A Final Thought for 2005

I refuse to bow to the conventional libertarian-liberal wisdom that a vigorous defense of liberty should not include selective surveillance, indefinite detention of enemies, or aggressive interrogation of the same. Eternal vigilance is the price we must pay for life, liberty, and the pursuit of happiness.

My Favorite Posts of 2005

Academic Freedom and Freedom of Speech

A Different Perspective on the Ward Churchill Affair
Free Speech and Limited Government
What Is the Point of Academic Freedom?
How to Deal with Left-Wing Academic Blather
Here We Go Again
It's Not Anti-Intellectualism, Stupid
The Case Against Campus Speech Codes
Treasonous Speech?

Affirmative Action and Race

Affirmative Action: Two Views from the Academy
Lamm (Soft of) Lays It on the Line
Affirmative Action, One More Time
A Contrarian View of Segregation
Much Food for Thought
A Law Professor to Admire
Guilty Until Proven Innocent
After the Bell Curve
A Footnote . . .
Schelling and Segregation

The Constitution: Original Meaning, Subversion, and Remedies

Can the Town Take Your Home?
Unlimited Government
The Constitution in Exile
The Legitimacy of the Constitution
The Wrong Case for Judicial Review
Raich and the Rule of Law
The Last Straw?
An Agenda for the Supreme Court
Judge Roberts and the Defense of America
What Is the Living Constitution?
Senator Specter Abuses the Constitution
Liberals and the Rule of Law
A Challenge to My Senators
The Supreme Court: Our Last, Best Hope for a Semblance of Liberty
The FEC and Bloggers: Stay Tuned
The Legality of Teaching Intelligent Design
The Legality of Teaching Intelligent Design: Part II
Tom DeLay and James Madison
The Case of the (Happily) Missing Supreme Court Nominee(s)
Kelo, Federalism, and Libertarianism
States' Rights and Skunks
A Useful Precedent
Speaking of States' Rights and Judge McConnell
"Equal Protection" and Homosexual Marriage
Law, Liberty, and Abortion
An Answer to Judicial Supremacy?
Oh, *That* Privacy Right
Don't Just Take My Word for It
A New Constitution, Revised
The Original Meaning of the Ninth Amendment
Substantive Due Process, Liberty of Contract, and States' "Police Power"
Privacy, Autonomy, and Responsibility
Amend the Constitution or Amend the Supreme Court?
The Solomon Amendment
Great Minds and the Constitution
The Constitution and Warrantless "Eavesdropping"
NSA "Eavesdropping": The Last Word (from Me)

Economics: Principles and Issues

A Century of Progress?
Social Security Privatization and the Stock Market
Understanding Economic Growth
The Problem with Voluntary Personal Accounts
Oh, That Mythical Trust Fund!
The Real Meaning of the National Debt
Socialist Calculation and the Turing Test
Social Security: The Permanent Solution
The Population Mystery
The Bankruptcy Bill in Perspective
The Social Welfare Function
Funding the Welfare State
Apropos Bankruptcy Reform
A Mathematician's Insight
Social Security Transition Costs, in a Nutshell
Libertarian Paternalism
Traffic-Congestion Hysteria
The Economy Works, in Spite of Zany Economists
A Libertarian Paternalist's Dream World
What Economics Isn't
Talk Is Cheap
Giving Back to the Community
Computer Technology Will Replace Concrete
The Short Answer to Libertarian Paternalism
Second-Guessing, Paternalism, Parentalism, and Choice
Too "Right" for a Leftist
A Non-Paradox for Libertarians
Another Thought about Libertarian Paternalism
Judge Roberts and Women
Katrina's Aftermath: Who's to Blame?
"The Private Sector Isn't Perfect"
A Modest Proposal for Disaster Preparedness
No Mention of Opportunity Costs
Whose Incompetence Do You Trust?
Enough of Amateur Critics
Debt Hysteria, Revisited
Why Government Spending Is Inherently Inflationary
Thoughts That Liberals Should Be Thinking
More Thoughts That Liberals Should Be Thinking
The Economics of Corporate Fitness Programs
Understanding Outsourcing
Much Ado about Donning
Joe Stiglitz, Ig-Nobelist
How to End the Postal Monopoly
Red vs. Blue Charity
Taxes, Charitable Giving, and Republicanism
Where's the Outrage?
A Simple Fallacy
Ten Commandments of Economics
Professor Buchanan Makes a Slight Mistake
A Little Putdown of Politically Correct Shopping
More Commandments of Economics
Three Truths for Central Planners
Bits of Economic Wisdom
Productivity Growth and Tax Cuts
Zero-Sum Thinking

Humor, Satire, and Wry Commentary

Who Looks Like a Republican?
PC Madness
Why Not Marry Your Pet?
The Seven Faces of Blogging
DWI
An Insensitive Proposal, or Two

Infamous Thinkers: Cass Sunstein and Others of His Ilk

Killing Free Speech in Order to Save It
Slippery Sunstein
I Dare Call It Treason
Brian Leiter Is an Idiot
Nicholas Kristof Is an Idiot
Through the Looking Glass with Leiter
The Illogical Left, via Leiter
An Open Letter to Michael Moore
Like a Fish in Water
Joe Stiglitz, Ig-Nobelist
Peter Singer's Agenda

Justice

Crime and Punishment
Abortion and Crime
Alter's Ego
Saving the Innocent?
Saving the Innocent?: Part II
Guilty Until Proven Innocent
Further Erosion of the Employment Relationship
A Useful Precedent
Oh, *That* Privacy Right
More on Abortion and Crime

