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.


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.

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

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


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?

Saturday, June 19, 2010


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.

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.

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."

Monday, May 10, 2010


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.

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.

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.

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.

Wednesday, March 31, 2010


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.

Saturday, March 13, 2010


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.

Monday, January 25, 2010


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.

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.