Like 'Em Or Hate 'Em....

Whatever your personal position on cases like Heller and Roe, today George Will does a pretty good job of explaining how those decisions lead to cases that require judges to substitute their policy preferences for actual interpretation and application of the Constitution. In terms of Roe,

Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.

In terms of Heller,

Now the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound individual right. What trigger locks or other safety requirements impermissibly burden the exercise of this right? What registration requirements, background checks, waiting periods for purchasers, ballistic identifications? What restrictions on ammunition? On places where guns may be purchased or carried? On the kinds of people (e.g., those with records of domestic violence) who may own guns? On the number of gun purchases in a month?

Where do I disagree with Will? While he, as a pundit, has fully embraced the notion that conservatives favor judicial restraint, the reality is quite different. Heller is not an exceptional ruling following a history of conservative deference to constitutional language and state and federal legislatures, it's a continuation of an activist history masquerading behind claims of "originalism" or "textualism". For the most part, political partisans either don't pay attention to the other side's judicial excesses, or simply don't care about their own. Will's column suggests that he falls into the former category, but now that he is aware of the issue it's up to him to demonstrate how much he actually cares about judicial activism that advances his own political agenda.

It has been said that the most important word in the Supreme Court's lexicon is not "liberty" or "equality" or even "justice," it is "five." But whereas in baseball a tie goes to the runner, in controversies about the constitutionality of legislation, a tie between serious arguments should, Wilkinson says, tilt judicial judgment to the democratic side - the legislature.

Except if the subject is campaign finance reform? Seriously, when it's your own ox that's being gored, it's really difficult to take a step back and say, "We should defer to the legislature," as opposed to, "Those judges are gutting the Constitution and stripping this right of any meaning." Moreover, whatever the right, there's a point where that will be true. Then what? Do we simply check to see whether or not the legislation under review includes "findings" that nominally support the legislation? Legislatures figured that game out a long time ago.

Will closes,

So, regarding judging, too, conservatism is a house divided. And as Lincoln said (sort of), a house divided against itself is really interesting.

And Will raises interesting issues that, unfortunately, aren't likely to be resolved at any time during the next two centuries of constitutional litigation.

Asking All The Wrong Questions

George Will criticizes John McCain today, for daring to ask people if they are better off now than they were four years ago. Will is correct that "McCain recasts Reagan's question as an assertion in order to pander to the public's dyspepsia and distance himself from George Bush." But from his perch in the upper echelons of wealth, Will is somewhat out of touch with the realities facing voters.

If you are young, since 2004 you might have found romance, had children, learned to fly-fish and become a Tampa Bay Rays fan. In which case you emphatically are better off, even if since 2004 there has been only a 0.6 percent increase - yes, increase - in the median value of single-family homes.

Oh, wow. A 0.6 percent increase over four years. How can people not be relishing that 0.6% gain Will describes loss in home values after adjustment for inflation.

But where Will really misses the boat is in his failure to acknowledge certain trends among homeowners. Homeowners have been actively encouraged to view their increases in home equity as the equivalent of "savings". The have been assured that home prices "only go up". They have been offered easy credit, "secured" by their homes, resulting in their refinancing or using home equity loans to "withdraw" equity in order to support their standard of living. So you may well have a family that had a $170,000 loan on a $200,000 home back in 2004, that now owes $250,000 on the same home. Ask that family, "How can you think you're not better off, if your home is now worth $201,200," and they're likely to see you as the out-of-touch rich guy that you are. And that's assuming that their financial situation has been otherwise stable - a big assumption.

Oh, there's something to Will's larger point, that the question focuses on economics and not on "delight, serenity and gratitude". But when you're economic circumstances are in a downward slide, it's hard to find that "delight, serenity and gratitude ". You can spare me the McCain-style clichés about how money doesn't buy happiness, or that some rich people are unhappy. People who worry about job stability, access to health care, being able to make the car and mortgage payments, the cost of back-to-school supplies and clothes? They can legitimately answer McCain's inquiry, "No, we're not better off," even if they recently learned to fly-fish.

George Will to America's Children: Eat Lead!

Not in a "Wild West" sense, but because toy safety isn't a job for the federal government.

