Futures and Options

First of all, for everyone who thinks that “confederacy” means cotton and slaves:

Main Entry:
con·fed·er·a·cy
Function:
noun
Date:
14th century

1: a league or compact for mutual support or common action : alliance
2: a combination of persons for unlawful purposes : conspiracy

With that out of the way, the California predicted in Heinlein’s novel, Friday, may well be here already.  The article in The Economist points out some of the inherent problems in democracy and shows how these issues have come to a head in California:

California has a unique combination of features which, individually, are shared by other states but collectively cause dysfunction. These begin with the requirement that any budget pass both houses of the legislature with a two-thirds majority. Two other states, Rhode Island and Arkansas, have such a law. But California, where taxation and budgets are determined separately, also requires two-thirds majorities for any tax increase. Twelve other states demand this. Only California, however, has both requirements.

If its representative democracy functioned well, that might not be so debilitating. But it does not. Only a minority of Californians bother to vote

So, first we have a problem resulting from an overly-restrictive method of budgeting that is compounded by the fact that fewer than 50% of Californians can even be bothered to vote.  The article then continues:

Those voters, moreover, have over time “self-sorted” themselves into highly partisan districts: loony left in Berkeley or Santa Monica, for instance; rabid right in Orange County or parts of the Central Valley. Politicians have done the rest by gerrymandering bizarre boundaries around their supporters. The result is that elections are won during the Republican or Democratic primaries, rather than in run-offs between the two parties. This makes for a state legislature full of mad-eyed extremists in a state that otherwise has surprising numbers of reasonable citizens.

This leads to a situation in which the minority party will almost always have an effective veto power during budgeting sessions.  With the self-segregation and gerrymandering this creates a situation in which compromise between parties is discouraged and the end result is gridlock where obstructionist politicians of the minority party are often re-elected by their districts because they are so visibly “fighting” the “opposition”.  And this is just the problems with the representative portion; there are problems inherent to direct democracy as well:

Representative democracy is only one half of California’s peculiar governance system. The other half, direct democracy, fails just as badly. California is one of 24 states that allow referendums, recalls and voter initiatives. But it is the only state that does not allow its legislature to override successful initiatives (called “propositions”) and has no sunset clauses that let them expire. It also uses initiatives far more, and more irresponsibly, than any other state.

On the surface, this seems like a good thing; if the people directly approve a proposition, then why should the legislature be allowed to overturn it?  My own answer has to do with the classic “bread and circuses” theory, and The Economist tends to substantiate this:

The minority of eligible Californians who vote not only send extremists to Sacramento, but also circumscribe what those representatives can do by deciding many policies directly. It is the voters who decide, for instance, to limit legislators’ terms in office, to mandate prison terms for criminals, to withdraw benefits from undocumented immigrants, to spend money on trains or sewers, or to let Indian tribes run casinos.

Through such “ballot-box budgeting”, a large share of the state’s revenues is spoken for before budget negotiations even begin. “The voters get mad when they vote to spend a ton of money and the legislature can’t then find the money,” says Jean Ross of the California Budget Project, a research outfit in Sacramento. Indeed, voters being mad is the one constant; the only proposition that appears certain to pass on May 19th would punish legislators with pay freezes in budget-deficit years.

OK, so people tend to pass legislation that is ultimately worthless for the practical purposes of running a state.  So what?  Isn’t government supposed to give the people what they want anyway?  And aren’t voter referendums the most distilled form of the people’s will?  Turns out that they’re not:

It is not ordinary citizens but rich tycoons from Hollywood or Silicon Valley, or special interests such as unions for prison guards, teachers or nurses, that bankroll most initiatives onto the ballots.

Oops.

But at least the initiatives are clear and easily understood unlike the language in most bills passed by legislatures, right?

Propositions tend to be badly worded, with double negatives that leave some voters thinking they voted for something when they really voted against. One eloquent English teacher in Los Angeles recently called a radio show complaining that, after extensive study, she could not understand the ballot measures on grounds of syntax.

Damn.

This has been a rallying cry of many left-of-center politicos.  Look to Europe for guidance.  Look at how the European Union has been a model of cooperation and of leftist ideology.  Look at how Europeans handed a resounding defeat to leftist candidates.  Wait, what?

Turns out that the end result of leftist policy is an eventual return to the right.  So yes, we should look to Europe for guidance.  If we do, perhaps we can bypass the mistakes of liberal fiscal policy that are only going to bring us right back to our starting point.

It is perhaps inevitable that when the subject of universal health care comes up proponents of this scheme bring up the idea that to deny universal health care is to deny, “the right to life, liberty and the pursuit of happiness”.  On the surface, this seems legitimate.  After all, being sick isn’t very lively or liberating and it doesn’t make people happy.

