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Much will be said in the coming days and weeks about Justice Scalia’s legacy.  He served on the Supreme Court for 30 years and was always an active presence during the Court’s oral arguments.  Because he served such a long time, it will take some time to adjust to his absence.  Scalia’s most important legacy will not be any particular opinion he authored, but his approach to constitutional interpretation in general.  He was a champion of the constitutional text and the original understanding of the charter. Scalia stopped the liberals from nullifying the parts of the Constitution that they disagreed with, such as property rights, federalism, and the right to keep and bear arms. In recent years, Scalia criticized his liberal colleagues for citing the practices and precedents of foreign countries because those rulings could not help to shed any light on the meaning of the American Constitution.  His finest hour, in my opinion, was when he defended the Great Writ of habeas corpus against a dangerous attack from conservative lawyers in the Bush administration in the aftermath of 9/11.

Scalia was a conservative, not a libertarian, so I disagreed with many of his opinions, but one can’t really appreciate Scalia unless one was reading Supreme Court rulings in the years before he arrived on the Court in 1986.  The quality of the legal analysis and writing were generally poor.  Scalia brought real intellectual rigor to the Court’s internal debates and opinions.  The conservative legal movement has lost its greatest champion.  Scalia was a gamechanger and now that he is gone, there is much uncertainty.

Go here for the epic debate at Cato between Antonin Scalia and Richard Epstein in 1984.

The news has just broken that Supreme Court Justice Antonin Scalia, 79, was found dead today in his room at a luxury resort in west Texas where he was attending a private event. He apparently died of natural causes.  

Scalia has been a major force in American law since President Reagan nominated him to the Supreme Court in 1986. His opinions, including his trenchant dissents, have shaped every area of our law. A leader of the conservative wing of the Court, the force of his intellect, both on and off the bench, was immense.

The immediate question on many minds, of course, is whether his seat will be filled before President Obama leaves office. Given the growing differences between the president and the Republican majority in the Senate, especially over the reach of executive power under the Constitution, it is likely that the seat will remain vacant until the next president is in office.

May Justice Scalia rest in peace.

 

Justice Antonin Scalia died today. It is a profound loss to the Court, the nation, and to the study of law. Everyone should mourn his loss, no matter which side of the political spectrum they are on.

Yet, due to Scalia’s divisiveness, there will no doubt be many uncouth tweets, posts, and op-eds in the coming days from those who disagreed with him more often than not. While there are other justices on the “conservative” side of the Court, Scalia’s pugnacious and often vituperative opinions have a way of either getting under your skin (if you disagree) or making you triumphantly raise your fist in the air (if you agree). In my opinion, Scalia was not only finest writer ever to sit on the Court, he was one of the best rhetoricians in history.

In the coming days, we will see many reactions from across the political spectrum. I predict, and hope, that many of Scalia’s ideological opponents will give the man the respect he deserved. And perhaps that, more than anything, will be the testament to his enduring legacy. By any objective measure, Scalia is among the greatest justices in our history. With his penetrating logic and his colorful wit, Scalia was the most forceful and visible advocate for originalism, a theory of constitutional interpretation that was derided when he ascended to the bench and is now, for both liberals and conservatives, mainstream.

During law school, many of my classmates would comment on their intense dislike for Scalia. I always responded by pointing out how many opinions he had published in our textbooks. Those opinions weren’t just in there because they were comparatively fun to read, which is true, but because a Scalia opinion has a way of clarifying the legal questions at issue. They are perfect pedagogical devices. 

Unquestionably, Scalia’s ideas will still be discussed in 100 years, much in the same way we still discuss Joseph Story, Oliver Wendell Holmes, Jr., or Learned Hand. This raises the question, however, of whether Scalia was one of the last great Supreme Court justices. Let me explain:

Only a few hours after Scalia’s death was announced, people began discussing how an ensuing nomination fight would go down. Every indication points to complete stagnation, and President Obama will likely end his presidency unable to fill the vacancy, leaving the Court one justice short. Of course, he could nominate someone who the Senate would confirm–an ideological moderate–but he is no more likely to do that than a Republican president in the same situation. The Court is simply too important now.

Which is why Justice Scalia was one of the last of a dying breed: an iconoclastic Supreme Court justice with hard and fast principles, a blazing intellect, and the wherewithal to carry an entire school of jurisprudence on his back. In other words, someone who could never be confirmed today, no matter which party nominated them.

This is true for both parties. Many times, I’ve heard people on the left say, “we need a Scalia,” acknowledging the force of the man’s words and ideas. Current battles over the Court almost guarantee that neither side will find another one. 

Now, two qualifications are paramount for possible Supreme Court justices: 1) youth; 2) ideological conformity. The grueling nomination process also means that prospective nominees must have led ideologically milquetoast lives, never having said too much to push the wrong people’s buttons, but having said just enough to convince the party that they are a predictable, party-line vote. Certainly, a Scalia nomination today would have no chance of winning approval.  

Truly brilliant legal minds like Scalia help create the intellectual framework for our judicial system, and I fear that we will not see many more like him. 

My deepest condolences to the Scalia family.

RIP

Justice Scalia, who was marking his 30th year on the Supreme Court, is indisputably the most influential jurist of my lifetime (and probably longer than that). He reoriented the study and practice of constitutional law towards the meaning of the actual Constitution and the interpretation of statutes toward their actual text. Originalism and textualism simply wouldn’t exist in a way worthy of their names without him.

But that’s not the only way in which he revolutionized the law. His writing style—clear, direct, and with obvious personality—blew fresh air through often staid and technocratic jurisprudence. He knew that he was writing not just for legal experts, but for the ages. There’s a reason that his opinions get reprinted in law school casebooks even when he’s not in the majority.

In coming days, we’ll see plenty of analyses of Scalia’s “greatest hits,” and there were plenty, whether you agree with him or not. I especially appreciate his opinion for the Court in District of Columbia v. Heller (2008), which confirmed that the Second Amendment protects an individual right. (And note that the dissenting justices pushed back on originalist grounds.) I especially regret his concurring opinion in Gonzales v. Raich (2005), where the Supreme Court authorized the federal government’s regulation of (marijuana) plants that people grow in their backyard for their own consumption. But agree with him or not in any particular case, you cannot deny his impact.

Scalia’s passing is a huge event not simply because this justice was a giant, or because the Court is increasingly split 5-4 on the biggest cases. Those facts are significant, to be sure—and this term alone so many key cases will now be recast, in areas ranging from affirmative action to abortion, workers’ First Amendment rights to immigration, voting rights to Obamacare’s contraceptive mandate. But the bigger deal is that, of course, we are now in the midst of a presidential election, one that is going down as one of the most bizarre and bitter ever.

Given how consequential Justice Scalia’s replacement will be—deciding all those 5-4 cases and serving on the Court for decades—it would be irresponsible for the Senate to confirm any nominee President Obama may send them. Election 2016 is now about the direction of the Supreme Court. Let the people decide.

My condolences to the Scalia family. RIP. 

The Spin Cycle is a reoccurring feature based upon just how much the latest weather or climate story, policy pronouncement, or simply poo-bah blather spins the truth. Statements are given a rating between 1-5 spin cycles, with less cycles meaning less spin. For a more in-depth description, visit the inaugural edition.

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As one of us has already noted, on Monday evening the Supreme Court voted 5-4 to put President Obama’s Clean Power Plan on ice—where it will remain until the justices get a chance to rule on the regulatory package themselves or until a new President sidelines it. The White House, whistling past a graveyard of unrecyclable solar panels (thanks to all the arsenic in them), blew up the vorticity of its spin cycle into relativistic speeds, calling it a “bump in the road” and a “temporary procedural issue.”

Over in the UK, Lisa Nandy, the shadow energy and climate minister knows why: “There is such strong support within the US for Obama’s efforts on climate change that I think this ruling will prove to be only a very temporary issue.”

