Tuesday, July 24, 2012

Reading Law: The Interpretation Of Legal Texts, by Scalia and Garner

I started out just recommending this book's Introduction, free as a sample on Kindle, as a good argument for, quite compelling really, what's known as Textualism.

What follows from the Introduction is an elaboration of quite a few canons of construction (including talking about construction as construing, which judges should be doing, and construction as building, which judges shouldn't be doing) which I thought I would take a pass on.

I however started reading them and find their elaboration fascinating and instructive, full of case examples of the "fair reading" theory of Textualism, based primarily on a narrow conception of judges' constrained role in a democracy of interpreting and applying law and not making law.

For example, who truly understands what Originalism is? I, in the end, didn't, though I thought I did.

It's a canon of semantic interpretation under the broader theory of Textualism. It calls for legal words to have the meanings they had when the law was enacted. It distinguishes between the fixed meaning of the law and its evolving application to new conditions. It takes a strong and persuasive view against the idea of the "living constitution," which I did not understand well enough, though I thought I did.

This canon seems unobjectionable to me. What's the argument against it, I wonder?

For non lawyers, at a minimum the Introduction is a great civics lesson. And for people who think about literature the defence of Textualism provides a robust defence of the virtues of the New Criticism.

For any teachers, the Introduction would be a terrific thought piece for senior high school students taking history, philosophy, civics or law courses.

It's well written too with good brief case examples. It's accessible to anyone interested and thoughtful, agree with its arguments or not.

On Aurora and David Thomson on Batman

1. Thomson: http://www.tnr.com/article/film/105280/aurora-and-batman

2. My comment:

...I think Skahn's post gets at what's missing in Thomson's brief piece, which, I think, founders on a logical error. He wants it that Hathaway be wrong about the Aurora slaughter being an "unfathomably senseless act." Thomson wants to begin fathom it, to get causal purchase on it. To try to do so he notes the abundant and well crafted violence in movies and hints at (suggests?) some nexus between that violence and movies as an increasing "loner" experience. To wit, for examples:

... Has no one noticed how alone we are at the movies, or how unreal their violence is?...


... But ask yourself about “loners” in this best of nations, and why some of them need to fantasize over an on-screen power that has missed them out in real life. Look closely at the violence; see how excitingly it is shot and cut; and just listen to the souped-up impact of the blows struck time after time...

So, as I read this, there is, is there not, a tentative thesis lurking here: that we can get some purchase on fathoming this unfathomably senseless act by considering the sheer prevalence of violence in our movies such as Batman typifies? But Thomson, doesn't, as I read him, have the courage of this tentative conviction. He ends his piece by saying we should set aside notions of senselessness and consider what he says as closely as possible--this tantamount to him not owning his idea.

Actually, Thomson's tentative thesis runs into the brick wall of Holmes's obvious psychosis, sociopathy or whatever his mental defect may be identified to be. And here's where I see the pertinence of skahn's comment, even if I take a different meaning than the meaning he intended. I take the idea that violence is bred in our bone and that its aberrational explosion will always occur from time to time in different forms. As that is so, and as we perforce absorb and mediate what we experience, so movie violence such as Batman typifies may clothe an aberrational explosion. Which is to say, the aberrational explosion is antecedent to the form it apes, but is not caused by what it apes. If no Joker in popular culture, then some other heinous villain.

If what I say is right, that movie violence is not the cause of aberrational real violence but may inform how it manifests itself, then what Thomson wants to examine closely will not sustain scrutiny.

One other thing: in wanting to take up Hathaway's idea of "unfathomable senselessness," Thomson confuses her meaning. She was not saying, I'd argue, that there don't exist reasons or causes, presumably buried deeply in the wracked fractures at the base of Holmes's ravaged psyche, for what he did. What she's saying, I'd argue, is that such massive, purposeless and wanton evil is beyond humanel reckoning, beyond moral reckoning. Even with some understanding of the neurological cause and effect of Holmes's slaughter, it defies moral understanding. It defies cultural-become-psychological explanations of which Thomson tentatively speaks. There is a terrible existentiality to it. It just is. It just terribly is.

Thomson's stab at introducing some fathomable sense bearing close examination is a refusal or inability to face up to the truth of Hathaway's words: the world's overwhelming capacity for inexplicable evil and tragedy--the awful mystery of evil itself...

Sunday, July 22, 2012

Gopnik On Smith And What Obama Said: I.E., What Does "That" Mean

A simply excellent note on what Obama said, in his putative "biggest gaffe of the campaign" by Adam Gopnik on what Obama said and Adam Smith, aka, what "that" is: (I liked it so much I'm repeating it word for word rather than just pasting the link.) ....

July 20, 2012, Barack, Mitt, and Adam Smith Posted by Adam Gopnik, The New Yorker

 From the meaning of what “is” is to the meaning of “that”—American political discourse can sometimes move in depressing monotony around its little circles. Where former President Clinton’s defense of his famous sentence on his deposition turned on the problem of the past tense, President Obama’s so-called “un-American” words depend on his using “that” as a kind of pronoun, with the question being the antecedent to which this “that” referred, if that, uh, makes any sense. 

Anyway, his precise words are worth reviewing:

...Look, if you’ve been successful, you didn’t get there on your own. You didn’t get there on your own. I’m always struck by people who think, well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. Let me tell you something—there are a whole bunch of hardworking people out there. If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business—you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet. The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together...

 What President Obama was saying was perfectly clear: the “that” in his statement refers to the bridges and roads and “this unbelievable American system.” He wasn’t, despite what one may have heard from Mitt Romney, saying that you didn’t build your own business. He was saying that your neighbors and ancestors helped. We drive on roads built for each by all. What is strange about this bizarre adventure in amplified untruth, apart from its simple mendacity, is that what the President was saying was not some late arriving, New Deal-style codicil to the theory of free markets; it’s what the theory of free markets is. It’s the premise at the very heart of all free-market theory as Adam Smith—the guy whose profile is on every libertarian tie—conceived it. 

