Wednesday, May 20, 2009


It is not original to note that there is a difference between power and influence. This distinction is helpful in understanding the dynamics and course of political maneuvering, as well as give some indication as to what may become of the current political fashions.

Power and influence are closely intertwined, but there are crucial distinctions that determine the fate of political movements. The most obvious distinction is that dead people can be influential, but are not powerful. This distinction is fundamental, because it is the clearest illustration that influence is durable, but power is much more finite. Power is essentially endothermic, requiring a constant input of energy to maintain itself, whereas influence is exothermic, animating others and providing energy beyond the temporal reach of its source.

The essence of power is to determine who wins and who loses in same area of human endeavor. Influence is the capacity to focus the thoughts and principles that animate the activities and enterprises of others. Because of the contemporaneous realtionship between power and its subject, power is much more prone to corruption. Power is result of coersion where influence is more concerned with persuasion.

Obviously, power and influence often, in fact usually, reside in the same person or group. Power can sometimes be converted into influence and vice versa. Because power is more immediately apparent, it is more susceptible to corruption. Excessive uses of power may lead to diminishing influence, especially where power is exercised through the use of force.


The impending resignation of Justice Soutrer from the Supreme Court, and the anticipation regarding appointment of his successor overshadows a more fundamental issue in American law. This issue is the erosion of legal and constitutional presumptions.

Although statutes are presumed to be valid, there is now in fact a presumption that all state legislation regarding social issues is unconstitutional. This is because such legislation results in groups that may feel excluded. Courts have replaced the "benevolent detachment" standard of establishment clause cases with a virtually conclusive presumption that religion is improper in the public arena. Even though Roe v. Wade specifically held that states could outlaw abortion in the third trimester, partial birth abortion survives because no statute outlawing it has overcome the presumption that such statutes are, and shall always be, unconstitutional.

This intellectually sloppy and illegitimate climate is an unchecked metastasis of the valid doctrine of strict scrutiny. Ideologically predisposed judges and justices have spread this concept to all corners of their ideological fancy and have left us with such abominations as Justice Breyer stating that he will look to foreign jurisdictions for reasoning that supports a conclusion that he wants to reach but which is unsupported by stare decisis.

That this slow erosion has occurred can be objectively verified by considering the treatment of privacy over the last forty years. Of course, when Griswold v Connecticut and Roe v. Wade extended protection to contraception and abortion, the legal concept involved was one of liberty and not privacy. However, there was no constitutional language, nor precedent, nor for that matter public support for the notion that sexual matters could not be regulated by legislation. After forty years of this, however Justice Kennedy in Planned Parenthood v. Casey, dropped the charade and spoke of abortion in terms of liberty, not privacy. ("These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.") The presumption thus evolved from a nebulous non sequitur dredged up from the penumbra of search and seizure, to a full blown liberty interest against which the forces of government should not prevail.

One does not need to be a lawyer to identify the unspoken legal presumptions of twenty first century America: Gay marriage is an existing, yet unrecognized right that merely needs judicial protection; Physician-assisted suicide is an issue awaiting hard facts to make bad law; rights should be unencumbered by responsibilities whenever practical; subjective sensitivities are entitled to the most vigorous legal protections; group rights should be fostered and expanded even beyond the point that the groups are no longer recognizable.

The biggest presumption that has changed, however, is that courts should confine themselves to the role conceived for them by the founders.

Tuesday, May 12, 2009


Here, in my opinion are the immutable facts that must be addressed in any healthcare reform discussion. These are not the breezy idealistic musings, populist rhetoric, or doctrinal appeals that make for good politics but bad policy. These are the realities.

1.) Healthcare is not a right. Those that assert that it is are indulging in an unhelpful abstraction, because there is no practical way to provide healthcare services in a manner that is consistent with the notion of rights. Asserting that healthcare is a right is nothing more than a political gambit that is divorced from reality.

2.) The huge marginal costs of healthcare expenditures goes to providing a relatively small amount of high-performance services. The Pareto principle suggests that 80% of healthcare services result from 20% of the expenditures, and consequently, 20% of the high-end services consume 80% of the costs. The ratios are obviously somewhat arbitrary, but do serve to illustrate the fact that a disproprtionate amount of healthcare resources are consumed in intensive care units, tertiary care facilities in the last weeks of life, and in interventions with low likelihoods of clinical success. "Basic" halthcare is realtively cheap, but Americans have come to expect (and apparently are willing to pay for) much more than the basics.

