ObamaCare Ruling I

Judge Roberts always tries to be as narrow as possible and avoid big decisions, but if he were forced to rule on the Commerce Clause alone, he faced a big either/or: Make a big move in practice (strike down a major piece of legislation) on the one hand, or affirm a semi-innovative constitutional doctrine that he doesn’t believe in and finds dangerous, on the other.  So he found an out in the tax argument: Congress has power to lay taxes to provide for the general welfare (not definable by the Court), and really, the mandate is just a tax on not being insured.  He tortured the definition of tax rather than the definition of commerce- even there, he made clear that he was going with a tie-goes-to-the-government, not really affirming much of anything.

– People often say the Court encourages public acceptance of expansions of government power by ruling in favor of them- reassuring the public of their Constitutionality.  If this is so, Roberts insured that his opinion did as little as possible to lend legitimacy to ObamaCare.  He went with a technicality, and an obviously forced argument at that, rejecting the sweeping, rhetorical affirmation of Justice Ginsburg.

People apparently assume that if a law were unconstitutional, the Courts would strike it down.  Given that Courts are habitually deferential to the government, and have their own legitimacy threatened if they go too much against the political branches that are allegedly responsive to the popular will, this assumption is a bit unfortunate, but it allows supporters of state expansion to use Court decisions as an offensive weapon.  Hopefully Roberts forestalled this, and the power of the dissent, along with the government’s oral argument defeats, will reenergize opposition.  Moreover, by affirming that the mandate is only legal as a tax, he may encourage consumers to engage in cost-benefit analysis rather than feeling an obligation to society to buy insurance.

– That said, Roberts’ tax argument is bullshit.  Not only for the reasons stated in the dissent, but because rhetoric is the only real distinction between taxes and fines. 

If Congress can just call any mandate a tax, it can force us to do anything, and there wasn’t much point in enumerating powers.  Roberts tries to find some outs, such as saying the mandate won’t impose a prohibitive cost, but these are all arbitrary rather than definitional.

The real difference is in intention- does Congress intend to stigmatize something as illegal, or merely discourage it and raise revenue.  Which goal backers present to the public will dictate the nature of the debate over the issue.  For the legislation (in the actual words of the law) to present itself as a mandate to the public, and the Constitutional defense of the legislation to declare it operationally a tax, is contrary to our system of representative government.  It was actually anti-republican judicial activism for Roberts to rule on the grounds that he did.  The dissent hinted at this when it mentioned that only Congress, as an institution connected to the people, has the power to tax.

More to come…


Further Thoughts on Redistribution

It seems to me that people who believe government should redistribute wealth do not believe that someone with the opportunity to make more money should have to do so, in order to use their money to help others, only that once they have made the money, they must give some to others.

One possible explanation is that they see our obligations to one another as limited- of course you don’t have to take that promotion for the good of society, but if you take it for your own good, society had better get some of the action.

Yet redistribution is usually justified on the grounds that two people with the same intentions, the same willingness to sacrifice, but different opportunities, can end up with different incomes- it is the opportunity, not the willingness to sacrifice, that you are paying for.  Yet the debt kicks in only on someone who is willing to make the sacrifice.  Again, we’re talking here only about the situation where someone has an opportunity to earn more money, but for whatever reason prefers a lower-paying job.

For a previous post of mine on redistribution, see here.

Evidence, Abortion, Infanticide, and Other Matters

Charles Murray wrote the following in The State of White America:


Data can bear on policy issues, but many of our opinions about policy are grounded on premises about the nature of human life and human society that are beyond the reach of data. Try to think of any new data that would change your position on abortion, the death penalty, legalization of marijuana, same-sex marriage or the inheritance tax. If you cannot, you are not necessarily being unreasonable.”

Liberal-tarian Will Wilkinson* finds this “exceedingly odd,” and can “easily imagine what evidence would cause me to change my position on any of these issues.”  If that is the case, though, I think he is the one who is exceedingly unusual.  He runs through the list and comes up with data that would convince him to change his mind on each of the issues.