As I had occasion to write in a long piece on Smith’s thought a year or so ago, the notion of Adam Smith as an apostle of laissez-faire who would have recoiled in horror, or even narrowed his eyes in suspicion, at the idea that a healthy state precedes and oversees a truly free market is not merely a caricature of his actual thought—it is in many ways the direct reverse of what he said and argued for length and with great lucidity. Smith’s work comes in two volumes, his “Theory of Moral Sentiments” and his “Wealth of Nations.” In both, his primary concern is not to free mankind from the hold of government but to free the market from the undue influence of a handful of hereditary plutocrats (nothing personal, Mitt) who seek to escape the rules of the market, control their own costs, and set their own prices, contributing only as much to the public weal as they feel like. It’s a radical, not a conservative doctrine (which is why Dr. Johnson distrusted him so much). 

Smith was for a government that intervened regularly and actively on behalf of consumers and against the natural tendency of “producers”—i.e., very wealthy people, whether aristocratic landowners or manufacturers or, perhaps, financial-leverage experts—to band together for their own benefit. The laissez-faire economy, truly “left alone,” becomes a conspiracy of producers against consumers, of sellers against buyers, and makes the submissive state hostage to special interests. As Smith wrote, “The interest of the dealers”—i.e., manufactures and merchants—“in any particular branch of trade or manufacture, is always in some respects different from, and even opposite to, that of the public.” Smith, as I wrote, does not think that “government is the problem”; he thinks problems arise when the rich are able to make the government take their side. 

A healthy sovereign state is what serves the public against the producers. (He was all for high wages, by the way, on the now old-fashioned grounds that the actual wealth of a society can be discerned not by how much its top class has—you can find rich topsters in Ur or ancient Egypt—but by the dissemination of wealth to the many. “The high price of labor,” he wrote, “is the essence of public opulence.”) It isn’t just that a free market can survive regulation; it’s that the free market is the product of regulation, regulation designed to protect the public from the kind of arrangement that, let’s say, allows people with undue influence on the government to have a lower tax rate than people who don’t. 

This makes Smith, as I wrote, a firm believer in public goods: his state has an obligation to build roads and schools, establish an army, build bridges and highways, and do all the other things necessary for a sane polity in which the market can function naturally. Everyone should pay for them, and the rich should always pay more than others. “The rich should contribute to the public expense not only in proportion to their revenue,” Smith writes, “but something more than in that proportion.” (He also thought, Mitt, that taxes should be paid with joy, as a contribution to the well-being of all.) And this—that—all goes deeper than questions of efficiency, to questions of what we can only call the common emotional tone that lets prosperity happen. 

As Emma Rothschild writes in “Economic Sentiments,” her matchless 2001 study of Smith’s thought, it depends on what might be called niceness: Smith’s “faith … is in the mildness and thoughtfulness of most individual men and women. He is induced thereby to believe that they will usually not pursue their interests in grossly oppressive ways, and that they will usually wish to live in a society in which other people are not grossly oppressed or deprived.”

 Even if more money can be made by the producer by enclosing the land the peasant’s animals grazed on or by hiring child labor—or by looting someone’s pension funds—a decent concern for the opinions of mankind will stop the wise producer from doing these things, because he will know that they will break the bonds of common sympathy, the sense that we’re all in this together, on which the producer’s—or the equity manager’s—well-being ultimately depends. It’s always easy, Smith knew, to provoke a cycle of exploitation, rage, and revolution; that’s what most of history has been. 

What’s hard is to replace it with one of “mildness”—of public decency, progressive reform, and shared prosperity. You couldn’t have a free market unless you had all the institutions of trust in place that only a sovereign state can guarantee. (If you want to know what capitalism looks like without those institutions, think of words like “Russia,” “oligarchs,” and “kleptocracy.”)

 Everything we mean by a free market depends on a functioning, sympathetic state—a state rooted not in selfish individualism but in a social sympathy so broadly articulated and institutionalized that every man is confident that he can make an honest deal with his fellow man. So the view that the President was articulating the other day in the “that” speech wasn’t even a mild and “acceptable” form of social democratic reproach; it was the root foundational view of the free market as its greatest apostle imagined it. 

So don’t apologize, Mr. President, and don’t explain. Say it again! What you were articulating were the principles on which the free market, and with it this republic, is built. And that … is … that...

Thursday, July 19, 2012

God And The Holocaust.

1. Abstract of an article, The Last Witness, http://www.commentarymagazine.com/article/the-last-witness/

2. My response:

...I read with aroused interest Rabbi Joseph Polak's The Last Witness in July/August 2012 Commentary. What aroused my interest was Rabbi Polak's imagining briefly the unanswerable question in relation to the Holocaust. As the Rabbi uniquely cries it out:

"'Where is G-d?...Is he out there reciting the names of the camps? Belsen, Treblinka, Majdanek, Sobibor? Is he reading the names of the victims?...Is He weeping?'"

These questions are meant to rebuke two imagined dialectically opposed assertions put to Elijah as to the "great absence while one-and-half million Jewish children were being murdered." The first imagined assertion is Dostoevskian, that there can be no answer to, explanation of, such transcendental injustice, horror and cruelty. God should stay silent. The second opposite assertion is Abrahamiac, that man cannot question God, cannot demand explanations and answers of such awesome divinity.

The rebuke is a raging. How dare anyone remain silent? What self indulgent self luxury allows such silence when Holocaust memory might evanesce? Rabbi Polak's questions "thunder." They admit of no answer. They take a position on the unanswerable question of what kind of a God would allow such transcendental suffering and killing to six million of His flock? Who is this God? Wherefore his "great absence?" What penance does He do? Polak "would pound the tables with both hands." His God must be held to account.

