The practical consequences of the Administrative State are limited not only by legal and constitutional considerations, but by less arbitrary ones as well. Bureaucracies quite simply, and as a general rule, get worse the longer they exist. This is because they are subject to corrupting incentives that cannot be changed by “law”:
- Everyone likes things that make their jobs easier; give bureaucrats discretion and they will use it to make their jobs easier, even if it frustrates the purposes of those jobs in the first place.
- Turf guarding. Bureaucracies have survival instincts, and these affect their operation. Give bureaucracies discretion and they will expand as a matter of self-preservation and self-perpetuation, regardless of the public benefit or detriment.
- Insularity. Stuff a bureaucrat into a life tenure and his or her world gradually shrinks to the limits of the bureaucratic fiefdom. The external becomes the extraneous, and bureaucracies become unmoored from the common interest.
- Loss of proportion. Bureaucracies breed petty tyrants, for whom authority becomes a substitute for common sense.
-Risk aversion. Bureaucracies become more and more intolerant of risk as they age, to the point that obscuring responsibility, dodging accountability and suppressing any activity that may require a tough decision eventually become the guiding principles.
These influences arise from common psychology, rather than any particular ideology or political philosophy. All “administrative states” eventually become inefficient, sclerotic, senseless, abusive and obsolete. The more authority that is delegated to them, the faster they become so.
Sunday, April 21, 2013
Saturday, April 20, 2013
Common thread
Psychologists, criminologists, historians and those who are simply curious will expend a great deal of effort trying to find a common threat that links the perpetrators of spectacle crimes. Surely, there must be some relatively simple and indeed common element that connects Eric Harris, Seung-Hui Cho, Anders Brevik, Mohammed Atta, James Holmes, Adam Lanza, Jared Loughner and Tamerlan Tzarnaev; and indeed there is. Some of these were psychotic, some ideological, some reigious fanatics. There is a great deal of heterogeneity in the motives, and cognitive processing of these individuals, but there is one thing common to them all: fantasy. Each of theme had a fantastic notion of how his crime related to some goal, with such relationship reinforced not by rational analysis but by emotional compulsion.
It is assumed that each had a pathological lack of empathy, and this is true, but one of the things that fantasy provides is a mechianism that makes empathy unnecessary. Movie villains and video game characters can be killed wantonly without moral qualm because they are acknowledged to be only part of a fantasy. this mechanism also works the other way, however. Not only can reality be projected onto fantasy, but real people can be perceived as the characters in a fantastic episode, in which everything; the motive, the outcome, the emotional satisfaction, is ultimately a figment of imagination.
It is assumed that each had a pathological lack of empathy, and this is true, but one of the things that fantasy provides is a mechianism that makes empathy unnecessary. Movie villains and video game characters can be killed wantonly without moral qualm because they are acknowledged to be only part of a fantasy. this mechanism also works the other way, however. Not only can reality be projected onto fantasy, but real people can be perceived as the characters in a fantastic episode, in which everything; the motive, the outcome, the emotional satisfaction, is ultimately a figment of imagination.
Social media
The biggest benefit to the emergence of social media is not that it will help keep people more informed, but that it should make them more skeptical.
Tuesday, January 08, 2013
Efficiency and rationing
What will happen if the government institutes universal coverage, while trying to contain costs? The system will become more efficient, but not in the way the government intends. Take for example ear nose and throat specialists. Right now, such pracitce involves ear tubes, tonsillectomies, thyroid surgery, neck dissections to remove tumors, sinus surgery and more specialized procedures involving the inner ear, trachea and larynx. Much of the ear tubes and tonsillectomies are performed on pediatric patients, and involve a disproportionate number of medicaid recipients. If you give everyone coverage and begin to limit reimbursement for particular services, say for example, ear tubes, otolaryngologists will respond by making their pracitces more efficient; not more efficient in terms of performing more procedures in a given amount of time, but more efficient in terms of concentrating their time in other procedures. If a physician can get the same reimbursement for doing two hours worth of sinus surgery that he does for three hours worth of ear tubes, that physician will eventually focus on the former procedures and do less and less of the latter. He will focus his marketing efforts and networking to the more lucrative procedure, leaving the less remunerative surgeries to less senior surgeons or less established practices. Micro-specialization will occur, with the result that the less remunerative procedures will experience longer wait times, and less choice of qualified physicians. This has already happened to some extent in neurology, where physicians discovered that their time was much better compensated doing nerve conduction studies in thier offices than in doing inpatinet consultations. As a result, many hospitals had no emergency department coverage for neuroly patients. Pulmonary specialists also gravitate to bronchoscopy or sleep specialties at the expense of intensive care unit coverage.
This phenomenon is also observable in the growth of boutique practices, where physicians decide that it is better to get reasonable compensation for reasonable services than to get paid a little more for a lot more effort.
If the government provides universal coverage with price controls, it will not discourage unnecessary or inefficient care, it will discourage access to time-intensive and poorly-reimbursed care. The incentives will be such that costs will be saved, not by discouraging patients from seeking care, but in discouraging doctors from providing it.
This phenomenon is also observable in the growth of boutique practices, where physicians decide that it is better to get reasonable compensation for reasonable services than to get paid a little more for a lot more effort.
If the government provides universal coverage with price controls, it will not discourage unnecessary or inefficient care, it will discourage access to time-intensive and poorly-reimbursed care. The incentives will be such that costs will be saved, not by discouraging patients from seeking care, but in discouraging doctors from providing it.
Cost effectiveness
Here's a quick question for those who advocate a government role in cost effectiveness research: Is it cost effective to treat aspiration pneumonia? The answer, of course, is yes. Or no. Well, yes and no.
If a forty year old trauma patient aspirates immediately after urgent surgery, then yes, it is relatively inexpensive and efficacious to treat with a short course of antibiotics. On the other hand, if the patient is a 74 year old stroke patient with recurrent aspiration, end stage renal disease, and prostate cancer, treating his most recent pulmonary event will prolong the course of dialysis, potentially involve future stays in the ICU on a ventilator, gastrosomy tube, etc., all for the expected benefit of the patient being kept alive so he can die of something more horrible. It is easier to see that treatment might not be cost effective if we consider the patient to have widely metastatic prostate cancer.
If we take this last patient and start removing, one by one, the co-morbidities that make treating aspiration pneumonia such an expensive proposition, at what point do arrive at the objective cut-off that treating him is cost-effective? It is the fact that identifying such a cut-off seems reasonable that is problematic, because it implies that whatever body decides cost-effectiveness will eventually be forced to decide on case-by-case bases. This is the achilles heel of all high minded healthcare system reformers, and all of those overly academic types that worship at the altar of "evidence based medicine." The practice of medicine is founded on the doctor-patient relationship, not the doctor-population relationship or the doctor-health board relationship, or the doctor-utopian social justice fantasist relationship.
It should be axiomatic that a doctor not give a patient medicine to treat the anxiety of a family member. The principle at work is that the provision or withholding of a therapeutic intervention should not be for the benefit of third parties. Similarly, we should not conclude that an intervention is not cost-effective for a particular patient, merely because some egghead has decided that it is not cost effective for a heterogeneous population.
Population studies and statistical models and various and sundry other such are useful for identifying general principles that a competent physician may incorporate into the treatment decision that he makes for his specific patient. They are not reasonable bases upon which to dictate those same decisions from a remote authority for whom that patient is just a data point.
If a forty year old trauma patient aspirates immediately after urgent surgery, then yes, it is relatively inexpensive and efficacious to treat with a short course of antibiotics. On the other hand, if the patient is a 74 year old stroke patient with recurrent aspiration, end stage renal disease, and prostate cancer, treating his most recent pulmonary event will prolong the course of dialysis, potentially involve future stays in the ICU on a ventilator, gastrosomy tube, etc., all for the expected benefit of the patient being kept alive so he can die of something more horrible. It is easier to see that treatment might not be cost effective if we consider the patient to have widely metastatic prostate cancer.
If we take this last patient and start removing, one by one, the co-morbidities that make treating aspiration pneumonia such an expensive proposition, at what point do arrive at the objective cut-off that treating him is cost-effective? It is the fact that identifying such a cut-off seems reasonable that is problematic, because it implies that whatever body decides cost-effectiveness will eventually be forced to decide on case-by-case bases. This is the achilles heel of all high minded healthcare system reformers, and all of those overly academic types that worship at the altar of "evidence based medicine." The practice of medicine is founded on the doctor-patient relationship, not the doctor-population relationship or the doctor-health board relationship, or the doctor-utopian social justice fantasist relationship.
It should be axiomatic that a doctor not give a patient medicine to treat the anxiety of a family member. The principle at work is that the provision or withholding of a therapeutic intervention should not be for the benefit of third parties. Similarly, we should not conclude that an intervention is not cost-effective for a particular patient, merely because some egghead has decided that it is not cost effective for a heterogeneous population.
Population studies and statistical models and various and sundry other such are useful for identifying general principles that a competent physician may incorporate into the treatment decision that he makes for his specific patient. They are not reasonable bases upon which to dictate those same decisions from a remote authority for whom that patient is just a data point.
Typical and atypical healthcare
European medicine does some things very well. So does Cuban medicine, and Honduran medicine, Chinese medicine, etc. Kaiser does some things very well, as does the VA. But none of these systems do everything well, and all of thses systems, including the European ones benefit from America’s willingness to take the risks necessary to advance medical science for the benefit of all.
If you look at the medical system of the Europeans, and Cubans, etc. you will notice that they do a good job of providing a particular type of medical services. So does Kaiser and the V.A., and if you were an astute reformer, you would immediately perceive both a rational approach to reform, and immediately spot the problems with current healthcare reform legislation.
All reform begins with a simple task: classifying aspects of the thing to be reformed into groups according to their beneficial and non-beneficial attributes. Now we can do this with healthcare in any number of ways; trauma and non-trauma, catastrophic and non-catastrophic, preventive and acute, experimental and non-experimental, pre-existing and not, publicly financed and private pay, etc. Whether or not reform is successful depends crucially on which distinctions are selected as the bases of reform. When it comes to talking about cost savings, the classifications degenerate into rationing on the basis of condition (like the Oregon medicaid system) on the basis of who the patient is (e.g. Obama’s reference to patients who are better off taking pain pills), or on some homogenized metric of efficacy (comparative research panels.) Each of these approaches requires a trade-off at the expense of liberty and values of individuals, and this is the reason why “Obamacare” is unpopular, and actually antithetical to the purpose of healthcare.
A more reasonable approach is to realize that there is a natural discriminant in healthcare services: typical and atypical care. Typical care is that which you receive for uncomplicated pnuemonia, coronary artery disease, diabetes, etc. It includes preventive care and management of chronic diseases. Atypical care is everyting else: ICU stays for complicated pnuemonia, costs for defensive medicine, experimental care, elective surgery, the more exotic imaging techniques, care for extremely premature babies, etc.
Europe and China and Cuba (and Kaiser and the VA) do very well with typical care for a very straightforward reason: typical care is relatively inexpensive. If so inclined a national formulary could consist only of drugs that Target provides for $4 a month. Furthermore, the vast majority of people could get by with only typical care. It would suck for some people if we didn’t provide for end of life ICU care, or organ transplants or reconstructive surgery, but these would affect a comparatively small portion of the population. If you reformed healthcare to only provide for typical care, the cost effectiveness would sky-rocket, at the expense of course of those for whom typical care is not good enough.
Over time, things that start out as atypical become accepted and routine (and cheaper) and naturally become typical type of care. Laparoscopic surgery, statin drugs, PET scans, Herceptin, and so forth. Subsidizing atypical care eventually benefits everyone because it advances the state of the art. Admittedly, there is a huge amount of waste in the atypical category, including defensive medicine, futile care and needlessly expensive interventions where cheaper ones would suffice. We Americans put up with this for a number of reasons: 1.) because as mentioned, it advances the state of the art for everyone, 2.) because we have adopted a societal ethic that we will not discriminate on the basis of health, and 3.) that we will not intrude on the patient’s determination of what an acceptable quality of life or benefit of therapy is. Note that ineffective or inefficient therapies would not be accepted as “typical,” or if that is already the case, be replaced by better therapies that start out as atypical.
An astute reformer would begin by assuring access to “typical care.” This is in fact the only thing that the European model has done, with very little downside, because those nutty Americans are traditionally disposed to uderwriting the benefits of care that others regard as atypical. If you were so inclined you could reform American healthcare to cover “typical” care and let people contract individually for “atypical care” and get the best of both worlds.
Of course what Congress has done is to do the opposite. An insurance mandate is an artifice by which atypical care is treated as typical. It imports the inefficiencies of providing extraordinary and costly care into a market designed for cost effective and predictable care. It imposes the inflationalry pressures of private third party payers on a portion of the system that should be actuarily sound, and necessitates the replacement of discarded efficiencies with explicit rationing. Worse, it shoehorns providers into a system where the mandated inefficiencies will be addressed by preferentially treating those who are less ill, (which not surprisingly is more cost effective than treating very ill people) thus discriminating against those who receive adequate care now, and would receive such care in Cuba, China etc.
You are correct when you note “if you increase Medicare payments with no thought about the effectiveness of what you are buying your country will go bankrupt even faster.” This is exactly what “Obamacare” does. It divorces payment for medical services from a rational allocation based on the expected risks, benefits and costs. It stifles innovation because it falsely treats newer and promising therapies as typical care before experience and ingenuity have enhanced their effectiveness, and efficiency. In short, no one, including Europe, could afford it if everyone’s healthcare system were like Europe’s. And our tradition of liberty and personal autonomy wouldn’t take well to it either.
If you look at the medical system of the Europeans, and Cubans, etc. you will notice that they do a good job of providing a particular type of medical services. So does Kaiser and the V.A., and if you were an astute reformer, you would immediately perceive both a rational approach to reform, and immediately spot the problems with current healthcare reform legislation.
All reform begins with a simple task: classifying aspects of the thing to be reformed into groups according to their beneficial and non-beneficial attributes. Now we can do this with healthcare in any number of ways; trauma and non-trauma, catastrophic and non-catastrophic, preventive and acute, experimental and non-experimental, pre-existing and not, publicly financed and private pay, etc. Whether or not reform is successful depends crucially on which distinctions are selected as the bases of reform. When it comes to talking about cost savings, the classifications degenerate into rationing on the basis of condition (like the Oregon medicaid system) on the basis of who the patient is (e.g. Obama’s reference to patients who are better off taking pain pills), or on some homogenized metric of efficacy (comparative research panels.) Each of these approaches requires a trade-off at the expense of liberty and values of individuals, and this is the reason why “Obamacare” is unpopular, and actually antithetical to the purpose of healthcare.
