Justice Talk Pretty One Day

Earlier this month, the Supreme Court heard oral arguments in Boyer v. Louisiana, a case that presented questions about the rights of criminal defendants, including the rights to counsel and a speedy trial. See generally here. Whether the case will be of great lasting significance remains to be seen, as the Court will not issue its decision for some weeks. It already has drawn significant attention from Court-watchers, though, for reasons entirely collateral to the merits of the case.

As most people know, Justice Clarence Thomas is not frequently a vocal participant in oral arguments. In fact, that’s probably an understatement: before the Boyer argument, it nearly had been seven years since he last spoke in open court. Back in 2010, I wrote:

This week marks the fourth anniversary of Justice Clarence Thomas’ silence during Supreme Court oral arguments. The last time he questioned an attorney during oral arguments was in Holmes v. South Carolina, 547 U.S. 319 (2006), on February 22, 2006. Thomas had a solid reputation for sparse participation prior to the Holmes argument, and the four silent years since then have only served to solidify it. Observers, close and casual, are mixed on the significance of that silence, however.

Most people I encounter in casual conversation are immediately disparaging when it comes to Thomas, and particularly so regarding his silence. Some consider him a waste of space on the bench, and others suggest it is evidence that he is unqualified to serve on the Court, a charge that sometimes carries implications about his intelligence. Still others believe he simply is close-minded.

Perhaps I limited my survey of reactions to Thomas’ recent remark because of how I had seen him regarded in the past, or perhaps I’m just less attuned to Court-watchers today than I was three years ago (and I am), but I did not detect the same degree of disparagement I did before. More than anything, people seemed to see the happening as a sort of political novelty. Some actually called it “brilliant,” but that seems ridiculous in light of what Thomas actually “said.”

When Thomas’ name made its appearance in the transcript, the discussion at hand was about the qualifications of the criminal defendant’s counsel. Justice Antonin Scalia asked whether the defendant’s lead counsel was a Yale Law School graduate. After Scalia received an answer in the affirmative, the transcript records the following:

JUSTICE THOMAS: Well, there — see, he did not provide good counsel.

(Laughter.)

Everybody but Justice Sonia Sotomayor and possibly the arguing attorney seemed to be laughing at this point at what those in attendance agreed was a joke by Thomas, including Tom Goldstein, who wrote:

Most of the Justices were in a lighthearted mood today.  There was a lot of banter between them.  At one point, the questioning turned to whether the petitioner – a capital defendant – had “competent” counsel.  Justice Scalia made the rhetorical point that his lawyer was impressive because she had gone to Yale.  Chuckling, Justice Thomas interjected (as I heard it, imperfectly) that fact might make the lawyer “incompetent.”
…
Everyone who heard what he said recognized it was a joke.  All the Justices laughed to one degree or another.  So did the bar and gallery.

The most interesting part is that it isn’t even clear whether Thomas intended to speak into the microphone; some had noticed him passing a note to his neighbor, Scalia, and thought the remark may have been intended to be a private one.

In any event, the context to this remark is simple and should have been immediately apparent to anyone with even a general familiarity with Thomas. He attended Yale Law School himself, so at the very least, the joke was a self-depreciating one. That’s assuming he’s softened his views toward Yale. In the past, at least, he has not been especially proud of his time in New Haven because he believed he only was accepted there due to the school’s affirmative action policy, and he somewhat famously stuck a fifteen-cent price tag on his diploma as a signal of the value he placed on his Yale degree. Some commentators noted that Thomas in fact has been warming up to Yale more recently, but any deep analysis beyond this would not appear to yield anything of great significance.

Instead of moving straight along with things, though, I think this occasion does offer a good opportunity to remember that there were good reasons for Thomas to keep his silence. Beyond the personal ones, which he has clearly set forth in his autobiography and elsewhere, it is helpful to remember that the written briefs, as Thomas has said, are “far more important” than oral arguments, which, nine times out of ten, do not change his position. Naturally, there is reason to believe that he is not the only justice who takes this view, even if he is the only one who will say it out loud.

___________________________________________________________________

Previously

Silent Justice – My full remarks on the fourth anniversary of Justice Thomas’ silence at oral arguments

Third Party Wasted

The Constitution does not mandate America’s de facto two-party system; it does not mention political parties at all. Yet while the identities of the parties– in both name and platform– have changed over time, the United States has been a two-party country really since before day one.

