Hypocrisy and More at the Supreme Court

My local paper, the Lexington Herald-Leader, published my op/ed on the Supreme Court decision upholding portions of President Trump’s travel ban. The article, set out below, deals with the hypocrisy of conservative Supreme Court Justices who frequently decry “legislating from the bench” and who did just that in re-writing Trump’s travel ban.

But that’s only part of the issue. What the Supreme Court did in upholding the ban is actually very common. The Court added a provision that said the ban only applied to travelers from the six listed countries who did not have a “bona fide relationship with a person or entity in the United States.” It did this under what is known as “equity jurisprudence.” When courts deal with an equitable remedy, like an injunction, they have the ability to do what they feel is fair.

It is based on such equitable powers that courts in the 1960’s and 1970’s did such things as desegregate schools, and mandate busing to achieve integration. It was these sorts of acts that conservatives labeled “legislating from the bench.”

When conservative Supreme Court nominees, like Neil Gorsuch, testify before the Senate and swear that they will never “legislate from the bench” they are fully aware of the 400 year history of equity jurisprudence. They know that many of the decisions from the past that conservatives hate were legitimate exercises of equity jurisprudence. And they know that they will be called on in the future to “do equity” and will do things like re-write laws, i.e. “legislate from the bench.” Yet they swear up and down that this is illegitimate and they will never ever ever do it. There is a word for people who say the exact opposite of what they know to be true, and it is not conservative. It is lie.

Supreme Court legislating from the bench on Trump travel ban

By Michael Coblenz

“Hey guys, let’s legislate from the bench!”

I wasn’t there, but it’s pretty clear that’s what Chief Justice John Roberts must’ve said when faced with President Donald Trump’s travel ban.

The travel ban, signed by Trump on March 6, banned most people from six predominantly Muslim countries from traveling to the United States. The original ban, signed with much fanfare on Jan. 27, was a blanket ban on immigrants, refugees or other travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. But that was quickly struck down by a number of federal courts, based in part on Trump’s repeated statements that he wanted a “Muslim ban.”

Rather than appeal, the Trump administration drafted a new “ban” which was signed without much publicity. This “ban” was somewhat more nuanced: it didn’t include Iraq, it included provisions for a limited review, and it included only a limited, temporary suspension of refugees from certain countries.

The purported purpose of the ban was to protect the nation from potential terrorists. So, I should note briefly that there hasn’t been a single terrorist attack on American soil by an immigrant or traveler from any of the six listed countries. Six Iranians and six Sudanese have been convicted of plotting attacks, but none came to fruition.

While there have been a number of terrorist attacks in the U.S. over the years, since at least the first World Trade Center bombing in 1993, the vast majority of the terrorists (19) have come from Saudi Arabia, 14 have come from Pakistan and 11 from Egypt. But those are American allies, so…

In any event, Trump signed the second scaled-back travel ban, but it suffered the same fate in the courts, being struck down in both the Fourth and Ninth circuits. So it went to the Supreme Court, and on June 27 the court upheld portions of the ban. Well, sort of.

The Supreme Court held that the Trump administration could deny entry to anyone from the six listed countries who did not have a “bona fide relationship with a person or entity in the United States.” That seems reasonable enough. Such a relationship would imply some legitimacy. But here’s the thing, that limitation wasn’t in the executive order signed by Trump.

Where’d the court come up with this provision? Out of thin air, of course.

My entire adult life I’ve heard conservatives say that judges should simply interpret the law, and not “legislate from the bench.” During his confirmation hearing Chief Justice John Roberts said that the “role of the judge is limited, the judge is to decide the cases before them. They’re not to legislate. They’re not to execute the laws.”

Trump’s Supreme Court nominee Neil Gorsuch agreed with this idea in his confirmation hearings. Under the “Constitution, it is for this body (Congress), the people’s representatives, to make new laws, for the executive to ensure those laws are faithfully enforced, and for neutral and independent judges to apply the law in the people’s disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk.”

Right. Except when a Republican president needs a win.

Then the rules are different. Trump’s travel ban was restrictive and religious-based. But that’s not what Gorsuch, Roberts and the other conservatives on the court (Clarence Thomas and Samuel Alito) wanted it to be. They wanted it to be a win for Trump. And the only way for it to be a win for the president was for it to be limited and nuanced enough to survive a constitutional challenge.

So they took it upon themselves to create the law they wanted. They became legislators, and rewrote the law.

Read more here: http://www.kentucky.com/opinion/op-ed/article159801369.html#storylink=cpy

 

 

 

 

Where to Find Trump’s America

President Trump’s inaugural address offered a stark vision of a devastated nation. Trump spoke of economic collapse in the form of “rusted-out factories scattered like tombstones across the landscape of our nation” and a veritable wave of “crime and gangs and drugs that have stolen too many lives and robbed our country of so much unrealized potential.”  He said that with his inauguration “this American carnage stops right here.”

Many critics called it shockingly bleak. Conservative columnist George Will called it “the most dreadful inaugural address in history.”

Trump’s address to Congress was less graphic, but no less bleak.

Commentators, pundits, and opposing politicians noted that the reality in America is nowhere near as dark as Trump suggested. Crime has decreased steadily since the early 1990’s. There are clearly weaknesses in the American economy, but the United States has one of the most robust economies in the world.

