You Didn’t Say That, Somebody Else Did

The last time I read Atlas Shrugged was almost twenty years ago. I thought it was time for a reread. While reading it, I came across the following:

“Rearden. He didn’t invent smelting and chemistry and air compression. He couldn’t have invented his Metal but for thousands and thousands of other people. His metal! Why does he think it’s his? Why does he think it’s his invention? Everybody uses the work of everybody else. Nobody ever invents anything.” [p. 262 in the 35th anniversary edition]

This was said by James Taggart to Cherryl Brooks.

Rearden is, among other things, an inventor who has just created a new alloy that is much better than steel. The pretend capitalists of the world are not happy because he’s going to compete them into the ground with his Rearden Metal. Taggart is the nominal head of a railroad. In reality, his sister Dagny runs the railroad and he takes the credit for her success while constantly doing his best to undercut her; he himself has never done a worthwhile thing in his life.

Obama channeling Ayn Rand? How bizarre, even if he’s channeling a Rand villain.



Economic Dis-Reporting

This morning, I was listening to “The Marketplace Morning Report” on NPR. The head of the Boston Fed said that he thought that the Fed should pump lots more money into the economy. The reporter pointed out that some people thought that that would lead to inflation.

The Fed guy replied that there were no signs of inflation now.

No one (with any economic sense) thinks that inflation is possible today, no matter how much money is pumped into the economy. There is simply no demand that would drive prices up, even though there’s all too much money floating around. The fear is that, once demand does go up, there will be all that money just waiting to pump up prices.

The Fed guy had to understand this.

Ditto the reporter.

The kindest thing one could say about the exchange is that it was “he said/she said” reporting.

But the accurate thing to say is that it was a dishonest government official enabled by a dishonest reporter.

The Lyin’ Paul Ryan

I tuned into NPR this morning and heard Paul Ryan giving his speech after becoming Romney’s running mate. Of course, I know that when a politician’s lips move, he’s almost certainly lying; nevertheless I felt stirred by his talk of freedom and America’s founding principles.

Then I looked up his abortion and drugs stances.

Ah, it’s so nice to have my dark view of politicians reinforced.



Who Is the Criminal, the Convict or the Government?

I recently read an article in the online USA Today, Scores in N.C. are legally ‘innocent,’ yet still imprisoned, which should give anyone pause. Here’s what it says:

There is a federal law that says that a felon may not possess a gun. The federal government thought that certain North Carolina crimes were felonies. They imprisoned a bunch of people who had committed those crimes and were later found with a gun. Now they realize that those crimes were not felonies and that these people are not guilty of the crime they are in prison for. Instead of trying to get these people out of prison, the federal government is doing its best to keep them in prison.

I could say a few things about this. However, it’s already been said by, among others, the Supreme Court and the authors of the Constitution:

Berger v United States, 295 U.S. 78, 88 (1935):

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Imbler v. Pachtman, 424 U.S. 409, 427n25 (1976)

The possibility of personal iiability also could dampen the prosecutor’s exercise of his duty to bring to the attention of the court or of proper officials all significant evidence suggestive of innocence or mitigation. At trial, this duty is enforced by the requirements of due process, but, after a conviction, the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction. Cf. ABA Code of Professional Responsibility EC 7-13 (1969); ABA, Standards, supra, 3.11.

Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort….

Constitution of the United States of America, Amendment V

No person shall … be deprived of life, liberty, or property, without due process of law….

The Ruling that Means Nothing

I don’t waste my time reading political commentary. Most of it, left, right, center, and libertarian, is partisan garbage. I have no doubt, and the few articles I have been unable to avoid reinforce my belief, that the leftish pundits are crowing about the Supreme Court’s ruling on Obamacare and the rightish pundits are screaming “judicial activism”. Were I to chime in, in either direction, I’d be lying to you.

Here’s the skinny: The Supreme Court’s ruling is one of the most conservatively written opinions I’ve seen. And that means something, because I’ve read over 50,000 court opinions. If someone tells you that the Court stretched, bent, or ignored the law, they’re either ignorant or lying—the reality is that the Justices bent over backward to rely on uncontroversial precedent and to not create any new law.

I’m quite serious. Contrary to the headlines, when legal historians write about the destruction of America, this latest decision will be relegated to a footnote. It is not a landmark decision. It is not judicial activism. The case came before the Court, so it had to rule. But had the case never made it that far, America’s future would not be changed in any significant way.

Don’t get me wrong. I think Obamacare is a big step in the wrong direction for America. It’s going to drive up health care costs, cause health care to be further rationed, and sap the productivity of America. But it’s just One More Entitlement in a long line of entitlements. It’s just One More Violation of individual rights in a long line of abrogated rights. It, by itself, won’t be the death of America. Rather, it is the courts’ abdication of a principled interpretation of the Constitution in combination with America’s belief in entitlement that is deadly. See my previous post, The Mutation that Will Kill America.

I would have cheered myself hoarse had the Supreme Court shot down Obamacare. That would have signaled an end to the courts’ toleration of the American public’s willingness to abandon its rights in favor of entitlements. But that was never going to happen. The Supreme Court rejected the idea of limited government almost 200 years ago and there was no way it was going to do an about-face that would have required trashing two thirds of today’s government.

The Supreme Court merely stood on the law as it exists, ratifying again America’s suicidal plunge into the abyss of entitlements. As the Supreme Court itself has noted, time and again, it is up to the American people to put a stop to such abuses of power as Obamacare. But Americans cannot stop saying “gimme, gimme!” long enough to see where the entitlement society must lead.

Bye, America. We hardly knew you….

