Wednesday, August 12, 2015
No, I have not been on a writing binge the last two days. But I have put a lot of mostly published op-ed columns written in the last year and a half here on this blog. For the published ones, you can google to get the published versions. Enjoy!
I recently wrote a column maintaining that the recommended fine against a small bakery for refusing to bake a wedding cake for a same-sex wedding is grossly and unjustly excessive. A number of letters and comments in the Oregonian, where my article appeared, have defended the fine. Some indignant readers even think the fine should be larger.
Something that seems to have been overlooked in recent discussions is the constitutional requirement that people not be deprived of life, liberty, or property without due process of law. A fundamental part of due process of law requires “notice,” namely that people be clearly warned about what actions are illegal and what the maximum possible punishment will be. For example, signs limiting parking to people who have handicap permits state the maximum fine---so many hundred dollars--- that may be imposed on violators.
Clearly the owners of the Sweet Cakes bakery could not have known that their refusal to bake a wedding cake for a lesbian couple could be punished with a $150,000 fine (now reduced to “only” $135,000). A somewhat similar case in the state of Washington recently drew a $1,000 fine, and I am not sure that case had been decided yet when the Sweet Cakes incident occurred. I would bet that Sweet Cakes would have made the cake if they had known they might be fined even $1,000 for refusing.
And this brings up a related point. The deterrent effect of a fine is a function both of the magnitude of that fine and of the likelihood that it will be imposed. It may well be, for example, that a 90% chance of a $5 fine would deter far more littering than a 1% chance of a $1,000 fine. And the owners of Sweet Cakes already incurred a “fine” for refusing to sell the cake: the loss of the profit they would have made on the cake. This “fine” was automatically levied on them without any need for the government to do anything. It was 100% certain.
It is not as if government has nothing else to do than to prosecute this kind of case. St. Thomas Aquinas, a Christian theologian, noted many centuries ago that it is impossible for government to outlaw all sins. He pointed out that government has limited enforcement capabilities and should not spread them too thin, neglecting to enforce more important laws which prosecuting less important ones. In cases like Sweet Cakes, where a small but 100% certain “fine” is automatically imposed on businesses which refuse to serve someone, it is particularly hard to justify an expensive tax-payer funded bureaucratic apparatus, particularly one which is free to impose huge additional fines without giving people the notice required by due process of law.
The problems facing members of racial minorities vastly outweigh those facing people trying to buy a cake for a same-sex marriage. Perhaps the state should concentrate its limited enforcement resources on enforcing duty-to-serve laws in the racial context and rely on the enlightened self-interest of bakeries to take care of the wedding cakes issue.
As I write these words an Oregon administrative law judge is hearing arguments about how much damages the owners of the now closed Sweet Cakes bakery must pay for refusing to bake a wedding cake for a lesbian couple.
If the judge accepts the $150,000 fine proposed by state civil rights investigators, it will clearly be a gross injustice. As Pooh-Bah in the Mikado put it, “My object all sublime is to make the punishment fit the crime….” Can any reader believe that $150,000 fits this particular violation of the law? I do not know anything about the financial situation of the Sweet Cakes owners, but for most owners of a small business having to pay this much money would undoubtedly ruin them.
And how much damage did the bakery’s refusal to bake a cake actually cause the couple? Let’s assume that the value of the couple’s time is $100 an hour and that it took them two hours to locate another bakery which was willing to bake their cake. Perhaps they needed to drive around Portland burning $50 in gasoline in pursuit of the cake. Voila: Damages: $250.
All this is assuming that the law under which this case arose is valid, constitutional, and reasonable, which is doubtful. Duty-to-serve-everyone rules applying to innkeepers and restaurants are so reasonable that they existed under English common law centuries before antidiscrimination legislation was enacted in the U.S. Travelers, not least in the old days when transportation was very slow, were often at the mercy of a single local innkeeper or restaurant, and if arbitrarily refused service they might have nowhere to sleep or eat.
The more recent legislation under which the Sweet Cakes case arose considers a much wider range of businesses to be “places of public accommodation.” But as the Sweet Cakes case illustrates, there is a big difference between hotels and restaurants, on the one hand, and places which bake wedding cakes, on the other hand. Wedding cakes are ordered well in advance, so there is nothing like the time pressure confronting a traveler seeking a roof under which to sleep or a place to have dinner. And there are many places which produce wedding cakes and would be delighted to serve this couple; it is not a local monopoly.
Legislation going beyond the traditional duty-to-serve, requiring expensive government agencies and imposing potentially huge fines on places like Sweet Cakes, may therefore not be reasonably related to a legitimate public purpose and therefore may be unconstitutional.
The Eighth Amendment’s prohibition of “excessive fines” restricts only the federal government and therefore does not place limits on the government of Oregon. But the spirit of the Eighth Amendment makes it clear that to impose more than a very nominal fine on the owners of the now closed Sweet Cakes would be a manifest injustice.