Libertarianism and Other Political Philosophies

Judeo-Christian Values and Liberty
Treasonous Blogging?
More about the Origin of Rights
Liberty, Democrarcy, and Voting Rights
Absolutism
More about Democracy and Liberty
Yet Another Look at Democracy
Redefining Altruism
A Footnote to My Theory of Rights
Where Conservatism and (Sensible) Libertarianism Come Together
Getting Neolibertarianism Wrong
Fundamentalist Libertarians, Anarcho-Capitalists, and Self-Defense
Conservatism, Libertarianism, and Public Morality
Another Thought about Anarchy
Where Do You Draw the Line?
The State, a Creature of Love or Fear?
Anarcho-Capitalism vs. the State
Rights and the State
Free Markets, Free People, and Utter Disgust with Government
The Essential Case for Consequentialist Libertarianism
The Principle of Actionable Harm
Three Axioms
Case Dismissed
Moral Issues
A Paradox for Libertarians
Conservatism, Libertarianism, Socialism, and Democracy
The Consequences and Causes of Abstinence
Shall We All Hang Separately?
Foxhole Rats
A Non-Paradox for Libertarians
Another Thought about Libertarian Paternalism
Judge Roberts and Women
Foxhole Rats, Redux
What Is the Living Constitution?
Religion and Liberty
A Values-Free Government?
Science, Evolution, Religion, and Liberty
Katrina's Aftermath: Who's to Blame?
"The Private Sector Isn't Perfect"
Common Ground for Conservatives and Libertarians?
Know Thine Enemy
Whose Incompetence Do You Trust?
Enough of Amateur Critics
Enough of Altruism
The Supreme Court: Our Last, Best Hope for a Semblance of Liberty
Thoughts That Liberals Should Be Thinking
More Thoughts That Liberals Should Be Thinking
Liberty or Self-Indulgence?
Barking Up the Wrong Libertarian
Kelo, Federalism, and Libertarianism
States' Rights and Skunks
The Corporation and The State
Killing Conservatism in Order to Save It
Speaking of States' Rights and Judge McConnell
Conservatism and Capitalism
Some Thoughts about Liberty
Libertarianism and Preemptive War: Part II
A False Dichotomy
The Media's Measurable Bias
Anarchy: An Empty Concept
The Pathology of Academic Leftism
Ethics and the Socialist Agenda

Movies, Music, and Musicians

My Views on Classical Music, Vindicated
But It's Not Music
On Seeing Dumbo Again
A Hollywood Circle
A Quick Note about Music
Movies
Like a Fish in Water
Rich October Skies
Christmas Movies

Nostalgia

As Time Goes By
Thoughts of Winter
Baseball Nostalgia
On a Lighter Note . . . (old comic strips)
The Next Winner of the World Series?
Ghosts of Thanksgiving Past

Politics in Practice

Great Minds Agree, More or Less
Base Closure: A Model for Entitlement Reform?
Rich Voter, Poor Voter, and Academic Liberalism
Tolerance and Poverty
The Threat of Anti-Theocracy
Illusory Progress
Class in America
An Alternative to Death and Taxes
Three More Cheers for the Great Political Divide
Judge Roberts and Women
Katrina's Aftermath: Who's to Blame?
Will Congress Buy It?
A Challenge to My U.S. Representative
A Challenge to My Senators
A Concession, of Sorts
The FEC and Bloggers: Stay Tuned
The UN and the Internet
Torture and Morality
A Little Putdown of Politically Correct Shopping
A 32-Year Error
The Media's Measurable Bias

Presidents and the Presidency

Lincoln, the Poet President
Ages of Presidents

Science, Pseudo-Science, and Economics as Science

Going Too Far with the First Amendment
Atheism, Religion, and Science
The Limits of Science
Three Perspectives on Life: A Parable
Beware of Irrational Atheism
The Hockey Stick Is Broken
Talk about Brainwaves!
The Creation Model
The Thing about Science
Religion and Personal Responsibility
Free Will: A Proof by Example?
Science in Politics, Politics in Science
Baseball and the Constants of the Universe
A Theory of Everything, Occam's Razor, and Baseball
Global Warming and Life
Evolution and Religion
Speaking of Religion...
Words of Caution for Scientific Dogmatists
Science, Evolution, Religion, and Liberty
Hurricanes and Global Warming
The Legality of Teaching Intelligent Design
Global Warming and the Liberal Agenda
Schelling and Segregation
What's Wrong with Game Theory
Science, Logic, and God
Ockham's Razor in the Age of Statistics
The Pathology of Academic Leftism

Self-Ownership (abortion, euthanasia, marriage, and other aspects of the human condition)

The Marriage Contract
Feminist Balderdash
Taking Exception
Protecting Your Civil Liberties
Libertarianism, Marriage, and the True Meaning of Family Values
The Consequences of Roe v. Wade
The Old Eugenics in a New Guise
The Left, Abortion, and Adolescence
Moral Luck
Consider the Children
Same-Sex Marriage
"Equal Protection" and Homosexual Marriage
Law, Liberty, and Abortion
Equal Time: The Sequel
Marriage and Children
Don't Just Take My Word for It
Oh, *That* Slippery Slope
Metaphor du Jour
Abortion and the Slippery Slope
More on Abortion and Crime
The Cynics Debate While Babies Die
Privacy, Autonomy, and Responsibility
Peter Singer's Agenda

War, Self-Defense, and Civil Liberties

Getting It Almost Right about Iraq
Philosophical Obtuseness
But Wouldn't Warlords Take Over?
Sorting Out the Libertarian Hawks and Doves
Now, Let's Talk About Something Else
Shall We All Hang Separately?
Foxhole Rats
Foxhole Rats, Redux
Know Thine Enemy
September 11: A Remembrance
September 11: A Postscript for "Peace Lovers"
The UN and the Internet
The Faces of Appeasement
Libertarianism and Preemptive War: Part II
Torture and Morality
Give Me Liberty or Give Me Non-Aggression?
We Have Met the Enemy . . .
Prof. Bainbridge Flunks
My View of Warlordism, Seconded
Whose Liberties Are We Fighting For?
Prof. Bainbridge and the War on Terror
The Constitution and Warrantless "Eavesdropping"
NSA "Eavesdropping": The Last Word (from Me)

Remedial Vocabulary Training

David Bernstein, writing at TCS Daily a few years ago, recounted tales from the department of politically correct speech. This one struck close to home:

One especially merit-less [hostile work environment] claim that led to a six-figure verdict involved Allen Fruge, a white Department of Energy employee based in Texas. Fruge unwittingly spawned a harassment suit when he followed up a southeast Texas training session with a bit of self-deprecating humor. He sent several of his colleagues who had attended the session with him gag certificates anointing each of them as an honorary Coon Ass -- usually spelled coonass -- a mildly derogatory slang term for a Cajun. The certificate stated that [y]ou are to sing, dance, and tell jokes and eat boudin, cracklins, gumbo, crawfish etouffe and just about anything else. The joke stemmed from the fact that southeast Texas, the training session location, has a large Cajun population, including Fruge himself.