In his Denver speech, Barack Obama derided the "discredited Republican philosophy" that he caricatured in four words - "you're on your own." Then he promised to "keep . . . our toys safe."¹ Among the four candidates for national office, perhaps only Palin might give a Madisonian answer - one cognizant of the idea that the federal government's powers are limited because they are enumerated - if asked to identify any provision of the Constitution, other than the First Amendment, that imposes meaningful limits on congressional or executive authority to act.

The biggest threat from imported toys of late? Lead paint. (Not that lead paint is the only think keeping the CPSC busy.)

Well, at least Will doesn't object to clean drinking water. (Yet?)
________
Obama said,

Ours is a promise that says government cannot solve all our problems, but what it should do is that which we cannot do for ourselves - protect us from harm and provide every child a decent education; keep our water clean and our toys safe; invest in new schools and new roads and new science and technology.

Authoritarianism in Schools

Remember Joe Clark? The principal who made a lot of friends and enemies, patrolling his school with a baseball bat, locking the fire doors to keep out drug dealers, and expelling students who didn't meet his standards, whether or not they were disruptive or breaking school rules? George Will probably skipped that story (and the movie it inspired), but he loves the concept. Describing a boy who attends the American Indian Public Charter School, and dreams of becoming a doctor, Will describes,

Ben Chavis, AIPCS's benevolent dictator, told the boy that although he was doing well at school, he was not up to the rigors of AIPCS, which is decorated with photographs of the many students it has sent to the Johns Hopkins Center for Talented Youth. So the boy asked, what must I do?

Will doesn't fill us in on the answer to that question, perhaps because he deems it irrelevant. Yay authoritarianism!

AIPCS is one of six highly prescriptive schools Whitman studied, where "noncognitive skills" - responsible behaviors such as self-discipline and cooperativeness - are part of the cultural capital the curriculum delivers.... Students are taught to sit properly - no slumping - and keep their eyes on the teacher. No makeup, no jewelry, no electronic devices.

School uniforms, strict behavior codes, nothing particularly innovative there. Except as a charter school, it appears that the principal gets a couple of big advantages over public schools. He can serve a student body where the parents want that type of structured environment for their children and, as Will's anecdote indicates, he can kick out kids who don't toe the line, whatever their academic performance.

Will doesn't know anything about education, but he's essentially an authoritarian personality so it's no small surprise that this appeals to him. Except this is George Will - I suspect he was meekly following all of the expected behavior norms even without an authoritarian hand (at school) threatening him with dire consequences (or even modest consequences) for misbehavior. He has probably never understood why other kids couldn't toe the line, and appears to believe that authoritarianism is a universal cure-all for what ails our nation's inner city schools.

Yes, some kids will do well in an authoritarian environment, and some who might slack off or misbehave will learn to toe the line. The problem? Not all kids flourish in an authoritarian environment, and many well-behaved, smart kids will do better in an environment with less rigidity. And, as Principal Joe Clark discovered, public schools can't arbitrarily boot out any kids that can't adhere to the authoritarian model, or don't make good grades despite their cooperation.

After gushing over authoritarianism as a cure-all for public education, Will whines,

Unfortunately, powerful factions fiercely oppose the flourishing. Among them are education schools with their romantic progressivism -- teachers should be mere "enablers" of group learning; self-esteem is a prerequisite for accomplishment, not a consequence thereof.

What school did Will attend where self-esteem resulted from academic performance? Yes, there's some reinforcement there, but a lot of the kids I remember who had the highest self-esteem were mostly indifferent to academics.

Sure, Will can point to a single anecdote and allude to others he does not describe, as supporting an authoritarian model for schools, but has given no apparent thought to the reasons why this can work with a self-selecting population of students yet not carry over to the general population. And like the "self esteem" crowd, he would impose his model on everybody because his gut tells him that it would work, not because he has any empirical evidence to back up that idea.

Will illustrates how he'll grasp and endorse any idea, no matter how untested and perhaps even counter-productive, if it "feels right" to him:

AIPCS's 200 pupils take just 20 minutes for lunch and are with the same teacher in the same classroom all day. Rotating would consume at least 10 minutes, seven times a day. Seventy minutes a day in AIPCS's extra-long 196-day school year would be a lot of lost instruction.