This raises a question: Is Trump’s vision of America related to a real place? Where can you find Trump’s America?

The answer is on television. Television offers a distressingly bleak view of humanity and the state of the nation. Cable and network news programs are awash in crime and mayhem. The adage is “if it bleeds it leads.” Most of the air time on twenty-four hour cable news is devoted to disasters and crime. A study by George Washington University Professor of journalism Nikki Usher found that the news media has over-reported the prevalence of crime since the 1970’s, and this has gotten worse because of the immediacy of cable and internet news which focuses on “breaking news” like disasters and gruesome crimes.

Local television news is no better. A Pew Research study found that crime, and a category labeled “accidents and disasters,” account for nearly half of all local news.

Even with the rise of on-line news the majority of Americans – fully 57% – still get most of their news from television. Most people get news from a variety of sources, but older people consumes far more television than the young. Among those over 65, according to Pew Research, 85% watch television news, 48% read the newspaper, and 20% get news on-line. Among millennials, 27% watch television news and 50% get most of their news on-line. Older people rely primarily on television for their view of the world, and since older correlates with conservative it means that conservatives rely on television for news.

The reliance on television means that the public has an overwhelmingly bleak view of the state of the nation, but it’s a view separate from reality. The violent crime rate in the country has been on a steady decline since the early 1990’s. The crime rate in 2010 was roughly a quarter of the rate in 1993. Despite this decrease, since 2003 over 60% of Americans have consistently said that there is more crime than a year ago. In 2015 nearly 60% of Americans said that crime was a very serious problem. Among Trump supporters, who tend to skew older and whiter, 78% said that crime has gotten worse since 2008. Only 37% of liberals believe the same thing.

It shouldn’t be surprising that the 60% of Americans who say that crime is out of control is nearly the same as the 57% who get most of their news from television. These people have this skewed view because it’s what they see on TV.

You know who else watches a lot of television? Donald Trump. Trump spends his nights watching cable news, and this is clearly where he gets the idea that the America economy is cratering and crime is out of control.

So when Trump talked about “American carnage” he was channeling what he sees on television, and speaking directly to the millions of Americans who get most of their news from television. It may not represent reality, but it is what they see on the TV.

 

Trump, Sanders, and The End of the Two Party System

Bernie making a pointTrump making a point

Bernie Sanders and Donald Trump have a lot more in common than being loud-mouthed New Yorkers. Both are outsiders. Trump was never part of the Republican establishment. He was a registered Democrat for most of his life, and became a Republican in 2012. Sanders calls himself a “Democratic Socialist” but has held office as an Independent, as Mayor of Burlington, Vermont (1981 to 1990), as a Congressman (1991 to 2005), and as the Senator (2006 to 2015). In 2015 he changed his identification to Democrat to run for President.

Both Trump and Sanders are now leading candidates for President in parties that they both once rejected. This indicates the erosion of power of the parties, as well as a loss of support by rank and file for what the parties stand for. The success of both Trump and Sanders reflect a widespread disgust with government, politics, politicians, and the two major parties. Trump and Sanders represent the beginning of the end of the Democrats and Republicans as dominant political parties.

People on both the left and right are fed up with the current political system, though for vastly different reasons. Conservatives, for the most part, are angry that Republican politicians have been unable to stop Obama. Their fury over Obamacare spurred the creation of the Tea Party. Disaffected conservatives took to the streets in outrage, as much at their own party as with Obama. Conservatives are also angry that Republicans campaign on promises, like defunding Plan Parenthood, but never follow through. Many conservatives are sick of Republicans, but that doesn’t mean they’ll vote for a Democrat. They’re expressing their disdain by embracing Trump.

Liberals are angry that Democrats haven’t been able to change what they see as a rigged system that allows corporations to dominate government. They wanted to see bankers go to jail after the crash of 2008. They’re furious about Citizen’s United, which they see as allowing corporations to buy elections. And they’re angry at Democratic politicians (like Hilary Clinton) for being too cozy with Wall Street. That’s why many are embracing the boisterously anti-Wall Street Sanders.

Despite this dissension in the ranks, the parties are able to maintain impressive party loyalty in the halls of Congress. Party line votes are more common than they’ve ever been. But this only deeps the public disdain. According to recent surveys only about 16% of the public approves of Congress. And while the public broadly blames Republicans more than Democrats for the gridlock in Washington, both parties are widely reviled: 71% of the public has a negative view of Republicans and 65% disapprove of the Democrats.

People are disgusted with politics. But what does a disaffected liberal or conservative do? A conservative isn’t going to vote for a Democrat no matter how disgusted he is with his own party. The same holds true for a disillusioned liberal. You may be furious at Obama for not taking on the big banks, or forcing through gun control legislation, but you’re not going to vote for Ted Cruz. So, to a certain extent, the parties have a captive audience, and they know it. Or at least they think so.

Voters can respond in a couple of ways. The first is to stay away, and not vote. Off year elections have dismal turn-out, typically around 25% of eligible voters. This isn’t the sign of an engaged or enthusiastic electorate, and isn’t a good sign for a democracy. A second common response is to reject either party. According to a Pew Research Report, “Independent” is the fasted growing political identification among voters, and identification with either Democrats or Republicans is at an all-time low. In 2014 32% of respondents said they were Democrats, 23% were Republican, and 39% were independent. A third response is to vote for outsiders, like Sanders or Trump.

