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My Comments-Thread Comment to Robert Waldmann’s “From Small Town to Prison” Post

Robert Waldmann did something this morning that I’d planned to do: He posted an in-depth post about the NYT’s awesome article in yesterday’s paper titled “From Small Town to Prison,” by Josh Keller and Adam Pearce.

Robert makes a critical point about the fiscal cause of the phenomenon that the Times article reports on, and my rather lengthy comment to Robert’s post adds some things that I’d planned as the key point to my post.

Here is my comment in the Comments thread to Robert’s post:

“It is caused by prosecutorial discretion with laws which allow extremely long sentences combined with plea bargaining. If the sentence for the actual crime committed weren’t absurdly long, DAs would not be able to help their counties at the expense of the state.”

That certainly is true, but it also is caused by the complete takeover of the U.S. Supreme Court by the Conservative Legal Movement, which has removed any access to federal court in order to challenge through the habeas corpus process anything—and really, I do mean, as a practical matter, anything—that occurs in state or local court proceedings, however flagrantly violative of even basic constitutional rights.

For state-court criminal cases, these Supreme Court justices (not to be confused with justice; they’re justices, a title, nothing more) these people took an already awful federal-court jurisdictional statute that Bill Clinton cravenly signed in 1996 in order to avoid, y’know, soft-on-crime attacks during his campaign for reelection, and (very) effectively rewrote it to actually completely preclude federal habeas review of ANYTHING that transpires in ANY state or local court.

This was done in the name of states’-rights-to-violate-individual-rights-except-religion-gun-ownership-and -real-property constitutional rights. Er—I mean—in the name of FREEDOM. A.k.a., LIBERTY.

What I hadn’t realized, though, Robert is that because it’s the states that pay for state prisons, there is an incredibly strong incentive for these county DAs and judges to put everyone they can in prison, and or as long a time as is allowed—which according to the Supreme Court is as long as they want. One major achievement of the Conservative Legal Movement is that the Supreme Court has nullified the Eighth Amendment’s prohibition against cruel and unusual punishment.

A 12-year sentence for selling a handful of narcotic prescription painkillers, admittedly highly addictive drugs, is both cruel and (happily) unusual, and should be challenged as violating the Eighth Amendment. But under Supreme Court precedent from the current crowd+Antonin Scalia the lower federal courts probably would reject the argument.

I’m so glad you posted this post, Robert. I read the Times article yesterday and planned to include it in a post I plan to write soon whose main subject is my anger about the push by some progressive senators* and by some other progressives to get the Senate to confirm Merrick Garland to fill Scalia’s seat. This is beyond misguided. And it makes no sense.

The big, big progressive complaint about Garland is that he is pro-law enforcement, and especially pro prosecutor—and not all that concerned about such matters as specific constitutional rights such as Fourth Amendment search-and-seizure limitations and, well, other things. But Garland is, I guess, progressive on the kinds of things that corporate conservatives and culture-wars conservatives care about. In other words, he’s fine for conservatives on law-and-order stuff that is politically passe even among most Republicans, but is from the perspective of the Republican donor base and culture-wars base he’s not fine. So why push this guy? Why the hell was he even nominated, in the first place?

(Okay, he was nominated because Obama, like so many other political types, thinks it’s still 1988. But actually it’s not still 1988.)

There are more than a fair share of former prosecutors and other former government lawyers on the Supreme Court and the lower federal benches. There are almost no former criminal defense lawyers and civil rights lawyers on the federal bench at any level, and it’s been, like, forever since there’s been on the Supreme Court unless you count Ginsburg’s Women’s Issues legal background. It’s really, really, REALLY time for one. Or, hey, even two!

Hillary Clinton owes her nomination to African-Americans, and she may well owe her election to them. At a minimum, she’ll owe her large margin of victory to them, if it materializes. So I’ve been wondering: Who will be her first Supreme Court nominee? And her second one?

Everything about Hillary Clinton suggests that if she decides to pay attention to Blacks in her Court selections, she’ll go with appointing a second Black to the Court. I mean, hey—another first! Which she will conflate with, Hey! Someone who will actually matter to a significant numbers of African-Americans in what he or she DOES on the Court.

