Saturday, January 26, 2008

What's a little waiting if it means universal care?

Mark Stein hits it on the head:

Canadian dependence on the United States is particularly true in health care, the most eminent Canadian idea looming in the American context. That is, public health care in Canada depends on private health care in the U.S. A small news story from last month illustrates this:

A Canadian woman has given birth to extremely rare identical quadruplets. The four girls were born at a U.S. hospital because there was no space available at Canadian neonatal intensive care units. Autumn, Brook, Calissa, and Dahlia are in good condition at Benefice Hospital in Great Falls, Montana. Health officials said they checked every other neonatal intensive care unit in Canada, but none had space. The Jepps, a nurse and a respiratory technician were flown 500 kilometers to the Montana hospital, the closest in the U.S., where the quadruplets were born on Sunday.

There you have Canadian health care in a nutshell. After all, you can’t expect a G-7 economy of only 30 million people to be able to offer the same level of neonatal intensive care coverage as a town of 50,000 in remote, rural Montana. And let’s face it, there’s nothing an expectant mom likes more on the day of delivery than 300 miles in a bumpy twin prop over the Rockies. Everyone knows that socialized health care means you wait and wait and wait—six months for an MRI, a year for a hip replacement, and so on. But here is the absolute logical reductio of a government monopoly in health care: the ten month waiting list for the maternity ward.

Monday, October 22, 2007

Stossel on child "sex-offenders"

My hero John Stossel has an interesting article on kids getting arrested and prosecuted for "sexual harassment."

Wednesday, October 17, 2007

One more question about Ahmadinejad...

I've been considering whether any good could possibly come out of bringing up the Ahmadinejad story, especially now that we're all quite sick of hearing about it. But maybe that's a reason to bring up this particular argument now.

Throughout the coverage of the event -- in which Columbia invited the Iranian president to speak -- it seemed to me that we all go so hot-headed that we were incapable of even playing the usual "devil's advocate" position, you know, the one in which we at least pretend to consider what possible benefit there could be in inviting a radical, loony islamist to one of our great scholastic institutions.

If we are cooled down at least enough to do that now, I would like to posit one. Namely, it seems to me that one of the principal reasons of all the animosity against Americans is precisely that folks in that part of the world don't have any channel through which to communicate their ideas and their frustration with Americans. Even if they are loony.

Indeed, the official position of the Israeli media is to seek to maintain its monopoly on the Middle East perspectives that are offered to Americans by calling for further suppression of “the Palestinian perspective.” Israeli Consulate, Thus it should come as no surprise that the American media routinely report “on the personal and psychological impact of suicide bombings on Israelis,” but that Americans “seldom see stories about the impact on Palestinians of the occupation and all its aspects—the civilian deaths, the roadblocks, the land confiscation, the curfews, the depredations by settlers, the shootings by soldiers, the destruction of olive groves, etc., etc.” Kathleen Christison, New York Time’s Anti-Palestinian Bias, Arab News, Aug. 21, 2002, available at

This is just one illustration of why we should be at least critical of suppressing any kind of speech. Regardless of the rightness of the views expressed, the value is simply in the expression. In other words, I would posit that if radical islamists had a ready channel by which to express their views, what would happen is not more terrorism. Instead, more people would understand why their position is ludicrous. As a result, once those radicals are able to vet out their ideas, put them in the marketplace of ideas, they would be forced to realize that their ideas are not being received not because no one has heard them, but because they really do objectively suck. Once they realize that people ARE hearing their message, and STILL not buying it, it would begin to sink in that they really are imbeciles.

Speech is as much for the speaker as it is for the listener. Anyone who's married, or been in any relationship for that matter, knows that basic truth. But these poor clods are sitting in the middle of the desert with no one with half a brain to talk to, no one to really listen, to really try to understand, and thus to provide a process by which they might work their way out of their muddle-headed, infantile thinking.

Now, I don't propose that allowing Ahmadinejad to speak was the right call, even assuming all of the above is true. I do appreciate the caution that we must take in hosting these radicals. And I am certainly wary of sounding anything remotely like Hillary. (In fact, why don't we take the same tack we did with Ahmadinejad when Hillary is invited to speak?) My only question is why none of this factored into the debate. At all.