A more reasonable approach is to realize that there is a natural discriminant in healthcare services: typical and atypical care. Typical care is that which you receive for uncomplicated pnuemonia, coronary artery disease, diabetes, etc. It includes preventive care and management of chronic diseases. Atypical care is everyting else: ICU stays for complicated pnuemonia, costs for defensive medicine, experimental care, elective surgery, the more exotic imaging techniques, care for extremely premature babies, etc.
Europe and China and Cuba (and Kaiser and the VA) do very well with typical care for a very straightforward reason: typical care is relatively inexpensive. If so inclined a national formulary could consist only of drugs that Target provides for $4 a month. Furthermore, the vast majority of people could get by with only typical care. It would suck for some people if we didn’t provide for end of life ICU care, or organ transplants or reconstructive surgery, but these would affect a comparatively small portion of the population. If you reformed healthcare to only provide for typical care, the cost effectiveness would sky-rocket, at the expense of course of those for whom typical care is not good enough.
Over time, things that start out as atypical become accepted and routine (and cheaper) and naturally become typical type of care. Laparoscopic surgery, statin drugs, PET scans, Herceptin, and so forth. Subsidizing atypical care eventually benefits everyone because it advances the state of the art. Admittedly, there is a huge amount of waste in the atypical category, including defensive medicine, futile care and needlessly expensive interventions where cheaper ones would suffice. We Americans put up with this for a number of reasons: 1.) because as mentioned, it advances the state of the art for everyone, 2.) because we have adopted a societal ethic that we will not discriminate on the basis of health, and 3.) that we will not intrude on the patient’s determination of what an acceptable quality of life or benefit of therapy is. Note that ineffective or inefficient therapies would not be accepted as “typical,” or if that is already the case, be replaced by better therapies that start out as atypical.
An astute reformer would begin by assuring access to “typical care.” This is in fact the only thing that the European model has done, with very little downside, because those nutty Americans are traditionally disposed to uderwriting the benefits of care that others regard as atypical. If you were so inclined you could reform American healthcare to cover “typical” care and let people contract individually for “atypical care” and get the best of both worlds.
Of course what Congress has done is to do the opposite. An insurance mandate is an artifice by which atypical care is treated as typical. It imports the inefficiencies of providing extraordinary and costly care into a market designed for cost effective and predictable care. It imposes the inflationalry pressures of private third party payers on a portion of the system that should be actuarily sound, and necessitates the replacement of discarded efficiencies with explicit rationing. Worse, it shoehorns providers into a system where the mandated inefficiencies will be addressed by preferentially treating those who are less ill, (which not surprisingly is more cost effective than treating very ill people) thus discriminating against those who receive adequate care now, and would receive such care in Cuba, China etc.
You are correct when you note “if you increase Medicare payments with no thought about the effectiveness of what you are buying your country will go bankrupt even faster.” This is exactly what “Obamacare” does. It divorces payment for medical services from a rational allocation based on the expected risks, benefits and costs. It stifles innovation because it falsely treats newer and promising therapies as typical care before experience and ingenuity have enhanced their effectiveness, and efficiency. In short, no one, including Europe, could afford it if everyone’s healthcare system were like Europe’s. And our tradition of liberty and personal autonomy wouldn’t take well to it either.
Thursday, January 03, 2013
Predictability and economy
One concept that runs throughout Mr. Greve's post is that of predictability. Predictability is the reason why we have written laws, constitutions, contracts, stare decisis, etc. etc. Predictability is essential to the rational expectation that the future can be made better than the present. This same idea forms the basis of credit, and ultimately, of capitalism. It is much easier to have faith in the future if we have some reason, beyond hope, to expect that it will contain something worth striving for.
Predictability is also central to an unalterable truth. The economy is healthy so long as enough people expect the future to be better than the present. It is an uncomfortable fact, to the point that it can scarcely be spoken, that the value of something is only an opinion. Tulip bulbs, and Facebook stock are ultimately only worth what people think they are worth, and this is largely dependent on what people think they will be worth in the future. Debt is the same way. We can go on borrowing forever if someone will lend us money forever. However, the price of tulips, and corporate stock, and debt and equity markets collapse upon a fairly uniform occurrence. It is not necessarily when debt-to-revenue ratios reach a certain level, or when short term bond yields bear some relation to those of long term instruments. Bubbles burst, systems collapse and economies tank when enough people realize that they are going to get screwed. The predictability that makes economic growth possible is that which makes risk of being screwed something measurable and manageable. Right now our political class is destroying predictability with abandon.
We are all going to get screwed.
Predictability is also central to an unalterable truth. The economy is healthy so long as enough people expect the future to be better than the present. It is an uncomfortable fact, to the point that it can scarcely be spoken, that the value of something is only an opinion. Tulip bulbs, and Facebook stock are ultimately only worth what people think they are worth, and this is largely dependent on what people think they will be worth in the future. Debt is the same way. We can go on borrowing forever if someone will lend us money forever. However, the price of tulips, and corporate stock, and debt and equity markets collapse upon a fairly uniform occurrence. It is not necessarily when debt-to-revenue ratios reach a certain level, or when short term bond yields bear some relation to those of long term instruments. Bubbles burst, systems collapse and economies tank when enough people realize that they are going to get screwed. The predictability that makes economic growth possible is that which makes risk of being screwed something measurable and manageable. Right now our political class is destroying predictability with abandon.
We are all going to get screwed.
Thursday, December 13, 2012
Liberals
Any history of liberalism is bound to be fraught with contradictions, hypocrisy, and venality, because liberalism is not so much a historical phenomenon as a psychological one. The ideologies of liberalism are not made of whole cloth, but are instead fashioned around psychological needs and quirks. Investigation of the disparate liberal causes will reveal a common thread that arises, not from enlightened reason, but from an emotional response to social forces.
The contradictions of liberal appeals for “the children,” in the face of opposition to school vouchers; nannyist bullying over private dietary choices amidst calls for liberalizing drug laws; and simultaneous condemnation of and participation in hateful rhetoric are easy to understand once one notices the common tell. There is a singular root of environmentalism, gun control fervor, redistributionism, population control, antagonism toward competition, and demands for soul killing conformity: There is just something about other people that bugs liberals.
Liberals are threatened by other people’s freedom, because they are anxious about what those people will do with that freedom. Can just anybody really be trusted with a gun? And what if letting parents choose their children’s education leads to doctrines that are…undesirable? A liberal is a person for whom compassion for others in the abstract justifies disdain for them in reality. This is why liberals are much more fond of calling for higher taxes than they are of private charity. They have a bargain for you: do not threaten them with your freedom, your competitive spirit or your aspirations and they will will try to see to it that you get by. Decipher the words “sustainable,” “diversity,” and “progress” and you will find a misanthropic antipathy for others. The blindness that accompanies admiration of Marx, or Che, or Margaret Sanger illustrates the true nature of hard-core liberalism.
Friday, December 07, 2012
Ungovernable
Every once and a while, particularly when some grand political venture founders on the shoals of reality, some pundit will wonder "Is America ungovernable?" Such hand-wringing also accompanies each political impasse, such as that currently affecting the national fisc. The question misses the point. America is governable; the real issue is whether it is micro-manageable or regulatable. Governance seems to become more inept, corrupt and unwieldy the more that government ignores its inherent limitations. At some point, government expands, not as a matter of public welfare, but in a relentless metastasis of self-justification.
Sunday, April 08, 2012
Sensitivity
People have variable thresholds for violence in response to the same provocation. We expect that young people in a civilized society can control their sexual conduct, even when confronted with the most explicit tease. We do not excuse larceny if the purloined object exceeded some minimum level of desirability such that the thief could not possibly help himself.
Free citizens are expected to seek redress for actual injuries, hurt feelings or damaged reputations in manners that do not include losing self control. A person has little claim to being free if he loses control of himself when provoked, since if he cannot control control himself, he will necessarily be controlled by others. If a person can be moved to violence by a base emotional appeal, he is merely a tool of the instigator and his liberty waxes and wanes with his emotions.
Free speech assumes, rightly in my opinion, that civilized men and women can control themselves, even if some idiot pushes their emotional buttons. People of ridiculously sensitive dispositions should not expect the state to protect them from name-calling.
Free citizens are expected to seek redress for actual injuries, hurt feelings or damaged reputations in manners that do not include losing self control. A person has little claim to being free if he loses control of himself when provoked, since if he cannot control control himself, he will necessarily be controlled by others. If a person can be moved to violence by a base emotional appeal, he is merely a tool of the instigator and his liberty waxes and wanes with his emotions.
Free speech assumes, rightly in my opinion, that civilized men and women can control themselves, even if some idiot pushes their emotional buttons. People of ridiculously sensitive dispositions should not expect the state to protect them from name-calling.
Friday, January 13, 2012
Modern Judges
The corrosion of the role of judges results not so much from competing views of what such roles should be, but from a more fundamental lapse. The conflict is not between will and judgment, but between reason and sentiment. Certain soft-headed notions that were emotionally appealing were given credence in legal circles, and once established metastasized into the current malady.
The first such sentiment confused fairness with compassion. Fairness, properly considered is an attribute of a process, not an outcome, and it is a cold-blooded attribute as well. Is it fair that a six year die for want of a heart transplant, while another won a coin toss, and is thus spared? Of course it is. Does it suck? Sure. Fairness and compassion are inherently incompatible; compassion sometimes seeking intervention when fairness would be merely heart-rending. This fact makes even more corrosive the common equation of fairness and compassion. No one really wants perfect fairness any more than they want perfect justice. What is the latin maxim for “Sometimes the law sucks?”
The second noxious sentiment is that the result of law is justice. This is, and always has been, wrong. To be clear: justice is simply concerned with the appropriateness of consequences of choices and actions. The natural result of laaw is predictability, and its result may or may not be just. That is why we have written laws, and one of the reasons the concept of precedent was so successful in establishing the common law tradition. If judges were simply to prioritize predictability over outcomes, a free people would figure out how to use that fact to the general advantage. Instead, abominations like the beclowned judge in Kansas City mandating increased school funding, or the ludicrous Kelo decision, or the curious ruling that all wheat affects interstate commerce undermined not so much some constitutional principle, but the predicatability that allows people to manage their own affairs and interactions with one another.
The fact that the fate of the national heathcare system may depend on what Justice Kennedy has for breakfast on a particular day in May, and the lamentable reality that reporting on federal court rulings must contain an obligatory note of which president appointed the judge involved, is evidence mostly of the fact that the judicial system has gained power and lost usefulness. The notion that judges can, by creating law inductively on the idiosyncratic facts of a single case, bind the whole of the society is a parody of serious thought.
The first such sentiment confused fairness with compassion. Fairness, properly considered is an attribute of a process, not an outcome, and it is a cold-blooded attribute as well. Is it fair that a six year die for want of a heart transplant, while another won a coin toss, and is thus spared? Of course it is. Does it suck? Sure. Fairness and compassion are inherently incompatible; compassion sometimes seeking intervention when fairness would be merely heart-rending. This fact makes even more corrosive the common equation of fairness and compassion. No one really wants perfect fairness any more than they want perfect justice. What is the latin maxim for “Sometimes the law sucks?”
The second noxious sentiment is that the result of law is justice. This is, and always has been, wrong. To be clear: justice is simply concerned with the appropriateness of consequences of choices and actions. The natural result of laaw is predictability, and its result may or may not be just. That is why we have written laws, and one of the reasons the concept of precedent was so successful in establishing the common law tradition. If judges were simply to prioritize predictability over outcomes, a free people would figure out how to use that fact to the general advantage. Instead, abominations like the beclowned judge in Kansas City mandating increased school funding, or the ludicrous Kelo decision, or the curious ruling that all wheat affects interstate commerce undermined not so much some constitutional principle, but the predicatability that allows people to manage their own affairs and interactions with one another.
The fact that the fate of the national heathcare system may depend on what Justice Kennedy has for breakfast on a particular day in May, and the lamentable reality that reporting on federal court rulings must contain an obligatory note of which president appointed the judge involved, is evidence mostly of the fact that the judicial system has gained power and lost usefulness. The notion that judges can, by creating law inductively on the idiosyncratic facts of a single case, bind the whole of the society is a parody of serious thought.
Friday, September 30, 2011
Extrajudicial killing
The dilemma arises from the ambiguity of the term "extrajudicial killing." Such killings are quite common (and often quite justified) in the United States in the form of "officer involved shootings." The crucial distinction is whether the killling is retributive (i.e. as a consequence for past actions) or pre-emptive (necessary to prevent future harm). It is easy to sympathize with Mr. Williams's unease with retributive extrajudicial killing, while also puzzling why he apparently does not recognize the legitimacy of pre-emptive killing.
Pre-emptive killing (just like pre-emptive war) is understandably disquieting; it seems a fundamental principle that punishment never be applied prospectively, either for things that people might do but can't or can do but won't. Simple fairness requires a rebuttable presumption that a person will not commit an act that would justify pre-emptive violence. The reality of life is however that such presumption is overcome by circumstances. Had a Jefferson County deputy been a better shot and dispatched Eric Harris in the midst of the Columbine rampage, the act would have been justified as preventing future shooting victims, but not as retribution for those already dead. The subtlety however is that the prior killings created circumstances by which to conclude that Harris poses a future threat, and therefore cold be killed on the spot.
A policeman who confronts a recidivist felon, who then points a gun at the officer is preumably justified in using lethal force to defend himself. It is understood that the fatal shot that the policeman fires is pre-emptive, i.e. to prevent something that circumstances indicate that the felon is at a high risk of doing, but which he has not done yet; kill or injure the policeman. this killing is "extrajudicial" in the sense that there has been no prior judicial determination that the felon poses a threat to the policeman, such a determination lies totally in assessment of the immediate circumstances. If the object of "extrajudical" violence does not pose a prospective threat, then the means of justification disappear. If, for example Osama bin Laden was bed-bound, non-communicative and paralyzed after a stroke, partitioning his cranium with a nine millimeter bullet, while perhaps emotionally satisfying, would make for an uncomfortable precedent in a civilized democracy.
The issue then, is not whehter the authority to kill someone is judicial or political, or whether the target is an American citizen or not, or in this contry or another. The question is whether a person's prior conduct and present circumstances present a sufficient threat of future harm to justify killing to prevent that harm. Necessity requires that we vest police officers with some discretion to make such a determination in emergencies, and our system of government vests certain officials with making analogous determinations with respect to people such as bin Laden and al Awlaki. As always such discretiion may be abused, and we then rely on other institutions to remedy such abuses.
Mr. Williamson is justified in wondering whether the death of al Awlaki is a justified pre-emptive killing, or an extrajudicial retributive killing, or perhaps suspicious that it is the latter masquerading as the former. He may legitimately doubt that al Awlaki posed a sufficient threat of future terror to justify elininating him without due process. He is right to be uncomfortable at the prospects for abuse, but he shold not use this discomfort to deny that occasionally pre-emptive killing is justified by the protection of innocent life.