Au contraire! According to a Yougov poll late last month, a grand total of 9 per cent of Americans think global warming is the most important issue confronting us. In only one country was there less support:  Saudi Arabia.

All of this ignores some facts on the ground. This is the biggest intervention by the Supremes in ongoing litigation since they stopped the partial Florida recount in December 2000 in the case that became Bush v. Gore. They only do stuff like this when there’s a lot at stake, irreparable harm will be done by not intervening, and at least five justices believe it more likely than not that the challenge will succeed.

Monday’s  5-4 vote hinged on Justice Anthony Kennedy. This is noteworthy because the only reason the Clean Power Plan came about in the first place was because of his deciding vote in the 2007 case, Massachusetts v. EPA, which controversially said that the Clean Air Act amendments passed in the George H. W. Bush administration contained one small bit of language that may allow the EPA to regulate carbon dioxide.

But the Court reminded the administration in last summer’s mercury ruling – Michigan v. EPA – that when it starts citing an obscure part of decades-old legislation in order to drastically remake the nation, it’s going to take notice. The damage had already been done with the regulations at issue in that case – you can’t unspend the money that was spent complying with the illegal regulation – but it’s a different story with the Clean Power Plan, which the Court has now nipped in the bud.

This “bump in the road” is actually Mount McKinley Denali. And calling the Supreme Court’s stay a “temporary procedural issue” is about as accurate as saying the same about stopping the 2000 Florida recount.

Five spinnies, hands down!

Yesterday’s agreement for a cessation of hostilities in the Syrian conflict – including provision for humanitarian aid deliveries – is welcome news from an increasingly bloody conflict. The deal has been greeted with justifiable skepticism from observers around the world, who note the many and varied problems inherent in the proposed agreement. This is not a formal ceasefire, and it faces long odds of successful implementation. But that doesn’t mean it isn’t worth supporting to the fullest extent possible. If it does succeed in reducing violence inside Syria, it just might act as the necessary first step to a more comprehensive ceasefire and transition agreement.

One could hardly have imagined a more ill-omened location for the agreement, which was announced yesterday on the sidelines of the Munich Security Conference. The agreement itself calls for a cessation of hostilities inside Syria – though it does not apply to either of Syria’s main extremist groups, ISIS or Jabhat al-Nusra – and for the rapid provision of access for the delivery of humanitarian supplies to Syria’s besieged cities. It is not an immediate deal: parties have one week before it takes effect. Yet if the deal sticks, it will help to stem the flow of Syrian refugees and provide desperately needed humanitarian assistance.

There are certainly reasons to doubt the deal’s feasibility. It is accurately described as a cessation of hostilities, rather than a ceasefire, which would require monitoring and enforcement mechanisms. This deal lacks either; without a relatively neutral third party monitor, it will be difficult to ascertain from dueling propaganda whether it is actually working. Nor are the main belligerents – the Assad regime and the Syrian rebels – actually parties to the agreement, another reason for its less formal structure. The deal will rely heavily on the ability of Russia and the U.S. to pressure conflicting parties.

The biggest obstacle to any peace remains the same: the definition of “terrorist.” This agreement doesn’t apply to extremist groups, meaning that US airstrikes against ISIS will continue unabated. But it is also unknown whether Russia will reorient its own airstrikes, which have often struck at more moderate anti-Assad rebels that the Russians describe as terrorists. The problem is compounded by the fact that Jabhat al-Nusra itself doesn’t hold geographically distinct territory, with members spread throughout the West of Syria who mingle and cooperate with other rebel groups. It will be exceedingly hard to tell whether Russian airstrikes are aimed at Nusra alone, or at other groups.   

It is also true that the one week delay before hostilities end will likely allow Russia and the Assad regime to solidify the gains they’ve made in and around Aleppo, freezing the conflict in a strategically advantageous way. Russia pulled a similar stunt during the Ukraine conflict, delaying the implementation of a ceasefire in order to solidify rebel control over the key town of Debaltseve. Yet if Russia continues its indiscriminate air campaign past the one week mark, however, it will suffer a reputational and public relations costs. 

For all these flaws, the deal agreed in Munich offers a potential way forward for a peace process which has stalled, in a situation where there are few other good options. The alternatives are far worse: an impossible to protect no-fly zone which would could bring the US and Russia into direct conflict, a military intervention by Turkey or Saudi Arabia aimed at backing favored rebels and toppling Assad, or simply the incessant grinding humanitarian tragedy of the ongoing war.

And if the cessation of hostilities is successful, it will provide much needed space for humanitarian aid to flow into besieged areas like Deir ez-Zor and Aleppo, as well as providing the time and minimal level of trust needed to reopen the stalled Geneva peace process. There were also hints from Kerry and Lavrov that we might see increased U.S.-Russian military cooperation against ISIS, which has so far been inhibited by Russia’s wholehearted military support for Assad. Secretary of Defense Ashton Carter spoke this week in Europe about the need to accelerate the campaign against ISIS. But this is likely to be impossible in the absence of a peace process in Syria and increased coordination or cooperation with Russia.

There are many good reasons to be skeptical about yesterday’s announcement. As Secretary Kerry noted, “the proof of commitment will come only with implementation.” Despite that, it offers the potential for a path forward in a conflict that has become increasingly intractable and bloody. It might fail. But until it does, the United States should do everything in our power to help it succeed. 

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary. 

The big climate news of the week is, of course, that the U.S. Supreme Court put a stay on the EPA’s Clean Power Plan until the Plan’s detractors have their day in court.

Cato’s Ilya Shapiro summarized the situation succinctly:

The Supreme Court’s stay of the Clean Power Plan is a welcome development. The regulations constitute an unprecedented assertion of agency authority – particularly the dubious invocation of Section 111 of the Clean Air Act to justify regulating power-plant emissions – so the Court had to step in to prevent irrevocable harm to the energy sector. As we saw last term in Michigan v. EPA, often it’s too late to fix administrative abuses judicially after the fact. Lawlessness must be nipped in the bud.

And this move may have foreshadowed the death knell of the Clean Power Plan altogether; the only question is whether the justices will have a chance to strike it down for good before the next president reverses it.

Lots has been written on it.  In addition to Ilya’s, below is a sampling of others offering good insights. There are many more, and we apologize to those whose comments should have made this list but were left off (through negligence or space).

David Rivkin and Andrew Grossman: “Pulling the Plug on Obama’s Power Plan

Jonathan Adler: “Supreme Court puts the brakes on the EPA’s Clean Power Plan

Amy Harder and Brent Kendall: “Carbon-Rule Stay Puts Obama Environmental Legacy on the Line

Wall Street Journal Editors: “A Supreme Carbon Rebuke

Competitive Enterprise Institute: “Supreme Court Puts EPA’s Clean Power Plan on Hold

Mike Bastach: “The Supreme Court Just Delivered A Crippling Blow To Obama’s Global Warming Agenda

PBS Newshour: “Will a surprising Supreme Court move shake the Paris climate accord?” 

While there are many interesting lines of discussion about the SCOTUS decision, one that is particularly intriguing is the impact that the Clean Power Plan stay will have on the adoption of the Paris Climate Agreement.

Coral Davenport’s story for The New York TimesSupreme Court’s Blow to Emissions Efforts May Imperil Paris Climate Accord” lays out the potential impact and is well-worth an entire read.  Here’s a teaser:

But in the capitals of India and China, the other two largest polluters, climate change policy experts said the court’s decision threw the United States’ commitment into question, and possibly New Delhi’s and Beijing’s.

Competitive Enterprise Institute’s (CEI) Chris Horner adds that “Obama administration officials repeatedly told international community that Clean Power Plan ‘legally bulletproof’.”

Oops.

Horner goes on to wonder whether countries, since they were duped by the U.S., will now actually refuse to sign the Agreement at the U.N.’s big signing celebration scheduled in New York City on, you guessed it, Earth Day 2016, or whether they’ll just follow the money.

We’ll see (but we remain, like Horner, skeptical of any initial refusal…that’ll come later down the road when promised targets are being missed).

