily. Abroad, there is no real debate on the virtues of JCPOA – the other parties (China, France, Russia, UK, Germany) are poised to move ahead. So why, then, does the US Congress appear so divided? The main reason is the influence of pro-Israel lobbying groups. But this only begs the question: why is Israel opposed to the deal, particularly if several leaders within Israel have warned that Iran will shortly be able to obtain nuclear weapons under the existing sanctions regime, in the absence of JCPOA?

Israel has more skin in this game than any other player, and so their trepidation must be taken seriously. As detailed in an insightful article in the Atlantic, Israel is faced with two unattractive and unavoidable outcomes. Under sanctions alone, Iran will remain relatively impoverished, but will obtain a nuclear weapon, and more likely sooner than later. Under the deal just struck, Iran will grow wealthier, but is much less likely to obtain a nuclear weapon. As the article puts it, “Israel either has an Iran with nukes, or an Iran that is powerful regionally in every other way.”

Our best guess is that Israel, wisely or not, wants to have it both ways. They want Iran to be kept in financial straits under sanctions. And should Iran come too close to developing a weapon, Israel would use a military strike to keep them in check, as they did in 1981, when the Israeli air force destroyed Iraq’s nuclear reactor at Osirak.

There is an even more cynical interpretation. Israel remains the beneficiary of three billion dollars of US military aid per year. Having made peace with Egypt and Jordan, and with Syria a shambles, that aid is increasingly difficult to justify. Since Iran is now Israel’s only significant regional threat, it could be that elements within Israel see a warming of relations between the US and Iran as undercutting the remaining rationale for the flow of all that cash.

Taking the broadest of views, over the long haul, the US and Iran are not adversaries across every dimension. JCPOA is not a zero-sum game: as trade between Iran and the US and its allies increases, all sides will grow richer. Over time, close trade relations can become a basis for better relations in all areas, and can grow into a bulwark against aggression. As the Field Guide has frequently noted, trade and affluence are democracy’s best foot-soldiers. As Iranians grow wealthier, they will come to demand political power commensurate with their material well-being. This is the dynamic that secured democracy across the globe, from France, England and the US, to Singapore, South Korea and Taiwan. In the very long term, the wealthier Iran becomes, the more likely that its interests, and those of the West, will align.

 

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The Iran Deal and its Malcontents

The deal with Iran will very likely be a fundamental part of US foreign policy and world geopolitics for many years to come. And it seems to be a pretty good deal. The point of departure for any analysis is that sanctions alone would never have stopped Iran from building a bomb. Sanctions didnt stop North Korea, who only built their bomb after Bush Duh killed the Agreed Framework, which was secured by Clinton, in favor of a sanctions-only approach. This is why trading sanctions for inspections is the right move. The overarching US goal was to make that trade on the best possible terms. It’s a big improvement over the status quo.

Opponents to the deal rarely offer specifics on what they believe to be lacking. The naked assertion that “negotiators could have done better” could have been posited in the aftermath of any deal. And it’s worth noting that almost no one who makes that criticism goes on to explain why they think a better deal could have been had. Many supporters of the deal have expressed surprise that Iran conceded so much.

Critics fall into a few camps. By far the largest entirely avoid specifics – they oppose the deal because they oppose it, and we might dismiss their viewpoint for its arationality. Next are the miscreants who decry a 24-day waiting period for inspections. There is no such waiting period – this misrepresentation has been likened to the “death panel” lie that the right peddled in its attempt to discredit Obamacare.

One small group of critics suggest that the US should have first strengthened sanctions, and then negotiated a better deal from a stronger position. It’s an interesting point, but unconvincing. The US depends on many nations to partner with on sanctions to make them effective – doing so takes a very long time, and it’s not clear that the effort would have succeeded. Meanwhile, Iran would have continued work on its nuclear program.

There’s a very small group that takes issue with some of the deal’s specifics. Senator Lindsay Graham, for example, has complained that the number of centrifuges should have been reduced more. However the reduction that was obtained pushes out Iran’s nuclear timetable (to obtain a critical mass of fissile uranium) from two months to one year. Senator Chuck Schumer complains that the deal only runs for ten years – without explaining why he thinks that the sanctions regime would have prevented Iran from obtaining a nuclear weapon within ten years. Many, including the present Israeli Prime Minister, have asserted that under the status quo, Iran would develop a weapon in just one or two years.

