Rick Hills on Federalism and Health Care

(By Andrew MacKie-Mason)

I'd like to take a moment to recommend Professor Rick Hills' (NYU Law) blog post about federalism and the health insurance lawsuits. In addition to being an excellent person, Professor Hills is a very smart federalism scholar, and the post does a nice job of summing up the central issues surrounding Judge Hudson's ruling (an analysis of which I'm working on, and hope to post soon).

While the entire thing is worth reading, I'd like to highlight this point:

Don't get me wrong: I agree that the action/inaction distinction makes plenty of sense as a theory of individual liberty. Forcing people to do stuff generally constrains their liberty more than barring them from doing stuff. But this distinction is completely unrelated to the question any doctrine of enumerated powers must answer, viz., "why should we trust the states more than the feds to impose the challenged regulation?"

There are two main ways to challenge federal legislation: by arguing that it contradicts a specific prohibition in the Constitution (like the First Amendment's free speech guarantee), or by arguing that it exceeds the federal government's enumerated powers (and is thus reserved to the states under the Tenth Amendment). Opponents of the health insurance reform bill are trying to conflate the two: they're making personal liberty claims, and cramming them into an Article I enumerated powers framework. Professor Hills has the right question: if personal liberty is the issue, why would states be allowed to institute the exact same regime that it was wrong for the federal government to institute?

As an aside, the commenter on Professor Hills' post raises a good point about the ridiculousness of pretending that the action/inaction distinction is legitimate:

Mazzone states: "Criminal law punishes things people do, not things they do not do." Who recalls the grand finale to Seinfeld, where Jerry, Elaine, Kramer and George were found guilty under a fictitious MA community's "Good Samaritan Law"? Aren't there non-fictional criminal laws that make doing nothing criminal, e.g. not filing income tax returns?

Indeed, the individual mandate is just another in a long line of affirmative duties placed on citizens, a line that stretches all the way back to the founding.

Commerce Clause: GM Cars

(By Andrew MacKie-Mason)

According to Orin Kerr, a common argument when attacking the individual mandate is the "can Congress force you to buy a GM car?" hypothetical. Basically, it goes like this: if the government can fine people for not buying health insurance, it can fine them for not buying a GM car. Since it would obviously be bad for them to force us to buy GM cars, such a situation must be unconstitutional. Thus, it must be unconstitutional for the government to "force" us to buy health insurance.

There are a few problems with this argument (for instance, things that should be illegal shouldn't necessarily be unconstitutional). However, I'd like to focus on one, with what may be a controversial claim: it would be perfectly constitutional for Congress to "require" everyone to buy a GM car.

Consider the following hypothetical law: Congress works out a deal with GM where they can buy a certain car, in bulk, for $15,000 each. They then institute a tax on all peoples' incomes of $15,000, and use that money to buy a huge number of GM cars, which they then distribute to citizens. As part of the deal with GM, they work it out so that anyone who's purchased a GM car in the past five years can sell their new car back for its full $15,000 value.

There's a lot that's unwise about the above plan. It definitely shouldn't be done. But as far as I can tell, it would be perfectly constitutional, and it effectively forces every individual in the country to buy a GM car once every five years.

This doesn't seem right to many people. They assume that such a regime would have to be unconstitutional. But economic conservatives have that visceral reaction (that they then try to support with flawed constitutional argument) because they think that our constitution is the framework for a capitalist society. In reality, though, it's not. Regimes that are as close to communism as what we have now is to capitalism could function without changing the constitution. After all, the federal government is given almost unbridled authority to regulate economic affairs. We have our capitalist society because of our politics, not our constitution.

Don't Ask Don't Tell Repeal: 65-31, 250-175

(By Andrew MacKie-Mason)

Today marks a historic, though long-overdue moment in American civil rights: the Senate just voted to repeal Don't Ask Don't Tell, joining the House of Representative's vote to do the same on Wednesday. In other words, when President Obama signs the repeal this week, the military will begin the process of allowing all people to serve, regardless of sexual orientation. 65% of the Senate voted in favor of repealing the unjust law, as did 57% of the House.

With the military on its way to forgetting one of the more ridiculous prejudices to plague American society, the rest of the country can't be far. Today is a good day: go forth and celebrate.

Using Taxes For Controversial Purposes

(By Andrew MacKie-Mason)

In the same essay on First Things that I just wrote about, Professor Richard Stith makes an interesting claim about the use of taxes: "Taxpayers, of course, should not be compelled to underwrite abortion."

