The Great High Court of the Land

So, Jack's been a bit of a dull boy for a few weeks and neglected his blog. Well, no matter. There's time now and I'm sure we're all pleased.

My question is this, Why not elect Supreme Court Justices? The question occured to me before my layoff, while listening to Gordon Wood give a talk about the history of the origin of the U.S. Constituion. Yes, that Gordon Wood, subject of the most famous bar room debate of the economic history of capital markets in cinematic history...'Wood drastically underestimates the capital preforming effects of military mobilization...'. Part of his project was to explain how the American Constitution differed just because its origin was to form a government, rather than being a part of government as in the case of Britain's unwritten Constitution.

A key issue was the notion of representation. We all know that taxation without representation is wrong--very, very wrong indeed. The british claim, of course, was that the colonies were virtually represented by parliment. The idea here being that there is no difference between parliment, government, or indeed the people's authority and parliment's authority. They are one. Thus, the failure to align parliamentry districts or porportional representation, or even that an MP for a district need be from the district: all serve for all. The consequence was, of course, districts like Olde Sarum that had no constiuent at all, but did have MPs.

The American Constitution fundamentally differed from this. The differences were three, i) that government differed from law, ii) the distinction of federal power, and iii) that sovreingty remains with the people, which is represented in government.

I want to pick on iii. It is because of iii that the idea of representation makes sense. Senators, congressmen, and even presidents are fundamentally conduits of individual sovreignty to the levers of government in their particular branch of government. They are elected, more or less directly, and only because of this are they endowed with any power. Why aren't justices? Why don't they "represent" the people within the judicial branch? Are they virtual representatives? Do they represent us virtually? Where then do they derive this power, if it is the case that representation by election, an act, is the only genuine source of sovreign power?

This is all a little bit of a loose discussion; the topic is new to me and the ideas still emerging. To take a step back, what is a typical argument for the nominatorial status of S.Js? One might say it is to keep them above the political fray. That the interpretation of the law should be insulated from politics. Maybe. Mostly it makes my ass twitch. It is a better argument for life-terms, or for tenure. As such it would protect a person from making a decision for vocational gain. I wish politics was insulated from politics. I wish my representatives in congress were above the nitty gritty. They're not, and it is no good idea to grant them life-terms either. But I digress.

If we elected Supreme Court Justices, I think they would have to answer some of the questions they so assiduously duck as it is. Then again, they could just lie or equivocate, which seems to be the best strategy if you need to get elected to something. But despite this all to real fact of political life, we do know more about where, say, George the Second stands on abortion than we know where Alito does.

So, (to be honest) without trying to hard to probe the question in either of these two directions, i) why not elect justices since there is no good reason not to?, and ii) wherein is their power derived if they are not elected? Indeed, lacking a firm answer to ii is a reason to endorse i.

Part II (the shorter part)

I understand the focus on presidential power and abortion; they are topics of current concern and should be addressed. However, they are not the only worthy question, nor maybe the most pertinent for the court's concerns in the future. I'm going from memory here, but the typical description of recent court history is that it dealt with problems of the extent of government power prompted by the New Deal. Then came the era of person rights prompted by the civil rights movement. So, where is the court going? What will it have to deal with next?

My suggestion is that it will have to deal with to what, if any, extent government has the right to tell people what they can or cannot do in determing the color of their kid's hair or height. The twentieth century was the century of technology, the twenty first will be the century of biology. I'm fairly certain that the big issues down the pike are the kinds of one's we're familiar with from Brave New World's central hatchery. I've not followed the questioning of Roberts, and the Alito hearings are just begining, but that kind of question has not come up.

To be fair, I doubt anyone has a good idea what the right questions to ask about genetics and its engineering are. Nor less would they know what to ask about the role of government in managing access to it, equality before the law and access to opportunity when it is accessible, or how much we can change about ourselves. But these are the big questions that many on this court will face, especially these two young additions. Yet, this topic has been left in the dark.

A Connecticut Yankee in King Arthur's Court: Or, freedom or food?