The Catholic philosopher, St. Augustine, famously asked: “Justice being taken away, then, what are kingdoms but great robberies?”
Augustine understood that the fundamental power of government, like that of a robber, is the power of the sword. More recently the Chinese revolutionary leader Mao Tse-tung updated the metaphor, noting that “All political power comes out of the barrel of a gun.”
True, government also wields the other two kinds of social power: the pen, and the purse. But its ability to buy pens and to fill its purse with money needed to induce people to do things is based on taxes. Taxes are collected at the point of the sword. We do not have telethons---the power of the pen--- asking us to send in donations to support government.
The fact that government rests on the power of the sword means that it is potentially dangerous. Government-as-bandit can single out individuals or particular groups and do terrible things to them. It can just kill them outright, as the Nazis did to Jews during the Holocaust. Or it can imprison or fine them or strip them of their property.
However government is still necessary if we don’t want to find ourselves in a Hobbesian free-for-all where life is “nasty, brutish, and short.”. Legitimate government, government-as-legislator, must be able to deprive people of life, liberty, or property, but it cannot do so arbitrarily. It can inflict sanctions only on individuals who violate genuine laws, general rules of action which apply to anybody who takes the prohibited action. And of course rules which apply only to certain kinds of people are not general rules. Such rules, since they do not rise to the dignity of genuine laws, should therefore be called pseudolaws.
The requirement that government only inflict sanctions on people who have violated general rules of action gives everyone great protection from being treated arbitrarily. Legislators hesitate to enact obnoxious general rules if they, too, would be subject to the same rules.
An ideal government would be one where there are laws but no pseudolaws. The opposite of such an ideal government would be one in which there are no laws, but many pseudolaws. This is probably how the first governments originated, in the dim and murky past, as protection rackets run totally for the benefit of the racketeers.
The history of political progress since then has consisted of prolonged, intelligent resistance to government-as-bandit, resistance which has gradually moved us away from pseudolaws and towards societies governed only by genuine laws. We are not there yet, and some countries still have much further to go. But it is now possible to imagine the day when government-as-bandit will have disappeared from the face of the earth.
Perhaps the final blow against government-as-bandit will come when people in general engage in civil disobedience to pseudolaws. This will be feasible only in countries which are close to the goal. In countries which still have many pseudolaws, civil disobedience to them could destroy all order and thereby make bad situations even worse.
But in more advanced countries civil disobedience to pseudolaws could be helpful. And the usual fears that civil disobedience erodes respect for laws would not apply, since disobedience to pseudolaws hardly implies disrespect for genuine laws.
The United States has painted itself into an Obamacare corner. Obamacare has enough good elements that repealing it would harm millions of people. Keeping it in its present form will harm other millions and inflict serious economic damage. But it is impossible to reform Obamacare, since Republican politicians won’t support changes that prolong its longevity.
To escape this mess we need a magician who can pull a political rabbit out of their hat, and the best person to do this may be Hillary Rodham Clinton. If Mrs. Clinton decides to run in 2016, she should come out in favor of replacing Obamacare with a simple single-payer insurance system financed by general taxes.
The Clinton campaign should make this proposal its centerpiece and seek to persuade all voters, Democrats and Republicans, that Medicare-For All would be in their interest.
Such a campaign would have many advantages. For one thing, the claim would be true. Taxes would have to go up, but the increase for the average person would be more than offset by reductions in individual premiums, in money withheld from wages by employers in order to pay insurance premiums, and in co-pays and deductibles. Mrs. Clinton could point out that people should care more about what medical care costs them than about whether they are paying for it through taxes or by more convoluted and indirect means.
A single-payer system, unlike Obamacare, would cover everybody. Unlike Obamacare it would not force individuals and employers to make complicated choices between plans with different coverage, costs, and in-network doctors and hospitals. Unlike Obamacare it would not need to determine individuals’ continuing eligibility for subsidies, since the tax system would implicitly take care of this. Unlike Obamacare, Medicare-For-All would not motivate employers to reduce the number of full-time employees in order to avoid the mandate.
Politically, Hillary Clinton could appeal simultaneously to Republicans (by openly acknowledging Obamacare’s defects) and to Democrats who have soured on Mr. Obama and on Obamacare. She could capitalize on her expertise gained from her failed effort to design a national program during the first Clinton administration. She could admit learning from that experience that a national system must be simple and understandable.
If Hillary Clinton campaigns on a single-payer platform, the usual vested interests will attack her. But Americans have become suspicious enough of corporations (not least hospitals, insurance, and pharmaceutical companies) that she should be able to turn the tables on them by pointing out the inefficiencies of the current system, the bloated compensation to corporate executives, and deceptive marketing. Many doctors, who used to oppose single-payer insurance, have changed their minds because of frustration with the current system..
If Americans understand where their bread is really buttered, they will support a single-payer system. As a presidential candidate Hillary Clinton will command the national attention necessary to persuade people that such a system would truly be in their interest.
