Wednesday, October 24, 2012
Democracy is at work in America
The decisions it produces are only as good as the quality of the average voter -- and now that the voter base is on average very poorly educated the decision-making must suffer in quality. With tens of millions of voters illiterate or barely literate, America is headed in the direction of Brazil
Elections supposedly prevent convulsions, serving as safety valves that vent social pressures and enable course corrections. November's election will either be a prelude to a convulsion or the beginning of a turn away from one.
America's public-policy dysfunction exists not because democracy isn't working but because it is. Both parties are sensitive market mechanisms, measuring more than shaping voters' preferences. The electoral system is a seismograph recording every tremor of public appetite. Today, the differences that divide the public are exceeded by the contradictions within the public's mind.
America's bold premise is the possibility of dignified self-government – people making reasonable choices about restrained appetites.
But three decades ago, Harvard political scientist Samuel Huntington postulated that America suffers regularly recurring political convulsions because the gap between the premise and reality becomes too wide to ignore.
Now Michael Greve, a constitutional scholar at the American Enterprise Institute, argues: "We like to tell ourselves that all our constitutional stories must have a happy ending." The founders' foremost problem, Greve says, was debt. To establish the nation's credibility, they needed to replace the Articles of Confederation with the Constitution. "We," Greve says, "merely have to return to it, if we can." He wonders whether we can.
The official national debt of $16 trillion (growing $4 billion a day), plus what the government owes its various trust funds, is more than 100 percent of GDP. Ninety percent is where economic anemia seems to deepen. States' debts are about $3 trillion and their unfunded pension liabilities probably are another $4 trillion. "Debts of this magnitude," Greve says, "will not be paid."
Barack Obama's risible solution is to add 4.6 points to the tax rate for less than 3 percent of Americans. Some conservatives have the audacity of hope – expecting 5 percent economic growth (the post-1945 average: 2.9 percent) and planning to continue financing the debt by borrowing at negative interest rates. Of our long slide into financial decrepitude, Greve says: "The rate of deterioration does not correlate in any obvious way with political control over the presidency and Congress."
The housing debacle was not the result of "a spontaneous outbreak of private irresponsibility." Public institutions and policies provided occasions and incentives for the exercise of private vices. Washington pays up to 80 percent of state Medicaid expenses, so states' citizens demand more Medicaid services. Although the elderly consider Social Security and Medicare benefits earned, Greve says: "Most retirees could not have earned their expected payment streams if they had worked two or three jobs."
"Our politics," says Greve, "aims at inspiration on the cheap." We should reduce government's complicity in illusions by, for example, sending retirees "a statement showing the estimated present value of their old-age benefits; their lifetime earnings and contributions; and the earnings and contributions that it would have taken to 'earn' those benefits. We might then ask them who precisely should earn and remit the missing millions and in what sense it would be 'unfair' to modify the empty promises."
Rash promises were made, Greve says, "in an era of prosperity, when and because we thought we could afford them." Now they "are far too entrenched to be dislodged in the course of ordinary politics." Even granting Mitt Romney's embrace of something like his running mate's reforms, this year's politics are terribly ordinary. Although consensus is supposedly elusive, it actually is the problem. "Our operative consensus," says Greve, "is to have a big transfer state, and not pay for it."
Democracy is representative government, which is the problem. Democracy represents the public's preferences, which are mutable, but also represents human nature, which is constant. People flinch from confronting difficult problems until driven to by necessity's lash. The Claremont Institute's William Voegeli, commenting on Greve and the dubious postulate of continuous 5 percent growth, says: "There's good reason to fear that if the economy builds a 5 percent levee the polity will just come up with a 6 percent flood. We humans adroitly use scant and equivocal evidence to convince ourselves that the most congenial interpretation of events is also the most plausible and durable."
Writing in 1830, Thomas Babington Macaulay asked, "On what principle is it that, when we see nothing but improvement behind us, we are to expect nothing but deterioration before us?" Greve's gloomy answer is: Because we actually see behind us protracted abandonment of the founders' flinty realism about the need to limit government because of the limitations of the people.