There is much to be commended about the two-party system as it exists in the U.S. today. The conglomerate, dynamic nature of the parties means that the they evolve by competing with each other to attempt to absorb new movements and the votes that come with them. (Cf. Democrats and Greens with Republicans and Tea Partiers. The question of what happens once that absorption takes place– the assimilation– is a subject for another post.) It really is not so dissimilar from multiparty, parliamentary-style democracies, the difference being that those systems wait until after an election to form a coalition government, while the American system forms would-be governing coalitions before the election.

The third parties that persist in a two-party system like America’s without absorption generally are of two kinds: 1) the very unpopular or 2) the fundamentally opposed to both major parties. An unpopular faction will not be absorbed because it either is merely unpopular in the numerical sense or it is unpopular in the ideological sense. An unpopular faction is unlikely to coalesce into a functional political party for a variety of practical reasons.

The second variety of third parties mentioned is all that really remains for third parties under today’s two-party system. Because the major parties cover virtually the entire spectrum of substantive interests, the only thing left for a third party is to oppose both parties at some fundamental level, and that’s what America’s two most viable third parties– the Green and Libertarian Parties– are doing. Dissecting why the Green Party persists is a subject for another post. This post, unsurprisingly, will focus on the Libertarian Party.

I’ve already written at length here about libertarianism and some of its challenges. See, e.g., here, here, and here. With next week’s presidential election looming, the immediate question is whether it makes sense to actually vote for a third-party candidate. Most Americans profess concern with the notion that their vote “count.” People most concerned that their vote doesn’t count tend to be those in states with large populations and states that heavily favor the major party other than the one they support. This year, with the broadening popularity of Libertarian Party presidential candidate Gary Johnson, some are wondering whether a vote would be a wasted vote. The unstated basis for that view is the logical assumption that Johnson will not win the election.

That is a self-fulfilling prophecy, of course. There’s no way Johnson can win if nobody votes for him, whatever their reasoning; conversely, if enough people ignored that assumption and voted for him, he would win. Still, though, that is unlikely to happen either, because there don’t appear to be enough people who would even consider supporting Johnson regardless of their expectation of his success.

I think the real underlying sentiment among voters is that they want to pick a winner. In other words, they want their votes to “count” in the sense that they want their votes to achieve something. If there’s no reasonably likely way the candidate will win or even come close, people will see a vote for that candidate as a vote that was “wasted.” The vote had no hope of achieving anything.

Johnson has embraced the “wasted vote” concept:

“Wasting your vote is voting for somebody that you don’t believe in,” an impassioned Johnson said. “That’s wasting your vote. I’m asking everybody here, I’m asking everybody watching this nationwide to waste your vote on me.”

His statement includes an important response to the “wasted vote” critique that seeks to redefine the concept: “Wasting your vote is voting for somebody you don’t believe in.” He realized he needed to add a practical goal, though, to help people see their votes as votes that would “count” in that second sense of achieving something, even if it wasn’t an outright victory for their candidate. He has done that by setting a goal of securing five percent of the popular vote nationwide, an achievement that would entitle the Libertarian Party to public campaign funding (something the major parties now have rejected, with President Barack Obama setting a record by raising over $1 billion) and a spot on the ballot in every state in the 2016 election. This is a goal the potential achievement of which Johnson believes his potential supporters will see as sufficient to consider a vote for him as one that will “count.”

Everybody likes to pick a winner, and everyone wants to be on the right side of history. Letting the perfect become the enemy of the good isn’t always practical. But maybe it’s worth reexamining our approach to voting if we find ourselves voting for a candidate other than the one we want to win the election.

Johnson may not win this election. He may not even make it to five percent of the national popular vote. (After all, the most successful third party campaign, Ralph Nader’s 2000 effort for the Green Party, only secured 2.74% of the popular vote. Right now, Johnson is polling at six percent nationwide.) What he already has done, though, is initiated a compelling discussion about reconceptualizing how Americans vote. All he needs now is five out of every one hundred voters to agree that that is a conversation that should continue.

“Come waste your [vote] with me”

Remembering to Vote: Memory and Suffrage

Last month, the Supreme Court heard oral arguments in three consolidated cases, Perry v. Perez, Perry v. Davis, and Perry v. Perez, all having to do with state and federal elections in Texas. The cases are complicated for a number of reasons, and they even seemed to give the usually confident justices some trouble, as Lyle Denniston’s report on the oral arguments for SCOTUSblog indicates. The situation is complicated in terms of both procedural and substantive law, as there are challenges to Texas’ policies on different grounds in different courts, with a number of different entities all advancing their own remedial proposals, all with a pressing deadline that requires some solution in time for state primaries ahead of this fall’s general election. At the root of these cases, though, are fundamental questions about the Voting Rights Act of 1965, a central piece of the civil rights legislation of the 1960s that already has been facing some fundamental questions in the last few years. In 2006, after much debate, Congress voted to extend the expiring legislation for another twenty-five years, and in 2009, the Supreme Court avoided ruling on the constitutionality of a key provision of the Act while expressing doubts about its ongoing constitutionality. See Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. ___ (2009).