3.) Healthcare is a limited resource. Resources require stewards. Stewards should know more than book-learning about what it is they are responsible for. The most appropriate stewards of healthcare resources are physicians, but physicians have a multitude of conflicts and perverse incentives imposed upon them that impair their ability to realize the most efficient use of healthcare resources. Government bureaucrats are not good stewards. Just as there is no bureaucreat who knows better than a parent what is best for an individual child, there is no bureaucrat who knows what the best healthcare recommendations are for a particular patient.

4.) There is no consensus as to what the definition of healthcare is. This creates the conditions that will allow healthcare expenditures to grow exponentially as politically connected causes are able to claim more and more services by arguing that they are part of healthcare. These typically begin with appeals to hard cases, with the underlying assumption that, despite attempts to ration or craft clinical practice guidelines, exceptions will be made for photgenic and sympathetic people disadvantaged by bureaucratic medicine, thus opening the floodgates to healthcare policy being made not only by unqualified bureaucrats and politicians, but by Oprah and Geraldo as well.

5.) The assumption underlying most of the good-sounding calls for healthcare reform, particularly the single-payer utopians, is that healthcae is really relatively straightforward: a patient has a complaint, a doctor orders a test to figure out what is wrong and orders a cure. This is not even remotely similar to the reality. Physicians do not have the same luxury that a car mechanic or washing machine repairman have. A physician can not take a patient apart, swap out parts and see if that fixes the problem. Not every disease has a consistent presentation or definitive test. Not every symptom complex is indicative of disease. A good many patients have good clinical outcomes solely because of the gifts and expertise of experienced practitioners, and these cannot be replaced or even approximated by clinical practice guidelines, critical pathways, or other cookbook approaches to healthcare. Making practice standards more uniform benefits public health statisticians and self-perpetuating bureaucracies. They do little to replace the insight, experience and intuition of skilled practitioners.

6.) Claims about healthcare reform being an element of social justice really suggest the foundation of market-based reform. It is simply common sense to recognize that if a person chooses to forego an intervention and opt not to pay for it as part of his personal healthcare, he should not be compelled to pay for it for someone else. And likewise, if if he opts not to pay for such intervention for his own health, he should not expect others to provide it for him at someone else's expense.

7.) Healthcare coverage, in the sense of insurance, does not provide access to healthcare services. The insurance aspect of health insurance insures the assets of the person against financial ruin precipitated by medical expenses. Access does not result from insurance, or compassion or government mandates. Access results mostly from industriousness of people who benefit from providing such access, and from policies that recognize the mutually beneficial relationship between motivated providers and the society that is beneficiary of their efforts.

Monday, May 04, 2009


The fundamental flaw in the principle of "spreading the wealth" arises from the following:

The rate at which a society produces wealth is dependent on directing those benefits to those who are most adept at producing wealth. Arbitrarily confiscating wealth from the one who produced it and giving it to someone who has contributed little or nothing simply decreases the rate at which wealth will be produced in the future.


We hear quite frequently how smart President Obama and Rahm Emanuel and Barney Frank and Hilary Clinton are. Even political opponents remark on this as a prelude to policy disagreements. "Smart" now seems to be its own political entity as President Obama endorses "smart diplomacy," "smart meters," "smart cars," etc. etc. It is presumably impolite to notice how this seems a reprise of the "best and the brightest" from the 1960s.

There is something curious however about how these really smart people think. People that don't have nearly the reputation for smarts as Mr. Obama or Noam Chomsky can predict with impressive accuracy what those smart people think about particular topics. People of unremarkable intelligence know what the really smart people are going to say before the smarties say it. Susan Sontag was supposed to be one of these supersmart people but her comments after the terrorist attacks of 9/11/2001 were as predictable as the coming dawn. Her thoughts were less suggestive of deep intellectual inquiry than they were the products of an articulate machine, more deterministic than inspired.

The reality is less that our leaders devise policies based on their unique intellectual nimbleness and more that such intellectual gifts are merely used to advance policies that are products primarily of personality, emotions, and subjective taste. "Smart" isn't enough, nor should it be particularly comforting.