As if children are wind-up toys who can work without interruption or break for the entire school day, save for the 20 minutes allowed for them to gulp down their lunches. As if there's an inherent superiority in avoiding a break between classes (how many schools give kids ten minutes as opposed to, say, five?) and having all subjects taught by the same teachers as opposed to subject matter specialists. As if there aren't other ways to switch off teachers - such as by having the kids stay in the room while teachers move between classrooms. It's a gimmick, but Will is so entranced with it that he doesn't realize that he's every bit as reactionary as the "high self esteemers" he deplores.

Public education can be improved with empirically tested models and data. Knee-jerk advocacy of untested models? It gets in the way of progress.

A Bit Late?

George Will advises the McCain campaign,

Furthermore, his populism subverts his strength - the perception that although he is an acquired taste, he is serious, hence incapable of self-celebratory froth such as "we are the ones we've been waiting for."

Right. He's completely incapable of self-adulatory froth - an entirely serious "American President Americans have been waiting for."

Americans suffer political astigmatism. They squint at Washington, seeing an incompetent cornucopia that is too big but that should expand to give them more blessings. Their voting behavior, however, generally conforms to their professed suspicion about unchecked power in Washington: In 31 election cycles since the restoration of normal politics after the Second World War, 19 produced divided government -- the executive and legislative branches not controlled by the same party.

Nineteen out of thirty-one... That's a whopping 61% of the time. And, you know, it couldn't be explained by something other than a desire to have the presidency and Congress controlled by different parties, such as an occasional expression of disapproval for the party holding the White House by voting for the other party in a midterm election. That's clearly not what happened in 1994 or 2006.

Will wants McCain to promise to veto theoretical legislation:

Two Democratic priorities in the next Congress would placate two factions that hold the party's leash -- organized labor and the far left. One is abolition of workers' right to secret ballots in unionization elections. The other is restoration of the "fairness doctrine" in order to kill talk radio, on which liberals cannot compete.

Yeah.... those are sure to be hot button issues with the electorate. After all, they are exceedingly important to George Will, and isn't that pretty much the same thing?

He should ask Obama to join him in a town meeting on lessons from Russia's aggression.

And he could expect to be told, "We already have a schedule for debates. Let's talk then." Really, Will intends this to take the form of grandstanding - with McCain trumpeting that after the candidates agreed to a debate schedule Obama wouldn't agree to toss out the agreement. I might worry that Obama would take him up on the offer, and draw a lot of attention to McCain's presumptuous behavior in relation to the conflict, as well as his close ties to lobbyists for Georgia. But what am I thinking - is George Will ever wrong.

McCain must convince voters that Obama's complacent confidence in the taming abilities of soft power is the effect of liberalism's scary sentimentalism about a dangerous thing, human nature, and a fiction, "the community of nations."

I would encourage McCain to make a campaign ad presenting that message, word-for-word. Perhaps Will will do the voiceover?

Until Russian tanks rolled into Georgia, it seemed that not even the Democratic Party could lose this election. But it might if McCain can make it turn on the question of who is ornery enough to give Putin a convincing, deterring telephone call at 3 a.m.

Right. Because any world leader who gives G.W. a big "F.U." is going to be cowed on the same issue by a 3 AM call from a septuagenerian who gets confused on foreign policy issues when he's awake.

History suggests that George Will detests McCain. "With friends like these...."

The Neverending ANWR Oil Song And Dance

George Will, in a rather typical display of poor thinking, argues against the dastardly environmental concerns that keep our nation from fully exploiting and depleting all of our oil and natural gas reserves.

Rising in the Senate on May 13, Chuck Schumer, the New York Democrat, explained: "I rise to discuss rising energy prices." The president was heading to Saudi Arabia to seek an increase in its oil production, and Schumer's gorge was rising.

Saudi Arabia, he said, "holds the key to reducing gasoline prices at home in the short term." Therefore arms sales to that kingdom should be blocked unless it "increases its oil production by one million barrels per day," which would cause the price of gasoline to fall "50 cents a gallon almost immediately."

Can a senator, with so many things on his mind, know so precisely how the price of gasoline would respond to that increase in the oil supply?