Voting Rights Act litigation usually focuses on one or both of two sections of the Act. Section 2 contains the Act’s general rule against voting discrimination. Section 5, the more controversial of the two, requires certain identified jurisdictions, typically in the South, to seek approval from the Attorney General before making changes to election procedures.

In an excellent and extensive piece that followed the Northwest Austin decision, Joel Heller outlined the Voting Rights Act’s legal landscape and argued that the interpretive tools and sources of authority upon which the Court relies in its Voting Rights Act (“VRA”) cases “present historical, ideological, and statistical perspectives on the question of the continued necessity of § 5, with an especial focus on the South. They tell divergent stories about history, race and  voting.” Joel Heller, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 3 (2011), avalilable here. What’s missing, according to Heller, is “the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same concerns as the VRA. Specifically, a prominent theme in Faulkner’s work is the power of memory in the South and the ongoing influence of the past on contemporary actions and attitudes.” Id.

As a legal matter, Heller argues that it’s appropriate for courts to consider literature:

Literature can serve as a probative tool for understanding and evaluating policy because it is often, like law, a response to social problems. Especially with a measure like § 5 that touches on such fundamental matters in American society as racial equality and voting rights, Congress and the courts should make every effort and consult every relevant source in order to understand fully the issues at stake. As a chronicler of the pre-VRA South that Congress was responding to when it enacted and reauthorized § 5, Faulkner could prove a valuable resource in this undertaking. Ignoring his examinations of the role of memory in this context risks losing out on the insights of a uniquely astute observer of Southern culture and psychology.

Id. at 4.

The ongoing question in VRA § 5 litigation is whether the prophylactic measure still is needed, and this inquiry requires a court to determine what evil remains present in the governed jurisdictions and whether that evil necessitates the continued application of § 5. Heller continues:

Just as § 5 is a solution uniquely concerned with the past, Faulkner’s novels show that the lingering power of the past is also part of the problem. Rather than punishing the sons for the sins of the fathers, § 5 can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present. . . . By focusing on the extent to which “things have changed in the South,” the Court ignored the possibility that, for some, “the past is never dead, it is not even past.”

Id. at 4-5. In short, Heller has identified a theme common to the creation, implementation, and judicial interpretation of § 5 and Faulkner’s novels: “the question of how the past and memories of it continue to shape current attitudes and actions.” Id. at 28.

Heller’s article is thorough and thoughtful, and after thinking about it for four or five months, I still find little to add to it or comment upon. As a matter of mere judicial mechanics, strict jurists may reject the notion that judges should consider much beyond the language of the statutes and rules at issue in the case, but they would completely miss the point of the article. Moreover, where courts in VRA § 5 cases already routinely are considering things beyond the narrow scope of legal authority, judges’ abilities to define the bounds of permissible authority for consideration are diminished. In this vein, Heller has made his case for the necessity of the inclusion and consideration of material like Faulkner’s works, which speak to the very inquiry in which the courts in these cases are engaging in both a historical and thematic manner.

The full text of the article is available for download here.

Quantity Debates and Media Neutrality on the Campaign Trail ’012

To date, the candidates in the Republican presidential primary have participated in at least seventeen televised debates. For comparison, by this time in the 2008 campaign, the GOP had held nineteen (of an eventual twenty-one) debates and the Democrats had held twenty (of an eventual twenty-six). Whether it is the revolving-door nature of the top of the Republican field or the shrinking number of viable candidates (at most, four right now), though, this exercise is beginning to feel tired to many.

The reason this feeling persists at this stage may be that, in the aggregate, the debates do not seem to be progressing. We are not really learning anything new about the candidates in this context, and repetition or representation for the sake of catering to the still-undecided or underinformed holds less weight in the age of CSPAN and YouTube. To put it mildly, these are not the Lincoln-Douglas Debates in terms of either substance or practicality.

Given these circumstances, it is not terribly surprising that things mostly have devolved to name-calling. To a certain extent, what else is left for Mitt Romney to do but call Newt Gingrich a “lobbyist”? As between the remaining Republicans, all of the issues and policy positions have been hashed out, the candidates have to say something when it is their turn in the debate, and Ron Paul and Rick Santorum aren’t exactly surging ahead by staying on message.

