Friday, May 22, 2015

By The People: Part I: Where We Stand

Charles Murray is the great political scientist of our generation. First he told us in Losing Ground that liberals knew by the early 1970s that the Great Society programs weren't working. But they kept them anyway. Then in The Bell Curve he told us that IQ is really important and it applies to race, and got his head handed to him. Most recently in Coming Apart he showed that the upper 20 percent in America was doing fine, but in the bottom 30 percent the women don't marry and the men don't work.

Now he's really mad, and in By the People: Rebuilding Liberty Without Permission he is calling for revolution. If you are with him, then you are not a libertarian or a conservative. He wants to call the supporters of a limited government: "Madisonians."

OK, he's not calling for blood in the streets, but he is proposing a cunning way to neuter the administrative state. But first, let's look at Part I of his book, where Murray analyzes the federal government and determines that it can't be reformed from within.

The problem is that the Constitution has been set aside and there's no way to get it back. Congress isn't going to do it, even with a Republican president, because the current system favors the status quo and the Supreme Court won't do it because, e.g., limiting the meaning of "general welfare" to its original meaning would cause chaos.

It's Hamilton vs. Madison, according to Murray. Hamilton and the Federalists favored a strong state and Madison and the Anti-federalists wanted a weak state. But back then nobody was thinking of anything like today's state. A strong state meant something like Hamilton's report of manufactures. A century later, under the influence of the Germans like Hegel and Nietzsche, the Progressives decided that the Constitution was outmoded.
To simplify, progressive intellectuals were passionate advocates of rule by disinterested experts led by a strong  unifying leader... They thought that individualism and the Constitution were both outmoded.
This progressivism got implemented by the judicial system, and "ultimately transformed the nation." The progressives saw the old Constitution as Newtonian and mechanical, "with its three separate branches and checks and balances." They wanted something evolutionary and Darwinist. So the game was on to change the meaning of law.

It started with the erosion of the Contracts Clause in the Constitution, and continued with the validation of the Social Security Act (which really put the federal government into the general welfare business). Then there was the gutting of the Ninth Amendment and the extension of the Commerce Clause to let the federal government regulate whatever it wanted under the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

But we can't go back. If the Supreme Court invalidated current understanding of the "general welfare" it would mean the end of spending on "Social Security, Medicare, Medicaid, all welfare programs, all spending on K-12 education" and so on. The fact is that by 1942, "we stopped obliging the American government to control itself."

But that's not all. We now have "a lawless legal system." Why? Because legal process is so costly. Because the ancient concept of mens rea is gone. In the old days,
You not only had to do something wrong, you had to be aware that you were doing something wrong. But the law also held that ignorance is no defense.
How did that work? It worked because "there weren't many laws" and most of the laws covered things that were instinctively wrong, like "murder, rape, and theft." But now we have a huge body of law and "the government has chosen to convert mistakes, or sometimes simply choices with which the government disagrees, into crimes."

So we have laws that are arbitrary, complex, subjective, discretionary. That is lawless. But that is just the beginning.

It used to be that lawsuits were rare; but now changes in legal rules make lawyering very profitable. First there was the introduction of Strict Liability which lowered the bar for claiming damages. Then there was the broadening of discovery, where a plaintiff could now go on fishing expeditions into the records of the defendant. Used to be that you had to sue someone in the defendants court district; now you can forum shop. And now the ethical limitation on lawyers for "stirring up litigation" is gone. Then there is the "private enforcement regime" where Congress lets private parties sue against business or individuals in violation of a law.

OK, so it's too easy to sue. But that is just the beginning. Now there's the regulatory state.

Today Congress passes a general law and sets up an agency to come up with the details. Typically the targets of the regulation will have to deal with the bureaucracy and the administrative courts of the regulatory agency. And the Supreme Court through the "Chevron Deference" has held that the regulatory agency is almost always right. It goes back the the Progressive Era faith in government by disinterested experts. The problem is that if the regulators get their eye on you they can destroy you in the expense of the system before you ever get to a real court of law (as opposed to an administrative court that belongs to the regulator).

OK, so the regulators and the administrative judges are too powerful. But that is just the beginning. There is also the corrupted political system.

Murray is not saying that today's politicians "are more venal or dishonest than political of the past." It is just that that
todays' political process has produced politicians who, while keeping within the law, do things that are operationally indistinguishable from the way Third World kleptocrats operate.
Back in the old days, before the 1960s, the government didn't have that many favors to distribute, campaigns weren't that expensive, special interests didn't give much money, and only a few leading politicians got to write the laws.

But with the expansion of the regulatory state, particularly industry-wide regulation by EPA, OSHA, and EEOC, every corporation had to get into the game in Washington DC. Now it takes a ton of money to run for office, there are hordes of lobbyists, and the number of staffers is way up.

In 2012 the Democrats set up a "Model Daily Schedule" for members when in DC. It tells members how to allocate their time.
It includes four hours [per day] of "call time" -- the term for phoning contributors -- and one hour of "strategic outreach" which includes such things as breakfasts and meet-and-greets with supporters.
On top of that, the parties regularly hold fundraising dinners. They go to lobbyists and tell each of them to cough up a million bucks. Because only "friendly" interests get friendly results from office holders.

A kleptocracy? Well, politicians usually seem to manage to get rich in government service. And you have to pay for access to the authorities. And when a congressman calls for a contribution you cough up. And officeholders reward their friends. And "bribes produce results independently of political principle."

Can it be reformed? After George W. Bush pushed through the budget-busting Medicare drug plan, don't expect much reform from Republicans. And Murray goes to Mancur Olson and The Logic of Collective Action for the explanation.
First, advanced democracies inherently permit small interest groups to obtain government benefits for themselves that are extremely difficult for the rest of the polity to get rid of. Second, these successful special interests inevitably pile up over the years until the political system becomes rigid and unresponsive, unable to adapt[.]
In other words,
People who receive government benefits tend to vote for people who support those benefits.
We may call for reform as much as we like, but the fact of all of today's programs and benefits "will push the Republican Party to the center in all presidential elections."  We are not going to get truly "Madisonian majorities in both houses and a Madisonian president."

Something else will have to give. But that's the topic for Part II: Opening a New Front.

5 comments:

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  2. I tend to agree with this about Murray being such an able political scientist. His writings are full of incredible interesting and honest information -- and in the Bell curve of course he demonstrated quite aptly, in a very un PC way, that there are obvious intelligence differences between races; whites aren't the most intelligent, which no one cares about, but blacks were not as intelligent as whites, and I think they were the lowest actual measurable group -- a very, very UNPC move, even if true; and truth in such instances is secondary to even a smidgeon of racism, which of course was the obvious theme to those who don't care about the actual truth. I actually just finished Coming Apart, which didn't deal with any ethnicity or color, just the intellectual elites and the rest of us, and the separate living zones we poplulate, and who this has much more to do with our future potential than the ever popular racist theme. I do look forward to more Murray reading...

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  3. The differences in the IQ's of the races doesn't preclude Thomas Sowell from being mega-smarter than Robert Reich.

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  4. The differences in the IQ's of the races doesn't preclude Thomas Sowell from being mega-smarter than Robert Reich.

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  5. Only at the margins, eburke. The tail ends of the Bell Curve are much more "Wild West" and open.

    Thus explains the difference between Sowell and Reich.

    (and ideology. If you're a conservative, you're a scientist, you sanction that which proved true in the lab. If the opposite...Well, than anything goes)

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