On abortion, for instance, he is pro-choice:

I don’t think embryos or fetuses are persons, and I don’t think it’s wrong to kill them.  I also don’t think infants are persons, but I do think laws that prohibit infanticide are wise.  Birth is a metaphysically arbitrary line, but it’s a supremely salient socio-psychological one. A general abhorrence of the taking of human life is something any healthy culture will inculcate in its members. It’s easier to cultivate the appropriate moral sentiments within a society that has adopted the convention of conferring robust moral rights on infants upon birth than it would be in a society that had adopted the convention of conferring the same rights on children only after they’ve reached some significant developmental milestone, such as the onset of intelligible speech. The latter society, I suspect, would tend to be more generally cruel and less humane. This is just an empirical hunch, though I feel fairly confident about it. But I could be wrong. And I could be wrong in the other direction as well. If it were shown that societies which ban abortion, or which ban abortion beyond a certain point, exceed societies which don’t ban abortion in cultivating a “culture of life”, which pays off in terms of greater general humanity and diminished cruelty, I would seriously weigh this moral benefit against the moral cost of reducing women’s control over their bodies.

Perhaps the sophisticated case for abortion recognizes that birth is an arbitrary line (metaphysically or not), but the popular case relies on the idea that birth is a morally significant line, while pro-lifers regard it as utterly arbitrary.  In other words, for the great majority of people, the debate is about whether or not embryos or fetuses are persons, and it is not obvious how this view is subject to evidence.  Very few pro-choicers are willing to say “yes, abortion implies infanticide.  So what?  Infanticide is good, too.”

As for Wilkinson himself, his starting point is a metaphysical claim not subject to evidence- any possible evidence must be evaluated in light of his metaphysics.  It is easy to see how someone could hold a view impervious to evidence.  For example, Wilkinson himself might decide that a woman’s control of her body is more important than inculcating moral sentiments.  Or, on the other hand, a pro-lifer could argue that people have metaphysical significance from conception, or don’t require metaphysical significance to justify their existence.

Wilkinson’s evidence-based approach to abortion and infanticide also relies on the fact that other people non-evidence based “moral sentiments.”  Obviously, for example, most people’s views on infanticide aren’t subject to the test of evidence; the question for Wilkinson is how best to inculcate such unreasoning prejudices in a population otherwise too stupid to deduce that killing Will Wilkinson is wrong.

If everyone were as rational as him, we could all commit all the infanticide we wanted.  Presumably only on our own kids- although killing someone else’s baby that can’t talk yet doesn’t seem like a case of violating a woman’s control of her own body, so who knows.  (Would the father have to consent to the infanticide- is his fatherhood metaphysically significant?  Surely it wouldn’t matter whether they were married or not?  So much has still to be revealed by the sweet light of Wilkinson’s reason.)


Before continuing with Wilkinson’s discussion of evidence that change his mind, let me digress on his broader position on abortion: a fetus is not a person, birth has no metaphysical significance, therefore a baby is not a person.  There is a physical human body, which undergoes physical, not metaphysical, changes.  But at some point, perhaps at the time it can talk, a baby grows into a person, who should not be killed by anyone, not even its parents.  Instead of making physical grunts, it makes intelligible speech!

Some babies never talk, of course.  They can go.  Some might be killed just as they were about to say something…too late.  As for other infants, talking, thinking, observing, all the rest, are physical processes that were already there- where’s the metaphysics?  The baby has merely refined his ability to use them- the physical brain has continued the process of refining itself, as it will for many years to come. 


To return to the subject of evidence, the rest of Wilk’s list is open to similar objections.  Wilk opposes the death penalty but would reconsider if it were proven to be a deterrent.  There are probably some death penalty opponents that disagree, but many think taking of life outside of self-defense is wrong, while many supporters see it as a necessary expression of revulsion against certain crimes, which takes precedence over utilitarian considerations.  It is possible for a person’s thinking, on this and the other issues, to be such that evidence can change his mind, but there’s nothing inherently unreasonable about the opposite approach.