Tuesday, October 2, 2007

One Costco, hold the eminent domain, please

The city of Lakewood will host a new Costco, slated to open next year. As you may know, Costco has been a notorious abuser of eminent domain, pressuring cities to employ their sovereign power for their benefit. I thought it was interesting that this article thought to make it a point to mention that this particular store was takings-free. I'm not sure whether it's Costco or cities who are changing their stripes in light of the public's more watchful eye, but I'm glad just the same.

My child is a super student at Bureaucrat Elementary

I've blogged quite a few times now about my disdain for public schools, especially when it comes to the First Amendment. The more we define the Constitution as protecting certain rights and forbidding certain government action, the less it looks like what we'd expect from a school charter.

So here is another article that made me think, sheesh, how is a kid supposed to get through a day of school without committing some infraction or another, and how is an administrator to ensure order without having to employ a whole gaggle of First Amendment lawyers?
And then it hit me. Of course! The government isn't interested in education. Why would it go through all the lawsuits, all the misery, for what's ultimately turned out to be one of the world's most disappointing school systems. No, the government is training an unholy army of bureaucrats, a host of fresh recruits adept at navigating the morass of unwieldy government infrastructure and First Amendment protections where they don't belong!

This is one thing I dislike about conservatives. Take the Bong Hits for Jesus case. Conservative Justices like Roberts and Alito don't like drugs, so they find a place in the school-exceptions to the First Amendment to allow administrators to squelch student speech, even when it's off campus. I don't want drugs in schools, either. But the answer is not to allow the government to keep drugs out of school (which is not an enumerated governmental power) at the expense of free speech (which is a fundamental individual right). That's just enabling government to keep running schools. The Court shouldn't balk just because the government really really wants to do something. It needs to uphold the First Amendment no matter where the government decides to stick its nose. That's the only way that it can be reminded where it belongs in our constitutional framework.

Monday, September 24, 2007

Department 2800

I don’t want to simply add to the chorus of voices expressing concerns over Ahmadinejad’s visit to Columbia today. It just strikes me as ironic that the same faculty that will invite a madman, will build human chains to keep our military recruiters off campus. These people really are sick. On the topic of Iran, this little nugget was in the Early Bird News the Army distributes through it’s AKO portal. Pretty interesting stuff…

NewsweekOctober 1, 2007

Rise Of A Secret Unit

In his report to Congress earlier this month, Gen. David Petraeus claimed that Iran has a deadly new ally in its proxy war against U.S. forces in Iraq: a secret unit of the militant Lebanese Hizbullah movement called Department 2800. It was created, Petraeus said, "to support the training, arming, funding and, in some cases, direction" of Shia militia cells and turn them into a "Hizbullah-like" movement opposing U.S. forces and the Iraqi government. According to Petraeus, Department 2800's partner is the Quds Force, a secretive branch of the Revolutionary Guard Corps, Iran's principal internal-security apparatus. Petraeus also told Congress that U.S. forces had managed to capture the "deputy commander" of Department 2800. A U.S. counterterrorism official, who requested anonymity when discussing sensitive material, told NEWSWEEK that the operative was detained in March while he was canvassing insurgent cells in Iraq, helping them set up weapons deliveries, offering strategies for attacks and even arranging for some insurgents to attend training inside Iran. The Hizbullah rep, whose name was not disclosed, was also allegedly involved in planning a January attack in Karbala during which insurgents dressed as U.S. soldiers entered a secure compound and kidnapped, then later killed, five Americans."
— Mark Hosenball

Saturday, September 22, 2007

No such thing as "de facto citizenship"

The Federalist Blog has this interesting article on the original meaning of the Fourteenth Amendment's naturalization clause. Kind of a rehashing of other articles on the internet, but a good primer on the basic rationale against birthright citizenship.

The recounting of the ratification debate and the articulation of the very meaning of the naturalization clause, specifically the "subject to the jurisdiction of" clause, made me remember James Ho's article (writing the "con" side to John Eastman), in which he said that "no one disputed the amendment's meaning." If that is right, then apparently he is simply on the wrong side of the argument.

