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.

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 The observation that the rules of such cases are occasionally overturned and superceded are evidence that there may not be a right answer; the Supreme Court after all delivers its judgments as opinions.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.

Wednesday, June 01, 2011


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.