Simplistic Scholasticism

Justice Scalia is a fan of the old canard that because lawyers don't produce anything they lack value. Or to be fair to his position, he maintains that great minds are wasted on the legal profession because the minds would be put to greater use producing, say, a car that runs on solar energy or some other thing that under his feudal (Catholic) ideology adds value to society. Implicit in his view is the proposition that only those that produce useful commodities have value for society. This view has some bizarre implications. Under it, for example, doctors have no value. Same for anyone who has a "great mind" (whatever that is) who chooses to provide a service for society rather than a commodity.

Scalia's myopia has earned him many fans who cling to the simplicity of his absolutist statements because they are easily digestible and don't upset the orthodox stomach. But enough of this "kill all the lawyers" crap. Justice Scalia, if you have such a dim view of your profession and such a high view of your acuity, please resign your post as Supreme Court justice and go invent something of value. Go back to the impotent (non-producing) outposts of academia from which you came as you obviously have little experience in the real world of lawyering beyond the asphyxiating cloister you operate in. Litigators and transactional lawyers add value to our society every day.

Litigators facilitate the non-violent resolution of the innumerable conflicts that arise in our society every day. Don't take that for granted. One does not have to look too far in the world to find examples where violence is used to resolve a disagreement over a transaction, or where the government executes an innocent person as a convenient scapegoat. Adversarial proceedings in court are a form of ritualized fighting that resolves conflict without bloodshed. On more than one occasion I have put an end to an abusive husband's reign over his wife by using the tools that the law provides me. Don't tell me that has no value. By so doing perhaps I've even freed a "great mind" to go and invent something useful. And litigators have often served as a bulwark against the tyranny of a government run amok. As such litigators play a crucial role in our civilization.

As for transactional lawyers, how is the purported "great mind" going to actually produce their society changing commodity without the legal structures necessary to raise the capital necessary to produce the commodity on a scale large enough to impact society? Corporations, partnerships, limited liability partnerships, limited liability companies, subscription commitment facilities and other legal entities facilitate the raising and free flow of capital necessary to the production of any commodity on a large scale. And it is transactional lawyers who create these entities, as well as securing the rights of the "great mind" via the private law of contract that allows the commodity producer to profit from their invention. Without a contractual guarantee of remuneration for your invention there is little incentive to create one. Why waste your time on something that won't put food on your table?

I could go on and on by the point is made. Grade school Marxist economics that fetishizes commodities over service is misguided and unworthy of a "great mind." Another day in my love/hate relationship with Justice Scalia.

Enemy of the People

"Capitalism is the enemy of democracy." - Michael Moore

This is where Mr. Moore and I part ways. No economic system is equitable but non-capitalist economic theories have wrought worldwide bloody havoc. Certainly unbridled Capitalism is rapacious. Imperialistic. Exploitative. Enslaving. Just like the rest. But that's just an argument for a bridle given Capitalism’s virtues versus the empirical disasters that non-capitalist systems have proven.

Capitalism is unique because it can order individual self-interest in a way that failed systems like communism can't. Capitalism admits the overwhelming influence of two fundamental principles of human psychology that the other theories ignore or misconstrue at their peril: self-interest and the desire for freedom. Admitting and accepting that all humans primarily act in their own self interest frees Capitalism from utopian social engineering that in seeking to mitigate self interest in the name of equity only exacerbates inequity by providing the powerful with the means for suppression. Capitalism instead allows self-interest free reign within the boundaries of the rule of law thereby maximizing freedom.

The desire for freedom from hunger, want, disease, the elements, and the freedom to chose the life one wants to live is something that all economic theories strive for but Capitalism has proven more successful at than any other. Capitalism, unlike most of its competitors, was not theorized and then implemented; it was implemented and then theorized. This explains its empirical success. It evolved in the real world, and not at the desk of an academic. It successfully feeds billions of people daily. More people were lifted out of poverty by China’s turn towards Capitalism than at any other time in the history of the world.

