State of the Union

McArdle’s Guide to Failing Well

In The Up Side of Down: Why Failing Well Is the Key to Success, Megan McArdle, a columnist with Bloomberg View, makes a compelling case that America has failed to find a way to cope with setbacks and upheavals. McArdle draws on business case studies, academic research, and, for perspective, anecdotes from her own life to identify the individual and institutional barriers to bouncing back.

She looks at high school students terrified of taking challenging classes, for fear that a B will scupper their chances at college, the inertia and fear that lead GM to delay their inevitable restructuring, and her own tumultuous attempts to restart a relationship with an old flame rather than admit defeat. In each of these cases, a bad relationship with failure has enormous costs, even before the failure has occurred. If failure is always catastrophic, we’ll try to protect ourselves by taking minimal risk and innovating as little as possible.

But, in Hawaii, she finds a failure success story in the Hawaii’s Opportunity Probation with Enforcement (HOPE) program. HOPE is a parole program that deals out small punishments reliably for every violation of parole. Most parole systems let minor infractions slide—due to negligence or overwork—until there’s a truly egregious problem, and the parolee is sent back to jail, sometimes for years.

The HOPE program gave former prisoners consequences to learn from, but made sure that a parolee could still recover from the initial penalties meted out. The reliability of the system helped parolees confidently anticipate the consequences of their choices. Prisoners randomly assigned to the HOPE program were three times less likely to have their probation revoked as those in the regular program. Jail time and drug use plunged as well; and, although increased oversight was more expensive, the state made the money back by not having to pay the costs of incarcerating these parolees.

But these reforms haven’t caught on in other states. McArdle hypothesizes that these parole reforms remain counterintuitive because of two cognitive biases: an overactive Agent Detection system and the the Just World hypothesis. Agent Detection refers to humans capacity to recognize other agents—creatures that are capable of having goals and pursuing them. It helps us distinguish the results of blind chance or impassive processes like the weather from actions that are the results of other humans’ choices. Pair that with the Just World theory, where most things happen according to some kind of fair plan, and it’s easy to see every instance of failure as the exposure of a secret fault in a rational actor, rather than the result of chance. Read More…

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The Sharing Economy’s Undead Capital, and Its Discontents

Uber targets Lyft drivers in San Francisco. Steve Rhodes /  cc
Uber targets Lyft drivers in San Francisco. Steve Rhodes / cc

Out in the LED-lit, LEED-certified halls of Silicon Valley, the past few years have heard a whisper growing into a roar: the sharing economy is coming, and it will be good. The “sharing economy” is best represented by enterprises such as Airbnb, Uber, and Lyft, internet-based companies that allow everyday people to monetize their own property. Airbnb allows people to rent out rooms or whole houses to strangers without having to go through an expensive rental company. Uber allows smartphone users to summon a variety of vehicles for hire directly without going through the oppressive and outdated taxi system. Lyft takes Uber one step further and allows regular drivers to offer rides for a fee; the Lyft app connects the driver with the passenger, who slips into the front seat and gives his lift a fist-bump.

Last week, R Street’s Daniel Rothschild described these services as bringing to life massive stores of previously “dead capital,” allowing a tremendous democratization of commercial life. He wrote, “If the key economic trend of the nineteenth and twentieth centuries was the growth of economies of scale—factories, big firms, multinationals—we are now seeing the opposite.” The sharing economy combined with the Etsy (an online craft marketplace) economy in his eyes to represent a tremendous turn towards filling the coffers of the common person, rather than the great industrialist. Ever more easily, people can rent out their car to pay for a dinner, a room to pay for a date, a house to pay for their own vacation. In Rothschild’s eyes, corrupt cities bought off by entrenched interests risk stomping out this tremendous innovation, sending the undead capital back into the ground for good and depriving countless people of a chance to make a bit of extra money.