Which is not to say that that there are no African-Americans who would be terrific for the position; one I know of is an Obama appointee to the Fourth Circuit Court of Appeals, based in Richmond, VA. Or I should say, that’s my impression, although I don’t know all that much about him. But Clinton likely will just operate on the assumption that the specifics of the nominee don’t matter, other than the specifics of race.

My strong, strong preference would be Jeffrey L. Fisher, who was highlighted in one of NYT Supreme Court correspondent Adam Liptak’s occasional Sidebar articles last month titled “Criminal Defendants Sometimes ‘Left Behind’ at Supreme Court, Study Shows.”

And to replace Ginsburg when she retires next July, the drop-dead awesome Vanita Gupta, Obama’s current Justice Dept. Civil Rights Division chief. (Kudos, Mr. President!) Gupta would be the first Asian-American on the Court, which means Clinton actually might appoint her! She won’t appoint Fisher, although there’s no one in the country who could come close to having the impact that Fisher would have on the Court because of his victories at the Court in gaining Scalia’s vote on some major constitutional-criminal-law issues.

Anyway … I’ve inserted into your post a link to the Times article, and corrected a typo (“2006”, rather than “206”). Your posts get a lot of readers, and I hope this one will be no exception even though it’s not on economics, except of course indirectly.

And I want to add this: I would love to see Pence asked about this at his debate with Kaine. And if he’s not asked about it by the moderator, Kaine should raise the point.

Okay, so I guess I’ve now posted that post I’ve been planning to post about progressives trying to push through Garland’s confirmation.  Good; one more thing I can check off my to-do list.

Oh. The title I’d planned for it: “The Really Awful Advice That Some Dem Senators Are Giving to Clinton.” They want her to announce now that she will renominate Garland to the Court–the idea I guess being that the Republican senators might as well confirm him now, although I have no idea why, since she’d be promising to nominate him rather than a young liberal. Garland is in his mid 60s.

Even more bizarre than that argument, Harry Reid also advised Clinton** that she should renominate Garland even if she doesn’t promise, pre-election or pre-inauguration, to do so, because, they say, she’ll be too busy in the first few months of her term to have someone new vetted and then have her administration shepherd the nomination through the Senate.

Seriously; that’s what that article about this that I linked to above  says.* The theory being that the new administration won’t be able to chew gum and walk backward at the same time, and Supreme Court appointments aren’t important.

So there we have it. Some Senate Democrats’ advice to Clinton is to throw away a Supreme Court appointment because it’s just easier that way.


NOTE: The last five paragraphs were added after original post was posted. 9/3 at 4:20 p.m.


UPDATE: Reader Nihil Obstet posted this comment in the Comments thread:

One of the great successes of the elite is to weaponize the Supreme Court nomination process by limiting it to culture war issues. We have to vote for our party’s candidate because of abortion, affirmative action, religious freedom, gun regulation, and sexual orientation. Both Democratic and Republican politicians are very happy with those issues. When I’m told that the election is all about the Supreme Court appointment, my reaction is, “You’re not helping your cause by saying that it’s crucial to get more Merrick Garlands on the court.”

I’m not seeing any focus among progressives about the need to reverse the erosion of personal rights with regard to the power of the state and of the corporations.

I responded: Exactly.

Added 9/3 at 4:44 m.


* Link corrected. 9/3 at 4:56 p.m.

** I erroneously said originally that “these senators” advised this.  But it was only Harry Reid who did, according to the article.  Apologies to Dick Durbin, Chris Coons and Chuck Schumer, the other senators the article mentions.  Also: Durbin apparently is playing a role in this because he is minority whip.  He’s one of my favorite senators, and so I’m a bit disappointed, but I guess he feels that as whip he has to participate in pushing for Garland’s confirmation. 9/3 at 5:08 p.m.

Krugman The Clairvoyant

[Paul Krugman] has a negative view of Bernie Sanders “Why I Haven’t Felt the Bern “ which links to his column on insulting Dixie.

The post is brief and a bit odd — Krugman criticizes Sanders for:

“… the casual adoption, with no visible effort to check the premises, of a story line that sounds good. It’s all about the big banks; single-payer is there for the taking if only we want it; government spending will yield huge payoffs — not the more modest payoffs conventional Keynesian analysis suggests; Republican support will vanish if we take on corporate media.

“In each case the story runs into big trouble if you do a bit of homework; if not completely wrong, it needs a lot of qualification.”