We also can’t help but wonder how this may effect another aspect of the U.N.’s Paris Climate Agreement—the requirement that the IPCC produce a report (in 2018) examining the climate impacts and feasibility of limiting total global surface warming since the pre-industrial period to 1.5C instead of the more common (but equally arbitrary) 2.0C (see Section II, paragraph 21, of the Agreement).

2.0°C is theoretically possible, with or without the Paris Agreement.  It requires that the earth’s climate sensitivity be near the low end of mainstream assessments and business-as-usual economic/energy development around the world perhaps sped up a bit with a worldwide deployment of fracking technologies (see here ).

1.5°C is almost assuredly not. The world has already warmed up by about 0.9°C since about 1900 and there are probably still several tenths of a degree C of surface warming that is “baked in” the system. Those numbers add up pretty close to 1.5°C already. And, global temperatures are going to continue to rise as we emit carbon dioxide (in increasing amounts or not)—even if we expect the rise occur at a rate that is quite a bit slower than that being advertised by the world’s collection of climate models. The SCOTUS stay certainly isn’t going to help this situation.

The Paris Agreement requirement to examine a 1.5°C scenario is just wasted time and effort.  But, that pretty much goes for U.N. climate conferences in general.

 

Will Wilkinson notes that there is a libertarian argument for Bernie Sanders. I’m not sure I buy the precise point Wilkinson is making. Sanders says he wants to make the United States more like Finland, Sweden, and Denmark. And those countries do indeed rank higher than the United States in the Cato Institute’s Human Freedom Index, compiled by my colleagues Ian Vásquez and Tanja Porčnik. But Sanders wants to emulate those countries in the ways they are less free than the United States (i.e., expanding government transfers), not in the ways they are more free (taxes and regulation). I think this powerful Sanders ad featuring Eric Garner’s daughter Erica is a much better libertarian argument for Sanders.

Sanders’ record here isn’t exactly clean. The police confronted Eric Garner because they believed he was selling untaxed cigarettes. If Sanders indeed penned the below letter in 1972 (I have been unable to verify its authenticity, but it sounds like him), then he is well aware cigarette taxes disproportionately burden the poor. 

Aside from the actual tax burden, cigarette taxes also lead to hostile confrontations between citizens and police. I would like to see Sanders propose repealing the federal cigarette tax. Instead, he has voted to increase it, which increases the likelihood of such confrontations. That is probably swamped, however, by Sanders’ support for decriminalizing marijuana and regulating/taxing it like alcohol and tobacco. That would probably do even more than repealing the federal cigarette tax to reduce such confrontations between black men and the police.

If that letter is authentic, it provides other libertarian arguments for Sanders. His health care plan is not one.

.@BernieSanders pretends #MedicareForAll would reduce HC spending. In fact, it would give us Defense Dept-level waste. #CatoSOTU

— Michael F. Cannon (@mfcannon) January 18, 2016

>@BernieSanders wants everyone in a #Medicare program that wastes 1 in 3 dollars spent? A better idea: http://t.co/0eGnO3Q0js. #Cato2016

— Michael F. Cannon (@mfcannon) October 14, 2015

What’s silly about the @HillaryClinton/@BernieSanders #MedicareForAll tiff is that #ObamaCare will give us single payer in 10yrs regardless.

— Michael F. Cannon (@mfcannon) January 18, 2016

Many who can’t get mental health care are on a @VeteransHealth waiting list, @BernieSanders. Solution: http://t.co/kSKwSqtudF. #Cato2016

— Michael F. Cannon (@mfcannon) October 14, 2015

As chair of the Sen. Veterans Committe, @BernieSanders perpetuated a @VeteransHealth system that encourages war. http://t.co/kSKwSqtudF.

— Michael F. Cannon (@mfcannon) October 14, 2015

 

The United States wants Mexico to extradite Joaquin “El Chapo” Guzman, the notorious head of the Sinoloa drug cartel who was recently re-captured after his second escape from a Mexican prison.  Federal prosecutors want to try El Chapo in Brooklyn or in another city with outstanding indictments.

Does this prosecution make sense? Let’s take as given that El Chapo has broken U.S. drug laws and commissioned acts of violence on U.S. soil.  And let’s set aside whether governments should prosecute bad laws, like drug prohibition, so long as those laws remain on the books.

Even given those assumptions, U.S. prosecution of El Chapo makes little sense.  

For starters, such a prosecution would be unusually expensive because of the heightened security measures needed.

More importantly, taking drug kingpins out of circulation seems to increase rather than decrease violence, with no detectable impact on drug production or consumption.  

Thus prosecuting El Chapo accomplishes no meaningful goal, even for those who endorse prohibition; it is criminal justice theater, designed to convince the public that the authorities are “doing something.”

A few weeks ago, in a post entitled, “The Politics of Non-Political Money,” I talked about the Bitcoin blocksize debate as surfacing “politics” in the Bitcoin ecosystem. Important protocol and software development projects require people of disparate views and plans to come together over common standards and code. My thesis in that post was simply that good behavior is good politics because it builds credibility. Some differ, and many—it should be no surprise—aren’t taking my advice. But the precedents set in the blocksize debate are important for the future of Bitcoin, for other cryptocurrencies, and for similar projects that may offer alternatives to governmental monetary and administrative systems.

The politics are intense, there are ways that Bitcoin governance is like government, and proposals to fork the software are kind of like constitutional amendments. But I’m increasingly comfortable thinking of Bitcoin governance as a market phenomenon. Specifically, groups with differing visions are competing to win the favor of Bitcoin miners and nodes, so that their vision, if it prevails, can carry the Bitcoin project forward.

Brian Armstrong, CEO of Coinbase, has stepped forward recently as a strong advocate for Bitcoin Classic and a 2MB blocksize. He cites four competitors to the current dominant coding team in this slide deck. Miners and nodes will choose one software version or another. It makes no difference whether we characterize their decisions as “voting” or “buying.”

Bitcoin may have some of the strongest network effects possible because incompatible versions of the software won’t recognize each others’ blocks, transactions, or mined coins. A miner on the “minority” side of a hard fork will mine bitcoins that are incompatible with the majority side, so those coins will be less useful and naturally worth less. And as more move to the majority side, “minority” coins will rapidly approach zero value, making switching a rational imperative, to be executed quickly.

These dynamics make for a “winner take all” Bitcoin software market, and they make it very unlikely that Bitcoin will “split.” (The Verge isn’t the only news outlet to get things precisely wrong.) If a split were to happen, it would be because the cryptocurrency market was big and diverse enough for two coins, fairly seamless exchange among the two coins existed, or both of those things. That would be a little more complicated, and it’s a little ways off, but it would be the opposite of fatal.

Rancor aside, all of the things in the Bitcoin world are as they should be. The virtuous incentives that are in place are part of Bitcoin’s genius.

In saying all this, I don’t think I’m breaking any new ground, and I may be stating the technical details imperfectly, but using a “market” frame of reference is different from the norm in open source development. Open source typically draws everyone together to work on a cooperative basis. Many of the big, important open source projects happen in standards bodies, or sometimes they operate under a benevolent dictator who makes the hard calls. And forks matter less.

A watchword in traditional open source development is “consensus,” but that word does not offer a way to administer decisionmaking when there substantial, deep-running disagreement. It simply gives every participant a veto—and there are lots of vetoes out there right now.

Rather then hewing to a “consensus” norm and fretting about its violation, the competitors in the blocksize debate might think of themselves as competitors, like Coke and Pepsi. In product meetings and the boardroom, they might mutter oaths about your competition—“Vile peddlers of swill they are!” But publicly, they should be the cryptocurrency that refreshes or the Bitcoin generation. Their job is to code a great product and sell it. Probably with more merits arguments than slogans, of course. And some of the difficulty of this debate exists because customers—particularly many miners, but not only them—lack the technical and economic sophistication to know decisively what protocol and code they most want to run.