The butcher does not sell you his meat out of benevolence as Adam Smith memorably said. We work for money to survive and to be free. Money frees us from agrarian barter and allows us to pursue our life unshackled from having to produce our subsistence. And attempts to do away with sale transactions, money, and the like by eliminating private property miserably fail because they prevent the individual from controlling the objects in the material world necessary to her survival and satisfaction. If anyone can take without consequence the tools you work with or the food produced by your labor your freedom to control your world has been diminished and you are subject to the often-wicked caprice of others who invariably act in their own self-interest despite the utopian fantasies of wistful theorists.

Private property creates freedom precisely because it protects self-interest and the freedom of the individual to chose what to do with their property, including the freedom to exchange it for value in mutually beneficial exchanges between contracting private parties with a minimum of governmental interference. Like the butcher does when he sells you his meat. This benefits society as a whole, as any empirical comparison between the world’s capitalist and non-capitalist societies demonstrates.

Finally, it is simplistic to say Capitalism is brutal and amoral. Capitalism as an empirical phenomena is constantly evolving: slavery is now illegal; the labor movement tempered Capitalism’s exploitation, and a body of law emerged recognizing equality and freedom of choice in a world awash in castes and inequality. Of course there is much work to be done (and I suspect this is what Moore’s movie is really about), but I’d much rather stick with a system that actually feeds people than ones that have only produced despotism and scarcity.

Teabirther Constitutionalism

Listening to the latest paranoid political fringe of Teabaggers and Birthers discuss the Constitution I find that I share some of their constitutional views. I support judicial review, that ultimate negation of the purported popular will by judicial fiat by unelected life time justices of the Supreme Court. It's not always perfect (see. e.g., Dred Scott), but it has proven effective in preserving individual liberties in the First, Fourth, Fifth, Sixth and Fourteenth Amendment contexts. The Teabirthers seek the judicial nullification on constitutional grounds (Article 2 sec. 1) of the democratic decision of the People as to their President. This is the ultimate act of judicial review. The Teabirthers want the Supreme Court to rule that the sitting President of the United States must step down. Radical. You don't get a more expansive view of judicial review than that. Too expansive for my tastes. Makes Roe v. Wade's judicial review look insignificant. Of course the Teabirthers ultimately fail because their view is unconstitutional under an unavoidable textualist reading of the Constitution. The Framers clearly intended the power to remove a President to reside with the People's representatives, not the judiciary. The power to remove a sitting President is solely vested in Congress through impeachment (Art I, secs. 2 & 3) and is not an Article III power delegated to the judiciary. This betrays the Teabirthers ignorance of the Constitution they so jealously guard. But I share their fervor for the Constitution.

I take solace that the Teabirther crowd is so angry that constitutional blasphemy is afoot. At least they are not citing biblical blasphemy (at least not all of them). I share their fervor for all things constitutional and their belief that the Constitution is what the living people say it is and not necessarily what the Framers allegedly said it was. After all, if they were textualists they'd have a hard time saying government health care or emergency (hopefully temporary) nationalizations of key industries and financial institutions are unconstitutional when the first sentence of the Constitution says one of its purposes is to promote the general welfare. And if keeping people from dying and preventing economic collapse isn't promoting the general welfare well let me know what is. But if you take a more plastic interpretation of the Constitution, one unmoored from its text, you could plausibly argue that some sort of liberty interest was being violated by government healthcare and industrial and financial nationalization. This view, however, is similar to the logic of Roe v. Wade and Miranda, decisions the teabirthers abhor. Thus goes the cognitive dissonance of their Constitutional theory.

Civil War

Civility was stillborn at the dawn of politics. So the frothing ad hominem nature of the recent debate on health care and the economy is not surprising. Nor is this country's trenchant racism coupling with rabid anti-communism anything new. The KKK has always hated niggers and communists equally. The spectrum has only shifted slightly in that black is the new red. It was naive to think that racism would dissolve in the glow of Obama's election.