An African American recipient of the certificate, Sherry Reid, chief of the Nuclear and Fossil Branch of the DOE in Washington, D.C., apparently missed the joke and complained to her supervisors that Fruge had called her a coon. Fruge sent Reid a formal (and humble) letter of apology for the inadvertent offense, and explained what Coon Ass actually meant. Reid nevertheless remained convinced that Coon Ass was a racial pejorative, and demanded that Fruge be fired. DOE supervisors declined to fire Fruge, but they did send him to diversity training. They also reminded Reid that the certificate had been meant as a joke, that Fruge had meant no offense, that Coon Ass was slang for Cajun, and that Fruge sent the certificates to people of various races and ethnicities, so he clearly was not targeting African Americans. Reid nevertheless sued the DOE, claiming that she had been subjected to a racial epithet that had created a hostile environment, a situation made worse by the DOEs failure to fire Fruge.

Reid's case was seemingly frivolous. The linguistics expert her attorney hired was unable to present evidence that Coon Ass meant anything but Cajun, or that the phrase had racist origins, and Reid presented no evidence that Fruge had any discriminatory intent when he sent the certificate to her. Moreover, even if Coon Ass had been a racial epithet, a single instance of being given a joke certificate, even one containing a racial epithet, by a non-supervisory colleague who works 1,200 miles away does not seem to remotely satisfy the legal requirement that harassment must be severe and pervasive for it to create hostile environment liability. Nevertheless, a federal district court allowed the case to go to trial, and the jury awarded Reid $120,000, plus another $100,000 in attorneys fees. The DOE settled the case before its appeal could be heard for a sum very close to the jury award.

In a meeting with a group of employees, in which I discussed our company's budget, I used the word "niggardly" (meaning stingy or penny-pinching). The next day a fellow VP informed me that some of the black employees of her division had been offended by my use of the word "niggardly." My reaction was to suggest that she give her employees remedial training in English vocabulary. That should have been the verdict in the Reid case.

Zero-Sum Thinking

The Skeptical Optimist seems to like this passage from Jane Jacobs's The Economy of Cities:

The primary economic conflict, I think, is between people whose interests are with already well-established economic activities, and those whose interests are with the emergence of new economic activities. This is a conflict that can never be put to rest except by economic stagnation... The only possible way to keep open the economic opportunities for new activities is for a "third force" to protect their weak and still incipient interests. Only governments can play this economic role.

But, as I found in a post by Arnold Kling, there is more to that paragraph:

And sometimes, for pitifully brief interludes, they do. But because development subverts the status quo, the status quo soon subverts governments. When development has proceeded for a bit, and has cast up strong new activities, governments come to derive their power from those already well-established interest, and not from still incipient organizations, activities and interests.

The lesson is simple: What government can "give," government can take away.

More fundamentally, the first quotation above betrays a zero-sum view of economics. There is no real "economic conflict" unless economic decisions are taken to the political arena. It is a grave mistake to say (or believe) that the "only possible way to keep open the economic opportunities for new activities is for a 'third force' to protect their weak and still incipient interests. Only governments can play this economic role." There is -- or can be, in the absence of government interference -- ample support for "new activities" and new entrants to the labor force. That support comes from entrepreneurs who bootstrap themselves, and from capitalists whose investments underwrite new technology and job creation. Government interference -- through redistribution, regulation, and research funding -- hampers the undertaking of "new activities" and elevates political judgments above consumers' actual wants and preferences.

Productivity Growth and Tax Cuts

Arnold Kling, in an article about productivity growth at TCS Daily, notes the burst of productivity growth since 2000, but . . .

What does this outstanding productivity performance say about economic policy under President Bush? Nothing. Let me repeat. Nothing. There is no political point-scoring to be made out of the news on productivity.

First of all, it is important to understand that, for the most part, productivity growth is the economy's gift to policymakers, not the other way around. It would be foolish to attribute to tax cuts that which ought to be attributed to Moore's Law.

Second, even when economic policy affects productivity growth, the effect comes with a long lag. We do not know how much of today's productivity growth reflects Clinton-era policies or Reagan-era policies or even the deregulation that began under President Carter.

Finally, one should not necessarily use these productivity figures to brag about anyone's economic policy. One could argue that our productivity growth really ought to be higher. In a column I wrote called Rationally Exuberant, I pointed out that computers are an ever larger-share of the economy. Suppose that productivity growth in the traditional economy is 1 percent per year and that productivity growth in computers is 50 percent per year. In that case, an economy that is 6 percent computers and 94 percent everything else should grow at a rate of 3.94 percent per year. If so, then perhaps from a policy perspective the question we ought to be asking is, "What are we doing wrong?"

All very sensible, but I think that Kling may be too quick to disassociate productivity growth and tax cuts. Drawing on BLS data, I constructed the following graph:


Note: Derived from annual data for nonfarm business productivity, 1948-2005, which are available via this link. The productivity gain for 2005 is based on the average for the first three quarters.

I take the gain for 1948-51 to be related to retooling after World War II. But productivity surges since then seem to have had something to do with cuts in federal income-tax rates:

• The productivity surge that peaked around 1965 followed quickly from the reduction of the top marginal rate from 91% in 1963 (where it had been since 1954), to 77% in 1964 and 70% in 1965. (Those cuts were proposed by President Kennedy in 1963.)
  

• The rebound in the 1980s followed the cut in the top rate from 70% to 50% in 1982. (The almost-certain prospect of Reagan's election in 1980 surely led many investors to anticipate tax-rate cuts even before Congress had approved them.)
  

• The end-of-century surge that began around 1996 may have been given a boost by the anticipation and realization of Bush's tax cuts.

