George Will's Odd Argument for Congressional Term Limits

Although I understand the sentiment behind term limits, dissatisfaction with career legislators, a "throw the bums out" attitude, and the like, I have not been particularly impressed with the reality that they create. Specifically, rather than having perhaps a few too many career legislators we seem to end up with far too many neophytes, many of whom fully intend to have long political careers by transitioning from one office to another as they're term limited out. It also seems that the point at which many legislators are term limited out of office roughly corresponds to the point at which they finally have enough experience and seniority to actually do their jobs effectively.

George Will wrote an editorial in favor of congressional term limits, based principally upon his personal dislike of Democratic Presidents Congress's failure to assume its role in a decision to take the nation to war. Will tells us,

The president should present to Congress the case for war. The House, structurally the government’s most democratic institution (short terms, small constituencies), should express itself. The Senate, whose powers (to approve treaties and confirm ambassadors) give it special pertinence to foreign policy, and whose structure (six-year terms) is supposed to encourage sober deliberation, should speak. Then the president, through relevant civilian and military officials, executes the approved policy.

Okay, fair enough. But despite being in near-constant military conflicts since WWII, we have not had a declared war since that time. So, what gives?

What has actually transpired since Barack Obama’s Sept. 10 address to the nation has been, Corbin and Parks argue, “a parody” of propriety. In his address about the Islamic State (which did not mention Khorasan, the asserted imminent threat that supposedly justified acting without Congress), Obama spoke to the public, not to the public’s institutional embodiment, Congress, whose support he said would be “welcome,” implying that it is unnecessary. Next, the administration argued with itself about what it was that Obama was going to do without congressional approval. (This was before his press secretary identified it as war.) Then the House tacked onto a spending bill its approval of arming certain Syrians (the “vetted” moderates?) and dispersed. The Senate, having added its approval without discernible deliberation, also skedaddled.

So, pretty much what we have seen in every armed conflict since WWII, except the President happens to be a Democrat?

I've commented before on this particular failure of Congress -- and make no mistake, it is a failure of Congress. The fact is, Congress does not want to have any responsibility for the entry into our outcome of armed conflicts, and thus does its best to wash its hands of the issue. The net effect is that they delegate war-making power to the executive. Will is correct in his inference that only one branch of government can correct the imbalance that this delegation creates -- Congress, the very branch that doesn't want that responsibility.

I can't help but think of Jack Kingston's admission, some months back, in relation to Syria and ISIS:

”A lot of people would like to stay on the sideline and say, ‘Just bomb the place and tell us about it later,’ ” said Representative Jack Kingston, Republican of Georgia, who supports having an authorization vote. ”It’s an election year. A lot of Democrats don’t know how it would play in their party, and Republicans don’t want to change anything. We like the path we’re on now. We can denounce it if it goes bad, and praise it if it goes well and ask what took him so long.”

For the House of Representatives, every other year is an election year -- but truly, they never go out of election mode. Kingston correctly identifies the strategy of the opposition party -- do everything it can to avoid having any responsibility for military action, and criticize the President no matter what happens. A president's own party, though, doesn't want responsibility either, so the biggest difference is that by avoiding authorizing military action they can avoid taking responsibility for the outcome, but with less finger-pointing at the President.

Will cites a professor from a small Catholic college, who argues that Members of Congress are seeking office "for something other than the power, for power is something with which they are not merely willing but often eager to part." I think that's incorrect. I think that Members of Congress want power without responsibility, and that there remains plenty of power within the halls of Congress but that when they are looking at a context in which they may have to face voters over a bad outcome they are happy to let somebody else make the decision and take the heat. Congress as middle management. While Will seems to endorse the professor's theory, "[Congress] has an ever-higher portion of people who are eager to make increasingly strenuous exertions to hold offices that are decreasingly consequential", I have little sense that the power of Congress has in fact lessened.

The professor believes that long-term politicians who should be "more competent [and] confident" aren't standing up to the President, apparently because "something has gone wrong with Federalist 51’s assumption that members of Congress seek office for power and not perquisites", and that the solution would be term limits:

[']Members of Congress who serve for brief periods will have . . . every political reason for taking up the power available to them while they can. . . . Members so situated will be likelier to defend their branch as a branch.”

Except perhaps those new, less confident, less competent legislators will in fact be more likely to defer to the executive. And perhaps those neophyte legislators, looking at a short term of office, will be more interested in perquisites, more interested in moving onto their next jobs, than they are with legislating or standing up to the White House. What is the incentive for a Member of Congress, being term limited out of office, to take a strong stand? Congress is to soar on the wings of lame duck legislators?

erm limits are Madisonian measures, altering the incentives — the “interests” or “personal motives” — for entering and using public office. Term limits can define a conservative agenda of taming executive power by enhancing the power of Congress.

To me it seems more likely that term limits would weaken Congress in favor of the executive, and potentially make Congress even less functional. But even if I presuppose that Will is correct, I can't help but think of how recently the "conservative agenda" involved expanding executive power through the theory of the unitary executive. As Will himself once put it,

Because contemporary conservatism was born partly in reaction to two liberal presidents -- against FDR's New Deal and LBJ's Great Society -- conservatives, who used to fear concentrations of unchecked power, valued Congress as a bridle on strong chief executives. But, disoriented by their reverence for Reagan and sedated by Republican victories in seven of the past 10 presidential elections, many conservatives have not just become comfortable with the idea of a strong president, they have embraced the theory of the "unitary executive."

This theory, refined during the Reagan administration, is that where the Constitution vests power in the executive, especially power over foreign affairs and war, the president, as chief executive, is rightfully immune to legislative abridgements of his autonomy. Judicial abridgements are another matter. When in 1952 Truman, to forestall a strike, cited his "inherent" presidential powers during wartime to seize the steel mills, the Supreme Court rebuked him. In a letter here that he evidently never sent to Justice William Douglas, Truman said, "I don't see how a Court made up of so-called 'liberals' could do what that Court did to me." Attention, conservatives: Truman correctly identified a grandiose presidency with the theory and practice of liberalism.

You'll notice an inherent inconsistency to Will's thinking -- he argues that Truman, who was not a particularly liberal President, was rebuked by the Supreme court when attempting to seize control of steel mills, rendering the expansive view of executive power relatively inert until it was revived by Reagan and kicked into overdrive by George W. Bush -- and thus it's a liberal theory. Will can call it what he chooses, but to the extent that he believes that modern conservatives eschew the unitary executive in favor of a weak President, it would be because he sees in them a reflection of his own thinking -- that it's absolutely horrible that the President continues to have power when he's a Democrat -- and he can expect their concerns about executive power, like his own, to face the moment a Republican takes office.

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.

Those Unsustainable Deficits....

Incredible,

Based on the math, it is hard to justify a $250 million valuation for The Washington Post. The company reported it lost nearly $50 million for the first half of the year on its newspaper operation that generated $138.4 million in revenue. Of the $50 million loss, nearly $40 million was a noncash pension expense. So you could argue that the company lost only $10 million on operations. But it lost $33 million in the first half of 2012, too, also including pension costs. Circulation fell about 7 percent in the first half of 2013.

This is the paper that employs George "The Ichneumon Larva" Will, Charles "The Greek" Lane, Charles "Stein's Law" Krauthammer and Robert "Shoddy Quality" Samuelson? One imagines those four have already agreed to massive cuts in their pay and benefits. (And then one wakes up.)

