Relevant and even prescient commentary on news, politics and the economy.

Free Market Government

This post will be especially confused. I am thinking about cash bail and how it is unacceptable that richer people have more liberty than poorer people. For some reason my thoughts turned to Jeffrey Epstein currently held without bail, because of course. Now he hasn’t been convicted yet, and I do support the 5th and 6th amendments, so I have a problem. I will try to solve the problem.

I’m going to start with Hobbes, Locke, Mill and Nozick (which one here is not like the others ?). I don’t believe that the moral law contains an article about private property — I think private property is a very useful even necessary social institution, but not a transcription of objective moral truth (this is following Michael Walzer sometimes colleague of Robert Nozick). But for this post, I will assume there are natural rights to private property (following Locke). And, like the listed guys, I will pretend that there is an actual social contract and that people are bound only by contracts they accept. I will go for 3 out of 4 and say they can’t be accepted under the threat of force. The guy who’s not like the other is Hobbes who was an absolutist and claimed that signatures extracted by force counted (his example not mine was armed robbery).

I conclude two things. One is that the maximum morally acceptable tax rate is roughly 100%. The other is that I can set bail for Epstein. Granting Locke, Mill, Nozick and von Hayek all they can imagine demanding, I end up concluding that they have (almost) nothing. I will discuss this after the jump.

But here I will try to focus on financial bail. The problem isn’t that people can buy temporary liberty with private property. The problem is the cash part, which favors the non liquidity constrained, and also the incorrect application of equality under the law. People must be treated equally. Dollars must not be treated equally. It’s one or the other. Bail should be set as a fraction of the defendant’s wealth (including human wealth that is future labor earnings). Currently, the idea is that bail is a number of dollars possibly adjusted for wealth. There is no way to get to justice starting with the idea that all dollars are, more or less to first approximation, equal.

Also high bail. With no liquidity constraint problem, there is no reason to have bail proportional to anything. I think the rule is simple, show up or any correct spelling of your name is a legally valid signature. You don’t play by our rules (showing up for your trial) and there will no longer be any concept of forging your signature. Everyone has the right to sign for you (especially including the Bailiff who will write checks to the state worth the balance of every known account in your name). Any future claim that you have exclusive ownership of anything will not be enforced. And by exclusive that means your claim that you own something any more than I do.

Epstein might still run away, but he would be running barefoot (someone would have taken his private jets, automobiles, and shoes). Natural rights do not include a natural right to have the state prosecute someone for forging your signature.

Now the dollar value of everything you own bail would be greater the richer the defendant. This is fair and equal. It implies discrimination against some dollars, which is no problem.

Comments (3) | |

Enforcing the Constitution

I have met this man on several occasions. He is one of the most unimposing and quiet people I have ever run across. You would never know he is one of the most knowledgeable and capable constitutional attorneys in the nation having testified to Congress on SCOTUS appointments.

Erwin Chemerinsky: In Marbury vs. Madison, in 1803, the Supreme Court declared that it is “the province and duty of the judicial department to say what the law is.”Quoting Chief Justice John Marshall from Marbury vs. Madison (1803) footnote 742, the Court declared:

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

Justice Elena Kagan in minority dissent:

Justice Elena Kagan wrote: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”

The Supreme Court just abdicated its most important role: enforcing the Constitution

Tags: Comments (8) | |

Rep Liu got Mueller to say it

https://twitter.com/pbump/status/1154042744702029824?s=20

Also the MSM noticed. Bump is a Washington Post reporter.

The point is that this implies that Mueller thinks Trump was guilty and that he would have a reasonable chance of convincing a jury that there is proof beyond reasonable doubt of Trump’s guilt.

The other answer was “that was a sufficient reason to not indict Trump which doesn’t imply that it was a necessary condition. As written in the report I don’t think it is fair to discuss the question of

update: in the afternoon, Mueller took it back

When he appeared before the Intelligence Committee in the afternoon, Mueller clarified this exchange, noting that it was not solely because of the Office of Legal Counsel opinion that he did not charge Trump with a crime. Instead, he said, “we did not reach a determination as to whether the president committed a crime.”