Pre-emptive killing (just like pre-emptive war) is understandably disquieting; it seems a fundamental principle that punishment never be applied prospectively, either for things that people might do but can't or can do but won't. Simple fairness requires a rebuttable presumption that a person will not commit an act that would justify pre-emptive violence. The reality of life is however that such presumption is overcome by circumstances. Had a Jefferson County deputy been a better shot and dispatched Eric Harris in the midst of the Columbine rampage, the act would have been justified as preventing future shooting victims, but not as retribution for those already dead. The subtlety however is that the prior killings created circumstances by which to conclude that Harris poses a future threat, and therefore cold be killed on the spot.
A policeman who confronts a recidivist felon, who then points a gun at the officer is preumably justified in using lethal force to defend himself. It is understood that the fatal shot that the policeman fires is pre-emptive, i.e. to prevent something that circumstances indicate that the felon is at a high risk of doing, but which he has not done yet; kill or injure the policeman. this killing is "extrajudicial" in the sense that there has been no prior judicial determination that the felon poses a threat to the policeman, such a determination lies totally in assessment of the immediate circumstances. If the object of "extrajudical" violence does not pose a prospective threat, then the means of justification disappear. If, for example Osama bin Laden was bed-bound, non-communicative and paralyzed after a stroke, partitioning his cranium with a nine millimeter bullet, while perhaps emotionally satisfying, would make for an uncomfortable precedent in a civilized democracy.
The issue then, is not whehter the authority to kill someone is judicial or political, or whether the target is an American citizen or not, or in this contry or another. The question is whether a person's prior conduct and present circumstances present a sufficient threat of future harm to justify killing to prevent that harm. Necessity requires that we vest police officers with some discretion to make such a determination in emergencies, and our system of government vests certain officials with making analogous determinations with respect to people such as bin Laden and al Awlaki. As always such discretiion may be abused, and we then rely on other institutions to remedy such abuses.
Mr. Williamson is justified in wondering whether the death of al Awlaki is a justified pre-emptive killing, or an extrajudicial retributive killing, or perhaps suspicious that it is the latter masquerading as the former. He may legitimately doubt that al Awlaki posed a sufficient threat of future terror to justify elininating him without due process. He is right to be uncomfortable at the prospects for abuse, but he shold not use this discomfort to deny that occasionally pre-emptive killing is justified by the protection of innocent life.
Sunday, August 14, 2011
Appearances
I think it is beginning to dawn on a lot of people that Obama was elected on curb appeal, not on what is under the hood.
Monday, June 27, 2011
Separation of Powers
The key issue in separation of powers analysis is that of burden. The reason that a republican form of government with democratic institutions has an executive is not because it is virtuous, but because it is practical. It is not possible to have a representative body of "citizen legislators," or even the de facto professional representatives we now endure, set National Park admission fees, order toilet paper for military bases or review research applications at the National Institutes of Health. The executive is there to execute.
The concept of the Constitution explicitly gives Congress such powers as raising taxes and declaring war. The principle underlying such a design is that free people must assume burdens willingly, and the best approximation in a representative form of government is to have those burdens ratified by the representative branch of government.
The president should not impose financial burdens to enable ideological aims or force Americans to bear the strains and sacrifices of battle without the consent of the governed, formalized through Congressional approval. If the executive circumvents this principle, as he has done not only with the military, but regulatory over-reach, and fiscal irresponsibility, it is the role of the representative branch to deny him the resources to do so. That is the remedy. Unfortunately, that takes courage, and we seem to underestimate the importance of courage when we elect our representatives and Senators.
The concept of the Constitution explicitly gives Congress such powers as raising taxes and declaring war. The principle underlying such a design is that free people must assume burdens willingly, and the best approximation in a representative form of government is to have those burdens ratified by the representative branch of government.
The president should not impose financial burdens to enable ideological aims or force Americans to bear the strains and sacrifices of battle without the consent of the governed, formalized through Congressional approval. If the executive circumvents this principle, as he has done not only with the military, but regulatory over-reach, and fiscal irresponsibility, it is the role of the representative branch to deny him the resources to do so. That is the remedy. Unfortunately, that takes courage, and we seem to underestimate the importance of courage when we elect our representatives and Senators.
Tuesday, June 07, 2011
General Welfare
The ultimate question regarding the "necessary and proper" clause is not whether it empowers the Congress to regulate this or that, or prohibit one action and require another. Such questions inevitably devolve into academic parsing of words, attempts to divine context from Benjamin Franklin's personal habits, and a litany of examples attempting to prove the disputed points by deduction. In fact, the courts of this country have considered virtually innumerable cases regarding Consitutional interpretation, each involving contesting parties with more or less valid arguments. The observation that the rules of such cases are occasionally overturned and superceded are evidence that there may not be a right answer; the Supreme Court after all delivers its judgments as opinions.
True conservative are correct to defend principled interpretations of the Constitution; however, as the country approaches the event horizon of a fiscal black hole, the focus shifts appropriately from theory to practice. The practical issue is not whether Congress may enact laws codifying altruism (although this is certainly a valid inquiry), the real issue is whether the Constitution enables Congress to do things like regulate the speed of light or eliminate asthma through appropriate legislation. It really doesn't matter if the Constitution allows Congress to legislate away at a problem if the problem is not solvable by legislation.
The framers of the Constitution were much smarter than the mass of legislators that followed them. They realized that there were certain habits and principles that separated those societies that would prosper, and those that would devolve into tyrannical failures. The founders knew that programs that depended on the coercive power of the state would ultimately fail. Unfortunately, part of the appeal of government solutions to problems is that the government can use force to compel compliance, and has what is regarded as an unlimited credit line. These create the mistaken illusion that the government can solve everyone's problems without creating more if its own.
The founders realistic view of how societies progress is not found in "evolving" interpretations of the general welfare clause that authorize the domestic use of force in pursuit of fashionable and photogenic causes. The pragmatism of those serious men is found in Article 1 section 8(8) which allows Congress to "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Imagine for a moment the effect if this instead allowed Congress to "compel authors and inventors to develop the useful arts to promote the general welfare," or to "appropriate for public purposes those writings and inventions which shall be found useful." How much promotion of science and the useful arts would have happened? The founders wisely resisted the compulsion to compel; their descendants sadly have not.
The patent clause also contains something of the general welfare spirit that liberals claim is lacking in libertarians and conservatives: it limits the duration of patent and copyright protection, thus implying that, after the inventors and writers have appropriately benefitted from their efforts, the general public should be allowed to expand on them and put them to useful purposes.
Medicare may have been a reasonable idea when it was still an abstration in the minds of sentimental, if short-sighted people. It may in fact have some role in an advanced society, but the more it is larded up with regulations, rules, penalties, mandates, and other devices irritating to the ideals of a free society, the more it is destined to fail, and cause a lot of misery in the process.
True conservative are correct to defend principled interpretations of the Constitution; however, as the country approaches the event horizon of a fiscal black hole, the focus shifts appropriately from theory to practice. The practical issue is not whether Congress may enact laws codifying altruism (although this is certainly a valid inquiry), the real issue is whether the Constitution enables Congress to do things like regulate the speed of light or eliminate asthma through appropriate legislation. It really doesn't matter if the Constitution allows Congress to legislate away at a problem if the problem is not solvable by legislation.
The framers of the Constitution were much smarter than the mass of legislators that followed them. They realized that there were certain habits and principles that separated those societies that would prosper, and those that would devolve into tyrannical failures. The founders knew that programs that depended on the coercive power of the state would ultimately fail. Unfortunately, part of the appeal of government solutions to problems is that the government can use force to compel compliance, and has what is regarded as an unlimited credit line. These create the mistaken illusion that the government can solve everyone's problems without creating more if its own.
The founders realistic view of how societies progress is not found in "evolving" interpretations of the general welfare clause that authorize the domestic use of force in pursuit of fashionable and photogenic causes. The pragmatism of those serious men is found in Article 1 section 8(8) which allows Congress to "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Imagine for a moment the effect if this instead allowed Congress to "compel authors and inventors to develop the useful arts to promote the general welfare," or to "appropriate for public purposes those writings and inventions which shall be found useful." How much promotion of science and the useful arts would have happened? The founders wisely resisted the compulsion to compel; their descendants sadly have not.
The patent clause also contains something of the general welfare spirit that liberals claim is lacking in libertarians and conservatives: it limits the duration of patent and copyright protection, thus implying that, after the inventors and writers have appropriately benefitted from their efforts, the general public should be allowed to expand on them and put them to useful purposes.
Medicare may have been a reasonable idea when it was still an abstration in the minds of sentimental, if short-sighted people. It may in fact have some role in an advanced society, but the more it is larded up with regulations, rules, penalties, mandates, and other devices irritating to the ideals of a free society, the more it is destined to fail, and cause a lot of misery in the process.
Wednesday, June 01, 2011
Stimulus
Current economic news suggests that the federal government's three year effort to stimulate the economy has not had the desired effect. Government borrowing and spendng in particular have not seemed to have had the desired effects. Economists, policy analysts, academics and captains of industry may engage in nuanced debates as to why this is so, discoursing on whether the economy is consumer driven or production driven, whether expenditures on public benefits are "investments" or not, or whether there are more arcane requirements for government policy to lead to economic growth. The ultimate answers may indeed be arcane, but the pertinent explanations are just as likely to be within the observation of the average person.
Several readily verifiable observations will serve as bases from which to proceed. First, we note that when the stock market dropped by 500 points, commentators remarked that "500 billion dallars has gone out of the economy." If it went, where did it go? Similarly, economic distress has resulted from collapse of the tech bubble and the housing bubble and some identifiable condition should accompany the start of such events.
Second, the Second World War is acknowledged to have had some role in ending the Great Depression, despite the fact that the monies expended on munitions and military operations should not provide an economic benefit by themselves. If they did North Korea would be one of the Asian Tigers. Something else must be at work.
Third, consumer goods, such as VCRs rapidly lose their value when something else comes along. The value of a VCR is not intrinsic to the particular unit, but varies with the perception of what it is worth, and its desirablilty compared to other alternatives.
What these three observations suggest is that value, as teh etymology of the word suggests, is an opinion. When stocks drop in price it is because there has been a change in teh opinon of what they are worth. When billions are expended on military hardware during peacetime, this creates a drag on economic growth; the resources could probably be put to better uses. However when a society is engaged in an existential struggle against powerful enemies, thank, airplanes, ships, soldiers and military bases are highly desirable, i.e. they are valued and their production creates value in the economy. When a technology comes along to replace video cassette recorders, the opinion of what VCRs are worth changes. When the opinion of housing prices turns unfavorable, the value of it drops, and wealth stored there decllines, not as a matter of monetary balance but quite literally as a matter of opinion.
In order for spending to stimulate the economy, the spending must be on things that people value at the time. It must be on things that people actually want, not things that politicians or activists want them to want.
So what sort of things do people value? If one examines the econoic history of the United States, he will observe that economic prosperity accompanied the emergence and growth of several discrete technologies. Th efirst was steam powwer, that among other things enabled the development of railroads and steamships. Then came the telegraph, and later the telephone. This was followed by the development of aviation, the widespread availablity of the automobile, radio communications, then television. Then came the personal computer, the internet and ubiquitous cell phones. These were the things that people valued that led to paroxysms of prosperity. If one looks closely at each of these technologies, a common characteristic emerges: they are all methods that enhance the ability of people to interact with each other. This should not come as a surprise: the affluence of the Roman empire derived not from plunder but from trade.
It would be expected that the advent of social networking would be the next phase in this economic process, but it becomes apparent that technologies that enhance human interaction is necessary but not sufficient for prosperity. Economic growth, like all sophisticated human activity requires people to make assessments about their goals and how best to use resources to achieve them; simply, it requires some measure of predictability. The recent expenditures on "stimulus" were futile because they were expenditures on things that people did not necessarily value, and they were made in an environment permeated by uncertainty. The uncertainty arose primarily for the capriciousness of regulatory authorities insinuating themselves into the transactions that previously only required willing parties.
The prescription for effective stimulus spending is rather straightforward: spend money on things that people actually value and stay out of their way when they do business with each other.
Several readily verifiable observations will serve as bases from which to proceed. First, we note that when the stock market dropped by 500 points, commentators remarked that "500 billion dallars has gone out of the economy." If it went, where did it go? Similarly, economic distress has resulted from collapse of the tech bubble and the housing bubble and some identifiable condition should accompany the start of such events.
Second, the Second World War is acknowledged to have had some role in ending the Great Depression, despite the fact that the monies expended on munitions and military operations should not provide an economic benefit by themselves. If they did North Korea would be one of the Asian Tigers. Something else must be at work.
Third, consumer goods, such as VCRs rapidly lose their value when something else comes along. The value of a VCR is not intrinsic to the particular unit, but varies with the perception of what it is worth, and its desirablilty compared to other alternatives.
What these three observations suggest is that value, as teh etymology of the word suggests, is an opinion. When stocks drop in price it is because there has been a change in teh opinon of what they are worth. When billions are expended on military hardware during peacetime, this creates a drag on economic growth; the resources could probably be put to better uses. However when a society is engaged in an existential struggle against powerful enemies, thank, airplanes, ships, soldiers and military bases are highly desirable, i.e. they are valued and their production creates value in the economy. When a technology comes along to replace video cassette recorders, the opinion of what VCRs are worth changes. When the opinion of housing prices turns unfavorable, the value of it drops, and wealth stored there decllines, not as a matter of monetary balance but quite literally as a matter of opinion.
In order for spending to stimulate the economy, the spending must be on things that people value at the time. It must be on things that people actually want, not things that politicians or activists want them to want.
So what sort of things do people value? If one examines the econoic history of the United States, he will observe that economic prosperity accompanied the emergence and growth of several discrete technologies. Th efirst was steam powwer, that among other things enabled the development of railroads and steamships. Then came the telegraph, and later the telephone. This was followed by the development of aviation, the widespread availablity of the automobile, radio communications, then television. Then came the personal computer, the internet and ubiquitous cell phones. These were the things that people valued that led to paroxysms of prosperity. If one looks closely at each of these technologies, a common characteristic emerges: they are all methods that enhance the ability of people to interact with each other. This should not come as a surprise: the affluence of the Roman empire derived not from plunder but from trade.
It would be expected that the advent of social networking would be the next phase in this economic process, but it becomes apparent that technologies that enhance human interaction is necessary but not sufficient for prosperity. Economic growth, like all sophisticated human activity requires people to make assessments about their goals and how best to use resources to achieve them; simply, it requires some measure of predictability. The recent expenditures on "stimulus" were futile because they were expenditures on things that people did not necessarily value, and they were made in an environment permeated by uncertainty. The uncertainty arose primarily for the capriciousness of regulatory authorities insinuating themselves into the transactions that previously only required willing parties.
