Last Build Date: Sun, 12 Apr 2009 00:30:00 -0600Copyright: Copyright 2009
Sun, 12 Apr 2009 00:30:00 -0600What is to prevent legislators from taking revenues from Wal-Mart and giving them to local retailers? Or from chain drugstores to local pharmacies? Not the tattered remnant of the Constitution's takings clause. The Fifth Amendment says private property shall not "be taken for public use without just compensation" (emphasis added). Fifty state constitutions also stipulate taking only for public uses. But the Illinois Supreme Court ignored the public use question. Instead, the court said it is "well settled" that the takings clause applies only to government's exercise of its eminent domain power regarding land, buildings and other tangible or intellectual property -- but not money. Conflicting rulings by state courts demonstrate that that question is chaotically unsettled. That is one reason the U.S. Supreme Court should take the Illinois case and reject the preposterous idea that money is not property within the scope of the takings clause -- an idea that licenses legislative confiscations. Another and related reason why the court should take the case is to reconsider its 2005 ruling that rendered the "public purpose" requirement empty. The careful crafters of the Bill of Rights intended the adjective "public" to restrict government takings to uses directly owned by government or primarily serving the general public, such as roads, bridges or public buildings. In 1954, in a case arising from a disease-ridden section of Washington, D.C., the court broadened the "public use" criterion. It declared constitutional takings for the purpose of combating "blight" that is harmful to the larger community. In 2005, however, in a 5-4 decision, the court radically attenuated the "public use" restriction on takings, saying that promoting "economic development" is a sufficient public use. The court upheld the New London, Conn., city government's decision to seize an unblighted middle-class neighborhood for the purpose of turning the land over to private businesses which, being wealthier than the previous owners, would be a richer source of tax revenues. So now government takings need have only some anticipated public benefit, however indirect and derivative, at the end of some chain of causation hypothesized by the government doing the taking and benefiting from it. In a brief opposing the Illinois Legislature, the American Legislative Exchange Council, an organization of state legislators, makes this argument against "predatory taxation": Suppose Congress, eager to aid newspapers hurt by competition from new information technologies, decides to take a percentage of the assets of Bill Gates and half a dozen other beneficiaries of those technologies, and give the money to newspapers. Would not this "take and transfer" scheme be unconstitutional? Targeting specific, identifiable persons or entities for unfavorable treatment, and transferring their assets to equally identifiable persons or entities, surely also raises equal protection issues. Unquestionably a legislature can impose a levy on casinos if the revenues become subject to what the state legislators' brief calls "allocation via the familiar push and pull of political decision-making." But Illinois' confiscation of riverboat revenues is a private-pockets-to-private-pockets transfer, without even laundering the money through the state treasury. The Supreme Court has held that "one person's property may not be taken for the benefit of another private person without a justifying public purpose." But in the aftermath of the court's ruling in the New London case, the Illinois Legislature merely seeks judicial deference toward its judgment that transferring wealth from casinos to racetracks serves the public purpose of benefiting "farmers, breeders, and fans of horse racing." The court's virtual nullification of the "public use" requirement encourages lawlessness, which will proliferate until the court enunciates the constitutional principle that the takings clause protects money, like other forms of property, against e[...]
Thu, 09 Apr 2009 00:00:00 -0600
A great fielding play can cost the fielder's team the game. With less than two out, if a player makes a catch and falls into the stands, every runner moves up a base. So with a runner on third in the bottom of the ninth of a tie game, if a fielder makes a catch but his momentum flips him over the railing into the seats, his team loses.
Also: There is a play on which the umpire must give a manager a choice of two different outcomes on a batted ball. With one out and runners on first and third, the batter swings, his bat ticks the catcher's glove but drives a fly ball that is caught by an outfielder. The runner on third tags and scores, the runner on first stays there. But because the catcher interfered with the batter's swing, the umpire awards the batter first base, moving the runner there to second. Because that nullifies the sacrifice fly, the runner who scored is returned to third. But why should the batting team lose a run because the other team's catcher committed an infraction? So the manager of the team at bat is given a choice -- bases loaded, one out, no run in, or man on first, two out, one run in.
Umpires -- the only people who are on the field during the entire game and the only ones indifferent to the outcome -- were depicted in pre-Civil War drawings wearing top hats and carrying walking sticks. An account of the (supposedly) first game between organized teams -- June 19, 1846, in Hoboken, N.J. -- mentioned the umpire fining a player six cents for swearing.
Umpires still are custodians of decorum: "As the umpire," Weber writes, "you are neither inside the game, as the players are, nor outside it among the fans, but ... the game passes through you, like rainwater through a filter, and ... your job is to influence it for the better, to strain out the impurities."
Baseball is, Weber notes, the only sport that asks an on-field official to demarcate the most important aspect of the field of play -- the strike zone. Although defined in the rule book, its precise dimensions are determined daily by the home plate umpire.
Umpires are islands of exemption from America's obsessive lawyering: As has been said, three strikes and you're out -- the best lawyer can't help you. But because it is the national pastime of a litigious nation, baseball is the only sport in which a nonplayer is allowed onto the field to argue against rulings.
Umpires are used to having their eyesight questioned -- when someone criticized Bruce Froemming's, he said, "The sun is 93 million miles away, and I can see that" -- but their integrity is unquestioned. As Weber notes, players, not umpires, conspired to fix the 1919 World Series; a manager (Pete Rose), not an umpire, was banned from baseball for betting on games. As umpires say, "If they played by the honor system, they wouldn't need us."