The Rabbi's enraged, thundering questions are his imagined confrontation with his creator, from whom he demands some action of contrition, atonement, remembrance and remedy to signify His great wrong.

I take a different view. I, a non-believer, ask no such questions (of whom, after all?). I am aroused by Rabbi Polak's questions insofar as they reveal to me the absurdity of belief and faith in light of the transcendental evil of the Holocaust, (in which an uncle and a cousin of mine were killed, and during which a cousin of mine, still alive, suffered but survived the depredations of the concentration camp.)

I thunder no such questions or demands to such absurd reification. I get no succor or relief from being able to make my God human and contend ferociously with Him. It is a wasted ferocity. For its presupposition is that there is some divinity worthy of such contention, which concedes reification altogether too much, which in fact accepts reification's very terms. If there ever were an occasion that instructs Jews precisely that "God is not great," that belief and faith in Him are preposterous, that by them we diminish ourselves and the meaning of the Holocaust, for Jews its transcendental horror must be that occasion...

Wednesday, July 11, 2012

Legality Of The Settlements

US agrees, settlements are “not illegal” By Ted Belman/Israpundit 7/11/12

The  legal tsunami gathering strength in  Israel will soon  engulf the world.  A report is soon to be released that says, the Fourth Geneva Convention (FGC) does not apply to Judea and Samaria aka West Bank and that Israel has every right to build settlements there. In January of this year,  PM Netanyahu set up the Levy Committee to investigate the legal status of unauthorized  West Bank  Jewish building.  The Committee was headed by Supreme Court Justice (ret) Edmund Levy. It included Tel Aviv District Court Judge (Ret.) Tehiya Shapira and Dr. Alan Baker an international law expert, who was part of the team that devised the Oslo Accords.

The Committee reviewed legal briefs from right of center groups but also from far left  groups such as Peace Now, Yesh Din and Btselem. Its 89 page Report was submitted to PM Netanyahu a few weeks ago and is now under review by his Ministerial Committee on Settlements. Though the Report has yet to be formerly published, the contents are already well known. It found that the settlements are not illegal.  To reach this conclusion it first found that the Fourth Geneva Convention which applies “to all cases of partial or total occupation of the territory of a High Contracting Party” does not apply to Judea and Samaria because “Israel does not meet the criteria of ‘military occupation’ as defined under international law” … as  “no other legal entity has ever had its sovereignty over the area cemented under international law.”

Furthermore it found that there was no provision in international law which prohibited Jews settling in the area. The UN and the EU have for decades repeated the mantra that the land is occupied and the settlements are illegal, both pursuant to the FGC but there has never been a binding legal decision on which they based their assertions. The US has been more cautious and considers the settlements “an obstacle to peace” or “illegitimate”. Nevertheless, it leads the chorus in demanding an end to Israel’s settlement construction.

In 2010, Nicholas Rostow, in the American Interest , regarding the legality of the settlements, wrote:

“On February 2, 1981, President Reagan stated that the settlements were “not illegal”, although he criticized them as “ill-advised” and “unnecessarily provocative.”

Throughout the Reagan Administration the U.S. government did not question the legality of the settlements; rather, it criticized the settlements on policy grounds as an obstacle to the peace process. In the United Nations, the United States voted against resolutions describing Israeli settlements as illegal.” President George Bush followed suit and so did President Obama.

The Levy Report confirms the opinions of a large list of experts who have long claimed the same, including Stephen M. Schwebel, Professor of International Law at the School of Advanced International Studies of The Johns Hopkins University (Washington), former Deputy Legal Advisor of the U.S. State Department and President of the International Court of Justice from 1997 to 2000; Eugene W. Rostow, Former U.S. Undersecretary of State for Political Affairs and Distinguished Fellow at the U.S. Institute for Peace;  Julius Stone, one of the 20th century leading authorities on the Law of Nations, Doctor of Juridical Science from Harvard and Professor of Jurisprudence and International Law at universities in Australia and California; David Matas, world-renowned human rights lawyer and honorary counsel to B’nai Brith Canada and David M. Phillips, Professor at Northeastern University School of Law.

The question of the applicability of the FGC was considered by the International Court of Justice (IJC), an arm of the UN, in its advisory opinion on the legality of the fence. The IJC held that “the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties.”.  In other words it ignored that the lands occupied must be the lands of “another High Contracting Party”.  This is not considered sound law and in any event, is not a binding decision.

The Supreme Court of Israel in its decision approving the fence as legal,  said  that “the question of the application of the Fourth Geneva Convention is not before us now, since the parties agree that the humanitarian rules of the Fourth Geneva Convention apply to the issue under review.”  Thus it didn’t decide on the applicability. The Left in Israel are screaming blue murder and referring to the Report as “born in sin” and a “political manifesto”. On Monday, while speaking to reporters, State Department spokesman Patrick Ventrell said:

 “The US position on settlements is clear. Obviously, we’ve seen the reports that an Israeli government appointed panel has recommended legalizing dozens of Israeli settlements in the West Bank, but we do not accept the legitimacy of continued Israeli settlement activity, and we oppose any effort to legalize settlement outposts.”

What is interesting about this statement is that Ventrell did not comment on the finding that the FGC did not apply or that the settlements were not illegal.  He merely reiterated the US government position without substantiating it. Furthermore, the settlement outposts that the State Department doesn’t want “legalized” are legal save for having not received their final approval from the Government of Israel. If they were really illegal by international law, Israel wouldn’t be able to “legalize” them.