Of course? Why is this conclusion so obvious? What he's basically saying is that tax money should not be used for any controversial purposes. Of course, there are some fringe libertarian-anarchists who make that claim and actually stick to it, and it makes its way (without intellectual rigor) into opposition to various government programs. But, when you actually think about it, the use of tax money for non-unanimously approved ends is exactly why government exists. If we all agreed on what to spend money on, government would be pointless.

Professor Stith's claim amounts to a claim that government is completely unnecessary. If that's the claim he wants to make, he should make it. However, it's clear that he thinks government is actually necessary, so long as it's the government that is correct . . . "of course".

"Freedom of Conscience" in Abortion Legislation

(By Andrew MacKie-Mason)

The Catholic legal blog (Mirror of Justice) that I keep up with recently put up a link to this post on First Things by Richard Stith, which begins:

Some readers will recall that I recently argued in favor of keeping more or less the current federal healthcare insurance plan, provided that it be amended fully to exclude abortion and euthanasia, and to protect conscience. My reason was that heathcare insurance in the private market has shown a long-term tendency toward a culture of death. So we may need to keep healthcare insurance public in order for the pro-life majority in this nation to be able to shape it to protect the vulnerable.

A bit later on, Professor Stith says:

Basically, they make a strong argument against putting all our eggs in one basket, for if we fail in our pro-life remaking of federal public healthcare insurance, we may well be left without any alternative (because the public plan will probably make escape to the market difficult or impossible). Better to leave a way out for ourselves and some others, they reason, rather than to take a chance on losing a fight to save everyone.

This post emphasizes a common incongruity in social conservative rhetoric about abortion: they express a desire to respect "conscience" . . . so long as "conscience" is understood as "Christian conscience."

Professor Stith says that we must, of course, protect conscience, and it is clear that he's talking about ensuring that Catholic doctors and nurses never have to participate in abortions. He also seems to mean that taxpayer money should never go to abortions. But then he immediately advocates using the coercive force of society to prevent people from ever having abortions.

Of course, there are many people (myself included) who, as a matter of conscience think it is improper for the government to prevent abortions from occurring. But does Professor Stith think that our consciences must be protected? Apparently not, since (obviously) his conscience is right, and ours is wrong (or we're misguided about what our consciences are telling us).

Is the Justice Department Enforcing Sharia Law?

(By Andrew MacKie-Mason)

I haven't written much in a while, but here are some links for your reading pleasure:

"Libertarian" blog "Atlas Shrugs" claims that the Department of Justice is enforcing Sharia by suing a school district for not granting a teacher time off to make the hajj.

Libertarian law professor Eugene Volokh counters with the perfectly obvious point that the Department of Justice is in fact enforcing long-standing American religious accommodation law.

More Censorship By The Manhattan Declaration

(By Andrew MacKie-Mason)

I'm happy to say that my last comment on the Manhattan Declaration blog was eventually published. However, I've submitted another comment to their pre-approval of speech gauntlet, so here's to seeing if they can continue their good track record. (By the way, pre-approval is most certainly a form of censorship.)

Billy Atwell says: "The Vatican shouldn't offer pro-gay pamphlets for a very valid reason: they're Catholic. Apple should offer the Man. Dec. app for a very valid reason: they claim to be an open platform for most Americans to communicate."

Billy, can you show me where Apple makes that claim? I certainly haven't seen it. And if that's the issue you have, that's the issue you should be raising: supporters of the Manhattan Declaration have been talking like it's absurd for a private company to take a side on a cultural issue, and yet they would of course defend to the death the right (and perhaps duty) of other private organizations, like churches, to take sides on the same issues: as long as it's their side.

Billy Atwell says: "Most Americans are also Christian. Combine those two stats and Apple is no longer a company for "most" of America."

I can attest that the rejection of the Manhattan Declaration does not in any way constitute a rejection of Christianity.

David Robarts says: "If Apple allowed users to select alternate venues for obtaining software for iOS devices then I could entertain the notion that Apple has a right to be much more selective in what it approves; however, Apple has placed themselves as the sole distribution point for iOS apps so we feel they should be held to this anti-censorship standard. This is a big reason why I support iOS jailbreaking. If Apple believes that the best way to protect against bad code is to require that all code meets its approval then they have an implicit obligation to allow all views to be expressed in that channel."

Your logic here seems lacking, and it doesn't actually respond to the Vatican question. You start from the assumption that all views should be able to be expressed through the app store, and then go from there. But there's no real reason to make that assumption.