Sport -- strenuous exertion structured and restrained by rules -- replicates the challenges of political freedom. Umpires, baseball's judicial branch, embody what any society always needs and what America, in its current financial disarray, craves -- regulated striving that, by preventing ordered competition from descending into chaos, enables excellence to prevail.
"You can't," Weber says, "hide on a baseball field." But a batter who fails two-thirds of the time for 15 years goes to Cooperstown. An umpire can fail once in a high-stakes moment and be remembered for that forever. It is amazing how rarely they fail as they strive not to be noticed in their pursuit of unobtrusive perfection.
Sun, 05 Apr 2009 00:00:00 -0600
Actually, his administration prefers to do that rather than allow bankruptcy to infuriate the United Auto Workers union, which was pre-emptively grateful to Obama's administration with lavish contributions to candidate Obama. The president supposedly showed "toughness" in sacking a conspicuous member of a particularly unpopular little cohort, CEOs of big corporations. He will need more grit if, as his administration hints, this time it is serious, that its patience is wearing thin, that someday GM could face "controlled" or "prepackaged" or "surgical" bankruptcy. One suspects that those adjectives intimate that it will be faux bankruptcy, gentle in dealing with the UAW.
Last November, five months and $17.4 billion in auto bailouts ago, this column noted: "Some opponents of bankruptcy say: GM must not be allowed to fail before it perfects batteries for its electric-powered Volt, which supposedly is a key to the company's resurrection. This vehicle was concocted to serve GM's prolonged attempt to ingratiate itself with the few hundred environmentally obsessed automotive engineers in Congress. They have already voted tax credits of up to $7,500 for purchasers of such cars -- bribes that reveal doubts about consumer enthusiasm for them at a price that would reflect cost."
In December, GM, by then a mendicant groveling before its congressional masters, ran a full-page newspaper ad apologizing for having "disappointed" everyone, vowing to stop selling so many "pickups and SUVs" (which were 11 of GM's 20 most profitable products in 2008), and promising "revolutionary new products like the Chevrolet Volt." Another ad, which appeared before December and is still running, features a car attached to an electric cord, and says the Volt amounts to "reinventing the automobile."
Last week, in an unenthralled summary of GM's "viability" plan, Obama's administration said: "GM earns a large share of its profits from high-margin trucks and SUVs, which are vulnerable to a continuing shift in consumer preference to smaller vehicles. Additionally, while the Chevy Volt holds promise, it will likely be too expensive to be commercially successful in the short term."
The stunning shift in consumer preferences that should make the White House's freshly minted auto experts feel vulnerable has been reported under headlines such as "Like a Rock: Hybrid Car Sales Plummet" (Wall Street Journal, Dec. 9) and "Hybrid Car Sales Go from 60 to 0 at Breakneck Speed" (Los Angeles Times, March 17). Absent $4 gasoline, customers, those nuisances with their insufferable preferences, do not want the vehicles the politicians want them to want, even with manufacturers now offering large rebates and other incentives.
The two best-selling vehicles in America this year are large pickup trucks (Ford F-Series and Chevy Silverado). In February, Toyota sold 13,600 Tundra and Tacoma pickups and 7,232 Priuses. It sells the Prius at a loss, which it can afford to do because it makes pots of money selling pickups. Has the Car Designer in Chief, aka the president, considered the possibility that what he calls "the cars of tomorrow" will forever be that?
His administration cannot be faulted for failing to do well what cannot be done well -- industrial policy, wherein the political class, with negligible experience in commerce, flounders. The administration can, however, be faulted for trying. The government's wallow in the automobile industry, under this and the previous administration, merits a hockey coach's evaluation of his team: "Everyday you guys look worse and worse. And today you played like tomorrow."
Thu, 02 Apr 2009 00:00:00 -0600
"Tariffs can be lowered to grant special preference to climate-friendly goods, or they can be maintained at high levels to discourage trade in GHG (greenhouse gas)-intensive goods and services." The working group says protectionism "in the service of climate change objectives" might virtuously "shelter domestic producers of climate-friendly goods."
Furthermore, using "border carbon adjustment," a nation might virtuously "impose costs on imports equivalent to that (sic) faced by domestic producers" operating under a carbon tax. Or a nation with a cap-and-trade regime regulating carbon emissions by domestic manufacturers might require foreign manufacturers "to buy offsets at the border equal to that (sic) which the producer would have been forced to purchase had the good been produced domestically."
Cynics will see only potential for mischief by governments, including the U.S. government, using such measures to give a green patina to protectionism. Meanwhile, the U.S. government is having its own problems with one "climate-friendly good" that might not be. Last week The New York Times front page carried this headline: "The Bulb That Saved the Planet May Be a Little Less Than Billed."
The story recounted some Americans' misadventures with the new light bulbs that almost all Americans -- all but those who are filling their closets with supplies of today's incandescent bulbs -- will have to use after the phaseout of today's bulbs in 2014. (You missed that provision of the Energy Independence and Security Act of 2007?)
A San Francisco -- naturally -- couple emerged from Al Gore's movie "An Inconvenient Truth" incandescent with desire to think globally and act locally, in their home. So they replaced their incandescent bulbs with the compact fluorescents that Congress says must soon be ubiquitous. "Instead of having a satisfying green moment, however," the Times reported, "they wound up coping with a mess."
Although supposed to last 10,000 hours and save, the Times says, "as much as" $5.40 a year in electricity costs, some bulbs died within a few hours. Some experts, reports the Times, "blame the government for the quality problems," saying its push to cut the bulbs' prices prompted manufacturers to use inferior components.
Furthermore, some experts have written a guide saying the new bulbs require "a little insight and planning." The Times says that "may be an understatement."