Disagreeing with Paul Krugman? 1, Robert Waldmann, Angry Bear, yesterday

I posted the following in the Comments thread:

Robert, you quoted two seminal sentences from Krugman’s blog post, but you failed to quote the preceding paragraph and therefore missed Krugman’s real point: that he possesses powers of clairvoyance and knew last spring that eventually some economist not connected with Sanders’ campaign would publish erroneous findings about economic gains from the government spending on some of Sanders’ policy proposals and that a couple of top people in the campaign would announce those findings, and that Sanders would make no inroads with elderly and middle-aged African-Americans in the South and then make dumb claims that Southern primary results shouldn’t have the impact they have due to their frontload in the primary and caucuses schedule since those states are mostly very Republican ones.

That said, you did zero in on Krugman’s mystifying claims, first, that Sanders is saying that single-payer is there for the taking if only we want it—an assertion by Krugman that is both flatly false or represents a deep understanding by Krugman of Sanders’ actual statements—and, second, that it is dishonest and improper for a serious candidate for the Democratic nomination for president to propose single-payer.  Or, for that matter, to propose ANYTHING that isn’t simply a tweaking of the status quo.

And then there’s the issue of why Krugman hasn’t noticed, or pretends not to have noticed, that at the heart of Sanders’ break-up-the-big-banks argument is that those few financial institutions—including those like Goldman Sachs and Morgan-Stanley that do not accept ordinary deposits and make ordinary business and personal loans, but that do do things such as buy and sell mortgage-backed securities banks—control vast amounts of wealth and correspondingly have vast amounts of economic and political power.  And you do address that.

It really IS outright dishonest of Krugman to claim, again and again and again, that Sanders’ single concern about the size of the big banks is that they could again trigger a financial and economic meltdown unless they are bailed out by the federal government.  It is by no means the only issue that Sanders mentions with respect to those institutions.  But is an important one.   And the head of the FDIC is in agreement with that, which you would think Krugman would acknowledge when he criticizes Sanders, but doesn’t.

And I downright love your questioning of the basis for Krugman’s obsession with accusations by some Sanders supporters that Krugman, etc., are members of the establishment, personally corrupt, and such—and his odd passive phrasing of it there.

But now that he has challenged assertions that he is a member of the establishment, he might care to address the larger issue of whether he thinks Clinton is—and if he does, whether he thinks she should stop playing cutesy games about the meaning of the word and stop denying that she is indeed, rather obviously, a longtime, high-profile member of it.

Which as I mentioned in my post just below yours, she did again claim at Thursday’s debate.

Specifically, in that preceding paragraph of Krugman’s that I reference, which is the opening paragraph of his post, he writes:

Today’s column offers an opportunity to say, for the record, why I haven’t been the Bernie booster a lot of people apparently expected me to be. For the business about discounting Clinton support as coming from “conservative states” in the “Deep South” actually exemplifies the problem I saw in the Sanders campaign from the beginning, and made me distrust both the movement and the man.

So, okay, we get it.  Paul Krugman isn’t just a great economist (which he is; no sarcasm intended there).  He’s also clairvoyant, prescient, a talented tarot card reader.  He’s just not all that good, or for that matter, all that honest a political analyst. He either has no actual idea why Sanders’ campaign really matters or he pretends not to.

Follow-up to “Scalia’s Curious Memory Lapse”: Is the Supreme Court about to limit its holding in Garcetti v. Ceballos?

Okay, first things first.  And the first thing is that when you (okay, when I) put the word “after” instead of “before” in a key sentence, and the error (which in this instance occurred because of a cut-and-paste sentence-edit typo in a complex sentence) makes the sentence nonsensical, you’re gonna be stepping on your own punch line.*  Which is what I did in my post Tuesday titled “Scalia’s Curious Memory Lapse,” in the first sentence of a paragraph that, corrected, reads:

Ah, but that’s because Lane was unaware of the 2006 opinion in Garcettti v. Ceballos.  The second one issued, that is, less than a month after* Samuel Alito was sworn in as Sandra Day O’Connor’s replacement; not the first one issued, in the last few days before O’Connor formally retired. (Yes, as I explain in that post of mine from last January that I linked to above, Garcettti v. Ceballos has quite an interesting little twist to it, procedurally.)