Similarly, Wilk favors legalizing marijuana, but would oppose it if it were shown that, among other things, “its users predictably harm others and/or egregiously harm themselves,” but at least some libertarians would object to the latter reason on moral grounds.  (I suppose an opponent of legalization would be unreasonable to maintain his stance in light of evidence proving pot harmless, but much of the moral debate is over whether you can rightly coerce people to do something for their own good.)  On same-sex marriage, Wilk would oppose it if presented with evidence that it “would precipitate the unraveling of the traditional family and subsequently the stability of society and the ruin of us all,” but it is unclear from this that there is any practical way to prove this to his satisfaction.  Many conservatives do today resort to an empirical, sociological case against gay marriage, with conservative moral views about sex and marriage no longer holding sway, but it is unlikely even strong evidence would prove as powerful as the perceived moral significance of love and equality.

* Liberaltarian is Wilkinson’s self-description.  To him it means basically a liberal who gets economics.  To me it is a libertarian who harbors cultural resentments against conservatives.

Leo Strauss

One Kenneht McIntyre, writing for The American Conservative, summarizes a critical book on Leo Strauss, a political philosopher noted for his defense of natural law against historicism, and for his controversial methods of interpreting past philosophers’ writings. 


McIntyre accuses Straussians of identifying America with Lockean ideology, and of being apologists for America, or this ideal of America.  He criticizes Strauss’s approach to interpretation:

First, Strauss asserts that understanding the work of a philosopher involves the reproduction of the author’s intention. Unfortunately, and as Gottfried argues, Strauss never explains what he means by “intention,” nor does he explain how one might reproduce an author’s intention. The second doctrine, however, renders the first irrelevant. Strauss argues that authentic philosophers hide their teaching from the casual reader and only initiates into the true philosophic art can decode the esoteric meaning of such texts. For Strauss and the Straussians, this is not an historical claim but a theoretical one, and it yields an interpretative strategy both naïve and paranoid.

There’s some pretty dubious seeming stuff in Straussian interpretation.  On the other hand, it seems pretty clear that philosophers sometimes write insincerely.


Hume, for instance, wrote a dialogue on religion between three characters.  In this dialogue, Philo cleverly presents himself as the ally of common sense and faith of Demea as against the theology of Clementhes, going on about the need to humble the arrogance of human reason, the presumption of thinking we can comprehend God.  He goes on to basically make meaningless the idea that God exists- something mysterious got the universe started, but we know nothing about it and cannot attribute to it human characteristics. 

At the end of his dialogue, Hume (who makes himself a fourth man listening in) declares, “upon a serious review of the whole, I cannot but think, that Philo’s principles are more probable than Demea’s; but that those of Cleanthes approach still nearer to the truth.”  Yet he gave the strongest arguments to Philo, and he had Philo approach the whole argument in a rather Straussian manner.

For another example, Des Cartes made a weak argument for God’s existence that was probably a parody of Anselm’s argument.  He was in the process of seeing what all he could prove by pure deduction; God would have been conspicuous by his absence.  It’s possible Des Cartes just made a bad argument, but it’s also possible that he knew what he was doing.

Similarly, Locke rejected innate ideas in his epistemology but relied on them in his morality.  Some people think Locke just wasn’t a very good philosopher.  My understanding is Strauss thinks some of his “mistakes” were intentional- that he actually goes just as deep as his critics, as Allan Bloom argues.  This doesn’t make Strauss and Bloom apologists for Locke, only that they take him seriously in a way that others do not. 

Once modern philosophy became dominant, it no longer had to justify itself, and people forgot its deeper foundations.  This means that critics are often attacking a shallow version of modern philosophy, but it also means supporters are complacent, not themselves having to overcome entrenched pre-modern thought.


