George Will's False Constitutional Dichotomy

George Will offered a recent lecture on the U.S. Constitution in an editorial that falls victim to one of Will's trademark logical fallacies, the hollow man. Will suggests that he borrowed his argument from a book by Timothy Sandefur, who Will characterizes as conservative but who is more commonly and accurately described as libertarian,

The argument is between conservatives who say U.S. politics is basically about a condition, liberty, and progressives who say it is about a process, democracy. Progressives, who consider democracy the source of liberty, reverse the Founders’ premise, which was: Liberty preexists governments, which, the Declaration says, are legitimate when "instituted" to "secure" natural rights.

The hollow man argument is one in which you ascribe to those who don't share your view a position that few to none of them hold, but that is easily batted down. Such a demonstration is usually followed by vigorously patting oneself on the back. Will departs from his traditional hollow man arguments, in that rather than simply making up a position he ascribes to liberals or progressives, here he has borrowed Sandefur's. Nonetheless, I think he would be hard pressed to find an appreciable number of progressives who blurt out, "Democracy!" when asked to identify the purpose of the Constitution, let alone the constrained concept of Democracy that Will presently deplores.

Further, to the extent that some of the political left might blurt out "Democracy!", so might some on the political right. Consider, for example, this guy:

After half a century of misconstruction, the First Amendment cannot be helped by a piddling-fiddling amendment about the flag. It needs serious thought about why the Amendment's framers, who used words more carefully than the court does, used the word "speech" rather than "expression." The answer is that speech, meaning the use of words, is the sine qua non of reasoning and persuasion, and hence of democratic government. Democracy is, after all, the point of the Constitution, to which the Amendment is appended.

The person who wrote that essay was also not so keen on the elevation of individual rights over those of the community,

[Both flag burning and abortion] involve a particularly American tension between the values of individualism and community. Actually, the rights of communities are so attenuated that there is not nearly enough tension....

The fundamental problem is a social atmosphere saturated with a philosophy of extreme individualism. In many manifestations this philosophy is anti-democratic because it overrides the right of the community to speak and act. This philosophy has been absorbed by many judges, including some so-called conservatives, who have supported the assault on the rights of the community.

In short, a younger George Will thought it absurd that the constitution might be construed to protect symbolic speech, as opposed to words that flow from your mouth (or from the printed page), and was contemptuous of giving constitutional protection to reproductive freedom. He saw the core of the Constitution as being about democracy, and was disdainful of the elevation of individual rights over constraints that the larger community wished to impose. He openly questioned the conservative bona fides of those who advanced individualism over community. It's possible that Will changed his mind, although his writings do not suggest an actual evolution of thought. It seems more likely that he forgot his past words, written in what he likely believed to be a time of conservative ascendency, and that his present position is inspired by his fear that the Republican Party is on a downward trajectory. After all, democracy is more fun when you're winning.

Contrary to Will, I don't believe that if you asked random liberal and conservative voters, "What is the purpose of the Constitution", you would get a majority of liberals arguing "to protect democracy" or a majority of conservatives aruing, "to protect individual rights". I also think that, whatever the initial response, both groups would acknowledge that the Constitution does, in fact, protect both democracy and individual rights. I think he would find vanishingly few people in either faction who would articulate the conception that democracy is a "process" and that individual liberty is a "condition".

The essential argument advanced by Will, paraphrasing Sandefur, is unconvincing:

Progressives consider, for example, the rights to property and free speech as, in Sandefur’s formulation, "spaces of privacy" that government chooses "to carve out and protect" to the extent that these rights serve democracy. Conservatives believe that liberty, understood as a general absence of interference, and individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified. Merely invoking the right of a majority to have its way is an insufficient justification.

Sandefur works for an organization that actively opposes eminent domain, and that appears to color and perhaps dominate his perception of this divide. After all, the most notable cases of eminent domain have occurred in urban areas in the name of urban renewal, and it follows that a lot of the governments advancing that renewal are Democratic.

There is a problem within that sphere, in that many Democrats are not comfortable with the government taking private property for a public purpose, particularly a nominally "pubic purpose" that involves handing seized land over to private developers. But more than that, when you move outside of that narrow sphere, the conceit collapses. When it comes to protecting the rights of marginalized and disenfranchised groups, progressives have consistently taken the lead. When the left embraced the civil rights movement, the Republican Party embraced the Southern Strategy. In the present push for equal rights for gay Americans, leadership comes almost exclusively from the left and resistance almost exclusively from the right. When it comes to reproductive freedom, it has not been the Republican Party that has taken the position that "individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified". Quite the opposite.

Will embraces an odd argument, advanced by Sandefur, that you should derive your beliefs about the Constitution's purpose not from the Constitution itself, but from the Declaration of Independence,

The Constitution is the nation’s fundamental law but is not the first law. The Declaration is, appearing on Page 1 of Volume 1 of the U.S. Statutes at Large, and the Congress has placed it at the head of the United States Code, under the caption, “The Organic Laws of the United States of America.” Hence the Declaration “sets the framework” for reading the Constitution not as “basically about” democratic government — majorities — granting rights but about natural rights defining the limits of even democratic government.