The second thing is, um … I think I’ll just quote my exchange with Robert Waldmann in the Comments section, which should suffice:

ROBERT: I was puzzled when reading the first few sentences of this post, because I had assumed it was about *another* amazing Scalia memory lapse. The other unrelated astonishing error was Antonin Scalia’s totally incorrect citation of an opinion written by eminent Jurist uh Antonin Scalia [link].

“”Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted,” Farber wrote on the environmental law and policy blog Legal Planet. “This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.””

Wow. Too bad supreme court justices can’t be impeached for senility (or for the standard conduct of signing opinions and dissents actually written by their clerks). Too much worse that no Republican will be impeached ,while Republicans control the House, or convicted, while there are 34 of more Republican senators. But two amazing howlers in about a week must be one for the history books.

ME: Robert, yeah, when I wrote the post and the title two days ago, I didn’t know yet about that weird error by him in his dissent in the EPA case. I should have changed the title yesterday; I think I’ll tweak it now, even though the post is old now. [I did.]

The “memory lapse” I’m talking about in this post isn’t actually a memory lapse, though. Scalia well remembers exactly what the situation was in Garcetti, and what the result was, because it’s critical to the arguments in Harris v. Quinn, which they’re deciding this term. It’s probably already been decided, and the dissent is being written now.

Thanks, Robert, for your comment.

I want to add here that I suspect that Scalia’s comment at the argument on Monday in Lane v. Franks that was the main subject of my earlier post–“I’ve never heard of this distinction, the First Amendment protects only opinions and not facts.  I’ve never heard of it.”–suggests that the Court is about to significantly limit its holding in Garcetti.

Which would be a good thing for prosecutors who want to inform their bosses that the police officer who sought the search warrant at issue apparently fabricated the “probable cause” for the warrant, or that the police officer who obtained the confession from a suspect did so by lying to the suspect, or that the police officer who dealt with the victim or witness insist or ensure that the victim or witness identify the suspect in a lineup as the perpetrator.  Or some such.  And it probably would be pretty good for innocent suspects, too.

Not so good, though, for cops who want to frame people.  Or for prosecutors who do, and aren’t on good terms with a colleague or two or with a subordinate. And you never know who might turn out to have a conscience.

This would be a big deal.

Meanwhile, about that real memory lapse by Scalia, in his dissent in EPA v. Homer City Generation, you can read the latest on it here.  The AP’s Mark Sherman nails it.

That federal gummint is always trying to get away with something! Even impersonating a trucking association.

*Sentence edited to correct a cut-and-paste typo. 4/2. Sighhh.



Paul Krugman is certainly right that history has judged, and that the judgment of history is for James Tobin over Milton Friedman so completely that there is not even a smudge left where Friedman’s approach to a monetary theory of nominal income determination once stood.

And Robert Walmann points out, repeatedly and correctly, that there is nothing theoretically in Friedman (1967) that is not in Samuelson and Solow (1960)–that inflation above expectations might deanchor future inflation was not something Friedman (or Phelps) thought up, and that neither Friedman (nor Phelps) was thinking that high unemployment might deanchor the NAIRU.

comes Angry Bear Robert Waldmann’s reply to a comment, worth reading with care:

“the vertical long-run Phillips Curve of Friedman (and Phelps) is simply wrong at low rates of inflation” But above very low rates of inflation, say 2%, it it essentially correct and therefore a very useful first approximation. (Full Employment Hawk)

Robert Waldmann replied:

By “very correct” you mean “corresponds to post WWII US data because all the other evidence is long ago or far away and irrelevant”. The vertical long run Phillips Curve of Friedman (and Phelps) was a terrible approximation to European data from 70 something through now. Europe has not been in a liquidity trap all those decades. Now if “long run” is defined as “a milenium” then we Blanchard and Summers (1986) didn’t prove Friedman (and Phelps) wrong. This is because “long run” can be a metaphysical un falsifiable claim if the long run is longer than any time series. It is in this sense and in this sense only that Friedman hadn’t been proven wrong already by 1990.