Part I
Food

No grand answers here, just an interesting question posed to me when I was thinking about something similar. Yesterday, Nov 20 2005 was the 30th anniversary of Generalismo Francisco Franco's death. That wonderful thing BBC radio 4 discussed his influence on the Mediterranean nation. Apart from his ambiguous fascism, and it's a big thing to put to one side, the question the panel discussed was whether the man was good for Spain on the whole. Open minded, No? Which put me into mind of a separate question, an uninstructive one in itself but which will serve as an entre to a good one. Is Democracy only an instrumental good?

Is there anything inherently good about democracy, or is it mainly good for what it allows? Rather than Franco, let's focus on Sir Boss. He was, you'll remember, the Yankee blacksmith mysteriously transported back to Arthur's England. Sir Boss, after having disposed of the nefarious huckster Merlin, went on to outfit the doddering king's kingdom with all manner of modern convenience. Railroads, indoor plumbing and just about every new-fangled whatsut of Twain's era made its way to merry olde England earlier than it should have. Sir Boss was the benevolent dictator. Not so much a philosopher king, but Technocrat and Chief. Now, my parents watched movies like 'My Friend the Atom' during their school days. And this was after two ample demonstration of the ambiguous uses of technology. I frankly can't imagine the general level of enthusiasm for mechanics in a time that saw Brunel transform a harrowing two day trip from London to Bristol into one of 3 hours of relative comfort (unfortunately, the efficiency of this same route has declined markedly). That kind of enthusiasm is what I imagine explains the theme of A Connecticut Yankee- but I don't want to take any bets here.

What I do want to talk about is the plot instead of how it was accomplished (that is coming very soon in a new series of posts on The Proud Tower). Arthur's subjects were never enfranchised, but they certainly got cookers and eggs and bread and fast transport to boot (again, in this respect the Sceptred Isle has declined -- I really cannot express in words how bad the British transport system is, so I won't try {my respects to G.B. Shaw} {but what I will say [and yes this also will be the subject of yet another post, to make up for my recent indolence] is that they do have the right spirit to deal with the mess, as opposed to the French, who don’t}). I read the book ages ago, and to my mind now, it doesn't sound like the Twain I now know to write a paean to anything, but that is the form of the thing as I recall it.

So, toward the more interesting formulation, Would you rather have the vote or Sir Boss as Technocrat and Chief? More generally, would you rather have Freedom or Food? Asked of just a few people recently in an informal poll of graduate students, the answers were: Food, Food, Food, Food, Freedom, and Its a false dichotomy. Disclaimers first. The said focus group was in a pub, and thus likely warmly disposed toward cold pints. A reasonable corollary is said refreshments should not be sacrificed at any cost when presently partaken in. But, It is also worth remarking that the respective nationalities of the group were, in order: English, Welsh, English, Australian, Singapore(an), and American. Just a note, but I wonder if it should surprise that the Anglophones with Magna Carter and all that jazz found freedom good only for what it was useful for, but the person from Singapore -- a prosperous place where the regime’s fashion sense is not reported on in tabloids-- went for freedom. This was the right choice twice over, at least on a first pass of the question even if you take democracy only to be an instrumental good. If you don’t have anything, why vote one way rather than another? And second, don’t give up the pints for anything. (notice my free elision from liberty to democracy – not to worry, we’ll return)

Now, a word on the abstention. The first grounds offered were that there is no clear distinction between the values named by freedom or food. Certain freedoms have a value, as do certain material comforts. Once they are tallied up you just have one cumulative value to judge. Certain bloggers who remain nameless had to back away from this position very quickly, tossing various other rationales over their shoulder to cover their retreat. One that stuck was the following, food is not a straightforwardly necessary condition on any form of government. You could well have a well-off but rather repressed country: Singapore. But the converse doesn't hold (the single exception, a badly-off but resiliently democratic country being Canada (how do they do it? there currency is crap and they have Tim Horton's instead of Dunkins, come on)(of course this is a joke and a further question I'll come back to). Freedom does, however, seem to be a sufficient condition for food. Look at most Western democracies. Whereas we only have two examples of food without freedom, Singapore and Sir Boss’ England. If one had the choice, freedom seems to get you both. Consequently, one should elect for the freedom and let the food take care of itself.

