Mark D. White

Lyle Denniston at SCOTUSblog has begun a four-part series on the impending same-sex marriage controversy at the Supreme Court. From the introduction to his first post (discussing the role that constitutional standards will play in any such case):

This is the first article in a four-part series explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage.   At its private Conference on Friday, the Court is scheduled to consider ten separate petitions seeking review of lower court decisions on that issue.  Eight of the petitions deal with the constitutionality of a 1996 federal law, the Defense of Marriage Act, as it applies to gays and lesbians who are already legally married under state law.  One petition deals with a similar state law adopted in 2009 in Arizona for state employees.  And the tenth involves the constitutionality of California’s “Proposition 8,” a voter-approved ban on same-sex marriage in that state.  Today’s first article in the series deals with the choice of a constitutional “standard of review” — that is, the test to be used to judge the validity of any of these laws.  Later articles in the series will deal with the legal arguments for and against same-sex marriage, and with the options the Justices have as they consider the ten petitions.

(Thanks to Robert Loerzel and Felicia Yonter on Twitter from the link.)

Mark D. White

Adam Liptak has a "Sidebar" in today's New York Times titled "'Politicians in Robes? Not Exactly, but..." discussing judges' voting records and the politics of the president who nominated them, citing data that finds a clear link and accusing judges of deciding cases based on "ideology." My comment is below:

Of course judges are ideological, but this does not necessarily translate into naked politics. Each judge has his or her own style of jurisprudence that may appeal more to presidents of one party or the other. A president will nominate judges with judicial philosophies that support his (or, someday, her) policy agenda. From the point of the view of presidents, judges and their judicial philosophies are tools, but to the judges, they are acting on principle. There is little ground for reading a judge's record as political rather then principled simply because his or her decisions are often in favor of the party of the president who nominated him or her.

I have more to say on this theme in this earlier post (written before the Supreme Court decided the Obamacare case, obviously).

Jonathan B. Wight

Lincoln (the movie directed by Steven Spielberg) opened last week. It was largely shot in my hometown of Richmond, Virginia. The movie was ironic on many levels. The scenes depicting the debate over freeing the slaves in U.S. House of Representatives in 1865 were actually shot inside the Virginia General Assembly. Those are the exact seats where the Confederate Congress met to resist such a move.

While the Emancipation Proclamation had already freed slaves in rebellious areas, slaves were still in bondage in others areas; moreover, the Proclamation was a war powers act that likely would have no legal standing once peace was declared.

If nothing were done, many freed slaves would be forced back to the plantations after the war. That is why Lincoln fought to pass the 13^th Amendment before Lee surrendered. In the movie he even stonewalled a peace delegation from the Confederacy to keep the war going so peace would come with better terms for slaves. What is surprising is how much resistance the 13^th Amendment aroused, even among Northerners.

David Brooks has a good discussion of the ethical ironies. Lincoln, the man of high principle, fighting for the natural rights of all men, used bribery, lies, deceit, and trampling the constitution to cajole unwilling congressmen to sign the Thirteen Amendment.

The movie makes two contributions. First, it is wonderfully acted, scripted, and directed, building to an exciting climax even though we all know the outcome. Daniel Day Lewis and Sally Fields are likely Oscar contenders for their roles.

Second, to Brooks this movie illustrates the "nobility" of politics if used by a person of character: "The hero has a high moral vision, but he also has the courage to take morally hazardous action in order to make that vision a reality." Other examples of moral irony come to mind: Lyndon Johnson twisting arms to achieve the Civil Rights Act of 1964.

Lincoln is a fine docu-drama that will educate and entertain while stimulating ethical issues for the classroom.

[Minor note: I was an extra in Gore Vidal's movie Lincoln shot in Richmond with Sam Waterston and Mary Tyler Moore in 1987. We were up for several 4:30 am casting calls and shooting all day until midnight to produce some whirling Viennese waltzes for Lincoln's second inaugural ballroom scene. While I still have the desirable scraggly beard and hair for this era, I didn't have the time to be an extra this go round.]

Jonathan B. Wight

In the current Harvard Business Review Ronald Coase lambasts economists for losing touch with how real businesses and entrepreneurs operate.

This is a perennial theme since the time I went to graduate school. Back then, we called the excessive reliance on mathematical gymnastics "mental mastur**tion"—because typically models were unglued from history, culture, ethics, and other institutions that ground behavior and set the context in which incentives interact with duties and commitments.

Things have changed remarkably since then with the rise of institutional economics, experimental economics, behavioral economics, and yes—even ethics and economics.

Yet Coase, who won the Nobel Prize in 1991, is still not pleased with the core discipline of microeconomics. He notes:

"Today, a modern market economy with its ever-finer division of labor depends on a constantly expanding network of trade. It requires an intricate web of social institutions to coordinate the working of markets and firms across various boundaries. At a time when the modern economy is becoming increasingly institutions-intensive, the reduction of economics to price theory is troubling enough. It is suicidal for the field to slide into a hard science of choice, ignoring the influences of society, history, culture, and politics on the working of the economy." (emphasis added)

[Thanks to Paul Zak for pointing out this article. BTW, Zak is a plenary speaker at the ASSA meetings in San Diego. Catch his talk on January 3.]