A fourth option is to look for alternatives. According to a recent Gallup Poll, 58% of respondents would like additional political parties. Of course there are other parties out there. There’s a Green Party that advocates for environmental issues, a Libertarian Party, and even a Reform Party that advocates for compromise and dialogue in politics. But these parties do poorly because most people, even if they support the underlying policies of the party, don’t want to throw their vote away.

If the public is disgusted with politicians, the parties, and politics as usual, why don’t third parties do better? One major reason is that the media doesn’t take them seriously, so third party politicians are rarely on the news or talk shows. And they are not taken seriously because they don’t win elections. So in order for the media and the public to take minor parties seriously, candidates from those parties have to win elections. But they don’t. If the public is so disgusted with politics and desperate for alternatives, why haven’t third party candidates won any significant elections?

The main reason is that most of our elections are for a single seat in a contested “winner-take-all” election. There is only one President, one Senator, and in each Congressional district only one Representative. In these types of elections a candidate must pull together a winning coalition of a majority of the voter, which typically means just over 50%. And this favors a two-party system where each party has the support of roughly half the electorate and then tries to convince a few extra voters to choose their candidate.

This system creates broad coalitions that often have little in common beyond disdain for the other side. Business interests, for example, are often at odds with religious conservatives, yet they coexist within the Republican Party. Labor and environmentalists are often deeply hostile to each other, yet both coexist within the Democratic Party. The current system ensures that some party members are always unhappy.

The turmoil of the Presidential campaigns indicates deep trouble within both parties. There appears to be a four-sided civil war in the Republican Party, between the “establishment” (represented by Bush, Kasich, and Rubio), the Christian conservatives (Cruz and Carson), the Libertarians (Rand Paul) and now the populist outsider (Donald Trump). The Democrats are also engaged in an internecine conflict between the establishment (Clinton) and the left (Bernie Sanders). But there is also a great deal of dissatisfaction on the right of the Democratic Party. A recent survey found that 20% or registered Democrats would seriously consider supporting Trump over a Democratic candidate.

The parties are on shaky ground, and Trump and Sanders are earthquakes. It appears that we are an election cycle or two away from the implosion of both parties. The rise of social media shows that people connect around issues and not necessarily political parties. Social media was used extensively across the Middle East in the protests that became known as the Arab Spring. And in the United States, events like Occupy Wall Street show that social media can be used to promote ideas and engage people outside of the normal party structure. Increasingly young people don’t need the parties. They’re used to having options and choices, and the two parties present an arbitrary and largely divisive choice.

This means that the parties are increasingly irrelevant. Their days are numbered: they just don’t know it yet. Change is coming, and the parties need to figure out how to embrace it. One idea, which I have written about elsewhere, is to change the system to allow third parties to participate in a meaningful way. This will give people more choices, which they say they want, and it may increase the public’s interest in politics. There are undoubtedly other things that the parties can do, but they better do something, or they risk getting swept away.

What the Originals Intended

Madison

The death of Supreme Court Associate Justice Antonin Scalia has once again thrust the idea of “original intent” onto the national stage. Conservatives argue that the Constitution should be interpreted based on the intent of the men who wrote it. The problem with this concept is that the Framers themselves didn’t believe in it.

The issue of interpretation didn’t come up during the Constitutional Convention. The Framers were too busy trying to reach some form of workable agreement to spend time dealing with how future generations would interpret the document.

The issue of constitutional interpretation first came up during the debate over the creation of the First Bank of the United States, during the First Congress. The Bank was part of Treasury Secretary Alexander Hamilton’s plan to make the new nation a mercantile power like England. Hamilton submitted his plan to Congress, where it was considered first by the Senate. It passed through the Senate with little debate, and no discussion of whether chartering a Bank was something that Congress had the Constitutional authority to do.

The bill then went to the House, went through a first reading, went to committee, and then came back to the House floor for final debate. It was only at then that objections were raised. James Madison, the chief architect of the Constitution, said that Congress didn’t have the authority under the Constitution to charter a bank. Madison was known to be hostile to banks, but he couched his objections in the words of the Constitution.
Madison said that the powers of the government are limited, and Article I, Section 8, of the Constitution sets out the list of the things that Congress can do. Chartering a bank is not on the list. Fisher Ames noted that the “necessary and proper” clause at the end of the list in Section 8, and in his view a Bank was necessary to achieve some of the enumerated powers, like levy taxes and manage interstate commerce.

Madison said that this broadened the meaning of the “necessary and proper” clause beyond what the framers intended it to mean. He said that the intent was only to breathe life into the specifically enumerated powers, and not to expand those powers. He also said that omission from the list of enumerated powers was the same as exclusion from the powers of government.

Elbridge Gerry of Massachusetts (he of the crazy legislative districts) disagreed with Madison’s suggestion that the Constitution should be interpreted based on the intent of the framers. He said that nothing like this was every considered. He said that the rules of legal interpretation by famed British legal scholar William Blackstone might be a better guide, because they were the familiar methods used to interpret laws and statutes. Blackstone said that the fairest and most rational method to determine the will of the legislature is “by signs the most natural and probable, and these signs are either the words, the context, the subject matter, the effect and consequences, or the spirit and reason of the law.” It did not include somehow discerning the motives of the individual authors of the law.