There is a basic flaw in this reasoning, however.  Not merely the issue of misunderstanding the fact that the phrase refers not to a guarantee of comfort or of fairness, but rather a declaration that, “life, liberty, and the pursuit of happiness” are facets of existence that a government should never be allowed, through positive action, to infringe upon.  It’s not even the fundamental misunderstanding of just what it means to mandate that one person pay to support another.

Money, any property actually, is nothing more or less than a person’s life.  Every piece of property that we obtain, whether it be monetary or physical, is nothing more or less than a piece of that person’s life.  All property represents the amount of time and effort that was sacrificed to obtain that property.  We voluntarily trade portions of out lives to our employers for our pay; ultimately time and our own efforts are our only capital and all other mediums of exchange are nothing more than proxies that facilitate a more convenient exchange of our time and effort.

Because of this, any non-optional monetary sacrifice (almost universally achieved through taxation) necessarily represents a deprivation of the sacrificer’s life and liberty.  Any sacrifice is by its nature a denial of one’s own rights. If such sacrifice is compulsory, those rights cannot be said to exist in the first place. If the sacrifice of some is _mandated_ (at the point of a gun, as all governmental mandates ultimately are), then it negates the very rights that one claims to seek to protect.

Which leads us to the ultimate misunderstanding; the idea that there so-called unalienable rights exist in the first place.  The phrase as used in the declaration of independence is nothing more than poetry.  When it all comes out in the end, Robert Heinlein is right; “a human being has no natural rights of any nature.”  Heinlein’s character Lt. Col. Jean V. Dubois said as much to his students.  When challenged by a student who asked, “Sir? How about ‘life, liberty, and the pursuit of happiness?”, Lt. Col. Dubois responded with what may well be the best refutation of the continued misunderstanding of that classic phrase:

Ah, yes, the ‘unalienable rights.’ Each year someone quotes that magnificent poetry. Life? What ‘right to life’ has a man who is drowning in the Pacific? The ocean will not hearken to his cries. What ‘right’ to life has a man who must die if he is to save his children? If he chooses to save his own life, does he do so as a matter of ‘right’? If two men are starving and cannibalism is the only alternative to death, which man’s right is ‘unalienable’? And is it ‘right’? As to liberty, the heroes who signed the great document pledged themselves to buy liberty with their lives. Liberty is never unalienable; it must be redeemed regularly with the blood of patriots or it always vanishes. Of all the so-called natural human rights that have ever been invented, liberty is least likely to be cheap and is never free of cost.

“The third ‘right’? — the ‘pursuit of happiness’? It is indeed unalienable, but it is not a right; it is simply a universal condition which tyrants cannot take away nor patriots restore. Cast me into a dungeon, burn me at the stake, crown me king of kings, I can ‘pursue happiness’ as long as my brain lives — but neither gods nor saints, wise men nor subtle drugs, can insure that I will catch it.

Some musings on a CSN concert I saw last night. Why do so many gifted performers feel the need to bring up politics when they’re on stage? Rock-n-rollers, actors accepting awards, classical pianists, etc–a considerable number feel the need to use the spotlight (justly earned, in most circumstances) to vent their political frustrations. Jay Nordlinger wrote something about this a while back; unfortunately I haven’t been able to find his piece to link to it, but his displeasure with the practice mimics my own.  Our basic gripe is that the audience members haven’t shown up to hear political commentary from generally uninformed and unoriginal political observers; they’re there to hear Suite Judy Blue Eyes or Rachmaninoff’s Third or whatever.  Invariably, a significant portion of the audience isn’t going to identify with whatever political gripe is being aired, so it just makes the whole atmosphere slightly uncomfortable and can infect an otherwise memorable show.  Public artistic performances, in my view, should generally remain free from political commentary, unless the show is intended to be political in nature.  To be sure, I expect CSN, like any Woodstock-era band, to play their share of make-love-not-war songs; that’s part of their identity.  But I could do without the commentary between songs and all the crass anti-Bush stickers plastered on their sound equipment.  Just play, man.

By the way, I’ve never heard any performer interrupt his or her show with conservative commentary, which isn’t too surprising, given the political bent of the elite performance industry.  But my criticism would still apply to anyone who started quoting Milton Friedman or Edmund Burke between songs.