If You Want to Defend Torture, Start By Admitting That It's Torture

Going back a few weeks, George Will wrote an editorial with a number of similarities to Richard Cohen's piece on the morality of torture, particularly in the manner in which Will substitutes his experience in a movie theater for fact-based argument. Will opens with the sympathetic quotation of Col. Nathan Jessep, Jack Nicholson's character from A Few Good Men,

“I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide and then questions the manner in which I provide it.”

That diatribe was, of course, the lead-in to the film's Perry Mason moment, when Jessup confesses to ordering the abuse of an enlisted man who ended up dead. Will seems particularly taken with the quote, "You [expletive] people... you have no idea how to defend a nation", never mind that Jessup is addressing a military court martial. Sure, it's a movie and Jessup's speech is directed at the movie audience, but his on screen attack is directed at other military officers. Jessup's honor falls short of helping the two enlisted men who carried out his directive avoid being prosecuted for murder. If Will's argument is that there should be no checks on men who believe themselves to be acting in the best interest of the nation, Jessup by this point having rejected the opinions of every other officer who suggested an alternative to the Code Red, having excused himself from the confines of the Marine Corps' regulations and Uniform Code of Military Justice, having happily allowed two enlisted men to be looking at lengthy prison terms for carrying out his orders, and having repeatedly perjured himself on the stand and repeatedly disparaged the other military officers involved in the legal proceeding, he has every right to attempt that argument. But were Will to explore some of our nation's history, including how we came to have a civilian in the role of Commander in Chief, he might come to realize that in fact a Colonel, even one who is extraordinarily self-assured, even one who is doing important work, is and should be answerable to higher authorities.

Switching over to Zero Dark Thirty, Will informs us,

Viewers will know going in how the movie ends. They will not know how they will feel when seeing an American tell a detainee, “When you lie to me I hurt you,” and proceed to do so.

Frankly, "When you lie to me I hurt you," makes for better film than "When I think you have information you're not sharing, I'll keep you awake for 180 hours," but... call it poetic license. But contrary to Will's suggestion, most viewers will have seen plenty of dramatizations that involve torture, including torture committed by Americans. Kiefer Sutherland (whose character disagreed with Jessup's approach in A Few Good Men) made something of a career of it in his series, "24". Another season, another ticking time bomb. The difference is that this is supposed to be "based on a true story", and that unlike other films based upon true stories this one is... I don't know... more graphic? Easier to confuse with a documentary?

As is his wont, Will likes to overstate the benefits of torture, blithely reciting the claims of various Bush Administration officials about how tidbits of relevant information were gleaned from the torture of Khalid Sheik Mohammed, including "the nickname of a trusted courier of bin Laden". Will implies a straight line from the disclosure of that nickname in 2003 to the killing of Bin Laden some eight years later. That's not exactly a ringing endorsement of the "ticking timebomb" defense. We cannot know at this juncture whether the nickname of Bin Laden's courier would have been obtained from Mohammed without the use of torture, but we can reasonably conclude that either the name was not of much help to the investigation or that Mohammed poured out so much information under torture that the key to finding Bin Laden was buried in a mountain of irrelevant disclosures, with wild goose chases taking priority over the identification of the courier.

The question of whether torture "works" depends both on the tactics the torturer is willing to use, and also upon the torturer's goal. For example, let's say I want to know what the enemy is up to, and I have 100 enemy operatives in custody. If I am willing to torture all of them, I can start looking for commonalities among their disclosures. Sure, there's a chance that they will have been fed misinformation and not have the information I'm looking for, but odds are I'll learn something useful. Or I'll be able to test their stories and, if my information is good, use torture to punish what I believe to be errors or inaccuracies in the hope that the subject will become terrified of being caught in a lie. It's similar to the manner in which police divide suspects and interrogate them separately, then lie about what the other suspects have said or disclosed in order to try to trick the others. Except with torture. Sure, I may end up torturing people to try to get them to disclose something that they know nothing about, and if I'm not careful I can inadvertently feed them the answers to the questions that will stop the torture and mistake their new answers for actionable intelligence, but if I torture enough people in enough circumstances I will get names, locations, and other information that turn out to be valid. And if I break down the wrong door, shoot the wrong person, pick up and torture an innocent person based upon a bad tip, well, "I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide and then questions the manner in which I provide it."

Similarly, I may not care if the person I'm torturing tells the truth. I may want that person to lie. To pose for propaganda pictures or a film, to make or sign a confession to crimes, or to simply be too frightened to ever stand against me or my regime in the future lest he again be picked up and tortured.

Will lectures us,

Viewers of “Zero Dark Thirty” can decide whether or which “enhanced interrogation” measures depicted — slaps, sleep deprivation, humiliation, waterboarding — constitute, in plain English, torture. And they can ponder whether any or all of them would be wrong even if effective.

Sorry, but that's a cop-out. We would not see the situation as ambiguous if a police agency used those techniques to elicit confessions from a criminal suspect, particularly if it were an American citizen being tortured by a police agency in the developing world. We would not see the situation as ambiguous if those techniques were being applied to a U.S. solider in enemy custody. Let's not forget how few seconds it took for Christopher Hitchens to change his position from "waterboarding can't be that bad," to "it's torture." (For the record, sixteen.) If somebody were to put a bag over Will's head, strip him naked, transport him to a remote location, and apply the techniques he describes, I'm somehow not thinking that his subsequent column would be so deferential, "my readers can decide for themselves if the 'enhanced interrogation' measures I describe constitute, in plain English, torture". He would have an opinion.

Will shouldn't be so afraid to take a stand. After all, if these techniques were simply another form of acceptable interrogation, we wouldn't need the euphemisms and we wouldn't be talking about "tough choices" or quoting Colonel Jessup for the principle that "anything goes in the name of freedom". No small part of the reason we're still having this discussion is that men like Michael Mukasey and Bush Administration lickspittles like Marc Theissen refuse to acknowledge the truth of what we were doing, while prominent commentators like George Will provide them with cover. How can he talk about "facing up to what we did" if he's not even willing to hang a name on it?

Mamet's Plays vs. Political Commentary

I've seen David Mamet interviewed, so I know he's no slouch. He seems to be writing his political drivel in earnest, so I can't say that he's a fraud. So what does that leave me with? Some form of narcissism crossed with life in a self-imposed bubble. Back when Mamet "came out" as a conservative, he did so through an essay that reflected a surprising lack of depth and intellectual rigor. But the surprise is not that a smart person can be foolish, or that his initial comments on a subject that he has consistently overlooked will demonstrate the fact that he's new to the issues. The surprise is that somebody whose work suggests that he grapples with serious issues would be so inept at grappling with actual issues.

Five years later, Mamet shows no more sophistication as a political thinker than he did on day one, and if anything his positions are even further removed from objective fact and history. My inference is this: Mamet is good at picking up on serious issues, and of creating fictional scenarios that expand upon those issues, but he's not particularly good at relating his scenarios to reality. Meanwhile, he restricts himself to a circle of similarly minded people who gush over his brilliance, but have no greater knowledge or capacity for analysis than he does. That appears to have been true when he was coasting through life giving essentially no thought to politics except for occasionally fuming that NPR was too sympathetic to Palestinians.

Paul Waldman opines,

To be clear, the point isn't that Mamet is conservative, even though it's true that the overwhelming majority of artists are liberal, so that makes him unusual. The point is that he brings to his political analysis none of the things that make him a good playwright. It would be one thing if Mamet was, let's say, a widely admired painter or photographer who turned out to have simplistic political views. Visual artists sometimes disappoint their fans by not being particularly eloquent when they're called upon to discuss their work, but words are not their tools. A playwright, on the other hand, spends his time studying and manipulating language, ideas, and characters. That someone who has produced insightful art about corners of American life and the human condition more broadly would then turn around and offer political analysis with all the sophistication of the twelfth caller to Sean Hannity's radio show this afternoon is profoundly puzzling.

