Review of James MacGregor Burns book

I put my review of this book on Amazon.com back in 2010,  but am posting it here for more convenient access.
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James MacGregor Burns' newest book, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, will not increase his reputation.

The basic premise of the book is that the Supreme Court invented the power of judicial review out of whole cloth back in 1803, in Marbury v. Madison, without any grounding in the actual Constitution.

It is true that the Constitution does not explicitly grant the courts the power to strike down laws which violate its rules. But it does provide that "This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land . . . ." (Article VI.) Note that it only refers to laws which have been made "in pursuance" of the Constitution.

A contemporaneous analysis by Alexander Hamilton, a member of the Constitutional Convention which drafted the present document, can be found in The Federalist Papers, #78:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

The Federalist Papers were written by Madison, Hamilton, and Jay and published under the penname "Publius" in the newspapers of New York, attempting to convince New Yorkers to ratify the proposed new Constitution. They are considered a very authoritative indication of the intentions of those who drafted the Constitution.

The very first Congress elected under the new Constitution proposed what became the Bill of Rights as the first 10 amendments to the new document. They did this to satisfy critics who opposed ratification because the original document did not have a bill of rights. And the very first Amendment, which set the tone for the whole set of amendments, states that "Congress shall make no law ...." doing a whole lot of things.

What possible purpose would have been served by adding this language to the Constitution if the courts were required to enforce anything enacted by Congress no matter how flagrantly it came into conflict with the Bill of Rights?

Judicial review is so firmly established in the clear language and intent of the Constitution and in over two centuries of precedent that Burns is reduced to a desperate recommendation for how to put an end to it. He wants the President Obama to defy the Court the next time it makes a decision he doesn't like and announce (in effect) that "John Roberts has made his decision; now let us see him enforce it." (My wording, modeled on President Jackson's famous fight with Chief Justice John Marshall, not Burns'.) The president would say that he would respect judicial review only if its supporters formally amend the Constitution to explicitly provide for it. Of course this would take years to do.

Obama, who knows a lot more about constitutional law than Burns does, is highly unlikely to follow this recommendation. But I am not sure that Burns himself would care for the uses to which his own logic could be put if we elect a right-wing president sometime.

Such a president could, with much more grounding in the language and history of the Constitution than Burns has, proclaim that Roe v. Wade, the original abortion rights decision, did not have a legal leg to stand on. Our right-winger would announce that Roe v. Wade would no longer be enforced unless abortion advocates formally amend the Constitution to explicitly provide for it. Again, this could not be done overnight, if at all.

Burns needs to remember that we need to be cautious when we articulate principles, since they have a way of coming back to haunt us.

Tax Increases: Don't Support Politicians Who Say "Never"!

No magic formula can tell us how to vote.   This year, however, we should vote against any candidate who promises never to raise taxes.   Whatever the other merits of Mitt Romney and most Republican House candidates,  we should not vote for any of them since they have accepted the pledge popularized by Grover Norquist that they will never increase taxes.

The Norquist Pledge  makes it harder to reduce taxes when circumstances permit.  No rational legislator would vote for tax decreases if he or she knew that it would be impossible to raise them again if circumstances made increases advisable?   (Perhaps that is why Congress agreed to the Bush tax cuts only if they would “sunset” after a few years.)

The Norquist Pledge also precludes taking advantage of good opportunities.  Barack Obama never took the pledge, but perhaps his  biggest mistake in 2008  was to promise never to raise taxes on the middle class.

Obama was unable to support a single-payer medical insurance system, since it  would require raising taxes on everybody (there not being enough rich people to pay for it just by “soaking” them).    The result was Obamacare,  an administrative mess which leaves millions of Americans uninsured. Obamacare will cost Americans a lot more than a simple Medicare-for-all system would have cost. 

The Norquist Pledge also makes our system more rigid and therefore more likely to break when stressed.  Most people would rather pay higher taxes than to crash the economic system within which we live,  which would impoverish everybody.

Perhaps we should never vote for candidates who make any kind of  iron-clad promises.  As Edmund Burke,  speaking to the electors of Bristol in England classically put it,  “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.^”   

Better by far to emulate Burke:  “Their  [his constituents’] wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.”