Friday, September 21, 2007

POW/MIA Remembrance Day

I wanted to remind everyone to take a moment to reflect on the servicemembers who gave of their own life and liberty to preserve ours. At Whittier Law School yesterday, we displayed a memorial commemorating those who were taken held as Prisoners of War, and those who never came home. The sacrifices of a few preserve the freedom of many.

Thursday, September 20, 2007

Federalist Paper No. 10

Imagine you have a problem. Let’s say that it will cost $100 to purchase a solution to this problem in the marketplace. Let’s say you can donate $10 to your local politician to have a law passed that will solve your problem. Which solution do you choose?

That's right; you buy off the politician every time. It’s the only rational thing to do. Of course things are never quite that easy, and politicians are never quite that cheap. With the high cost of purchasing legislation, what is a concerned citizen to do? You form up with other like minded citizens and pool your resources together.

Congratulations, you just formed a faction. Perhaps you'll call yourself or the National Rifle Association. The modern trend is for names totally devoid of actual meaning, like "Concerned Citizens for a Better Tomorrow." My personal favorite is mildly fictitious Billionaires for Bush.

When James Madison wrote the Federalist #10, his primary concern was how factions can push their own agenda at the expense of the public good. We can't really abolish liberty, and we can't really get everyone to want the same thing. The problems is that these factions are "disposed to vex and oppress each other [rather] than to co-operate for their common good." Madison noticed that "the most common and durable source of factions has been the various and unequal distribution of property." It shouldn't surprise anyone that landlords have a different set of interests than renters.

"It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good." Since the cause of factions cannot be eliminated, we must look at mitigating its effects.

A minority faction will be kept in check by the majority. The problem is that when the majority enters into a faction, it has the power to sacrifice the public good and the rights of other citizens in order to satisfy its wants. We need to prevent the majority form crushing the rights of the little guy.

One solution can be found in our republican (small "r") form of government. Because politicians must receive a large number of votes, it is harder for a small faction to unduly influence the politician. But if the electorate is too large, you loose the ability to represent truly local interests. Madison saw beauty in our constitutional government, where “great and aggregate interests [are] referred to the national [government], that local and particular to State legislatures.”

This should sound familiar: National government decides national issues like defense or interstate commerce. Local government decides local issues, like education and zoning.

Madison also took note that slim majorities tend to oppress the opposing faction. The larger the majority, the more encompassing it’s interests. Likewise, a slim majority mean you only need to buy off (or “support”) a small number of legislatures. The large majority provides a more difficult target for a small special interest group to influence decisions. This brings the government price for a solution much closer, if not greater, than the market price.

A charismatic individual, a particularly powerful local religion, or a politician with questionable ethics will be kept in check by countervailing interests from other places. This is the advantage of the federalist system. Local interests dominate local politics, but do not dominate national politics.

This should sound familiar: National government decides national issues like defense or interstate commerce. Local government decides local issues, like education and zoning.

Madison also took note that slim majorities tend to oppress the opposing faction. The larger the majority, the more encompassing it’s interests. Likewise, a slim majority mean you only need to buy off (or “support”) a small number of legislatures. The large majority provides a more difficult target for a small special interest group to influence decisions. This brings the government price for a solution much closer, if not greater, than the market price.

A charismatic individual, a particularly powerful local religion, or a politician with questionable ethics will be kept in check by countervailing interests from other places. This is the advantage of the federalist system. Local interests dominate local politics, but do not dominate national politics.

Wednesday, September 19, 2007

Justice Stevens measures an opinion's relevance by its social significance

In a recent interview with Justice Stevens, the senior Justice has this to say about a recent decision (in which he was in dissent) that upheld a federal ban on partial birth abortions:
On the issue of abortion, however, Stevens has failed to persuade Kennedy to vote consistently with the liberals. I asked Stevens about the decision last term in which Kennedy, writing for the five more conservative justices, upheld the federal ban on partial-birth abortion. Stevens said that the federal ban was deeply flawed and that Kennedy’s rhetoric about the need to protect women from the emotional trauma of abortions was frustrating. But he noted that the real-world effect of the defeat was minimal because of the widespread availability of alternative abortion procedures. “The statute is a silly statute,” he said. “It’s a silly statute.” He added, “It’s just a distressing exhibition by Congress, but what we decided isn’t all that important.”
I couldn't help but be alarmed by that last bit. If the Court gets something wrong, it's very important. The social effects are ancillary to proper interpretation of the Constitution. Ironically, this quote comes just after he gets finished talking about how he is shocked that people consider him to be liberal.