To take the longer view:

• During the long decline in the rate of productivity growth from the early 1950s to the early 1980s, the top marginal tax rate dropped by only 24 percent (from 91% to 70%). The reduction in the top income-tax rate wasn't enough to offset the growing regulatory burden and the prospect of permanently high inflation.
  

• That changed, however, with the Republican resurgence that began with Reagan's election in 1980. There has since been a 50-percent reduction in the top marginal tax rate (from 70% to 35%), which neatly dovetails with the rebound in productivity since the early 1980s.
  

A cut in the top marginal tax rate leaves more money in the hands of those who are most likely to invest in productivity-enhancing technology, either directly or by acquiring equity in new and established companies. So, I would give tax-rate cuts at least a share of the credit for productivity growth. Specifically, the resurgence of tax-cutting Republicanism has given investors renewed confidence that their investments will pay off. That boost survived Bush Senior's modest tax hike and Clinton's somewhat less modest one. Had Bush Junior not been elected in 2000, however, I believe that the productivity surge would have been curtailed, and that we would now be in the grip of stagflation.

Ethics and the Socialist Agenda

UPDATE BELOW, 12/29/05

From a story in the L.A. Times (get an ID and password from bugmenot.com):

"This letter is for yourself alone," [reads a letter written by Upton Sinclair to his attorney on Sept. 29, 1929]. "Stick it away in your safe, and some time in the far distant future the world may know the real truth about the matter. I am here trying to make plain my own part in the story."

The story was "Boston," Sinclair's 1920s novelized condemnation of the trial and execution of Nicola Sacco and Bartolomeo Vanzetti, Italian immigrants accused of killing two men in the robbery of a Massachusetts shoe factory.

Prosecutors characterized the anarchists as ruthless killers who had used the money to bankroll antigovernment bombings and deserved to die. Sinclair thought the pair were innocent and being railroaded because of their political views.

Soon Sinclair would learn something that filled him with doubt. During his research for "Boston," Sinclair met with Fred Moore, the men's attorney, in a Denver motel room. Moore "sent me into a panic," Sinclair wrote in the typed letter that Hegness found at the auction a decade ago.

"Alone in a hotel room with Fred, I begged him to tell me the full truth," Sinclair wrote. " … He then told me that the men were guilty, and he told me in every detail how he had framed a set of alibis for them." . . .

Upton Beall Sinclair was a giant of the nation's Progressive Era, a crusading writer and socialist who championed the downtrodden and persecuted. President Theodore Roosevelt, who pushed through the nation's first food-purity laws in response to "The Jungle," coined the name for Sinclair's craft: muckraker. . . .

"I faced the most difficult ethical problem of my life at that point," [Sinclair] wrote to his attorney. "I had come to Boston with the announcement that I was going to write the truth about the case."

Other letters tucked away in the Indiana archive illuminate why one of America's most strident truth tellers kept his reservations to himself. . . .

He also worried that revealing what he had been told would cost him readers. "It is much better copy as a naïve defense of Sacco and Vanzetti because this is what all my foreign readers expect, and they are 90% of my public," he wrote to Minor.

It surpriseth me not. Sinclair was a role model for today's Left-leaning media. What other lies did Sinclair tell in order to advance the "progressive" (i.e., socialist) cause?

UPDATE: This is from a post by Eugene Volokh at The Volokh Conspiracy:

The ACLU's founding director and likely most influential official, Roger Baldwin, had long been an admitted supporter of communism as an economic system, and on balance an apologist for the Soviet Union. Though he criticized the Soviets at times, he had also praised the USSR as on balance a haven for liberty. His true break with the Soviets (which ultimately brought him around to pretty vociferous anti-Communism) came not with Stalin's ascent, not with the Ukrainian famine, not with the Terror and the show trials — he defended the Soviets even after that — but only in 1939, with the Molotov-Ribbentrop pact.

On top of that, Baldwin was on the record as having said that his commitment to civil liberties for supposed reactionaries was sheerly instrumental, just a tool for advancing the cause of communism. His struggle for free speech, he said, was just incidental to the class struggle, a useful tactic for furthering communist goals. When the working class took over, the resulting regime should be supported by any means necessary, including dictatorship. Dictatorship and suppression of civil liberties would be necessary to get to a socialist society, so such suppression is justified. That was the position of the founding director of the ACLU.

NSA "Eavesdropping": The Last Word (from Me)

I'll begin with an op-ed by David B. Rivkin and Lee A. Casey, from yesterday's NYT:

SHORTLY after the Sept. 11 attacks, President Bush ordered surveillance of international telephone communications by suspected members of Al Qaeda overseas, even if such calls also involved individuals within the United States. This program was adopted by direct presidential order and was subject to review every 45 days. Judicial warrants for this surveillance were neither sought nor obtained, although key members of Congress were evidently informed. The program's existence has now become public, and howls of outrage have ensued. But in fact, the only thing outrageous about this policy is the outrage itself.

The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions - areas where the Fourth Amendment's warrant requirements are applicable - but to identify and prevent armed attacks on American interests at home and abroad. The attempt, by Democrats and Republicans alike, to dismantle the president's core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration.

After all, even the administration's sternest critics do not deny the compelling need to collect intelligence about Al Qaeda's plans so we can thwart future attacks. So instead of challenging the program on policy grounds, most have focused on its legal propriety, specifically Mr. Bush's decision not to follow the framework established by the 1978 Foreign Intelligence Surveillance Act.

In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has "probable cause" to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent.

Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance. More to the point, the surveillance act was designed for the intricate "spy versus spy" world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy's military operations in wartime, when information must be put to immediate use.

Indeed, it is highly doubtful whether individuals involved in a conflict have any "reasonable expectation of privacy" in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself - anymore than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities.

Even if Congress had intended to restrict the president's ability to obtain intelligence in such circumstances, it could not have constitutionally done so. The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties. As the FISA court itself noted in 2002, the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

In this instance, in addition to relying on his own inherent constitutional authority, the president can also draw upon the specific Congressional authorization "to use all necessary and appropriate force" against those responsible for the Sept. 11 attacks "in order to prevent any future attacks of international terrorism against the United States." These words are sufficiently broad to encompass the gathering of intelligence about the enemy, its movements, its abilities and its plans, a core part of the use of force against Al Qaeda and its allies. The authorization does not say that the president can order the use of artillery, or air strikes, yet no one is arguing that therefore Mr. Bush is barred from doing so.