Politicians have been calling each other liars since the birth of the Republic, but never has a Southern, confederate sympathizing representative called a black President a liar on the floor of the House. And precisely the fact that we've never had a black President until now amplifies Joe (not his real name) Wilson's tantrum. What's the answer to the question as to why we haven't had a black President until now? Racism, duh. Ignoring the historical context of a white southerner denouncing a black President in a House divided is not rational given the overwhelming history of slavery and apartheid in this country. Well over half a million Americans died in the civil war, to say nothing of the horrors of the Atlantic passage and the "peculiar institution." This is just not the same thing as booing a white President.

On the Use and Abuse of the Constitution for Life

Annoying but popular Wall Street Journal op-ed piece on how our next census will be unconstitutional because it's going to count illegal aliens. http://online.wsj.com/article/SB20001424052970204908604574332950796281832.html

My letter to the Wall Street Journal that's never going to be printed regarding an obvious problem with the viewpoint:

Mr. Baker's and Mr. Stonecipher's conclusory statement that Congressional representation based on a census of non-citizens is unconstitutional runs afoul the of the Constitution as originally written. The original Constitution explicitly provided for proportional congressional representation based, in part, on a census of non-citizens. That is precisely what the infamous "three fifths clause" provided for by allowing the southern slave states to count three fifths of their slave populations towards their representation in the House of Representatives. And as Chief Justice Roger Taney made clear in his decision in Dred Scott, slaves were not entitled to the rights of citizenship and were considered mere chattel. While I agree in principle that only citizens should be counted when it comes to congressional representation, it is far from clear to me that counting non-citizens towards representation is unconstitutional when the original constitution allowed for representation based on a tally of what was then considered property.

Religion is the Ultimate Materialism

When was the last time you saw a priest going hungry? Or lacking a roof over his/not her head? Just what exactly is the net worth of the Catholic Church? Or the net income produced by the Haj and the revenue stream generated by the merchants of Mecca since before Islam even existed (back when Mecca was a pagan pilgrimage site)? When was the last time you saw a destitute religious leader?

Yet a major critique by theists of atheism is that it leads to materialism. Ignoring for a moment that this doesn't logically follow because I can easily think of a couple of non-materialist philosophies that are consistent with atheism such as solipsism or Cartesian dualism, my response is essentially that the pot is calling the kettle black here. Religion is the ultimate form of materialism. That's why its so obsessed with controlling matters on earth. Why, if we are alive but a fleeting moment in relation to the eternity of heavenly reward promised true believers, are so many true believers fanatical about controlling those who do not share their beliefs? After all, according to the dominate religion in my part of the world, I'm going to burn in agony forever once I die because I'm an unbeliever.

I think the answer is a simple one: what the true believer is really trying to advance is their own material interest under the guise of some ethereal moral order that conveniently meets their earthly interests. This is why religion is also a form of hypocrisy. It cloaks its real concerns under an unverifiable, unquestionable, amorphous absolute that advances its material goals. It says it hates materialism when really that's the name of its game.

Finally, just what exactly is wrong with materialism? It feeds my family and adds value to my community as I pay my taxes, contribute to charity, improve my property and the like. Spiritualism feeds no one and is open to attack as a form of self indulgent hedonistic solipsism. And don't even get me started on the intellectual vacuity of the view that without God there is no morality, spirituality or "meaning." But that's another discussion.

Tortured Logic

What exactly could the Torture Memo authors be criminally charged with?  The New York Times makes it seems like criminally charging them is an option, but nowhere mentions a possible basis for a criminal indictment.  Criminal charges based on speech are extremely circumscribed in our society, as well they should be given our emphasis on freedom of expression.  Outside certain speech acts such as conspiracy, or fraud laws (which usually require more than just speech by requiring reliance by a listener on the fraudulent speech) there really isn't much of a hook to prosecute anyone for expressing their opinions.  I thought the Torture Memos were legal phlogiston when I first read them, but are they criminal?  No, just reprehensible and poorly reasoned and researched.  Failing to cite cases where the action you are analyzing was prosecuted by our government is sloppy and would get me fired in my job.  But let's take a deep breath before we criminally condemn people for expressing their opinion lest we start sliding down the slippery slope.