Pascal-Emmanuel Gobry finds himself unsettled by the prospect of an Uberfied economy, however, and suggests that its benefits may not be quite as democratically distributed as usually assumed. He acknowledges that “the efficiency case for “Uberifying” services is obvious. You have lots of productive capital which is unused (your spare bedroom, your car, your idle hours) and which could be used and monetized. Collectively, this makes society richer.” But he then follow, “how does it make society richer? I’m concerned.” Read More…

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Discrimination Is a Distraction from Real Wage Gap Causes

The White House of late has been peddling the claim that women make 77 cents to every man’s dollar for the same work. Elizabeth Plank and Soraya Chemaly from PolicyMic ran with this dubious statistic, creating the hashtag #withoutthewagegapIwould that circled the Internet with statements such as: “without the wage gap I would be able to buy my sister a house.” Phrases of that ilk are meant to elicit an immediate and visceral reaction. Were it not for the wage discrimination, women’s finances would dramatically improve. But would they, really? There has been strong blowback against that statistic, with substantial evidence showing it to be incomplete and applied to incongruous employment situations. Misrepresenting data that affects half of the population, even if well-intentioned, risk framing the problem incorrectly, making the path to a viable solution much steeper.

Christina Hoff Summers of AEI, writing at The Daily Beast and The Huffington Post, crunched the numbers and determined that when relevant variables are controlled for (such as occupation, time in the workplace, and college degree) the pay gap between men and women shrank from 23 cents to between five and seven. It’s not yet clear whether or not discrimination accounts for that last nickel, but it disarms a would-be political platform purporting to give underpaid women their retribution. Matt Yglesias attempts to argue that statistical controls identify discrimination rather than disproving it, but fails to explain how the wage gap is caused by discrimination.

One explanation for the gap is the professions that women choose: women are more likely to take jobs in the caretaking and artistic fields while men are more likely to elect for professions requiring technical expertise. More women are graduating from college, but fewer of those graduates are getting degrees in STEM fields, where the most lucrative jobs are. According to data from the National Center for Educational Statistics, since 1990, the amount of men earning computer science degrees has nearly doubled, while the amount of women earning degrees has stayed the same after a brief bump in the early 2000s. Feminist groups like the National Organization for Women claim that this self-selection is not a woman’s choice at all, but pernicious gender stereotypes predetermining her career path. While there may be little data to support this, but there is significant evidence to support the idea that the main culprit responsible for women’s inability to keep pace with a men’s earning power is the bearing of children. Read More…

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Comcast Swallows Time Warner, With Democrats for Dessert

Comcast’s blockbuster acquisition of Time Warner Cable for a cool $45 billion hit front pages again this week in anticipation of the Wednesday’s Senate Judiciary Committee hearing, which will review antitrust laws regarding services provided by telecommunications companies. Comcast will also soon have to lay its defense before the Federal Communications Commission, which will closely scrutinize the merger’s impact on public consumption.

According to the New York Times, the most crucial concerns should be raised over high-speed Internet service, not cable television. Comcast’s share of the high-speed Internet market is larger than its cable TV market share, as it holds between 40 and 50 percent of the market for high-speed Internet service. Comcast’s rising market dominance has upended net neutrality, a principle that prevents Internet service providers from blocking or privileging content. It has also strong-armed major companies like Netflix to the negotiating table. Netflix struck a deal with Comcast in order to preserve its ability to provide streaming services to its customers, but according to Netflix CEO Reed Hastings, it sets a dangerous precedent. He says in Slate, “If this kind of leverage is effective against Netflix, which is pretty large, imagine the plight of smaller services today and in the future.”

“Crony capitalism” is a politicized term for institutionally supported greed. Comcast has leveraged its considerable financial assets to acquire its biggest competitor, and its political opposition. To make sure that the merger prevails, Comcast has already invested heavily in the Democratic Party, with generous contributions to the Democratic National Committee followed up by extensive lobbying. Executives from Comcast were present at the state dinner welcoming French president Hollande and his wife. Comcast will come out of this merger one of the most powerful telecommunications providers in the country, with the weight to make even otherwise big content providers like Netflix bend their knee. They have the money to play the Washington game and turn the tables in their favor.