The bulbs, says the Times, "do not do well in hot places with little airflow, like recessed ceiling fixtures," and some do not work "with dimmers or three-way sockets." And: "Be aware that compact fluorescents can take one to three minutes to reach full brightness. This is not a defect." Well, if you say so. Because all fluorescents contain mercury, a toxic metal, they must never be put in the trash, so Home Depot and other chains offer bins for disposing of dangerous bulbs. Driving to one of these disposal points might not entirely nullify the bulbs' environmental benefits. Besides, the Times summarizes the Environmental Protection Agency's helpful suggestions for coping with the environmental dangers caused when one of these environment-saving bulbs breaks:
"Clear people and pets from the room and open a window for at least 15 minutes if possible. Avoid vacuuming. Scoop up larger pieces with stiff paper or cardboard, pick up smaller residue with sticky tape, and wipe the area with a damp cloth. Put everything into a sealed plastic bag or sealed glass jar. In most cases, this can be put in the trash, but the EPA recommends checking local rules."
Worrywarts wonder what will happen when a lazy or careless, say, 10 percent of 300 million Americans put their worn-out bulbs in the trash. Stop worrying. What do you think? That Congress, architect of the ethanol industry and designer of automobiles, does not think things through?
Sun, 29 Mar 2009 00:00:00 -0600FreedomWorks, a Washington-based libertarian advocacy organization, argues that EESA violates "the nondelegation doctrine." Although the text does not spell it out, the Constitution's logic and structure -- particularly the separation of powers -- imply limits on the size and kind of discretion that Congress may confer on the executive branch. The Vesting Clause of Article I says, "All legislative powers herein granted shall be vested in" Congress. All. Therefore, none shall be vested elsewhere. Gary Lawson of Boston University's School of Law suggests a thought experiment: Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do not promote goodness and niceness. Section 2 says the president shall define the statute's meaning with regulations that define and promote goodness and niceness and specify penalties for violations. Surely this would be incompatible with the Vesting Clause. Where would the Goodness and Niceness Act really be written? In Congress? No, in the executive branch. Lawson says that nothing in the Constitution's enumeration of powers authorizes Congress to enact such a statute. The only power conferred on Congress by the Commerce Clause is to regulate. The Goodness and Niceness Act does not itself regulate, it just identifies a regulator. The Constitution empowers Congress to make laws "necessary and proper" for carrying into execution federal purposes. But if gargantuan grants of discretion are necessary, are the purposes proper? Indeed, such designs should be considered presumptively improper. What, then, about the Goodness and Niceness Act, which, as Lawson says, delegates all practical decision-making power to the president? What about EESA? Writing in The New Republic, Jeffrey Rosen of George Washington University Law School makes a prudential point: "The military-spending scandals during World War II, exposed by the Truman Committee, showed the risks for corruption and fraud when the executive branch is given a free hand to spend vast amounts of money." But even in the unlikely event that the executive branch exercises its excessive EESA discretion efficiently, the mere exercise would nevertheless subvert the principle of separation of powers which, as Justice Louis Brandeis said, was adopted "not to promote efficiency but to preclude the exercise of arbitrary power." As government grows, legislative power, and with it accountability, must shrink. The nation has had 535 national legislators for almost half a century. During that time the federal government's business -- or, more precisely, its busy-ness -- has probably grown at least twenty-fold. Vast grants of discretion to the executive branch by Congress, such as EESA, may be necessary -- if America is going to have constant governmental hyperkinesis. If Washington is going to do the sort of things that EESA enables -- erasing the distinction between public and private sectors; licensing uncircumscribed executive branch conscription of, and experimentation with, the nation's resources. Since the New Deal era, few laws have been invalidated on the ground that they improperly delegated legislative powers. And Chief Justice John Marshall did say that the "precise boundary" of the power to "make" or the power to "execute" the law "is a subject of delicate and difficult inquiry." Still, surely sometimes the judiciary must adjudicate such boundary disputes. The Supreme Court has said: "That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." And the court has said that properly delegated discretion must come with "an intelligible principle" and must "clearly delineate" a policy that limits the discretion. EESA flunks that test. With EE[...]