The prescription for effective stimulus spending is rather straightforward: spend money on things that people actually value and stay out of their way when they do business with each other.
Thursday, May 05, 2011
When Is It Okay to Assassinate Someone?
In order to address this question, we need to select the few ingredients for our analysis, and limit these to only those necessary to the task. These are: Justice, justification and objective rigor.
The first, justice, needs to be strictly defined here, since in common usage it has an amorphous, malleable meaning more appropriate to emotional musing than to dispassionate reason. For the purpose at hand, justice means that quality that determines the appropriateness of consequences for specific actions or choices. Thus, justice has been served if the consequences that a person experiences are appropriate to whatever caused those consequences.
Justification means allowing an act that is presumed to be impermissible, because the circumstances negate that presumption. Homicide, for example, is presumed to be impermissible, but is justified in certain situations, such as self-defense.
Objective rigor is the quality by which the circumstances are wrung free of abstractions, symbolic and metaphysical twaddle and subjective agendas. The way the justice system attempts to achieve this is through adversarial proceedings subject to strict evidentiary standards. The matter must be capable of objective determination, free if ideoplogical flourish, and not merely be a metaphorical leap such as "killing the planet," or "hate speech." An examples of a permissible inquiry is whether someone is alive or dead.
Taking these principles and applying them to assassination, we can start with the presumption that killing a person is wrong, and therefore, to be permissible, must be justified. Justification comes from showing that the killling achieves a desired end; that is, according to the concept of objective rigor, preferable to the consequences of other courses of action. The key here is how objective rigor applies to the determination of whether the circumstances justify the act. This is what distinguishes this approach from "the ends justifies the means." The means must be necessary to an objectively proper outcome. In the case of judicial killing, i.e. the death penalty, a judicial proceeding determines whether the consequences of death are appropriate to the crime in question, and whether the accused is guilty of that crime. Another inquiry is whether or not the death of the accused is necessary to achiving justice. Western societies have increasingly found this not to be the case, with resultant decline in the use of the death penalty.
Justification is not limited to a retrospective analysis of past conduct. Self defense involves killling someone to prevent a future eventuality, i.e, harm to the person threatened. In such instances objective rigor must determine that the perceived threat was sufficient to overcome the presumption that killing has avoided an objectively undesirable outcome. The fear of injury must be objectively reasonable, and the method of defense must be as well.
In the case of Osama bin Laden, the principle of objective rigor must be applied to several considerations: How certain was it that he engaged in actions or made choices that made extra-judicial killing an appropriate consequence for those actins and choices; How necessary was killing to achieving an objectively appropriate result for those actions; How necessary was killing to prevent further objectively undesirable results from hos conduct. The answers to the first two questions probably do not provide confidence that killing was justified, although it is admitted that a certain emotional satisfaction might arise from it. The concept of objective rigor however does not admit such indulgences. If we consider the hypothetical wherein bin Laden had suffered a massive stroke, and was in an irreversible coma, the compulsion of bursting into his room and creasing his skull with a nine millimeter bullet wanes. There is problably sufficient objective reason to believe that bin Laden did a number of very evil things, and in other circumstances a more formal approach to establishing his culpability might have been warranted. Saddam Hussein, after all was executed solely on the basis of his past deeds, and this after a trial.
If justification is to be had, it derives from the concept of bin Laden as a threat, as one who demonstrated evil and murderous appetites and who was a great risk to indulge them again. He might have posed an immediate threat to his pursuers by, for example, harboring a bomb or alerting guards. In this case killing him on the spot would be justified, not because he was widely suspected of having done outragoues and evil things in the past, but as reasonably necessary to prevent him from doing them in the future. There are of course other benefits that can be argued from killing him in a raid; serving as a deterrent or warning to those who would follow in his footsteps, disrupting communicatins that would necessarily pass through him, and eliminating an incentive for disciples to commit mass murder for his supposed benefit while he was still alive.
Assassination can be justified if it is reasonably necessary to eliminate a severe threat. Allowing it in order to vindicate purely emotional needs opens up an entire world of pretextual and insular grievances that by their very nature can never serve as the basis for justice.
The first, justice, needs to be strictly defined here, since in common usage it has an amorphous, malleable meaning more appropriate to emotional musing than to dispassionate reason. For the purpose at hand, justice means that quality that determines the appropriateness of consequences for specific actions or choices. Thus, justice has been served if the consequences that a person experiences are appropriate to whatever caused those consequences.
Justification means allowing an act that is presumed to be impermissible, because the circumstances negate that presumption. Homicide, for example, is presumed to be impermissible, but is justified in certain situations, such as self-defense.
Objective rigor is the quality by which the circumstances are wrung free of abstractions, symbolic and metaphysical twaddle and subjective agendas. The way the justice system attempts to achieve this is through adversarial proceedings subject to strict evidentiary standards. The matter must be capable of objective determination, free if ideoplogical flourish, and not merely be a metaphorical leap such as "killing the planet," or "hate speech." An examples of a permissible inquiry is whether someone is alive or dead.
Taking these principles and applying them to assassination, we can start with the presumption that killing a person is wrong, and therefore, to be permissible, must be justified. Justification comes from showing that the killling achieves a desired end; that is, according to the concept of objective rigor, preferable to the consequences of other courses of action. The key here is how objective rigor applies to the determination of whether the circumstances justify the act. This is what distinguishes this approach from "the ends justifies the means." The means must be necessary to an objectively proper outcome. In the case of judicial killing, i.e. the death penalty, a judicial proceeding determines whether the consequences of death are appropriate to the crime in question, and whether the accused is guilty of that crime. Another inquiry is whether or not the death of the accused is necessary to achiving justice. Western societies have increasingly found this not to be the case, with resultant decline in the use of the death penalty.
Justification is not limited to a retrospective analysis of past conduct. Self defense involves killling someone to prevent a future eventuality, i.e, harm to the person threatened. In such instances objective rigor must determine that the perceived threat was sufficient to overcome the presumption that killing has avoided an objectively undesirable outcome. The fear of injury must be objectively reasonable, and the method of defense must be as well.
In the case of Osama bin Laden, the principle of objective rigor must be applied to several considerations: How certain was it that he engaged in actions or made choices that made extra-judicial killing an appropriate consequence for those actins and choices; How necessary was killing to achieving an objectively appropriate result for those actions; How necessary was killing to prevent further objectively undesirable results from hos conduct. The answers to the first two questions probably do not provide confidence that killing was justified, although it is admitted that a certain emotional satisfaction might arise from it. The concept of objective rigor however does not admit such indulgences. If we consider the hypothetical wherein bin Laden had suffered a massive stroke, and was in an irreversible coma, the compulsion of bursting into his room and creasing his skull with a nine millimeter bullet wanes. There is problably sufficient objective reason to believe that bin Laden did a number of very evil things, and in other circumstances a more formal approach to establishing his culpability might have been warranted. Saddam Hussein, after all was executed solely on the basis of his past deeds, and this after a trial.
If justification is to be had, it derives from the concept of bin Laden as a threat, as one who demonstrated evil and murderous appetites and who was a great risk to indulge them again. He might have posed an immediate threat to his pursuers by, for example, harboring a bomb or alerting guards. In this case killing him on the spot would be justified, not because he was widely suspected of having done outragoues and evil things in the past, but as reasonably necessary to prevent him from doing them in the future. There are of course other benefits that can be argued from killing him in a raid; serving as a deterrent or warning to those who would follow in his footsteps, disrupting communicatins that would necessarily pass through him, and eliminating an incentive for disciples to commit mass murder for his supposed benefit while he was still alive.
Assassination can be justified if it is reasonably necessary to eliminate a severe threat. Allowing it in order to vindicate purely emotional needs opens up an entire world of pretextual and insular grievances that by their very nature can never serve as the basis for justice.
Saturday, April 16, 2011
Expendable Government
Small government conservatives are going to be viciously demagogued until they confront the one fallacous assumption that underlies the progressive world-view: that unless government does something it won't get done. The left has insinuated this fallacy so deeply into current discourse that it is assumed that any cut to any government program will result in humanitarian disaster, complete with refugees, feral youth and the elderly being left to die on the trail. Obama, Pelosi, and fellow prgressives peddle the notion that, not only should government be responsible for things that were individual responsibilities for thousands of years, but that only government should be responsible for them. The left simply cannot risk the argument that there are some things best left to the character and industry of free people. They do not want people questioning the premise that the government is the preferred provider of both necessities and amenities, even those that it does not provide well.
Wednesday, March 16, 2011
Risk Aversion
It is interesting to contemplate why we are entertained by scary movies, or are compelled to take recreational risks, or gamble. There must be some psychological principle that causes dsome people to seek out the experience of risk. It is reasonable to contemplate that the survival of early man was dependent onn risky activities; that hunting food required encounters with dangerous animals, or journeys across perilous terrain. It is quite likely that the overly risk-averse starved or otherwise were inhibited by their timidity. Now however, risk aversion seems to be the new national creed. Administrative decisions are made foremost with regard to avoiding liability. Nanny-state government proscribe any number of activities because of the modest risk they might entail to consenting adults. Socialist-sounding policies are intended primarily to mitigate the risk of economic misfortune by homogenizing in a society that lacks self confidence or pay the price of success. It is quite possible that some of our ancestors died of the malady of risk aversion, and it is quite possible that such will be the fate of our society.
Sunday, November 28, 2010
Government growth
I believe that government grows for a number of reasons, some legitimate, some not, but it grows primarily because growth is the natural state of government in an advancing society. Conservatives and lebertarians need to understand this as they develop their policy positions.
George Washington’s first cabinet consisted of Secretaries of War, State and Treasury, as well as an Attorney General. It is unsurprising however that as the republic matured there would be need for a Department of Energy, and one concerned with health, and that there would be subordinate agnecies concerned with food safety, disease control and the handling of nuclear materials. It likely did not occur to someone witnessing the Wright Flyer’s inaugural hop that this would lead to at least three separate government agencies and countless laws and regulations. It is understandable, and even desirable, that government expand in response to novel capabilities and complexities. This is the good kind of government growth.
On the other hand, while powered flight and wireless communication and such created arenas that required at least of measure of oversight, it is debatable that a federal authority concerned with education adds much to the institutions that thrived locally for millennia. Similarly, the proliferation of entwined armed federal constabularies of such questionable effectiveness that Arizona saw need to adjust its own law enforcement practices to compensate for the federal deficiency, suggests a government that grows untethered by reason. Government tends to grow because government agents, whether elected, appointed or hired, are naturally disposed to expand their influence, and to encroach on territory that history, tradition and common sense respected as the domain of individuals, or at most local groups that better understood their own needs and interests. This tendency toward overreach afflicts even nominal conservatives who adopt too romantic a view of the ability ot “make a difference” in people’s lives. Access to government power often tempts even the most ardent libertarian into thinking a little liberty can be sacrificed to a humanitarian-sounding legacy, or worse, to a dorm room bull-session philosophy. This is the bad kind of government growth.
Governments and large corporations share the trait of being created for particular purposes. Each is a form of specialization that seeks to maximize the efforts of specific individuals focused on specific tasks. Just as we would not expect an individual to construct an automobile exclusively from metal mined and formed by himself, we would not expect him to provide his own judiciary and criminal code in his relaltions with others. Ideally, governments perform specialized functions for the benefit and advancement of society, and business corporations perform specialized functions to provide better lives and create wealth. Generically, governments and corporations are morally neutral, and any good that they create or mischief they cause results from the moral character of the people that animate them. Both government and corporations have powers and abilities to impact people’s lives in good and bad ways. Like all institutions, this gives them the capacity to be exploited for varying degrees of advantage. We expect some government oversight of corporate activities, since it is assumed that private advantage is their legitimate corporate priority, and the public’s interest interest should be protected by public agents. However, when the activity of government is directed at private advantage or even ideological usurpation, this becomes corruption, and is the relentless pathogen that inevitably infects big government.
The sobering truth for libertarians and conservatives is that there is no single factor that leads to the growth of government, nor to the appeal that government has to a particularly shallow type of citizen, who sees government as an institution with an unlimited credit line, and the ability to exact compliance with idelogical fashions by force. Defending liberty is a twilight struggle. This truth is not new; it is simply a restatement of Wendell Phillips’s observation that “eternal vigilance is the price of liberty.” The task of the libertarian, the patriot and of any free man deserving of the title, is identify, oppose and defeat the seductive sounding encroachments on the dignity of free men that are championed by government’s hemianopsic acolytes, who see only joy and harmony as the products of government force. We need to realize that it is an ingrained psychological compulsion that drives some men to ensure that others live a certain way. They are like the army of skeletons in the old “Jason and the Argonauts” movie that keep advancing and menacing while the decent and honest defenders of liberty battle them to protect a fragile treasure. To add to your subtitle, we not only reserve the right to defend leberty from theft, we shall defend it from those idiots that threaten it through misguided intentions, ignorance, malign motives, self-loathing, anti-human animus, and an inflated regard for themselves.
George Washington’s first cabinet consisted of Secretaries of War, State and Treasury, as well as an Attorney General. It is unsurprising however that as the republic matured there would be need for a Department of Energy, and one concerned with health, and that there would be subordinate agnecies concerned with food safety, disease control and the handling of nuclear materials. It likely did not occur to someone witnessing the Wright Flyer’s inaugural hop that this would lead to at least three separate government agencies and countless laws and regulations. It is understandable, and even desirable, that government expand in response to novel capabilities and complexities. This is the good kind of government growth.
On the other hand, while powered flight and wireless communication and such created arenas that required at least of measure of oversight, it is debatable that a federal authority concerned with education adds much to the institutions that thrived locally for millennia. Similarly, the proliferation of entwined armed federal constabularies of such questionable effectiveness that Arizona saw need to adjust its own law enforcement practices to compensate for the federal deficiency, suggests a government that grows untethered by reason. Government tends to grow because government agents, whether elected, appointed or hired, are naturally disposed to expand their influence, and to encroach on territory that history, tradition and common sense respected as the domain of individuals, or at most local groups that better understood their own needs and interests. This tendency toward overreach afflicts even nominal conservatives who adopt too romantic a view of the ability ot “make a difference” in people’s lives. Access to government power often tempts even the most ardent libertarian into thinking a little liberty can be sacrificed to a humanitarian-sounding legacy, or worse, to a dorm room bull-session philosophy. This is the bad kind of government growth.