To review. One way of looking at the question, and certainly the intended way, is to ask yourself which you value more. The way I suggest looking at the question is to query whether there is some logical or material relation between the concepts. Is it possible to have freedom without food?, or food without freedom. Does freedom imply food will follow? Are there any positive examples of the converse? A first pass at the question and a quick check of the personal historical and political memory banks says freedom does imply food.

Or, so sayeth the math on the first time around. But we are left to wonder about the actual cases.

Votes are welcome

A note from a guest blogger

Hi guys!

Sorry for the group email, I just wanted to share with you my latest attempts to take my life into my own hands. Despite all the pretences the "nanny nation" make concerning health and safety, they have moments when they loose all sense of fear and blithely hurl themselves into the most dangerous, ridiculous situations they can possibly imagine. And J and I got to take part this weekend. (Provi, think cheese rolling with flames and alcohol and you're on the right track) It's called the Burning Barrel and apparently it's some ancient pagan tradition. Ottary St. Mary is one of the last towns in the country that still permits it to happen each year. It's tied in with Guy Fawkes Day now, or at least it happens on the 5th each year. Pictures don't capture the huge number of people filling the streets, the intense heat of the flames passing right next to you and the general insanity of the evening. Just imagine a quaint, picturesque town square with little shops lining the streets. Now picture it at night time, packed with wicked, drunk English people. The shops have mounted wooden barriers over their windows and filled their doorways with sandbags. People climb the lampposts, they sit on the roofs, they squeeze in everywhere and then suddenly everyone starts cheering because they've lit one of the giant wooden barrels on fire. You can't see it at first because there are too many heads in the way, but then the flames climb up into the night sky and the barrel starts moving through the crowd. A whole family will do this, they sponsor a barrel and take turns running with it on their backs across the square. They coat the barrel in tar so it will burn, and then just run in circles and back and forth through the crowd, switching from family member to family member when they can't carry it any further. The barrels get bigger as the night progresses and the crowd gets more and more drunk. It was the scariest thing I've ever done, including jumping out of the plane last year. You just have nowhere to go and a couple of times I swear the flaming barrel was coming right at me. I've never moved so quickly in my life. You just beat it back and the whole crowd around you is doing the same thing. People get trampled, shop windows get broken, J touched the flaming barrel a couple of times, not on purpose, but they were switching right next to him and he couldn't get out of the way. We weren't hurt, but it's really crazy. A couple of times J hauled me out of the way by the scruff of my neck. A got trampled in the crowd and I picked a woman up who went down next to me. The problem, especially with the really big barrels at the end of the night is that the people running with them couldn't control them. They were so unwieldy; the men would drop them off their backs, or launch them over their heads when they couldn't hold it up anymore. I watched one barrel bounce off someone in the crowd. Everyone shrieks and surges as the barrel approaches, and you have no idea whether they are going to stop, turn left, right or keep going right towards you. The flames shot up to the roofs of second story buildings and the sparks even higher. Of course it started to rain which just sort of added to the wild chaos on the streets. The crowd would move en mass from one street to the next, following the next barrel. They would light them up and down residential streets and small alleys, but the best ones were in the main square because then the runners weren't restricted to just going up and down the street. They could circle and zig-zag, which they did. We got home around 1:00 with tar all over our faces and clothes. It was fun, but scary enough to make me relieved when we were on our way home.

The next day (Sunday) J and I were due to be back at school by 8:30 for an all day hike in pouring poring pouring rain and blustery wild wind out on the Quantocks which are these beautiful high altitude moors. I had gone last year and they let J come along yesterday after I assured the powers that be he wasn't a pervert and would never, under any circumstances be alone with the kids. Last year I spent the whole day thinking how much he would love it so I'm glad he could come. Of course, when we struggled out of bed on Sunday morning and looked out the window, I'm not sure how grateful J was. We took about 30 third year kids and they were actually fantastic. They were stomping in the puddles and just singing and laughing in the rain. It was a good weekend over here. I hope the same can be said for you guys at home. I'm so glad M is coming over for Christmas. As people start to talk about the holidays, it's starting to sink in that I won't be around at all and I'm missing everyone. Hope you're all well and keep in touch.

Love,
B.

