Five Little Words

In the past I’ve mentioned my opinion that just because most of the members of the Congress are lawyers doesn’t mean that they’re good lawyers. I’m beginning to think I should extend that observation to members of the Supreme Court. Consider, for example, former Supreme Court Justice John Paul Stevens’s prescription for “fixing” the Second Amendment to the Constitution:

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

Now, there’s a substantial body of scholarship from Second Amendment advocates specifically rejecting Justice Stevens’s interpretation of history and the law and I presume there will be an outpouring of opinion directly contradicting the justice’s interpretation. However, you don’t need to do that to vitiate the justice’s prescription. Consider Article XII Section 1 of the Illinois state constitution:

The State militia consists of all able-bodied persons residing in the State except those exempted by law.

In other words, I’m serving in the state militia as I write this post and have done for most of my adult life just as all other “able-bodied residing in the State except those exempted by law” do including South Side gangsters, North Shore matrons, and just about everybody in between. Were the Constitution of the United States to be amended according to the justice’s prescription before the ink was dry at least half of the states would have adopted similar language in their state constitutions, negating the amendment to the amendment.

I don’t believe that I can think of an amendment to the Constitution which in the unlikely event that it were enacted would be more likely to provoke violent rebellion than that. However, let’s leave that point aside.

Let me suggest five alternative words that would solve the problem the justice sees and that a lawyer more clever than he would have substantially more difficulty in eluding: “except as provided by law”. That’s the conventional formulation used by illiberal autocracies to appear to be liberal without being liberal. The constitution of Saddam Hussein’s Iraq had that formula applied to just about every guarantee of basic human rights from freedom of speech to freedom of the press or religion.

We could fix the First Amendment similarly:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances except as provided by law.

Do you see how handily that works out? Wouldn’t you feel freer if the Constitution were amended that way?

9 comments

Foreign Policy Blogging at OTB

I’ve just published a foreign policy-related post at Outside the Beltway:

What Else Did You Expect?

With respect to Ukraine, the Russians are behaving exactly as you would expect given their experience of the last twenty-odd years with the West. There are too many areas in which we need Russian cooperation to accomplish our own objectives to go out of our way to alienate the Russians with little hope of achieving anything productive by it.

6 comments

Interesting Choice of Words

I think I was passed by one of these on the Kennedy the other day:

A new paper from the Swansea University, College of Engineering team working on the BLOODHOUND SSC (Supersonic car) project has been published on the aerodynamic characteristics of travelling at 1,000mph. Simulations have looked at how the car will cope with the supersonic rolling ground, rotating wheels and resulting shock waves in close proximity to the test surface at the record attempt site in Hakskeen Pan, South Africa. Where, in 2015, it will make high speed test runs of up to 800mph, with the full 1,000mph attempt scheduled for 2016.

In order for a ground vehicle to travel at over 1,000mph (approximately Mach 1.3), the designers have created the most advanced fusion of space, aeronautical and Formula 1 engineering ever attempted. In the words of the Institution of Mechanical Engineers, ‘the BLOODHOUND supersonic car (SSC) is the most exciting and dynamic engineering challenge going on today.’

I found that the title of the article was an interesting choice of words: “BLOODHOUND team predict the impact of the 1,000 mph supersonic car”. I imagine it would make quite an impact. I wouldn’t want to be hit by one while crossing the street, anyway.

9 comments

Something Different

There’s an interesting tidbit of information from Jonathan Bernstein at Bloomberg. Do you remember the opinion poll results that say that among those who say they disapprove of the PPACA because it’s “not liberal enough”? As it turns out very, very few them support a single-payer system or public option.

Here’s the nugget:

The majorities who have formed a negative impression of the law are real, even allowing for a low single-digit percentage who would prefer a single-payer system or a government-run public option.

Apparently, they mean something different than progressives do by “not liberal enough”.

3 comments

Why Has Our Current Account Balance Shrunk?