Will instructs us,

One million barrels is what might today be flowing from ANWR if in 1995 President Bill Clinton had not vetoed legislation to permit drilling there.

Er, yeah, "might". Now I'll give Will as much credit as he's due for not tossing out a certain figure, particularly on the heels of his attack on Schumer for asserting a projection as fact. But that isn't much, given that the rest of Will's column treats his own projection as a certainty.

Will proceed to attack Schumer, and everybody else who has opposed ANWR oil drilling, as being "complicit in taking $10 away from every American who buys 20 gallons of gasoline". This, of course, is raw fiction. Will pretends that world oil production - on the whole, and by individual nations, can only rise. Will pretends that a nation like Saudi Arabia won't limit its own output, well below capacity, in order to protect its own reserves and maximize its profits - yet if Saudi Arabia weren't doing exactly that, Will's contentions would be even more absurd.

Let's take a moment to consider reality:

President Bush used a private visit to King Abdullah’s ranch here on Friday to make another appeal for an increase in oil production that might give American consumers some relief at the gasoline pump. The Saudis responded by announcing they had decided a week ago on a modest increase of 300,000 barrels a day.

That's Saudi Arabia snapping its fingers and adding to the marketplace 30% of the daily oil production Will optimistically proposes might be drawn from ANWR.

The White House said the increase would not be enough to lower gasoline prices, which are nearing $4 a gallon, and industry analysts called it mostly symbolic.

Meanwhile, what else is happening?

The International Energy Agency, which advises industrial countries, recently reduced its estimates for oil demand growth this year, with consumption expected to fall in the United States, Europe and Japan. But demand should still rise by one million barrels a day thanks to growth in China and the Middle East.

Let's refer back to Will:

One million barrels is what might today be flowing from ANWR if in 1995 President Bill Clinton had not vetoed legislation to permit drilling there.

Bill Clinton? Oh yeah - the guy who was in the White House before ol' whats-his-name, who apparently bears no responsibility in Will's mind for failing to open ANWR to drilling despite having Republican majority in both houses for six years. Will seems intent on flushing the entire G.W. Bush Administration and its record down the memory hole.

The projections for increased world demand for oil highlight another fallacy of Will's argument. He forgets that oil is priced according to a global marketplace. Demand for oil has not stood still since 1995 - it has increased substantially. Saudi oil production has not stood still since 1995 - it has increased by over a million gallons per day. But in some years it decreased - Will deludes himself if he believes that Saudi output would be unaffected by new production in ANWR. (And if he doesn't believe that, but is arguing it anyway....) It's these realiities that lead to projections such as,

If Congress were to open up the Arctic National Wildlife Refuge to drilling, crude oil prices would probably drop by an average of only 75 cents a barrel, according to Department of Energy projections issued Thursday.

The report, which was requested in December by Sen. Ted Stevens, R-Alaska, found that oil production in the refuge "is not projected to have a large impact on world oil prices."

Will complains,

America says to foreign producers: We prefer not to pump our oil, so please pump more of yours, thereby lowering its value, for our benefit.

You would think that a self-professed conservative like Will would embrace that approach for as long as it works. But Will appears to prefer a model whereby we pump every drop of our own oil, thereby lowering its value, while allowing Saudi Arabia to hold larger reserves.

At this point, we can abandon all pretense that Will was trying to construct an honest argument. The one source he cites gives him away:

In his book "Gusher of Lies: The Dangerous Delusions of 'Energy Independence,' " Robert Bryce says Brazil's energy success has little to do with its much-discussed ethanol production and much to do with its increased oil production, the vast majority of which comes from off Brazil's shore. Investor's Business Daily reports that Brazil, "which recently made a major oil discovery almost in sight of Rio's beaches," has leased most of the world's deep-sea drilling rigs.

Bryce has been singing the same song for years. To some degree he has a point: We cannot sustain our present way of life without importing energy, other energy sources are decades away from being viable alternatives, and we shouldn't disadvantage ourselves by focusing on domestic energy production rather than seeking the cheapest energy sources in a global commodities market.