Put another way, the US position is that Israel shouldn’t exercise her rights because such exercise would be an obstacle to peace. It prefers to recognize the non-existing Arab rights over the real rights of the Jews/Israel. Accordingly, the legal conclusions of the Report are sound.  What will the fallout be? Well for starters, the UN may ask for another advisory opinion from the ICJ on the validity of this report but why bother, it already has one on the applicability of the FGC. It probably will choose to ignore it as just another opinion. Meanwhile the existence of the report will take the wind out of the sails of the US and the EU as they try to damn the settlements and Israel’s actions.

The US will have to acknowledge that since President Reagan, it has considered the settlements to be “not illegal” but only, ”ill-advised”. PM Netanyahu will have to decide whether he will embrace the Report and act accordingly or whether he will wait for the issue to be adjudicated by Israel’s High Court.  It is highly unlikely that this Court will fly in the face of the named experts, the US Government and the Levy Report. From a political point of view, he cannot ignore the Report.  

A political storm is raging. MK Tzippi Hotovely, Likud, is preparing a Bill that will endorse the principles of the Levy Report and will require the establishment of a judicial tribunal in Judea and Samaria which will be given the responsibility of discussing matters related to land ownership, the establishment of an Israeli land registry in Judea and Samaria and applying Israeli building and planning laws on Judea and Samaria.

Where does that leave the international community? 

The foundation of their attacks on Israel will have been destroyed. It will be hard to ignore the Report and harder still to ignore a confirming decision by Israel’s High Court. It will no longer be able to claim with a straight face that the lands are “occupied Palestinian lands” or that the settlements are illegal. Congress will no doubt strongly endorse the Report with or without a decision of the Supreme Court of Israel. The upshot of all this will be that Israel will end the de facto building freeze and start construction of settlements in earnest.  It will also signal the end of the pursuit by Israel of the two-state solution. 

The Israeli center will no longer  believe that Israel is an occupier and instead will believe that the land is theirs, which it is. Presently there is significant movement in Israel advocating Israeli sovereignty over all of Judea and Samaria, even if that means making citizenship available to qualifying Arabs. Israel must decide between two risky alternatives; either accept the two-state solution based on ’67 lines with swaps or annex the land and contend with an extra 1.5 million Arabs within its borders.

With the latter alternative, the Jews would be left with a stable 2:1 majority. Israelis are already trending to the latter and this Report will accelerate that trend. The Arabs in Judea and Samaria will not accept such a two state solution because it will preclude the “right of return” and will require them to recognize Israel as the Jewish State. Furthermore it will require them to sign an end-of-conflict agreement which they will never do. If Israel chooses to claim sovereignty, the Arabs will have to decide whether to push for citizenship or to accept autonomy. This tsunami will change the political landscape for the better and forever.

Posted by Ted Belman @ 8:37 am

Tuesday, July 10, 2012


Say It as If You Mean It: By R. Jay Magill: Reviewed By Daniel Akst in WSJ 7/10/12

About sincerity nobody can say we haven't been warned. Niccolo Machiavelli, Ben Say It as If You Mean It: By R. Jay Magill: Reviewed By Daniel Akst in WSJFranklin, George Bernard Shaw and countless others have cautioned against its hazards, but W. Somerset Maugham may have done so most vividly. "I don't think you want too much sincerity in society," he said. "It would be like an iron girder in a house of cards." There is good reason for caution. Extreme frankness is often called "brutal," after all, and unbridled truth-telling at all times and in all places would probably result in bloodletting. Despite such doubts, sincerity is a cherished trait. We admire it and feel badly treated when a comment or action, assumed to be heartfelt, turns out to be insincere. Sincerity—broadly speaking, the alignment of outer and inner selves—would seem to be essential to the modern conception of a virtuous life.

But how did we get here?

R. Jay Magill Jr. tries to answer this question in "Sincerity," a fascinating cultural survey and intellectual investigation. The postwar world, he notes, has given us a whole field of sincerity studies. Lionel Trilling took on the task in "Sincerity and Authenticity," a series of Harvard lectures published in 1972. In Trilling's account, the focus on sincerity arose in the 16th century, with the Protestant Reformation and its emphasis on individual conscience rather than institutional ritual and doctrine.

Over time, travel and trade made sincerity ever more important in judging the bona fides of strangers. According to Trilling, sincerity was eventually elbowed aside by the need for authenticity, "a more strenuous moral experience" that responds aggressively to received moral opinion. Authenticity, in this view, is sincerity plus autonomy.

Mr. Magill's own definition of sincerity is both broad and precise: "confronting one's innermost thoughts or emotions and relaying them to others straightforwardly, no matter how relevant to the topic, injurious to one's own reputation, or embarrassing—or however correct or incorrect." This sounds more like what most of us would call over-sharing, but no matter. In the author's hands, it serves to encompass a wide range of human experience.

Mr. Magill is especially clever about tracing his subject through the arts. The history of design, he says, can be seen as the search for a visual expression of sincerity, a claim he supports by taking the reader from the simplicity demanded by Protestantism (in rebellion against Baroque Catholicism) to the rise of abstraction in art. Decoration, after all, implies dissembling, something that would become anathema to the form-follows-function crowd. In painting and sculpture as well, we see a long movement toward the purest possible presentation of material.

The apotheosis of sincerity in the arts was Ad Reinhardt's black-on-black paintings; they "achieved what modern art—and the Protestant religion—had for so long wanted to be: sincerity itself." They did this by being only themselves: paint on canvas. In the realm of the literary arts, Mr. Magill has a field day, zeroing in on Rousseau as the source of our modern literary obsession with sincerity, which the author finds manifest in German and English Romanticism, American Transcendentalism, French Symbolism and other currents that come to look like a tidal wave in favor of finding and flaunting the unvarnished self. All such movements carry "the echo of Jean-Jacques Rousseau and the subsequent romantic impulse: go forward and leap toward vigilant, violent self-expression; stress your own experience over the commercial and social developments surrounding your unique life."