Cooperative open source development has produced many incredible products, but the spur of competition is well known to wring the very best work from people. Platform competition and a winner-take-all market is no exception. There are good arguments why Bitcoin development should happen in the same way as most other open source projects, I’m sure, but I’m inclined to prefer a level of antagonism and distrust among coding teams, because they will be the best watchdogs for the errors of each other. Competition works. Markets are more decentralized than standards bodies.

The choice is not one product or the other, of course, but among features such as blocksize limits. Here the “politics” frame seems to serve well again. The dominant Bitcoin software provider, Core, could easily use a technique that U.S. political parties use to undercut third parties: cooption. When a third party appears to be gaining a foothold, stealing the lesser party’s ideas is a perfectly legitimate method of dissipating its support. Failing to do so risks splitting the dominant party’s constituency, losing it votes and elections.

Bitcoin Core could pretty much kill off Bitcoin Classic by adopting the 2MB blocksize, and it could ensure its continued dominance. But that means withdrawing from what appears to be a rock-solid, imovable principle held by the Core team. Indeed, at times, certain writings have sounded like Core might conduct their own “whiny ragequit” if the Bitcoin blocksize changes.

Since I wrote about Bitcoin’s “politics,” Core and its members have taken steps to be more communicative, which is great. One of the most recent communications is a conciliatory post from Matt Corallo characterizing the community as agreed upon a capacity increase in Bitcoin. His post equivocates between a blocksize increase and the capacity increase available through Segregated Witness, a technique that debuted at the Hong Kong Scaling Bitcoin conference for sharply reducing the content blocks must include. But, by all appearances, this is a group working through the difficulties of compromise under growing pressure from a competitor.

Markets. Politics. Who knows? A little of both. But I’ve recently been reviewing the history of the U.S. Constitution and thinking in terms of parallels. When the Framers met in Philadelphia in 1787, they placed themselves under a strict rule of secrecy so that their deliberations could be orderly and frank. They debated through the hot summer, and there was lots of give and take, even on principles of the highest order, such as the rights of certain classes of humans to life, liberty, and property. Imperfect though it was, what emerged from the constitutional convention was, I think, the greatest charter for government yet devised.

The Bitcoin blocksize debate is a little like that. While creating an incredibly valuable, fully decentralized monetary system, Bitcoin and the blockchain may allow fully equal self-government across large swaths of human activity—a vast improvement on political democracy (credit: Samuel Patterson). So it’s a debate of constitutional significance, and greater-than-constitutional proportion. The difference is that this debate is being held online in 2016. It’s radically transparent, and authority to build this system of self-government is not reserved to the wealthy, well-educated, or well-connected. It’s decentralized and available to all. So the Bitcoin blocksize debate is just like the U.S. Constitutional Convention of 1787, except it’s market-based—with trolls!

Monday, February 22, will be the anniversary of George Washington’s birth, although the federal government in typical federal government fashion has instructed us to observe Washington’s Birthday (not Presidents’ Day) on a convenient Monday sometime before the actual date. There’s a reason that we should celebrate George Washington rather than a panoply of presidents. 

wrote this several years ago:

George Washington was the man who established the American republic. He led the revolutionary army against the British Empire, he served as the first president, and most importantly he stepped down from power. 

John Trumbull, “General George Washington Resigning His Commission”

In an era of brilliant men, Washington was not the deepest thinker. He never wrote a book or even a long essay, unlike George Mason, Thomas Jefferson, James Madison, Alexander Hamilton, and John Adams. But Washington made the ideas of the American founding real. He incarnated liberal and republican ideas in his own person, and he gave them effect through the Revolution, the Constitution, his successful presidency, and his departure from office.

What’s so great about leaving office? Surely it matters more what a president does in office. But think about other great military commanders and revolutionary leaders before and after Washington—Caesar, Cromwell, Napoleon, Lenin. They all seized the power they had won and held it until death or military defeat.

John Adams said, “He was the best actor of presidency we have ever had.” Indeed, Washington was a person very conscious of his reputation, who worked all his life to develop his character and his image.

In our own time Joshua Micah Marshall writes of America’s first president, “It was all a put-on, an act.” Marshall missed the point. Washington understood that character is something you develop. He learned from Aristotle that good conduct arises from habits that in turn can only be acquired by repeated action and correction – “We are what we repeatedly do.” Indeed, the word “ethics” comes from the Greek word for “habit.” We say something is “second nature” because it’s not actually natural; it’s a habit we’ve developed. From reading the Greek philosophers and the Roman statesmen, Washington developed an understanding of character, in particular the character appropriate to a gentleman in a republic of free citizens.

What values did Washington’s character express? He was a farmer, a businessman, an enthusiast for commerce. As a man of the Enlightenment, he was deeply interested in scientific farming. His letters on running Mount Vernon are longer than letters on running the government. (Of course, in 1795 more people worked at Mount Vernon than in the entire executive branch of the federal government.)

He was also a liberal and tolerant man. In a famous letter to the Jewish congregation in Newport, Rhode Island, he hailed the “liberal policy” of the United States on religious freedom as worthy of emulation by other countries. He explained, “It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens.”

And most notably, he held “republican” values – that is, he believed in a republic of free citizens, with a government based on consent and established to protect the rights of life, liberty, and property.

From his republican values Washington derived his abhorrence of kingship, even for himself. The writer Garry Wills called him “a virtuoso of resignations.” He gave up power not once but twice – at the end of the revolutionary war, when he resigned his military commission and returned to Mount Vernon, and again at the end of his second term as president, when he refused entreaties to seek a third term. In doing so, he set a standard for American presidents that lasted until the presidency of Franklin D. Roosevelt, whose taste for power was stronger than the 150 years of precedent set by Washington.

Give the last word to Washington’s great adversary, King George III. The king asked his American painter, Benjamin West, what Washington would do after winning independence. West replied, “They say he will return to his farm.”

“If he does that,” the incredulous monarch said, “he will be the greatest man in the world.”

I talked about George Washington in this Cato Daily Podcast in 2007.

As I noted last week, Los Angeles is not the only region experiencing declining transit ridership. Another is Washington, DC, where a recent report from the Washington Metropolitan Area Transit Authority (WMATA aka Metro) revealed that ridership has fallen to the lowest level since 2004. Ominously, the agency’s financial situation is so bad that it has hired a bankruptcy attorney to help it deal with its problems and is reshuffling its top management, forcing at least one executive to retire.

As detailed in the actual report to the agency’s board, rail revenues and ridership in the first half of F.Y. 2016 are both down by 7 percent from the same period in F.Y. 2015. Metrorail ridership peaked in 2009, and if the second half of F.Y. 2016 is as bad as the first, annual ridership will be down as much as 30 percent from that peak despite a 15 percent increase in the region’s population. Bus ridership and revenue in 2016 is also down but by only about 3 percent below 2015.

Metro rail’s ridership declines, continued the report, are due to declining service reliability. Median travel times, the unpredictability of travel times, and the frequency of major service delays have all increased.

The report doesn’t say so, but a large part of the problem can be attributed to the construction of the Silver Line in Virginia. Since the Silver and Blue lines share the same tracks in DC and the Blue Line was already operating at full capacity, opening the Silver Line forced the agency to reduce service on the Blue Line, which quite possibly lost it more Blue Line customers than it gained on the Silver Line. The cost of operating the Silver Line also diverted resources away from needed maintenance of the older lines. The decline in bus ridership probably represents people who rode both train and bus who gave up transit due to these problems.

Anecdotal evidence provided by comments and tweets on WMATA news reports suggests that a lot of DC-area residents have permanently given up on transit. “Eliminating WMATA from my day is the best decision I could have made for improving quality of life,” says one. “I stopped riding and started driving in June,” says another. “Parking costs more but there were huge delays weekly on metro, no reliability.” “The decision to avoid WMATA is simple,” observes a third. “It’s cheaper and over twice as fast for me to drive vs taking the new silver line.”