But it's a good reminder of something: Political writing is a craft, just like writing plays. Pretty much everyone who has ever read a newspaper thinks they could do it as well or better than those who do it for a living, but most of the time they can't. David Mamet spent a lot of time and energy working on his craft, but the fact that he got famous doing it doesn't mean he has any opinions about or analysis of politics that anyone would gain anything from hearing.

I agree with the latter part more than the former. That is, I agree that somebody who has great gifts in one area may lack gifts or skills in another. But I think the things that make Mamet an interesting playwright and screenwriter are the same things that make him a terrible political analyst.

I have enjoyed a lot of Mamet's work, but I have the impression from some of his work that he tell into the same sort of trap that we have seen with other writers, that of thinking he's smarter than his audience. Works like The Spanish Prisoner succeed based upon the strength of the acting, the "solution" to the protagonist's problem was obvious and I find it a bit painful at times to watch "brilliant" characters do one stupid thing after another when the solution is right before their eyes - and when the character finally figures it out, rather than applying a logical ending (not very dramatically interesting) he resorts to the deus ex machina. Even in works I like a lot more, such as The Verdict, Mamet demonstrates little patience with reality. When he needs to force an outcome, his characters do what is necessary to force the outcome - absurd evidentiary rulings, a "feel good" jury verdict without regard for what would happen on appeal. But in Mamet's better dramatic work, the deviations from reality are a form of poetic license. It's not important that the courtroom scenes are often absurd, because the goal isn't realism - Mamet is showing us the flaws of the characters, the arbitrariness of the legal system, how a case can turn more on the personality of the judge than on the law and facts.... And sometimes he's just spinning a ridiculous yarn about one con game or another, with uneven results.

To me, it seems that Mamet is doing the same thing in his political commentary that he does in his scripts, but that he has somehow lost track of the difference between spinning an entertaining yarn that happens to address some important issues and speaking about the real world. Much of Mamet's fiction leaves me with the impression that he does little research, that he's not interested in interviewing experts or poring over books to try to determine if his stories are plausible or if he could accomplish the same dramatic effect while hewing closer to what actually might happen in real life. His political writing displays a similar disdain for research - he'll go with the common wisdom, the buzz from his sycophants and adherents, with reality being less important than belief, perhaps justified by the narcissistic conceit that "If my friends and I believe it, it must be true."

From his political "conversion",

The Constitution, written by men with some experience of actual government, assumes that the chief executive will work to be king, the Parliament will scheme to sell off the silverware, and the judiciary will consider itself Olympian and do everything it can to much improve (destroy) the work of the other two branches. So the Constitution pits them against each other, in the attempt not to achieve stasis, but rather to allow for the constant corrections necessary to prevent one branch from getting too much power for too long.

From his latest screed,

The Founding Fathers, far from being ideologues, were not even politicians. They were an assortment of businessmen, writers, teachers, planters; men, in short, who knew something of the world, which is to say, of Human Nature. Their struggle to draft a set of rules acceptable to each other was based on the assumption that we human beings, in the mass, are no damned good—that we are biddable, easily confused, and that we may easily be motivated by a Politician, which is to say, a huckster, mounting a soapbox and inflaming our passions.

Has Mamet truly grown less informed about government over the past five years? Perhaps he floats in a circle of ignoramuses, and their ignorance is catching. Or perhaps he doesn't want to let the facts, even facts he has previously acknowledged, get in the way of his story. I recognize that many of Mamet's factual errors, such as his ignorance of Marxism, may simply be that - repeating the conventional wisdom of his new circle of peers, a reflection of the aforementioned conceit, "If we believe it, it must be right." But with mistakes like "The Founding Fathers... were not even politicians" it's difficult to imagine that Mamet even cares about whether his assertions of fact are correct. For the story he's telling, it's better that the founding fathers be non-ideological non-politicians so, just as with the fictional characters of one of his plays, he changes the facts and personalities to fit his story.

Another flaw of Mamet's political analysis? His logic is terrible. One small example,

As rules by the Government are one-size-fits-all, any governmental determination of an individual’s abilities must be based on a bureaucratic assessment of the lowest possible denominator. The government, for example, has determined that black people (somehow) have fewer abilities than white people, and, so, must be given certain preferences. Anyone acquainted with both black and white people knows this assessment is not only absurd but monstrous. And yet it is the law.

Except government rules are not "one size fits all". Even if they were "one size fits all," that would not necessitate that a "any governmental determination of an individual’s abilities" (whatever Mamet means by that) "must be based on a bureaucratic assessment of the lowest possible denominator". Mamet statement about race is absurd. It appears that he's alluding to affirmative action and civil rights laws, but those programs are not predicated upon a government determination "that black people (somehow) have fewer abilities than white people". They're predicated upon this nation's history of institutionalized racial inequality and racial discrimination. Based upon Mamet's false and absurd distortions, anti-discrimination laws become "monstrous", proof that the government can't believe what everybody knows, that the races are equal in every respect. And yet, in a wonderfully ambiguous flourish "it" is "the law".

Mamet continues,

President Obama, in his reelection campaign, referred frequently to the “needs” of himself and his opponent, alleging that each has more money than he “needs.”

But where in the Constitution is it written that the Government is in charge of determining “needs”? And note that the president did not say “I have more money than I need,” but “You and I have more than we need.” Who elected him to speak for another citizen?

We can start from, is Obama's statement true or false? Does Mamet believe that the President has insufficient money to meet his needs? Does he believe that Mitt Romney is struggling by on his quarter billion dollar fortune, barely able to keep the heat on in his five houses? From any reasonable standpoint the President was correct. But facts are boring, right? So Mamet goes off on a tear about how the Constitution does not place the government in charge of determining "needs". And after that non sequitur whines that the President is speaking for another person. As if Romney denied the charge. As if any person with a brain between his ears would dispute the charge. And then what he seems to think is his pièce de résistance, his brilliant and irrefutable point, "Who elected [the President] to speak for another citizen?" (Well, you see, David, we live under this system of government referred to as a representative democracy, and we do in fact elect our representatives to speak for us.) And yes, it gets worse from there - for the President to suggest that Romney has more money than he needs is the same thing as the government imposing "one-size-fits-all", never mind that the President was speaking about treating different classes of people (notably the ultra-rich) differently than the average working stiff. And there is no difference between that and slavery.

Mamet makes one ridiculous assertion after another.

What possible purpose in declaring schools “gun-free zones”? Who bringing a gun, with evil intent, into a school would be deterred by the sign?

The purpose of the law, of course, is to allow the police to stop and detain, and when appropriate prosecute and imprison, somebody who brings a firearm into the gun-free zone. If it's not illegal to have a gun in a school zone, the police are constrained in their ability to act before the gun is drawn.

We need more armed citizens in the schools.

Why? Because Mamet says so? And this is a universal truth? A school with a gang problem will be a better and safer place if every kid above the age of 18 has the right to bring a gun to school?

Walk down Madison Avenue in New York. Many posh stores have, on view, or behind a two-way mirror, an armed guard. Walk into most any pawnshop, jewelry story, currency exchange, gold store in the country, and there will be an armed guard nearby. Why? As currency, jewelry, gold are precious. Who complains about the presence of these armed guards? And is this wealth more precious than our children?