Also Friedman’s most powerful devoted follower (and most devoted powerful follower) provided incredibly strong evidence that he was just totally full of it. In 1985 the border of the European unemployment problem was the Atlantic Ocean. The contrast between the UK and the US was extreme. Then the stock market crashed in 1987. Thatcher feared a repeat of the great inflation. This (unlike persistently hign unemployment) struck her as worse even than inflation. So she pumped up the money supply (the BOE was not indenpendent back then). This caused an inflationary boom. UK economists discussed how firms had trouble filling vancancies. There was a mystery as the Beveridge curve shifted with high vacancies and high unemployment (a total mystery to people who hadn’t heard of the matching function). Then UK unemployment fell and stayed low. Expansionary monetary policy was followed by persistently lower unemployment (and a bit of inflation which didn’t persist). There could be no stronger test of Friedman’s theory which I now consider total crap because, according to an equally valid theory, I have too high a level of green bile and too little Phlegm.

Medicaid Austin Frakt, Aaron Carroll and Kevin Drum are Good for the USA

by Robert Waldmann

An important study of the effect of Medicaid on health was published in the New England Journal of Medicine.  The study was based on a genuine experiment where some people were given Medicaid and other people weren’t based on a lottery.  Unfortunately, the results were communicated with a NEJM  press release and not just the published article.  The results as received by the press is that Medicaid did not cause significant effect on recipients’ health (except for significantly lower depression) which was interpreted as the study providing evidence that Medicaid does not improve health.

This means that somehow someone rejected the alternative.

Criticizing the IMF staff and Ryan Avent

Lifted from Robert Waldmann’s Stochastic Thoughts:

In the post below, I vigorously criticize IMF staff and Ryan Avent for claiming that central banks adopted low inflation targets in the early 80s without noting that the Fed did not adopt an inflation target until January 25 2012.  I have now read Avent’s post as patiently as I can (meaning I skipped ahead).
Avent wrote “That the disinflation of the 1980s has generated a flattening of the Phillips curve is precisely what the IMF demonstrates:”

This claim is illustrated by a figure which does not show that.  Even if a curve hasn’t changed at all, the slope depends on where you are (that is the curve is not a straight line).  The figure does suggest that  the IMF staff are willing to assume that the Phillips curve is a straight line, or rather that they are willing to support their argument by presenting a graph which tends to convince people willing to make that assumption.

The graph does not demonstrate any change at all in the Phillips curve (I’m not saying it didn’t change just that the question can’t be answered with the graph).  You can’t see if different points lie on the same curve by plotting changes on changes, because the slope of a curve isn’t constant.

In particular, inflation is much lower now than it was in the early 80s.  It is possible that the slope of the Phillips curve is lower now, because the Phillips curve is a curve.  The pattern from 2007 on is clearly different from the pattern in the 1930s.   It is not clear that it is different from what would have happened from 1980 to 1994 if inflation had been around 2% in 1980.  

Oh and the 30s were different. In most developed countries, the unemployed don’t risk starvation any more.  The welfare state was quite different back when high unemployment caused sharp deflation.

I swear that this post has been edited to make it less rude.  You don’t want to read the first draft.
Also I deleted a draft conclusion to the update to the post below, because it was too inflammatory.  I am trying to be as polite as I possibly can without actually lying.

update:  Now I am going to make some graphs.  They are totally unlabeled only partly because I am lazy but also because I want the reader/graph eyeballed to try to guess what they are.  They are US analogs of the IMF graph with the change in core inflation on the y axis and the change the civilian unemployment rate on the x axis.  All graph 17 data points (as in the green series from the IMF).  Two  show data from after the Fed flattened the Phillips curve in the “early 80s”.  Which two show the new flat Phillips curve?

Figure 1 (chosen from three figures at random by the eyes closed point and click method)

Figure 2 (not chosen at random)

Figure 3

Don’t peek 

Come on it’s more fun if you guess than look ?

OK the answer is that figures 1 and 3 show the new flat post early 80s Phillips curve which is due to inflation targeting.  

Did you guess without peeking ?

Figure 1 shows 17 quarterly inflation changes from 1985q1 minus 1984q4 on.  They are the first data which came undeniably after the early 80s.  Figure 3 shows the most recent 17 quarterly changes.   It is not markedly different from figure 1 because of auto scaling (not “not *just* because I am lazy” does not imply “I am not lazy”) but it is much flatter (the range of unemployment changes is 4 times as large and the range of core inflation changes is about the same).