What is surprising, or maybe just disappointing, though, is the vanishing political media during the campaign. It is true that we look to the media for basic reporting (who, what, where, and when) first and criticism second, but here, they’re outsourcing even their primary obligations, and the reports essentially are hearsay. The basic story of the past few days goes like this: “Mitt Romney says Newt Gingrich is a lobbyist. Gingrich says Romney is dishonest.” In every report I have heard or read on this issue, the media has failed to investigate or elaborate on the ground-level issue of how Gingrich spent his time after leaving Congress. Was he working as a lobbyist? The media answers: “Mitt Romney says he was.”

That cannot be the answer, though. From a factual standpoint, it may or may not be the answer; indeed, the answer may be factually complicated. From a vocational standpoint, however, the answer must constitute something more than mere readers’ theater. I don’t think all journalists and media outlets need to make like The Washington Post’s Fact Checker– one of the services the media provides is taking the time to sift through and distil the details so the rest of us don’t have to– but some modicum of investigation would seem to be necessary.

I am not sure why so much of the media becomes static and passive when covering campaigns. While some operations, like MSNBC and FOX, may go overboard in their investigatory engagement with political stories, are others going overboard in their attempt to present an image of neutrality? In a short, dense post last week, Eric Freeman wrote that the political media’s coverage of campaigns and politics mirrors sports media’s coverage of athletes and athletic contests. Freeman doesn’t directly answer the why question posed here, however, but he may shine some light on a possible answer.

Critics of news media often say that political coverage is unsatisfying because the networks and other outlets focus too much on entertainment. Television, radio, and print media must raise money to operate; advertising is a good fundraising technique; advertising is worth more if the audience is larger; a good way to increase audience is to present stories and other material that is entertaining, sensational, and otherwise attention-grabbing, even if it ultimately proves light on substance. While there seems to be some truth in the general capitalist tale that consumers are catered to based upon their interests but also are told what their interests should be, Freeman’s analogy suggests a simpler story that doesn’t involve news corporations duping their audiences: we look at and understand politics the way we look at and understand entertainment, and our news media therefore covers politics like others cover entertainment. CNN’s coverage of the primary debates sounds like The Soup‘s coverage of The Real Housewives of Atlanta. The most cutting commentary on campaigns comes from the comedians at Saturday Night Live. Comedians can be excellent, substantive social critics, see supra, here (penultimate paragraph), but SNL gets mileage out of playing up the candidates gaffes, not internal inconsistencies in policy proposals. “Undecided” GOP voters who say they need more debates to make up their minds really are asking for the networks to pick up Episode 18 of this season of The Real Candidates of the Republican Party. At this point, the set of options is defined, closed, and known; for the truly undecided, all the answers must come from within.

Herman Cain and the Right-Libertarian Conundrum

I caught Piers Morgan’s interview of Republican presidential candidate Herman Cain last month. It was the first time I had heard Cain speak, and I was surprised at the strength of the libertarian strain in his views. He neither labeled nor cleanly presented his positions as such, but Cain made clear that he does not think the government has a role in private-sphere, individual decisions like abortion. Cain personally  thinks things like abortion and same-sex marriage are wrong, but he doesn’t think the (federal– he’s running for president) government should be making such decisions for people.

Theoretically speaking, there are two types of libertarians– Left and Right libertarians. The former believe that economic equality is required for people to be free; in other words, they must have (approximate) equality of condition and freedom from basic want to be able to pursue the good life on their own terms. The latter, by contrast, believe that equality of opportunity is what is important, and that legal and economic independence (rather than equality) is required for freedom. Right libertarians tend to hold socially conservative preferences as a personal matter but do not seek to impose those views on others.

The trouble for libertarians comes when their personal views conflict with their political views. Abortion is a prime example. Social conservatives think abortion is wrong because it is tantamount to– or is– murder. As libertarians, however, they say that the government ought not infringe on a woman’s right to chose whether to have an abortion. This brings the key tenet of libertarianism— the right of each individual to pursue, free from government intervention, his or her own definition of the good life– into conflict with the equally important limitation on that key tenet– one’s actions in pursuit of one’s self-defined good life cannot infringe on another’s pursuit of the good life. Killing would qualify as such an infringement. If aborting a fetus is the same thing as killing any other human being, it is impermissible under the tenets of prevailing libertarian theory.

Yet most libertarians, Right and Left, oppose government restriction of abortion rights. For Left Libertarians, this isn’t too problematic. The policy view matches their underlying personal view that a woman’s right to choose prevails. For Right Libertarians, though, the problem is as described above.