Tue, 24 Mar 2009 00:40:00 -0600Another embarrassing auditor of American misgovernment is China, whose premier has rightly noted the unsustainable trajectory of America's high-consumption, low-savings economy. He has also decorously but clearly expressed sensible fears that his country's $1 trillion-plus of dollar-denominated assets might be devalued by America choosing, as banana republics have done, to use inflation for partial repudiation of improvidently incurred debts. From Mexico, America is receiving needed instruction about fundamental rights and the rule of law. A leading Democrat trying to abolish the right of workers to secret ballots in unionization elections is California's Rep. George Miller who, with 15 other Democrats, in 2001 admonished Mexico: "The secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose." Last year, Mexico's highest court unanimously affirmed for Mexicans the right that Democrats want to strip from Americans. More From RCP: 10 States in the Biggest Budget Trouble Congress, with the approval of a president who has waxed censorious about his predecessor's imperious unilateralism in dealing with other nations, has shredded the North American Free Trade Agreement. Congress used the omnibus spending bill to abolish a program that was created as part of a protracted U.S. stall regarding compliance with its obligation to allow Mexican long-haul trucks on U.S roads. The program, testing the safety of Mexican trucking, became an embarrassment because it found Mexican trucking at least as safe as U.S. trucking. Mexico has resorted to protectionism -- tariffs on many U.S. goods -- in retaliation for Democrats' protection of the Teamsters union. NAFTA, like all treaties, is the "supreme law of the land." So says the Constitution. It is, however, a cobweb constraint on a Congress that, ignoring the document's unambiguous stipulations that the House shall be composed of members chosen "by the people of the several states," is voting to pretend that the District of Columbia is a state. Hence it supposedly can have a Democratic member of the House and, down the descending road, two Democratic senators. Congress rationalizes this anti-constitutional willfulness by citing the Constitution's language that each house shall be the judge of the "qualifications" of its members and Congress can "exercise exclusive legislation" over the District. What, then, prevents Congress from giving House and Senate seats to Yellowstone National Park, over which Congress exercises exclusive legislation? Only Congress' capacity for embarrassment. So, not much. The Federal Reserve, by long practice rather than law, has been insulated from politics in performing its fundamental function of preserving the currency as a store of value -- preventing inflation. Now, however, by undertaking hitherto uncontemplated functions, it has become an appendage of the executive branch. The coming costs, in political manipulation of the money supply, of this forfeiture of independence could be steep. Jefferson warned that "great innovations should not be forced on slender majorities." But Democrats, who trace their party's pedigree to Jefferson, are contemplating using "reconciliation" -- a legislative maneuver abused by both parties to severely truncate debate and limit the minority's right to resist -- to impose vast and controversial changes on the 17 percent of the economy that is health care. When the Congressional Budget Office announced that the president's budget underestimates by $2.3 trillion the likely deficits over the next decade, his budget director, Peter Orszag, said: All long-range budget forecasts are notoriously unreliable -- so rely on ours. This is but a partial list of recent lawlessness, situational constitutionalism and institutional derangement. Such political malfeasance is pertinent to the fina[...]
Sun, 22 Mar 2009 00:00:00 -0600
In any case, law-abiding citizens here are rarely at risk. Most of the kidnappings are drug smugglers and human traffickers preying on one another.
Some of the smugglers who bring in drugs from Mexico bring people, too, along desert trails and through dry washes, to "drop houses." Regarding both drugs and people, Phoenix is a transshipment point: Most of both are distributed to other states. But some of the people become pawns in horrific transactions. A person in the United States might pay, say, $2,500 to have someone smuggled into the country, and then might receive a phone call: Pay another $5,000 and we will stop raping or torturing -- do you hear the screams? -- the person you want.
A small "drop house," with no functioning toilet, may, Chief Harris says, hold 60 people -- he has seen 100 -- in squalor. Fifty of them just want to move deeper into America in search of work, but all of them might have only their underwear, their clothes having been taken away to prevent them from running away.
The cross-border traffic in narcotics and people is, Harris says, just one way globalization is shaping crime. When the United States tightened controls on supplies of ephedrine and pseudoephedrine, the precursor chemicals for manufacturing methamphetamine, American motorcycle gangs were pushed out of the business. The production of those drugs, which had been done in many improvised labs in rural America, or even in American kitchens, moved to Mexico, where drug-makers imported ephedrine and pseudoephedrine from China.
To the problem of reducing regular crime -- homicides in Phoenix were down 24 percent in 2008 -- Harris has applied proven methods. They include the nimble deployment of manpower to high-crime hot spots, close relations between police and neighborhoods, and intense concentration on the small number of career criminals who commit a large majority of the crimes -- often hundreds a year by each individual.
Phoenix's familiar sorts of crimes have not much to do with most of the city's immigrants, legal or illegal. They commit a smaller percentage of the crimes (10 percent) than they are of the city's population (24 percent). But the lurid crimes that are giving this city an unmerited reputation as dangerous represent the seepage of the Mexican cartels into his city.
For them, Harris says, "The answer is not in Phoenix. The answer is in Washington." We know how to close a border, says Harris with acid dryness -- " build a wall" and deploy "machine gun nests." But, "I personally think that is stupid." For now, however, the United States "has turned immigration policy over to Mexican thugs." So we have reached a point at which barbed wire, car batteries and acid become the business tools of kidnapper-torturer-extortionists.
With a force large enough to police the nation's fifth-largest city, Harris can deploy 60 officers to deal with one kidnapping. That would be impossible in smaller cities, to which such crime might be driven by success here. But "don't give me 50 more" officers to "deal with the symptoms." Rather, says Harris, who was raised in a rough Phoenix neighborhood, give me comprehensive immigration reform that controls the borders, provides for whatever seasonal immigration the nation wants, and one way or another settles the status of the 12 million who are here illegally -- 55 percent of whom have been here at least eight years.
For those whose profession it is, law enforcement sometimes seems like bailing an ocean with a thimble. Harris wants not a bigger thimble but a smaller ocean.
Thu, 19 Mar 2009 00:20:00 -0600
The prosecution of the proprietor is part of the U.S. attempt to stop the southward flow of weapons and bulk currency while Mexico combats the northward flow of drugs, and of human beings brought by "coyotes." But although almost all the cartels' weapons come from the United States, the cartels are generating upward of $15 billion annually from drugs, human trafficking and extortion. So they will find ways to get guns -- and grenades and other military weapons -- for their internecine disputes about control over routes for smuggling drugs and people.
When Gen. Michael Hayden stepped down as CIA director, he listed Mexico among America's biggest national security concerns. But even allowing for the stresses arising from the global economic downturn, speculation that Mexico, with the world's 13th-largest economy, is sinking toward the status of a "failed state" is far-fetched, as is the idea that the cartels can withstand a determined drive by the Mexican military, assisted by U.S. military technologies.
The turmoil is, however, taking a toll on Arizona, which has a 370-mile border with Mexico. Terry Goddard, Arizona's attorney general, says this is a "transit state" not a "destination state." Phoenix is a distribution center for smuggled drugs destined for more than 230 American cities, and for people. Each commodity is stashed in different "drop houses." The people are kept in what Goddard calls "cattle-car conditions." He says that although a million people a year are moving north through Arizona, it is still a seller's market for traffickers in human beings.