Quick Take: ANWAR

I have no doubt that many an energy-savvy republican really want to drill in the Arctic National Wildlife Refuge. I have no doubt that many of these believe it is necessary only for good reasons: namely, to enhance America's 'energy security'. Now, the current issues which form the ANWAR imbroglio are not my concern here. But I do wonder if the political reasons for this topic not going away are different than why it emerged in the first place, as above. It seems distinctly possible that faced with a languid opposition party, the Republican congress has hit on a liberal shibboleth in ANWAR, and they trot it out all over the place, stick drilling in a bill here - a bill there, for the sole purpose of diverting the sum of the present Democratic energies to defeating or excluding it.
If Dems constantly have to use this as their chip in the game: o.k. we'll give you X, but don't drill in ANWAR, their ability to slow other parts of the Republican agenda is diminished.

It only gets worse, though there is a rising sentiment that the Republicans sell-by has past, because the seeming one success of the Dems has been to keep drilling out of ANWAR, they can't very well now fold on the issue. The longer this subject comes up, the more the Dems must do to keep it in their stable.

There is no solution to this problem, part of the strategy of bargaining is to ask for more than you want (or even care about) so you can give it up and get what you want. Both sides do this, and the results seem only to be disillusioned spectators to the sport.

A Burning Bus Made Me Do It

It occurred to me that if I was to accuse certain people of unthinking actions, I should lay bare the hypocrisies that prompted the last post -- a feverchart of the patient's thinking, so to speak. Not that I want to go too far in claiming affinities with Luther, for reasons both good and bad, I believe that if Luther's reasons for objecting to indulgences were prompted by a charity of character, then we do have something in common in questioning them. Luther could have had two reasons for his objections, he might have been a pessimist about human nature (the most likely), and believed that most individuals are easily tempted and most likely to take the easy road out; therefore, we should abolish the temptation. Sort of along the same lines that our society agrees that those entrapped into a crime are not liable for their actions. Or, Luther might have recognized in himself what a temptation indulgences offer -- a state of mind aptly described as invoking the principle of charity -- and recognized how easily such things are rationalized.

I mention this, because it was in assessing my own behavior that led me to come down on people who pay to have forests replanted: a present temporal good. Something I've never done. I had some of these thoughts, some of which were new and some of which were old and prompted by my situation, while I sat in literally dead bunged up unmoving traffic on the M25 for more than three hours. It was the worst traffic jam I've ever been in. Three hours dead stopped and my exit half a mile ahead. I sat there because I was driving to London after a weekend away in Somerset. Normally the drive takes three and half hours, this one took over seven. Door to door by bus to tube to bus to bus takes more than seven. Door to door by bus to underground to train to taxi/a friend picking me up takes about four. Driving, the fastest, is the second most expensive, with roundtrip by bus being marginally less, and by train being not an insignificant amount more. The thought I had was that on this occasion, only the second time I've done the drive, I was clearly privileging my convenience, when if I had been willing to pay a little more money or a little bit more of my time, the atmosphere wouldn't be so hard up as it was for my individualist decision.

I was clearly being punished for my choice, because it took just as long and cost more in petrol (95p per litre nowadays) than taking the bus. Even now, it is not clear to me what I should do regularly. The train is just too expensive to do every weekend, and the bus means I spend one entire (waking) day out of seven on public transport. How much am I willing to give up for the environment? Planting trees is no way out. The only choice it seems is be bad or be on a bus. Neither feels good.

Why was I held up in traffic? Because a tour bus (they call them coaches here) had an engine fire and went of in flames spectacularly in the middle of the motorway.

The malady on the fever chart: A burning bus made him do it. I think, at least that day, I came out dead even with the people on the bus for emissions, which is some consolation.

Carbon Indulgences

Jonathan Tetzel, a Dominican, was charged to encourage the practice of selling indulgences within Archbishop Albert of Mainz's bishopric, for the ultimate purpose of renovating St. Paul's in Rome. Within the Archbishop's territory was the University of Wittenberg; whithin its faculty was the Augustinian professor, Martin Luther. On this day, October 31st, in 1517 he nailed his 95 theses to the door of the castle church of the same town. The repercussions are familiar, so I will not detain my real point by reiterating them, but needless to say they were great.