Jonathan B. Wight

Something made me think of Walt Whitman today.

It could have been the gorgeous walk along the north bank of the James River, with all the trees shedding leaves and a million colors and smells ravaging the senses.

It could have been reading a research proposal having to do with "self-esteem"—ostensibly related to being "different or unique."

But to Whitman, what made him special is that he was not different; he celebrated his unique uniformity. He was "form'd from this soil, this air…" and "every atom belonging to me as good belongs to you." His "creeds and schools [are] in abeyance."

One could not be more egalitarian than this:

Song of Myself (Leaves of Grass 1855 and on)

I celebrate myself, and sing myself,

And what I assume you shall assume,

For every atom belonging to me as good belongs to you.

I loafe and invite my soul,

I lean and loafe at my ease observing a spear of summer grass.

My tongue, every atom of my blood, form'd from this soil, this air,

Born here of parents born here from parents the same, and their

parents the same,

I, now thirty-seven years old in perfect health begin,

Hoping to cease not till death.

Creeds and schools in abeyance….

Jonathan B. Wight

In my previous post I elevated Marco Rubio into a possible contender. Let me withdraw that.

Rubio has recently shown himself to be unable to stand on principle against flat-earthers. When asked how old the earth was he came back with this mumbo-jumbo:

"I'm not a scientist, man. I can tell you what recorded history says, I can tell you what the Bible says, but I think that's a dispute amongst theologians and I think it has nothing to do with the gross domestic product or economic growth of the United States. I think the age of the universe has zero to do with how our economy is going to grow. I'm not a scientist. I don't think I'm qualified to answer a question like that. At the end of the day, I think there are multiple theories out there on how the universe was created and I think this is a country where people should have the opportunity to teach them all. I think parents should be able to teach their kids what their faith says, what science says. Whether the Earth was created in 7 days, or 7 actual eras, I'm not sure we'll ever be able to answer that. It's one of the great mysteries."

I don't think the questioner cares about Rubio's scientific credentials but rather his truth-telling credentials. Can he just state what every school child should know—the earth is about 4.5 billion years old. And human-like beings have been here for the past several million of those years.

From Krugman:

As I like to say, the GOP doesn't just want to roll back the New Deal; it wants to roll back the Enlightenment.

But here's what you should realize: when Rubio says that the question of the Earth's age "has zero to do with how our economy is going to grow", he's dead wrong. For one thing, science and technology education has a lot to do with our future productivity — and how are you going to have effective science education if schools have to give equal time to the views of fundamentalist Christians?

More broadly, the attitude that discounts any amount of evidence — and boy, do we have lots of evidence on the age of the planet! — if it conflicts with prejudices is not an attitude consistent with effective policy. If you're going to ignore what geologists say if you don't like its implications, what are the chances that you'll take sensible advice on monetary and fiscal policy? After all, we've just seen how Republicans deal with research reports that undermine their faith in the magic of tax cuts: they try to suppress the reports.

In the Dark Ages the Church held sway over science. It is frightening that leading GOP contenders are willing to condone that approach again. The religious life is not in necessary conflict with science, but it is in conflict with prejudice and ideology.

Jonathan B. Wight

Earlier posts here and here dealt with the claim that Democrats were freeloaders, lacking the virtue of prudently taking responsibility for their own well-being.

Mitt Romney doubled down on this last week, essentially arguing that free contraceptives and handouts to minorities won the election for Obama.

Here's a different Republican view this week: "I don't want to rebut [Romney] point by point. I would just say to you, I don't believe that we have millions and millions of people in this country that don't want to work," said Senator Marco Rubio of Florida, a possible 2016 contender.

Governor Bobby Jindal of Louisiana was even harsher, perhaps preparing his way for 2016:

"No, I think that's absolutely wrong," he said at a press conference that opened the [Republican Governor's Association] post-election meeting here. "Two points on that: One, we have got to stop dividing the American voters. We need to go after 100 percent of the votes, not 53 percent. We need to go after every single vote.

"And, secondly, we need to continue to show how our policies help every voter out there achieve the American Dream, which is to be in the middle class, which is to be able to give their children an opportunity to be able to get a great education. … So, I absolutely reject that notion, that description. I think that's absolutely wrong."

But there's more from Jindal, who sounds like an Adam Smith radical:

"We've got to make sure that we are not the party of big business, big banks, big Wall Street bailouts, big corporate loopholes, big anything," Jindal told POLITICO in a 45-minute telephone interview. "We cannot be, we must not be, the party that simply protects the rich so they get to keep their toys….. "I think special interests in general have certainly too much influence in Washington, D.C."

Bravo!  A Republican who doesn't reject science or intellectuals, a populist, a centrist.... Can he win the Republican nomination?

Jonathan B. Wight

In economic development a multitude of models try to explain why a country is rich or poor. Personally, I find a diversity of explanations exciting and helpful, since geography, culture, economic institutions, policies, and luck present themselves with variety over the centuries. Geography matters in terms of natural resources and navigable rivers, and it matters in terms of the hours of daylight per year that impacts crops and affects savings patterns.