President Obama,   in his recent acceptance speech,  didn’t renew his promise not to raise taxes on the middle class.  He did accuse Mitt Romney of planning to do so.  Casual listeners might think this was a promise not raise taxes himself,  but he didn’t actually say this.  This is progress compared with his unwise promise in 2008!

Until most Republican politicians reject the Norquist Pledge,   voters should reject them out of hand, at least at the national level.  Who knows, with any luck the 2012 elections may produce another “Goldwater landslide” like took place in 1964, when voter rejection of a perceived extremist produced such a heavily Democratic Congress that it was able to pass Medicare and the Voting Rights Act. 

What could a re-elected Obama and strong Democratic majorities in both houses of Congress do?  Well,  how about they repeal Obamacare (with enthusiastic Republican support) and then enact Medicare-for-all.   They could name the new insurance program in honor of Grover Norquist, who helped make it possible.    

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This article has run in the Portland Oregonian and in the Adrian (Michigan) Daily Telegram.

Paul Ryan and Ayn Rand: Guilt by Association?

New York Times writer Paul Krugman recently attacked Republican vice presidential candidate Paul Ryan, claiming that Ryan “gets his ideas largely from deeply unrealistic fantasy novels.”   The specific novel Krugman had in mind was Ayn Rand’s bestseller,  Atlas Shrugged.

Of course there is nothing surprising about Krugman attacking a Republican,  since his columns in recent years have sounded more like they were written by a Democratic spin-doctor than by a Nobel Prize winning economist.  But his attack on Paul Ryan does a major injustice to the novelist Ayn Rand.

My interest in Ayn Rand and her ideas goes back nearly 50 years.  Krugman, sneering at Atlas Shrugged,  claims “the book is  a perennial favorite among adolescent boys.”  But,  he adds, “Most boys eventually outgrow it.”  However my first encounter with Atlas Shrugged was not as an “adolescent boy”: but as a 22 year old graduate student at Johns Hopkins University. 

Rand was giving a lecture at Johns Hopkins,  and I read Atlas Shrugged to get some background before her talk.  The book horrified and depressed me.  I was not impressed with Rand as a person, either.  I vividly recall how she got unnecessarily nasty with a student who challenged something she had said, announcing  rather snottily that she had not come to Johns Hopkins to engage in debates.  Years later,  when I learned she was a chain-smoker, this did not take her stock up in my book, either.

But even nasty people can have interesting ideas.  For many years I taught a special class at Adrian College in which students read and discussed Atlas Shrugged. The students were some of the brightest and most interesting on campus.  One of them,  who considered himself a Socialist Workers Party fan,  took the class because his adviser told him it would “test his values.”    And I think it did.

Krugman’s put down of Ayn Rand forgets that all political discourse is a mixture of sense and nonsense.  Learning how to tell which is which is an important skill,  and discussing a book like Atlas Shrugged can be an excellent educational tool because the book is loaded with both a great deal of sense and a great deal of nonsense. 

My own take is that Rand’s ideas about “the virtues of selfishness,”  interpersonal relations, and religion (she was a militant atheist) were quite wrong.  But she was on to something really important in her distinction between the power of the sword and the power of  the purse, a distinction which left wingers tend to ignore or to blur.  The 64 page speech by John Galt, which Krugman correctly identifies as the novel’s centerpiece, does a masterful job of sharpening this distinction. 

Does Krugman really believe in guilt by association?  If so, not only Paul Ryan but also other immensely intelligent people like Alan Greenspan and Hillary Clinton would stand convicted. Both were very interested in Ayn Rand’s ideas in their younger years.  And clearly none of these people swallowed Rand’s ideas uncritically. 

It would be nice if Krugman would go back to being an economist and get out of the spin-doctoring business.  Even as a spin-doctor, however,  he should avoid writing more columns featuring excessive generalizations about an important novelist. 

A Larsonian explanation of "Entanglement"???

A Larsonian explanation of “entanglement”?

Paul F. deLespinasse

Corvallis, Oregon

Author’s note: This tentative analysis  is work in progress.   I put it  forward for discussion and criticism.

The theoretical universe of Dewey B. Larson rests on a scalar space-time progression that,  in the context of a 3-dimensional Space Arrested Reference System (SARS) or a 3-dimensional Time Arrested Reference System (TARS),  moves “outward”  at the speed of light.   A SARS is established by material atoms whose motions cancel the outward progression of space and form aggregates.  A TARS is established by cosmic atoms whose motions cancel the outward progression of time and form aggregates.     