To make matters worse, a train operator ran a red light last week and almost collided with a train going in the opposite direction. Metro train used to be run partly by computer, but since the fatal 2009 crash that resulted from computer failure, Metro hasn’t trusted the computer system and relied instead on human operators controlling speeds and braking. But an FTA report last December found that train operators have run at least 47 red lights in the past four years.

The reliability problems have led WMATA’s deputy general manager, Rob Troup, to resign in disgrace and the agency is reshuffling its top management. Troup is not the first WMATA executive to resign due to failure to fix the system’s problems, and he probably won’t be the last.

Since the trains bring in nearly three-fourths of the agency’s fares, the decline in revenues seriously impacts WMATA’s budget. This may be one reason why WMATA has hired Kevyn Orr, the bankruptcy lawyer who guided Detroit through its bankruptcy. One of the things Orr will need to do is help WMATA deal with its $2.5 billion unfunded pension and health care liability, which will add considerably to its woes in the near future.

WMATA’s troubles will soon be replicated in many other cities. Many transit agencies, including those in Boston, Buffalo, New York, Pittsburgh, and Portland, have even more unfunded obligations (when measured as a share of operating revenues) than Washington’s. Few transit agencies that built rail lines since the 1980s have budgeted enough money for maintenance. Back in 2010, the FTA found that America’s rail transit systems suffer from a $60 billion maintenance backlog, a number that has probably greatly increased as agencies aren’t spending enough money to keep up with deterioration, much less reverse the problem.

I’ve written exhaustively about this administration’s sheer statistical failure at the Supreme Court. It has the worst record of any modern presidency, whether you count in absolute won-loss – where the solicitor general’s office struggles to get to 50 percent, against a historical norm of 70 percent – or by unanimous losses alone.

While we’re still in the part of the Court’s term before the decisions start flying fast and furiously, I thought I’d present the latest update on where we stand with respect to those unanimous losses, where President Obama doesn’t even get the votes of the two justices he appointed. Here are the stats:

  • In the first 6.5 years of Obama’s presidency (January 2009 to June 2015), the government lost unanimously at the Supreme Court 23 times, an average of 3.62 cases per year.
  • In all 8 years of George W. Bush’s presidency, the government lost unanimously 15 times (1.875 cases per year).
  • In all 8 years of Bill Clinton’s presidency, the government lost 23 times (2.875 cases per year).
  • In other words, Obama has lost unanimously twice as often as Bush and 1.5 times as often as Clinton. Obama also passed Bush’s 8-year total in less than 5 years.
  • The Justice Department’s unanimous loss rate from 2012 to 2014 was especially bad – 13 cases in 30 months – almost three times Bush’s overall rate and almost twice Clinton’s (and that doesn’t count amicus litigating positions with unanimous losses).

For the record, here are the unanimous losses in the last four terms, so we can reminisce about the greatest hits (cases in which Cato filed marked with an asterisk):

  • 2012 (4 cases): United States v. Jones*; Sackett v. EPA*; Hosanna-Tabor v. EEOC; Arizona v. United States
  • 2013 (5 cases): Gabelli v. SEC*; Arkansas Fish & Game Commission v. United States*; PPL Corp v. Commissioner of Internal Revenue*; Horne v. USDA*; Sekhar v. United States
  • 2014 (4 cases): Burrage v. United States; Bond v. United States*; Riley v. California*; Noel Canning v. NLRB*
  • 2015 (3 cases): Mach Mining v. EEOC; Henderson v. United States; McFadden v. United States

These cases have nothing in common, other than the government’s view that federal power is virtually unlimited: Citizens must subsume their liberty to whatever the experts in a given field determine the best or most useful policy to be. If the government can’t get even one justice to agree with it on any of these unrelated cases, it should realize there’s something seriously wrong with its constitutional vision. 

And so, as we look ahead to the opinions due to come down this spring and summer, keep in mind that if the government loses, it won’t be because its lawyers had a bad day in court or because the justices ruled based on their political preferences. It will be because the Obama administration continues to make legal arguments that don’t pass the smell test.

The ugliness of this year’s presidential race makes The New York Times’ resident erstwhile conservative David Brooks wistful for Barack Obama. The irony is that David Brooks, Barack Obama, and their respective tribes bear much of the responsibility for the rise of Donald Trump.

“I miss Barack Obama,” Brooks laments, because “over the course of this campaign it feels as if there’s been a decline in behavioral standards across the board.” Brooks cites Hillary Clinton’s emails and some other stuff, but everyone knows he’s talking about The Donald. “Many of the traits of character and leadership that Obama possesses, and that maybe we have taken too much for granted, have suddenly gone missing or are in short supply. The first and most important of these is basic integrity. The Obama administration has been remarkably scandal-free.” By the time he’s done, Brooks upgrades Obama’s integrity to “superior.”

We all have difficulty seeing our blind spots. That’s why we call them what we call them. But Brooks’ obliviousness here is awe-inspiring.

Donald Trump has risen to the top of the GOP presidential field by appealing to resentments stoked by both political tribes. Even Brooks is even doing it, right there in his column.

Trump is riding resentments Obama has stoked by ruling as an autocrat. Rather than accept that voters elected a Republican Congress for the purpose of restraining his ambitions, Obama famously boasted he can act without Congress, because “I’ve got a pen and I’ve got a phone.”

He has repeatedly circumvented the democratic process and he knows it, as when he boasts, “I just took an action to change the law.” When challenged, he tries (with some success) to intimidate courts into writing tortured opinions in his favor. Still his executive overreach has been on the losing end of more unanimous Supreme Court rulings than either of his two immediate predecessors. Even allies admit he plays fast and loose with the rule of law.


When a president doesn’t play by the rules, he is telling his political opponents their votes don’t matter. That breeds resentment.

If you identify as a Democrat (and haven’t stopped reading in disgust), this is the part where you shout, “Don’t even talk to me about President Obama! Republicans are WORSE!! Bush started an immoral war!!” You know what? You’re right. And we’ll get to conservatives in a moment.

But if you are thinking such thoughts, then you have just revealed that you—yes, you—are responsible for the rise of Donald Trump.

If you give Obama a pass when he is dishonest or breaks the rules, because he seems like a good man, or is at least better than those guys; if you argue he had to change the law himself because Congress is dysfunctional and Republicans are unreasonable; if you lambast Bush for starting a war, but give Hillary a pass for both Iraq and Libya; then you are adopting one set of rules for your tribe and another set of rules for everyone else. That shows a lack of respect for people who disagree with you. They notice. They resent it.

And in swoops The Donald.

Trump is likewise riding the resentments conservatives have stoked of immigrants and Muslims. Millions of peaceful, hardworking immigrants are living in the United States in violation of America’s stupid and immoral immigration laws. There is definitely something wrong with this picture. But every time conservatives complain about those good people instead of those immoral laws, they turn immigrants into the “other” and encourage voters to blame immigrants for that and whatever other problems come to mind. When conservatives denounce as “amnesty” legislation that would free decent human beings from a greater threat to liberty than most conservatives will ever face from their government, they further stoke resentment of immigrants. In the process, conservatives encourage people who care about immigrants to turn a blind eye toward bad behavior by the other team, because at least that team seems to value the freedom and dignity of immigrants. And so conservatives stoke a vicious cycle of resentment.

Brooks doesn’t realize it, but he too is stoking resentments from which Trump draws power like Superman basking in the glow of the Earth’s yellow sun.

In putting Obama on a pedestal—“Obama radiates an ethos of integrity, humanity, good manners and elegance”—Brooks shows a remarkable gift for ignoring the president’s flaws. At the same time he criticizes Hillary Clinton’s “vaguely shady shortcuts” and the “unsightly characters floating around…the Clinton camp,” he blesses “team Obama” for successfully blocking such characters from the administration. Earth to David Brooks: Clinton took those shortcuts while she was Obama’s secretary of state. “Obamacare took coverage away from only a small minority of Americans,” Brooks writes, evidently unaware that the president repeatedly and knowingly lied about that part of ObamaCare.