Bryce is not as myopic as the title to his book makes him sound, and advocates energy research (particularly new battery technologies for storing large quantities of electricity), solar and nuclear energy. But that part doesn't interest Will - who knows if he really even read past the title - who appears to embrace it as an endorsement of unbridled energy consumption. But Will's perception is once again lacking - the thesis of his column is premised upon the very concept his sole source decries as a myth.

Environmental Lies And The Lying Liars....

George Will writes,

Regarding McCain's "central facts," the U.N.'s World Meteorological Organization, which helped establish the Intergovernmental Panel on Climate Change - co-winner, with Al Gore, of the Nobel Peace Prize - says global temperatures have not risen in a decade.

Their report, full version here, summary here (PDF), shows the following (click the image for a larger view):
The blue lines represent projections of climate change based on natural forces. The red lines represent models based upon natural and anthropogenic forces (forces resulting from human activities). The black lines represent actual measurements.

So what part of the IPCC's actual findings are consistent with Will's claim that there has been no global temperature increase in a decade?

The First Thing We Do, Let's Kill All The Teachers

George Will offers a ramble on education reform today, which seems to boil down to a belief that schools will be better if we have fewer teachers who earn less pay and enjoy fewer job protections. I guess Will sees teachers as being like capital gains taxes - the more you cut, the better off you are (as long as you don't pay attention to, say, reality).

Housing Handouts

Pretty much everybody and his brother has published an editorial describing one stimulus or another for the housing market. A minority prefer to leave things alone. George Will, on the other hand, takes a middle road, apparently clinging to his belief that a handout is only a handout when it is made to an individual and not a corporation.

Oh? The idea that protracted golden years of idleness are a universal right is a delusion of recent vintage. Deranged by the entitlement mentality fostered by a metastasizing welfare state, Americans now have such low pain thresholds that suffering is defined as a slight delay in beginning a subsidized retirement often lasting one-third of the retiree's adult lifetime.

You know, for a guy who looks like he has never engaged in physical labor in his entire lifetime, Will should give it a try. He's only 67 years old - let's see how well he does when he's pushing something heavier than a pen, for something closer to minimum wage than his sinecures at The Washington Post and Newsweek.

Subprime mortgages are a small minority of mortgages, and only a minority of subprime borrowers are not making their payments. Casting this minority of a minority as victims of "predatory" lending fits the liberal narrative that most Americans are victims of this or that sinister elite or impersonal force and are not competent to cope with life's complexities without government supervision.

This represents Will at his best - half right. I agree with him that most of the people who are in trouble made poor individual choices. But that does not mean that there were no predatory practices by lenders, and it certainly doesn't justify Will's willful blindness toward the massive federal handouts being given to lenders who were much better positioned than any individual to recognize the folly of these loans - yet made them time, and time, and time again. As is his wont, Will also has to wrap his point in a silly smear against "liberals". (But perhaps he's now among those who think of John McCain and G.W. Bush as liberals, so who even knows what that means at this point.)

But I agree with this point, despite its condescension:

The 96 percent of mortgage borrowers who are fulfilling their commitments, often by scrimping, may be grumpy bystanders if many of the other 4 percent - those who found the phrase "variable rate" impenetrably mysterious - are eligible for ameliorations of their obligations.

The proposed "remedies" to the "foreclosure crisis" seem to be taking the form of handouts - either bailing out borrowers who are in over their heads, or subsidizing new home buyers to try to soak up some of the "excess inventory" in the housing market. Picking up where Will left off, David Ignatius presents a "slippery slope" (i.e., logically fallacious) argument as to where this all leads us.

We're now in a comparable cycle of bestowing special economic favors on members of the national family who have been hurt by the credit market crisis. "It's not fair," argue the housing interests and consumer advocacy groups. "Bear Stearns got a financial bailout, so why shouldn't we?" And they're right, by the simplest schoolyard definition of fairness.

So the line grows of people demanding breaks on financial obligations they can't afford. Last week, the Bush administration agreed to rescue 100,000 homeowners who are at risk of foreclosure on their mortgages. Congressional Democrats promptly announced that this wasn't fair enough and that they intended to expand the bailout to as many as 2 million distressed borrowers.