Gerry mocked the idea that the meaning of ambiguous terms could be determined by reference to the debate in the Constitutional convention. Gerry had been one of the most active Framers, speaking more than any other person present. He pointed out that memories of the convention varied, as indicated by the difference between his recollection and Madison’s on this issue.

The House ultimately voted in favor of the Bank Bill, and essentially against Madison’s interpretation of the meaning of the Constitution. Eight Representatives and ten Senators had been at the Constitutional convention, and only five sided with Madison.

The bill then went to President Washington, and he asked his senior advisers for their opinion. Jefferson and Edmund Randolph opposed it, while Hamilton (no surprise) supported it. Washington, who had presided at the Constitutional Convention, agreed with Hamilton and signed the bill. All told, there were 21 “Framers” in the first government, and 16 disagreed with Madison’s view of the bank. Obviously some may have disagreed for reasons other than his theory of Constitutional interpretation, but they certainly did not believe that they were bound by his views of what the framers of the Constitution intended.

It’s interesting to note that Madison had to deal with this issue again when he was President, and the Bank was up for re-chartering. This time Madison did not object. He said that “waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation….”

In other words actual use changes the meaning of the Constitution. That’s one way to say that Constitution is a living and changeable document.

A few years later Madison was asked about deferring to the original intent, and studying the events at the Constitutional Convention to determine the intent of the framers. It was well known that Madison had taken fairly comprehensive notes of the debates. He said that “As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.”

It is hard to take “original intent” seriously when James Madison, the “Father of the Constitution” said it was a silly and simplistic idea.

This essay was adopted from a recent law review article on the fight over the first bank. The full article is available here: The Fight Goes on Forever

Why Is the Free Market So Foul?

The Free Market at work

Conservatives love the free market it theory, but hate it in practice.

Conservatives love the free market. That goes without saying. They complain about any government involvement in the economy, any regulation of business, and suggest that excess regulation is stifling the economy. And more often than not they say that the “free market” is the best solution to any public policy problem. Senator Rand Paul said the best way to fix health care is to “try freedom for a while. We had it for a long time. That’s where you sell something and I agree to buy it because I like it. That is how we operate in most of rest of the marketplace other than health care. … We could try freedom [in health care]. I think it might work. It works everywhere else.”

Former Presidential Candidate and publisher of Forbes Magazine, Steve Forbes has gone so far as to say that the free market is a moral system. “Free markets create goods by inciting human ingenuity to overcome obstacles and do business. … Free markets in the real world are a moral system. Think about it. To succeed in a true free market you have to meet the needs and wants of other people. Even if you lust for money, you don’t get it unless you provide something that somebody else wants.”

The basic theory of free and unregulated markets is that people, through free choice, will choose those things that are best for them, and through the cumulative effect of all of these millions of free choices, society will benefit. Adam Smith, the father of modern economics, called this “the invisible hand.” In the Wealth of Nations, Smith said that each individual “intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. … By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it.”

It’s a simple and elegant theory, and lies at the heart of the conservative idea of economic freedom. And in broad strokes the theory works. We now live in a world of vast abundance. The shelves of stores groan with consumer products, and we have so much food that we waste a huge amount of it. So, in some regards, we have a free market, and it works wonderfully. But the reality of the modern American economy is that every product from apples to Zyrtec is regulated, every industry from apple orchards to zoos, and every company from Apple Computer to the Zurich Financial Group is regulated, in one manner or another. The level of regulation varies dramatically. Drugs, like Zyrtec, are much more highly regulated than apples, and financial services are more regulated than personal computers. The level of regulation depends on the likelihood and potential for harm to the consumer. Conservatives complain about all of these regulations. They say that the free market is self-regulating, and the American economy will flourish if we just cut back on all of this regulation.

So are there any products without regulation? Is there any market where pure consumer choice controls the production, distribution and availability of goods? And if so, how does it work?

Well, yes, actually there is one free and totally unregulated market in the United States: that unregulated market is what we call the “culture.”

The “culture” is made up of a many components, including books, magazines, movies, music, television, and fashion. The “culture” also includes our collective sense of ourselves as a people. The First Amendment prevents the regulation of the distribution of ideas, which means that the content of movies, music, television, books, and magazines is unregulated. That may seem obvious, but it wasn’t always the case. Up until the 1950’s content was regulated. The main control were postal regulations that forbid the mailing of “obscene” material, and obscene was very broadly defined. This prevented the distribution of pornography, but also prevented the dissemination of some great works of literature, including An American Tragedy by Theodore Dreiser and Ulysses by James Joyce. That changed in 1959 when the publishers of Lady Chatterley’s Lover challenged these postal regulations, and won. The post office could no longer control the content of the mails and publishing changed. And then in 1973, in the case of Miller v. California, the Supreme Court struck down most restrictions on pornography. Not long thereafter the pornographic film Deep Throat was distributed nation-wide, and the multi-billion dollar American porn industry was born. According to some estimates, pornographic material – particularly images of people engaged in a wide variety of sexual activity – accounts for nearly a third of all content on the internet.