The fact that the statutory language does not specifically mention intelligence collection, or that this matter was not raised by the White House in negotiations with Congress, or even that the administration had sought even broader language, all points recently raised by former Senator Tom Daschle, is irrelevant.

Overall, this surveillance program is fully within the president's legal authority, is limited in scope (involving communications to or from overseas related to the war against Al Qaeda), and is subject to stringent presidential review. The contretemps its revelation has caused reveals much more about the chattering classes' fundamental antipathy to strong government in general, and strong executive power in particular, than it does about presidential overreaching.

The Constitution's framers did not vest absolute power in any branch of the federal government, including the courts, but they did create a strong executive and equipped the office with sufficient authority to act energetically to defend the national interest in wartime. That is what President Bush has done, and nothing more.

David B. Rivkin and Lee A. Casey are lawyers who served in the Justice Department in the Reagan and George H. W. Bush administrations.

Now, to the Executive Vesting Clause of Article II of the Constitution:

The executive Power shall be vested in a President of the United States of America.

That short sentence carries a lot of weight. Here's what Sai Prakash has to say about it in The Heritage Guide to the Constitution (pp. 179-82):

The [Executive Vesting Clause] . . . accords the President those foreign-affairs authorities not otherwise granted to Congress or shared with the Senate. . . .

The Articles of Confederation lacked an independent chief executive. Instead, the Continental Congress exercised the executive power, appointing and dominating the secretaries of the executive departments. Unfortunately, law execution under the direction of a distracted, plural executive was neighter vigorous nor swift. Congress likewise proved a poor steward of foreign affairs, with American diplomats complaining that Congress could not act with the requisite speed or secrecy. . . .

Resolving to avoid the problems plaguing state and national executives, the Constitution's makers created an energetic, responsible, and unified executive. . . . The Anti-Federalists well understood the Framers' design and criticized the unitary executive [but they lost the argument: ED] . . . .

. . . [T]he delegates [to the Constitutional Convention] spoke of the President's principal foreign-affairs role, oftentimes referring to the Senate's role in treaty-making as a limited exception to the grant of foreign-affairs authority to the President. . . .

. . . [T]raditional rules of statutory interpretation require us to take seriously the differences in phrasing across the three vesting clauses. Artilce I, Section 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States. . . .") makes clear that it vests no authorities separate from those enumerated in the rest of Article I. In contrast, Article III, Section 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish.") clearly vests the federal courts with judicial authority. The Executive Vesting Clause reads like its Article III counterpart, in sharp contrast to the Article I introductory clause. . . .

In a case touching upon foreign affairs, the judiciary has recently reaffired that the executive power grants foreign-affairs authority to the President. See American Insurance Ass'n v. Garamendi (2003). This marks a departure from prior case law, which had grounded the executive's foreign-affairs powers not in any constitutional text, but in necessity and sovereignty. See United States v. Curtiss-Wright Export Corp. (1936).

John Yoo and James C. Ho, writing in the same volume about the president's role as commander in chief (pp. 195-8), have this to say:

. . .[S]ome originalist scholars have concluded that Congress's war power is limited to its control over funding and its power to impeach executive officers. They contend that the President is constitutionally empowered to engage in hostilities with whatever resources Congress has made available to the executive. . . .

In summary, the argument for executive initiative rests on the background understanding that the vesting of "executive Power" and the "Commander in Chief" designation together constitute a substantive grant of authority to the President to conduct military operations.

It is clear that it is fully within the president's constitutional authority to order electronic surveillance of communications between persons in the U.S. and persons overseas. It is especially that such surveillance is legitimate because of its war-related purpose. The interception of communications by U.S. citizens is merely incidental to that purpose.

The Framers intended the executive to be a passive enforcer of laws passed by Congress that bear on domestic affairs (and those laws were to be strictly limited in scope). At the same time, the Framers intended the executive to defend Americans actively against enemies foreign and domestic. Those who cavil at such things as the NSA's surveillance of international communications would have it the other way around: They prefer a domestic dictator of social and economic outcomes (as in FDR and LBJ) who is, at the same time, content to leave America exposed to its enemies. Neither FDR nor LBJ were content to leave America exposed to its enemies, but their Democrat Party is not today's Democrat Party.

Related post: The Constitution and Warrantless "Eavesdropping" (with many links therein)

Where You Stand Depends on Where You Sit

The American Left might have a different attitude toward preemptive defense, surveillance, aggressive interrogation, "secret" prisons, and the Patriot Act if it took the threat seriously. That's the point I take from a post by David Bernstein at The Volokh Conspiracy:

. . . I predict that Israel will strike Iran within the next few months, with the goal of disrupting or terminating Iran's nuclear program. . . . I just returned from Israel, and I found a remarkable consensus in favor of doing whatever is necessary to stop Iran (a consensus no doubt solidified by Iranian threats to annihilate Israel, and recent vicious anti-Semitism emanating from the highest rank of the Iranian government). One leftist member of my wife's family told me that the IDF will do whatever is necessary. When I expressed concern that Iran will retaliate through Hizbullah, he replied that the Lebanese government will stop any large-scale retaliation, or the ramifications will be disastrous in and for Beirut. Other leftists of my acquaintance were equally inclined to support vigorous action against Iran, and equally confident of the government's ability to manage the situation. Given that the anti-Iranian consensus is so solid even on the Left, I would be very surprised if the Israeli government fails to follow through on its promise to prevent Iran from acquiring atomic weapons--assuming, of course, that Iran isn't stopped by other international forces.

The American Left of today resembles the Left of the 1930s. In spite of 9/11 and the bombings in Madrid and London, the Left still refuses to acknowledge the threat to America and America's well-being. Peace in our time will come simply by wishing for it.