Actually, no, in most such stores there are no armed guards. But where they are, it's to protect against robbery. Fundamentally, Mamet knows the difference between children, money, precious metals and jewels - not one of the scam artists in any of his plays or movies has mused over whether it would be better to scam somebody out of a valuable patent, tens of thousands of dollars, $millions in gold, or their kids. I doubt we would have to explain to Mamet that just because banks transport cash and securities in armored cars, it does not follow that we need to replace the nation's school buses with armored cars. Businesses don't invest in bulletproof glass and armed security because they are protecting against obscure risk and enjoy wasting money, but because due to the nature of their operations they are under genuine risk of armed robbery.

Q. How many accidental shootings occurred last year in jewelry stores, or on any premises with armed security guards?

I'm not sure how many of the shootings were accidental, but it would seem quite a number - often by somebody who disarms the security guard. ("In 23% of shootings within the ED, the weapon was a security officer’s gun taken by the perpetrator."). As if we needed further confirmation that Mamet does no research and has little interest in facts. Mamet believes that all that is involved in having armed security in schools is "the cost of a pistol (several hundred dollars), and a few hours of training (that’s all the security guards get)" - reflecting his deep ignorance both of the cost of gun ownership and maintenance, and of the actual and continuing training required to make sure that the person with the gun has the necessary skills to use it safely and appropriately.

Did I mention Mamet's inaccurate claim that the President "just passed a bill that extends to him and his family protection, around the clock and for life, by the Secret Service". Does Mamet even know how a bill is passed? That the House of Representatives is controlled by Republicans? Apparently not. Mamet makes the absurd assertion that by recognizing that the President and his family have different security needs than the average American, the government is "regulat[ing] gun ownership based on its assessment of needs", which is... Marxism. Wait - you thought Marxism was when the government treated all people as if they were the same, and that "one size fits all" solutions were tantamount to slavery? That was paragraphs ago. Things have changed. And is Mamet seriously suggesting that the only solution that avoids Marxism is to either extend Secret Service protection to everybody in the nation, or to leave the President unprotected? To the extent that you try to find logical coherence in his arguments, yes, in fact he is.

Getting back to Mamet's plays for a moment, some defend his often stilted, stylized dialog as being "how people talk in real life." I've met a lot of people in my life and none speak in the manner of the characters of, say, House of Games. But the manner in which Mamet spins into a verbal frenzy, taking the President's true statement about Romney's wealth and, in a matter of a few sentences, equating it with slavery? Perhaps the reason I don't think Mamet's dialog is realistic is that I can't hear the voices in his head.

Waldman's commentary on the craft of political analysis is fair to a point, that people underestimate what is involved in writing good political commentary, but if we look at the most commercially successful political analysts of the day we often see little of that craft in their work. If I open a newspaper, I might find Charles Krauthammer opening a column with a dig at the President's use of a teleprompter, an absurd, racially-tinged attack that long ago passed its expiration date. I might find George Will spouting off about how climate change is a myth, with no more interest in the facts than Mamet. And if I flip open a Newsweek... make that click open... I might find... Mamet.

Sorry to say, the biggest money makers in the world of political commentary are charlatants - Glenn Beck, Rush Limbaugh and the like - and many of the faces pushed upon us by the "respectable" media are well past their prime, or were never up to the task. Many of the best political analysts would struggle to get a column published by a major newspaper or to get invited to sit among the talking heads on a televised panel or news show. The shocking part is less that Newsweek is so eager to gain readers that it posts an editorial that is on par with an episode of "Here Comes Honey Boo Boo". The shocking part is how many people who you would think would have more respect for themselves eagerly line up to play the role of Honey Boo Boo.

As Long as the Health Insurance Industry Stands to Profit....

George Will has passed along the notion that, as the penalty for not buying insurance under the PPACA has been declared a tax, it will inevitably fail to inspire people to buy insurance. I'm not sure if he's still up to doing cartwheels down the halls of the Washington Post building, but you can sense a certain smugness, pleasure at the idea that legislation intended to help uninsured, underinsured and sick people obtain health insurance - and thus health care - at an affordable cost might fail. Will's argument appears to be the latest iteration of the position Michael Gerson was pushing some months back, that if the mandate is called a "penalty" people will pay it but if it's called a "tax" they will not. Gerson's idea was that if you call something a tax, people will apply a cost-benefit analysis and decide "I'm better off paying the tax as compared to buying insurance". Will proposes,

The point of the penalty to enforce the mandate was to prevent healthy people — particularly healthy young people — from declining to purchase insurance, or dropping their insurance, which would leave an insured pool of mostly old and infirm people. This would cause the cost of insurance premiums to soar, making it more and more sensible for the healthy to pay the ACA tax, which is much less than the price of insurance.

[Chief Justice] Roberts noted that a person earning $35,000 a year would pay a $60 monthly tax and someone earning $100,000 would pay $200. But the cost of a qualifying insurance policy is projected to be $400 a month. Clearly, it would be sensible to pay $60 or $200 rather than $400, because if one becomes ill, “guaranteed issue” assures coverage and “community rating” means that one’s illness will not result in higher insurance rates.

Dean Baker responds,

There are two problems with Will's logic. First, the insurance will likely pay for many non-serious illnesses that even healthy people would otherwise have to cover out of pocket. in other words, it is not a question of paying $400 for nothing as opposed to paying $200 for nothing. It is a question of paying $400 for insurance or $200 for nothing. It is not clear that many people will make the choice that Will wants them to make.

Baker also suggests that an economic consequence could be imposed upon people who don't buy insurance:

The more important problem with Will's thinking is that there are an endless number of ways to slice and dice the restrictions so that the option of not buying insurance is less attractive. For example, the cost of buying insurance can be made higher for those who had previously opted not to buy into the system. Suppose the cost of later buying into the system rose 25 percent for each year that a person opted not to buy in. (Medicare Part B works this way and the vast majority of beneficiaries do chose to buy in when they first become eligible.) This would make the arithmetic of opting out much less favorable.

The rules can also be changed to make pre-existing conditions uncovered for the first 2 years after buying insurance for those who opted to pay the penalty rather than buy into the system. Neither of these measures would in any obvious way run afoul of Justice Roberts' argument for the constitutionality of the ACA.

I agree that such consequences could be created, but I'm not sure that they would work or that they wouldn't be self-defeating - at least the ones proposed by Baker. When applying for Medicare, most people recognize that they will eventually need Medicare Part D, and the penalties are such that it makes little to no sense to put off enrollment. I'm not sure that the populations who are being targeted by the penalty view significant health costs as that inevitable.

Similarly, one of the goals of universal health insurance is to help society avoid the increased cost of care for a manageable or preventable medical condition. If you deny somebody care for a chronic condition for a couple of years, most likely the period of years after it becomes sufficiently severe that the person wants insurance, you create the risk that excluding the condition from insurance will increase the applicant's long-term healthcare costs, and you risk their condition worsening to the point of disability, perhaps taking them out of the workforce or shortening their careers.

It may be possible to work out penalty provisions that could work, and I don't want to treat a couple of "off the top of my head" ideas as the end of the discussion, but we would have to take care not to create a penalty that would undermine the goals of universality and perhaps even increase the overall cost of care.

Baker correctly points out that if a problem develops and the Republicans in Congress refuse to address it, "that route would have nothing to do with the constitutional restrictions put in place by Roberts". History tells us that Will's belief that "Republicans will ferociously resist exacerbating the nation’s financial crisis in order to rescue the ACA" is nothing more than a fantasy - when it comes to budgeting, Republicans are good at three things: Spending money, cutting taxes and thereby reducing revenues, and then whining about the fact that due to their policies we "can't afford" to pay the bills they ran up. Will confuses their "talking the talk", insisting that we must cut Social Security and Medicare in order to balance the budget, with "walking the walk", proposing actual, concrete cuts. When you look at their actions, you have... Medicare Part D, the unfunded prescription drug benefits that the Republican's leading fiscal scolds endorsed.