Freud helped push literature in this direction, Mr. Magill says, by replacing "the traditional 'holy space' reserved for the reception and discovery of God" with "drives for sex, violence, death, and pleasure." The problem here was that, unlike Rousseau, who saw man without civilization as happy and good, Freud saw him as "a homicidal little beast who wants to have sex with his mother and murder his father." A fine reason, in other words, for moderns to be wary of sincerity.

Yet the war on artifice inspired by the forces of sincerity seeped into popular culture and commerce anyway. It was abetted by the likes of H.L. Mencken and such other lampooners of cant and inauthenticity as Dorothy Parker and W.C. Fields. Mr. Magill's range is extraordinary, and his wit, erudition and powers of observation give credence to judgments that might otherwise strike us as just a tad, well, insincere. "Our frustration with insincerity," he says, "is itself disingenuous—a kind of performance of upright moral sensibility." For much of this deeply pleasurable work

Mr. Magill is properly wary of his subject. The Puritan emphasis on sincerity, he shows, led to a climate of suspicion and misanthropy, as if these energetic divines had intuited Nietzsche's later comment that "the truly sincere person ends up understanding that he is always lying." Ultimately, though, the author comes down in favor of sincerity, if not too much of it.

With sincerity, as with most things, it is the dose that makes the poison. Readers interested in the science behind sincerity might want to pair Mr. Magill's book with Dan Ariely's "The Honest Truth About Dishonesty," just published by Harper. Mr. Ariely, a behavioral economist, shows that hardly anyone comes close to the ideal of sincerity all the time; yet our false beliefs about our own honesty keep us from lying even more. It is probably too much to ask that Mr. Magill, already covering so much ground, bridge C.P. Snow's "two cultures"—science and the humanities. "Sincerity" is a delightful work just as it is.

I mean that. Sincerely.

More On Tax Versus Penalty

I want to make a point on tax against penalty, which I got from reading Randy Barnett on the ACA decision.

That point is this: I argue Obama and his agents are right to keep calling the payment for no insurance a penalty because it's both a penalty and a tax depending on what angle it's looked at from.

Under the ACA's clear wording and intent it's a penalty. Under the case law that obliges the court to give the law all "fairly possible" readings to try save its presumptive legality, it can be construed to be a tax, even though that's not it's most likely construction.

 "Most likely" is not the issue. "Fairly possible" is the issue.

So based on obligation of the court to strive to preserve the mandate's constitutionality, the court for that precise purpose deems, or constructively, calls the payment a tax. It’s a kind of legal fiction employed for a narrow and specific purpose.

That deeming or constructive characterization does not logically need to vitiate calling the payment a penalty and Obama and his agents are right to do that for his political benefit.

That distinction is what balled up Romney for a few days before he got down to his own mug’s game of politics and started calling the payment a tax. Republicans who seize on the payment as being a tax and say Obama therefore lied when he denied it either don't know what they are talking about or do and are cynically and recklessly indifferent.

Saturday, July 7, 2012

My Note To Pete Wehner On Tax V. Penalty And Obama's "Post Modernism"

My note on Pete Wehner calling out Obama for calling the charge in his mandate a penalty and not a tax:

...Wehner persists in misunderstanding that neither Obama nor his lawyer in court nor the court and nor the ACA say that the charge for no insurance IS A TAX.

 All of them say if the mandate isn't within the commerce power, it must get a reading which is "fairly possible" to save its legality.

 To read the mandate as a tax, said the majority, is not the most natural reading. It's most naturally read as a command. But reading it as a tax for the reasons Roberts discusses is, holds the majority, "fairly possible."


The dissent obviously disagrees, not with the precedential principle but with its application in this instance. But it escapes Wehner's understanding that it's entirely consistent for Obama to say that SCOTUS upheld the mandate as a tax but that it's still a penalty.

That will be understandably confusing to non lawyers inexperienced with the law. And in the mugs' game of politics, that distinction will both get hopelessly confused and by cynics who no better disingenuously preyed on.. But for commentators with claims to thoughtfulness and intellectual honesty, that distinction should at least be understood, acknowledged and properly be taken into account in any writing on these issues, however polemical...

Friday, July 6, 2012

A Short Note On Socrates's Apology

Fantastic, enriching reading or rereading as the case may be: The Apology in The Trial And Death Of Socrates.

 A way of characterizing it is to see it turning on the paradox of wisdom, intellectual power and philosophic self knowledge (hence, strong self confidence) springing from utter intellectual humility, claims to know very little and modesty.

The application of that paradox throughout the Apology yields another: the stripping away of pretense to brilliant knowledge by those proclaiming it and exposing their fatuity, their knowing nothing, that they are the opposite of what they claim to be.

All this Socrates does by his relentless questioning based on first principles and then following the path created by the answers logic and right reasoning compel. So the wisdom that proceeds from "ignorance" exposes the ignorance that masquerades as "wisdom."

The power of the Apology issuing out of Socrates's quiet strength through modesty is palpable. Too, it measures the moral deficiency of those who accuse Socrates and who finally judge him, condemning him to death.

Thursday, July 5, 2012

A Paraphrase Of Part Of The Joint Dissent On The Tax/Penalty Issue

It is with interest that I've been noting liberal comment applauding Roberts's upholding of the ACA even while conceding his legal reasoning on the tax/penalty issue leaves something to be desired, isn't persuasive and suffers from some conceptual confusion. For that reason, I got interested in the joint dissent's reasoning against Roberts's turning the ACA’s stated penalty into a tax. Here's my paraphrase of it:

...In all SCOTUS cases a tax and a penalty are mutually exclusive. A penalty can be formulated to be a tax and vice versa. But neither at the same time can be the other. It is not "fairly possible" to read the ACA mandate to be a tax for a variety of reasons. Against the judicial need to "fairly read" the mandate as a tax, if possible, to save its legality is the limit of not rewriting it. The court can't pervert the meaning of the law in trying a "fairly possible" reading of it.