In the Larsonian universe what we conventionally regard as “space” is nothing more than locations in a Space Arrested Reference System.    As in Einstein’s universe,  nothing can change its location in this “space” faster than the speed of light.

Entangled photons, however,  appear to “communicate” with each other instantly no matter how widely they are separated.   This is considered something that cannot be explained since it appears to violate the speed of light limit accepted by Einstein and Larson.

When a photon originates from a location in space,  in Larson’s system it does not change its location in space-time but is swept outward at the speed of light  relative to a SARS centered on the material aggregate from which it originated.  The direction in the three-dimensional SARS taken by a particular photon is determined by probability considerations.

Two photons originating simultaneously at the same space location and therefore possibly entangled will therefore remain at the same location in the space-time progression no matter how widely separated they become in the context of a Space Arrested Reference System.  There is therefore no need for them to “communicate” through the SARS, and no violation of the speed of light limit for such communications, since they remain in the same location in the space-time progression.

Comment:  It is unclear to me how this explanation of entangled photons, if it is correct, could apply to entanglement of  particles which have mass, since in the Larsonian system such particles do change their locations relative to the progression, unlike photons which remain in the same location in the progression and are swept along relative to a SARS or TARS by the speed-of-light  progression.

The dangers of overdoing rational ignorance

In "The logic of willful ignorance" (July 7), columnist David Sirota tries to explain widespread ignorance about our history, Constitution and current affairs. The grounds upon which he tries to justify "willful ignorance," however, are incorrect and, if widely believed, would make things worse.

Sirota argues that ignorance doesn't mean people are stupid. Rather, they have "logically concluded that the information no longer matters." This, he opines, is because "elections are bought and paid for by huge money, ... presidents of both parties ignore the basic tenets of the Constitution, ... the lifetime-appointed judiciary spends much of its time helping Big Business tilt the law against the population, and ... the major parties resemble each other on most policies."

Sirota concludes: "Many Americans so accurately perceive the fraud being perpetrated on them that they have decided to simply tune out."

But public ignorance can be explained on general principles, without relying on any of Sirota's dubious explanations.

At some point, the costs of seeking further knowledge may outweigh its benefits, and at this point, it becomes rational to stop seeking extra knowledge. It is not paradoxical to speak of a "principle of rational ignorance."

This principle has special applicability to politics. Each voter is one among thousands or millions, and can often be outvoted. As a consumer, this same person is one of two parties to every transaction, and because private transactions require mutual consent of both parties, the consumer actually has a veto over every transaction. Knowledge gained about matters subject to private decision -- what car to buy, whom to marry, which church to join, which doctor to go to -- is therefore worth more to the individual than political information costing equal time and effort to acquire. Although many people overdo "rational ignorance" about politics, it is easy to see why the quality of public opinion is not very high.

Sirota lambastes "huge money" but ignores evidence that elections are often won by the lower-spending candidate and that we have had no presidents named Rockefeller or Perot. He ignores the fact that candidates often raise more money precisely because they are expected to win. He cites no examples of presidents ignoring "basic tenets" of the Constitution.

Sirota's complaint about the parties resembling each other suggests that he doesn't understand the logic of competitive elections. Of course they do, precisely because both must appeal to voters whose views cluster around the middle of the road. When a party nominates people too far from the middle (examples: Goldwater, McGovern), they lose big.

When I was a student at Willamette University, a group of us met with Gov. Mark Hatfield. I still remember his comment when asked about the belief that politicians are all crooks: If people believe that, said Hatfield, the honest won't seek office and only crooks will do so. To the extent readers fall for Sirota's cynical analysis, which suggests we are fools if we don't tune out, it will render us even less able to vote intelligently in our own interests than we are now.

Paul F. deLespinasse, who lives in Corvallis, is professor emeritus of political science at Adrian College in Michigan. His college textbook, "Thinking About Politics," which attempts to teach students how (not what!) to think about politics, is available online for free reading at www.deLespinasse.org . He can be reached via this same website.

This piece has appeared in the (Portland) Oregonian.