McIntyre in the above-cited passage criticizes Strauss for basing his interpretive strategy on “theoretical” rather than historical grounds, and later declares “it is inaccurate to call Strauss or his epigones bad historians because they are not historians at all.”  Yet it isn’t clear to me why history is so all-important as a guide to interpretation, when there is enough in the text itself to justify an interpretation.  Hume’s Cleanthes himself took a bit of a Straussian reading of Philo: “in Cleanthes’s features, I could distinguish an air of finesse; as if he perceived some raillery or artificial malice in the reasonings of Philo.”  Demea finds out the truth too late: “Hold! hold! cried Demea: whither does your imagination hurry you? I joined in alliance with you, in order to prove the incomprehensible nature of the Divine Being, and refute the principles of Cleanthes, who would measure every thing by human rule and standard. But I now find you running into all the topics of the greatest libertines and infidels, and betraying that holy cause which you seemingly espoused. Are you secretly, then, a more dangerous enemy than Cleanthes himself?”


MacIntyre again: “Instead, the lesson that Strauss took from the fall of the Weimar government and the rise of Hitler and National Socialism was that liberalism was not capable of withstanding the onslaught of historicism, positivism, and moral relativism without solid quasi-religious and quasi-mythical foundations—and that he would be the one to provide those.  Gottfried is certainly correct in arguing that for Strauss and his acolytes it is always September 1938 and we are always in Munich.”

My understanding is that Strauss was alarmed by the embrace of NAZIism by Heidegger, the greatest philosopher of his time, and traced this embrace to Heidegger’s relativistic philosophy.  Strauss seemed to believe that Enlightenment liberalism contained the philosophical seeds of its own destruction through “the onslaught of historicism, positivism and moral relativism”- something a true Locke apologist would not think. 

To say that, politically, circumstances happen to differ from 1938, that liberalism shows a historic ability to withstand positivism and historicism, is one thing, but does currently dominant philosophy provide grounding for liberalism?  How is it more dogmatic to ask this question than to not ask it?  For MacIntyre, grounding freedom in philosophy rather than history, in eternal human realities rather than particular circumstances, is necessarily “quasi-religious and quasi-mythical.”  It isn’t clear to me that this is what Strauss was doing; he wanted room to ask questions about man’s place in eternity, but didn’t necessarily come to many definitive conclusions.  And history itself is notoriously often mythologized.

It is one thing to be a historian tracing the development of our institutions to various historical causes, quite another to make history itself the basis for morality.  Speaking of which.…


 MacIntyre writes,

Strauss was also influenced by the intellectual battles being waged in Germany at the turn of the century. The Methodenstreit that was taking place amongst economists was also occurring amongst historians and philosophers, and it resulted in a series of conceptual dichotomies that would appear throughout Strauss’s later writings. His trio of bêtes noires (positivism, relativism, and historicism) was at the heart of the conflicts about methodology in Germany, and the outcome of these debates set the terms of critique for Strauss’s youth and beyond.

The Methodenstreit is of course the famous battle pitting methodological individualism and deductive approach of the Austrian economists against the German Historical school’s reliance on history and rejection of universal principles of economics.  The Austrians said we should reason from first principles about human action, the Germans favored empirical studies of whole economies. 

The Austrians basically crushed the Germans, as far as the economic mainstream is concerned, but they only reign supreme within the realm of economics as far as I know.  Economics studies incentives and probably just lends itself to methodological individualism, yet those interested in different questions will take up psychology or sociology, ignoring economists and being ignored by them in turn.

The Austrians also take methodological individualism further than the mainstream is willing to go.  According to Wikipedia .

“Austrians reject empirical statistical methods, natural experiments, and constructed experiments as tools applicable to economics, arguing that while it is appropriate in the natural sciences where factors can be isolated in laboratory conditions, the actions of humans are too complex for such a treatment because humans are not passive and non-adaptive subjects.  Austrian economist Jeffrey Herbener has argued that ‘there are no statistical characteristics to human behavior.  It is purposeful rather than random, and changeable rather than constant.’”