A tax is an enforced contribution to provide for the support of government; a penalty is an exaction imposed by statute as punishment for an unlawful act. A "tax” can be so onerous as to be held to be a penalty. But a "penalty" has never been held to be so trivial as to be a tax. An exaction imposed for violation of the law has never been held to be an exercise of Congress’ taxing power—even when a statute calls it a tax, much less than when (as in the ACA) the statute repeatedly calls it a penalty. When an act imposes a monetary penalty as principal consequence for its violation, it always creates a regulatory penalty, not a tax.

Here the mandate can only be fairly read as a command. The minimum-coverage provision is entitled “Requirement to maintain minimum essential coverage.” It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage.” And the immediately following provision states that, “[i]f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty.” Too, several of Congress’ legislative “findings” with regard to ACA confirm that it sets forth a legal requirement and constitutes the assertion of regulatory power, not mere taxing power. The “shall” of the mandate is contained in the main operative provision of the act and cannot be fairly read as a "may."

That Congress in its own words imposed in the ACA a penalty for failure to buy insurance renders that failure unlawful. A canon of interpretation is that a statute penalizing an act makes it unlawful. If a statute inflicts a penalty, the penalty implies a prohibition, and its breach is unlawful, even though there are no prohibitory words in the statute.

Courts never classify as a tax an exaction imposed for violation of the law. And they never classify as a tax an exaction described in the statute as a penalty. Courts have sometimes called an unlabeled exaction for something other than a violation a tax. But courts have never treated as a tax an exaction which meets the criteria for a penalty, especially when the subject law explicitly calls the exaction a penalty. Congress calls the ACA exaction a penalty eighteen times throughout the ACA.

Some by the ACA are exempt from the tax but still must comply with the mandate. This distinction only makes sense if the mandate actually is a mandate. Three classes of people are exempt from the minimum coverage requirement. Then further classes of people who are subject to this requirement are exempt from the "tax." If the penalty were truly a tax, the two classes of exemption would make no sense since under the tax theory there is no command, which means all the exemptions would attach to the penalty (renamed tax) alone.

Penalty collections via the IRS are not rare. And varying a penalty according to ability to pay is a familiar practice.

The presence of a mens rea requirement suggests a penalty; but the absence of this requirement does not necessarily suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to intent, courts traditionally presume mens rea for a severe penalty. Jurisprudence addresses when an intent requirement can be inferred from a penalty. So it makes no sense to say that a penalty is not a penalty for want of an express intent requirement.

Judicial tax rewriting is troubling. Taxes are unpopular. They must originate in Congress. Thereby legislators can weigh the need for tax increases against the consequent unpopularity. Therefore Congress knew it was doing when it formulated the penalty provision over a tax provision in the ACA, which an earlier version of the statute contained before rejection. Judicially imposing a tax inverts this constitutional scheme, placing the power to tax in the judiciary, the least accountable branch of government to the citizenry...

Monday, July 2, 2012

An Account Of Mark Lilla's Afterwards In His Book The Reckless Mind

In his Afterwards, Mark Lilla in his book The Reckless Mind tries thematically underpinning the preceding chapters, which broadly deal with, as the sub title says, "Intellectuals in Politics." That underpinning might allay the impression these chapters are discrete essays, previously published, recast in book form but not tightly fit together.

In trying to do so, Lilla’s Afterwards turns on central questions:

“What is it about the human mind that made the intellectual defense of tyranny possible in the twentieth century? How did the Western tradition of political thought, which begins with the critique of tyranny in the Republic…reach the point where it became respectable to argue tyranny was good, even beautiful?”

(This Lilla calls “philotyranny.")

Lilla in the first part of his Afterwards posits a historian of twentieth century ideas answering his questions. This historian assumes the shared intellectual roots of modern philosophic love of tyranny and tyranny itself. He identifies two rival European intellectual traditions, calling one philotyrannical.

One line of argument is that one tradition, the Enlightenment, exploded the prevalence of Christian traditions and practices, encouraging social engineering by presumed “simple ideas of rational order.” On this view, the Enlightenment both bred tyrannies and was itself tyrannical in its intellectual methods—intolerant, absolutist, and deterministic. It hated and suppressed the diversity and pluralism of the Western tradition. Its single mindededness anchored twentieth century totalitarianism. It assumed one true answer to each moral and political question, all ascertainable by reason and interconnected.

But a counter line of argument exists, keying on innate religious impulse and vaunting the irrational as informing Europe’s intellectual history. Twentieth century European tyranny connects with religious privileging of the irrational. The urge to hurry the “coming of the Kingdom of God in a profane world” underlay these tyrannies.

On one version of this line of argument, the essence of the eighteenth and nineteenth centuries in Europe is not rationalism inclining to liberal democracy but, rather, religious and messianic expectations infusing modern democratic ideas. Hence, a frenzied, irrational apprehension of democracy overtook reason as the French Revolution descended into Jacobin terror.

These arguments pit a cold, efficient, heartless rationalism against the irrationalism of revolutionary fervor, the innate impulses of religion, the claims of blood and the glorification of violence.

Another way to try to get at the central questions is to examine the social history of Lilla's subject intellectuals in European political life over the history of their ideas. Here a conventional account is that the Dreyfus Affair brought out French intellectuals from the precincts of the arts and lit their higher duty as the state's conscience. A usual narrative follows: fights between the republican Dreyfusards and Catholic nationalists; fights over the Russian Revolution and the Popular Front after WW1; fights over Vichy; Sartre’s post WW11 existential Marxism; fights over Algeria; the neo left radicalism of and after May 1968; and the Mitterrand liberal-republican consensus.