This is inconsistent with his exchange with Liu. The key word is “the” in “the reason”. Liu asserted that there was only one reason and Mueller agreed. But in any case, the bottom line is that he took it back.

Comments (11) | |

How today’s Democratic ‘Squad’ is a direct ideological descendant of the original 1850s Republicans

How today’s Democratic ‘Squad’ is a direct ideological descendant of the original 1850s Republicans

Nothing is ever really “new.” Today’s ‘Squad’ of young Democrats is the direct ideological descendant of the original 1850s Congressional Republicans. That is one of the important lessons of Joanne Freeman’s “The Fields of Blood,” about the increasing threats of, and actual incidents of, violence in the US Congress between the 1830s and the Civil War.

Just as today, there were differing economic and social divides in America. Economically there was a struggle for power between the merchant class and farmers. Socially the increasingly contentious issue was that of slavery. At least beginning with Andrew Jackson’s 1828 Presidential election victory, the Democratic Party was the voice of farmers. The ex-Federalists and the nascent Whig party became that of commerce.

But there were northern and southern branches of each party, defined in how they stood on slavery. The story of the 1830s through 1850s is how that moral issue moved to the forefront, splitting both parties, and ultimately giving rise to the Republicans. This is very much the same paradigm as the “great sort” that took place between the Democratic Party and the GOP between 1980 and 2016 (if not 2008).

Not only is that, but reminiscent of polls over the past 10 years, in the 1830s and 1840s  northerners, especially northern Whigs, wanted to settle disputes civilly, while especially southern Democrats were willing to threaten, and even use, physical force to get their way.

Comments (17) | |

Bill Black says what if…

(Dan here… Via Real News Network, Bill Black discusses the what-ifs of President Trump’s policies in a spectacular contrast to current expectations…providing. a jumping off point from what we expect from the way it is framed now. I assume the complex interalationships of the wealthy elites (let us see how the Epstein case unwinds for another aspect) plays an important but not so well known role in this drama.  I find his thought his conclusions dismaying if even somewhat accurate.)

BILL BLACK: Sure. The question I ask in the article is why did Trump choose to be so spectacularly unpopular? Because had he done what he promised and had a true middle class tax cut that gave, for example, $5,000 a year to the typical middle class household, he would be spectacularly popular. And almost certainly they would have–the Republicans would have retained control of the House, and quite possibly they would have gained seats in the House. And of course they would have gained seats in the Senate. And Trump would be well positioned for re-election. He would have greatly expanded his base, and he would have paid off to his base, as well. And you know, convinced them that backing him was exactly the right thing.

And that’s the biggest thing. But also, if Trump had done what he promised and had a true infrastructure bill, where he spent $2 trillion on infrastructure, he would have divided the Democratic Party.

Comments (13) | |

On Gerrymandering: “The United States shall guarantee to every State in this Union a Republican Form of Government”

On Gerrymandering: “The United States shall guarantee to every State in this Union a Republican Form of Government”

Previously I have written that the Fourteenth Amendment specifically provides for a reduction in representation for any state that engages in voter suppression.

Section Two of the Fourteenth Amendment provides in part:

“[W]hen the right to vote at any election … is denied to any … citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion [thereto]….”

In view of the GOP Supreme Court majority deciding that partisan gerrymandering is a “political question” beyond the purview of the courts, I want to take this matter further. Because if the Congress is willing to play hardball, it has a remedy.

Article 4, Section 4 of the US Constitution provides:

“The United States shall guarantee to every State in this Union a Republican Form of Government.”

Importantly, In Luther v. Borden (1849), the Supreme Court established the doctrine that questions arising under this section are political, not judicial, in character and that “it rests with Congress to decide what government is the established one in a State . . . as well as its republican character.”