Methodology here becomes inseparable from moral thought.  A methodological individualist sees the human being as the irreducible unit of action.  He therefore has little concern about how his cells, organs and impulses act on that human, whom he assumes has a coherent will, or about how society operates on the individual, since he does not believe society acts or makes decisions.*

Economics, particularly Austrian economics, presents its subjectivism as a way to be value-free and scientific, but they also seem to see individuals’ preferences as a source of value, or as being worthy of respect in their own right.  Economists like utility, but reject interpersonal utility comparisons- utility is enough of a subjective experience that we cannot say who would benefit more from something, only where the thing ranks in among an individual’s preferences as revealed by action.  The optimal state for many economists is what they call “Pareto optimality,” in which nobody can be made better off without another person being made worse off.  This is very much an individualistic criterion; nobody is sacrificed to another person, or to the good of “society.”  

This, I think, is why Bloom basically argued that economics is what happens when you base a human science on the premises of Locke and Smith- universal human nature involving desire for material gain and moral sentiments, with the individual as the morally significant unit.  Anthropology and sociology lean toward Rousseau and historicism, psychology toward his existentialist streak. 

MacIntyre himself appears to want to respect our traditions and institutions while denying the importance of the expressed philosophy behind them, in a Burkean fashion.  Woodrow Wilson’s progressivism took a similar approach.  While MacIntyre greatly exaggerates Strauss’s own concern for U.S. domestic politics, Straussians have done worthwhile work diagnosing and criticizing Wilson’s Burkeanism. 

MacIntyre’s preoccupation with the paleoconservative-neoconservative battles over minor government positions, control of conservative institutions, America’s imperial role, and neoconservatives’ “suck[ing] all the air out of [the American conservative movement] and insur[ing] that there is no one to the right of them,” peppers the essay, but the Burkian/Straussian debate is much more interesting.


* There are exceptions to economists’ ignoring other disciplines, of course.  Through behavioral economics, economics is attempting to conquer psychology or vice versa, and Gary Becker won an economics Nobel for his attempts to conquer sociology.

Obama’s War on Terror

The New York Times recently ran a story on BHO’s conduct of the terror war.  He was never committed to his liberal rhetoric* on the subject, the piece argues, and granted himself flexibility.  Among other things, his administration uses a fraudulent method of counting civilian deaths.  The article emphasizes Obama’s personal role- he decides who to kill, and he and his team deliberate in secret on what is and is not legal and moral, setting their own limits.

The piece relied heavily on leaks, leading naturally to speculation that the administration planted the story to portray Obama as solid anti-terror fighter.  Charles Krauthammer:

The piece relied heavily on leaks, naturally, which has led to speculation that the piece was a plant to paint Obama as tough on national security.  Great detail on how Obama personally runs the assassination campaign. On-the-record quotes from the highest officials. This was no leak. This was a White House press release.

He’s right so far, but he goes on to claim that this approach is necessary because “in crisis after recent crisis, Obama has looked particularly weak,” and goes on to list a series of right-wing grievances that almost nobody cares about.  For Krauthammer, any Democratic foreign policy message must necessarily be defensive, because everybody knows they are perceived as weak in that area.  The Iraq War and the bin Laden strike have had no impact on Krauthammer’s assumptions in this regard.**
I think the leaks are really designed to emphasize the role of Barack Obama, personally, in keeping us safe, as opposed to the role of an impersonal, permanent bureaucracy.
Recall how pro-Bush propaganda emphasized that he, personally, kept us safe from another terrorist attack, through personal qualities such as toughness and moral clarity.  Obama is now leaking that he has done so through his legendary cool resolve, and his deliberative mind which he deploys in the service of concocting moral and legal justifications less transparent than those of Bush/Cheney/John Yoo.
* One interesting feature of Obama’s rhetoric is that it sometimes seemed designed to shock professionally outraged conservatives- “see, this isn’t 2003 anymore; I can get away with this.”  He pointedly refused to wear an American flag lapel pin, calling this a “substitute for true patriotism.”  He declared he was uncomfortable using the word “victory” to talk about our military goals, particularly in Afghanistan.  Fox News has devoted tens of thousands of hours to his administration’s decision to stop using the phrase “War on Terror.”  Yet he continues to fight the War on Terror.