Now, in a very broad sense, the American “culture” is the freest and most unregulated market in the country. The clothes we wear, the films and television programs we watch, the music we listen to, are all the product of our own desires. Our culture is the product of nothing but the desires of the consuming public. There is no government control or outside oversight. The only driving force is demand and the profit motive. There is a demand, and someone creates a supply.

And what do conservatives think of this, the only truly free market in the nation? What do conservatives think of the culture? They hate it. W. James Antle III, an editor at conservative magazine The American Spectator, summed it up neatly: “The culture is awash in the raw sewage of vulgarity and avarice.” The director of a conservative policy group in Kentucky wrote a recent editorial about proposed legislation dealing with transgender students, which he said was a product of our “culture’s flirtation with narcissism.” So they seem to hate our culture in general, but what about specific aspects of that culture.

What has our free market culture produced? It has clearly produced books of great literary merit, and movies and music of enormous artistic achievement. It has produced television programs that are thoughtful, insightful, and informative. And then there’s the stuff that people actually buy.

Take music. The free market provides us with every type of music from Appalachian bluegrass to Zydeco, and everything in between. Music stores are largely a thing of the past, but you can download just about anything from iTunes or Spotify, and buy CD’s of every type from Amazon.com. Opera? Check. Classical? Absolutely. Bluegrass? Yep. Contemporary Christian, Indy Rock, smooth jazz? You name it, it’s all there. But what’s at the top? Schlock, nonsense pop, and thuggish rap. So what is the aggregate result of millions of free choices in music? Is it Yo Yo Ma, Winston Marsalis, or Cecilia Bartoli? Nope, it’s Justin Bieber, Kanye West and Miley Cyrus.

And what do conservatives think of the state of American music? Not much. Recently former Arkansas Governor (and former Fox News Commentator) Mike Huckabee criticized President Obama and his wife for allowing their daughters to listen to Beyoncé. Huckabee called Beyoncé’s lyrics “obnoxious and toxic mental poison” and called her husband, the rapper and promoter Jay Z, a “pimp … who exploits his wife.” Beyoncé’s music is wildly popular, but according to Huckabee it’s “mental poison.”

What about clothes. Just about everything is available in stores from bikinis to burkas. (Sorry I couldn’t pull off an “a to z” analogy, but this works better.) And what do people wear? Men wear pants down near their crotch, or t-shirts and oversized saggy shorts that make them look like enormous toddlers. Suits (and belts) are widely available, but few wear them. And women were yoga pants so tight it leaves little to the imagination. The general state of American fashion is pretty dismal.

And conservatives don’t like it one bit. Just recently a Republican state legislator in Montana wanted to ban yoga pants. Last year conservative lawmakers in Florida tried to ban saggy pants. Recently Fox News commentator Geraldo Rivera said saggy pants were holding back young urban blacks and Latinos.

TV? Two words summarize the state of American television. Sex Box. Have you heard of it? The title is pretty descriptive. A couple goes into a box, has sex, and comes out and talks about it with a panel of sex and relationship therapists who discuss the importance of sex in a relationship. So it’s educational. But one supposes the therapists could have the same discussion without the salacious aspect of showing the couple going into the box, and then waiting ten or fifteen minutes before they emerge in matching silk robes.

Conservatives are not amused. The president of “Concerned Women for America” and the director of the “Parents Television Council” took to Fox New to denounce it. “‘Sex Box’ should never see the light of day, or the night for that matter, on basic cable,” they said. “A live sex show is something that one might expect to find on a premium cable network. However, in an affront to all families, WEtv is bringing that content to basic cable and potentially exposing millions of children in the process.” This show, they said begs the question of how far the media will go to get ratings. … [the] immorality ends when the public, more specifically, the viewers say that they’ve had enough.”

So TV is a vast sewer. But we knew that already.

What about movies? Every year hundreds of well made, thoughtful and often moving movies are made in the English language. This year’s Oscars featured an interesting variety of artistic, historical, and even patriotic movies. But what dominated the box office? Hunger Games, Transformers, and the Lego Movie.

There’s no doubt that conservatives understand that the culture is driven by market forces. They embraced the movie American Sniper. For them the box office success of the movie was evidence that America was embracing their values. And when it didn’t win an Oscar they complained about liberal bias. Fox News commentator Sean Hannity tweeted during the Oscars: “AMERICAN Sniper snubbed by liberal hwood Predictable.”

Conservatives were less pleased when Fifty Shades of Grey moved into the top spot at the box office. Conservative commentator Brent Bozell said: “Here’s one obvious sign that we live in a profane world. ‘Fifty Shades of Grey,’ the ‘mommy-porn’ book turned into a movie, complete with its whips and chains and erotic punishment, debuted to far less controversy than “The Passion of the Christ” in 2004.”

Whether it’s hard core pornography, misogynistic rap music, moronic movies, a “liberal” media, or television shows disdainful of religion, tradition, morality and family values: all of these exist because of the demands of the American people. The culture is a perfect free market, and it’s a sewer.
Make no mistake; the free market didn’t debase the American culture. The free market simply gave the American consumer a cornucopia of entertainment options. We debased the culture on our own.

So the only truly free market in the country is “awash in the raw sewage of vulgarity” and proves that “we live in a profane world.” What does this say about free markets? What does this say about the idea that the collective action of millions of choices will produce a socially beneficial result? I would say that the culture is pretty clear proof that the idea of an invisible hand guiding individual choices to create a beneficial social outcome is fallacious, at best. The invisible hand, which is supposed to guide free exchange based on supply, demand, and the profit motive to produce socially beneficial outcomes, has slapped conservatives in the face.