Tuesday, September 18, 2007

Expansive agency power is...the President's fault??

Professor Tamanaha has a post over at Balkinization in which he takes a critical view of the President's excercise of power via that mysterious "fourth branch" of our government: the agencies. He reminds us that "all legislative power" is vested in Congress, leaving exactly no power for the President to make law. He seems to imply that the presidency, and Bush in particular, has somehow usurped lawmaking power for itself. And this has undermined our system of democracy, especially since many presidents tend to abuse their power by filling agencies with their cronies at the eleventh hour.

I couldn't help but feel that I was being hoodwinked. Congress, of course, is responsible for establishing agencies, not the President. And, under the Constitution, the President has a helluva lot of discretion in staffing the agencies as he sees fit. Tamanaha complains that the President is able to essentially skirt the democratic process in the way he staffs the agencies with those who would dutifully fulfill his policies, with basically no democratic oversight.

But this is not a failing of the President. The Constitution establishes three branches, each carefully interconnected and interdependent, and each with unique checks on the others. The Framers did not depend on politicians' moral fiber or sense of homage to lofty principles of democracy. This was the very point of the famous Federalist 51: "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."

The point? Our Constitutional strictures on what Congress, the President, and the Court can each do, are not there to be a 200-year-old wet blanket to the neat new federal programs we'd like to roll out. They're there precisely because men (not angels) need well-defined boundaries to their power, otherwise men (not angels), would feel no compunction about abusing their power.

If you don't like what a politician does, vote him out. If you don't like what a politician can do, then your beef is with the Constitution. Don't like that the President is the Commander-in-Chief of the military? Neither Bush nor any other president gave himself that power--it derives from the Constitution. Don't like that the states don't have any power over immigration? The Congress doesn't decide that--the Constitution grants Congress plenary power over immigration.

Of course, in the case of agencies, which don't actually have any real Constitutional justification, you can thank big-government-progressivism and the giant Stay-Puft-marshmallow-man of a government we've now got because of it. The notion that principles of democracy can be found in that sticky mess really is, to borrow a line from Tamanaha, "convincing only to theorists who prefer abstraction over reality."

Originalist Progressives?

Over at The New Republic, a couple of Yale law profs post an article on how Progressives can use the principles of Originalism to achieve their ends. They have this to say to sum up their argument:
Quite simply, then, progressives can argue that they are committed to achieving the Constitution's purposes. Protecting equal citizenship in work, education, and the family is necessary to establish the democracy the Constitution seeks to secure. Subordinating arbitrary executive power to the rule of law is necessary to safeguard the freedom the Constitution exists to preserve. Enabling the federal government to meet the needs of its citizens is necessary to sustain the powerful nation the Constitution seeks to create.
If I was a little unclear on exactly how their approach was not just the same old Progressivist creedo that I've always heard, this paragraph confirms that it is simply that. Spinning the Constitution to mean whatever we'd like to think it should mean, or it should have said, is the same Progressivist plot as ever. And it necessarily raises the question, why would anyone create a constitution in the first place? We can look to the common law and ratification debates and the Federalist Papers just as well without the Constitution. The Progressivist view belittles the Constitution to something on the order of a formal memo rather than a framing document.

Sunday, September 16, 2007

Health-care for all? Why not!

Over at Balkinization, Paul Finkelman writes a piece calling for more socialized healthcare. He likens the line-up of states that will have health care to those that don't like the pre-Civil War free and slave states. Very dramatic stuff. Although somehow basic human freedom doesn't compare well with crappy (but free!) healthcare. At least Canadians can opt out of the several-year-long waits by coming here.

Birthright citizenship pro/con

Here are a couple of good pro/con articles on the birthright citizenship debate. The pro is written by James C. Ho, the con by John Eastman. Ironically, both are former clerks to Justice Clarence Thomas.