In other words, it has already been established that what the guarantee of a “republican form of government is” is not for the Federal Courts, but for the Congress and the President to determine.

Do States have a “republican form of government” if a minority of the people are able to entrench themselves as a permanent legislative majority based on the outcome of just one election? Now that the Supreme Court has said that the Courts may not act, I think Congress has every right to declare that this is the case, both at the state and federal election levels, and to refuse to seat anybody winning such elections.

Comments (10) | |

Kiribati is Low But Not as low as Whale Shit at the Bottom of the Ocean

It is possible to cause a huge (short term possibly reversed) increase in carbon capture by algae by dumping iron sulfate in the ocean. On the other hand, uh, well, maybe it won’t work and you will just get a few tons of fish (not many tons of carbon containing detritus on the bottom of the ocean.

Now the general principal seems to be that, so long as there isn’t proof beyond reasonable doubt that a proposal will work, to stick to the tried and true and first do no harm but rather wait until the tundra melts, methane is released, and the climate is irreversibly altered.

This makes no sense. Conservatism may make sense if the choice is between the current state (which is not ideal) and gambling on something new. It makes no sense if one is careening towards a precipice, as we are.

There is an, as usual, interesting post at Vox.com.   Kelsey Piper discusses the unfortunate fact that rogues might attempt to fight climate change without scientific proof that ocean fertilization works and without international regulation of ocean fertilization. Personally, I think the near certainty of climate catastrophe if we stick to the current approach is a more serious problem.

The current approach is international negotiations to reach non binding agreements which from which Donald Trump withdraws the second largest carbon emitter.

In contrast, the dangerous rogue approach is something allowed by current non law, conducted by Native Canadians which had the side effect of a record salmon harvest.

I want to address two questions. First should we dump Iron Sulfate in the open ocean. I think the answer to this question is obviously yes. I have read no argument with any trace of possible validity against it. I might add that it works better if mixed with silicate and seeded with marine diatoms. But in any case, I have seen no argument anywhere that there is a non negligible risk of undesirable side effects.

Yet the official response, such as it is, is to condemn the efforts and seize everything that can be seized.

I attempt to understand what the hell is going on after the jump.

But before that I note:

What happens when some individual or country wants to go big in the battle against climate change without buy-in from their neighbors? Could a country unilaterally pursue climate solutions that, unlike ocean iron dumping, pose substantial risks?

Note the insanity. In a post on ocean dumping of iron sulfate, Piper says the real issue isn’t any possible bad effects of ocean dumping, but the fact that someone might do something else which is bad some time. But note also that even a tiny country which has authority over a lot of ocean could unilaterally dump iron sulfate. The country doesn’t need a lot of land area. The country doesn’t need high altitude. The country’s average elevation might be two meters above sea level.

Why doesn’t Kiribati dump all the iron sulfate they can buy in the huge expanse of ocean around their tiny soon to be drowned atolls ? What do they have to lose ? Who is going to stop them ? The side effect would be more fish around Kirbati. The policy would make sense even if oceans weren’t rising.

OK so what’s the problem ?

Comments (17) | |

Trump Claims Obstruction of Justice is an Official Duty of the White House

Trump Claims Obstruction of Justice is an Official Duty of the White House

Tierney Sneed reports on Trump’s latest obstruction of justice:

The Justice Department on Monday issued a legal opinion claiming that Congress could not compel former White House Counsel Don McGahn to testify about special counsel Robert Mueller’s report. The opinion was released not long after reports that the White House was planning to instruct McGahn to not comply with a House subpoena that he testify at a Judiciary Committee hearing Tuesday.

The legal opinion can be found here and states in part:

Congress may not constitutionally compel the President’s senior advisors to testify about their official duties … This testimonial immunity is rooted in the constitutional separation of powers and derives from the President’s independence from Congress.