Obama possesses “a sense of basic humanity,” Brooks writes, because he gave “a wonderful speech” at a mosque. I liked what I heard of that speech. But what about the innocent Muslim women and children Obama has killed with drone strikes, who far outnumber the number of children killed in Newtown, Connecticut? Or the fact that Obama has deported more immigrants than his predecessor?

You can’t revere Barack Obama and respect the dignity of all human beings, David. It just doesn’t work. No one made him seek power. No one made him use it in this way.

If Obama’s presidency has been “remarkably scandal-free,” the remarkable part is how many of his actions were never reported as scandal, perhaps because he belongs to the same tribe as most major media outlets. When The New York Times covers a president from its tribe differently than it would cover a president from the other tribe, and then absolves their tribesman of scandal, people notice. And they resent it.

The common thread in all these words and deeds, from both tribes, is that they affront the dignity of the “other.”

Every human matters. Every vote matters. No one in the political process is upholding those values, not even the politicians who pretend to be. Bernie Sanders has a stump speech and a viral video that purport to celebrate the dignity of every individual. Only they don’t, because Bernie’s entire schtick is to create an “out” group based on income, profession, and political views.

I have never been so glad to be a libertarian as I am this election cycle. It would be nice to see a few presidential candidates who disagree while demonstrating respect for the equal dignity of all people. It might just sap the demagogues of their power.

President Obama’s new budget includes a table showing the number of executive branch civilian employees the administration expects to have in 2017. With that, we can compare the growth in federal government employment over eight years of Obama (2009 to 2017) to eight years of President George W. Bush (2001 to 2009).

Federal civilian employment rose from 1,738,000 million in 2001, to 1,978,000 in 2009, to a proposed 2,137,000 in 2017. Thus, employment grew 13.8 percent under Bush and 8.0 percent under Obama, as shown by the bars on the left of the chart below.

Overall since 2001, federal civilian employment has increased by 399,000 workers, which is like a mid-sized city populated entirely by bureaucrats.

Perhaps the Bush increase stemmed from the build-up of Pentagon civilians to support the president’s war efforts? No, that was not it. The bars on the right show that the nondefense workforce grew 17.2 percent under Bush and 10.1 percent under Obama.    

If the next president wants to save some money, he or she should consider that the extra 399,000 workers since 2001 are costing taxpayers about $120,000 each in wages and benefits—that’s about $48 billion a year.

Introducing their intriguing work, Wei et al. (2015) write that “investigating climate-society relationships has long been a hot topic,” noting that “many studies have demonstrated the important roles of climate change in facilitating the rise or fall of ancient communities.” However, they report that “intense arguments regarding the economic effects of global warming” remain to be clarified in such investigations.

Against this backdrop, Wei et al. set out to investigate the long-term relationship between the climate and economy of China. More specifically, they derived a 2,130-year long record of the Chinese economy based on 1,091 records extracted from 25 books on Chinese history and economic history, spanning the period 220 BC to 1910 AD. This new proxy was then statistically analyzed in conjunction with historical proxies of Chinese temperature and precipitation previously compiled by Ge et al. (2013) and Zheng et al. (2006), respectively. And what did that analysis reveal?

The three Chinese researchers found that warm and wet climate periods coincided with more prosperous and robust economic phases (above-average mean economic level, higher ratio of economic prosperity, and less intense variations), whereas opposite economic conditions ensued during cold and dry periods (where the possibility of economic crisis was “greatly increased”) (see Figure 1 below). They also report that temperature was “more influential than precipitation in explaining the long-term economic fluctuations, whereas precipitation displayed more significant effects on the short-term macro-economic cycle.”

In concluding their paper Wei et al. write that, “from a deep time perspective, our study may provide new insight into the current intense arguments regarding the economic effects of global warming.” Indeed it does; and that insight reveals a warmer (and wetter) climate favors economic prosperity. Given this data-derived relationship, why are the leaders of so many nations hell-bent on halting any future rise in global temperature, especially when two millennia of climate and economic data suggest such a rise would benefit the economy? As the late Casey Stengel would have said, “doesn’t anybody know how to play this game?”

Figure 1. Series comparison between economic fluctuations and climate changes in China from BC 220 to AD 1910. Panel a: Decadal temperature anomaly for all of China during the period AD 1–1910 (Ge et al. 2013); the red curve is the low-pass filtered series. Panel b: Decadal precipitation over eastern China during the period 101–1910 (Zheng et al. 2006); the blue curve is the low-pass filtered series. Panel c: Winter half-year temperature anomaly series for eastern China during the period BC 210–AD 1920 with a 30-year resolution (Ge 2011). Panel d: Decadal macro-economic series during the period BC 220–AD 1910 in China; the black curve is the low-pass filtered series. The red and blue bars indicate typical episodes of prosperity and crisis periods (respectively). The gray and white areas delineate cold and warm phases, respectively. Figure from Wei et al. (2015).

 

References

Ge, Q., Hao, Z., Zheng, J. and Shao, X. 2013. Temperature changes over the past 2000 yr in China and comparison with the Northern Hemisphere. Climate of the Past 9: 1153-1160.

Wei, Z., Fang, X. and Su, Y. 2015. A preliminary analysis of economic fluctuations and climate changes in China from BC 220 to AD 1910. Regional Environmental Change 15: 1773-1785.

Zheng, J.Y., Wang, W.C., Ge, Q.S., Man, Z.M. and Zhang, P.Y. 2006. Precipitation variability and extreme events in eastern China during the past 1500 years. Terrestrial Atmospheric and Oceanic Sciences 17: 579-592.

Earlier this week, we lost a giant. Andrew Coulson, Senior Fellow in Education Policy at the Cato Institute, passed away after a fifteen-month battle with brain cancer. In the days that followed, colleagues, friends, and admirers paid tribute to his achievements, reminisced about his character and virtues, and reflected on his legacy. What follows is a compilation of those tributes.

Neal McCluskey remembers Andrew in an interview with Caleb Brown:

Adam B. Schaeffer, former colleague and adjunct scholar at the Cato Institute:

There is no one else beside Andrew Coulson that you must read to discover what reforms we need in education and why they will work. That is not hyperbole. There are many very sharp people who have contributed important thoughts on education reform, but you will get everything essential that you need from reading through Andrew’s collective works. […]

Andrew was a fine thinker and passionate advocate. But, as many have noted, he was also a kind man with a splendid sense of humor and relentless optimism. He remained immovably committed to his principles and the conclusions to which his great mind had led him. But he always engaged with a sense of magnanimity and humor, never bitter or angry. Even when I made a good deal of trouble for him with my lack of these qualities, Andrew stood by me. When he faced difficulties because of his principles, he always stood firm on those as well.

Adam concludes his tribute with a recommended reading list of Andrew’s works, which are among “all the wonderful gifts he’s left us.” 

Thomas A. Shull, former colleague at the Mackinac Center:

A key to all of this success was the unique temper of his commitment to reform. Instead of expressing the intensity of his passion in invective, Andrew channeled his passion into an unusual blend of productivity, hard research, humor and intellectual joy. I suspect this is what [columnist William] Raspberry sensed in Andrew — a genuine goodwill that characterized Andrew’s writing even as he was summarily proving you wrong. […] 

Andrew was a generous and talented human being who worked for freedom of choice for all children in education. This is surely tribute enough, but in Andrew’s case, I must add that he was a good man, and that he will be missed by virtually everyone who knew him. I join my colleagues at the Mackinac Center in wishing Andrew’s family, friends, coworkers and, most particularly, his wife, Kay Krewson, every solace in the days ahead.

Jay P. Greene, Distinguished Professor and Head of the Department of Education Reform at the University of Arkansas:

I first remember meeting Andrew and his wife, Kay, at a conference in Toronto in 2000. I have to admit that he felt out of place.  Here was this guy without any university, think tank, or other affiliation and without any formal training presenting on the history of markets in education. And people did not typically attend these meetings with spouses. Who was this guy?