Alright, then, let's take a look:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Is it actually possible to read the Declaration of Independence and miss its emphasis on democracy and the consent of the governed?

I do have some sympathy for some of Sandefur's arguments, as stated by Will. In Will's formulation, which I am accepting as accurate, Sandefur deplores the manner in which the Privileges and Immunities Clause of the Fourteenth Amendment was effectively written out of the Constitution by the Supreme Court. I also appreciate Will's argument that the purpose of the constitution is not to leave the rights of the individual to the mercy of the strong, although I again have to note that, outside of certain narrow spheres, the protection and advancement of individual rights has been largely a concern of the political left. I'm impressed that Will has moved away from his past narrow textualism, now arguing that an "individual’s natural rights... include — indeed, are mostly — unenumerated rights whose existence and importance are affirmed by the Ninth Amendment", and I would be pleasantly surprised if Will revisited some of his past positions in light of his new understanding of the Constitution.

I'm not sure what to make of Will's embrace of judicial activism,

Many conservatives should be discomfited by Sandefur’s analysis, which entails this conclusion: Their indiscriminate denunciations of “judicial activism” inadvertently serve progressivism. The protection of rights, those constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution is “basically about,” which is making majority power respect individuals’ rights.

Is Will acknowledging the obvious: that much of what has occurred in recent decades in advancement of conservative causes has involved rampant judicial activism by Republican-appointed judges? Is he embracing the notion of a "living constitution", one that should not be interpreted by its actual language but should instead be interpreted consistent with a contemporary view of individual rights? By what measure are courts to decide cases, in the process upholding and defending the Constitution, if not the language of the Constitution? Perhaps Will is arguing that he sees a great need for conservative judicial activism as a counter to democracy, not so much to protect individual rights as to protect his conception of conservatism from voters who keep electing Democrats.

In Your Face, Tomasky

While commenting on Paul Krugman's academic salary, which is lower than one might expect, Michael Tomasky uses the salaries at the University of Michigan Law School to make a point about Krugman's compensation:

While researching something else, I took a glance at the salaries given to faculty at the University of Michigan Law School. Nearly three-dozen faculty members there make more than Krugman’s $225,000. Fourteen are north of $500,000. Well, that’s law school, you might argue, they have to pay more. Maybe. But I can promise you you’ve never heard of them (except maybe Catharine MacKinnon, at $297,000).

I've actually heard of quite a few of them. (Is it cheating that, a couple of decades ago, I attended UM Law School?)

The funny thing is, the lesson I draw from the UM salary figures is that both salary bloat and the Peter Principle are alive and well. For some of the names on the list, compensation figures seem low -- but, like Krugman, the professors who seem underpaid have other, often substantial income streams from their publications and consulting work. Some of the numbers seem... wrong. As much as I respect the man, by way of example, I find it very difficult to believe that Judge Timothy Connors pulls in over $600K per year as an adjunct lecturer. David Lat publishes a different set of figures here, the top paid UM professors from 2012 to 2013, and although lecturers aren't technically professors... I just don't see it. If anybody can shed light on the peculiar figures (e.g., Judge Rhodes, a brilliant bankruptcy jurist, listed as receiving a salary of $566,666.68 as a "LEO Intermittent Lecturer") I would love to hear the explanation -- and to get tips on how to get that sort of compensation while moonlighting as a lecturer.

I have personal experience with some of the professors who are unquestionably paid a greater salary than Krugman. One is a brilliant man who, regrettably, could make a fortune if only he could bottle his lectures and sell them as an insomnia cure. Two are among the worst professors I've ever endured, one having demonstrated little interest in preparing for class and making casual, absurd statements during her lectures, and another being both intellectually lazy, and prone to narcissistic outbursts when corrected in class. (The lesson is: Don't correct him. You will pay.) One is among the hardest working, exacting people I've ever encountered in any sphere of my life. Another is brilliant within his field, with an encyclopedic grasp of his subject and an amazing ability to make it accessible to his students. One is probably the nicest people I've encountered in academia, with a dedication to teaching that seems too often absent from the classrooms of an elite law school. One, who I know only by reputation, was remarkable in her ability to draw her students into her philosophy of law. There are a few others who I know by reputation.

I know a few of the names of people who earn less than Krugman, as well. It's interesting to see how the compensation for certain clinical professors has risen -- I expect that comes from the increased emphasis on clinical law programs over the past twenty years, with an associated increase in demand for professors skilled enough to lead an effective, attractive law clinic. Some of the clinical professors date back to when I was at UM, and I worked with a couple of others when I was at ICLE. One of them graduated from UM a year before me, and I also remember him from classes (where he was obviously brilliant). A person from what is sort of my law school class (being a "summer starter", I fall between two years of regular graduates) is doing quite well as an administrator. A couple of others, I can count on meeting at my child's school events, as they're the parents of one of her classmates.