Governments and large corporations share the trait of being created for particular purposes. Each is a form of specialization that seeks to maximize the efforts of specific individuals focused on specific tasks. Just as we would not expect an individual to construct an automobile exclusively from metal mined and formed by himself, we would not expect him to provide his own judiciary and criminal code in his relaltions with others. Ideally, governments perform specialized functions for the benefit and advancement of society, and business corporations perform specialized functions to provide better lives and create wealth. Generically, governments and corporations are morally neutral, and any good that they create or mischief they cause results from the moral character of the people that animate them. Both government and corporations have powers and abilities to impact people’s lives in good and bad ways. Like all institutions, this gives them the capacity to be exploited for varying degrees of advantage. We expect some government oversight of corporate activities, since it is assumed that private advantage is their legitimate corporate priority, and the public’s interest interest should be protected by public agents. However, when the activity of government is directed at private advantage or even ideological usurpation, this becomes corruption, and is the relentless pathogen that inevitably infects big government.
The sobering truth for libertarians and conservatives is that there is no single factor that leads to the growth of government, nor to the appeal that government has to a particularly shallow type of citizen, who sees government as an institution with an unlimited credit line, and the ability to exact compliance with idelogical fashions by force. Defending liberty is a twilight struggle. This truth is not new; it is simply a restatement of Wendell Phillips’s observation that “eternal vigilance is the price of liberty.” The task of the libertarian, the patriot and of any free man deserving of the title, is identify, oppose and defeat the seductive sounding encroachments on the dignity of free men that are championed by government’s hemianopsic acolytes, who see only joy and harmony as the products of government force. We need to realize that it is an ingrained psychological compulsion that drives some men to ensure that others live a certain way. They are like the army of skeletons in the old “Jason and the Argonauts” movie that keep advancing and menacing while the decent and honest defenders of liberty battle them to protect a fragile treasure. To add to your subtitle, we not only reserve the right to defend leberty from theft, we shall defend it from those idiots that threaten it through misguided intentions, ignorance, malign motives, self-loathing, anti-human animus, and an inflated regard for themselves.
Corruption
Distinctions should be made between power, authority, influence and force. Power, in its most general sense is the ability to decide winners and losers in some area of endeavor. Powerful people may do this by use of force, but do not have to. There are many ways to wield power even of one does not have a constabulary or cavalry at hand. The Pope has power both within the Catholic Church and in international doplomacy, but it is doubtful that the Swiss Guard scares anyone. The more powerful someone is in fact, the less likely he is to use force in exercise of that power.
Authority is the recognition of and assent to a person’s or organization’s ability to perform actions that affect others. The judges on American Idol have both power and authority in their limited realm, but any use of force by them would likely be frowned upon. The treasurer of an organization may have authority to issue checks without any other significant power. Authority is most relevant to the legitimacy of exercises of power or use of force.
Influence can be distinguished from power by simply noting that dead people have no power, but may maintain influence indefinitely. Influence refers to the ability of someone to affect the conduct of others through persuasion as opposed to coercion.
Finally, the use of force is simply the method of last resort when an interest of one party cannot be reconciled with that of another. In civilized societies we always speak of justified uses of force, because coercion is inherently unjust and any resort to it must be legitimized by appeal to higher interests. All uses of force inherently result in the negation of rights, in that the person sho is the object of that force is denied the right choose his behavior. When that behavior is objectively undesirable, e.g. rape or theft, no controversy arises, but when a person is subject to use of force in the service of someone else’s subjective interest, a larceny has occurred.
If we then apply these distinctions to the notion of value discussed above, we are led to further revelations about the folly of statist policies. Value, as noted is subjective. If the government were to initiate a policy, the result of which would be valued by all, no force or coercion would be necessary to implement this policy; people would follow it because they value its result, i.e. it provides a benefit that is consistent with their interest. Protecting freedom of association, and the right to travel, for example need only be ensured by force when some third party attempts to restrict them by force. Conversely, if a policy relies at its inception on mandates, prohibitions, requirements, and criminal penalties, it is quite likely that the policy in question produces no objective value. Observance must be compelled because the interests that are served by it are too narrow or too insular to garner popular support. This is the hallmark of political interests attempting to increase their power. These interests attempt to use the facial authority of the state to compel people to behave in ways that favor certain groups over others. If one examines the TARP program, the auto bailouts, the stimulus plan, cap and trade, and Obamacare, one sees this pattern repeated over and over. The favored interests do not provide enough of a valuable enterprise to be favored by the masses, so those interests buy favor from pwerful politicians, and philosophers can then be reassured in their observation that power corrupts.
Obama’s petulance is quite naturally the result of his realization that he can be either powerful or influential, but he neither smart enough nor a good enough politician to be both. His power derives from huge majorities in the legislature and sympathetic media, but his lack of influence can be seen in his foreign policy impotence, his lack of success in endorsing politicians for local races, and his need to resort to sleazy and cynical political tactics to advance his agenda, despite his acknowledged advantages. Hopefully Obama is smart enough to know that, as demonstrated by Sparta, Napoleonic France, the Soviet Union, and the Third Reich, that policies that are instituted by force nearly always must be maintained by force and therefore are of relatively limited duration. The venal desire for temprary power is seductive, and occasionally successful, but the natural desire for liberty always outlives it.
Authority is the recognition of and assent to a person’s or organization’s ability to perform actions that affect others. The judges on American Idol have both power and authority in their limited realm, but any use of force by them would likely be frowned upon. The treasurer of an organization may have authority to issue checks without any other significant power. Authority is most relevant to the legitimacy of exercises of power or use of force.
Influence can be distinguished from power by simply noting that dead people have no power, but may maintain influence indefinitely. Influence refers to the ability of someone to affect the conduct of others through persuasion as opposed to coercion.
Finally, the use of force is simply the method of last resort when an interest of one party cannot be reconciled with that of another. In civilized societies we always speak of justified uses of force, because coercion is inherently unjust and any resort to it must be legitimized by appeal to higher interests. All uses of force inherently result in the negation of rights, in that the person sho is the object of that force is denied the right choose his behavior. When that behavior is objectively undesirable, e.g. rape or theft, no controversy arises, but when a person is subject to use of force in the service of someone else’s subjective interest, a larceny has occurred.
If we then apply these distinctions to the notion of value discussed above, we are led to further revelations about the folly of statist policies. Value, as noted is subjective. If the government were to initiate a policy, the result of which would be valued by all, no force or coercion would be necessary to implement this policy; people would follow it because they value its result, i.e. it provides a benefit that is consistent with their interest. Protecting freedom of association, and the right to travel, for example need only be ensured by force when some third party attempts to restrict them by force. Conversely, if a policy relies at its inception on mandates, prohibitions, requirements, and criminal penalties, it is quite likely that the policy in question produces no objective value. Observance must be compelled because the interests that are served by it are too narrow or too insular to garner popular support. This is the hallmark of political interests attempting to increase their power. These interests attempt to use the facial authority of the state to compel people to behave in ways that favor certain groups over others. If one examines the TARP program, the auto bailouts, the stimulus plan, cap and trade, and Obamacare, one sees this pattern repeated over and over. The favored interests do not provide enough of a valuable enterprise to be favored by the masses, so those interests buy favor from pwerful politicians, and philosophers can then be reassured in their observation that power corrupts.
Obama’s petulance is quite naturally the result of his realization that he can be either powerful or influential, but he neither smart enough nor a good enough politician to be both. His power derives from huge majorities in the legislature and sympathetic media, but his lack of influence can be seen in his foreign policy impotence, his lack of success in endorsing politicians for local races, and his need to resort to sleazy and cynical political tactics to advance his agenda, despite his acknowledged advantages. Hopefully Obama is smart enough to know that, as demonstrated by Sparta, Napoleonic France, the Soviet Union, and the Third Reich, that policies that are instituted by force nearly always must be maintained by force and therefore are of relatively limited duration. The venal desire for temprary power is seductive, and occasionally successful, but the natural desire for liberty always outlives it.
Government agencies
Government agencies as a species have a life cycle which consists of being conceived from half-baked and amorphous crises, suckling on dubious and misdirected appropriations, then being sent to forage for new missions and need of subsidy when they have either failed at their primary mission, or have outlived their usefulness. The Department of Education is a good example, but then so is the EPA, which lost all sense of perspective an good sense when “climate change” provided a convenient pretext for expanding its power. The institutions of government have been allowed too much leeway to conform their responsibilities to ideological fashions. Like aneurysms, their growth is pathogical.
Our political class and its self-important academic chorus has grown too unappreciative of the concept that sometimes institutions and enterprises have limited useful lifespans, and obsolescence cannot be ignored in the interests of favored constituencies or nostagic hubris. Just as propping up failed private enterprises such as GM and large banking interests merely subsidized inefficiency and stupid management, sticking yet-to-be-conceived taxpayers with the bill, accommodation of archaic and ossified bureaucracies deprives us of a more efficient and effective government.
Jefferson was being not only concise but also practical when he noted the boundaries of proper government; that they are instituted among men to secure the just rights of the governed. It is beyond parody that we now have government agencies that think it is their purpose to stereotype a group of people, psychoanalyze them without their input, and patronize them into feeling good about themselves
Our political class and its self-important academic chorus has grown too unappreciative of the concept that sometimes institutions and enterprises have limited useful lifespans, and obsolescence cannot be ignored in the interests of favored constituencies or nostagic hubris. Just as propping up failed private enterprises such as GM and large banking interests merely subsidized inefficiency and stupid management, sticking yet-to-be-conceived taxpayers with the bill, accommodation of archaic and ossified bureaucracies deprives us of a more efficient and effective government.
Jefferson was being not only concise but also practical when he noted the boundaries of proper government; that they are instituted among men to secure the just rights of the governed. It is beyond parody that we now have government agencies that think it is their purpose to stereotype a group of people, psychoanalyze them without their input, and patronize them into feeling good about themselves
Wednesday, September 08, 2010
Another point about permanence
Another factor making schemes to enshrine permanent majorities or permanent programs imprudent is that the very factors that account for the permanence make adaptation excessively difficult. One example of this is public employee unions. The attempt to ensure permanent benefits and infinitely increasing benefits ensures that any necessary adaptaions will be met with vigorous resistance. The unhealthy gets imcorporated into dated ideas that have outlived their usefulness, yet change is hampered by interests that have everything invested in unwise permanence. A "permanent" program is one of unwieldy inertia, eventually requiring bitter reform to keep up with more desirable progress.
Sunday, August 15, 2010
Permanence
All of theh progressive giddiness regarding the permanence of certain new social programs, particularly the health care bill raises a fundamental question:
Should any program that creates novel and untried obligations and benefits be designed to be permanent? Wouldn't it be better for programs to survive or perish based on their time-proven merits?
Should any program that creates novel and untried obligations and benefits be designed to be permanent? Wouldn't it be better for programs to survive or perish based on their time-proven merits?
Saturday, June 19, 2010
Justice
The concept of justice is concerned with the appropriateness of the consequences of actions. This is true regardless of whether one adopts a Lockean natural rights view of justice, or Hobbes’s authoritarian approach. Laws are not necessary to justice. A lawless society is just as capable of just interactions between its members as one that is micromanaged by government fiat. Justice is possible where there are no laws, and in fact the application of certain laws may result themselves in injustice. Not everyting that is legal is just.
The benefit of laws, in particular written laws, is not that they provide for justice, but rather that they provide for predictability. When this predictability is abrogated, the consequences may be far-reaching and severe. Thus, when the minimum wage is raised arbitrarily, without regard to the purposes of employment, jobs disappear and unskilled workers suffer. When the government imposes this tax and that regulation willy-nilly, businesses become wary of regime risk and the economy suffers. When states impose confiscatory taxes on people and businesses, those find other residences, leaving struggling economies in the midst of natural bounty, as in California. When Obama nationalized the auto industry to the detriment of automobile company bondholders, there was little resemblance to justice.
Justice is intimately concerned with consequences. Political pandering and social engineering are intimately concerned with unintended consequences. Thus, when Obama coerces a corporation to relinquish the protection of liability limits in the interest of “fairness,” there are likely to be adverse consequences (loss of jobs in the oil and associated industries, uncertainty as to whether the government can ever be trusted when tempted by political expedience, thus discouraging innovation, etc.) that affect diverse and dispersed people. Getting rid of predictability in the name of justice is almost certain to cause injustice, usually on the politically marginalized.
Knee jerk, sound-bite “justice” is just photogenic injustice.
The benefit of laws, in particular written laws, is not that they provide for justice, but rather that they provide for predictability. When this predictability is abrogated, the consequences may be far-reaching and severe. Thus, when the minimum wage is raised arbitrarily, without regard to the purposes of employment, jobs disappear and unskilled workers suffer. When the government imposes this tax and that regulation willy-nilly, businesses become wary of regime risk and the economy suffers. When states impose confiscatory taxes on people and businesses, those find other residences, leaving struggling economies in the midst of natural bounty, as in California. When Obama nationalized the auto industry to the detriment of automobile company bondholders, there was little resemblance to justice.
Justice is intimately concerned with consequences. Political pandering and social engineering are intimately concerned with unintended consequences. Thus, when Obama coerces a corporation to relinquish the protection of liability limits in the interest of “fairness,” there are likely to be adverse consequences (loss of jobs in the oil and associated industries, uncertainty as to whether the government can ever be trusted when tempted by political expedience, thus discouraging innovation, etc.) that affect diverse and dispersed people. Getting rid of predictability in the name of justice is almost certain to cause injustice, usually on the politically marginalized.
Knee jerk, sound-bite “justice” is just photogenic injustice.
Thursday, May 27, 2010
Unpopular Laws
The healthcare reform bill, controversy over Rand Paul’s Civil Rights Act comments, and the current debate over immigration law all suggest a fundamental question: Do laws precede or follow public support for the principles underlying them? Does a law have the ability to force a change in a society’s values, or must an effective law be consistent with those values from the outset? I suppose that the answer depends to some degree on the amount of social dislocation and disorientation that the law entails. Lurching and expansive legislative encroachments, regardless of their academic appeal, are likely to be resented by a populace that is not supportive of them.
When a law is enacted contrary to significant public opposition, the natural outcomes are increasingly coercive enforcement measures, or widespread flouting of the law. Neither is hygeinic to a flourishing democracy. The experiment of prohibition is probably the most obvious example of this principle, with many of the excesses of drug enforcement providing supporting references. Governments do not “lead” healthy societies to adopt particular values; to the contrary, they can only function effectively when they reflect the values of the population, for good or ill.
If the people do not support ObamaCare, they will find ways around it. It will become an albatross. States will be under pressure to permit alternative disciplines to practice healing arts, conceirge practices will spring up to cater to wealthy clients who will refuse the rationing queues, and medical tourism will flourish. Bankruptcy laws will have to accommodate nonpayment of insurance premiums, the government monopsony will have to subsidize failing and inefficient physicians, as it will be unable to simultaneously control supply, quality and cost. Fraud and waste will consume increasing portions of medical costs while outcomes stagnate.
The grand lesson to be learned from ObamaCare, probably from dusty hard drives a hundred years from now, is that all of the smart, flippant and self-assured “leaders” of the early twenty-first century were not nearly as smart as they thought they were.