As it turns out, this guy was a brilliant autodidact who “retired” after being an early programmer with Microsoft to devote his time to studying and advocating education reform. And he was really good at it.

The thing that struck me most about Andrew was his incredible optimism and quirky sense of humor. Liberty-oriented education activists tend to be on the losing side of policy battles. It can be downright discouraging. But Andrew never seemed discouraged or became bitter. It was a long game and he maintained a sunny optimism that freedom worked better and people would eventually gravitate towards what worked.

Doug Tuthill, President of Step Up for Students:

Andrew loved facts and logic.  He had an engineer’s mind and was relentlessly methodical in laying out his arguments.  I appreciated his commitment to civility and rationality in private and public discourse, and was always influenced, if not persuaded, by his reasoning and facts.

Andrew’s death is a huge lost for our movement.  I will always carry our discussions with me. 

Nick Gillespie, editor in chief of Reason.com:

Milton Friedman wrote of [Andrew’s book] Market Education: ”Encyclopedic in its coverage of the arguments for and against alternative modes of organizing schooling, readers will find this excellent book instructive whether they agree or disagree with his conclusion.” That captures Andrew’s intellectual contribution and his personality. He was provocative, learned, and engaging (even or especially to those with whom he disagreed).

At the core of Andrew’s reform ideas were two basic concepts. First, education has always been far more varied in its forms than we’ve come to appreciate and second, that parental and student choice should be front and center in all discussions. It’s a testament to his influence that each of these insights is becoming more popular and influential with every passing year. They allow us to create more varied and individualized forms of education while also minimizing social conflicts and anxieties over learning. 

Here is an interview Nick conducted with Andrew in 2011:

Expanding Choice through Tax Credits: Q&A with Cato’s Andrew Coulson

Lisa Snell, director of education policy, Reason Foundation:

It was my great fortune to work in education policy with Andrew toward a better education for all kids and to know he always held the line and set the pace for true markets in education. Market Education: The Unknown History is the book I tell everyone interested in education to start with. 

Matthew K. Tabor, editor of EducationNews.org:

Over the last year or so I had friendly exchanges with Mr. Coulson — and I followed along closely with the discussions I wasn’t a part of. They were master classes in wit, analysis and advocacy. That I had access to them at a cost of nothing more than my time was an almost-daily lottery win. I half-stalked the poor guy professionally, but I wasn’t about to waste the opportunity.

Through those back-and-forths about every facet of school choice and its related disciplines, I gained an incredible amount of knowledge from Mr. Coulson — and he exposed himself to be a good man. You can’t go to school for that. You don’t apply, pay tuition or take up space in a classroom, and there’s no certificate at the end. It takes more time, more work, and comes at a greater cost. It’s a lot harder to do. […]

Andrew Coulson has passed, leaving behind an impressive body of work and a legacy that’s a little part of the life force of hundreds of thousands of kids, their families and their communities. Those numbers are poised to multiply.

I still don’t know what, if any, official credentials he had. Someone might tell me, but I won’t bother to look them up. I don’t need to. I know that he advanced the work of countless others, including mine, and helped lead a successful movement that decades ago seemed impossible. He did it with humility, civility and a seriousness of purpose.

Darla Romfo, President of the Children’s Scholarship Fund:

It was only after hearing about Andrew’s death that I realized he must have been no more than 30 when he wrote the very compelling book, Market Education: The Unknown History. I knew when Ted Forstmann gave me a copy to read in 1999 that it must be an important book and that Andrew must be a very smart man since Ted, who was not one to lavish undeserved praise on anyone, insisted on how essential it was that I read Market Education before thinking I knew anything about education reform.

Andrew never disappointed. He was as nice as he was smart and very much a team player.

RIP Andrew. And may you find comfort, Kay, in the deep affection so many have for Andrew. 

Joshua Thompson, attorney at the Pacific Legal Foundation

I have long been an admirer of Andrew Coulson’s work — even before I began my career at Pacific Legal Foundation. His book, Market Education, has long been a staple on my bookshelf. Andrew and I first crossed paths professionally when I posted this critique of an op-ed he wrote in the Philadelphia Inquirer. His response led to a very a interesting back and forth, which is summarized here. Despite our minor disagreement, that conversation led us to more closely follow the other’s work.  We’d exchange emails now and then, usually when one of us had something interesting to say about school choice. For National School Choice Week last year, Andrew Coulson appeared with me on this PLF podcast. The podcast remains one of our most popular ever. Andrew and I discuss a lot of the contemporary issues facing advocates of educational freedom today.

Michael Q. McShane, director of education policy at the Show-Me Institute

Andrew’s writing was the first to introduce me to the idea that school choice might not just be good for kids academically, but could help us create more harmonious communities. If we don’t have to fight each other over what gets taught in history or science class, and we respect our fellow citizens’ rights to instruct their children in the way that best fits their needs and their values, we can get along better with each other. What a great idea.

We truly do stand on the shoulders of giants.  God bless his memory.

The idea that government could redistribute income willy-nilly with impunity did not originate with Senator Bernie Sanders. On the contrary, it may have begun with two of the most famous 19th Century economists, David Ricardo and John Stuart Mill.   Karl Marx, on the other side, found the idea preposterous, calling it “vulgar socialism.”

Mill wrote, “The laws and conditions of the production of wealth partake of the character of physical truths.  There is nothing optional or arbitrary about them… . It is not so with the Distribution of Wealth.  That is a matter of human institution only.  The things once there, mankind, individually, can do with them as they like.”[1]

Mill’s distinction between production and distribution appears to encourage the view that any sort of government intervention in distribution is utterly harmless – a free lunch.  But redistribution aims to take money from people who earned it and give it to those who did not.  And that, of course, has adverse effects on the incentives of those who receive the government’s benefits and on taxpayers who finance those benefits.

David Ricardo had earlier made the identical mistake. In his 1936 book The Good Society (p. 196), Walter Lippmann criticized Ricardo as being “not concerned with the increase of wealth, for wealth was increasing and the economists did not need to worry about that.” But Ricardo saw income distribution as an interesting issue of political economy and “set out to ascertain ‘the laws which determine the division of the produce of industry among the classes who concur in its formation.’

Lippmann wisely argued that, “separating the production of wealth from the distribution of wealth” was “almost certainly an error. For the amount of wealth which is available for distribution cannot in fact be separated from the proportions in which it is distributed… . Moreover, the proportion in which wealth is distributed must have an effect on the amount produced.” 

The third classical economist to address this issue was Karl Marx.  There were many fatal flaws in Marxism, including the whole notion that a society is divided into two armies – workers and capitalists.[2]  Late in his career, however, Marx wrote a fascinating 1875 letter to his allies in the German Social Democratic movement criticizing a redistributionist scheme he found unworkable.  In this famous “Critique of the Gotha Program,” Marx was highly critical of “vulgar socialism” and considered the whole notion of “fair distribution” to be “obsolete verbal rubbish.”  In response to the Gotha’s program claim that society’s production should be equally distributed to all, Marx asked, “To those who do not work as well? … But one man is superior to another physically or mentally and so supplies more labor in the same time, or can labor for a longer time… . This equal right is an unequal right for unequal labor… It is, therefore, a right to inequality…”  

Yet Marx offered a glimmer of utopian hope about the future in which things would become so abundant that distribution would no longer be a matter of concern: “In a higher phase of communist society … after the productive forces have also increased with the all-around development of the individual, and all the springs of cooperative wealth flow more abundantly – only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banner: From each according to his ability, to each according to his needs!”

That was not a prescription but a warning: For the foreseeable future Marx knew nothing would work without work incentives. If income were equally distributed to “those who do not work,” why would anyone work?

Contemporary public economics – “optimal tax theory” and the newest of the “new welfare economics” – also teaches that to tax a man “according to his abilities” would give able men a very strong incentive to use their skills to hide their earnings (and therefore their abilities) from tax collectors.  This predictable response to tax penalties on high earnings is confirmed by economic research on the elasticity of taxable income.  