So conservatives love the free market, in the abstract at least, but they hate the only truly free and unregulated market in the country.

NRA Calls Americans Most Murderous People on Earth

The bumper sticker says “Guns Don’t Kill People, People Kill People.” This implies that if a gun is not available a person with murderous intent will find another way to kill.

It’s absolutely true that people kill with things other than guns. In 2013, for example, there were 16,121 murders in the U.S., 11,208 with guns. This leaves just under 5000 murders by other means. According to the FBI the most common method other than firearms, are a knife or blunt object, or other non-personal weapon which includes drowning, strangulation and throwing out of a window. CDC numbers on Homicides.

On average, over the last ten years or so, there are roughly 15,000 murders in the U.S. each year. Of those, roughly 10,000 are with guns, and 5,000 with other methods. I should note that guns kill roughly 30,000 people each year. The vast majority are suicides, at about 19,000 per year. Accidental gun deaths account from roughly 500 to 1000 per year. CDC data on Gun deaths.

The question is whether all those murders who use guns would switch to something else, something a bit messier, like a knife or a tire iron. It is certainly possible.

I will admit that some people want to kill and they succeed. I’ll admit that some of those people will kill with guns, and if a gun is not available, they will kill with another weapon. Murder, unfortunately, is part of human nature.

In general, if you take account of environmental factors, human nature is pretty uniform around the world. Humans are all the same species, and act in remarkably similar ways in every society on earth. And some of those people are killers. Statistically the murder rate should be fairly stable around the world, excepting certain environmental factors, like wars or other forms of social chaos. And, in fact, the countries with extremely high murder rates, like Honduras and El Salvador, are in the midst of economic and political chaos. UN Global Study on Homicide.

The murder rate in the U.S., therefore, should be roughly the same as the murder rate in other similar countries, like those in Europe, Canada, and Australia. But it isn’t. The United States has one of the highest murder rates among developed nations. According to data from the UN, the murder rate in the US is roughly 5.0 per 100,000 people. The average for developed countries is around 1.3 per 100,000. This makes the U.S. roughly 3.5 times more murderous. Data from the Worldbank   UN Data on homicides. Here’s an interesting chart from Slate.  Justice Department Statistics

Now consider the weapon used to kill in the U.S. Guns kill roughly 10,000 people per years, and other weapons kill about 5,000. If you factor out the gun killings in the U.S., the murder rate drops by two-thirds, and puts us at roughly the same murder rate in the rest of the developed world.

The multiplier is guns. The other possible explanations are that we are in the midst of a civil war or Third World levels of social chaos, or Americans are simply more violent than other human beings. We aren’t in a civil war, and according to the NRA the problem can’t be guns.

The only way for the bumper logic to work is if Americans are simply more murderous that any other people on earth. So the NRA is saying that Americans are the most murderous people on earth.

By the way, the common Republican talking point that the issue is mental health and not guns only works if Americans are three times crazier than anyone else on earth. Well, they may be right about that one.

Same-Sex Marriage, The Sixth Circuit, and the Supreme Court

[Note: This was submitted to the Lexington Herald Leader, but not published.]

The Supreme Court will hear oral arguments in the cases dealing with state restrictions on same sex marriage on April 28, and will most likely issue a ruling by the end of the term in June. It’s widely assumed that they’ll rule that the bans on same-sex marriage are unconstitutional, and hold that people have a constitutional right to marry whoever they please.

Four U.S. Circuit Courts have found these bans unconstitutional. One, the Sixth Circuit which covers Kentucky, has upheld their constitutionality. Unfortunately the Herald-Leader seems to imply that there’s a chance the Supreme Court will side with the Sixth Circuit. That is highly unlikely.
The reason is that the Sixth Circuit ruled on a technicality and never addressed the substance of the issue. The Sixth Circuit relied on a 1972 Supreme Court case called Baker v. Nelson, which was a one sentence decision holding that the issue of same-sex marriage didn’t raise a federal question. Because of this scant precedent, the Sixth Circuit said it didn’t have the authority to address the issue. The problem is that Congress made same-sex marriage a federal issue when it enacted the Defense of Marriage Act (DOMA) in 1996, and the Supreme Court tacitly overturned Baker when it struck down DOMA in 2013.

The four other Federal Appeals Courts that struck down bans on same-sex marriage did so with lengthy rulings that addressed, and rejected, most of the arguments in support of the bans. Every court, including the four Circuit courts and dozens of District Courts, that has found the bans unconstitutional have applied the same reasoning. Such bans violate the Due Process clause of the Fifth Amendment, which states that “no person shall … be deprived of … liberty … without due process of law,” and the Equal Protection clause of the Fourteenth Amendment, which says that no State shall “deny to any person … equal protection of the laws.”

It’s a simple and compelling argument. If the state allows one group of people to marry, the equal protection clause says that they have to allow all groups to marry. However, the Due Process clause says that the government can deny rights to certain groups with “due process of law.” If the right involved is a fundamental right then the state must have a compelling reason and any restriction must be narrowly tailored to achieve the state’s compelling purpose.