This mismatched situation appears to be due to Right Libertarians’ utilization of both “definitions” of the abortion issue. While “right to choose” and “right to life” commonly are seen as two ways to describe opposing views on abortion in positive terms, Right Libertarians employ both descriptions: their political, policy view is that abortion is about a woman’s right to choose, but their underlying, personal view is that abortion is about an unborn human’s right to life. When confronted with this apparent inconsistency, can Right Libertarians really square it by replying that it’s appropriate to apply one view of the issue at the public policy level and the other at the personal level, given the seeming fundamentality of the rationale for their personal, anti-abortion view? Criminal law generally allows for different degrees of homicide, but categorically, killing is killing, and if abortion is killing, a political theory that allows people to treat as not a killing an act simultaneously believed to be a killing may not be as robust as it initially appears.

Hail “Hitler,” the Most Powerful Word in the English Language

Just hours before this week’s meeting between the Indianapolis Colts and Tampa Bay Buccaneers on Monday Night Football, Hank Williams, Jr., the face of the program for twenty-two years– more than half its existence– was a guest on the Fox News program Fox & Friends, talking politics with the show’s hosts. Early in the interview, Williams referenced President Barack Obama, Vice President Joe Biden, House Speaker John Boehner, and Ohio Governor John Kasich’s golf outing this summer, calling it “one of the biggest political mistakes ever.” Why? “It turned a lot of people off. . . . That’d be like Hitler playing golf with Netanyahu.” Williams went on to clarify that Obama and Biden are “the enemy” and endorse Republican presidential candidate Herman Cain. At the end of the segment, Williams confirmed that he used “the name of one of the most hated people in all of the world to describe the President.” The discussion apparently transitioned to sports after that. The first portion of the segment:

Williams later apologized, saying his comment was “misunderstood”:

My analogy was extreme – but it was to make a point. I was simply trying to explain how stupid it seemed to me – how ludicrous that pairing was. . . . Working class people are hurting – and it doesn’t seem like anybody cares. When both sides are high-fiving it on the ninth hole when everybody else is without a job – it makes a whole lot of us angry. Something has to change. The policies have to change.

On Tuesday, he added:

I have always been very passionate about Politics and Sports and this time it got the Best or Worst of me. The thought of the Leaders of both Parties Jukin and High Fiven on a Golf course, while so many Families are Struggling to get by simply made me Boil over and make a Dumb statement and I am very Sorry if it Offended anyone. I would like to Thank all my supporters. This was Not written by some Publicist.

(HT: @jwg31)

After Williams made the analogy on the program, a lot of his rowdy friends (but not all of them) started to back away from him. ESPN, the network that currently airs Monday Night Football, announced that it would not run his opening segment before that night’s game. It is not clear when or whether broadcast of the segments will resume.

Adolf Hitler, the German leader who rose to power in the mid-1900s, presided over the Holocaust and directed Germany’s efforts in World War II is, for many, the human embodiment of evil, and his last name is perhaps the most common, universally understood shorthand reference to evil. A comparative study in vileness probably is unhelpful, at least here, and Hitler undoubtedly ranks near the worst of humanity’s worst, although there unfortunately are a number of options. It seems clear, though, that he is the most infamous terrible person of the terrible lot.

This may be due to our temporal proximity to his life– there are living veterans of WWII and living Holocaust survivors– but I don’t think so, and not just because we have seen evil leaders since Hitler’s death who failed to garner the same cache for evilness. Most all historical figures eventually become caricatures because it is too difficult to compress lives, often long and complicated, for later, disembodied understanding. What’s happened with Hitler seems to be different and rarer though, additionally notable because of the short time in which it has occurred. More (less?) than a label for a caricature, his name has become a word unto itself, or nearly so. “Hitler” has become a synonym for “evil,” not merely synonymous with it. Upon hearing the word, one does not think of the man or retrieve a mental image of his face; rather, one only thinks of the concept of evil, as if one had heard the word “evil.” Overuse has not cheapened or diminished the awfulness of the historical Hitler, as Jon Stewart argued. As the reaction to Williams’ analogy demonstrates, the strength of the reference persists, and the ease with which people can use “Hitler” illustrates the linguistic distance between the word and the man.

This separation is notable for its rarity (though not its exclusivity, cf. Ponzi), and for its extremity. With the probable exception of one other word, uttering “Hitler” is more likely to get you into hot water than anything else, particularly when used in a descriptive way, as discussed above.