The Mutation that Will Kill America

The authors of the Constitution sought to create a government that would do only what was necessary for a government to do and that would respect individual rights in the doing. What they wrote was flawed in many ways, most notably in its sanctioning of slavery. Yet, though that resulted in civil war, neither it nor the other flaws in the Constitution doomed America. It was trust that the courts would properly interpret the Constitution that sealed America’s fate.

The Constitution expresses what the government may do by stating its various powers. So, for example, “The Congress shall have power to lay and collect taxes”. It sometimes limits the powers, as in, “No tax … shall be laid on articles exported from any state.” However, the Constitution is almost mute as to what the government may use its powers for. Although the Constitution’s authors had definite ideas about that, the courts care little what they intended or even whether the government uses its powers for legitimate purposes.

It’s been that way pretty much from the beginning. For example, there was a case back in 1824, Gibbons v. Ogden, that concerned the limits of Congress’ power to regulate interstate commerce. The particulars of the case are dead history but part of the Supreme Court’s reasoning is profoundly important. The Court reasoned that the authors of the Constitution expressed themselves fully in the words of the Constitution and thus that the only limits to the government’s powers are those found in the text of the Constitution. The government could use its powers for good or for evil, without regard for their intended purposes, and the only check on government misuse of its powers was to be found at the ballot box. In contrast to the Court’s rejection of external limits to the powers granted to the government, the Court has elsewhere eagerly embraced extra-Constitutional limits to the rights protected by the Constitution.

Gibbons remains the law of the land, with predictably awful consequences. In the 1942 case of Wickard v. Filburn, the Supreme Court ruled that Congress could tell a farmer that he could not feed wheat he’d grown on his own farm to his own farm animals, on the ground that doing so could affect interstate commerce. And in the 2005 case of Gonzales v. Raich, the Supreme Court ruled that Congress could forbid the purely intrastate use of marijuana for medical purposes, applying the reasoning of Gibbons and Wickard. What’s truly revolting is that the Supreme Court observed that medical marijuana could save lives—and this fact played absolutely no part in the Court’s reasoning.

In today’s highly interconnected world, most activities affect interstate commerce and so fall under the government’s power to regulate interstate commerce. In combination with the government’s other powers, notably the virtually unlimited power to tax, essentially every aspect of American life is subject to some kind of government control. The Constitution’s authors may have intended a limited government that protected individual rights but what America now has is Leviathan.

It is easy and proper to blame Leviathan on those in government who rejected limited government and individual rights. Yet, as the Supreme Court said, the American people have the power to restrain their government. They chose not to. Instead, they demanded that the government take on burden after burden, and ceded right after right that the government said (usually correctly) it had to abrogate if it was to carry those burdens. How did this come to pass?

The Constitution’s authors understood rights as limits on government action. However, historically speaking, the ink was barely dry on the Constitution when a new kind of right was invented. The American people decided that they were entitled as individuals to goods and services that were not earned by their own efforts. Of course, it would not do for each person to decide what he was entitled to and take it; that would be theft. Instead, the government was given the jobs of deciding who was entitled to what and of expropriating what was necessary to provide the entitlements.

Americans demanded ever more and diverse entitlements and, today, most people believe that government should provide anything a person might need. Today’s political fights are mostly over what qualifies as a need and how the needs should be met. Politics has ceased to be about solving the problems of the polity; it has become the whining of children demanding their turn at the public teat and the wails of those sacrificed to the public’s gluttony. No matter how principled, politicians have had to become panderers—today, most are proud to be—pimping the government to obtain votes. And the courts, having abandoned their responsibility to apply the principles of limited government and individual rights when interpreting the Constitution, play Pilate to the demands of the people.

It is easy to see where the voracious demand for entitlements will take America. The signs are visible today. Entitlements continue to grow. As people complain about taxes, the government cuts corners on the entitlements it provides directly and compels the private sector to provide others. Entitlements are “paid for” by borrowing, inflation, and neglecting the legitimate purposes of government. Expropriation and regulation sap productivity. The government and the public engage in massive denial. And then….

One day, America wakes up to a government that can’t pay its bills. So, it prints money—hello, hyper-inflation. The private sector is also tapped out—and can’t even print money. Those who depended on entitlements have to hope for charity—from those barely able to survive, much less support hordes of parasites. Far too many people, steeped in the belief that they are entitled to that which they did not earn and who therefore never learned how to earn those things, latch onto some con man who promises to give them what they demand. We’ve seen this movie before, in many variations…what comes after will not be America, no matter what it is called.

And that is an optimistic scenario.

Americans could reject en mass the idea of entitlements and demand of each person that he be responsible for himself or suffer the consequences. Elected officials—and several of their successors—could commit political suicide by refusing to perpetuate the entitlement society. Or, the Supreme Court could do an about-face that would require dismantling most of the government. None of these have any reasonable chance of happening, so America cannot escape its fate.

It is no news that the public is swayed by passion and desire. To give it absolute power would mean a society enslaved by whim. Elected officials, acting within the limits imposed by a constitution, should damp the public’s excesses. Yet, to get elected, those officials must heed the public’s demands, even the illegitimate ones. In the interplay between electorate and elected, abstract principles take a back seat to passion and desire. Courts, isolated from politics, are the reflective mind that should ensure that principle is not sacrificed to exigency.

The American courts abandoned that essential function. That left no part of the government able to curb abuses of power instigated by, approved of, or tolerated by the public. Such abuses were then inevitable. The cancer of entitlements will kill America but the mutation that allows this disease to flourish is the courts’ abandonment of a principled interpretation of the Constitution.