Luther was only partially exercised by the selling of indulgences, which he saw as permissible within certain contexts -- moreover, indulgences were not the whole of his concern for The Church's then current path. But they are what we've come to focus on in telling the story (re: an interesting view of the role of narrative form on historical scholarship, see Hayden_White ) , and it is on a certain form of them now current that I will focus as well. It is enough to say that Luther feared indulgences would become a seductive 'out' for the wealthy, a salve that would discourage them from doing good.

Fashion is cyclical, so too are foibles; there is a modern kind of indulgence I fear, while no bad thing in itself, might tend to lead people away from responsibility and toward a kind of pecuniary self-righteousness. I mean becoming carbon neutral.

We have our own Tetzel, and his name is Leonardo. The idea, made famous by the famous, is that one go 'carbon neutral' by purchasing offsets for the co2 emitted by driving to work, watching the t.v. and getting extra-hot lattes. A big carbon no no is flying; given how much the stars do it, buying carbon offsets for this must add up. What's a carbon offset? Well that is the whole point of my writing. The popularly advocated method for offsetting one's co2 emissions is to pay for the planting of trees. And when I say popular, I mean it because this is the cause celeb of many a carbon-intensive lifestyle American movie star. Growing in Costa Rica or wherever, they will soak out of the atmosphere the co2 SUVs in LA dump into it. It's a neat idea to slow climate change, and iff we could go on planting trees forever there would be nothing wrong with it (in which case there would presumably be no problem in the first place, but I digress). But we can't and that's the problem. Sequestering carbon in newly planted forrests is an impermanent solution. Eventually that carbon has to come back out, and here 'out' means the atmosphere.

Our present carbon lifestyle is fuelled by the fact that for a very long period more carbon was going into the ground than was coming out. Whether the remnants of the carboniferous forests were burned by us or not, they would eventually get recycled into the biosphere. The same holds true today, even if all the money put into planting trees as carbon offsets were pushed into very long-lived ones, they would still topple and rot, burn, or be cleared in some distant future. The process displaces the climactic effects our actions, it does not ameliorate them. My concern is that people will think buying a tree and somehow fixes the fact that they drive an enormously wasteful SUV. It doesn't; planting trees can't change anything about our disproportionate release of co2 into the atmosphere during this present period of the Earth's history.

Now, it could be argued that in anticipating clean energy in the near future, going carbon neutral now by planting trees allows for the possibility of a soft-landing. Once industry goes green, the recently planted forests can be allowed to decay slowly, releasing over a period of hundreds of years what we now release in very many fewer years. There is something to be said for this. There is something to be said just for planting trees, for reclaiming lost land and leasing it back to nature. I agree with all these things. But the better thing to do is to put this money into clean energy, not trees. In the best world both causes would get enough money. In this world the better cause needs to get all that we give. The better cause in this case is going carbon neutral by investing in clean energy, wind power, solar and the like. By sending money towards these kinds of projects, and they need to be new ones for the substitution to be rational, one effects sustainable offsetting of emissions by reducing demand on carbon-emitting power sources.

I say this is the solution because the anticipated future with clear skies could well, and certainly looks to be from this vantage, very far off. And while mitigating what we do now is no bad thing, the good thing is to bring the clean future forward.

Now, I've been treating trees as indulgences only in so far as I hope to dissolve the notion that planting them is absolution for turning the thermostat up. Just as Luther saw indulgences of a different sort, they're not bad, but they're no substitute for the long and narrow way.

Becker-Posner II: Brazen Giants of IT Fame

The glaring inconsistency in this argument, when it come to global values is as follows: skilled immigrants will drive down wages in the U.S, but the country as a whole will benefit. But Becker takes this to be the primary reason there are quotas.

-To be sure, the annual admission of a million or more highly skilled workers, such as engineers and scientists, would lower the earnings of American workers they compete against.-

Consider, then, the following when Posner tries to justify the idea that the brain-drain benefits both parties by suggesting the a positive consequence for the emigrant’s country.

-The more who immigrate, reducing the supply of Indian software engineers to Indian software producers, the higher the wages of those engineers in India.-

If higher wages is a positive, it works in the first case to, and justifies limits. If having fewer highly skilled is a negative for the country as a whole, then it entails the net effect is negative for the emigrant’s countries. What’s sauce for the goose is sauce for the gander.