A basis for concern seemed to emerge when the AP reported a secret side agreement to the larger deal, called “separate arrangement II” or sometimes “the Parchin agreement.” Ostensibly, it’s a draft of an agreement between the UN’s International Atomic Energy Agency (IAEA) and Iran, granting to Iran the authority to conduct its own inspections of certain military sites. Upon closer scrutiny, the AP story seems to have been written to generate a maximum of controversy over a largely trivial set of facts.

The agreement purports to cover only a one-time inspection of a very minor site. The inspection has to be signed off on by the IAEA for Iran to get relief from sanctions. The stakes on this inspection are very low for the US, but very high for Iran. The head of the IAEA came out with a public statement dismissing the AP story as a misrepresentation, and asserting that the inspections regimes it has secured with Iran are consistent with long-established IAEA practices. In sum, the AP story is a red herring, calculated to inspire fear in people who dont have the facts.

Meanwhile, supporters of the Iran deal include 36 top US military leaders, who state bluntly in their open letter, “There is no better option to prevent an Iranian nuclear weapon”; and 29 scientists, including six Nobel laureates, who attest to the deal’s efficacy; as well as five other heads of state, who were partners of the US to the negotiations, and are parties to the deal.

The Iran deal is a huge diplomatic coup for the Obama administration, and has been enthusiastically embraced in other countries as the West’s best opportunity to avoid war, and as a vast improvement over the status quo. Coverage of the deal continues next week, when the Field Guide takes up its substance, politics and geopolitics.

 

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Refs:

24-day waiting period debunked:

http://www.vox.com/2015/8/19/9176415/iran-deal-inspections-24-days

AP story on the Parchin side agreement debunked:

http://www.vox.com/2015/8/20/9182185/ap-iran-inspections-parchin

http://news.yahoo.com/iaea-says-access-irans-parchin-military-meets-demands-065804943.html

https://www.iaea.org/press/?p=5108

critiquing the critics:

http://www.theatlantic.com/international/archive/2015/07/iran-nuclear-deal-obama/398450/

http://www.sun-sentinel.com/opinion/editorials/fl-editorial-iran-gs0812-20150811-story.html

the ays:

https://www.washingtonpost.com/world/national-security/retired-generals-and-admirals-back-iran-nuclear-deal/2015/08/11/bd26f6ae-4045-11e5-bfe3-ff1d8549bfd2_story.html

http://www.nytimes.com/2015/08/09/world/29-us-scientists-praise-iran-nuclear-deal-in-letter-to-obama.html

the AP story:

http://hosted.ap.org/dynamic/stories/I/IRAN_NUCLEAR?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2015-08-19-13-06-05

spectacular analysis:

http://www.theatlantic.com/international/archive/2015/08/iran-deal-munich-nazis/401402/

also:

https://en.wikipedia.org/wiki/Iran_nuclear_deal_framework

 

Field Theory

It’s an unusual election cycle. Hillary Clinton has the Democratic field to herself, and is effectively unchallenged, as if she were an incumbent seeking reelection. She faces less competition for her party’s nomination than did incumbent President Jimmy Carter in 1980 or Gerald Ford in 1976 – or two-term sitting Vice President Al Gore in 2000. While there are several theories bandied about to explain why no other strong candidates have emerged, the most persuasive is the perception that Hillary Clinton cannot be beaten, leading the nation’s most talented and ambitious Democrats to the same conclusion: stay out of her way.

This observation is not intended to diminish the candidacy of Bernie Sanders or Lincoln Chafee, both of whom have been good public servants, and hold generally sound policy positions. Sanders’ weakness as a candidate is much more about his style than his substance. In a better world, his positions would frame the debate for numerous socio-economic issues, particularly in an era of extreme wealth and income inequality.

On the Republican side, the field is the largest seen by either party in modern history, with 17 candidates, each of whom with a better chance to win the nomination than Sanders or Chafee (or Jim Webb). In a healthy democracy of more than 300 million people, it should neither be rare nor surprising to have 20 individuals pursue the presidency in a given election cycle. In fact, one might regard the state of the Republican field as a rarely-attained ideal.

But politicians are (almost) never so smart or dumb as we imagine them to be, particularly where their self-interest is implicated. Thus it is that the extremely small size of the DNC field and the unusually large size of the GOP field can each be explained by a single theory. Just as Hillary Clinton is so strong a candidate that she’s scared every significant possible challenger from entering, the GOP field is so dismally weak that even George Pataki thinks he has a shot.