Opponents of gay marriage say that states have a compelling interest in protecting families, children, and “traditional marriage.” The Fourth, Seventh, Ninth, and Tenth Circuits all considered these arguments and found them wanting.

The Seventh Circuit focused on the idea of “traditional marriage” and found that tradition was not a compelling justification for denying people their rights. The Ninth Circuit analyzed the argument that marriage is about procreation, and found this argument unpersuasive because, in part, many marriages don’t produce children, and many children are born outside of marriage. The Eleventh Circuit analyzed the question of child rearing and found no compelling difference between opposite-sex and same-sex parents. The Fourth Circuit compared the restrictions on same-sex marriage to the odious restrictions on interracial marriage that were struck down in the 1960’s. The same specious arguments were used then, and are equally invalid now. Each of these decisions relies on lengthy historical and legal analysis, and copious and detailed factual studies.

So as the Supreme Court takes up the issue of same-sex marriage it will ignore the Sixth Circuit’s ruling as irrelevant. The Court will then consider the substance of the underlying Due Process and Equal Protection issues, and will rely on the detailed and thoughtful analysis of the other four Circuit Courts. It seems likely that the Supreme Court will decide, as has every court that has honestly evaluated these issues, that there is no compelling justification for banning same-sex marriage.

Hayek In the Rear View Mirror

Friedrich Hayek is one of the patron saints of modern libertarianism. He wrote a book in 1944, called The Road to Serfdom, that predicted that western societies were going to fall sway to totalitarianism. He said that any level of economic planning would not work and so would require greater and greater government control, until inevitably, the government would completely take over.

It is a theory that is profoundly wrong, as even the most casual observation of the events since World War Two show, but one that still drives a great deal of modern conservative politics. Both Rand Paul and Paul Ryan are fans of Hayek, and both have stated that any government involvement in the economy is doomed to fail.

I analyzed this topic from the book in some detail in a recent article in Alternet. My title was Hayek in the Rear View Mirror, but they changed it to: Big Economic Theory Underpinning Libertarian Economics Is Total Baloney. Their title is more to the point, but mine was more poetic.

Minimum Wage and Unemployment

Republicans consistently say that raising the minimum wage will hurt employment. If that is true it should show up in the overall employment data. If raising the minimum wage hurt employment then unemployment should go up after the minimum wage is raised. So the unemployment rate should be higher in the months after the wage is raised.

The following chart sets out the change in unemployment rate in the months after the minimum wage was changed.

Change in Unemployment and Minimum wage

[Here’s a link to a bigger version of the chart: http://thedisappointedoptimist.com/wp-content/uploads/2015/02/Change-in-Unemployment-and-Minimum-wage.pdf]

The national minimum wage was established in 1938. It has been changed 28 times since then. It has been raised 26 times, and lowered 2 times. Unfortunately the Bureau of Labor Statistics does not have data before 1950, so we don’t have records of the impact of the raise in the minimum wage before, but since 1950 the wage has been changed 26 times. It has been raised 24 times, and lowered twice.

If raising the minimum wage forces employers to lay off workers then the opposite should be true. Lowering it should spur hiring. But the scant statistics we have don’t really support this. The minimum wage was lowered from $1.25 per hour to $1.15 per hour in September 1964. The next month the unemployment rate was the same. It went down slightly, from 5.1% to 4.8 percent the next month, then up slightly to 5.0% the month after that. The wag was lowered from $1.60 to $1.30 in February 1969, but in the following three months the unemployment rate remained exactly the same at 3.4%. So, from the two statistically insignificant samples we have, lowering the rate doesn’t have much of an impact on hiring. But two data points are not persuasive.

Turning now to the twenty four raises in the minimum wage. Republicans make the claim that raising the minimum wage as an absolute, without nuance or equivocation. If that is true then the unemployment rate should rise every single time the wage is increased. But this has not happened. From the chart it is clear that the unemployment rate has gone down in many cases, in up in many cases. In the first month after the change, the unemployment rate went down ten times, and up eight times. So employment increased ten times after the minimum wage was increased, but it did decrease eight times after the raise. It stayed the same eight times. So the claim that raising the wage will, absolutely and without fail, lead to rises in unemployment is clearly not true.

One month is not a statistically valid sample, so I looked at unemployment over a three month period after the rate was raised. In most cases the rates jumped around a bit. In nine cases the unemployment rate went down and stayed down over a three month period. In seven cases in went up, and stayed up. In most other cases it jumped around. A few times it went up then down, and a few times it went down then up.

One important point to note: if you look at the unemployment rate charts of any year you will notice that they are constantly moving, going up and down. There are innumerably factors that impact the employment rate. These rates are “seasonally adjusted” so they take in to consideration the increased retail employment in November and December, and the increased construction employment in the summer months.

Based on this data I can say that raising the minimum wage does not cause unemployment. It is a canard. It sounds logical, but statistics do not support the contention.

Making Sense of Ferguson

[This was recently published on CounterPunch under the title “The Police and the American Mind.”  My Original title was “The Thin Blue Line.”]

The only way to really make sense of the events in Ferguson, Missouri, and Staten Island, New York, is to understand two concepts. The first is that police believe themselves to be the thin blue line that stands between civilization and chaos. And the second is the “broken windows” theory of policing.