Obama Makes False Claim About Supreme Court Decision; Leftist "Fact-Checkers" Parrot It
Reading a Supreme Court decision is so hard! If you are a fact-checker, it’s much easier just to let President Obama, a critic of a Supreme Court decision, caricature the decision and then parrot the baseless caricature as if it were fact.
The Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., said employees who want to bring a pay discrimination lawsuit under Title VII (the federal antidiscrimination law with the shortest deadline) generally have to file a complaint with the federal Equal Employment Opportunity Commission (EEOC) within 180 days. But it specifically left open the possibility they could sue later on – even if they failed to file a timely EEOC complaint — if they did not discover the discrimination until later. The case involved Lilly Ledbetter, who waited more than five years after learning of a pay disparity between her and her male co-workers to file an EEOC complaint.
The White House falsely claimed “The Court ruled that employees subject to pay discrimination like Lilly Ledbetter must file a claim within 180 days of the employer’s original decision to pay them less . . . even if the employee did not discover the discriminatory reduction in pay until much later (check out Justice Alito’s arguments in the Court’s opinion).” In yesterday’s debate, Obama falsely claimed the Supreme Court said Ledbetter could not sue even if she had no way of discovering the discriminatory pay disparity. He said “the Supreme Court said that she couldn’t bring suit because she should have found about it earlier, whereas she had no way of finding out about it.”
These claims are utterly false. The Supreme Court specifically left open the possibility employees who learn of the discrimination later can sue under the “discovery rule” exception to the 180-day deadline. In footnote 10 of its opinion, the Court wrote, “We have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.”
Thus, since Ledbetter didn’t even claim in her lawsuit she hadn’t discovered the pay discrimination in time to sue, relaxing the deadline for her would have done her no good. In addition, if she truly had lacked knowledge of the pay disparity as a result of being deceived by her employer, she could have had the deadline extended under the Supreme Court’s doctrines of equitable tolling and estoppel, which are longstanding exceptions to the deadline that are a bit narrower than the discovery rule. But she didn’t allege either of these exceptions applied in her case.
In reality, Ledbetter knew of the pay disparity she later claimed was discriminatory for over five years before filing a legal complaint over it, as she admitted in her deposition in her lawsuit. But later, Ledbetter falsely claimed to the contrary in a speech to the Democratic National Convention.
It’s not true, as she claimed to the Convention, that she didn’t learn of it until “two decades” after she began working at the company. She had worked for the company since 1979. She learned of the pay disparity by 1992, as excerpts from her deposition, filed in the Supreme Court as part of the Joint Appendix, make clear. In response to the question: “So you knew in 1992 that you were being paid less than your peers?” she answered simply, “Yes, sir.” (See Joint Appendix at pg. 233; page 123 of Ledbetter’s deposition.) But she did not file a legal complaint over it until July 1998, shortly before her retirement in November 1998. See Ledbetter v. Goodyear, 550 U.S. 618, 621 (2007).
Politifact parroted Obama’s false claim in an Oct. 16 commentary entitled “Obama: Mitt Romney refused to say whether he supports Lilly Ledbetter Act.” It wrote:
In 2007, the Supreme Court had ruled in Ledbetter vs. Goodyear Tire & Rubber Co. that the 180-day statute of limitations started from the day an employer made the decision to discriminate — making it impossible for employees who learned of such discrimination later to get relief, such as back pay.
This is just wrong, and all PolitiFact had to do to debunk this claim was read the Supreme Court’s decision (which its commentary claims was one of the “sources” for its “fact check”), or various law review articles about it. Or just read my prior emails to them, which I sent to a legion of fact-checkers in September 2012, anticipating Obama would make this false claim, having made similar false claims in the past. This morning, I sent more emails — to each Politifact staffer listed as contributors to the Oct. 16 commentary. In response, I received an email from the principal author this morning, stating:
“Thanks for your email. I’ll look into it and talk about it with my editors. What I wrote was consistent with how we’ve described the case in the past.”
As of now, the error I identified has not been fixed. I suspect it won’t be, until it is too late to correct it in the print version of any newspaper that cites Politifact. So the error will live on in every news database as if it were fact.