To be clear, the Field Guide would take the large size of the GOP field as a kind of opinion poll. Early front-runners Jeb Bush, Rand Paul and Ted Cruz were not intimidating enough to keep others out of the race. Each time another Republican enters the field, he tacitly opines that the candidates already in the race are beatable. The persistence of Donald Trump’s candidacy underscores this point. Far from being drummed from the race by the seasoned politicians against whom he’s contending, Trump handily won the first debate, and now has more than double the support of the strongest of his rivals!

All of this bodes well for liberals. As strong as Hillary Clinton seems to experienced DNC politicians, the GOP field seems remarkably weak to Republicans. With an electoral map that enormously advantages Democrats, liberals have every reason to be optimistic.

 

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Liberty, Democracy and Gay Marriage

Dissenting from the Supreme Court’s recent decision legalizing gay marriage nationwide, Chief Justice John Roberts wrote,

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

In his own separate dissent, Justice Antonin Scalia wrote,

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

On the other side of the debate, a five-justice majority held that a person’s right to marry is so fundamental that it cannot be constrained by democratic processes. Justice Anthony Kennedy sums up the relationship between liberty and democracy embodied in the nation’s charter:

…[T]he Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.

As is often the case, both the Court’s prevailing liberals and its dissenting conservatives lay claim to the mantle of the nation’s founders. But which of them has it right?

Before 1776 Americans were British subjects, and regarded themselves as fortunate, compared to French and Spanish subjects, because of Britain’s longstanding liberal traditions. America’s pilgrims brought the principles embodied in the Magna Carta with them to the new world, including an expansive notion of individual liberty, safeguarded significantly by an independent judiciary.

Compared to liberty, democracy in 18th century Europe was relatively unknown. Scalia’s contention – that self-governance was 18th century America’s most valued liberty – isnt merely at odds with history, but with the plain language of the Declaration of Independence as well. Though the word “right” occurs ten times in the Declaration, it is never associated with the right to vote. The rights of rebellion and self-governance are not characterized as “unalienable” absolutes, but are conditioned upon a government’s failure to secure a people’s absolute rights to “life, liberty and the pursuit of happiness.” The term “democracy” is nowhere to be found.

The American Revolution was not born of a naked desire for self-governance. The text of the Declaration of Independence explains why the nation’s founders were driven to “dissolve the political bands” holding them to Great Britain: the king was running roughshod over their liberties. The bulk of the Declaration is a litany of complaints against an illiberal monarch.

Once one appreciates that the American Revolution was principally about liberty – that democracy was seized upon afterward as the best means toward that end – the particular form of the US Constitution makes perfect sense. Fearing that liberalism might be lost in the transition from monarchy to republic, the Constitution painstakingly limits democracy.

The original Constitution only granted suffrage to white men with property. The only government body they were permitted to elect directly was the House of Representatives. Senators were appointed by state governments. Americans still dont vote directly for the president, but for an intermediary body (the electoral college). And judges are still appointed by the president to lifelong terms.

To constrain democracy further, a Bill of Rights was appended to the Constitution. After amendments one through eight – in which 25 distinct rights are set above and beyond the reach of the majority’s will – the ninth amendment follows as a blank check for liberty for future generations:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Thus one cannot infer from the absence of a given right from the Constitution (like marriage – or gay marriage) that that right does not exist.

American liberty was not born in the American Revolution – it was carried over from a much older English liberal tradition that predates American democracy by several centuries. Democracy was a grand experiment, subject to considerable and manifold limits, to ensure that the prize, liberalism, would endure under a new form of government.

The US Constitution most acutely restricts the power and reach of the majority where it concerns our most basic rights – to prevent a majority from becoming a tyrant itself. Contrary to Roberts’ assertions, for centuries before the American Revolution, and centuries since, courts have stood as a bulwark against the day’s oppressors, upholding fundamental rights against usurpations by kings and majorities alike.

Conservative complaints that the Court’s decision is anti-democratic are accurate, but misplaced. Democracy was born after the American Revolution as a means toward liberalism – not as an end in its own right. Liberty is the older tradition, which democracy was established to maintain and defend – not undermine. When the two are at loggerheads, democracy must yield.

 

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Editor’s note: The Field Guide is on summer vacay – we’ll be back with new material in mid-August.