What an incredibly arrogant canard! McGahn is being asked to testify to Congress about what is clearly obstruction of justice – a crime. How is that an official duty of the White House? Oh wait – the Trump White House is nothing but a den of organized crime so maybe he sees committing crimes as one of his official duties!

Comments (11) | |

Justice Stevens Shoots At Gun Decision

Justice Stevens Shoots At Gun Decision

Former Supreme Court Justice John Paul Stevens, now 99 years old, has written a book, The Making of a Justice: My First 94 Years. Apparently he considers the  District of Columbia versus Heller decision to be the worst of all those that was made during his time on the Supreme Court, that one on  a 5-4 vote.  That decision upended the interpretations of the Second Amendment that had been in place since the amendment was adopted, with Stevens noting that in fact this longstanding interpretation reflected gun laws from even the colonial era.  That interpretation allowed for gun control legislation for civilians as it was always assumed that the opening phrase about “maintaining a militia” (by state governments) meant that the second phrase about “the right to bear arms shall  not be ingfringed” only applied to those in the military.  The Heller decision undid that, making the right to bear arms disconnected from the business about militias and essentially absolute.

Clearly Stevens feels guilty about what has happened since then, most clearly the epidemic of mass murders with high-powered weapons that were actually banned for civilian use for a decade after 1994, during when such mass murders happened at a lower rate than before or after.  That law was allowed to lapse, when instead the US should have extended it and followed a policy more like what Australia did by buying up outstanding such weapons, which was followed by a dramatic decline in gun-related homicides.   As it is, the US now has a far higher rate of per capita gun ownership than any other nation, more than twice as many as Serbia, the nation with the next highest such rate.

Comments (1) | |

What if Trump does not leave If He Loses in 2020?

There is a number of comments and commentary about the 2020 election and what if Trump refuses to leave. I put up a few and also a good article from Vox.

– A comment (ken_lov) stolen from another site I frequent and read from time to time:

“From time to time on other websites I’ve outlined a scenario where the Supreme Court agrees with Trump that the 2020 election was irreparably tainted by fraud and interference from abroad, and consequently issues an injunction ordering the electoral college not to meet. The constitution provides no guidance about what should happen in such a situation. Trump would therefore be free to act more or less as he saw fit, especially if Republicans had a majority in at least one chamber of Congress and resolved that he was the lawful president.

It’s disappointing how many liberals refuse to take this seriously, based on nothing more than faith in American institutions. I would have thought the last 19 years should have shaken that faith beyond repair. It’s terrifying that the survival of constitutional government may depend on Ruth Bader Ginsburg’s ability to live another 18 months.”

The comment does raise unanswered questions in how a nation would react to Trump defiance and a right-leaning SCOTUS might decide. The issue is whether the left as Ken_lov suggests takes this scenario seriously. Pelosi has already commented on the topic. Perhaps, we have answers or know better?

Vox’s Aaron Rupar:

Trump joked about serving “10 or 14 years” during his rally in Panama City Beach, Florida, on Thursday. It wasn’t the first time he said something like that during a speech.

Trump: “This was an illegal coup attempt on the President of the United States.” Dan Bongino on @foxandfriends True!

Trump: “The election is absolutely being rigged by the dishonest and distorted media pushing Crooked Hillary – but also at many polling places – SAD”

Trump: “This election is a total sham and a travesty. We are not a democracy!”

The ground work appears to have been laid by Trump.

– Pelosi: “We have to inoculate against that, we have to be prepared for that,” Citing her concern as a reason Democrats should strive to “own the center left and own the mainstream” during their 2020 campaigns. And forgo the Green Deal and Medicare-For-All.

“If we win by four seats, by a thousand votes each, he’s not going to respect the election. He would poison the public mind. He would challenge each of the races; he would say you can’t seat these people. … We had to win. Imagine if we hadn’t won — oh, don’t even imagine. So, as we go forward, we have to have the same approach.”

Are we too naïve and trusting?

Comments (15) | |