Figure 2 is the first 17 available quarters from Fred from 1958q2 – 1958q1 (when the core CPI series starts).  The first of those data were collected before Phillips published his famous scatter (with labeled axises even) .  The last in the first quarter of 1962 rather before the modern advances in monetary theory.  It is very flat indeed.  If Phillips had relied on FRED, he wouldn’t have gotten published at all.  Inflation bounced around way back then, but there is almost no relationship between the change in inflation and the change in unemployment.

This is what Phillips saw for extremely low inflation rates.  The rediscovery of the fact that the Phillips curve has a low slope at inflation rates near zero is not path breaking progress.

Do policymakers listen to macroeconomists?

Ex Macroeconomist Noah Smith argues that it is a good thing that there are professional macroeconomists.  He has two arguments

So does this mean that macro research is useless for policymaking? No! Not at all!! Because here’s an interesting thing about policymaking: No matter who advises the policymakers, policy is going to get made. That includes economic policy. So if there were no academic and Fed macroeconomists around to advise policymakers, who would policymakers listen to on economic matters?

My guess: Some very dangerous people.

2) useful things have been learned from empirical macro including stuff you see with half an hour of FREDing and “slightly less than half of people seem to be “hand-to-mouth” consumers who don’t obey the Permanent Income Hypothesis.”

My rude comments:

1) A world without macroeconomists wouldn’t be a world without economists who talk to journalists about the macroeconomy.  The risk is that the voice of the economics profession will be trade theorists, economic historians, behavioral economists and finance economists such as Krugman, DeLong, C Romer, Goolsbee, Fama and Cochrane (note ex macroeconomist Smith decided to go into finance).
I actually think that macroeconomists have very little influence on macroeconomics as perceived by policy makers and the public.  Summers is influential.  He is also a total heretic (he didn’t leave the field, the field left him).  Blanchard and Woodford are influential macroeconomists and reasonable people.
The world has chosen not to benefit from the insights of the most influential academic macroeconomists Robert Lucas and Edward Prescott.  I don’t think you think this is a bad thing.
2) On consumption and the PIH the data suggest that somewhat less than half of consumption is by hand to mouth consumers.  They don’t suggest anything about the rest.  The rest of fluctuations in consumption can’t be predicted by predicting current GDP.  Also radioactive decay can’t be predicted by predicting current GDP.  The PIH is not a good theory of radiactive decay.
The (representative agent with an additively separable utility function and no liquidity constraint version of the PIH) glass is not much more than half full.  I am not aware of evidence that it isn’t empty.

Robert’s musings for a Sunday afternoon

Lifted from Robert Waldmann’s Stochastic Thoughts for a Sunday afternoon:

Christian Roots of School Voucher Movement Still Pretty Obvious

…. those of us who are over the age of 40 and have three-digit IQs remember where this all started: with segregated Christian schools in the South who were denied tax-exempt status in the 70s. This was one of the formative protest issues for the Christian right, and led directly to their campaigns for state and federally funded vouchers for parents who sent their kids to Christian academies.


From Chance of redemption

Needed: Clever Economists to Study Benefits of Marrying Early

Which is better, getting married early or getting married late? Beats me.
This is just begging for one of those clever natural experiments so beloved of economists these days. … Where’s freakonomics when you need it?

from the Wiki on “selective service”

President Kennedy set up Executive Order 11119 (signed on September 10, 1963), granting an exemption from conscription for married men between the ages of 19 and 26. President Johnson later rescinded the exemption for married men without children by Executive Order11241 (signed on August 26, 1965 and going into effect on midnight of that date).

There is going to be an effect of turning 18 in 64 not 63 or 65.  Not such a huge deal since the chance of getting sent to Vietman in 63 and 64 was zero, but I’m glad I wasn’t a fly on the wall Midnight August 26 1965 when guys told their fiancees they weren’t getting married. 

Due process rights

Lifted from Robert Waldmann’sStochastic Thoughts:

32. Note that the US constitution grants the same due process rights to citizens and non citizens.

This time I pick on Steve Benen who wrote

“The drones themselves are a fairly new tool, but the use of technology is tangential to the underlying point about the use of force, and in the case of U.S. citizens accused of terrorism abroad, due process rights.”

My comment

You seem to be of the impression that the due process rights of US citizens are different than the due process rights of non citizens ” in the case of U.S. citizens accused of terrorism abroad, due process rights.” There is no basis for this view in the constitution. The 5th amendment declares that there are due process rights (its framers certainly saw this as recognizing a fact not creating a right). It contains no reference at all to citizenship.