The purpose of this post is not to humanize Hitler or justify uses of “Hitler” but to observe that his name has become a word, and indeed one of the most negative words in the English language. (Even writing publicly on the topic I am filled with the feeling that I need to include a sort of disclaimer like the preceding sentence.) Nor is the purpose to defend Williams– he just happens to be a recent, visible example– although his defenders, including the hosts of The View, certainly have viable arguments. See supra. All that’s left, then, is to invite you to share your thoughts, particularly on the word-usage issue, in the comment section below and look back at the genesis of the now-troubled marriage between Bocephus and Monday Night Football:

Guest Post: How Much Doubt?

My newest co-writer over at ALDLAND, commodawg, shared his feelings on last night’s execution of Troy Davis, who was convicted of the 1989 murder of a Savannah, GA police officer:

How Much Doubt?

Stuck working late in the office last night, I found myself compulsively reloading the Atlanta Journal-Constitution page chronicling the minute-by-minute developments in the Troy Davis proceedings.

For those of you not familiar, Troy Davis was found guilty of murdering an off-duty police officer in Savannah and sentenced to death.  Since then, a majority of witnesses have recanted their testimony, including one who testified that Davis had confessed to him. Multiple problems with the police investigation, including police coercion and a lack of physical evidence, as well as Davis’ defense, have been uncovered.  At least one juror has said he would have voted against conviction.  Even former Texas judge and FBI Chief under Reagan, Bush, and Clinton, William Sessions, called for a stay of Davis’ execution.

Despite these developments, Davis was not given any reprieve, as the Georgia court hearing his case required not that he demonstrate that there was reasonable doubt in the State’s original case, but rather that he clearly establish his own innocence.  The court found the recantations and other exculpatory evidence unequal to this task, and the various appellate courts eventually upheld that determination.

Last night, as Davis’ lawyers tried unsuccessfully to avoid Davis’ 4th scheduled execution, I had a sinking feeling, and it was one that only deepened with the inevitable news that Davis had been executed after the U.S. Supreme Court denied his last minute plea.

Without much time to dwell on it last night, two pieces this morning brought a little more clarity to my feelings of angst.  First was a little rant on the legal blog Above the Law.  By far the more polemic of the two, it calls attention to the fact that people are getting lost in the question of Davis’ guilt or innocence, and not in the fact that execution is simply a form of state- and society-condoned murder.  It certainly jived with my own stance on the death penalty (and who doesn’t love positive-reinforcement?).  The second, a piece on Slate, took a more academic approach, asking to what extent we’re willing to sacrifice the certainty of knowing we’ve reached the correct verdict (in this case, convicting the right individual) for the goal of providing finality to the judgment and closure to the victim(s).  How much doubt is too much?  How much error — and there is no denying that errors occur — is acceptable?

Regardless of your stance on the acceptability of capital punishment in theory, are cases like Davis’ (or Cameron Todd Willingham’s) ever enough to dissuade you in practice?

More from commodawg here.

Backwards Down The Number Line?

The disconnect between the principles and practices of the new wave of ostensibly fiscally conservative politicians may not be a unique feature of those serving on the federal level. As I previously noted, U.S. House Republicans, behind the fiscal leadership of Rep. Paul Ryan, may be a bit mixed up when it comes to the privatization of healthcare benefits. The situation at the state level, where Michigan legislators, with the strong support of Governor Rick Snyder, have eliminated state income tax credits for charitable donations, is a bit more conceptually nuanced.

Earlier this month, the Flint Journal reported on the policy change:

As part of a massive tax reform bill signed into law last month, all state income tax credits for charitable donations were eliminated to help close Michigan’s $1.5 billion budget deficit.

The tax measure is expected to save the state $35 million or more a year. . . .

In 2009, the $35 million the state gave back for tax credits leveraged nearly $100 million in charitable giving to nonprofits.

Kristin Longley, “Michigan income tax credits for donating to charities end next year,” Flint Journal (June 13, 2011). In eliminating the tax credit, Snyder “relied on research that showed charitable giving doesn’t necessarily hinge on a tax credit, but rather a personal cause or inclination toward generosity.” Id. 

As best I can tell, economists of all stripes probably would agree that, as a general policy matter, eliminating tax credits is good because a broader tax base taxed at a lower rate is preferable and less distorionary, and because “tax credits,” more properly termed “tax expenditures,” are a less transparent form of government spending. (For more on these ideas, see my earlier comment here.)