Contending here are Sartre’s committed intellectuals as against bourgeois orthodoxy, and their radical critique of capitalism and imperialism as against restraint and anti Romantic proportion counseled by Raymond Aron. He called for mature and sober judgment in assessing the relative injustices of liberal democracies compared to tyrannies.

Despite this contention in France, something different occured in Germany. It had a qualitatively different intellectual class indifferent to the French idea of commitment. Its intellectual tradition, said Thomas Mann, was “culture, soul, freedom, art and not civilization, society, voting rights and literature...Germans never elevate social problems above moral ones, above inner experience.”

Jurgen Habermas argued that by withdrawing from modern politics, German intellectuals since the nineteenth century dwelt in a fantasy world of ancient Greece, of mystical Teutonic forests, of Magic Mountains that in the twentieth century made Hitler seem a regenerative force. Political engagement could have positioned them to stand against Nazism.

So, further contending are the critiques of disengagement—Habermas—and of blind political commitment—Aron.

For Lilla none of these contentions answer his questions about why European twentieth century philotyranny existed. They are partial and proximate, not touching his questions' heart. For that one needs to start where Lilla briefly begins his first Chapter, Plato's themes of philosophy and love.

Against these themes and to highlight their significance, Lilla posits a recurring intellectual type who can be linked to tyranny. He covets and regurgitates second and third rate ideas. Eros drives him, as it drives all men.

For Plato that innate force, the energy of love, wants to reach beyond itself, to stretch itself. All men are incomplete and seek to fulfill their own yearning. Eros is that yearning. Eros moves body in some and body and mind in others. Aspirationally, it leads to philosophy or the sublime arts or the right ordering of civic life--politics in its best sense. Yet it can lead to wanton excess of the senses and to cruelty. The former are heaven bound, the latter earth bound.

Love is of a piece with Eros. It too becomes wanton in excess. True happiness, therefore, resides in restraint and self disciplined proportion. They form self control, hence self mastery, the command of one's soul, even as Eros urges past restraint. Philosopy provides self mastery in the face of love, provides a disciplined erotic life seeking consciously what Eros unthinkingly aspirationally goes to—“eternal truth, justice, beauty, wisdom.” Only the few can think their way there. Others seek their wholeness or find their fracturing in relation to their capacities or incapacities.

Now some coherent understanding emerges. Tyrants for Plato are enslaved by their passions, those in whom Eros, the force of love, expels moderation and conquers their souls. Contrastingly, the philosopher knows the make-mad love of wisdom but does not enslave himself. Restraint permits self governance.

Some self-tyrannized become rulers. Their erotic madness enslaves self and subject. But much more numerous are self- tyrannized sophists forming the clerisy, in a word, intellectuals.

They are “sunburned” by ideas. They cannot master their passion for ideas or for the rewards of fame and celebrity. Endlessly they talk and write and theorize and intellectualize. (These days they are public intellectuals, often not knowing whereof they speak.) They are a herd parading as independent minds. They are driven by their passions and external quests, unable to restrict themselves to worth. In the young the passion for ideas may be for the good. The young may be educated into disciplined restraint so to approach the condition of philosophy or some other heaven-pointing good.

Some, diagnoses Plato, will slip their education and step if moved enough, by self and sophist, from thought to the action of politics. They will seek tyrannical fulfillment by wielding power. Their sophists will flatter them and toady to them for favor and celebrity. Contrastingly, those nearing philosophy will strive always toward the eternal by way of their restraint.

The limitless depths of excess and the illimitable heights of the eternal tell how Plato's thought-experimenting ideal of a philosopher king is to be understood. The ideal of this conjured figure makes clear the incommensurability between philosophy and politics. Such an ideal man, being an ideal man, will never exist.

Failing commensurability, the best men can do is approximate it by way of self control. And a lover of wisdom amidst tyrants and beasts sometimes best withdraws to live “pure of injustice and unholy deeds, and take his leave graciously and cheerfully with fair hope.” Public life will even in the best of circumstances and for the best of men inexorably devolve to compromise and injustice. (This inevitability's correlative is Socrates's drinking hemlock and, more so, his self-understood philosophic need to drink it.)

Self knowledge by self mastery is the best way to see and understand tyranny. Philosophy is the best way out of the tyrant’s rule of himself and others. A connection exists, says Plato, between the yearning for wisdom and tyranny. A yearning is the urging the of Eros. Unharnessed, it can wreck and destroy. Self knowledge is the key to harnessing for good and so the key to the soul's wholeness. Self knowledge's presence and absence marks the difference between philosophers in Plato’s sense and sophist intellectuals, philotyrannists among them.

Communism, Marxism, Fascism and National Socialism inspired hateful tyrants and blinded intellectuals to tyranny. But now an insight exists into philotyranny, an insight deeper than that provided by history, even the history of ideas. Twentieth century tyranny appealed to the vanity and raw ambition of modern intellectuals. More insidiously, though, it appealed to the connection between yearning for wisdom and tyranny. Yearning unchecked overtakes men.

To the overtaken, moderation and rational skepticism seem sniveling, mere excuses for inaction. They will hate the moderate, the rationally skeptical, the cool headed, the dispassionate and the philosophically disinterested. But those very qualities and their absence, again, mark the difference between Plato’s ideal of the philosopher and the recurrent sophist intellectual.

Some historians ascribe twentieth century philotyranny to the times' conditions, a historicist explaining (away). But tyranny keeps on, in men's souls and in their politics. The allure of power and the allure of ideas, or even an idea, draw forth tyranny. As the twentieth century excited certain forms of philotyranny, so the sources of tyranny and intellectuals’ love of it go on and on. And so men must be vigilant, as the precondition for the good, “to master the tyrant within."