How Leftist law has hijacked the U.S. constitution
What would those "dead white males" know? The constitution has clear provisions for its own amendment and updating but Leftist lawyers have repeatedly managed to slide around that by contemptuous "interpretation" of it -- JR
Each September, the assumptions and methodologies of law-school curricula are handed down as if from Sinai to tens of thousands of 1Ls. They are readily accepted by the students, who are under enormous pressure to assimilate and adjust to them quickly. Students are told nothing of progressive philosophy’s origins or ultimate purposes, and notice little of its hostility to the Founders’ Constitution. Such lack of awareness is evident even among many law-school faculty members, who act as Moses without self-knowledge, sensible only of the first commandment.
For those with the passion to rule — which describes most bright twentysomethings — such a sensibility is very useful. They see themselves doing God’s work, or something like it, for they do at least know that God is banished from the public square. In his recent book Schools for Misrule, Walter Olson recounts how the dean of one of the nation’s most prestigious law schools routinely greeted incoming students by welcoming them to “the republic of conscience.”
Of course, it’s a conscience to be imposed by the cognoscenti, through the mechanism of the courts, on the unwashed masses who still conceive of politics as something to be done the old-fashioned way, i.e., consensually. What the students quickly imbibe in the law schools is uniquely well suited to breaking the constraints imposed by self-government and the Constitution.
The modern law school came into existence largely as an adjunct of progressive ideology. It was to be the training ground for progressives dedicated to overcoming early-20th-century judicial resistance to the political assault on our Constitution of limited and enumerated powers. As with the modern discipline of political science, the modern law school was built around core progressive assumptions: a philosophy of history, a faith in the power of scientific intelligence to smooth the movement of history, and a deep suspicion of existing institutional forms.
By the 1920s, leading legal scholars were confident they had discovered a new science of jurisprudence — one that would emphasize evolutionary growth rather than black-letter law or theories of law rooted in the permanent nature of human beings. This melding of social Darwinism and philosophical pragmatism animated the growing legal professoriate to direct its attention to processes, functions, and change more than principles, rules, and continuity. The new approach to the study of law had many manifestations. It defined the aspirations of important legal movements such as sociological jurisprudence and legal realism, which sought to ensure, respectively, that legal interpretation would be informed by social data, and that legal outcomes would be determined by perceived social benefits rather than the strict construction of law. The old-fashioned common lawyer was out, to be replaced by a progressive social engineer with legal training.
By the 1920s, a plethora of disciplines were deemed relevant to law in ways they had not been before. The insights, real or alleged, of all the social sciences were increasingly brought to bear on the legal curriculum. As economic, sociological, psychological, or political circumstances changed, so must the law, and it inevitably did. Curricular revisions and new faculty followed. Casebooks appeared with titles such as “Cases and Materials on X” rather than simply “Cases on X.” For example, Yale Law School in the 1930s added significant social-science material to its library holdings, hired more social scientists for its teaching faculty, and created a joint institute for the study of law and psychology. The sheer number and specialized nature of course offerings and supporting materials increased markedly at the leading realist institutions, driven by an understanding of law as inseparable from social problems — particularly those addressed by the administrative state. Through the 1930s and 1940s, courses in public-law fields, including administrative law, burgeoned, and they continued to grow throughout the postwar period.
These courses promoted a view of law as the problem-solving tool of the new age rather than a set of constraints on human conduct. Law tended to be seen as a means of social control and of dealing with corporate groups, which were to have their interests harmonized by elite mechanism rather than spontaneous activities in a large republic.
Nowhere was this clearer than in the development of the field of labor law during the 1920s. The move from “constitutional” law to “public” law in the law schools followed, paralleling the progressive mind’s shift from constitutionalism to the administrative state and the new emphasis on regulatory and entitlement politics in the regime as a whole.