Here is the 5th Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

How do you imagine that an amendment which begins “no person” implies that due process rights are an issue only in the case of citizens ?

This isn’t just my reading of the text (which is not at all ambiguous). US courts have consistently held that non citizens have due process rights (note I didn’t say “all non citizens”).

Hmm it sure sounds like the 5th amendment bans war which involves killing people without giving them trials first. The many provisions for declaring war and such like are in the main body of the Constitution and might be considered repealed by the 5th (as the provision that states must return escaped slaves is not considered to be current constitutional law). Similarly the common law right to use deadly force in self defence might be considered to have been eliminated by the 5th amendment.

But I might not be crazy and I don’t imagine for a second that the 5th amendment banned war or self defence. I do insist that it allows no distinction between US citizens and non citizens. The Civil war was particularly horrible, but the legality of union troops killing confederate troops in battle was not (widely) contested.

It is clear that the 5th amendment concerns killing people who are in government custody, that is the death penalty. It does not refer to killing people who haven’t been captured and can’t feasibly be captured.

Deal maker in chief…

Lifted by Dan from Robert’s Stochastic thoughts

Robert writes:

I was reasonably sure that the latest Ruth Marcus column would cause me to have to  revise and update my earlier post declaring her a heroine of Ballance.   She comments on the fact  that Republican representatives live-tweeted snark during the question and answer session with Republican representatives (which was closed to the public because they looked like fools) when it was on TV ((until Fox News cut away to something else, which tells you all you need to know)).

It is very hard to draw ballanced conclusions from a discussion of such an event.  To my amazement Marcus managed.  This column has it all. 1) Bipartisanthink, 2) the cult of the Presidency, 3) a dumb metaphor, 4) recognition that the conclusion is false part way through 5) disrespect for public opinion   6) above all, love of a grand bargain.

1) “But failure would not only tarnish Republicans; it would also stain Obama’s legacy. ”

2) “Great presidential leadership entails figuring out how to deal with even those who do not like you.”
(note that Ruth Marcus has just asserted that Lincoln wasn’t a great President).

3) “The president portrayed himself as a sort of maitre d’ for budget negotiations, setting the table for others to forge an agreement. ”

4) “It’s true that there are times when presidential intervention in delicate congressional negotiations can be counterproductive. It’s certainly true that there are times when congressional Democrats have advised the White House to butt out. “
“Perhaps he’s posturing; if the president is seen as coveting a deal too much, he won’t be able to get the kind he wants. Perhaps it’s simple realism; Republicans’ refusal to consider revenue raised by curtailing loopholes is unacceptable, and the president shouldn’t accept a cuts-only deal.”

5) “he is the one who is going to have to sell the notion of unpopular changes — curbing Medicare spending, reducing Social Security benefits or curtailing popular tax breaks — to a nation that says it wants a balanced bargain but may balk when that bargain is translated into painful specifics.”

Notice that the proper response to such a “balk” is presidential leadership not doing what the public wants.  Marcus is assuming her readers assume the public is more ignorant than it is and will be shocked to find out about the painful specifics.  But the public has spoken (to pollsters).  Huge majorities oppose cutting Medicare or Social Security to reduce the deficit.  Marcus has lost confidence in the public and a new public will have to be elected.  She just assumes that Obama must find a way to reach agreement with Republicans (which is impossible) in order to widen the tax base and cut social security and Medicare although the public supports at most one of those actions (solid majorities support higher taxes on high incomes and support reducing tax expenditures in the abstract but that doesn’t mean a majority would support say eliminating the mortgage interest deduction).

It is very clear what the public wishes to be left undone.  This public view is unacceptable to Marcus, so she asserts that Obama must find some way to give the public what it doesn’t want by working with Republicans who hate him.
6) “the president sounded distinctly pessimistic about the prospects for such a bargain and disturbingly unconcerned about failing to reach one. That, he said, would be more missed opportunity than “crisis.”” 
heh indeed.  So Marcus is disturbed by the claim that a failure to reach a grand bargain wouldnìt be a crisis. Does this mean she thinks it would be a crisis ?  She doesn’t say.  The fact that no level of conern about the risk of failint to reach one is eccessive is too obvious for there to be any need for Marcus to argue the point.

The math, by the way, does not demand it.