There’s an interesting article at Bloomberg on the remarkable decline in the U. S.’s current account balance over the last eight years, from more than $800 billion to just over $300 billion. Just to refresh your memory the “current account balance” is defined as the balance of trade plus net factor income (earnings on foreign investments minus payments made to foreign investors) plus cash transfers.

As it turns out the main reasons for the change are 1) a substantial increase in the services we sell to other countries and 2) the dividend and interest payments we receive from the rest of the world relative to the dividend and interest we pay.

Here’s the kicker:

Americans tend to buy high-paying equity stakes while overseas investors buy debt, often low-yielding U.S. Treasury bonds.

In order to maintain their mercantilist trade policies, trading partners like Germany, China, Japan, and South Korea must either purchase U. S. dollars or hold dollar-denominated assets. When their appetite for risk is extremely low, they hold Treasuries. Mostly, they’ve elected to purchase Treasuries and as long as Treasuries continue to pay abysmally low rates our net factor income will continue to look pretty darned good.

However, that strategy has implications for savers here and sectors that depend on the interest earned on Treasuries, e.g. insurance. The strategy is destroying them so our improved current account balance isn’t all skittles and beer.

2 comments

The Rock and the Hard Place

Over the last couple of weeks there have been two actions by the Congress which, if anyone had been paying attention, should convince us that there is no hope of containing the growth of healthcare costs within the constraints of the present healthcare system. The first was the annual (or nearly annual) ritual of passing the “doc fix”. That is the postponing of the imposition of the reduction in reimbursement rates that the Congress determined were necessary 15 years ago and which they have dutifully postponed taking effect ever since.

The second is the abolition of the cuts to Medicare Advantage that were enacted into law as part of the PPACA and which, in theory, would help to pay for it.

We’ll never cut costs as long as any reduction in benefits or reimbursement rates might result in political repercussions.

But cut we must because increasing healthcare costs are bankrupting state and local governments.

It might be the case that some future Congress will prevent the load of the expansion of Medicaid from falling on the states as it’s scheduled to do. I doubt it but it’s possible. IMO it will be hard to justify without nationalizing Medicaid which I find difficult to imagine happening.

That still won’t be enough to save state and local governments. We need healthcare reform.

5 comments

The Next Shoe Drops on the IRS Scandal

The next shoe has dropped on the unfolding IRS scandal. Much of the attention has been directed at the House Oversight and Reform Committee’s recommendation that former Director of the IRS Exempt Organizations division Lois Lerner be held in contempt of Congress. The more significant news is that the House Ways and Means Committee has requested Attorney General Eric Holder to consider criminal charges against her:

After a two-hour meeting behind closed doors, the House Ways and Means Committee voted along partisan lines on Wednesday to officially urge Attorney General Eric Holder to consider criminal charges against former IRS official Lois Lerner.

The vote was based on evidence the committee uncovered while investigating the undue scrutiny that the IRS placed on conservative and liberal groups that filed for tax-exempt status during the 2012 elections. After the scandal broke last year, multiple congressional committees opened investigations into the matter and held several hearings to get to the bottom of it. Unlike other House committees, the Ways and Means committee had access to confidential taxpayer information that shed more light on the issue.

In the criminal referral letter it will send to Holder, the committee lays out three specific ways Lerner may have violated the law. Based on Lerner’s communications and actions, the committee charges that Lerner improperly used her position to influence action against conservative groups like Crossroads GPS while showing leniency toward similar liberal groups like Priorities USA.

The committee also charges that, according to her communications, Lerner knowingly gave misleading statements to the Treasury Department Inspector General for Tax Administration (TIGTA), the internal IRS watchdog, when TIGTA was investigating the controversy. Lastly, the committee says in its letter to Holder that Lerner used her personal email address to conduct official business, putting at risk confidential taxpayer information.

See also Kimberley Strassel’s outline of the scandal at the Wall Street Journal.