When a law is enacted contrary to significant public opposition, the natural outcomes are increasingly coercive enforcement measures, or widespread flouting of the law. Neither is hygeinic to a flourishing democracy. The experiment of prohibition is probably the most obvious example of this principle, with many of the excesses of drug enforcement providing supporting references. Governments do not “lead” healthy societies to adopt particular values; to the contrary, they can only function effectively when they reflect the values of the population, for good or ill.
If the people do not support ObamaCare, they will find ways around it. It will become an albatross. States will be under pressure to permit alternative disciplines to practice healing arts, conceirge practices will spring up to cater to wealthy clients who will refuse the rationing queues, and medical tourism will flourish. Bankruptcy laws will have to accommodate nonpayment of insurance premiums, the government monopsony will have to subsidize failing and inefficient physicians, as it will be unable to simultaneously control supply, quality and cost. Fraud and waste will consume increasing portions of medical costs while outcomes stagnate.
The grand lesson to be learned from ObamaCare, probably from dusty hard drives a hundred years from now, is that all of the smart, flippant and self-assured “leaders” of the early twenty-first century were not nearly as smart as they thought they were.
Friday, May 14, 2010
Judicial Philosophy
What I'd like to hear a Supreme Court nominee say in answer to a question about her approach to deciding cases:
"Senator, I think it would be inappropriate for me to... um....O.K., here's the deal. I know that it is not possible to perfect human bings through the law. It is not possible to do it through legislation, through creative interpretation of legislation and certainly not through rules handed down from courts in the absence of legislation. The fact is, Senator, there are none of us in public life who is smart enough to craft a law or ordinance telling people how to live that does not cause unnecessary injury to someone. We don't have the capacity to, by imposing general requirements and prohibitions, make any person's life better than he or she could make it themselves, living their lives according to priorities that they set for themselves, and that require simply a basic respect for the rights of others. The people who are given temporary management of the affairs of government haven't the foggiest idea of what should or should not be important to the people in this country, and we shouldn't pretend that we do. So I would have to say that I would approach legal issues humbly because the people who come before the Court will know a hell of a lot more about what individual liberties mean to them than you, I or anyone else in government does. Thank you."
"Senator, I think it would be inappropriate for me to... um....O.K., here's the deal. I know that it is not possible to perfect human bings through the law. It is not possible to do it through legislation, through creative interpretation of legislation and certainly not through rules handed down from courts in the absence of legislation. The fact is, Senator, there are none of us in public life who is smart enough to craft a law or ordinance telling people how to live that does not cause unnecessary injury to someone. We don't have the capacity to, by imposing general requirements and prohibitions, make any person's life better than he or she could make it themselves, living their lives according to priorities that they set for themselves, and that require simply a basic respect for the rights of others. The people who are given temporary management of the affairs of government haven't the foggiest idea of what should or should not be important to the people in this country, and we shouldn't pretend that we do. So I would have to say that I would approach legal issues humbly because the people who come before the Court will know a hell of a lot more about what individual liberties mean to them than you, I or anyone else in government does. Thank you."
Monday, May 10, 2010
Priorities
Being able to prioritize things is an essential skill in a complex world. Families must prioritize items in their budgets, Homemakers must prioritze their use of time, corporations their allocation of capital etc. This seemingly universal and self-evident principle causes some difficulty when transposed to the government arena.
There are some things government must prioritize, particularly when economic circumstances are tight. The most obvious list of priorities is that concerning government functions. If we simply list out an informal census of these, we might include collective derfense, public health, education, justice, public safety, immigration, resource management, ensuring adequate supplies of food and energy, and maintiaining relations with other governments. Of course, the more eager acolytes of government action might include such novelties as promoting "social justice," cultural diversity, and economic redistribution. The specific rank that a person would give each item in such a list would be a product of that person's individual values and political philosophy, and determining such priorities is a large part of the entire political process.
In contrast with the necessity of prioritizing essential government functions, politics is inadequate to the task and often causes great harm when it attempts to prioritize among competing rights. These contests are most visible in the conflicts that arise among the right of free expression and the neologic oddity of the right not to be offended. Similar conflicts are found regarding rights of conscience and access to abortion, and between those who own firearms and those who are made nervous as a result. Govenrment can not effectively prioritize rights because the very essence of rights includes the ability to prioritize for one's self those which are are most and least important. The value of a particular right to a particular person is inherently subjective and it is difficult to conceive of a more perfect parody of tyranny than that in which the government tries to tell individual people what should be most important to them.
There are some things government must prioritize, particularly when economic circumstances are tight. The most obvious list of priorities is that concerning government functions. If we simply list out an informal census of these, we might include collective derfense, public health, education, justice, public safety, immigration, resource management, ensuring adequate supplies of food and energy, and maintiaining relations with other governments. Of course, the more eager acolytes of government action might include such novelties as promoting "social justice," cultural diversity, and economic redistribution. The specific rank that a person would give each item in such a list would be a product of that person's individual values and political philosophy, and determining such priorities is a large part of the entire political process.
In contrast with the necessity of prioritizing essential government functions, politics is inadequate to the task and often causes great harm when it attempts to prioritize among competing rights. These contests are most visible in the conflicts that arise among the right of free expression and the neologic oddity of the right not to be offended. Similar conflicts are found regarding rights of conscience and access to abortion, and between those who own firearms and those who are made nervous as a result. Govenrment can not effectively prioritize rights because the very essence of rights includes the ability to prioritize for one's self those which are are most and least important. The value of a particular right to a particular person is inherently subjective and it is difficult to conceive of a more perfect parody of tyranny than that in which the government tries to tell individual people what should be most important to them.
Tuesday, May 04, 2010
The Basics
Political discourse should proceed from a set of fundamental principles, similar to the axioms of Euclidean geometry. As a starting point, I would propose the following:
1.) Human beings are tool users, and naturally exploit things, even for purposes for which those things were not intended (cf. government).
2.) Value is subjective.
3.) Economic wealth depends on how much someone has of something that only has value because other people think it does.
4.) The use of force is the last recourse when two parties cannot otherwise resolve a dispute. The human mind has not not found a substitute for force as the ultimate decider, except more force.
5.) The use of force must always be “justified” to be acceptable because civilized people assume that it is unjust unless shown by circumstances to be otherwise.
6.) “Rights” is a concept that only has meaning in the setting of human beings interacting with one another. So is justice.
7.) “Fairness” is an attribute of a process, not an outcome.
8.) The vast majority of all human beings that have ever lived have been religious to one degree or another.
9.) Religion is one of those tools that tool users exploit for purposes other than those originally intended.
10.) There are far more people on earth now than could be supported by hunter-gather economies. If not for man’s technological progress a whole lot of people would die horrible deaths.
11.) Because of the political penchant for favoring the ideal over the reasonable, a whole lot of people have died horrible deaths.
1.) Human beings are tool users, and naturally exploit things, even for purposes for which those things were not intended (cf. government).
2.) Value is subjective.
3.) Economic wealth depends on how much someone has of something that only has value because other people think it does.
4.) The use of force is the last recourse when two parties cannot otherwise resolve a dispute. The human mind has not not found a substitute for force as the ultimate decider, except more force.
5.) The use of force must always be “justified” to be acceptable because civilized people assume that it is unjust unless shown by circumstances to be otherwise.
6.) “Rights” is a concept that only has meaning in the setting of human beings interacting with one another. So is justice.
7.) “Fairness” is an attribute of a process, not an outcome.
8.) The vast majority of all human beings that have ever lived have been religious to one degree or another.
9.) Religion is one of those tools that tool users exploit for purposes other than those originally intended.
10.) There are far more people on earth now than could be supported by hunter-gather economies. If not for man’s technological progress a whole lot of people would die horrible deaths.
11.) Because of the political penchant for favoring the ideal over the reasonable, a whole lot of people have died horrible deaths.
Sunday, April 04, 2010
Public Services
One of the more common liberal arguments in favor of a large government role in healthcare is that people do not object to the government providing fire protection, or roads or schools. These examples are expected to strike dumb the opponents of the progressive vision, and establish the notion that benevolence is best left to bureaucrats. Thoughtful analysis of this proposition requires identifying those factors that make it appropriate for public entities to provide monopolistic fire protection services and roadways, and then determine if similar principles apply to healthcare.
As a preliminary matter it should be observed that governments do not produce fire houses, or fire engines or the firefighter's personal protection equipment. Just as with healthcare, it buys these from private enterprise, and does so for a good reason: private enterprise provides the optimizing benefits of competition, which stimulates efficiency and innovation.
Government does of course pay for the firehouses, trucks and firefighter services, but two things are readily apparent. First, it is inobvious how competition between competing firefighting companies would lead to more efficient firefighting. The spectacle of two groups, each wearing its team's colors, jostling with each other for access to a hydrant while the distressed home succumbs to the conflagration, would not be expected to contribute meaningfully to public safety. It is probably true that certain fire departments are better than others, but given the relative uniformity in approach to their primary obligation, it is difficult to say that significant benefits would accrue from having fire departments compete with each other for the right to put out fires and respond to emergencies.
Secondly, society has decided, thorough tradition and experience, that it will not impose the cost of fire protection services on those whom necessity forces to use those services. One obvious reason for this is that, if a fire protection company was reliant on collecting fees from distressed homeowners and accident victims, and was unable to do so (or if not enough buildings caught fire), it might fail financially. This would leave others without fire protection, even though they themselves might be able to pay for it. Communities have thus concluded that it is better to have everyone pay for the availability of a certain level of service, since it is very unlikely that that the average person will ever need such services.
These considerations are to be compared with healthcare. There is an obvious role for the beneficial atributes of market economics and competition. Advances in medicine and medical technology are obvious evidence of this fact. Similarly, it is not efficient for society or individual communities to pay for availability of the full spectrum of healthcare services, for the simple reason that there are a much broader spectrum of these services than there are in the area of fire suppression. It is quite comfortable for a community to maintain readiness for the limited classes of emergencies requiring a fire department. It is quite another to expect it to maintain bone marrow transplant units, burn centers, labor and delivery wards, MRI scanners, radiation medicine facilities, substance abuse programs, Alzheimer's units, rehabilitation facilities, psych wards, trauma centers, poison control services, neonatal intensive care units, cardiac surgery suites, endoscopy units, robotic surgical equipment, pathology labs, CT scanners, blood transfusion centers, prosthetic device services, hyperbaric oxygen facilities, reconstructive surgery units, mammography services, laparoscopic surgery facilities, arthroscopy, etc., etc. It is appropriate for patients to select providers of these services based on consideration unique to the individual patients; it is unlikely that a homeowner would take his burning dwelling to a firestation more suited to his tastes.
A similar anysis applies to the issue of roads. It is readily apparent that the most efficient way to facilitate traffic between one place and another is to have a single thoroughfare; that it is absurd to have competing roadway providers construct multiple parallel avenues between two points so that motorists can choose between them. Furthermore, as is the case with fire protection, there simply is not enough variability in the operation of roadways for the marginal increments in efficiency that competition provides to make much difference. We can accept collective operation of roads because the private ownership of them isn't likely to result in significant innovation or room for increased efficiency. People still use roads that were built by the Romans.
It is of course appropriate for governments to provide public health programs, which are clearly distinct from individual healthcare. Similarly, it is appropriate for societies to provide thoroughfares and roads so that people in general might benefit from being able to get from one place to another. Of course, individual circumstances and preferences properly make it responsibility of those individuals to pay for the means of conveyance.
So, no, public provision of some service does not establish the proposition that the public is the best provider of all services. Especially when the dignity, values and individual circumstances of human beings are concerned, there are some things that work much better when people have choices.
As a preliminary matter it should be observed that governments do not produce fire houses, or fire engines or the firefighter's personal protection equipment. Just as with healthcare, it buys these from private enterprise, and does so for a good reason: private enterprise provides the optimizing benefits of competition, which stimulates efficiency and innovation.
Government does of course pay for the firehouses, trucks and firefighter services, but two things are readily apparent. First, it is inobvious how competition between competing firefighting companies would lead to more efficient firefighting. The spectacle of two groups, each wearing its team's colors, jostling with each other for access to a hydrant while the distressed home succumbs to the conflagration, would not be expected to contribute meaningfully to public safety. It is probably true that certain fire departments are better than others, but given the relative uniformity in approach to their primary obligation, it is difficult to say that significant benefits would accrue from having fire departments compete with each other for the right to put out fires and respond to emergencies.
Secondly, society has decided, thorough tradition and experience, that it will not impose the cost of fire protection services on those whom necessity forces to use those services. One obvious reason for this is that, if a fire protection company was reliant on collecting fees from distressed homeowners and accident victims, and was unable to do so (or if not enough buildings caught fire), it might fail financially. This would leave others without fire protection, even though they themselves might be able to pay for it. Communities have thus concluded that it is better to have everyone pay for the availability of a certain level of service, since it is very unlikely that that the average person will ever need such services.
These considerations are to be compared with healthcare. There is an obvious role for the beneficial atributes of market economics and competition. Advances in medicine and medical technology are obvious evidence of this fact. Similarly, it is not efficient for society or individual communities to pay for availability of the full spectrum of healthcare services, for the simple reason that there are a much broader spectrum of these services than there are in the area of fire suppression. It is quite comfortable for a community to maintain readiness for the limited classes of emergencies requiring a fire department. It is quite another to expect it to maintain bone marrow transplant units, burn centers, labor and delivery wards, MRI scanners, radiation medicine facilities, substance abuse programs, Alzheimer's units, rehabilitation facilities, psych wards, trauma centers, poison control services, neonatal intensive care units, cardiac surgery suites, endoscopy units, robotic surgical equipment, pathology labs, CT scanners, blood transfusion centers, prosthetic device services, hyperbaric oxygen facilities, reconstructive surgery units, mammography services, laparoscopic surgery facilities, arthroscopy, etc., etc. It is appropriate for patients to select providers of these services based on consideration unique to the individual patients; it is unlikely that a homeowner would take his burning dwelling to a firestation more suited to his tastes.
A similar anysis applies to the issue of roads. It is readily apparent that the most efficient way to facilitate traffic between one place and another is to have a single thoroughfare; that it is absurd to have competing roadway providers construct multiple parallel avenues between two points so that motorists can choose between them. Furthermore, as is the case with fire protection, there simply is not enough variability in the operation of roadways for the marginal increments in efficiency that competition provides to make much difference. We can accept collective operation of roads because the private ownership of them isn't likely to result in significant innovation or room for increased efficiency. People still use roads that were built by the Romans.
It is of course appropriate for governments to provide public health programs, which are clearly distinct from individual healthcare. Similarly, it is appropriate for societies to provide thoroughfares and roads so that people in general might benefit from being able to get from one place to another. Of course, individual circumstances and preferences properly make it responsibility of those individuals to pay for the means of conveyance.