Republican Sen. Mike Lee of Utah has already voiced his opinions on the principles involved in a strongly worded op-ed in National Review Online late last week. Without mentioning the merger, Senator Lee more broadly condemned the Obama administration’s participation in “crony capitalism,” claiming it was destroying market competition, harming the poor, and destroying the middle class. The op-ed went on to detail the benefits of true market competition and allowing small businesses to flourish to create job growth. Reaping political benefits from the line of argument will require more than words, however. Lee continued, “a still-distrusted GOP first must end cronyism in our own ranks. The GOP has to close its branch of the Beltway Favor Bank and truly embrace a free-enterprise economy of, by, and for the people.”

For years, corporate greed has been associated with Republicans, but this merger shows that political influence, Democratic or Republican, is for sale to the highest bidder. If the GOP leadership is smart, they’ll at least make the appearance of breaking away from allowing corporations to stack the deck in their favor, and towards championing local businesses that promote sustainable economic growth. The Senate hearing on Wednesday provides an opportunity to send a signal to the private sector that mergers are not insurable through fundraisers, and to take a first step towards winning back the public trust.


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The Flash Boys vs. the Market Machines

Imagine if, every time you tried to place an order on the stock market, someone snooped on your transaction, and bought up the share before you could. Then, when you noticed that the stock was sold out at its original price, that sneaky trader turned up, all smiles, to sell you the shares he happened to have on hand, at a price just pennies above what you would have originally paid.

In his new book, Flash Boys, Michael Lewis builds a case that high frequency traders have been pulling a slightly more complicated version of this trick with no consequences. He’s hawking a solution, too, IEX, a new stock exchange designed by his protagonists and opened in late October of 2013. Lewis’s book introduces the lay reader to a complex topic with all his usual flair and clarity, but the book leaves the reader in suspense; the publication date means the fate of IEX and HFTs aren’t resolved by the end of the book.

By skimming tiny margins off of trades, Lewis argues, high frequency traders (HFTs) have reaped profits in the billions of dollars without providing a real service to investors. What is more, he claims, HFTs have shaped the infrastructure of our markets, so that stock exchanges are now designed to serve the interests of HFTs rather than other traders.

The NASDAQ and other trading floors have abandoned, well, their trading floors in favor of warehouses that look more like a Google server farm, full of HFT machines plugged into the exchanges from just feet away, to minimize waiting times and get the jump on ordinary consumers. IEX tries to restore the old balance, by introducing deliberate delays and simplifying the kinds of orders that can be placed, thus eliminating many of the advantages that HFTs enjoy at other exchanges.

But, as Lewis goes on a media tour that feels as much like an infomercial for IEX as for his book, some critics are raising questions. Felix Salmon thinks Lewis overstates the relevance of HFT to ordinary investors while Mark Levine, a columnist at Bloomberg View, thinks that, in a different Michael Lewis book, these high frequency traders, and the coders who support them would be perfect Lewisian heroes.

In my alternative Michael Lewis story, the smart young whippersnappers build high-frequency trading firms that undercut big banks’ gut-instinct-driven market making with tighter spreads and cheaper trading costs.

The numbers-driven, confusing-the-old-guard HFT teams do bear a certain resemblance to Billy Beane’s team of sabermetricians, who upended baseball in Moneyball. By building models and trusting statistics, the Oakland A’s stole a march on the other major league baseball teams. However, once the A’s tricks caught on, they lost their advantage. They had found a market inefficiency, but others applying their data-driven approach patched it, and left them once again out in the cold.