I continue to believe what I said in response to Gerson's column: That if the insurance industry finds that not enough people are responding to the penalty, such that their profits are at risk, the Republicans will adjust the mandate to increase participation. I find it exceptionally unlikely that they will tell insurers, "Be patient and take the losses, because in a few years we may be able to repeal the entire law." Let's not forget, there's a reason the Republicans favored this approach back in the 1980's, and why the insurance company agreed to get out of the way of the PPACA when it was proceeding through Congress: They believe that they will profit from the reform. Going back to the status quo ante may sound good to Will, but it takes away the anticipated profit. Losing money for years, in the hope of getting back to the status quo ante? Get real. Insurance companies didn't go to Congress and say, "We can't make money with Medicare Advantage", they said, "Give us a subsidy!" And they got it.

Will argues that by virtue of the penalty's having been declared a tax, "the penalty for refusing to purchase insurance counts as a tax only if it remains so small as to be largely ineffective". That's the argument that Baker was addressing when pointing out that Congress has more options than simply making the penalty larger. But I disagree with Will's conceit that the penalty tax can't be onerous - if it's reasonably related to the actual cost of providing care to the uninsured. Also, it's not a binary issue - if the tax is increased, it will not go from "too low" to "onerous", but will be ratcheted up until it becomes sufficiently effective.

The Roberts Court pointed out that by statute the penalty can never be more than the cost of insurance - but at that point, surely even Will can understand that most people will opt to acquire the insurance they're effectively already paying for, and the tax revenues from those who do not will be more than sufficient to ensure the continuation of the program. If everybody pays a premium sufficient to pay for health insurance, but some aren't receiving benefits, the result is that there's some extra money in the system. Also, as Baker points out, the threshold at which it makes more sense to buy insurance, as opposed to paying a penalty and paying for your own care, comes well before the amount of the penalty matches the cost of insurance.

The fact remains, if the penalty proves ineffective the insurance industry will come to Congress not to argue, "Repeal this program," but to say, "Fix things so that we're profitable." And just as the Republicans were happy to subsidize private competitors in the Medicare Advantage program, they will oblige the insurance industry by increasing the penalty - whether directly or through other measures along the lines of what Baker described - or by providing a subsidy.

George "Grandpa Simpson" Will Wants a Balanced Budget Amendment

Mind you, he doesn't actually try to make a case for a balanced budget amendment, but he does display a fascinating disconnect between his political views and the facts. First up, an angry rant about how the Democrats did not raise taxes enough:

Liberals could have had a revenue increase of $3.7 trillion over 10 years. Instead, they surrendered nearly $3.1 trillion of that. They cannot have repeated bites at this apple.... And because tax reform is dead for the foreseeable future, so are hopes for a revenue surge produced by vigorous economic growth....

By rescuing almost everyone from the restoration of Clinton-era rates, liberals abandoned any pretense of paying for their program of ever- expanding entitlements. Instead, they made trillion-dollar deficits their program.

Were Will interested in facts, he might note that the Republican Party opposed the tax increases that the Democrats proposed, which is to say that if Will is going to complain that Congress hasn't raised enough taxes on enough people he's directing his temper tantrum at the wrong party. As for the conceit that we might have had some sort of larger discussion of "tax reform" but now we can't, due to a modest tax increase on the wealthy, perhaps he can direct us to where that negotiation was occurring - or where we can find anything approximating a serious Republican "tax reform" proposal - and explain why the odds of progress on these confabulated tax reform negotiations and proposals are less likely to bear fruit today than they were two weeks ago.

Because 82 percent of American earners pay more in payroll taxes than income taxes, no politically conceivable or economically feasible middle-class tax rate can fund the entitlement state.

So... because we fund Social Security retirement, SSDI and Medicare through FICA, the fact that pretty much every working person pays FICA taxes.... Um, non sequitur, much? When programs are funded through dedicated taxes, one might think that the proper approach to addressing funding issues would be to examine the dedicated taxes, not go off on a rant about how other taxes should be higher.

People who choose to live in places vulnerable to flooding believe it would be unfair that the cost of their property insurance fully reflect this risk. So government subsidizes their insurance, and hence their decision to live where there is increased risk of property damage that, when it happens, the government helps pay to rebuild.

Stop me if you've heard this one before: What do you call a wealthy person who carries government subsidized flood insurance on his waterfront mansion, one of several homes he owns, and then after a hurricane sues his insurance company because despite the subsidy he chose not to carry adequate subsidized flood insurance to replace his home and contends that the damage was caused by the wind? No peeking.

Will also carries on about one of his pet fixations, Amtrak, complaining that it loses money on food service. Alrighty....

Absent from Will's rant is any argument that a balanced budget amendment would be good policy for the nation, how it might be structured, or even whether his party would support it. If Will had a bit more perspective, he should realize that his own rant effectively answered that question - When they are in control, Republicans are the party of "Deficits don't matter". They're the party that implemented the temporary tax cuts that Will apparently wishes would have expired in toto, and they are the party that prevented the expiration from reaching a slightly larger number of taxpayers.

George Will's Self-Serving Arguments on Campaign Spending

Note to George Will: If you can't make an honest case for your position on campaign spending, specifically allowing unlimited corporate money into political campaigns, perhaps you should admit that your argument is nowhere near as compelling as you pretend.

The 2010 elections, the first after the Supreme Court’s excellent Citizens United> decision liberalized the rules about funding political advocacy, were especially competitive. Social science confirms what common sense suggests: More spending on political advocacy means more voter information and interest. The approximately $2 billion spent in support of this year’s presidential candidates — only about two-thirds as much as Procter & Gamble spent on U.S. advertising last year — surely contributed to the high turnout in targeted states.

Let's start with the statement, "Social science confirms..." - if in fact social science supports Will's suppositions, where can I find it? Why isn't Will citing studies, or linking to materials that support his contention that his positions are now supported by "social science"?

The first thing "social science" supposedly confirms is "spending on political advocacy means more voter information and interest". Where can I find evidence that increased spending on political advocacy resulted in more information being available to voters? Where can I find evidence that the spending made voters more interested in the election? Given that a great deal of third party spending goes to negative advertising and misinformation, to the extent that we assume that voters are engaged by the advertising where is the evidence that it improves how voters engage with the facts and issues? If "more voter information" is provided, but it's inferior in quality or false, could it not result in a less informed electorate, less capable of making an informed decision?

When we talk about the amount spent on the election campaign, how does $2 billion become a trivial amount? Why does Will believe P&G's advertising budget to be a relevant number for comparison to election ad spending?

Will says that the ads "surely contributed to the high turnout in targeted states" - again, based on what "social science"? Why should we assume ads, not GOTV efforts, were what brought otherwise ambivalent voters to the polls? In recent years the top six states for voter turnout have not been swing states - unless you count Wisconsin as a swing state. This year?

Ohio had a 61.8% turnout - down 5.1% from 2008.
Florida had a 62.2% turnout - down 3.9% from 2008.
Virginia had a 63.8% turnout - down 3.2% from 2008.
Colorado had a 65.6% turnout - down 5.4% from 2008.
North Carolina had a 64.5% turnout - down 1% from 2008.
Pennsylvania had a 57.7% turnout - down 5.9% from 2008.
Iowa had a 69.1% turnout - down 0.3% from 2008.
Nevada had a 56.9% turnout - down 0.1% from 2008.
Wisconsin had a 72.2% turnout - down 0.2% from 2008.
Michigan had a 63% turnout - down 6.2% from 2008.