But even a modicum of historical digging will reveal that the Mayans were highly developed in the first millennium and poor later in the same geography. Likewise for Egypt. And Europe was desperately poor until it became rich. Geography isn't operating in isolation, but rather as coincident to and complementary with other multiple factors that affect productivity.

Adam Gopnik reviews critically several new books that seek to promote geography as the be-all and end-all explanation for growth. His conclusion is worth quoting at length:

The continuities of geography are striking. But the discontinuities produced by thought are more striking still. The fruited plain [in the U.S.] did little for the idea of brotherhood until brotherhood took things into its own hands. Once, the sight of a Viking prow coming down a river was as terrifying a sight as any European could imagine. Now the Scandinavian countries are perhaps the most pacific in the world. Whatever changed, it wasn't the shape of Scandinavia. Those Viking ships turned around, and the Vikings eventually became do-gooding Danes, because sense prevailed in the snows. England certainly is an island, and it was water, as much as will, that stopped Hitler. But the transformation there from the gang ethics that dominate human history to democratic reformist ones can hardly be accounted for by mere insularity. Tyranny flourished in the British Isles; and, when it ended, England had not drifted any closer to the Continent. Good ideas matter, as does the creation of the prosperity that good ideas need in order to flourish. Conversation shapes us more than mountains and monsoons can. Human history, like human love, is still made most distinctly face to face.

Jonathan B. Wight

They don't call it a "weed" for nothing. Marijuana outperforms corn in surviving the drought, according to law enforcement officers who can now spot the green plant amidst the water-starved brown fields of Indiana. If there weren't already a myriad of other reasons for considering legalizing (or at least de-criminalizing) marijuana, here's one more reason: it provides a diversified crop for our farmers, and one that is resistant to drought.

Hemp (a cousin to the marijuana plant) was an important cash crop during Virginia's colonial times and could be again today. Hemp is a strong fiber; more than 100,000 pounds of hemp were used to rig the sails of the USS Constitution, America's oldest warship. Legal marijuana would provide an economic boost to farmers and also needed revenue to government, which could tax it.

Legalization would free up law enforcement and courts to focus on more serious crimes. It would reduce the incomes of violent gangs who currently sell the product on black markets, which by their nature degrade the status and respect for law and its officers.

Think of the ban on trade with Cuba alongside the ban on marijuana: both are bad policies and both hot political potatoes. Neither law is rooted in pragmatic cost/benefit analysis but rather what appears to be prejudice and ideology. It's the notion that "if we give an inch, they'll take a mile."

America didn't use that metaphor when we engaged in dialog and rapprochement with China. America similarly repealed Prohibition's ban on alcohol. Marijuana does pose health hazards, but cigarettes and alcohol pose equal or larger health hazards yet they remain legal and regulated.

It is no surprise that many economists (including Nobel laureates) support legalization. Finally, on November 6 voters in Colorado and Washington legalized personal marijuana consumption. Let's hope the Feds respect the states' rights on this.

Mark D. White

My stomach turns at the news that Uganda is set to pass a law that imposes life sentences and sometimes the death sentence for homosexual acts:

KAMPALA, Uganda (AP) — Uganda's anti-gay bill will be passed before the end of 2012 despite international criticism of the draft legislation, the speaker of the country's parliament said Monday, insisting it is what most Ugandans want.

Speaker Rebecca Kadaga told The Associated Press that the bill, which originally mandated death for some gay acts, will become law this year.

Ugandans "are demanding it," she said, reiterating a promise she made before a meeting on Friday of anti-gay activists who spoke of "the serious threat" posed by homosexuals to Uganda's children. Some Christian clerics at the meeting in the Ugandan capital, Kampala, asked the speaker to pass the law as "a Christmas gift."

This is John Stuart Mill's tyranny of the majority at its ugliest: a majority of citizens using the machinery of government to negate the rights of the minority.

Many Americans rejoiced at the success of same-sex marriage referenda in last Tuesday's election, and certainly there was tremendous cause for celebration. But why should gays and lesbians have had to wait for a majority of the electorate to "come around" and "grant" same-sex couples the same access to civil marriage that straight people have? Before this election all same-sex marriage referenda were voted down--a far cry from what Uganda is doing, to be sure, but the spirit is the same, a majority deciding what rights a minority may have.

As I've argued several times on this blog (here and here, for instance), it is a poor validation of basic human rights to have the majority of the electorate vote for them (as encouraging as it may be in reflecting changing attitudes). Gays and lesbians shouldn't have to have their basic rights be "granted" to them by the electorate. They should be recognized as having existed all along by the only institution that can do that: the courts.

The court in Brown v. Board of Education didn't say that "now" segregation is wrong--it said it had always been wrong. The court in Loving v. Virginia didn't say that "now" laws against mixed-race marriage are wrong--it said they have always been wrong. And when the Supreme Court decides that same-sex couple should have the right to marry, they will not say that "now" same-sex couples have that right, but that they have always had that right--and it just took a while for the law to catch up.