Lewis thinks that HFT are creating inefficiencies, not fixing them; they’ve been able to hang onto their advantage because no one else in the market understands how they’re being bilked. Lewis finds no shortage of bankers and traders at reputable firms who have been wrong-footed to the tune of hundreds of millions, and, this time, his sympathies are with the old guard. Read More…

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Hobby Lobby vs. the Order of Justice

The Crimson White / Flickr.com
The Crimson White / Flickr.com

Ross Douthat affectionately calls out me and Rod Dreher for applauding Patrick Deneen’s moral-economic brief against Hobby Lobby and other big-box retail chains. He laments that the paleo/crunchy-con mentality tends toward self-marginalization.

Speaking only for myself, I actually agree with Ross.

I’m not Catholic. I’m not a traditionalist (if I were, I’d have a lot of explaining to do regarding that infatuation with Keith Richards). When asked to describe my politics, lately I call myself a good-government Bush 41 conservative. (I maintain that H.W. was inferior to Reagan as a communicator and politician—obviously—but at least as great, and maybe even better, a president. I think his leadership during the meltdown of the Soviet empire was brilliant, and I’d take Dick Darman over Grover Norquist every day of the week. Sue me!)

All that said, I fear I’ve muddied the waters on where I agree with Deneen, and where I part ways with him (as well as, I’m going to presume, Dreher).

I am taken with Deneen’s argument that there is an uninterrupted continuum between the Founding (“progressive” in a Baconian sense) and the present; that classical liberals and modern liberals are both liberals. If there’s anything remotely distinctive about my blogging here and at U.S. News since ’10, I hope it’s been a counterweight to the despair of both moral traditionalists like Deneen and Dreher and market purists-slash-declinists like Kevin Williamson. My gravamen, my conceit, my shtick is this: Government has grown alongside our continental economy. There is not a hydraulic relationship (one goes up, the other goes down) between markets and government. If our capitalists were smart, they’d favor effective social insurance alongside free enterprise. Etc.

While I sympathize, somewhat, with Deneen’s aesthetic recoil from Hobby Lobby and strip malls and big boxes, I don’t get nearly as exercised about such things as he does. In any case, I don’t think there’s much that can be done practically to change it at the level of policymaking. I’m all for traditionalists and orthodox believers bringing their beliefs to bear in the marketplace. To the extent that I used the Hobby Lobby case as a springboard for my last post, it was only tangentially about contraception and religious liberty. My beef is not with religious conservatives participating in modern capitalism; it is with those who conflate modern capitalism and the Constitution with Judeo-Christianity. I have a beef with them because this conflation, I believe, is one of the main drivers of our current antigovernment ferocity, the rampant and irrational fears of inflation, and the counterproductive fear over short-term budget deficits.

I could be wrong about that.

In any case, I don’t think I made this point clear in my post on Hobby Lobby (which, for the record, I had never heard of before it became news).

While I’m at it, I might as well spell out what I think about the particulars of said case. On that score, I’ll associate myself with Yuval Levin’s recent post in NRO’s Corner. He writes that conservatives:

take the arrangement of rights and liberties at the core of the liberal-democratic understanding of society to exist in the service of sustaining the space in which society thrives, rather than of taking society “forward” and away from its roots. There is room in that space for different parts of society to sustain quite different ways of living, and room for people to debate our broader society’s social and political course – which can take different directions at different times in response to different circumstances. Liberty is not the yearned-for endpoint of that story, when we will be free at last from the burdens of the past. Liberty is what exists in that space now, what allows for different people (and groups of people) to pursue different paths and debate different options, and what allows society to address its problems in various ways as they arise. Liberty is not what we’re progressing toward but what we are conserving.