The campaign should be completely honest about the insurance issue. It should frankly admit that single-payer is no panacea and would have some drawbacks as well as advantages. But that is true of all policies, and the real question is how the advantages and disadvantages net out.
By making Medicare-For-All her central platform plank, Mrs. Clinton can help the U.S. escape from the Obamacare corner into which it has painted itself. Even if she loses the election, she will have increased national understanding and paved the way for eventual progress. Win or lose, she has an opportunity to make a real difference.
When I was in grade school, Oregon had no television and I listened a lot to the radio. One of my favorite programs always ended with someone asking about the hero of the series: “Who was that masked man?” The answer, of course, was “the Lone Ranger.”
I remembered this program recently when I noticed how many pro-Russian rebels in Ukraine and Islamic State fighters are wearing masks so we cannot see their faces. And of course there is the masked fellow with a British accent who has been beheading western hostages for us to admire over the Internet. The implications of these masks only gradually began to sink in.
The usual distinction between killing people in war and murdering them has, in recent centuries, been that war is a collective endeavor engaged in by political bodies while murder is an individual activity. Under international law people in armies must wear identifiable uniforms to inform people under whose flag they are fighting. Captured soldiers are required only to answer questions about their name, rank, and serial number, and are not supposed to be killed or held personally responsible for the people they have killed in battle. Murderers, however, are deemed to act as individuals and can be punished for violating the law.
Under the modern laws of war combatants who do not wear a uniform can be treated as spies and executed if they are caught. As I recall, the German saboteurs who landed clandestinely in the eastern U.S. during World War II were executed because, of course, they were not wearing uniforms. And my father, not a military man, was required to wear a uniform in the early 1950s when engineering work at American military bases required him to fly from point to point in Japan. There was concern that if the plane blundered into North Korea, then at war with the United States, he could have been shot.
So who are the masked men fighting the Ukrainian government? How many are disgruntled Ukrainians and how many are Russian soldiers? Are the Russians in organized military units or are they are enthusiastic soldiers who have come in as individuals while on leave? The Putin regime came up with the latter version when body bags started showing up in Russia, though it has also tried valiantly to hush the facts up.
The fact that the rebels and Russians are wearing masks suggests that something fishy is going on. The masks and lack of uniforms probably represent an effort to avoid both the collective responsibility entailed in war and personal responsibility for private individual actions. I suppose the masks on ISIS fighters in the Middle East represent a similar attempt to have their cake and eat it too.
One of my favorite Frank and Ernest cartoons shows a lawyer talking to his jailed client: “Well, no wonder you got caught, Ernie…You’re not supposed to wear a mask when you shoplift.” I included this cartoon in my 1981 college textbook, along with a deadpan comment” “Lawyers can be excellent sources of good advice.”
I wish someone could give us equally good advice about what to do about the current battles where so many people are wearing masks but not uniforms.
Primary elections like we currently have in Oregon have two major problems:
1. Republican primaries are dominated by extreme conservatives and Democratic primaries by extreme liberals because extremists vote more often than moderates. In the general elections more moderate voters must choose between the resulting candidates. We end up with legislative bodies which are polarized and frequently deadlocked.
2. Primary elections tend to include candidates people do not know much about. Most learning about them comes from the media - which may be biased. Media based campaigning is expensive, so financial status may have undue influence.
Measure 90, on the Oregon ballot in November, could solve the first problem. It
eliminates separate primaries for Democrats and Republicans. All voters (including independents) would vote in a single primary election. The top two candidates in this election would fight it out in the general election, even if they are members of the same party.
In such a single primary, candidates would need to appeal to a broad spectrum of voters. Extremists in both parties would tend to cancel each other out as they do in general elections. Even in election districts heavily dominated by one of the major parties, general elections would become competitive because both candidates who win in the primary may come from the dominant party.
Unfortunately, Measure 90 would not solve the second problem with today’s primaries, voters’ lack of knowledge about the candidates. Nominees would still be selected on the basis of costly images, not on personal acquaintance. We could solve this second problem by completely eliminating primary elections and going back to having party leaders select candidates.
Unlike the extremists and their special interest supporters who dominate today’s primary elections, party leaders would evaluate possible candidates in terms of their ability to appeal to the majority of voters in the general election. And party leaders would not have to decide on candidates they know superficially only through image-mongery in the media; instead, they would nominate people they know personally and can evaluate on the basis of their actual qualities.
It is true that voters would still have to rely on the media when voting in general elections, but they would only need to learn about two candidates for each office and in any event there is no reasonable alternative if we are to have elections at all. Hopefully party leaders would have weeded out potential candidates who are only image and no substance when they decide who to nominate.
Unfortunately, any proposal to eliminate primary elections would be labeled “undemocratic” and rejected out of hand without serious consideration of the damage they are causing. A campaign to eliminate primaries might succeed in the long run, but it is not in the cards for today.