Distributing government spending “to each according to his needs” must likewise give potential recipients a strong incentive to exaggerate their needs.  People who got caught doing that used to be called “welfare cheats” and considerable cheating still goes on in food stamps, Medicaid, etc.  The Earned Income Tax Credit, for example, gives low-income working people an extra incentive to not report cash income from tips, casual labor or illicit activities.

In The Undercover Economist, Tim Harford rightly notes that “when economists say the economy is inefficient, they mean there’s a way to make somebody better off without harming anybody else” (called “Pareto optimality”).  But argues that Nobel Laureate Kenneth Arrow figured out a way to efficiently redistribute income with “appropriate lump-sum taxes and subsidies that puts everyone on equal footing.” As Harford says, “a lump-sum tax doesn’t affect anybody’s behavior because there’s nothing you can do to avoid it.”

Unfortunately, Harford says “an example of a lump-sum redistribution would be to give eight hundred dollars to everybody whose name starts with H.”  That simply shows that if the subsidies were not ridiculously random then the subsidies will affect behavior and will not be lump-sum.  The government could collect a lump-sum tax of $800 from every adult and then send a lump-sum subsidy of $800 to every adult with no net effect, for example, but why do that?  If the goverenment tried to tax people on the basis of abilities or to subsidize on the basis of needs, even Marx knew that would have a terrible effect on incentives.

The whole idea was curtly dismissed by another Nobel Laureate, Joseph Stiglitz, in his 1994 book Whither Socialism? (p. 46): “The ‘old new welfare economics’ assumed that lump-sum redistributions were possible,” wrote Stiglitz; “The ‘new new welfare economics’ recognizes the limitations on the government’s information.”

The reason governments cannot simply take money from some people according to how able they are, and give it to others according to how needy they are, is because people who were aware of that plan would not be foolish enough to accurately reveal their abilities and needs.   Actual taxes and transfer payment distort behavior in ways that undermine economic progress and commonly produce results (such as trapping people in poverty) that are the opposite of their stated intent.

 *  *  *  *  *  

[1]  Quoted in Lewis S. Feurer’s introduction to John Stuart Mill, On Socialism, Buffalo, Prometheus Books, 1987, p. 22.

[2] “It would be convenient if ‘workers’ and ‘capitalists’ formed two distinct groups; however in practice there is substantial overlap of the group of workers and the group of owners of capital equipment and other property… . Despite this, theorists have devoted much attention to models of imaginary economies with just two factors of production, labor and capital, to suggest conclusions about the proportions of total income that will be channeled to each of the two factors and their owners.” D.G. Champernowne & F.A. Cowell, Economic Inequality and Income Distribution, Cambridge U.K.: Cambridge University Press, 1998, p. 123.

 

The potential negative impact of immigrants on American political and economic institutions is the best argument against liberalized immigration and the economic, social, national security, and criminal objections are not convincing.  Michael Clemens and Lant Pritchett dig into this argument, which they call the “Epidemiological Case for efficient migration restrictions,” and find it mostly wanting (their paper is the best I’ve read in a long while).  I’ve co-written an academic journal article, Cato policy paper, and other work about how immigration could affect institutions.  There is more evidence that immigration improves institutions than that it worsens them although there is still much work to be done on this issue and questions remain.

But there is evidence that emigration improves a source country’s institutions.  Fredrik Segerfeldt summarizes some of the evidence in his new book for the Adam Smith Institute in the UK.  In Chapter 6 of his book, Segerfeldt observes:

Mexican migrants play an important role in shaping political atti­tudes in the country, both through social remittances and after returning home. Political participation increases, democratic com­petition intensifies, it becomes more difficult for leading members of the party in power to enrich themselves and the chance that the rul­ing coalition will retain power decreases. In short, Mexico’s exodus makes it more democratic.

Although much of the research above deals with Mexico, there are other results indicating that emigration can strengthen democracy. In a macro study of a large number of poor countries, economists find that emigration increases both democracy and economic freedom in the sending country.

How does emigration improve Mexican economic and political institutions?  By breaking up cronyist and interventionist political arrangements:

Emigration can also help to break up or at least weaken governance based on patronage. In such countries voters tend to vote for the rul­ing party, because otherwise they risk losing the benefits that the power distributes. Entire communities will be dependent on the rul­ing party, which impairs democracy. But when people in a commu­nity receive income that is not from the state or the ruling party, citi­zens become more independent and can therefore vote for the oppo­sition if they want to. In Mexico, remittances reduce the support for the PRI, the party which, with the help of patron-client methods, managed to retain control of the country during most of the 20th cen­tury (between 1929 and 2000).

Migration and remittances may also be a way to break up old hierar­chies based on class and ethnicity. In San Pedro Pinula in Guatemala, for example, residents of the Mayan people, with the help of both returning migrants and remittances, have slowly but surely been able to challenge the ethnic underclass role they had for five centu­ries. In the oases of southern Morocco, the Haratin, poor black, land­less workers, have enhanced their status thanks to remittances from abroad.

Segerfeldt’s summary of that research can help explain the important finding by Joshua C. Hall that the ability to emigrate is correlated with improvements in source country economic freedom: 

Exitability, a variable created by Brown (2014) to capture how easy it is for citizens to “vote with their feet” is related to the change in economic freedom from 1980 to 2010 in a statistically significant manner across all specifications. This provides some indirect evidence to the importance of “exit” versus “voice” with respect to the question of institutional reform.

Emigration benefits governance in sending countries, increasing the returns from liberalized immigration policies in the developed world.  This is an exciting time to be working on how immigrants affect economic and political institutions.   

Many articles in recent years have expressed concern about Pentagon bloat. Mackenzie Eaglen called for streamlining the Pentagon’s “army of bureaucrats.” Ray Mabus said “Twenty percent of the Pentagon budget, one dollar out of five, is spent on … the Office of the Secretary of Defense and the defense agencies … Pure overhead.”

Robert Gates said the Pentagon is a “gargantuan, labyrinthine bureaucracy,” where 40 percent of spending goes to overhead, and there are 30 layers of staff under the secretary. Fareed Zakaria called the Pentagon “some kind of gigantic socialist enterprise.”

My favorite bureaucracy story is the recent one about the admiral in charge of navy intelligence who has not been allowed to see any secret intelligence for two years. That is pretty absurd, even for a socialist enterprise.

One measure of Department of Defense (DoD) bureaucracy is the number of civilian (non-uniformed) employees, as shown in Chart 1. (Data from the new federal budget and prior ones).

The number of DoD civilians soared from 659,000 in 2007 to 771,000 in 2011, but then declined to 738,000 by 2016. The peak and fall generally followed the peak and fall in the numbers of uniformed service members over those years.

However, Chart 2 shows that there has been an upward trend in the ratio of DoD civilians to uniformed. In President Obama’s first year of 2009, there were 703,000 civilians and 1.54 million uniformed, for a ratio of 0.46. In 2016 there were 738,000 civilians and 1.34 million uniformed, for a ratio of 0.55.

The relative increase in the civilian bureaucracy is a concern. One might think that Pentagon productivity would have increased because of advances in technology. Shouldn’t procurement be more efficient these days, as we’ve moved from paper forms to electronic databases? Apparently, such gains from technology have been dissipated elsewhere. John Lehman says: “With so many layers and offices needed to concur on every decision, it now takes an average of 22½ years from the start of a weapons program to first deployment, instead of the four years it took to deploy the Minuteman ICBM and Polaris submarine missile system in the Cold War era.”

Aside from wasted cost, the more bureaucratic bloat there is, the more it saps the energies of our uniformed service members. John Lehman estimates that “roughly half of all uniformed personnel serve on staffs that spend most of their time going to meetings and responding to tasks from the hundreds of offices that have grown like mold throughout the vast Defense Department.” The fault, of course, lies not with the service members, but with the complex and top-heavy system that Congress and Pentagon leaders have built over the decades.

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