Here, Levin calls to mind Garry Wills’s distinction between the progressive-liberal “order of justice” and the “order of convenience.” To sum up a complex essay, Wills believed it should not be the aim of the state to dispense “raw justice” (Chesterton’s phrase), but rather to facilitate convenience (in the John Calhoun sense of the word—to “convene” or “concur” or bring about social peace). Sounding a lot like Burke and Nisbet, Wills wrote:

For if the state arises out of man’s social instinct, then the state destroys its own roots when it denies free scope to the other forms of social life. The state, when it is made the source of justice, must be equally and instantly available to all citizens; and, in achieving this, in sweeping away the confusion of claims raised by families, economic orders, educational conventions, codes of conduct, natural gradations of privilege, the Liberal leaves society atomized, each man isolated, with all the weight of political power coming unintercepted upon him. The higher forms of organization do not grow out of and strengthen the lower, but counter and erase them. This is what happened under the Order of Justice from the time when Plato pitted the state against the family to the modern breakdown of divided jurisdiction in the centralized state. …

The state, as extending throughout all other levels of social solidarity, must have a certain neutrality towards them all, and as the order-enforcing agent, it must take upon itself a certain negative, punitive function. This neutral and negative aspect of the state will be perverted, and become a positive push—as life-giving, rather than life-preserving—if the other forms of spontaneous activity wither; or if the state officials try to use their power to call up a positive vision of their own; or if politics is considered the all-inclusive area of man’s achievement of excellence. …

A proper order of convenience would be able to accommodate Hobby Lobby’s religious objections. On this matter and others, the Obama administration seeks an order of justice. I hope, in this case, that it loses.

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The Greatest Trick the Devil Ever Played

Every Sunday, the rector of my church appends a brief note of spiritual guidance to the weekly bulletin. Recently, he noted that whereas “the world” encourages individuals to satisfy their desires, the Scriptures teach that we’re often to deny those desires.

That generality—“the world.”

I get it. I appreciate the New Testament connotation of the “world” as distinct from the church and its principles and disciplines. Still, I don’t think it’s quite right. “The world,” depending on where you live and which tradition you may or may not have been raised in, says a lot of different things. American consumerist culture, on the other hand, very definitely does encourage us—entice us, seduce us—to satisfy our desires. That culture is now global and, on balance, I think material human welfare is vastly better for it.

Thinking holistically of the human person, however, consumerism, with its valorization of individual choice and autonomy, is spiritually problematic.

And so it’s a great and terrible irony that the church—I should specify, a large segment of the conservative Protestant church—has invited “the world” into the church. It has embedded its economic imperatives into its doctrines. Indeed, it has elevated the marketplace into a thing affirmed and designed by God himself.

With characteristic brilliance, Patrick Deneen shone a klieg light on this “delicious irony,” with his post on the Hobby Lobby contraception case currently before the Supreme Court. A self-styled “religious corporation” seeks

to push back against the State’s understanding of humans as radically autonomous, individuated, biologically sterile, and even hostile to their offspring. For that “religious corporation” operates in an economic system in which it has been wholly disembedded from a pervasive moral and religious context. Its “religion” is no less individuated and “disembedded” than the conception of the self being advanced by the State. It defends its religious views as a matter of individual conscience, of course, because there is no moral, social, or religious context to which it can appeal beyond the autonomy of its own religious belief. Lacking any connecting moral basis on which to stake a social claim, all it can do in the context of a society of “disembeddedness” is seek an exemption from the general practice of advancing radical autonomy. Yet, the effort to secure an exemption is itself already a concession to the very culture and economy of autonomy.

Deneen of course is a conservative Catholic. I’ve yet to come across a rejoinder from a conservative Protestant arguing against Deneen’s contention that there is, or should be, a “separation of church and economy.” If no one has written it yet, someone will soon. For this is an unfortunate, ahistorical, heretical bedrock belief of the conservative base: the American economy is God’s economy. Any attempt to regulate it is contrary to the God-breathed Constitution. It is atheistic, humanistic, and tyrannical.

This could be the greatest trick the devil ever played.

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Even If Hobby Lobby Wins, We Lose

Today’s Supreme Court oral argument, in the case of Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius, is correctly understood to pit defenders of religious liberty against those who believe that the government has a compelling interest in requiring employers to provide contraception, abortifacients, and sterilization services through their healthcare policies. In significant part, the case hinges on whether the companies—privately held businesses whose owners are unquestionably deeply religious individuals, and who run their businesses informed by those views—can be considered “persons” under the Religious Freedom Restoration Act. I, like many Christians, hope their case prevails.