I agree that having highly skilled workers in greater proportion is a good for the country in question, that is why there is an ethical question here; one that is not captured by free-market analysis, and needs to be thought about more thoroughly.

What I take one question to be is, does a state or states have the right or obligation to curtail the freedom of movement of some citizens for the greater benefit of the citizenry? The conflict is between spheres of positive and negative liberty – an idea due to Isaiah Berlin. To protect the rights of each individual to act in certain ways, the state must curtail other freedoms. Into which sphere does the freedom to move belong? It is easy for Americans to extol positive liberties as trumps in this case, for rarely have it citizens raced to other shores – this author excepted, but then there is the question of whether I have any skills or not.

One suggestion for how to balance the ethical equations of globalization, due to the implacable Peter Singer, involves employing a version of utilitarianism. Like anything a philosopher does, the idea comes in thirty-one flavours, but in this case the thing is ice cream, and what ice cream amounts to is that rules or acts should promote the greatest good for the greatest number. So, as a solution, states might agree to allow freedom of movement, but that the net economic benefit to a state by the immigration of skilled (though maybe not limited to) workers should be remitted to the country of origin. Why will state remittances benefit the greatest number the most? For the simple reason that in most cases skilled individuals leave poor countries for rich ones. A dollar goes a great deal further in a poor country than a rich one. Thus the net flow will be to the countries of emigration. This, however, only captures economic value. There are others, like having an adequate number of skilled people in government pulling the levers of power, in education creating the next generation of skilled persons, and medical care ministering to and improving the lives of many, to name a few, which are not captured in this analysis.

Is this pragmatic? The devastating counter from the B-K position is any such suggestion is not pragmatic. What then makes something pragmatic? Does it mean that something is possible or not? If so than the above suggestion is, it is not technically unfeasible. Does it mean what people are willing to do, what has been done in the past? If so, then it does not apply to untried actions: it has no predictive application. Does pragmatic mean realistic, sensible and not idealistic?

Ultimately, however, I do not take globalization, its ethical repercussions, or even a concern for economic growth to be the subject or intent of the Becker-Posner post. Rather, I think it is an attempt to provide a rational foundation for accepting the idea of expanded routes into the U.S. for those of us who tend to forget our families were once immigrants too. If this is the case, then this is the case that should be argued. If its economics, than the ethical consequences need to be more fully considered. Something along the lines of either what you can get people to agree to, or what they can use? It probably does, and almost certainly does in this case. Singer’s approach would, along these lines, ask people or states to act against their economic interests. And although this makes the B-K defence of their method circular, it is certainly a merry-go-round that’s hard to get off. Yet, there is a real question here, and it is the simple one animating every discussion of globalization by any but the most self-interested (wink, wink), which is how to manage its march ethically. Toward that end I’ve tried here to introduce its relevance.

This brings me to a final point about the Becker-Posner Blog. It is always thought provoking and interesting, but I’ve found this to be their most banal offering so far. If the case was to argue for the economic benefits of encouraging skilled workers to come, than the argument required data rather than vague assertions to the affect tax revenues will increase though demands will be few. I believe this, but they need to do more than say it to make it an argument. Lets be clear, Posner, not too lately to be that long ago, wrote a book, Public Intellectuals : A Study of Decline, With a New Preface and Epilogue , decrying the absence of public intellectuals in America today. Their blog is clearly an attempt to fill the role. But if that is their goal, their role and the way they should fulfil it is not to tell people what their opinions should be: these posts are just this, assertions with argumentation or data that can be repeated by all who choose. Rather, what they must do if they wish to fill the role is to lay bare the methods of their analysis (in this case free market econo-think), not only so their arguments are clear, but also so that they make available the methods to others. Further to this, real arguments must be buttressed by actual efforts, not nominal ones, to engage counter arguments. Moreover, it not only arguments that need to be defended, but methods of argument as well. This they also fail to due. The free-market analysis to which they are both want, and to which Posner is only a weak foil, should also be defended not just generally, but in each case. In this case, as in most, it does not and cannot register any ethical dimensions of the question at issue. I’ve tried to point to these; here by way of suggesting that the recourse to the pragmatism requires elucidation if it invocation as a failing of other arguments is to convince.

Conclusion? Not a great offering by B-P. They should query their method when arguing. Still, I’ll keep reading.