Extrapolating from wire transfers of hundreds of millions of dollars from customers in dozens of U.S. states to smugglers operating in Arizona, Goddard believes that the "coyotes" who bring in the human contraband are extremely violent extensions of the cartels. One gang will swoop down on a "drop house" holding smuggled persons, or on a truck carrying such persons on the interstate from Tucson, and then "negotiate" their own deals with people who thought they had already paid for the smuggling. Some who object are shot in the head, which is, Goddard says, "a pretty good technique" for encouraging payments from the others. He estimates that half of Phoenix's 169 murders last year were related to human and drug smuggling.
Mexico, he says, is no longer importing up to four times more pseudoephedrine than its pharmaceutical industry requires. This ingredient was used to make methamphetamines destined for the U.S. market. Today, measured by volume (millions of pounds) and profit (up to 70 percent of the cartels' earnings), the biggest business is still marijuana. It is shipped in two-ton lots, in trucks that cross over the border fence without touching it, using "bridges" that can be assembled in 90 seconds at places identified by spotters who are equipped to live in the desert for weeks at a time. They can report where U.S. border patrols are at any moment.
All this has rekindled the debate -- a hardy perennial -- about crimping the cartels' marijuana market by legalizing their product in the United States. Whatever the merits of legalization -- and there are certain to be costs -- it will not happen in the foreseeable future, which is where Arizonans must live.
There are more than 6,600 licensed American gun dealers on the 2,000-mile border with Mexico. They should obey the law, even though most of the victims of the cartels' violence deserve to be.
Sun, 15 Mar 2009 00:30:00 -0600Last week, two days after the 44th anniversary of the Selma march that helped pass the 1965 act, the Supreme Court took a timid step toward limiting the perverse use of that act to create political set-asides -- elective offices to which certain preferred minorities are entitled. Last week's ruling revisits the strange career of racial gerrymandering -- how that practice went from execrable to virtuous to mandatory, and became yet another manifestation of the entitlement mentality. In 1965, the VRA was enacted to combat racial discrimination that denied equal access to voting. Because of judicial interpretations and legislative amendments, it now requires racial discrimination in the name of guaranteeing effective voting by certain preferred minorities (blacks and Hispanics). Effectiveness is understood as successful racial or ethnic bloc voting, with success understood as electing members of those blocs. Such results -- minorities electing minority candidates -- have come to be regarded as necessary and sufficient proof of real voting rights. In 1982, the act was amended (Section 2) to say that a violation occurs if nominating and electing processes "are not equally open to participation" by minority voters in that they "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Note that there is no mention of "vote dilution." But the amended VRA has been construed as follows: Equal "participation" of and "opportunity" for minorities means their ability to elect candidates of their choice, and that must mean minority candidates. Otherwise there has been illegal dilution of the minority vote. Such repellant reasoning expresses two tenets of liberalism's racial fatalism: identity politics (your political identity is your race, gender, ethnicity or sexual orientation) and categorical representation (members of an identity cohort can only be understood, empathized with and represented by members of that cohort). Racial gerrymandering having thus become a moral imperative, North Carolina's Legislature created a "majority-minority" (a voting-age population 56 percent black) state legislative district after the 1990 census. But the 2000 census revealed that demographic changes had made that district just 35 percent black. So the Legislature tinkered with the district's shape to make it 39 percent minority. But it did so by again dividing two counties, which North Carolina's Constitution forbids. This time Pender County sued. A state court said the VRA's Section 2 required splitting Pender, but North Carolina's Supreme Court held that Section 2 only protects against vote dilution in drawing district lines when a minority group is a majority. Last week, the U.S. Supreme Court agreed -- even though Section 2 says nothing whatever about a bright numerical line like this "50 percent rule." In an opinion joined only by Chief Justice John Roberts and Justice Sam Alito, Justice Anthony Kennedy lamented that "racially polarized voting" is "not ancient history." Well, yes. It is federal policy: By codifying the assumption that people of a particular race will and should think and vote alike, the VRA now encourages such voting by treating it as normal, and hence sort of admirable. Justice Clarence Thomas, joined by Justice Antonin Scalia, endorsed only Kennedy's conclusion. Thomas rejected Kennedy's argument, noting the glaring fact that Section 2's text provides no basis -- none -- for "any vote dilution claim, regardless of the size of the minority population in a given district." The VRA, properly read, concerns only "access to the ballot." But it has been improperly read by result-oriented lawyers skillful at creative construing, and by judges legislating their own notions o[...]