But why stop there? What about onerous commercial mortgages? And credit card debt? And student loans? Why should anyone have to pay back anything? It's not fair

Well, actually, we do have a mechanism where businesses and individuals can escape debts. It's enshrined in the body of the Constitution. It's called... bankruptcy. With some relatively modest tweaking of bankruptcy law, borrowers facing foreclosure can get individualized relief through the bankruptcy courts. The lenders who chose to give them too much money will take a loss, sure, but often less than the cost of a foreclosure. And there is no need for federal handouts to the borrowers.

As for those handouts, some of them inspire the "Say what?" response....

The only solution is for the federal government to offer a temporary 5 percent tax rebate — up to $25,000 — for first-time home buyers.

Here's where the point made by Ignatius and Will kicks in - that proposal is manifestly unfair to responsible borrowers, including first-time home buyers who may have lost part or all of their equity after buying houses they can afford. It also assumes that the problem exists at the bottom of the market. While I don't dispute that there seem to be many areas where foreclosures are affecting large numbers of entry level homes, there are also many areas where even with a subsidy the homes affected are out of the reach of first-time buyers.

I guess the idea is that making homeowners out of a population that has insufficient savings or interest in presently becoming homeowners will reinflate the bubble, such that other owners "get their equity back". But if that works, does it do more than postpone the present market correction? And don't we risk creating a new population of home buyers who don't have the financial stability or discipline to consistently pay their mortgages, setting ourselves up for "foreclosure crisis II"? There's a reason, after all, that lenders traditionally chose not to give mortgages to first-time borrowers who hadn't saved up a down payment, even if somebody else was willing to give them the money. Also, while the subsidy may inspire renters to buy homes, what happens to the vacant rental properties? Higher vacancies usually lead to lower rent, and rental rates typically correlate to housing values.

Meanwhile it does appear that there are individuals and investors who are bargain hunting, raising the question of whether such a subsidy at the bottom end of the market is even necessary.

Who Should Get The Taxpayers' Money

In flattering McCain (who Will still appears to detest), George Will presents a false dichotomy, pretending McCain supports a solution to the "economy's housing-related credit woes" that doesn't involve any bail-outs whatsoever. Quoting McCain, Will writes:

He says "it is not the duty of government to bail out and reward those who act irresponsibly, whether they are big banks or small borrowers." For now, he is with Senate Republicans in opposing the Democrats' proposal to empower judges to rewrite the terms of some mortgages, an idea that strikes at the sanctity of contracts and hence at the ethic of promise-keeping that is fundamental to social life. He opposes an additional dose of the toxin that has made the credit system sick -- he favors strengthening rather than weakening down-payment requirements for loans backed by the Federal Housing Administration. And he has admirably avoided the rhetoric of victimology, such as that used when The Post editorialized that "lenders pushed tens of billions of dollars in potentially high-interest mortgage debt on people ill-equipped to handle it."

So the honest translation would be that McCain opposes only aid directed at borrowers. While he wants stronger guarantees that federal loans will be repaid, something that to me is a perfectly reasonable demand, he has not actually opposed bail-outs of financial institutions. He just wants to add a few more strings to the bail-out packages they receive.

The honest question this might raise is, why support bail-outs of those who were in the best position to prevent this from happening in the first place, while providing no benefit at all to those (whatever you think of their culpability) on the other side of the loan? If Will were to think about it, he would recognize that offering bankruptcy relief to those borrowers wouldn't let them avoid their loans - it would allow them to discount their loans to the present market value of their homes. The borrowers would have their creditworthiness severely downgraded for a decade. But the owners of the loans, not the taxpayers, would have to absorb the difference. That, it seems, is unacceptable to either George Will or John McCain.

I'm not going to benefit from the bailouts - If I even own stock in any of the financial institutions involved, it's part of a mutual fund. And I'm the opposite of the sort who purchases "more home than I can afford" than maxes out my HELOC. As a conservative borrower and spender, who believes in paying my bills in full, I am hardly brimming with sympathy for those who chose to believe promises that were plainly too good to be true. Yet if my choice is between having my tax money used for a bailout, or having irresponsible lenders take a loss due to the bankruptcies of their irresponsible borrowers? I'll support the bankruptcy reform, thank you very much.