The Bill of Rights, Updated

You probably once knew (and have since forgotten) that there were 12 amendments in Bill of Rights, as originally proposed. Here's the story, in brief:

On September 25, 1789, the First Congress of the United States . . . proposed to the state legislatures 12 amendments to the Constitution that met arguments most frequently advanced against it. The first two proposed amendments, which concerned the number of constituents for each Representative and the compensation of Congressmen, were not ratified. Articles 3 to 12, however, ratified by three-fourths of the state legislatures, constitute the first 10 amendments of the Constitution, known as the Bill of Rights.

Lo and behold, the Bill of Rights actually comprises 11 amendments -- not 10, but 11. How's that? The original Second Amendment was ratified 13 years ago:

AMENDMENT XXVII

Originally proposed Sept. 25, 1789. Ratified May 7, 1992.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

That'll help you sleep better at night, no?

Bits of Economic Wisdom

From yesterday's edition of the local rag:

Race for oil heats up
Fueled by big profits, companies expand their search.

The reference to "profits" is meant pejoratively, no doubt. But what the heck, at least they got it right: the quest for profits leads to investment, which leads to greater output, which means higher real incomes and more jobs.

Meanwhile, Maverick Philosopher observes:

In this season especially we ought to find a kind word to say about the much maligned Ebeneezer Scrooge. Here's mine: Without Scrooge, that bum Cratchit wouldn't have a job!

Precisely.

Econbrowser offers this observation:

[H]ourly traffic count data compiled by the Federal Highway Administration suggest that the August gas price increases held U.S. highway travel in August 2005 to the same level as in the corresponding month of 2004, while the September price spikes led to a significant drop in car travel. . . .

Cafe Hayek weighs in with this:

. . . People want freedom not just to do great and momentous things. Mostly, they want freedom to pursue their everyday pleasures and dreams and interests as they wish without interference from others. . . .

Ain't it great that Frank Perdue cared about the water his chickens drank? Ain't it great that he bred a new breed of chicken? Sure, he did all this to make money for himself. But so what? His means of making money inspired him to care deeply about what the typical chicken eater likes and dislikes about chicken.

Why is it that so many people admire the likes of FDR and LBJ who uttered fine phrases but whose ideas of helping people never went beyond stealing from some, showering part of the booty on others, and bureaucratically regulating everyone?

Amen to all of that.

For related posts, go here and follow the links.

Brunettes

Hedy Lamarr

Catherine Zeta-Jones

Can You Read This?

Can you read this?

Olny srmat poelpe can.

I cdnuolt blveiee taht I cluod aulaclty uesdnatnrd waht I was rdanieg. The phaonmneal pweor of the hmuan mnid, aoccdrnig to a rscheearch at Cmabrigde Uinervtisy, it deosn't mttaer in waht oredr the ltteers in a wrod are, the olny iprmoatnt tihng is taht the frist and lsat ltteer be in the rghit pclae. The rset can be a taotl mses and you can sitll raed it wouthit a porbelm. Tihs is bcuseae the huamn mnid deos not raed ervey lteter by istlef, but the wrod as a wlohe. Amzanig huh? yaeh and I awlyas tghuhot slpeling was ipmorantt!

if you can raed tihs psas it on!!

(Thanks to my brother, who forwarded this to me.)

The Pathology of Academic Leftism

Daniel B. Klein (George Mason University) and Charlotta Stern (University of Stockholm) delve deeper than the obvious fact that most academics are persons of the left. From the summary of Klein and Stern's paper, "Narrow-Tent Democrats and Fringe Others: The Policy Views of Social Science Professors" (pp. 43-5 in the pdf version):

. . . .

• The Democratic domination has increased significantly since 1970. Republicans are being eliminated. . . .

• The Democrats not only dominate, but they have a narrow tent. Whereas the Republicans usually have diversity on an issue, the Democrats very often have a party line. It is clear that there is significantly more diversity under the Republican tent.

• On the whole, the Democrats and Republicans are quite statist.

• Economists are measurably less statist, but most of them are still quite statist.

• Economists show the least consensus on policy issues. The differences between Democrats and Republicans are largest in economics, and the standard deviations are largest. . . .

• Younger professors tend to be slightly less statist than older professors.

• We find strong evidence that Republican scholars are more likely to be sorted out of academia.

• Voting D[emocrat] is significantly correlated with having Democratic parents, being employed in academia, being an anthropologist or sociologist, having statist policy views, and having a more recent degree. . . .

• Simple measures show that the libertarians are quite exceptional. The minimum of the dissimilarities between them and any other group is greater than the maximum of dissimilarity between any pair of other groups.

The “liberal versus conservative” formulation of American politics omits the libertarians from the landscape. . . . If freedom is a core political value, then there is something very wrong with a formulation that omits the ideology most aligned with that value.

Well, freedom is not a core political value for most of today's social-science academics, as Klein and Stern amply demonstrate.

The Constitution and Warrantless "Eavesdropping"

FOUR LINKS ADDED, 12/22/05
ONE LINK ADDED, 12/23/05
ONE LINK ADDED, 12/24/05
TWO LINKS ADDED, 12/28/05

. . . no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Amendment IV, Constitution of the United States)

Apropos the flap about NSA intercepts of international phone calls, there's this from Prof. William J. Stuntz of Harvard Law:

. . . When the Fourth Amendment was written, the sole remedy for an illegal search or seizure was a lawsuit for money damages. Government officials used warrants as a defense against such lawsuits. Today a warrant seems the police officer's foe -- one more hoop to jump through -- but at the time of the Founding it was the constable's friend, a legal defense against any subsequent claim. Thus it was perfectly reasonable to specify limits on warrants (probable cause, particular description of the places to be search and the things to be seized) but never to require their use. (From the "Warrant Clause" article in The Heritage Guide to the Constitution, pp. 326-9.)