Thu, 12 Mar 2009 00:00:00 -0600Quicker than you can say "toxic assets," which TARP was supposedly designed to quarantine, TARP was subsidizing the manufacture of automobiles partially designed by Washington. Which recent government adventure in enterprise justifies such government confidence? Fannie Mae? Freddie Mac? Amtrak? Ethanol? The government has subsidized ethanol, protected it with tariffs, mandated levels of production and authorized 10 percent ethanol in gasoline blends, and now the shrinking ethanol industry wants government to authorize 15 percent. Five months after enactment of TARP, a plan for unfreezing the credit system remains, like Atlantis, rumored but unseen. Twelve months after the government brokered the marriage of Bear Stearns and JPMorgan Chase, the government is recapitalizing financial institutions that the market has said should be shuttered. Lawrence H. White, economics professor at the University of Missouri, St. Louis, denies that financial institutions ever were "unregulated." Hitherto, such institutions were "regulated by profit and loss": "The failure of Lehman Brothers and the near-failure of Merrill Lynch raised the interest rate at which profit-seeking lenders were willing to lend to highly leveraged investment banks. The market thereby forced Goldman Sachs and Morgan Stanley to change their business models drastically and to convert to commercial banks. If that isn't effective regulation, what is? Protecting firms from failure (Bear Stearns, AIG, Fannie Mae, Freddie Mac, Goldman Sachs, Citibank) and mitigating their losses with bailouts renders this most appropriate form of regulation much less effective." The president's confidence in his capacities is undermining confidence in his judgment. His way of correcting what he called the Bush administration's "misplaced priorities" has been to have no priorities. Mature political leaders know that to govern is to choose -- to choose what to do and thereby to choose what cannot be done. The administration insists that it really does have a single priority: Everything depends on fixing the economy. But it also says that everything depends on everything: Economic revival requires enactment of the entire liberal wish list of recent decades. The implausibility of this opportunistic hypothesis is deepened by Obama's rhetoric, which says "catastrophe" impends unless everything is done simultaneously. But his budget, in effect, says the danger will soon be gone and the new risk will be whiplash from the economy's sudden acceleration. Although only a small fraction of the supposedly countercyclical stimulus will be spent by the end of the year, the budget assumes that by then the economy will have perked up, and that it will grow robustly -- 3.2 percent, 4 percent and 4.6 percent -- in the next three years. Growth supposedly will cut the deficit in half -- growth and the $1.6 trillion "saved" by first assuming, and then "canceling," a 10-year continuation of the surge in Iraq. Why, one wonders, not "save" $5 trillion by proposing to spend that amount to cover the moon with yogurt, and then canceling the proposal? The first president whose campaign was his qualification for office continues to campaign. And he is overexposed. His schedulers should remember what a contemporary said of Thomas Babington Macaulay, a prodigiously articulate but oppressively constant talker: "He has occasional flashes of silence that make his conversation perfectly delightful." One afternoon last week, cable news viewers saw, at the top of their screens, the president launching yet another magnificent intention -- the disassembly and rearrangement of the 17 percent of the economy that is health care. The bottom of their screens showed the Dow plunging 281 points. Surely the top of the screen partially explained th[...]
Sun, 08 Mar 2009 00:30:00 -0600Pollan, author of "The Omnivore's Dilemma" and "In Defense of Food," says that after World War II the government had a huge surplus of ammonium nitrate, an ingredient of explosives -- and fertilizer. Furthermore, pesticides could be made from ingredients of poison gases. Since 1945, the food supply has increased faster than America's population -- faster even than Americans can increase their feasting. Agricultural commodity prices generally fall. But when a rare surge in food prices gave the Nixon administration a political scare, government policy, expressed in commodity subsidies, has been, Pollan writes, to sell "large quantities of calories as cheaply as possible," especially calories coming from corn. "All flesh is grass" says Scripture. Much of the too-ample flesh of Americans (three of five are overweight; one in five is obese) comes from corn, which is a grass. A quarter of the 45,000 items in the average supermarket contain processed corn. Fossil fuels are involved in the planting, fertilizing, harvesting, transporting and processing of the corn. America's food industry uses about as much petroleum as America's automobiles do. During World War II, when meat, dairy products and sugar were scarce, heart disease plummeted. It rebounded when rationing ended. "When you adjust for age," Pollan writes, "rates of chronic diseases like cancer and type 2 diabetes are considerably higher today than they were in 1900." Type 2 diabetes -- a strange epidemic: one without a virus, bacteria or other microbe -- was called adult onset diabetes until children began getting it. Now it is a $100 billion-a-year consequence of, among other things, obesity related to a corn-based diet, which is partly because steaks and chops have pushed plants off the plate. Four of the top 10 causes of American deaths -- coronary heart disease, diabetes, stroke and cancer -- have, Pollan says, "well-established links" to diet, particularly through "the superabundance of cheap calories of sugar and fat." What he calls America's "national eating disorder" is not just the fact that Americans reportedly eat one in five meals in cars (gas stations make more from food and cigarettes than from gasoline) and that one in three children eats fast food every day. He also means the industrialization of agriculture, wherein we developed a food chain that derives too much of its calories -- energy -- not from the sun through photosynthesis but from fossil fuels. In 1900, Vilsack says, Iowa's population was larger than California's and Florida's combined. But it is the only state whose population did not double in the 20th century. Yet Iowa's fewer farmers, planting (as government has exhorted) "fencerow to fencerow" and deploying an arsenal of chemical fertilizers, can tickle five tons of corn from an acre. Corn, which covers 125,000 square miles of America -- about the size of New Mexico -- fattens 100 million beef cattle, and at least that many bipeds. Much of the river of cheap corn becomes an ocean of high-fructose corn syrup, which by 1984 was sweetening Coke and Pepsi. Disposing of the corn also requires passing it through animals' stomachs. Corn, together with pharmaceuticals and other chemicals -- a Pollan axiom: "You are what what you eat eats, too" -- has made it profitable to fatten cattle on feedlots rather than grass, cutting by up to 75 percent the time from birth to slaughter. Eating corn nourished by petroleum-based fertilizers, a beef cow consumes almost a barrel of oil in its lifetime. Vilsack's department is entwined with the food industry that produces a food supply unhealthily simplified by the dominance of a few staples such as corn. This diet, Pollan says, has made many Americans both overfed and undernourished. [...]