At the end of my review of those names and numbers, I was left with the feeling that the salaries of law school faculty reflect less of a meritocracy than would likely be achieved on a more open market. Part of that results from the absurd increases in law school tuition, funding lavish facilities (and boy, has UM Law upgraded its facilities from back in my day, when they already seemed pretty darn nice) and increased salaries. But for the better members of the faculty, I don't begrudge them their salaries. They are people who could earn as much or more (and sometimes already do earn as much or more) outside of academia. Where I find myself a bit annoyed is with the number of professors who I doubt have any greater interest in teaching than when I suffered through their lectures, and who I know haven't gotten any smarter, who seem to have floated through the years with ever-increasing salaries, praise be to tenure.

I suppose for those unfamiliar with Krugman, save for by reputation as a left-wing bogeyman, there might be a similar feeling. They might not be expressing, "That's too much money", in the sense of it's being too much to pay a high profile economist to teach at an elite university, but in the sense of, "I don't like Krugman, so he shouldn't make that type of money." As I understand it, Krugman's ability as a columnist parallels his ability as a professor, and he's capable of communicating difficult, abstract, complex topics in a way that his audiences (be they the readers of his columns or those who sit through his lectures) can understand. I think UM would do well to trade a few of its highly-paid but dubious talents to Princeton or CUNY, in exchange for Krugman as a professor for its law and business schools. But then, if Krugman were primarily focused on chasing the dollar in his academic career, it's difficult to believe he hasn't had offers on the table significantly in excess of his starting salary at CUNY.

Healthcare.gov and Human Nature

It's an unfair generalization, but when I look at the traffic that took down a defective healthcare.gov website on its first day, and the traffic that came close to doing the same on the last day of open enrollment, I can't help but wonder if there's a component of human nature that silently instructs us, "If you can't do something at the very first opportunity, you might as well put it off until the very last minute."

Paul Ryan's Buget Appeal to the April Fools

I see Paul Ryan picked an approropriate day to release his (and by "his" I mean something created by others then handed to him as the pitchman) plan to balance the budget in ten years.

Ryan's budget, called the "Path to Prosperity," has almost no chance of passing the Democratic-controlled Senate but is expected to serve as a campaign manifesto for Republicans in November's congressional elections.

It's a predictably Republican plan. The rich get their path to greater riches, and guess who picks up the tab? April fools!

It proposes to kill President Barack Obama's 2010 healthcare reforms and revives cuts in social programs such as the popular Medicare entitlement for the elderly that Ryan, who chairs the House Budget Committee, has proposed in other recent budgets.

Let me think for a moment... didn't we have a Republican claim that he was going to balance the budget in ten years, roughly fourteen or so years ago? How did that work out for us, again?

Let me remind you why ten year plans to balance the budgets are the refuge of liars and cowards:

1. Congress cannot bind future sessions of Congress. The only budget that matters is the one they pass this year.
   
   If you believe that the Republicans, given the opportunity, won't embrace deficit spending like kids in a candy store, you've missed the entire modern history of the party.

2. Unexpected events happen.
   
   If you have been asleep for the past decade or two, you may have missed a couple of wars, a global economic meltdown, and the like, but believe it or not they affect the budget.

3. Budget projections rely upon assumptions that may be reasonable in the short-term, but are unreliable in the longer term.
   
   A few years ago, for example, healthcare inflation was assumed to remain out-of-control for decades to come, yet suddenly it appears to be in check. (Ryan's response, of course, is to propose eliminating the Obama-era legislation that has played a role in that change).

4. Budget deficits aren't the real issue. The issue is whether government spending is responsible, not whether the budget is balanced every year.
   
   When the economy is in a downward spiral, it makes sense to try to stimulate growth. When the economy is booming, it makes sense not just to balance the budget but to pay down the national debt. The Republican Party takes the opposite approach, with irresponsible tax cuts and over-the-top spending during boom times, then embracing austerity during recessionary periods... if a Democrat is in the White House. The responsible approach is to keep the growth of the nation's debt under control over the long-term while maintaining flexibility for times of recession and crisis.

5. "Ten years" means no one has to be responsible.
   
   This is a typical coward's refuge. Promise to deliver something over such a long time frame that nobody has to take responsibility. If a "ten year plan" were to pass for the coming fiscal year, not only will President Obama be out of office when it comes time to deliver, but his successor will be out of office (or at the very tail end of his term). And I guarantee that his successor would have many excuses for why the plan failed, and how it's somebody else's fault, assuming anybody even remembers it.

And all of that assumes that the budget is put together with honest numbers. When dishonest politicians use distorted figures, the projection is worthless from day one.

If this weren't another childish stunt for the April fools, Ryan would offer a meaningful budget for the coming fiscal year, no hocus pocus, wishful thinking, or outright mendacity about "ten years from now". And he would be honest, "I want to cut social benefits for ordinary, working people right now, so that I can afford to continue the tax levels and spending programs that best serve the special interests that favor my political party. If my budget plan fails, the result will be that ordinary people pay a significant price, but those special interests remain on the Path to Prosperity. I will never vote to restore a penny of social spending cut in the name of this program, even if not one of the projections I'm making prove true, because the entire point of this exercise is to cut those programs."