So, no, public provision of some service does not establish the proposition that the public is the best provider of all services. Especially when the dignity, values and individual circumstances of human beings are concerned, there are some things that work much better when people have choices.
Morality and Healthcare
Morality is intrinsic to any healthcare system for the simple reason that healthcare involves choices, and especially because it involves choices that affect the lives and interests of others. This is apparent at the macroscopic, policy level where the choices determine what portion of the population will bear the brunt of the consequences of rationing, whether future generations will be indentured for the medical costs of their ancestors, and whether individual values should yield to the policy preferences of distant functionaries. Were this all there was to the moral aspect of healthcare, boards and comissions and government departments could proceed in their missions, unvexed by the implication for individual cases, but this is not all there is to the matter.
Morality is an inherently personal phenomenon, and cannot be delegated to government agencies or political operatives. Moral issues in medicine arise precisely because people do not all share the same values regarding what is meaningful, or sacred or important in life when confronted with a health issue. It might be possible for one person afflicted with amyotrophic lateral sclerosis to find exquiste meaning in overcoming the impairments of his condition, and for another, meaning may be found in deferring to the inevitable. Some people might find life more worthwhile if they ignore the risk factors associated with the way they live, while others may opt for a more objectively prudent path. The government does not contain a "Department of Meaningful Life" and should not pretend that it does by usurping decisions that implicate what a person finds most meaningful into the Department of Health and Human Services.
Only the person involved can say for sure whether the most meaningful part of a stroke victim's life might be in having her daughter hold her hand waiting for the end, or whether the same patient might value living to see her granddaughter graduate from college. Some people want to exit this world figuratively kicking and screaming, raging as it were against the dying of the light; others would prefer to avoid the fuss. The key principle however is that these are choices people make based on what is important to them, based on their values. This, essentially is the key difference between a healthcare market and a government healthplan.
If a person wishes to exhaust his own resources living his life in the manner most meaningful to him, even if it would make a government accountant frown, then allowing him to do so is not only moral, it is a matter of respect for personal dignity.It is no simall coincidence that a free market involves individual people making free choices in the context of their individual circumstances, and a moral society does the same. The alternative to either involves the government depriving the individual of his moral choices by force, either proscribing them directly or by rationing them away. When society begins to abrogate moral choices in the interests of efficiency, it assumes less the character of a civilized society, and more the droning uniformity of a hive.
Morality is an inherently personal phenomenon, and cannot be delegated to government agencies or political operatives. Moral issues in medicine arise precisely because people do not all share the same values regarding what is meaningful, or sacred or important in life when confronted with a health issue. It might be possible for one person afflicted with amyotrophic lateral sclerosis to find exquiste meaning in overcoming the impairments of his condition, and for another, meaning may be found in deferring to the inevitable. Some people might find life more worthwhile if they ignore the risk factors associated with the way they live, while others may opt for a more objectively prudent path. The government does not contain a "Department of Meaningful Life" and should not pretend that it does by usurping decisions that implicate what a person finds most meaningful into the Department of Health and Human Services.
Only the person involved can say for sure whether the most meaningful part of a stroke victim's life might be in having her daughter hold her hand waiting for the end, or whether the same patient might value living to see her granddaughter graduate from college. Some people want to exit this world figuratively kicking and screaming, raging as it were against the dying of the light; others would prefer to avoid the fuss. The key principle however is that these are choices people make based on what is important to them, based on their values. This, essentially is the key difference between a healthcare market and a government healthplan.
If a person wishes to exhaust his own resources living his life in the manner most meaningful to him, even if it would make a government accountant frown, then allowing him to do so is not only moral, it is a matter of respect for personal dignity.It is no simall coincidence that a free market involves individual people making free choices in the context of their individual circumstances, and a moral society does the same. The alternative to either involves the government depriving the individual of his moral choices by force, either proscribing them directly or by rationing them away. When society begins to abrogate moral choices in the interests of efficiency, it assumes less the character of a civilized society, and more the droning uniformity of a hive.
Wednesday, March 31, 2010
SPREADING THE WEALTH
All of the current fashion regarding "spreading the wealth," "redistribution," and the notably gaseous "economic justice" overlooks one unavoidable truth: Human progress involves risks. The economic corrollary to this is that people who take risks that produce benfits to others should be compensated for doing so. This latter concept is not merely a principle of fundamental fairness, it is a pragmatic necessity as well. Why would anyone take fruitless risks, risks for which the rewards are subject to confiscation in the name of political ideology?
These facts give rise to two distinct types of wealth: that which requires someone to run risks to create, and that which does not. A redistributist may have an argument that it is not legitimate for a person to simply harvest resources that should be available to everyone, and amass a great fortune as a result. Compensating others, or the community in general for supplying the infrastructure, etc. to make such wealth possible seems reasonable. However, when a drug company risks millions to develop a drug which might never reach the market , or a venture capitalist supports the developer of some obscure technology that might benefit a great many people, or might lead to loss of the investment, those risk-takers should be entitled to retain the bounty of their risks. We seem to have realized this concept previously; we tax capital gains at a lower rate, and we allow patent protection to inventors. Conversely, we prescribe criminal sanctions for insider traders, who seek to capitalize on low risk transactions at the expense of innocent investors.
"Spreading the wealth" of someone who comes by such wealth as a result of political connections, exploitation of public resources or disproportionate depletion of common resources is far different than confiscating the legitimate gains of someone who through diligence and foresight profited where he might also have come away with nothing at all.
These facts give rise to two distinct types of wealth: that which requires someone to run risks to create, and that which does not. A redistributist may have an argument that it is not legitimate for a person to simply harvest resources that should be available to everyone, and amass a great fortune as a result. Compensating others, or the community in general for supplying the infrastructure, etc. to make such wealth possible seems reasonable. However, when a drug company risks millions to develop a drug which might never reach the market , or a venture capitalist supports the developer of some obscure technology that might benefit a great many people, or might lead to loss of the investment, those risk-takers should be entitled to retain the bounty of their risks. We seem to have realized this concept previously; we tax capital gains at a lower rate, and we allow patent protection to inventors. Conversely, we prescribe criminal sanctions for insider traders, who seek to capitalize on low risk transactions at the expense of innocent investors.
"Spreading the wealth" of someone who comes by such wealth as a result of political connections, exploitation of public resources or disproportionate depletion of common resources is far different than confiscating the legitimate gains of someone who through diligence and foresight profited where he might also have come away with nothing at all.
Saturday, March 13, 2010
OBSERVATION
Two of the defining characteristics of leftist thought are 1.) the notion that all misfortune in the world is traceable to the bad charachter of someone, and 2.) that the value of words derives more from how they sound than what they mean.
Leftists are always eager to hunt down those responsible for any undesirable human condition, regardless of whether that condition results from natural disaster, unforeseen consequences of otherwise sound endeavors, or just plain bad luck. Leftists instinctively direct their gripes and complaints toward some flaw in someone's character--greed, or racism, or indifference. All form of human tragedy is avoidable in this view, if only the miscreants that cause it can be monitored securely by a benevolent government agency. Anthropogenic global warming? Why, how could there be any other kind?
Leftists also think that passing credit should be given for notions that sound good, regardless of whether reality confirms that assumption or not. "No human is illegal," "You can't hug a child with nuclear arms," "Iraq is Arabic for Vietnam," "Visualize World Peace," "Dissent is the highest form of Patiotism*," etc. Such vacant sloganeering does not lend itself to reasoned discourse, being so lacking in depth of thought. Leftists then fall back on predictable contingencies: sarcasm, ridicule and bad puns. The main problem with most leftists thought is that it's native habitat is destructive conjecture, rather than the messy and unavoidable challenges of the real world.
*depending on the object of the dissent, of course.
Leftists are always eager to hunt down those responsible for any undesirable human condition, regardless of whether that condition results from natural disaster, unforeseen consequences of otherwise sound endeavors, or just plain bad luck. Leftists instinctively direct their gripes and complaints toward some flaw in someone's character--greed, or racism, or indifference. All form of human tragedy is avoidable in this view, if only the miscreants that cause it can be monitored securely by a benevolent government agency. Anthropogenic global warming? Why, how could there be any other kind?
Leftists also think that passing credit should be given for notions that sound good, regardless of whether reality confirms that assumption or not. "No human is illegal," "You can't hug a child with nuclear arms," "Iraq is Arabic for Vietnam," "Visualize World Peace," "Dissent is the highest form of Patiotism*," etc. Such vacant sloganeering does not lend itself to reasoned discourse, being so lacking in depth of thought. Leftists then fall back on predictable contingencies: sarcasm, ridicule and bad puns. The main problem with most leftists thought is that it's native habitat is destructive conjecture, rather than the messy and unavoidable challenges of the real world.
*depending on the object of the dissent, of course.
Monday, January 25, 2010
Threats
The United States is struggling with the issue of what to do with persons detained in the course of preventing attacks by Islamic terrorists. On the one hand, some people advocate a law enforcement model, replete with due process rights, counsel provided at public expense, right to remain silent, access to writs of habeas corpus, etc. Others find this model unnecessarily stringent, particularly in light of the threat that Islamic terrorists represent.
Before becoming too comfortable with a clear distinction between a law-enforcement and more conventional war model of the issue, it might be useful to recall that law enforcement officials machine-gunned Bonnie Parker and Clyde Barrow in an ambush designed for that purpose. John Dillinger was shot on the spot. In neither case were the deceased afforded the opportunity to plead special circumstances to a court of law or avail themselves of the favorable presumptions of the legal process. Others might recall the MOVE bombing in Philadelphia and the deaths of the Branch Davidians as a result of law enforcement actions gone awry. On the other hand American servicement have been prosecuted and convicted for violations of the laws and codes of war, despite the fact that collateral damage deaths and infliction of misery on non-combatants are accepted as inherent in the nature of warfare. The facile equation of "law enforcement model=protection of rights" and "enemy combatant model= violation of rights" is not validated by experience.
When someone is apprehended in the course of committing a terrorist act against the United States, we have a practical choice as to whether to treat that individual either as a criminal defendant, or as an agent of an ongoing terrorist enterprise, the treament of whom might influence the success of that enterprise. The latter course may involve indelicate treatment, and arouse charges of rejecting societal and cultural values, "becoming no better than the terrorists," in a convenient shorthand, while the former may provide legal sanctuary to information and intelligence beneficial to a continuing threat. The concept of threat is central to resolving this dilemma.
When the typical criminal is apprehended, it is often both reasonable and legitimate to presume that the threat posed by that criminal has abated. Harsh interrogation, for example, would serve only to assist the state in prosecuting the individual, with the attendant risks that the prosecution would be tainted by such interrogation. It is altogether reasonable to forego treatment that has the potential to wrongly secure an accused's contribution to his own conviction. If in fact the threat posed by a criminal enterprise is eliminated, or nearly so, by the apprehension and detention of an isolated suspect, then the social benefits of prosecuting with strict observance of due process outweigh those of using coercive methods to facilitate prosecution. If the purpose of interrogation is only to obtain information for the purpose of implicating the accused in a crime and thereby securing his conviction, and that is the only purpose, then strict observance of due process is proper.
However building a case for prosecution of the accused is not the only purpose of interrogation, and treatment of the detainee is not solely dictated by that interest. It sometimes occurs that capture and detention of a single person or group of persons does not in itself significantly diminish the threat posed by their activities. It is the threat that persists after apprehending the suspects that gives rise to the dilemma of how the captured should be treated. Popular culture presents the "ticking time bomb" scenario, but this is not only dismissed, but ridiculed as far-fetched and hysterical. Opponents of harsh interrogation or other tactics that fall short of Bill of Rights protections claim that some interrogation tactics consititute torture; so in an effort to begin an analysis from a reference of consensus, let us assume that torture is something that should be opposed.
If Jack Bauer provides too incredible a reach by which to ponder the issue, one can at least acknowledge that the names of Jessica Lumford and Polly Klass and Mary Vincent evoke an all to tragic reality. So assume a case where a child has been abducted, and there is reason to believe that child is subject to torture and murder. If police apprehend a suspected accomplice who may have information that would lead to ending the child's ordeal, it is a rather nuanced argument to hold that the child must suffer so that "the system" might pay homage to its due process principles. Even though the person in custody may no longer pose a personal threat, the fact is that the abducted child is still in peril, and a society that would accommodate the torture and murder of a child in favor of a fastidious criminal procedure can not be regarded as just or civilized, or indeed worthy of judging criminals.
Further, if we assume that a policeman happens upon the child's abductor in the process of harming the child, and the abductor does not respond to directives to stop, only a very malformed and intolerant conscience would hold that violence against the perpetrator would infringe his rights. Certainly, the policeman would be justified in defending innocent life by drilling the perpetrator through the head with a bullet, without regard the suspect's ex post facto opportunity to argue his right to harm the child. If the law is therefore justified in depriving a suspect of life to prevent the torture of a child, it confounds logic to hold that the law must forego the same result (preventing the torture and death of a child) by interrogating a person who is safely in custody in a manner that is concerned solely with fifth and sixth amendment jurisprudence. At most, society would have to accpt that information obtained from such interrogation could not be used in prosecutions that arise from the crime. But even then, if a child must suffer so that the law not be offended, then the law must fall.
The propriety of how accused person's are treated must consider basic human rights and human decency. It must respect the protections for the accused's rights and the precedents of our jurisprudence. But it must also accommodate those instances where threats remain, and cannot be subordinated to mindless adherence to detatched procedures at the cost of unnecessary innocent suffering. The whole point of having those procedures is of course to minimize the risk that innocent people will suffer within the criminal justice system. Adherence to procedural protocol is very laudable when a threat expires with detention of a particular suspect, but if the threat is known persist despite the accused being detained, a moral society will sometimes have to choose to eliminate such threat to innocents at the expense of other concerns. Given this, it is difficult to see how conferring criminal procedure rights on "enemy combatants," when the threat of which they are part persists after their capture, benefits any legitimate societal interest.
Before becoming too comfortable with a clear distinction between a law-enforcement and more conventional war model of the issue, it might be useful to recall that law enforcement officials machine-gunned Bonnie Parker and Clyde Barrow in an ambush designed for that purpose. John Dillinger was shot on the spot. In neither case were the deceased afforded the opportunity to plead special circumstances to a court of law or avail themselves of the favorable presumptions of the legal process. Others might recall the MOVE bombing in Philadelphia and the deaths of the Branch Davidians as a result of law enforcement actions gone awry. On the other hand American servicement have been prosecuted and convicted for violations of the laws and codes of war, despite the fact that collateral damage deaths and infliction of misery on non-combatants are accepted as inherent in the nature of warfare. The facile equation of "law enforcement model=protection of rights" and "enemy combatant model= violation of rights" is not validated by experience.