Thu, 05 Mar 2009 00:00:00 -0600Last Aug. 1, Sen. Joe Biden introduced S. 3433 to prohibit funding for a "security commitment to, or security arrangement with" Iraq that has not been approved by Congress. Biden was indignant that "Iraq's leaders plan to submit the agreement to their parliament -- but our president does not." Iraq's parliament has debated and ratified the agreement called "On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq." It stipulates U.S. duties "while conducting military operations" as part of "temporary assistance" to the Iraqi government when acting against "al-Qaeda and other terrorist groups, outlaw groups, and remnants of the former regime." And: "In the event of any external or internal threat or aggression against Iraq that would violate its sovereignty, political independence, or territorial integrity, waters, airspace, its democratic system or its elected institutions, and upon request by the government of Iraq, the parties shall immediately initiate strategic deliberations and, as may be mutually agreed, the United States shall take appropriate measures, including diplomatic, economic, or military measures, or any other measure, to deter such a threat." Sen. James Webb, a Virginia Democrat who co-sponsored both the Clinton and Biden bills, said "any" agreement with Iraq should earn "the explicit consent of Congress." Granted, the United States has "status of forces agreements" with about 115 countries and most of these SOFAs were created solely by executive actions. The new agreement with Iraq is, however, more consequential than a normal SOFA. Besides, after all the American blood and treasure sunk in Iraq, and after the deep divisions among Americans caused by the way the war was justified and the occupation was conducted, any negotiated arrangement that formalizes ongoing U.S. security commitments or assurances to Iraq should take the form either of a treaty requiring a two-thirds vote of the Senate or a "congressional-executive agreement" requiring simple majorities in both houses of Congress. As senators, the current president, vice president and secretary of state took their stands on the principle that the legislative and executive branches share foreign policy responsibilities. It is, however, axiomatic that where you stand depends on where you sit, and Obama, Biden and Clinton now sit in the executive branch. So perhaps they will be less inclined to stand on the principle that power should be divided so that important decisions will be debated by rival sources of responsibility. Situational constitutionalism is not new, but if Obama, Biden and Clinton now embrace it they will continue -- and ratify -- the executive branch aggrandizement by the previous administration. As Democrats, Clinton, Obama and Biden were concerned before the election that President George W. Bush might bind his successor to repugnant policies. There is, however, a larger matter still at issue -- the constitutional balance of executive and legislative responsibilities regarding foreign relations. Even were it certain -- it is not -- that U.S. forces will be out of Iraq on a particular date, that would not drain the constitutional question of its salience. America, having nurtured constitutional government in Baghdad, should not neglect it here. If Congress is going to rebuild some of the institutional muscle that has atrophied from disuse under majorities of both parties and in relation to presidents of both parties -- if Congress is going to regain responsibilities it forfeited to the executive branch during the Cold War and other undeclared wars -- Congress must debate the new agreement with Iraq. Besides, it would be instru[...]
Fri, 27 Feb 2009 00:40:00 -0600On Wednesday, the Times carried a "news analysis" -- a story in the paper's news section, but one that was not just reporting news -- accusing Al Gore and this columnist of inaccuracies. Gore can speak for himself. So can this columnist. Reporter Andrew Revkin's story was headlined: "In Debate on Climate Change, Exaggeration Is a Common Pitfall." Regarding exaggeration, the Times knows whereof it speaks, especially when it revisits, if it ever does, its reporting on the global cooling scare of the 1970s, and its reporting and editorializing -- sometimes a distinction without a difference -- concerning today's climate controversies. Which returns us to Revkin. In a story ostensibly about journalism, he simply asserts -- how does he know this? -- that the last decade, which passed without warming, was just "a pause in warming." His attempt to contact this writer was an e-mail sent at 5:47 p.m., a few hours before the Times began printing his story, which was not so time-sensitive -- it concerned controversies already many days running -- that it had to appear the next day. But Revkin reported that "experts said" this columnist's intervention in the climate debate was "riddled with" inaccuracies. Revkin's supposed experts might exist and might have expertise but they do not have names that Revkin wished to divulge. As for the anonymous scientists' unspecified claims about the column's supposedly myriad inaccuracies: The column contained many factual assertions but only one has been challenged. The challenge is mistaken. Citing data from the University of Illinois' Arctic Climate Research Center, as interpreted on Jan. 1 by Daily Tech, a technology and science news blog, the column said that since September "the increase in sea ice has been the fastest change, either up or down, since 1979, when satellite record-keeping began." According to the center, global sea ice levels at the end of 2008 were "near or slightly lower than" those of 1979. The center generally does not make its statistics available, but in a Jan. 12 statement the center confirmed that global sea ice levels were within a difference of less than 3 percent of the 1980 level. So the column accurately reported what the center had reported. But on Feb. 15, the Sunday the column appeared, the center, then receiving many e-mail inquiries, issued a statement saying "we do not know where George Will is getting his information." The answer was: From the center, via Daily Tech. Consult the center's Web site where, on Jan. 12, the center posted the confirmation of the data that this column subsequently reported accurately. The scientists at the Illinois center offer their statistics with responsible caveats germane to margins of error in measurements and precise seasonal comparisons of year-on-year estimates of global sea ice. Nowadays, however, scientists often find themselves enveloped in furies triggered by any expression of skepticism about the global warming consensus (which will prevail until a diametrically different consensus comes along; see the 1970s) in the media-environmental complex. Concerning which: On Feb. 18 the U.S. National Snow and Ice Data Center reported that from early January until the middle of this month, a defective performance by satellite monitors that measure sea ice caused an underestimation of the extent of Arctic sea ice by 193,000 square miles, which is approximately the size of California. The Times ("All the news that's fit to print"), which as of this writing had not printed that story, should unleash Revkin and his unnamed experts.[...]