Saturday, September 15, 2007

Self-destructive human tendencies

I came across this highly entertaining video on YouTube. It's video footage of various bus lanes in France. The lanes have a barrier to ensure that only busses are able to pass. When a bus pulls up to the barrier, there is some kind of weight sensor, and the barrier retracts into the ground. There is footage of three drivers who try to follow the bus to pass the barriers, but predictably, they all get impaled. One of them is probably going 15-20 mph when she smashes into the barrier. It turns out that she had a baby in the back seat.

The whole thing reminded me about spring guns. Every law student remembers the infamous case where an owner sets up a shotgun with the trigger connected to the door, which fires upon the unwitting trespasser. Although apparently no one has suffered serious injury from these barriers, I wonder, is it a good policy? Clearly in the U.S. we have refrained from condoning such "Darwin awards" -- practices in which folks may tend to get hurt, but only from the consequences of their own dumb actions. But maybe it wouldn't be such a bad idea to stop shielding the more dim-witted of us from the natural consequences of our actions. We are more than willing to monetize punishment, but one gets the sense that some people react better to monetary damages, and some people react better to a bonk on the head.

At any rate, I guarantee none of the folks in this video will try to cheat the bus lane again.

More evidence that you can use facts to prove anything

Volokh Conspiracy reports that many scientific studies may be sloppy and result-oriented. This may be trouble for pragmatists who seek to shape policy through the courts by use of such studies.

As Homer Simpson has said, you can use facts to prove anything that's even remotely true. Forty percent of all people know that.

Friday, September 14, 2007

More debunking of the environmentalist religion

So it turns out that the whole "organic" craze is just that. "Organic" foods are not healthier, not safer, and do not preserve the topsoil or increase sustainability. Now let's see how long it takes for folks to internalize that truth. After all, it feels pretty good to think that we can do something that's good for us as well as for our planet. Contrary evidence can be such a buzzkill.

Thursday, September 13, 2007

First Amendment Lite -- Goes Down Easy for Schools!

On the anniversary of 9-11 this week, a North Carolina high school banned students from wearing t-shirts depicting the American flag (or any other flag). Also this week, in our own backyard, Palos Verdes school officials apologized for their overzealousness in squelching student speech when they took to hacking the little rifle-bearing limbs from the army men that students had affixed to their graduation caps in a salute to our overseas troops.

It makes me very nervous that students are given a completely different, and drastically reduced, measure of First Amendment protection. The U.S. Constitution was not written as a school charter, and that pesky freedom of speech would make it hard to establish an effective pedagogy. Government-provided education isn't guaranteed by the Constitution, of course, but dammit it should be, right? The children are our future, surely our Founders can't argue with that. Thus we should employ an appropriate level of generality to the First Amendment such that public school administrators can trample on what would otherwise be protected speech.

Of course the fallacy in that argument is that there is no fundamental right to public education. But there is such a right to free speech. So what happened such that a fundamental right got trampled under what is basically a non-right? Actually, don't answer that. It's too depressing.

The water rationing guilt trip

Long Beach is urging its residents to cut back on water during this dry season. What troubles me about these calls to ration resources is that it relies on moral persuasion rather than self-interest. For example, no one would every say "cut back on buying iPhones since there aren't enough to satisfy the demand." Instead, the price would simply go up so that those who want it most will have access. Those who don't want it as much will wait until demand subsides.

But when it comes to electricity and water, instead we rely on these moral imperatives. "If you don't cut back, then there won't be enough for everyone." What winds up happening is that those folks who are unfortunate enough to have scruples, a high ethical standard, will heed the warnings and cut back. And those folks who don't give a rip about anyone else as long as they get theirs will go on using just as they always have. At bottom, this kind of rationing is a tax levied only on good citizens, a punishment for caring about your community.

I don't know much about how these utilities are regulated, but I'm guessing that some manner of regulation prevents the utility companies and water districts from simply upping the rates of usage to assuage the demand instead of having to resort to begging.

Chemerinsky II

Hugh Hewitt has been weighing in on the Chemerinsky issue, check out some of his recent comments here... As always, prescient insight.