Sunday, July 1, 2012

Some Thoughts On Roberts's Taxing Power Analysis Upholding Obamacare

My to date best legal distillation of the recent health care decision with respect to Roberts's decision under the taxing power. It emerges from a brief exchange with a friend, the most able and brilliant civil litigator in Canada as far as I know. His brief comment first and then my, slightly after-edited, longer one.

 ....Shapiro does a good job of mining the seeming disconnnect in the holding that only one of the commerce power or the tax power can reach inactivity. He uses the former to raise inactivity to some government-free zone, but I still think that's wrong. There is more consistency in holding both can reach inactivity, but either can. Shapiro's distinction between a tax credit for solar panels (which he thinks is ok) and a tax debit for no solar panels (which he thinks is not) is not meaningful from a tax payers point of view. To the tax payer, under either scenario, it is solar panels--less tax, no solar panels--more tax....


 ...I've read around this issue a little including scanning pretty quickly the right wing's joint dissent on the tax issue. Their concern is bracketed by a sighing concession that the government's right to tax is not subject matter limited by its enumerated powers, which it was once:

 ...As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers...

Their concern here is principally over whether the the payment provision for failure to get health insurance is a penalty or a tax, the two being mutually exclusive for tax characterization purposes.

(Even liberal commentators have quizzically noted the "hair splitting," as it's been expressed, that the non-labeling of the payment as a tax is meaningful in holding for the purposes of the anti injunction statute argument that the provision is a penalty and therefore the case is not statute barred and holding just a tad later, that for the purposes of the taxing power analysis labeling is relatively inconsequential and it's the substance of the provision that must be addressed: if it's functionally a tax, then it's a tax.)

And it's that issue, tax versus penalty in reaction to grounding the act, that has attracted the direct, case based critical comment on the right.

Just to note it, one other case and text based criticism is what exactly is this particular tax; what precise category of tax authorized by the Constitution is it? Shapiro gives an outline of some of the issues raised by this criticism. And in their joint dissent, the four dissenters complain about throwaway and scantily briefed the issue was, not nearly enough to give serious consideration to the issues raised by holding the taxing power grounds the act.

The dissenters avert to some of the problems as well, for examples problems raised by thinking about whether the tax is a direct tax. At its broadest, their criticism is that Roberts hastily concocted this ground to rescue the health care law from unconstitutionality and is haste is evident in makeshift, thin and ill thought through his reasoning on the issue is, that a function of the scanty briefing.

The issue that I first posed seems to blend in somewhat with a different order of criticism of Roberts's reasoning, a more policy based criticism that follows more or less Shapiro's line of argument, that wants to re-raise the enumerated powers limits on the federal power to tax and that raises the policy concerns of a vast federal power to tax, including inactivity, as a serious danger to the idea of a limited government bound by enumerated powers.

One iteration of this argument is that where, taxing, the states can go the federal government should not. As put by a Rick Hills, a con law prof at Case Western Reserve, who himself rejects the activity/inactivity distinction from a commerce power perspective:

 ...But, in relying on the Taxing power, the Court has failed to offer a coherent purpose-driven reason for the result. It cannot be the case that the feds always can "encourage" people to undertake actions by taxing their inaction: Such a taxing power would render nonsense the basic idea that the enumeration presupposes something...

and: ...

How is such a taxing power consistent with any sensible notion of enumerating powers? Why would any sane framer, whether Hamilton or Luther Martin, Federalist or Anti-Federalist, ever agree to such an arrangement? The Court does not say... But Hills is offering a kind of overarching criticism not rooted in case law as far as I know.

As to what you say, I still have a niggling question in my mind. But, first, when you say this, "There is more consistency in holding both can reach inactivity, but either can," I find it a little cryptic. I agree that Shapiro wants inactivity to be a commerce power and tax free zone and gets an argumentative boost for the latter by the five judge agreement on the former. (There's an apparent debate whether that 5 judge agreement forms a binding SCOTUS precedent.)

I'd think the formulation that follows from the tax/commerce power split on inactivity is that just that: the government under the commerce power cannot reach inactivity to the extent of compelling non consumers to buy a particular product-the difference between regulating commerce and compelling commerce, as Roberts put it, but that, regardless, the government can reach inactivity through its taxing power, I.E., effectively force you to buy broccoli. So I don't know what you mean when you say, "...in holding both can reach inactivity..." since under the commerce power the government can't.

But my lingering question is this: take the example of the solar panels. The government can give a tax credit to those who have them. The government can, it seems clear to me now, impose a tax liability on those who, say, own houses and don't have them. (From the standpoint of the tax payer, the issue may be more than just more tax or less tax. If the tax is onerous enough, it may be the expense of the panels.) But in any event there's a difference between what Roberts held and the solar panel example.

The example does not mandate anything as such. It simply levies a tax or allows a deduction or a credit. And all that's fine, I guess. But in Roberts's holding, the government is saying you must buy health insurance or pay a tax, assuming it's a tax and not a penalty. My general understanding is that tax provisions don't speak to mandating or proscribing the activity or inactivity in question but rather provide for the tax consequences of what is or is not undertaken.

And in that light my original question resurfaces, maybe better formulated, how does the taxing power ground or legitimate the mandate itself, which it is a part of, when the government cannot otherwise compel it under any other head of the Constitution? And here the policy oriented criticisms seem to me have a real point. Just say do x--which we have no other constitutional basis for telling you to do it--or pay a tax and voila there's virtually no subject matter limit to federal power, bill of rights and procedural fairness aside. Is it just as is simple as attach a tax as an "or else" and the government is away to the races? I feel, like Rick Hills, that that cannot be right.

There is a technical answer to my question. The answer is that from the perspective of the taxing power, no one is forced to buy heath insurance. Those not exempt have a choice between buying the insurance or paying the tax. On this account the law simply taxes those not exempt who don't buy health insurance.But this answer is so artificial, particulalry when the charge has been described in the act as a penalty,that I think my question, and Hills's comment, persist.