Nevertheless, a great show.  They played a lot of covers during their first set which were a lot of fun, including the best version of Dylan’s “Girl from the North Country” I’ve ever heard.  No doubt, Crosby, Stills, and Nash have still got it.  Steven Stills’ voice deserts him at times, but the trio can still pull off the finest vocal harmonies that rock has ever seen.  Do yourself a favor and see them perform Southern Cross live sometime before you die.

A final thought: putting aside the fact that Graham Nash is a Brit, has there ever been a greater American rock and roll band/artist than CSN?  We mulled over quite a few contenders on the way home – Eagles, Skynyrd, Allman Brothers, Creedence -  but we only came up with three we’d put above CSN:  Dylan, Elvis, and the Beach Boys.  Always blows my mind to think how foreigners have dominated the top spots in the classic rock pantheon:  Beatles, Stones, Zeppelin, Floyd, Clapton, Hendrix…Brits, every one of em.  Van Morrison was Irish.  Neil Young and The Band were Canadian.  Curious.

Read this book.  It is pure and distilled libertarianism and does an excellent job of pointing out the obvious absurdities of how many governments are structured.  If I ever have children, this book will form a crucial part of their bed-time stories.

There is a PDF download of the book with commentary that is offered for free.  The download link can be found in the middle of the About the Book page on the author’s site.  I strongly encourage everyone to take advantage of that link and to download and read this book; I have never before seen a clearer or more concise defense of libertarian principles than in Mr. Schoolland’s book.  If that’s not enough for you, Milton Friedman himself endorses the book, saying, “It certainly presents basic economic principles in a very simple and intelligible form. It is an imaginative and very useful piece of work.”

While the fact that Sotomayor is, at most, an average legal mind is itself sufficient to warrant concern over her nomination to the Supreme Court, there are certainly other reasons to oppose her nomination.  As a counter to some of the knee-jerk conservative accusations of “ultra-liberalism” on Sotomayor’s part, I’m going to actually walk through some of the issues that I feel should, at the very least, be causes for concern:

1. Her decision in Maloney v. Cuomo.  This ruling stated that the recent case of Heller v. District of Columbia did not invalidate Presser v. Illinois and did not incorporate the Second Amendment.  I cannot see any defensible logic that would read the Heller decision as anything other than and incorporation of the Second Amendment and it is shocking to me that someone who has been nominated for the Supreme Court could interpret the Heller decision so poorly.
   
   While this was a per curiam decision, and therefore we do not officially know which of the Second Circuit’s justices wrote the actual opinion, Sotomayor was on the panel and per curiam decisions represent unanimous opinion, so one is forced to conclude that Sotomayor agrees fully with the published opinion.
   
   
2. In 2002 Sotomayor made the following comment during a speech at the UC Berkeley School of Law:
   

   I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion (as a judge) than a white male who hasn’t lived that life.

   Even allowing for the fact that Sotomayor was undoubtedly speaking in generalities so as to present a more appealing speech, this is a disturbing statement.  One has only to swap the position of the terms “Latina woman” and “white male” within the sentence to see the inherent low-level racism in the comment.
   
   Worse, however, is the tacit implication that life experiences are a valid source of judicial insight.  This cannot be interpreted as anything other than an endorsement of the concept of Judicial Activism.  This is not a good thing.  The role of judges is to determine what the law actually says about an issue; judicial activism suggests that judges base their ruling on what they think the law should say, effectively giving justices legislative powers and circumventing the system of checks and balances that were built into the constitution.
   

3. Her opinion in Ricci v. DeStefano.  Here we have another per curiam decision and again there are troubling issues.  A competency test was devised and vetted by outside agencies; people made significant sacrifices to study for the test as they were told that success would allow them to be considered for advancement in their careers; when the testing was complete, the results were throw out because, despite equality of opportunity, the outcome was not what the testing entity desired.  Sotomayor was involved in the panel’s unanimous per curiam decision which upheld the right of the testing entity to throw out the results.
   
   What is interesting to me here is that in both instances of controversial decisions we see Sotomayor hiding behind per curiam decisions.  In a per curiam decision, the decision’s author is not revealed which obscures insight into the individual legal decisions weighing on the minds of the individual judges.
   
   
4. That 2002 speech in Berkeley again:
   

   Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar.

   Pardon me?  The facts that a judge chooses to see?  Chooses?  This is incredibly disturbing to me and should be to anyone who gives the issue any thought at all.  Judges do not get to choose which facts they see.  It is the responsibility of a Judge to see all facts and to render unbiased opinions.  Liberal or conservative, Democrat or Republican, no-one should ever be content with a judge who picks and chooses which facts of a case to consider and which facts to ignore.

Clearly, there are valid reasons to be concerned about Sotomayer as a Supreme Court justice that go beyond mere partisan hackery.