In other words, there's what Will is saying (increased political advertising in swing states brings more voters to the polls) and then there's reality - spending went way up, voter turnout went down. Karl Rove, king of campaign filth, has been shedding crocodile tears over "voter suppression" caused by negative ads - perhaps he and Will should talk.

Will next attempts to play the hypocrisy card,

Media and other “nonpartisan” — please, no chortling — dismay about “too much money in politics” waned as seven of the 10 highest-spending political entities supported Democrats and outspent the three supporting Republicans, according to the Wall Street Journal.

First, the fact that you believe that campaign finance should be regulated does not mean you have to go into an election unarmed. There is nothing wrong with following the law as it presently stands, even as you're arguing that it should be changed - even as you're promising to change it if you're elected. That's not hypocrisy - it's common sense. And by the same token it's possible to be appalled by how much money you're able to raise and spend on your campaign, even as you're continuing to raise and spend that money to try to win. It's possible to be appalled by the expenditures of your favored party or candidate, yet still see the necessity of contributing to their campaign.

As Will did not link to the source of his "seven of the top ten" allegation, I had to search for it. Given that Will did not provide a link, I expected to find that his source did not say what he was implying - and sure enough it did not. In terms of dollars spent, as of the date the article's figures were compiled, the three right-wing groups spent $205.6 million, and the seven left-wing groups spent 229.8. If you remove the 27.6 spent by the Senate Democrats' Super PAC, the three outside right-wing groups outspend the remaining six Democratic outside groups. If you look at updated data, and believe that the raw count is somehow relevant to the discussion, the number shifts to 6:4 groups in favor of the Republicans.

It's also immediately apparent that Will is referring to out-of-date information. It would be one thing if November 1 were the best you could do, but... not even close. As the figures used by the WSJ come from The Center for Responsive Politics, it's easy to obtain more recent data. Surprise! The number one and two organizations on Will's list, both supporting Romney, spent an additional $136 million between when the WSJ compiled its statistics and the date of the most recent data from their named source. SEIU's spending, recited in the WSJ piece as $69 million, is listed as $30.1 million... odd? Will, I'm sure, is heartened that the top two organizations are both conservative, and both make the left-leaning groups seem woefully underfunded.

At least Will is honest in the end, at least about his motives:

The advocacy infrastructure being developed by both sides in the post-Citizens United world will, over time, favor the most plausible side, which conservatives know is theirs.

That is, despite all the window dressing, for Will it's not about the Constitution. It's not about educating voters or bringing them to the polls. It's about helping the party he supports get a structural advantage that will help it outspend the other party. It seems reasonable to infer that Will's actual fear is that his party can't win in the marketplace of ideas, and that he thus supports their being able to drown out other voices through massive campaign spending. Will can pretend it's about principle if he chooses, but it seems inescapable that the primary driver for his position on campaign funding is politics.

Update: As more votes are counted, the voter turnout picture is more mixed. For the key swing states, Virginia and Florida showed very small increases in turnout, while turnout was significantly down in Ohio. Will's position that the barrage of campaign spending increased turnout remains unsupported by the data.

George Will's Question for the Wrong Candidate

George Will, who has long been an opponent of campaign finance reform, has penned a "questions for the candidates" column, in which he imagines asking the President,

President Obama, you deplore the court's Citizens United decision. What is your constitutional basis for rejecting the decision's principle that Americans do not forfeit their First Amendment rights when they come together in corporate entities (mostly nonprofit advocacy corporations such as the Sierra Club) to speak collectively? You say you would “seriously consider" amending the First Amendment to empower Congress to regulate political speech. Explain why you choose to make the Bill of Rights less protective.

As Will knows, the President would likely respond with a rather scholarly commentary on the history of corporations, corporate speech rights, and campaign finance jurisprudence, that historically there has been bipartisan support for restrictions on campaign spending by both individuals (something that doesn't appear anywhere near as bothersome to Will) an corporations, point out that the question was narrowly decided by the court in a decision that reversed recent precedent, and that there are valid reasons to be wary of excessive contributions from any interest group. The fact that the First Amendment, at least as interpreted for the greater part of the last century, would have us err on the side of speech rights does not change the fact that there are competing interests at play.

But although Mitt "Corporations are People" Romney might be superficially sympathetic to Will's argument, his actual thoughts on the subject turn out to be an incoherent mess.

Republican presidential nominee Mitt Romney said Tuesday that he thinks teachers unions should be banned from making political contributions because union leaders often negotiate contracts with Democratic politicians they’ve helped elect, a situation he called “an extraordinary conflict of interest.”

“I believe that we simply can’t have a setting where the teachers unions are able to contribute tens of millions of dollars to the campaigns of politicians, and then those politicians, when elected, stand across from them at the bargaining table, supposedly to represent the interest of the kids,” Romney told host Brian Williams in a 45-minute appearance at NBC’s Education Nation Summit in New York.

He said it is “a mistake” to allow unions to make such donations, which he argued represent “an extraordinary conflict of interest.”

“I think we’ve got to get the money out of the teachers unions going into campaigns,” he said. “It’s the wrong way for us to go. We have got to separate that.”

I doubt George Will needs to be reminded of this, but unions are corporations, which in the eyes of both Will and Romney makes them "people" with First Amendment rights. As posed to the President, Will's question comes down to how our nation should interpret legal precedents, apply constitutional language and weigh competing interests - and that's a discussion we should have.

For Romney, though, the question becomes, "Why do you want to completely shut down the speech rights of organizations that you have previously stated are 'people' who are entitled to constitutionally protected speech, including in the form of unlimited campaign contributions, based upon the content of their speech - what you believe they might say? Do you understand anything about First Amendment jurisprudence, content-based restrictions on speech, or equal protection under the laws? Does your defense of corporate free speech rights translate into a self-serving, unprincipled philosophy, "Speech should be free if it fills my campaign's coffers and helps me get elected, but if it might help my opponent it should be banned"?

(I'm also again left wondering, does George Will read his own newspaper?)

Take That, Nancy Pelosi....

George Will believes that conservatives should view the Supreme Court's endorsement of the "activity/inactivity" distinction as a consolation prize. Maybe he's right - after all, as the issue seems to come up every two centuries or so, perhaps a couple of hundred years from now the Supreme Court will review an inartfully worded statute and find it to impose an unconstitutional mandate. And perhaps they'll again say, "But who cares, because if we call it a 'tax' it's all good".

Will takes a potshot at Nancy Pelosi:

When Rep. Nancy Pelosi (D-Calif.), asked where the Constitution authorized the mandate, exclaimed, “Are you serious? Are you serious?,” she was utterly ingenuous. People steeped in Congress’s culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle.

You know, "Ha ha ha ha, she said 'Are you serious' because she thought the mandate was permissible under the Commerce Clause. But the joke was on her because it was actually permissible under Congress's power to levy taxes. Next time she's asked that question and she again answers 'Are you serious', she'll be so embarrassed that she once gave the same answer for the wrong reason."

Brooks suggests that the proper question for the Court is "the 'legitimacy question'":

Is it proper for the federal government to do this?

As I have previously commented, I agree with that thesis - that the court should not put form ahead of substance. But unlike Will I noticed that the court answered his question in the affirmative.