Thus, by the original meaning of the Constitution, all warrantless searches may be permissible. Judges and legislators have so changed the meaning of the Constitution that, instead, these views are prevalent: government cannot conduct searches without a warrant; warrantless searches are "invasions of privacy." Moreover, there is -- especially among "civil libertarians," anti-American Americans, and right-wing loonies -- a preference for an undifferentiated right to "privacy" (which is not guaranteed by the Constitution) over "the common defence" (to provide for which the Constitution was adopted). Antidotes to such views may be found here:

President had legal authority to OK taps (Chicago Tribune)
Our domestic intelligence crisis (Richard A. Posner)
Several posts by Tom Smith of The Right Coast (start here and scroll up)
Eavesdropping Ins and Outs (Mark R. Levin, writing at National Review Online)
The FISA Act And The Definition Of 'US Persons' (Ed Morrissey of Captain's Quarters)
A Colloquy with the Times (John Hinderaker of Power Line)
September 10 America (editorial at National Review Online)
A Patriot Acts (Ben Stein, writing at The American Spectator)
More on the NSA Wiretaps (Dale Franks of QandO)
The President's War Power Includes Surveillance (John Eastman, writing at The Remedy)
Warrantless Intelligence Gathering, Redux (UPDATED) (Jeff Goldstein, writing at Protein Wisdom)
FISA Court Obstructionism Since 9/11 (Ed Morrissey of Captain's Quarters)
FISA vs. the Constitution (Robert F. Turner, writing at OpinionJournal)

Related posts:

War, Self-Defense, and Civil Liberties (a collection of posts)
Prof. Bainbridge Flunks (11/15/05)
Prof. Bainbridge and the War on Terror (12/18/05)

Ockham's Razor in the Age of Statistics

In philosophy, ontology . . . is the most fundamental branch of metaphysics. It studies being or existence as well as the basic categories thereof—trying to find out what entities and what types of entities exist. Ontology has strong implications for the conceptions of reality. (From Wikipedia's article about "Ontology.")

[O]ntological parsimony. . . is summed up in the famous slogan known as “Ockham's Razor,” often expressed as “Don't multiply entities beyond necessity.” Although the sentiment is certainly Ockham's, that particular formulation is nowhere to be found in Ockham's texts. Moreover, as usually stated, it is a sentiment that virtually all philosophers, medieval or otherwise, would accept; no one wants a needlessly bloated ontology. The question, of course, is which entities are needed and which are not. (From an article about "William of Ockam" at Stanford Encyclopedia of Philosophy.)

The question of which entities are needed and which are not is today an empirical one. If phenomenon "A" can be explained by the observed operation of factors X and Y, then factor Z should be not be introduced to the explanation unless doing so leads to an unambiguously better explanation of A. Determining whether or not the explanation is unambiguously better requires a robust test of the predictive powers of the two competing theories: the one with X and Y as predictors; the other with X, Y, and Z as predictors.

Ockham's Razor, then, is a prudent, pre-statistical rule for choosing the preferred explanation of a phenomenon.

Anarchy: An Empty Concept

Anarchy is "a political theory holding all forms of governmental authority to be unnecessary and undesirable and advocating a society based on voluntary cooperation and free association of individuals and groups." (From Merriam-Webster, via Wikiquote.)

. . . The word "anarchy," as anarchists use it, does not imply chaos or anomie, but rather a harmonious rulerless society. However, ideas about how an anarchist society might work vary considerably, especially with respect to economics. Also, there is disagreement about how a free society might be brought about. (From a Wikipedia article about "Anarchism.")

The state is "the group of people comprising the government. . . ." (From TheFreeDictionary)

Politics is the process by which decisions are made within groups. Although the term is generally applied to behavior within governments, politics is also observed in all human group interactions, including corporate, academic, and religious institutions. (From the Wikipedia article on "Politics.")

A group of persons consists of a voluntary association as long as each member of the group is free to leave the group. The fact that leaving the group might result in a hardship for the leaver (e.g., relocation to an area with less fertile ground) does not negate the group's voluntary character. Those who choose to stay do so because membership in the group best serves their interests. Acceptance of annoyances (e.g., noisy neighbors) in return for benefits (e.g., division of labor) is simply an inescapable fact of life.

A group of persons may be said to live in anarchy only if all of the rules that affect everyone in the group (e.g., where to live, how best to defend the group against predators) are made by unanimous, informed consent, which might be tacit. It follows, then, that a group might -- by unanimous, informed consent -- give a subset of its members the authority to make such decisions. The group's members might delegate such authority, willingly and unanimously, because each member believes it to be in his or her best interest to do so. (The reasons for that belief might vary, but they probably would include the notion of comparative advantage; that is, those who are not in the governing subset would have time to pursue those activities at which they are most productive.) With a governing subset -- or government -- the group would no longer live in anarchy, even if the group remains harmonious and membership in it remains voluntary.

The government becomes illegitimate only when it exceeds its grant of authority and resists efforts to curb those excesses or to redefine the grant of authority. The passage of time, during which there are changes in the group's membership, does not deligitimate the government as long as the group's new members voluntarily assent to governance. Voluntary assent, as discussed above, may consist simply in choosing to remain a member of the group.

Now, ask yourself how likely it is that a group larger than, say, a nuclear family or a band of hunter-gatherers might choose to go without a government. Self-interest dictates that even relatively small groups will choose -- for reasons of economy, if nothing else -- to place certain decisions in the hands of a government.

All talk of anarchy as a viable option to limited government is nothing more than talk. Empy talk, at that.

Clinton Derangement Syndrome

A recent exchange with a reader reminds me of a post from July of last year, in which I said that the "virulence of the anti-Bush crowd (horde, really) reminds me of the virulence of the anti-Clintonistas." I must say that the anti-Clintonistas had -- and have -- good cause; for example:

1. Clinton won in 1992 because Ross Perot (or pee-rot, as Texans say it) siphoned votes from G.H.W. Bush. (That's roughly parallel to what happened in 2000, except that the Nader vote was minuscule compared with the Perot vote.) But that's only the beginning.

2. Clinton made political hay from the tragedy in Oklahoma City by equating Timothy McVeigh's violent, anti-government act (a protest of the tragedy in Waco) with conservatives' legitimate call for less intrusive government.

3. Clinton piled on later in the same year by blaming the (partial) government shutdown on Republicans, though it was Clinton who vetoed the spending bill that caused the shutdown.

4. Clinton lied under oath in a case that was brought under a law that he signed. He escaped removal from office for doing so only because Democrat senators refused to acknowledge the facts of the case.

5. Clinton, as ex-president, lately has been critical of a war that he threatened to wage when he was president. Typical two-faced Bill.