Whatever the theoretical roots or disciplinary orientations of the realists, all saw the Constitution as a fundamentally flawed document and decried any efforts to interpret it on its own terms. Statutory law, and even more the Constitution, was seen as an epiphenomenon of deep class biases and social forces unrelated to principles of right or justice. At the same time, it was assumed the best and brightest could extract themselves from the influence of these social phenomena that swept others along like tiny corks on a great river. Given a clear-eyed view of what law “really” is, along with sympathetic legislatures, the right kinds of sociological arguments, and, eventually, a less conservative judiciary, they could put themselves in the vanguard of history. Healthy evolution always lay just over the horizon for most of the realists, as it had for the earlier advocates of sociological jurisprudence.
The relationship between legal ideas and legal practice was central. In 1921, while a judge on the New York Court of Appeals, Benjamin Cardozo was arguing publicly and theoretically, in his Storrs Lectures at Yale, for the centrality of sociological jurisprudence to the law. As Justice Oliver Wendell Holmes reduced law to questions of the management of social forces according to personal and class beliefs, academics worked out theories of the idiosyncratic role of judges. While Louis Brandeis concentrated on the role of social needs in deciding cases, Dean Roscoe Pound at Harvard formulated the same ideas in theory, writing that “the sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law” and a movement away from “assumed first principles.”
By the time the New Deal hit Washington, there was a new sense of professionalism among law teachers, marked by a specialized knowledge of the new science of jurisprudence. The creation of the Association of American Law Schools at the dawn of the 20th century punctuated the importance of professionalism. Even today, the AALS website reminds students that lawyers once entered legal practice without — gasp — having gone to law school. The AALS did much to elevate the “educated” lawyer over the “trained” practitioner of yore, a key difference being the former’s knowledge of the latest trends in historicist jurisprudence.
As legal education through the 20th century transformed itself from a system of rules to be learned into principles or predictions to be gleaned from cases, and then into a vehicle for social change, American lawyers saw themselves as the facilitators of change and the formulators of public policy. Policymaking is always and everywhere a normative endeavor. It was a small step from a concern with policy to a concern with “values,” which quickly made their way into the law-school curriculum, particularly at elite institutions. This occurred largely in what is seen as the “post-realist” period commencing in the 1960s, a period better understood as an inevitable outgrowth of realism, or perhaps a realism that is simply clearer about its purposes.
Through this period and beyond, the case method persisted, but its function has come to be understood in an even more radicalized light. The inductive search for principles has fully given way to the search for strategies — rooted in various social-science disciplines — for winning policy outcomes. The “values” that guide the study and application of law come from outside the law. Law and constitutionalism itself are not to be revered for their reflection of eternal truths or their embodiment of the insights of the wise, but for what policy victories they can deliver to a variety of hungry constituencies.
Furthermore, while the early progressives concentrated on expanding the administrative state and its list of clients for the purposes of economic engineering, today’s progressives are far more enchanted by larger-scale social engineering best implemented through the prerogatives of the judicial branch. Progressive change is to be effected in courts of what now can only loosely be termed “law.”
And so it is that the chief justice of the United States [Roberts], schooled in the best “conservative” principles of today’s legally educated elites, could in good conscience declare constitutional a federal tax [Obamacare mandate] unlinked to any enumerated power that the Founders would have recognized. Careful reflection on the text and tradition of the Founders’ Constitution in its establishment of the national taxing power “to pay the Debts and provide for the common Defence and general Welfare of the United States” might have led him to decide otherwise.
For more blog postings from me, see TONGUE-TIED, EDUCATION WATCH INTERNATIONAL, GREENIE WATCH, POLITICAL CORRECTNESS WATCH, FOOD & HEALTH SKEPTIC, AUSTRALIAN POLITICS, IMMIGRATION WATCH INTERNATIONAL, EYE ON BRITAIN and Paralipomena
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The Big Lie of the late 20th century was that Nazism was Rightist. It was in fact typical of the Leftism of its day. It was only to the Right of Stalin's Communism. The very word "Nazi" is a German abbreviation for "National Socialist" (Nationalsozialist) and the full name of Hitler's political party (translated) was "The National Socialist German Workers' Party" (In German: Nationalsozialistische Deutsche Arbeiterpartei)
Posted by JR at 1:33 AM