You have to also love Will's argument of convenience about conservatives, democracy and patience:

Conservatives understand the patience requisite for the politics of democracy — the politics of persuasion. Elections matter most; only they can end Obamacare. But in Roberts’s decision, conservatives can see that the court has been persuaded to think more as they do about the constitutional language that has most enabled the promiscuous expansion of government.

All the right wing demagoguery against the ACA, the creation and advancement of a legal theory designed solely to target the ACA, lawsuit after lawsuit after lawsuit, trying to win through the courts a battle that they lost in the legislature... None of that was about trying to "end Obamacare" because (now that the Supreme Court has ruled) conservatives understand that "only elections" can do that.

One last question: If Will is in fact concerned about how "constitutional language" is interpreted, where can I find support for the "activity/inactivity" distinction in the actual language of the Constitution? I urge him to stop writing columns and devote every waking moment to the intense study of the Constitution. After all, it's not a long document - how long can it take?

The Possibility of Parole

George Will is predictably too deferential to Antonin Scalia and his brand of self-serving originalism, but credit where credit is due, he takes a principled stand on a "law and order" issue:

Denying juveniles even a chance for parole defeats the penal objective of rehabilitation. It deprives prisoners of the incentive to reform themselves. Some prisons withhold education, counseling and other rehabilitation programs from prisoners ineligible for parole. Denying these to adolescents in a period of life crucial to social and psychological growth stunts what the court in 2005 called the prisoner’s “potential to attain a mature understanding of his own humanity.” Which seems, in a word — actually, three words — “cruel and unusual.”

I'm not going to argue that there are no juvenile offenders who, at the end of the day, should not spend their lives behind bars in the interest of protecting the rest of society. In some cases, serious juvenile offenses may reveal "the susceptibility of juveniles to immature and irresponsible behavior", but in others they reveal a depravity that will last a lifetime. But there's no reason to believe that, by the time a juvenile reaches or passes his thirties, a parole board will have great difficulty distinguishing one from the other.

Weighing the Merits of Drug Legalization

George Will appears to be conflicted about drug legalization, recognizing the reality that there is a natural human attraction to intoxication but that substance abuse and addiction present genuine problems for society. I think he misses the big picture here,

Drinking alcohol had been a widely exercised private right for millennia when America tried to prohibit it. As a public-health measure, Prohibition “worked”: Alcohol-related illnesses declined dramatically. As the monetary cost of drinking tripled, deaths from cirrhosis of the liver declined by a third. This improvement was, however, paid for in the coin of rampant criminality and disrespect for law.

Prohibition lasted only from 1920-1933, and created a host of ills through the distribution of low-quality bootleg liquor and "medicinal alternatives". To the extent that prohibition affected cirrhosis rates, it seems likely that it was more of a result of its bringing about, coinciding with, and/or contributing to changes in how people consumed alcohol. From an era of hard liquor to mixed drinks and beer, from the rummy to the beer belly. As Will notes, even during prohibition "oceans of [alcohol] were made, imported, transported and sold."

Will imagines that changes in the legality or availability of specific addictive substances is likely to have a massive impact on the rate of addiction within a given society:

So, suppose cocaine or heroin were legalized and marketed as cigarettes and alcohol are. And suppose the level of addiction were to replicate the 7 percent of adults suffering from alcohol abuse or dependency. That would be a public health disaster.

Yes, if you assume that a public health disaster would result, the result will be a public health disaster. They joys of circular reasoning.

What appears to be true is that across societies, even in cultures that have strong prohibitions on the use of intoxicants and draconian penalties for drug use or trafficking, a relatively predictable percentage of the population will become addicted to alcohol or drugs. There's no reason to believe that legalizing cocaine or heroin would lead to massive increases in the overall rate of addiction. To that point, the overwhelming majority of people who receive opiate and opioid medication for acute injuries simply stop taking the medication when their pain subsides, and although an extraordinary number of G.I's experimented with heroin during the Vietnam war the overwhelming majority were able to stop using drugs when they returned home. I'm not going to suggest that people play with fire - I think people should assume that they will succumb to hopeless addiction if they start using, more to the point injecting, heroin - but it's quite clear that some people are predisposed to addiction and that predisposition can vary significantly by substance.

Also, while Will is correct that society is not "like a controlled laboratory", he is incorrect that a failed experiment with legalization could not be reversed. It might not be tidy, but it's difficult to imagine a bigger mess than we saw with prohibition and its repeal - and we pay a huge price for the "war on drugs" while making absolutely no progress against either drug availability or the rate of addiction.

Will's economic arguments against legalization make absolutely no sense. First he imagines that legalization will cause the prices of cocaine, heroin and marijuana to fall by 90%. Then he imagines that taxes will be so high that widespread tax fraud will occur and illicit sales will continue. Again, it's circular - Will presupposes the facts necessary to drive his conclusions.

I sense that Will does not partake of illicit substances, as his experience with drug dealers appears largely derived from television dramas,

Furthermore, legalization would mean drugs of reliable quality would be conveniently available from clean stores for customers not risking the stigma of breaking the law in furtive transactions with unsavory people.

I think he should ask his drug-using friends and colleagues how they obtain their substances of choice. Rush Limbaugh bought drugs through his maid - no need for any unsavory contacts. Drug dealing was¹ historically a problem at large manufacturing plants, but the dealer wasn't a seedy criminal on a street corner - it was a co-worker. High school kids can buy drugs from other high school kids. Sure, of course, street corner dealing does occur, but huge numbers of drug users buy drugs from people in their own peer group. In some correctional facilities, prisoners buy drugs from prison guards. There are lots of small time marijuana dealers who support their own use by buying in bulk and selling to their friends. Although you always have that option, and as casual use turns to addiction you're more likely to go that way, it's simply not the case that the only way to get street drugs is through "furtive transactions with unsavory people". Ever since the pager came along, for a great many drug users the purchase of their substance of choice has been no more unsavory than ordering a pizza delivery.²

Will intimates at the end that he has an answer to the problem of illicit drug trafficking, at least for cocaine and heroin,

America spends 20 times more on drug control than all the world’s poppy and coca growers earn. A subsequent column will suggest a more economic approach to the “natural” problem of drugs.

I expect he's suggesting that we simply pay farmers not to produce coca or to grow poppies. That's going to be easier with coca, as it's pretty easy to grow opium poppies in a random patch of rain forest or jungle. Right now we're pushing crop substitution, but that creates a significant risk and cost for the coca farmer that is absent with coca production - the cocaine cartels will come to their farms, pick up their crops and pay cash, whereas if they grow alternative crops they run the risk that there won't be a market for their product, and have to get it to market in salable condition. You could pay them cash - well over what the cartels pay, simply based upon a periodic verification that they're not growing coca. If they also grow and sell a crop, all the more power (and profit) to them - we give them a windfall, and they still save money.

But even if we presuppose that such a model would work for opium and cocaine production, that you wouldn't simply push opium production onto wild lands, you would not solve the larger problem of addiction and drug use. When I was in Thailand a decade ago, during a hike through a national park our guide pointed to a field in the distance - opium poppies. He explained that the government would fly over the park during the times of year when poppies traditionally bloomed, looking for telltale patches of red, so the growers had switched to a poppy that bloomed at a slightly different time of year. It's not that the patch wasn't visibly cultivated, or that the government was unaware of the game - if my guide knew what was going on, so did law enforcement. But for some reason....

Meanwhile, what drug was exploding in popularity in the cities? Meth. And that's a big part of the story of prohibition - you don't eliminate drug use, but instead inspire drug substitution. So when the war "works" you can end up creating a population of drug addicts that is dependent upon a much more harmful, toxic, polluting alternative to the drug you've targeted. When people are addicted, you should never underestimate their willingness to ingest or inject toxic waste as part of the small price they're willing to pay to get high.