Gay Marriage: Liberalism v. Democracy

Last summer, the Field Guide ran a three-part series on the tension between liberalism and democracy, particularly on how it plays out in developing countries, informing US foreign policy. But to see that tension, Americans need look no further than their own founding document.

The Bill of Rights, above all, is a list of what a majority cannot do through ordinary democratic processes. It is a bulwark of liberalism against the threat posed by democracy. The US Constitution, with its limited powers, cumbersome amendment process, and lifetime tenure for federal judges, is a grand scheme to guarantee the blessings of liberalism against the corrosive force of democracy. In American governance, liberty and democracy are not equal partners – liberty comes first.

The struggle between liberalism and democracy is so acute that hardly a Supreme Court session passes without conflict. The 2015 session included one of the most remarkable such cases in US history, Obergefell v. Hodges, through which the Court legalized gay marriage nationwide: a victory for liberalism, at the expense of democracy.

In a characteristically feeble opinion by Anthony Kennedy, five justices in the majority take a stand for liberalism. Marriage has long been regarded by the Court as a “fundamental right.” State restrictions on marriage have been struck down repeatedly over the past 48 years, including bans on inter-racial marriage, and limits on prisoner’s ability to marry. The majority’s decision extended this “fundamental right” to gay unions also, nullifying state governments’ bans on gay marriage.

In dissent, quite predictably, three conservatives pen disingenuous paeans to democracy – one each by Justices Roberts, Allito and Scalia. Scalia loves democracy so much, he once ordered Florida election officials to stop counting ballots, lest they come to the wrong result. The three of them, with Clarence Thomas, are such proponents of democracy, that just two terms ago they gutted the Voting Rights Act – freeing up southern states to go back to excluding minorities from the ballot box. They’ve gleefully squelched a democracy’s efforts to regulate campaign finance, and struck down gun-control legislation in American cities that have among the highest murder rates in the world.

But it’s far too easy to undercut the conservative dissents by invoking those Justices own considerable anti-democratic decisions of the past. They make some compelling points, which dont just merit an answer – they need to be soundly trounced, so that all may see the error of their ways.

While it’s unfortunate that the Court’s Opinion – now the law of the land – wasnt stronger, this bold stroke is worth repeating:

The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities….”

And even more eloquently:

[F]undamental rights may not be submitted to a vote; they depend on the outcome of no elections.

In other words, the specific complaint of the conservatives in dissent – that democratic processes were not respected; that states should be left to settle the gay marriage question as they see fit – has no place within the framework of the US Constitution, which exists significantly to exclude questions of fundamental rights from the democratic process. Majorities have wide latitude to make laws and set policy – but they cannot encroach on our most basic freedoms. And so when democracy and liberalism clash on this front, democracy must yield.

To understand why democracy was made to ride in the backseat behind liberalism, you have to go back to the birthplace of American democracy: the American Revolution.

We’ll meet you there next week.

 

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Race, Religion and Madness

There is a double-standard at play, with respect to our understanding of the Charleston killer. Though his act and his stated motivation conforms squarely within the legal definition of terrorism, many do not regard him as a terrorist, but as a common criminal – yet another well-armed, mentally-ill American. If, for example, he had been an Islamist, he would have been unequivocally identified as a terrorist, as were the conspirators behind the Boston Marathon and Charlie Hebdo attacks.

Consider this partial definition of terrorism, from the FBI’s website:

“Domestic terrorism” means activities… intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping.

The definition calls for a specific act and an accompanying mental element. There’s no debate on the act. As for the intent, the accused put out a lengthy statement, declaring his racial and political beliefs and goals. And thus there can be no serious question as to whether what occurred in Charleston fits the legal definition of terrorism. It does, and obviously so.

And so we come to the curious reaction of many – including FBI director James Comey – who would not regard the accused as a terrorist, but as a mere criminal, and quite possibly insane. What’s happened is that white supremacy, as a political movement, has become so alien to mainstream America, that it’s no longer comprehensible as a cogent political philosophy.

Those who commit acts of violence in furtherance of white supremacy are not afforded the dignity of being labeled political activists. Rather, they are belittled as kooks and-or criminals. We make no attempt to meet or comprehend their arguments – we summarily dismiss them as the product of ignorance, at best, if not madness. This is progress.