I think the Oversight and Reform Committee has erred in its recommendation that Ms. Lerner be held in contempt. It draws too much attention to the Committee’s disregard for Ms. Lerner’s right not to incriminate herself and away from the scandal itself.

There is a legitimate scandal here. The evidence that Ways and Means has submitted to Atty. Gen. Holder is substantial and appears damning. Even worse, violations of the Hatch Act appear to be endemic in the IRS. Caesar’s wife must be above reproach.

As I have maintained from the first public revelations of the scandal, despite the fond hopes, apparently, of Oversight and Reform, it does not reach directly to the White House. Democratic committee member Elijah Cummings may become collateral damage if the allegations of his collusion with the IRS have any legs but that, too, is a sideshow.

The real scandal revolves around whether government agencies should be, as one writer put it “politicized and weaponized” and IMO Ways and Means was quite correct in taking its next step.

The ball will then be in Atty. Gen. Holder’s court. If he refuses to investigate or is dilatory or superficial in his investigation, I suspect his impeachment is all but certain. Doing otherwise would foment a constitutional crisis.

“What attorney general has ever had to deal with that kind of treatment?”, Atty. Gen. Holder recently whinged. If recollection serves, most of them. Which, sadly, is as it should be. That more attorneys general have not been impeached is a scandal and an outrage. The post has become a sort of bagman for the presidents the attorney general serves.

When we were a tiny country with a small, relatively powerless federal government, and before the rise of political parties, that may have been excusable but conditions have changed and they changed long ago. The country’s chief prosecutor needs to be that.

21 comments

Confession

Of the 170 movies on this list of bad movies I have seen 59. One word of caution: it is not possible to unsee something.

Honestly, some of the pictures on the list aren’t actually that bad. They’re just bad relative to what they thought they were or what they might have been.

Does anybody who watches Glen or Glenda? really expect it to be good?

One thing that I noticed was that the more recent the bad picture, the less likely I was to have seen it. That definitely doesn’t mean that today’s bad pictures are worse than those of yesteryear. It just means that I like old movies.

18 comments

What I Really Think About Congressional Intelligence

I think that most Congressmen, overwhelmingly of the professional class, like other members of the professional class are smarter than average, maybe standard definition plus or minus. Say, IQs of 100 to 140. I think that really intelligent Congressmen are quite rare.

I think that pertains to the Congressional caucuses of both parties. Republicans aren’t particularly stupid. Democrats aren’t particularly smart. Or vice versa. I’d bet a shiny new dime that 90% of Congressmen fall within the range I’ve suggested and that there’s very little difference between the Republican Congressional caucus and the Democratic one. If anyone has hard evidence (i.e. not based in what they say or what they support or a priori considerations), I’d appreciate it.

You can be smart and wrong. You can be dumb and right.

I think that resorting to notions like intelligence to explain differences of opinion is an error. I also think that attributing differences of opinion to malice is usually an error. Differences in preference are enough to explain many differences of opinion.

19 comments

Trial Definitions

Let me try out a few definitions for size. A “nation” is people who are bound together by ties of blood, language, or culture. A “state” is an area of land with a population, borders, and a government. When most of the people who live within a state belong to the same nation we call it a “nation-state”. Between the wars Germans were a nation, Germany was a state, but Germany was not a nation-state. One of the factors behind World War II was the tension between nation and state with respect to Germans.

An “empire” is a state governed by a monarch (any autocrat, really) that rules over more than a single nation. Multiple nations that are governed by the same republic are either colonies or the same republic.

When multiple ethnic groups live in the same state with no one ethnic group comprising the overwhelming preponderance we think of it as “pluralistic”, especially if the various ethnic groups are tolerated. It’s a matter of degree. Most states are pluralistic. Estonia is pluralistic (70% ethnic Estonian). The Republic of Ireland is a nation-state (90% or more Irish). Hungary probably qualifies as a nation-state.

Disagreements? Modifications? Extensions?

8 comments