Thu, 26 Feb 2009 00:00:00 -0600Imagine, says Eberstadt, a 30-year-old Betty in 1958, and her 30-year-old granddaughter Jennifer today. Betty's kitchen is replete with things -- red meat, dairy products, refined sugars, etc. -- that nutritionists now instruct us to minimize. She serves meat from her freezer, accompanied by this and that from jars. If she serves anything "fresh," it would be a potato. If she thinks about food, she thinks only about what she enjoys, not what she, and everyone else, ought to eat. Jennifer pays close attention to food, about which she has strong opinions. She eats neither red meat nor endangered fish, buys "organic" meat and produce, fresh fruits and vegetables, and has only ice in her freezer. These choices are, for her, matters of right and wrong. Regarding food, writes Eberstadt, Jennifer exemplifies Immanuel Kant's Categorical Imperative: She acts according to rules she thinks are universally valid and should be universally embraced. Betty would be baffled by draping moral abstractions over food, a mere matter of personal taste. Regarding sex, however, she had her Categorical Imperative -- the 1950s' encompassing sexual ethic that proscribed almost all sex outside of marriage. Jennifer is a Whole Foods Woman, an apostle of thoroughly thought-out eating. She bristles with judgments -- moral as well as nutritional -- about eating, but is essentially laissez-faire about sex. In 50 years, Eberstadt writes, for many people "the moral poles of sex and food have been reversed." Today, there is, concerning food, "a level of metaphysical attentiveness" previously invested in sex; there are more "schismatic differences" about food than about (other) religions. If food is the new sex, Eberstadt asks, "where does that leave sex?" She says it leaves much of sex dumbed-down -- junk sex akin to junk food. It also leaves sexual attitudes poised for a reversal. Since Betty's era, abundant research has demonstrated that diet can have potent effects, beneficial or injurious. Now, says Eberstadt, an empirical record is being assembled about the societal costs of laissez-faire sex. Eberstadt says two generations of "social science replete with studies, surveys and regression analyses galore" have produced clear findings: "The sexual revolution -- meaning the widespread extension of sex outside of marriage and frequently outside commitment of any kind -- has had negative effects on many people, chiefly the most vulnerable; and it has also had clear financial costs to society at large." In 1965, the Moynihan Report sounded an alarm about 23.6 percent of African-American children born out of wedlock. Today the figure for the entire American population is 38.5 percent, and 70.7 percent for African-Americans. To that, add AIDS and other sexually transmitted diseases, and the unquantifiable coarsening of the culture and devaluing of personal intimacy. Today "the all-you-can-eat buffet" is stigmatized and the "sexual smorgasbord" is not. Eberstadt's surmise about a society "puritanical about food, and licentious about sex" is this: "The rules being drawn around food receive some force from the fact that people are uncomfortable with how far the sexual revolution has gone -- and not knowing what to do about it, they turn for increasing consolation to mining morality out of what they eat." Perhaps. Stigmas are compasses, pointing toward society's sense of its prerequisites for self-protection. Furthermore, as increasing numbers of people are led to a materialist understanding of life -- who say not that "I have a body" but that "I am a body" -- society becomes more obsessive about the body's maintenance. Alas, expiration is written into the leases we[...]
Sun, 22 Feb 2009 00:30:00 -0600The Framers established election of senators by state legislators, under which system the nation got the Great Triumvirate (Henry Clay, Daniel Webster and John Calhoun) and thrived. In 1913, progressives, believing that more, and more direct, democracy is always wonderful, got the 17th Amendment ratified. It stipulates popular election of senators, under which system Wisconsin has elected, among others, Joe McCarthy, as well as Feingold. The 17th Amendment says that when Senate vacancies occur, "the executive authority" of the affected state "shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." Feingold's amendment says: "No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies." Feingold says mandating election of replacement senators is necessary to make the Senate as "responsive to the people as possible." Well. The House, directly elected and with two-year terms, was designed for responsiveness. The Senate, indirectly elected and with six-year terms, was to be more deliberative than responsive. Furthermore, grounding the Senate in state legislatures served the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power to resist what has happened since 1913 -- the progressive (in two senses) reduction of the states to administrative extensions of the federal government. Severing senators from state legislatures, which could monitor and even instruct them, made them more susceptible to influence by nationally organized interest groups based in Washington. Many of those groups, who preferred one-stop shopping in Washington to currying favors in all the state capitals, campaigned for the 17th Amendment. So did urban political machines, which were then organizing an uninformed electorate swollen by immigrants. Alliances between such interests and senators led to a lengthening of the senators' tenures. The Framers gave the three political components of the federal government (the House, Senate and presidency) different electors (the people, the state legislatures and the Electoral College as originally intended) to reinforce the principle of separation of powers, by which government is checked and balanced. Although liberals give lip service to "diversity," they often treat federalism as an annoying impediment to their drive for uniformity. Feingold, who is proud that Wisconsin is one of only four states that clearly require special elections of replacement senators in all circumstances, wants to impose Wisconsin's preference on the other 46. Yes, he acknowledges, they could each choose to pass laws like Wisconsin's, but doing this "state by state would be a long and difficult process." Pluralism is so tediously time-consuming. Irony alert: Feingold's amendment requiring elections to fill Senate vacancies will owe any traction it gains to Senate Democrats' opposition to an election to choose a replacement for Barack Obama. That opposition led to the ongoing Blagojevich-Burris fiasco. By restricting the financing of political advocacy, the McCain-Feingold speech-rationing law empowers the government to regulate the quantity, timing and content of political speech. Thanks to Feingold, McCain and others, the First Amendme[...]