The “Thin Blue Line” is a common colloquialism for the police, but it’s more than that. It’s the way that the police, and many people in society, particularly conservatives, view law enforcement. Law enforcement is all that stands between civilization and chaos, the police are the Thin Blue Line that protects society from anarchy.

The “broken windows” theory was developed in the early 1980s by criminologists James Q. Wilson and George L. Kelling, who found that crime exists in every human society, but crime rates are higher where there are other signs of social disorder. In areas where there are broken windows, for example, there’s a sense that no one cares about the physical infrastructure of society, and that lack of concern trickles up. Vandals break more windows, then maybe break into the building, possibly even burn it down. These little crimes go unreported and unpunished, and so more crimes occur. The result is that there is not only more petty crime in dilapidated areas, but more serious crime. So Wilson and Kelling said that society should spend more time on the small stuff. Fix the windows, scatter the panhandlers, arrest the turnstile jumpers. Deal with the low-level crimes and the more serious crimes will come down.

The police in New York City began to take this approach in the mid-1980s. They went after graffiti artists, panhandlers, toll jumpers and the like, and instituted a zero-tolerance approach to most petty crime. As a result, crime came down, and in some cases significantly. Times Square went from a mecca of porn theaters, prostitutes and drug dealers to a tourist haven. Based on this success, the broken-windows concept spread across the country. Police began to see low-level crime as the first sign of anarchy, a potential the crack in the dike that protects civilization from a flood of crime. Petty criminals aren’t just sad sacks filching cigarettes, they’re the advance guard of social decay.

You can see this theory at work when you watch the video of five police officers confronting, taking down and killing Eric Garner. To those of us watching the video, Garner’s only crime was selling loose cigarettes. But to the police he wasn’t just some petty criminal, he was a broken window, the first sign of anarchy. And anarchy must be confronted with a phalanx of officers.

Read Officer Darren Wilson’s grand jury testimony about his confrontation with Michael Brown: Brown wasn’t some kid who may have snatched a handful of cigars from a convenience store. He was a “demon.” And Officer Wilson knew in his bones that he was all that stood between that “demon” and civilized society. And so he acted accordingly.

The view of the police as the thin blue line between chaos and civilization permeates our society. Flip on your TV and watch “NCIS,” “Bones,” “Criminal Minds,” or reruns of “Law and Order.” What these shows all have in common (beyond wooden acting and a high body count) is the view-point that law enforcement is all that stands between civilized society and a wave of crime.

Local news is dominated by fires, car wrecks and crimes. And in virtually every news story there are lots of flashing lights and at least a few police officers trying to repair one of the cracks in society.

We have all internalized this idea. So have the citizens who sit on grand juries. They know that the police are the thin blue line. And even if they don’t think about it in those terms, a district attorney or county prosecutor is there to remind them. The prosecutor may say something like: “Those officers put their lives on the line every day protecting you and me. They need tools to deal with dangerous situations and dangerous people. And they need to be afforded the discretion to deal with those dangerous situations.” So the grand jury grants them that discretion. They afford them the leeway to protect society, which means that they weigh the situation, the deadly encounter, in favor of the police officer and against a potentially dangerous person. The result is that Officer Wilson in Missouri, and Officer Daniel Panteleo in Staten Island, New York, are not charged.

Many people see this and say that it is racism. And so the thin blue line intersects racial lines. There is no denying that black Americans are arrested, prosecuted and incarcerated at a much higher rate than whites. Blacks make up about 12 percent of the population, but account for roughly 37 percent of the prison population. So on first blush it appears that blacks may be more prone to crime than whites. But if you cut the numbers differently and correct for wealth and poverty, the numbers equalize somewhat. This plays out across all crimes, but is seen most clearly with drug crimes. While five times as many whites use drugs as blacks, according to a NAACP report, African Americans are incarcerated at ten times the rate as whites. And while the violent crime rate is much higher overall for blacks than whites, it is similar for blacks and whites of similar socio-economic levels. So crime is largely a product of poverty not race. This leads back to the broken-windows theory. Poor neighborhoods are often dilapidated, and there is a good deal of petty crime. And so while blacks are no more likely to use drugs or commit crimes that whites, they are more likely to live in poor neighborhoods, and so are treated based on the broken-windows theory and punished harshly.

The result is the perception, based on arrest and incarceration rates, that blacks commit more crimes than whites. Police deal with this on a regular basis. They see the broken windows and the petty crime of poor black neighborhoods, they know the “broken-windows” theory of criminology, and they put two and two together. So when they see a black guy on the street potentially engaged in a petty crime, they don’t really see Michael Brown, they see a representative from the world of broken windows. They think they’re being even handed, but their vision is obscured by facile theories about broken windows and clichés about thin blue lines.

And so when the police, and conservative commentators, see people protesting events in Ferguson or Staten Island, they see a number of things. First, they see the police as being unfairly accused of racism. But more importantly they see a direct challenge to how the police do their job, about how they protect civil society. The protestors are questioning how the police man the ramparts, how they patrol streets fraught with chaos. The police, and their supporters, don’t see protestors raising legitimate concerns about how to protect society; they see people who are naïve to the dangers that face society. They see the protestors as deluded about the steps necessary to keep anarchy at bay, and trying to fray the fabric of the thin blue line. And so conservative commentators respond with outrage, and the police respond in riot gear.