If the trade-off between having a licit, pharmaceutically pure line of substances of choice for addicts to use, and their relying upon contaminated street drugs, we need to consider the impact of toxicity when calculating which is better for society.

Will also seems to view legalization as an all-or-nothing proposition. He recognizes that cigarettes and alcohol are legal, but cannot imagine how we might legalize marijuana without also legalizing heroin. There's an old joke, "What's a lethal 'hit' of marijuana" - "A twenty-five pound brick falling from a tenth floor window." The various state-level experiments with legalization have not been a model of sound public policy, but they do suggest that Will's notion of increased usage and of a collapse in the market price will not occur with legalization. Portugal's experience with transitioning from a criminal justice model to a public health, harm reduction model has been associated with a decline in marijuana use.

There's something else to consider, as well: Even though we're still fighting the old drug war against cocaine, heroin and marijuana, we're in a culture in which people are increasingly addicted to pharmaceuticals - pain medications and benzodiazepines. If you look at the massive quantity of pills that are diverted into the illicit market, it's difficult to imagine how the status quo could exist without a great many drug manufacturers and politicians turning a blind eye to the problem. And if you want to talk about the potential to increase the number of addicts, consider that pharmaceuticals are designed to target specific receptors more quickly and more efficiently than their natural counterparts. For some addicts, heroin is what you have to settle for when you can't find a source for your pills. A public health problem?

Drug overdose death rates in the United States have more than tripled since 1990 and have never been higher. In 2008, more than 36,000 people died from drug overdoses, and most of these deaths were caused by prescription drugs.

That's the future.³

As with any discussion of drug policy, I would like to tell you that there are easy answers and solutions, but there aren't. Whichever door we pick, we will find pain, misery and suffering on the other side. We can at least conclude this much, though: The present approach of criminalization and interdiction has proved to be ridiculously expensive and a policy failure.
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1. It probably still is an issue, but I haven't heard much about it lately.

2. Way back when I was in law school, a clinical professor described a drug dealer who in fact owned pizza stores - and customers "in the know" would order, let's say, special toppings to be delivered with their pizzas. A little baggie slipped into the pizza box.

3. Dystopian science fiction, notably including the works of Philip K. Dick, often pictures a world in which highly addictive pharmaceuticals have displaced all other forms of drug abuse. So far the primary pharmaceutical "drugs of choice" have been developed as bona fide medicines, but if you liberate them to do so you can anticipate that companies will seek to make drugs that are addictive beyond anything presently on the licit or illicit markets.

When All You See is Race, Perhaps Race is An Issue

Pat Buchanan recently made an observation most people would agree with:

If it had been a white teenager who was shot, and a 28-year-old black guy who shot him, the black guy would have been arrested.

So assert those demanding the arrest of George Zimmerman, who shot and killed Trayvon Martin.

And they may be right.

Unfortunately, he couldn't stop there. His continued argument could reasonably be summarized as, "But why get worked up about it?"

John Casey at The Non Sequitur points out that other mainstream pundits are, in essence, in Buchanan's camp, asserting some form of "relation[ship] between 'unarmed black teenager is shot under puzzling and racially charged circumstances' and 'black people shoot each other all of the time'". Will attempts to characterize the Trayvon Martin shooting as having "been forced into a particular narrative to make it a white-on-black". But unless you're cool with the idea that a black kid can be shot by a white guy, with people like George Will and Pat Buchanan lecturing that it's understandable because black men are so dangerous, and with Buchanan flat-out admitting the credibility of the argument that were the participants races reversed Zimmerman may well be in jail, you can't blame others for injecting race into the discussion.

People like Will and Buchanan should start by examining their own thesis: the idea that nobody cares about black-on-black crime. Via Jamelle Bouie, Ta-Nehisi Coates offers a rebuttal to the notion that African American communities are complacent about or indifferent to black-on-black violence. Bouie observes,

In addition to highlighting the obvious truth that black people care about what happens in their neighborhoods, it’s also worth pointing out the degree to which “black-on black” is a stupid way to understand or contexualize crime. Implicit in the description is the idea that crime committed against blacks by blacks has a racial component—that victims are targeted on the basis of their blackness.

The truth is that crime has more to do with proximity and opportunity than anything else. If African Americans are more likely to be robbed, or injured, or killed by other African Americans, it’s because they tend to live in close proximity to each other. Like most people, criminals almost always take the path of least resistance—nine times out of ten, they’ll go for the easy target.

To put this another way, white Americans are most likely to be victims of other whites, but there’s no talk of a “white-on-white” crime epidemic. Not that this is a surprise, but typical, explainable behavior becomes “pathology” when observed in African Americans. That this still has currency is incredibly frustrating.

Pat Buchanan is a great case in point,

It is a country where white criminals choose black victims in 3 percent of their crimes, but black criminals choose white victims in 45 percent of their crimes.

Choose? We're principally talking about opportunistic crime, are we not? But that mindset makes it easier, I suppose, for people who aren't actually victims of crimes to "choose" the race of their make-believe attackers. What's the point of the Will-Buchanan exercise if not to justify treating all young black men as potential criminals, shoot first and check for Skittles later.

Here's something for Will and Buchanan to think about: In the other cases, nobody is claiming that no crime was committed. Nobody is suggesting that the victims deserved to be victimized by virtue of living in dangerous neighborhoods or having the wrong color of skin. Okay, so the clothing argument sometimes does come up if the victim is a woman, but... come on.

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"Mamas, don't let your babies grow up to wear hoodies...."

Pat Buchanan complains that civil rights leaders are upset about the Trayvon Martin shooting, and hypothesizes that they would be silent had the races of the shooter and victim been reversed. That's quite possible because, oddly enough, people who focus their attention on civil rights issues tend to speak out on cases that implicate civil rights issues. By way of comparison, you could take a certain Irish Catholic commentator and note that he doesn't spend much time railing about the war on Ramadan or the unfair treatment of Muslims by the media, but if the topic turns to Christmas, away we go.... And yes, even if we weren't talking about a police agency with a spotty history on issues of race, the failure to adequately investigate the shooting of a young black man by anybody is likely to raise the hackles of civil rights leaders, perhaps especially those who lived through the 1950's and 1960's.

You would think we could establish at least this much common ground: Whatever else you think, it is appalling that a teenager ended up being targeted and shot because he was wearing a hoodie with the hood up on a rainy day, and doing absolutely nothing that was illegal or otherwise suspicious. It is appalling that people within the police department responsible for the investigation leaked irrelevant material about Martin in order to discredit him. It is appalling how eagerly some people grasp at any sign of trouble in Martin's background - none of which factored into Zimmerman's choices and decisions - as somehow making him deserving of a bullet.

For most people who are offended by the shooting, it's not primarily a racial issue. It's a case of a young man who was pursued and shot for no good reason, with the police dropping the ball on the case. Sure, race comes into play at the level of the police investigation, where the department's seeming acceptance of the stereotype advanced by Will and Buchanan is viewed by many as playing a role in their casual approach to investigation and the decision not to charge Zimmerman. But what those who snicker, "Zimmerman is a registered Democrat" or "Zimmerman's mom was Hispanic" don't (or perhaps aren't bright enough to) understand is that they are the ones introducing identity politics into the case. It's they who don't understand that the justified anger at the shooting of Martin and the treatment of the investigation (and of Martin's family) by the police is not dependent upon Zimmerman's political beliefs or ethnicity.