In the first half of the 20th century, the white supremacy movement was a basic part of the American political landscape. One-time Klan members included President Truman, Supreme Court Justice Hugo Black, and Senator Robert Byrd. Today, its adherents no longer seem like political actors, but as crazies, who might as well be wearing tinfoil hats in place of white hoods. This, again, is progress.

By comparison, they who commit indistinguishably insane acts under the auspices of religion are called “extremists” or “radicals.” Instead of likewise dismissing them as criminals and crazies, Islamist terrorists are dignified as political activists. While white supremacy has been dispatched to the dustbin of bad ideas, killing in furtherance of religion still has a recognizable logic, such that its advocates are not immediately identified as insane, criminally or otherwise.

What constitutes sanity or madness in a given time and place is informed by cultural and social norms, and even economics, and always has been. Michel Foucault filled three hundred pages adding window dressing to this simple observation, in his tedious classic Madness and Civilization. That we might treat the Charleston shooter as a mere criminal, or a madman, is an improvement. One hopes that we, as a society, will come to see violence committed in the name of religion to be no less mad.

 

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Refs:

https://www.fbi.gov/about-us/investigate/terrorism/terrorism-definition

http://thehill.com/blogs/blog-briefing-room/news/245649-fbi-head-wont-call-charleston-shooting-a-terrorist-act

http://www.thedailybeast.com/articles/2015/06/22/white-house-won-t-back-fbi-chief-on-charleston-terror.html

http://www.washingtonpost.com/posteverything/wp/2015/06/18/call-the-charleston-church-shooting-what-it-is-terrorism/

http://www.thedailybeast.com/articles/2015/06/18/let-s-call-charleston-shooting-what-it-was-a-terrorist-attack.html

https://en.wikipedia.org/wiki/Ku_Klux_Klan_members_in_United_States_politics#Edward_L._Jackson

Liberty v. Security

Centuries ago, an English jurist opined that it was better that a few good men be killed on the highways each year, than the rest of us should live in tyranny. Ever has it been thus: increased security, which one acquires by increasing the power of government, comes necessarily at the expense of liberty. It might be possible to eliminate nearly all crime – but to do so, one would have to eradicate almost all liberty.

Just as your plumber and electrician would gladly, for a price, improve your plumbing and lighting, so too would your police force make you safer – and safer – and safer still. When the Obama administration insists that they require certain provisions of the Patriot Act to make Americans safer, we have good reason to believe them. But no matter the intentions of these well-meaning professionals, our objective isnt to maximize our plumbing, lighting or security without respect to cost. Beyond a certain point, a society will prefer a certain amount of crime – rather than having a police camera at every intersection and in every living room, and-or the power to monitor all electronic communications.

While the natural evolution of government is, inexorably, to grow ever larger, the US now has a rare opportunity to go against the natural order of things, and to shrink the size of its security apparatus. At a minimum, the expiry of significant portions of the Patriot Act should be taken as an occasion to reevaluate the nation’s security priorities, particularly on how they impact privacy and the power and intrusiveness of government.

Of course one must avoid the conceptual error of the bureaucrats whose deregulation of the financial services sector unwittingly paved the way for the 2008 financial crisis. One does not want to be the man who throws away his umbrella because he hasnt felt a raindrop in ages – failing to realize that the umbrella had been keeping him dry all along. Americans have enjoyed relative quiet since the 1993 and 2001 World Trade Center attacks, and the 1995 Oklahoma City bombing, without experiencing domestic terrorism of that magnitude. By reducing the power of the police, we necessarily make terrorism, large scale and small, that much more likely.

Walt Whitman wrote that great poets needs great audiences. Analogously, great leaders need a great electorate. And it is unfortunate that no one in Congress trusts American voters enough to accurately frame the debate over extending the expiring portions of the Patriot Act. It is indeed a matter of sacrificing liberty for security, or vice-versa. The problem in part is one of trust – that the electorate is not expected to react reasonably to an act of terrorism – or three or six – much less accept it as a fair price to pay for increased liberty. Politicians like Rand Paul should stop equivocating, and make that case, because that indeed is the tradeoff we as a society must inevitably make.

Not everyone will agree on the same balance to be struck between liberty and security, but it is the sort of issue that a democracy is ideally suited to hash out. We look forward to that debate, should our elected officials muster the courage for it.

 

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Editor’s note: the Field Guide is off for an early-summer vacay. We’ll be back with new material in mid-June.