Some interesting thoughts from daughter Cobie

Like myself, Cobie thinks things through by writing.  Here is a recent document that I thought was worth sharing more widely.

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The Question:

I've kept trying to decide: Do I want to focus almost all my volunteer time on reducing animal suffering? Or do I want to spend some of that time trying to help people learn about political issues in general?

The Tentative Conclusion:

I think I've decided to spend most of my time on animal issues. Yes, I'll want to do a little learning about other issues like any citizen should. And I'd like to keep going to an Unlike Minds meeting once a month – discussed further below. Possibly write a letter to the newspaper sometime about what I've learned from having political discussions with people who disagree on issues (and write a few letters about animal issues too). But I don't think I'll really get involved with teaching people about other issues.

Discussion:

What I had thought about doing to help teach people about political issues: First, learn more about the issues myself. And do some experimenting in our Unlike Minds group (a group of 9 people with differing political views who get together for friendly conversations – one of several such groups here in town). In Unlike Minds, we can try various ways to discuss issues. Later, encourage additional people to learn about issues. Possible ways we can help people learn: Spread Unlike Minds to more people, and/or start a website or social media site that talks about ways to learn about issues. Maybe each person who visited the website could post their own suggestions about how to study issues on a separate webpage.

Maybe many others are already doing the things I've thought about, that would help people learn about political issues? I'd like to know.

The reason I was thinking of helping spread political issues in general, is that I don't know whether there are many people doing things like Unlike Minds, or like websites with suggestions about ways to study issues. Whereas with animal issues, I know that some people have thought very carefully about how to spread animal issues, and they are doing some very effective things.

How important are animal issues compared with other issues? On the one hand, there are a lot more farm animals than there are humans on Earth, so animal issues affect more individuals than any other issue. On the other hand, there are crises to be prevented (wars, enviromental problems, recessions), and some of these crises could make it harder to spread information about animals (and could harm a lot of humans as well).

But my impression is that humans have a lot of incentive to prevent crises that could harm us, less incentive to help animals. A lot of people are working to try to prevent human crises, and most likely they will succeed. In the previous century the world survived wars, the Great Depression, etc., and we will probably make it this time, too.

Maybe environmental problems could sneak up on us and kill us all (I don't really know), but if a lot of people consume fewer animal products, that will help the environment a lot.

Another way to look at it: Wouldn't it be a shame if a lot of us got together to stop the crises that might affect humans, and then we watched as the world went on happily abusing animals?

Possibly by promoting the careful study of all issues, I could persuade some people to learn about animal issues. But I would guess that promoting animal issues is going to do the animals more good than a general promotion of studying issues carefully – this of course is all guesswork. So I'm thinking that I shouldn't spend a lot of time on other angles in the upcoming years. If, in some future decade, all the colleges (and high schools?) in the developed world are saturated with literature about factory farming, then I might start to try other ways to convince people to be more compassionate. (In my opinion, the best way to be compassionate is to move toward a plant-based diet – but that's another discussion.)

If it weren't for all the animal suffering, I would work to work to stop human suffering. But I think the best thing I can do under current circumstances is to work to stop animal suffering. There are so many animals who are suffering, and I think the animals are getting much less attention than the “crisis” issues are.

Asking for Feedback:

My overall goal is to reduce suffering, not to work on animal issues or work on other issues.

Do you agree that working on animal issues is the best way that I can reduce suffering? I'd appreciate feedback.

NOTES:

• I'm asking several people for feedback on this, because I reached these conclusions after a conversation with just one person. I remember 20 years ago I decided to go to graduate school after a conversation with another student and didn't discuss it with anyone else. I later realized that going to graduate school had not been what I wanted at all (although other people are welcome to go to graduate school.) So for this decision, I'd like to get several people's feedback.
• I haven't read The World Peace Diet yet. It's someone's opinion about the relation between animal issues and human issues.
• Does anyone know of other movements that are similar to Unlike Minds, or of websites or social media sites that help people learn about good ways to study issues?
• I also want to try praying/meditating in case that gives me any insight.
• I think that for working on animal issues, I'd like to mostly spend my time handing out literature to college students like I've been doing.
• My understanding of things is always evolving, but this is my current impression of what I should work on.
• Sometimes I wish the world were different than it is. I wish it were better for both animals and humans.