That's enough for now. Clinton derangement syndrome is beginning to obscure my true, forgiving nature.

The Media's Measurable Bias

REVISED, 10:30 AM

The University of California touts "A Measure of Media Bias" (Quarterly Journal of Economics, Vol. 120, No. 4), by Tim Groseclose of UCLA and Jeffrey Milyo of the University of Missouri:

Abstract: We measure media bias by estimating ideological scores for several major media outlets. To compute this, we count the times that a particular media outlet cites various think tanks and policy groups, then compare this with the times that members of Congress cite the same groups. Our results show a strong liberal bias: all of the news outlets we examine, except Fox News’ Special Report and the Washington Times, received scores to the left of the average member of Congress. Consistent with claims made by conservative critics, CBS Evening News and the New York Times received scores far to the left of center. The most centrist media outlets were PBS NewsHour, CNN’s Newsnight, and ABC’s Good Morning America; among print outlets, USAToday was closest to the center. All of our findings refer strictly to news content; that is, we exclude editorials, letters, and the like. . . .

Our results show a strong liberal bias. All of the news outlets except Fox News’ Special Report and the Washington Times received a score to the left of the average member of Congress. And a few outlets, including the New York Times and CBS Evening News, were closer to the average Democrat in Congress than the center. These findings refer strictly to the news stories of the outlets. That is, we omitted editorials, book reviews, and letters to the editor from our sample. . . .

To compute our measure, we count the times that a media outlet cites various think tanks and other policy groups. We compare this with the times that members of Congress cite the same think tanks in their speeches on the floor of the House and Senate. By comparing the citation patterns we can construct an ADA score for each media outlet. . . .

Over this period [1995-99] the mean score of the Senate (after including phantom D.C. senators and weighting by state population) varied between 49.28 and 50.87. The mean of these means was 49.94. The similar figure for the House was 50.18. After rounding, we use the midpoint of these numbers, 50.1, as our estimate of the adjusted ADA score of the centrist United States voter. . . .

I would consider an ADA score below 40 to be unbiased, that is, anchored in a correct understanding of how the world works and ought to work. I base that criterion on the ADA scores of legislators who cite think tanks. Consider, from Table I of the Groseclose-Milyo paper, the following average ADA scores for legislators who cite nonsectarian conservative-libertarian think tanks: American Conservative Union 32.0; American Enterprise Institute, 36.6; Americans for Tax Reform, 18.7; Cato Institute 36.3; Citizens Against Government Waste, 36.3; Heritage Foundation, 20.0; Hoover Institution, 36.5; Hudson Institute, 25.3; National Federation of American Businesses, 26.8; National Taxpayers Union, 34.3.

The following table highlights ADA scores for selected legislators and gives the average ADA scores for Democrats and Republicans (in boldface). The average scores indicate that Congress's polarization is as real as the media's leftward bias.

TABLE II
Average Adjusted ADA Scores of Legislators

Legislator - Average score
Maxine Waters (D-CA) - 99.6
Ted Kennedy (D-MA) - 88.8
John Kerry (D-MA) - 87.6
average Democrat - 84.3
Tom Daschle (D-SD) - 80.9
Joe Lieberman (D-CT) - 74.2
Constance Morella (R-MD) - 68.2
Ernest Hollings (D-SC) - 63.7
John Breaux (D-LA) - 59.5
Christopher Shays (R-CT) - 54.6
Arlen Specter (R-PA) - 51.3
James Leach (R-IA) - 50.3
Howell Heflin (D-AL) - 49.7
Tom Campbell (R-CA) - 48.6
Sam Nunn (D-GA) - 48.0
Dave McCurdy (D-OK) - 46.9
Olympia Snowe (R-ME) - 43.0
Susan Collins (R-ME) - 39.3
Charlie Stenholm (D-TX) - 36.1
Rick Lazio (R-NY) - 35.8
Tom Ridge (R-PA) - 26.7
Nathan Deal (D-GA) - 21.5
Joe Scarborough (R-FL) - 17.7
average Republican - 16.1
John McCain (R-AZ) - 12.7
Bill Frist (R-TN) - 10.3
Tom Delay (R-TX) - 4.7

Now for the bottom line. Recall that the following scores are based on news content -- not editorials, book reviews, or letters the editor -- thus the seemingly anomalous results for the Drudge Report and Wall Street Journal.

TABLE IV
Rankings Based on Distance from Center

Rank - Media outlet - Estimated ADA score
1 - Newshour with Jim Lehrer - 55.8
2 - CNN NewsNight with Aaron Brown - 56.0
3 - ABC Good Morning America - 56.1
4 - Drudge Report - 60.4
5 - Fox News' Special Report with Brit Hume - 39.7
6 - ABC World News Tonight - 61.0
7 - NBC Nightly News - 61.6
8 - USA Today - 63.4
9 - NBC Today Show - 64.0
10 - Washington Times - 35.4
11 - Time Magazine - 65.4
12 - U.S. News and World Report - 65.8
13 - NPR Morning Edition - 66.3
14 - Newsweek - 66.3
15 - CBS Early Show - 66.6
16 - Washington Post - 66.6
17 - LA Times - 70.0
18 - CBS Evening News - 73.7
19 - New York Times - 73.7
20 - Wall Street Journal - 85.1

Only the Washington Times and Fox News, with ADA scores below 40, meet my criterion for objectivity. The rest are biased to the left by varying degrees, but none of them comes close to objectivity. That is not news, of course. As Groseclose and Milyo note,

[s]urvey research has shown that an almost overwhelming fraction of journalists are liberal. For instance, Elaine Povich [1996] reports that only seven percent of all Washington correspondents voted for George H.W. Bush in 1992, compared to 37 percent of the American public. Lichter, Rothman and Lichter, [1986] and Weaver and Wilhoit [1996] report similar findings for earlier elections. More recently, the New York Times reported that only eight percent of Washington correspondents thought George W. Bush would be a better president than John Kerry. This compares to 51 percent of all American voters. David Brooks notes that for every journalist who contributed to George W. Bush’s campaign, another 93 contributed to Kerry’s campaign.

And it shows up in their reportage. So much for "objective journalism."