By eliminating tax credits, Snyder is trimming government spending, an unobjectionable outcome for fiscal conservatives. Charitable donations may present a special case, however, for the fiscally conservative view that government should tax less so that it spends less in order to stay out of the way of the private sector, which, the view holds, can provide services more effectively and efficiently. A perhaps less frequently enunciated, but necessary tenet of this view is that citizens freeing themselves from the burden of compulsory wealth redistribution (i.e., taxes to fund social services) must personally shoulder the burden of private charity. To do otherwise (just as to privatize services even where privatization will lead to less effective and more inefficient provision of those services) is simple greed, and greed is not the basis of fiscal conservatism or any other viable political theory.

Does elimination of the charitable donation tax credit do more to benefit the provision of private charity by allowing taxpayers to hold more money for that purpose, rather than filter it through the governing apparatus, or does maintaining the credit do more to benefit the provision of private charity by (imperfectly) removing money from the public taxing-and-spending cycle funds that no longer need to be used for publicly provided services? (At the very least, there is an empirical tax question here that is beyond my grasp: does the state net more money by eliminating the tax credit that it can turn around and spend on public services, do taxpayers end up with more in their pockets for private charity under the broad-base/low-rate tax structure, or is the best result an appropriately valued tax credit combined with a decrease in public spending on services?)

In debating the elimination of the credit, the two sides seem to be talking slightly past each other. The Governor’s view, in part, is that elimination of the credit is acceptable because the credit “doesn’t necessarily” provide a real incentive for giving– people decide to give based on other reasons. Proponents of the credit, though speaking with multiple voices, seem to see the credit as part incentive (to do good), part reward (for having done good), and part compromise (by freeing more assets for private use without evaporating resources for public services). In other words, the credit is more than an incentive, and saying that it may not function as one is not a complete justification for its elimination.

State-level politicians may simply be choosing among competing fiscally conservative values in this case, rather than being (apparently) ignorant of them, as in the federal-level situation I previously described. I do find merit in the broad push to eliminate tax expenditures, but I think it is worth asking whether charity presents a special case worthy of exceptional treatment.

Phish – “Backwards Down the Number Line,” Joy (2009)

Whither Private Sector Efficiency?

An article on the front page of yesterday’s USA Today described the new budget plan Republicans introduced earlier this week that would “dramatically revamp the twin health care pillars of the Great Society, taking a huge political risk that could reverberate all the way to November 2012 and beyond.” Richard Wolf and Kelly Kennedy, “GOP seeking dramatic changes in Medicare and Medicaid,” USA Today (April 6, 2011). Behind the economic leadership of Rep. Paul Ryan, House Budget Committee Chairman, the Republicans are proposing fundamental changes to the federal Medicare and Medicaid programs. ”‘Our goal here is to leave our children and our grandchildren with a debt-free nation,’ said Ryan, 41, of Wisconsin. ‘At stake is America.’” Id.

For those who have tracked the recent rise of fiscal conservatism among Republicans at the national level, news that they are targeting large government programs for reductions is unsurprising. What might be surprising, however, are some of the effects of the GOP plan to privatize Medicare and shift Medicaid to state-level administrators:

Medicare, the government-run health insurance program covering about 47 million seniors and people with disabilities, would be run by private insurers and would cost beneficiaries more, or offer them less. Medicaid, the federal-state program covering more than 50 million low-income Americans, would be turned over to the states and cut by $750 billion over 10 years, forcing lesser benefits or higher co-payments. Social Security eventually would be cut, too.

Id. If these projected outcomes are accurate, they raise questions about the Republicans’ application of conservative fiscal theory.

During George W. Bush’s presidency, Republicans remembered well enough that they favored low taxes, but they appeared to forget why they took that position. In doing so, they created a deficit by continuing to spend at high levels rather than reduce spending to match the reduction in tax receipts.

If USA Today is right that the twin pillars of The Great Society are Medicare and Medicaid, where does that leave Grace?

Now, Ryan and his colleagues appear to have reconnected low taxes and low spending but forgotten why they favor low spending. The idea behind a push for lower taxes and spending, of course, is that it forces government to shrink and permits the private sector to expand. This is desirable because, from the proponents’ perspective, the private sector can provide goods and services more efficiently (cheaper and more effectively) than would be possible in the public sector (i.e., government). The economic calculus of privatization can be complicated, but the results presented in the above article– higher costs and reduced services– do not sound like efficiency gains.

Under conservative economic theory, small government is desirable, not as an end itself, but because it reduces regulatory roadblocks that inhibit the private sector. The stated results of the Republicans’ plan for Medicare and Medicaid imply that they have lost track of the practical goal the application of their theories is supposed to achieve. If the predicted results are accurate, it seems that Republicans either have unsuccessfully applied their theories or reframed small government as an end itself. Remedying the former may simply require more careful work on the part of policy makers and their economists and other advisors. The latter, however, requires a new theoretical justification.