But while the businesses are often characterized as “family-owned businesses,” each is a national business with hundreds of employees and multi-state operations. Hobby Lobby is by far the larger chain, with 640 stores that employs 28,000 individuals. While it has religiously-themed goods, plays Christian music, and closes on Sundays, in most respects it is identifiably a “big-box” store that can usually be found in major retail corridors, surrounded by acres of concrete and provisioned largely by merchandise made in China. While it is a “family-owned” business, it is hardly a mom-and-pop shop.

The dominant narrative—religious liberty against state-mandated contraception—altogether ignores the economic nature of the case, and the deeper connections between the economy in which Hobby Lobby successfully and eagerly engages and a society that embraces contraception, abortion, sterilization, and, altogether, infertility. Largely ignored is the fact Hobby Lobby is a significant player in a global economy that has separated markets from morality. Even as it is a Christian-themed brand, it operates in a decisively “secular” economic world. It is almost wholly disembedded from any particular community; its model, like that of all major box stores, is to benefit from economies of scale through standardization and aggressive price-cutting, relying on cheap overseas producers and retail settings that are devoid of any particular cultural or local distinction. The setting where one finds Hobby Lobby near us—on Grape Road in nearby Mishawaka—is about as profane imaginable a place on earth, accessible by six lanes of concrete roads where there is a heavy concentration of large chain retailers, where it anchors a sensory-deadening row of retail store fronts that border acres of cracked and barren pavement, awash in discarded plastic bags and crumpled fast food wrappers. On the rare occasion that I enter the store, even amid the Chinese mass-produced crosses and the piped in Christian music, under the endless florescent lighting and displays carefully-managed to optimize impulse buying, I am hardly moved to a state of piety, prayer, and thanksgiving. I am, like everyone else, looking for the least chintzy item at the cheapest price.

Hobby Lobby—like every chain store of its kind—participates in an economy that is no longer “religious” or even “moral.” That is, it participates in an economy that arose based on the rejection of the subordination of markets embedded within, and subject to, social and moral structures. This “Great Transformation” was detailed and described with great acuity by Karl Polanyi in his masterful 1944 book of that title. He described a sea change of economic practice that took place especially beginning in the 19th-century, but whose theoretical groundwork had been laid already in the 17th- and 18th-centuries by thinkers like Thomas Hobbes, John Locke, and Adam Smith. As he succinctly described this “transformation,” previous economic arrangements in which markets were “embedded” within moral and social structures, practices, and customs were replaced by ones in which markets were liberated from those contexts, and shorn of controlling moral and religious norms and ends. “Ultimately that is why the control of the economic system by the market is of overwhelming consequence to the whole organization of society: it means no less than the running of society as an adjunct to the market. Instead of economy being embedded in social relations, social relations are embedded in the economic system.” Read More…

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China and India Offer Russia Tepid Support

As coverage of the standoff between Russia and Ukraine continues and debate over America’s role in the conflict rages on, two crucial players have stepped forward to offer support to Russia: China and India. While no assumptions can be made about China’s diplomacy with Russia, it is not beyond the realm of possibility that an economic superpower would protect its trade agreements in the region. China is Ukraine’s second largest trading partner, a partnership worth $7.3 billion dollars a year, with a target of $20 billion by 2017.

China likely has no intention of endangering its profitable relationships in the face of geopolitical conflict. There is no indication that China will publicly condemn Russia’s actions: it may instead carefully weigh its options with regard to its political alliance with Russia and future economic opportunities with Ukraine. China has paid lip service to Ukraine, but that may change as the situation develops. A spokesperson from the Chinese Foreign Ministry reasserted its non-interventionist policy, but left room to switch platforms if it became expedient:

It is China’s long-standing position not to interfere in others’ internal affairs. We respect the independence, sovereignty and territorial integrity of Ukraine. There are reasons for why the situation in Ukraine is what it is today. China will follow the development of the situation closely and call on relevant parties to seek a political resolution of their differences through dialogue and negotiation based on respect for international law and norms governing international relations in order to uphold regional peace and stability.