When someone is apprehended in the course of committing a terrorist act against the United States, we have a practical choice as to whether to treat that individual either as a criminal defendant, or as an agent of an ongoing terrorist enterprise, the treament of whom might influence the success of that enterprise. The latter course may involve indelicate treatment, and arouse charges of rejecting societal and cultural values, "becoming no better than the terrorists," in a convenient shorthand, while the former may provide legal sanctuary to information and intelligence beneficial to a continuing threat. The concept of threat is central to resolving this dilemma.
When the typical criminal is apprehended, it is often both reasonable and legitimate to presume that the threat posed by that criminal has abated. Harsh interrogation, for example, would serve only to assist the state in prosecuting the individual, with the attendant risks that the prosecution would be tainted by such interrogation. It is altogether reasonable to forego treatment that has the potential to wrongly secure an accused's contribution to his own conviction. If in fact the threat posed by a criminal enterprise is eliminated, or nearly so, by the apprehension and detention of an isolated suspect, then the social benefits of prosecuting with strict observance of due process outweigh those of using coercive methods to facilitate prosecution. If the purpose of interrogation is only to obtain information for the purpose of implicating the accused in a crime and thereby securing his conviction, and that is the only purpose, then strict observance of due process is proper.
However building a case for prosecution of the accused is not the only purpose of interrogation, and treatment of the detainee is not solely dictated by that interest. It sometimes occurs that capture and detention of a single person or group of persons does not in itself significantly diminish the threat posed by their activities. It is the threat that persists after apprehending the suspects that gives rise to the dilemma of how the captured should be treated. Popular culture presents the "ticking time bomb" scenario, but this is not only dismissed, but ridiculed as far-fetched and hysterical. Opponents of harsh interrogation or other tactics that fall short of Bill of Rights protections claim that some interrogation tactics consititute torture; so in an effort to begin an analysis from a reference of consensus, let us assume that torture is something that should be opposed.
If Jack Bauer provides too incredible a reach by which to ponder the issue, one can at least acknowledge that the names of Jessica Lumford and Polly Klass and Mary Vincent evoke an all to tragic reality. So assume a case where a child has been abducted, and there is reason to believe that child is subject to torture and murder. If police apprehend a suspected accomplice who may have information that would lead to ending the child's ordeal, it is a rather nuanced argument to hold that the child must suffer so that "the system" might pay homage to its due process principles. Even though the person in custody may no longer pose a personal threat, the fact is that the abducted child is still in peril, and a society that would accommodate the torture and murder of a child in favor of a fastidious criminal procedure can not be regarded as just or civilized, or indeed worthy of judging criminals.
Further, if we assume that a policeman happens upon the child's abductor in the process of harming the child, and the abductor does not respond to directives to stop, only a very malformed and intolerant conscience would hold that violence against the perpetrator would infringe his rights. Certainly, the policeman would be justified in defending innocent life by drilling the perpetrator through the head with a bullet, without regard the suspect's ex post facto opportunity to argue his right to harm the child. If the law is therefore justified in depriving a suspect of life to prevent the torture of a child, it confounds logic to hold that the law must forego the same result (preventing the torture and death of a child) by interrogating a person who is safely in custody in a manner that is concerned solely with fifth and sixth amendment jurisprudence. At most, society would have to accpt that information obtained from such interrogation could not be used in prosecutions that arise from the crime. But even then, if a child must suffer so that the law not be offended, then the law must fall.
The propriety of how accused person's are treated must consider basic human rights and human decency. It must respect the protections for the accused's rights and the precedents of our jurisprudence. But it must also accommodate those instances where threats remain, and cannot be subordinated to mindless adherence to detatched procedures at the cost of unnecessary innocent suffering. The whole point of having those procedures is of course to minimize the risk that innocent people will suffer within the criminal justice system. Adherence to procedural protocol is very laudable when a threat expires with detention of a particular suspect, but if the threat is known persist despite the accused being detained, a moral society will sometimes have to choose to eliminate such threat to innocents at the expense of other concerns. Given this, it is difficult to see how conferring criminal procedure rights on "enemy combatants," when the threat of which they are part persists after their capture, benefits any legitimate societal interest.
Friday, January 08, 2010
Why Is Healthcare So Expensive?
Why is healthcare so expensive? If you are a politician you instictively assume that it because of "greed, fraud, waste" of industry fatcats. If you are an industry fatcat, you assume that it is because of the irresponsibility of spoiled patients, churlish doctors and meddling bureaucrats. And then throw in tort lawyers, pharmaceutical companies, unions, demagogues, and various undefined predators. I submit that this is a pretty typical schematic of the assumptions underlying current healthcare reform legislation. What each of these assumptions has in common is some questionable motive on the part of someone. I submit that the cost of American healthcare is really more a result of more benign factors and expectations. In my opinion healthcare is expensive because of :
1.) Performance. As I have said befire, there is a reason why a Ferrari costs twenty times more than a Dodge Omni, and it is not because the Ferrari goes twenty times faster or farther. Marginal increments in high performance systems cost considerably more than proportional improvements in less ambitious systems. Excellence costs disproportionally more than adequacy, and Americans want and have been willing to pay for excellence.
2.) Access. If you need your knee replaced in a fair sized American city, you can go to the local medical center. Or you can go to a specialty hospital or to a surgical center. These options allow you to schedule your procedure within a reasonable time, and not subject to operative room availability that is subject to ruptured appendices, multi-trauma car accidents, dissecting aortas, or perforated bowels. This ready access requires a certain amount of redundancy and redundancy costs money.
3.) Uncertainty. Lets say you have chest pain. A skilled practitioner can take a low tech history and physical and tell you wiht ~85% certainty that you are not having a heart attack, and that he thinks the cause is esophageal spasm, or anxiety. The 15% uncertainty is unnerving, so you are willing to pay for cardiac enzymes that can tell with 95% certainty that you are not having a heart attack. But it's your heart we are talking about so you get parked in an observation unit, with telemetry monitoring, and because something caused the pain, you get a nuclear medicie study the next day. (The readiy availability of the nuclear medicine study also costs money as mentioned above.) But you still don't know what caused you to go the ER and you want to find out. You don't like uncertainty where your health is concerned. You get a specialized CT scan and if this doesn't answer the question you are scheduled for a swallowing study. If you are having headaches, how much are you willing to spend to be assured that they are due to tension and not a tumor or an aneurysm?
4.) Choice. Heaven forbid you are given a diagnosis of cancer. There are several treatment options, the cheapest of which is disfiguring, or disabling surgery. Or you can opt for one the newer radiation techniques, chemotherapy protocols, high tech reconstruction, or some high tech monoclonal antibody therapy. Maintining these options and the expertise to use them costs money, money that we americans have been willing to spend in the private insurance market, until our politicians told us that we aren't.
5.) Autonomy. There is no one other than the patient who can tell us how important the last month of his life is to him. There is no reliable way of telling that the three months he spends at home with his daughter is less meaningful than the three months that a motorcycle crash victim spends in inpatient and outpatient rehabilitiation. The lifestyle and healthcare choices of individual people are matters of liberty and individual dignity, not actuarial variables to be guessed at by remote bureaucrats. It is much cheaper for treatment decisions to be made by venal accountants, it is much more meaningful for these same decisions to be made by unique and irreplaceable people.
6.) Fantasy. We all engage in illusions that are comforting, or that provide emotional reassurance, even if we know these illusions are contrary to reality. We assume that the natural condition of mankind is to die at home in his bed surrounded by loved ones, of old age. We want to think that our doctors will succeed in whatever therapeutic interventions they try, regardless of reason, and if the outcome is less than expected, a jury will be asked to right the wrong. We want to pretend that the 87 year old who just had a massive stroke will get back on her feet "because she's always been active" as soon as she is able to eat, and as a consequence we are willing to spend significant money for what may be a one-in-a-hundred shot. We do this, not because we are greedy or stupid, but because we look at our loved ones a certain way. It may be, in the case of healthcare, that these are futile expenditures, but the underlying presumption, that human life is never an ordinary thing permeates all that we do and all that we value as a society. The money we spend on fantastic healthcare ambitions is simply a consequence of our values.
7.) Responsiveness. Ambulances and emergency rooms respond to everyone who has a medical emergency based only on the fact that the patient is a human being. It requires infrastructure to ensure 24-hour coverage, aerial transport if necessary, and tertiary care centers when needed. Again, we American have been willing to pay for this until our enlightened politicians tell us that we aren't. The simple fact is that government provided healthcare cannot keep up with the private healthcare system in providing Americans with the attributes described above. So they tell us the government must take over and by fiat and diktat deprive us of many of the qualities of our healthcare system that we have already indicated are important to us. The reason, after all that Obama says we need to reform healthcare is not because it costs too much (it doesn't "Consume" 17% of GDP, it produces it) it is because the government is not very good at providing it.
1.) Performance. As I have said befire, there is a reason why a Ferrari costs twenty times more than a Dodge Omni, and it is not because the Ferrari goes twenty times faster or farther. Marginal increments in high performance systems cost considerably more than proportional improvements in less ambitious systems. Excellence costs disproportionally more than adequacy, and Americans want and have been willing to pay for excellence.
2.) Access. If you need your knee replaced in a fair sized American city, you can go to the local medical center. Or you can go to a specialty hospital or to a surgical center. These options allow you to schedule your procedure within a reasonable time, and not subject to operative room availability that is subject to ruptured appendices, multi-trauma car accidents, dissecting aortas, or perforated bowels. This ready access requires a certain amount of redundancy and redundancy costs money.
3.) Uncertainty. Lets say you have chest pain. A skilled practitioner can take a low tech history and physical and tell you wiht ~85% certainty that you are not having a heart attack, and that he thinks the cause is esophageal spasm, or anxiety. The 15% uncertainty is unnerving, so you are willing to pay for cardiac enzymes that can tell with 95% certainty that you are not having a heart attack. But it's your heart we are talking about so you get parked in an observation unit, with telemetry monitoring, and because something caused the pain, you get a nuclear medicie study the next day. (The readiy availability of the nuclear medicine study also costs money as mentioned above.) But you still don't know what caused you to go the ER and you want to find out. You don't like uncertainty where your health is concerned. You get a specialized CT scan and if this doesn't answer the question you are scheduled for a swallowing study. If you are having headaches, how much are you willing to spend to be assured that they are due to tension and not a tumor or an aneurysm?
4.) Choice. Heaven forbid you are given a diagnosis of cancer. There are several treatment options, the cheapest of which is disfiguring, or disabling surgery. Or you can opt for one the newer radiation techniques, chemotherapy protocols, high tech reconstruction, or some high tech monoclonal antibody therapy. Maintining these options and the expertise to use them costs money, money that we americans have been willing to spend in the private insurance market, until our politicians told us that we aren't.
5.) Autonomy. There is no one other than the patient who can tell us how important the last month of his life is to him. There is no reliable way of telling that the three months he spends at home with his daughter is less meaningful than the three months that a motorcycle crash victim spends in inpatient and outpatient rehabilitiation. The lifestyle and healthcare choices of individual people are matters of liberty and individual dignity, not actuarial variables to be guessed at by remote bureaucrats. It is much cheaper for treatment decisions to be made by venal accountants, it is much more meaningful for these same decisions to be made by unique and irreplaceable people.
6.) Fantasy. We all engage in illusions that are comforting, or that provide emotional reassurance, even if we know these illusions are contrary to reality. We assume that the natural condition of mankind is to die at home in his bed surrounded by loved ones, of old age. We want to think that our doctors will succeed in whatever therapeutic interventions they try, regardless of reason, and if the outcome is less than expected, a jury will be asked to right the wrong. We want to pretend that the 87 year old who just had a massive stroke will get back on her feet "because she's always been active" as soon as she is able to eat, and as a consequence we are willing to spend significant money for what may be a one-in-a-hundred shot. We do this, not because we are greedy or stupid, but because we look at our loved ones a certain way. It may be, in the case of healthcare, that these are futile expenditures, but the underlying presumption, that human life is never an ordinary thing permeates all that we do and all that we value as a society. The money we spend on fantastic healthcare ambitions is simply a consequence of our values.
7.) Responsiveness. Ambulances and emergency rooms respond to everyone who has a medical emergency based only on the fact that the patient is a human being. It requires infrastructure to ensure 24-hour coverage, aerial transport if necessary, and tertiary care centers when needed. Again, we American have been willing to pay for this until our enlightened politicians tell us that we aren't. The simple fact is that government provided healthcare cannot keep up with the private healthcare system in providing Americans with the attributes described above. So they tell us the government must take over and by fiat and diktat deprive us of many of the qualities of our healthcare system that we have already indicated are important to us. The reason, after all that Obama says we need to reform healthcare is not because it costs too much (it doesn't "Consume" 17% of GDP, it produces it) it is because the government is not very good at providing it.
Saturday, December 19, 2009
Of all of the promises forwarded in support health care reform, the most risible is that it will reduce fraud and abuse. Think for a moment how much legislative energy is devoted to "closing loopholes" in one set of statutes or another. Look at how many bills seek to amend current laws because of unanticipated exploitation that degrades the law's effectiveness. the simple fact is that in most cases, people who make their living exploiting laws are much, much...much smarter than the politicians who make those laws.
When a ship is commissioned, it is customary to subject it to a "shakedown cruise" to work out glitches in the ship's systems, uncover defects in design or construction and generally verify that the vessel is suitable to the purposes for which it is intended. Obviously, every eventuality cannot be foreseen, and problems only become apparent when subjected to real-world use. Now consider that our Congress seeks to impose a novel scheme, creating over a hundred new entities that are to interact somehow, onto an industry that involves sixteen percent of the American economy. Does anyone seriously think that the system will not contain a miasma of faults, opportunities for fraud, insufficient oversight and inefficiencies born of too much wishful thinking and not enough experience?
Some people will become fabulously wealthy exploiting the half-baked policies, venal pandering and sheer stupidity that Congress will apply to healthcare. Anyone who can't see this coming miles away simply isn't paying attention.
When a ship is commissioned, it is customary to subject it to a "shakedown cruise" to work out glitches in the ship's systems, uncover defects in design or construction and generally verify that the vessel is suitable to the purposes for which it is intended. Obviously, every eventuality cannot be foreseen, and problems only become apparent when subjected to real-world use. Now consider that our Congress seeks to impose a novel scheme, creating over a hundred new entities that are to interact somehow, onto an industry that involves sixteen percent of the American economy. Does anyone seriously think that the system will not contain a miasma of faults, opportunities for fraud, insufficient oversight and inefficiencies born of too much wishful thinking and not enough experience?
Some people will become fabulously wealthy exploiting the half-baked policies, venal pandering and sheer stupidity that Congress will apply to healthcare. Anyone who can't see this coming miles away simply isn't paying attention.
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