One view, perhaps of an anarchist variety, is that the government is but another (albeit large and special) player in a market that does not distinguish between a public sector and a private one. Under that view, it may not be surprising that there are some goods and services that a traditionally “private” entity or group of entities can provide most efficiently, or that there are others that the entity known as “government” can provide most efficiently, and still others that some combination of the two can provide most efficiently. See, e.g., public-private partnerships. Looking at things in this way, the possibility that government, with its special access to virtually all individuals in the market, could provide the most cost-effective insurance program based on its economies of scale, may not be so surprising. This may not be the actual case here, but the stated results of the Republican plan to privatize services and shift them to the states– increased costs and decreased services– suggest it is a possibility.

If small government itself is a goal, detached from private-sector efficiency gains, for the new group of House Republicans, their “pro-business” stance appears much less principled.

Homo Erectus Corporatus: Evolution of the Corporate Corpus

Much was and continues to be made of the U.S. Supreme Court’s ruling in Citizens United v. Federal Election Commission, 588 U.S. 50 (2010) that the First Amendment prevents the government from limiting the political speech of corporations and unions as it had under the Bipartisan Campaign Reform Act of 2002 (the McCain-Feingold Act). See generally here and here.

Randy Travis: "A pretty natural kinda person."

The decision sparked a discussion about corporate personhood. Cf. here (discussing corporate responsibility). For those who agreed with the outcome, the notion that corporations had civil rights akin to those of natural persons was obvious: after all, corporate entities can sue and be sued, pay income tax, and even can be members of other legal business entities, just like ordinary people. For those who did not, the concept that an organizational creation of the law would have First Amendment rights was plainly absurd. Despite the protests of those opposed to the ruling, such as the American Constitution Society, however, the ruling stands, and no immediate challenge is on the horizon. It wasn’t always so obvious, however, that the law should treat corporations like humans.

In 1809, when the Supreme Court still had February Terms, Chief Justice John Marshall for a six-member majority in Bank of the United States v. Deveaux, 9 U.S. (5 Cranch) 61 (1809) held that, for purposes of federal diversity jurisdiction, corporations were citizens of a sort. Marshall recognized the apparent conceptual conflict that remains today, and, after citing a series of British legal authorities, stated his conclusion:

As our ideas of a corporation, its privileges and its disabilities, are derived entirely from the English books, we resort to them for aid, in ascertaining its character. It is defined as a mere creature of the law, invisible, intangible, and incorporeal. Yet, when we examine the subject further, we find that corporations have been included within terms of description appropriated to real persons.

Id. at 88. Despite this language, the Court’s view was that the corporation was not really independent of its shareholders, and its state citizenship was to be determined based on their state citizenship.

By 1844, the Court believed its Deveaux decision had been “carried too far, and that consequences and inferences have been argumentatively drawn from the reasoning employed in [that case] which ought not to be followed.” Louisville C. & C.R. Co. v. Letson, 43 U.S. (2 How.) 497, 555 (1844). In overruling Deveaux, the Letson Court held that a corporation is a citizen of the state in which it was incorporated, independent of the locations of its human shareholders. Id. at 557-58.

A corporation created by and doing business in a particular state, is to be deemed to all intents and purposes as a person, although an artificial person, an inhabitant of the same state, for the purposes of its incorporation, capable of being treated as a citizen of that state, as much as a natural person. Like a citizen it makes contracts, and though in regard to what it may do in some particulars it differs from a natural person, and in this especially, the manner in which it can sue and be sued, it is substantially, within the meaning of the law, a citizen of the state which created it, and where its business is done, for all the purposes of suing and being sued.

Id. at 558. The Letson Court, by severing the link between the corporate person and the human person, thus created a more independent form of corporate personhood.

In 1958, Congress enacted 28 U.S.C. § 1332(c)(1), which provides that “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business,” with no mention of the citizenship of shareholders, directors, or other representatives.

Board of Directors and CEO of Murder, Inc.

In some ways, then, the Citizens United decision is not surprising when viewed in the context of the progression described above. If a corporation may sue and be sued of its own accord, independent of the humans who own and operate it, it already has the due process rights afforded all civil litigants. If the entity uncontroversially possesses some set of rights, how controversial is it that it should possess a broader set of civil rights beyond those attendant to the processes of civil litigation? Alternatively, because the basis for even those uncontroversial rights is a legal fiction, does it make sense to extend the scope of privileges beyond that which is absolutely necessary?