Obama was really pursuing flexibility, declaring independence from the Bush/Cheney rhetoric rather than tying himself down to a liberal position.  If you say we are committed to victory, you have to fight until you win a victory.  If you beat the drums of a Long, Global War on Terror, you are asking the public for an emotional commitment, and you leave your government little room for steps that seem to signal less than all-out commitment, in service of lesser goals such as international opinion; plus, you’re in trouble once that commitment starts to die down, as it had by the time of his election.

** Krauthammer notes that Obama got criticized for his ads exploiting the bin Laden killing, but Republicans and other critics appealed to the very same idea (don’t politicize foreign policy) that Democrats appealed to in the Bush years, which is why the sides traded hypocrisy charges.  This criticism doesn’t mean the ad was ineffective, any more than criticism of Bush’s “politicizing” of foreign policy meant it was ineffective.



Maurine Dowd :

The president had lofty dreams of playing the great convener and conciliator. But at a fund-raiser in Minneapolis, he admitted he’s just another combatant in a capital full of Hatfields and McCoys. No compromises, just nihilism.

If he wins the election, “the fever may break,” he said. “My hope, my expectation, is that after the election, now that it turns out that the goal of beating Obama doesn’t make much sense because I’m not running again, that we can start getting some cooperation again.”

Dowd’s concept of politics, like that of many NY-Washington centrist types, relies heavily on the idea that you need to compromise to get things done, and that people compromise fundamentally in order to be nice and cooperative, and that the terms of reasonable compromise are set by NY-Washington centrist types, and our politics are disfunctional if they don’t follow this method.  The center-left narrative is that government has failed in recent years because contemporary Republicans are uniquely nihilistic and would not allow anything to get done, or that both Parties are hopelessly unwilling to make “reasonable” compromises.  Yet if the sides agreed about what is “reasonable,” they would not need to compromise.  Such vulgar things as partisanship and public opinion continue to be part of our politics, and things continue to get done, for better and worse; in fact, the Pelosi-Obama tandem got far more done than most American power-brokers.

They passed a stimulus and health care reform; here Obama did not meaningfully compromise, because his Party held all the power, and he didn’t need to.  He would have liked Republican votes in order to give him cover.  NY-Washington centrist types would also have liked this, preferring as they do that the Parties get together and agree on one policy so that the public has no choice but to accept it.*  Yet to a compromise that would have gotten GOP votes, when they did not actually need them, would have been for Obama and Pelosi selling out their base.  Similarly, voting for the stimulus/health care bills that emerged would have been a betrayal for a GOP officeholder.

When Republicans got more power, Pelosi-Obama were still able to pass agenda items that were intrinsically popular enough, such as financial regulation, DADT repeal, and the START treaty.  The Republicans could not or would not just “deny Obama victories,” or make legislation unpopular simply by opposing it (just as they couldn’t make the bank bailouts popular just by supporting them).  Obama’s and Congress’s approval ratings went up in tandem during the lame duck session when substantial amounts of legislation passed.  Partisan politics may be a zero-sum game, but the two Parties’ approval ratings can go up and down together, and it isn’t clear why the “nihilist” technique of making them both go down at the same time should always work better than the do-gooder compromising technique that can make them both go up together.

What Parties compromise on and what they obstruct will depend partly on what position is popular with the public, and partly on what their own convictions or base will and won’t allow.

* In the case of the stimulus, the bill was popular at the time, but Pelosi-Obama presumably wanted GOP buy-in so the opposition couldn’t criticize him in case it failed, or was perceived to fail.  Obama therefore did what he could to pressure the GOP to buy in, raising the costs to them in case the policy did in fact work; but he and Pelosi were not willing to water down the stimulus enough to actually get Republican support, or else such support was unachievable, so they only compromised enough to get the moderate wing of their own Party on board.