As it currently stands, China has not made a definitive move towards either Russia or Ukraine. Joel Wuthnow, a China analyst writing for the National Interest, suggests that China may side with its previously established economic relationships: “In addition, China’s relations with Ukraine deepened in December with a “strategic partnership” signed by Xi and then-president Viktor Yanukovych. This agreement involved a five-year, $30 billion plan to boost PRC investment in areas including infrastructure, aviation and aerospace, energy, agriculture, and finance.” Much of China’s diplomacy springs out of its business partnerships, and thus far Ukraine does not seem to be an exception. But China also has no interest in estranging Russia, especially after Presidents Putin and Jinping appeared together in public at the Sochi Olympics, sending a signal of solidarity as the Western media raked Putin over the coals. Shannon Tezzi of The Diplomat posits that in spite of deep philosophical misgivings, China will put its developing relationship with Russia above its own political agenda, at least in this case. But public support of Russia is not without risk.

What’s confusing is why India has decided to come forward. Read More…

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Bill Kristol’s Tea Party Constitution

Jonathan Chait amusingly shoots at the fish in the barrel that is Bill Kristol’s recent column urging Republicans to “get off the sidelines” and prevent another rout in 2016.

Of Kristol’s evocation of the “original Constitution”—and, by implication, modern liberalism’s trashing of it—Chait writes, “The ‘original Constitution’? The one that permitted slavery? Does Kristol want to do away away with the 11th through 27th amendments to the Constitution? I’m sure he does not. But if Kristol obviously does not mean what he actually wrote, what does he mean?”

We all know the drill by now: the “original,” pre-Progressive era Constitution was not designed for the expansive power to regulate interstate commerce that Congress now enjoys; for “transfer payments” or the redistribution of wealth; or, generally speaking, for any interference between the consensual acts of individuals in the marketplace.

I return to it from time to time, because it’s such a perfect distillation of the kind of jurisprudence that infuses the tea party and liberty movements, and Kristol’s musing furnishes me another excuse: Ken Cuccinelli’s legal brief against Obamacare’s individual mandate in the Texas Review of Law & Politics.

In it, Cuccinelli answers Oliver Wendell Holmes’s famous Lochner dissent that “a constitution is not intended to embody a particular economic theory … The Fourteenth Amendment does not enact Mr. Herbert Spencer’s social statics.” (Hence Chait, lazily switching between upper- and lower-case “c”: “The Constitution is not a vague set of ideals; it’s a clear set of rules. That’s the whole point of a Constitution.”)

Cuccinelli says Holmes was arguing with a straw man. Of course it’s nonsense to claim the Constitution or the 14th Amendment embody Social Statics. But could Holmes plausibly deny that it embodies John Locke? “This would have been regarded as puzzling at best and at worst demonstrably false.” So there, fine: Forget Herbert Spencer. We can appeal to Locke (and Blackstone, and Hooker) and basically arrive at the same libertarian defense of economic rights. Sic utere tuo ut alienum non laedas: so use your own as not to injure another’s property.

For now, let’s table this aspect of the debate. Readers know I’d rather live under Chait’s Constitution than Cuccinelli’s. My point here is this: Bill Kristol is a terrible, horrible, no good, very bad ambassador for the Tea Party Constitution!

A constitution whose notion of executive power is expansive enough to satisfy the likes of Bill Kristol and John Yoo should have no trouble accommodating social insurance programs or public assistance for the needy.

I’m sorry: you don’t get to have your kickass policy suite of torture, democratism, intergalactic swamp-draining, World War XXIV, and “We’re all Everybody-ians now,” and also complain about food stamps or federal insurance exchanges.

Tea Party and liberty movement conservatives have every right to argue for an originalist interpretation of individual economic rights.

Bill Kristol does not.

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