First: prohibition of an app doesn't really prevent the content from making it onto the phone. Web-style apps can do almost everything that full apps can (including being saved as icons), and the MD has one of those now. Apple does nothing to censor the websites that Safari can go to.

Second: the iPhone/iPod is not the entire world of civil discourse: it is just Apple's corner of it, like the walls of the Vatican are the Vatican's corner of civil discourse. It's no more a stretch to claim that since the Vatican offers public access, they have set themselves up as the sole maintainers of a public space, and so should allow all views in.

Billy Atwell says: "It's important that people like us have the opportunity to hash out our beliefs."

That sounds a lot like you're not actually keeping an open mind.

Billy Atwell says: "Were you really offended by the idea that we believe in the Christian position on marriage?"

It's actually a little insulting and offending that your claim that it's the "Christian" position, yes.

Billy Atwell says: "We have the right to make our claims, and should be allowed an app in Apple's store just as much as all of the gay-related apps they allow."

You have the desire, but you've made no strong case for your "right".

Larry Skahill says: "Do they have the right to do what they want with their devices? If they openly state to purchasers that all apps (and perhaps all future communications) are dependent upon Apple's restrictions on freedom of speech and freedom of religion, yes. This would require a change at the point of sale. I doubt they have the moral and ethical scruples to do so."

Apple tells you up front that all apps have to come from the App Store, and that they control the App Store. If you didn't listen, that's your problem.

Las O. Gayle says: "have lost the ability to accept the notion that human sexuality is subject to the principles of God as revealed in the Bible"

This self-righteousness is part of what's so irritating about the Declaration to me. People who talk like this feed the belief that Christians have no respect for differing opinions and think that their views are divinely ordained. It's the kind of hubris that's entirely inappropriate from a person of faith.

Manhattan Declaration: Only We Can Censor!

(By Andrew MacKie-Mason)

So, I wrote about the Manhattan Declaration twice before. They posted a new video about Apple's decision to censor their app from the App Store, and I went to comment on the story, when the funniest thing happened. I got the following message: "Thank you for the comment! Your comment must be approved first" (final punctuation omitted in source).

Here's what I wrote. We'll see whether the people at the Manhattan Declaration censor my comment for disagreeing with them...about the existence of censorship.

Some thoughts on the video:

First, the apps he chooses to highlight at the beginning are irrelevant. Yes, there are some ridiculous apps on the App Store, but so what? They aren't offensive in the same way that the Manhattan Declaration is.

Second, he tries to frame it as "marriage" being too offensive for Apple. But (as much as marriage is a part of it), it's not that "marriage" is too offensive, it's that the discriminatory type of marriage, and the reasons used to justify it by the Declaration, are too offensive. The claim that marriage is too offensive is a nice bit of revisionism and spinning, but it's not the truth and undermines the credibility of the video as a whole.

The bit about other Apple products also censoring information is also a non sequitur. None of those circumstances would place Apple's stamp of approval on a product like selling a product in their store does.

Out of curiosity, do the people at the Manhattan Declaration support requiring the Vatican to offer pro-marriage equality pamphlets in its gift shop in the name of honest debate? If not...why not? Why does the Vatican get to censor what it offers, but Apple doesn't?

Is Local News Dying?

(By Andrew MacKie-Mason)

When I get a daily news summary that's entitled "Today's News: Complete coverage of the Gator Bowl announcement" I would argue that it is. Complete coverage, not even of a sports game, but of the announcement that a game is going to happen?

Especially when I see that that on the top headlines, "Michigan football team will face Mississippi State in Gator Bowl" precedes all of these other headlines:

• Two people shot at Ann Arbor house party, shooter remains at large
• University of Michigan social entrepreneurship class allows students combine learning with helping
• Saline teenager accused of stealing safe during home invasion, robbery

Then again, when I see that those four stories have 63, 33, 2, and 8 comments respectively, maybe it's our society, rather than local news, that's dying.

Parsing TSA

(By Andrew MacKie-Mason)

I submitted two complaints to TSA regarding the new naked-imaging-or-full-patdown procedures. One was on my own through their complaint service on November 18th, the other was a form letter sent through an ACLU campaign which TSA received on November 19th. I just got a form response to both complaints that reads as follows:

Thank you for your e-mail regarding pat-down procedures conducted at our Nation's airports.
At airports nationwide, the Transportation Security Administration (TSA) is implementing more streamlined, consistent, and thorough pat-down procedures at security checkpoints to provide a higher level of security and increase the safety of the traveling public. Patdowns are one important tool to help TSA detect hidden and dangerous items, such as explosives. Passengers should continue to expect an unpredictable mix of security layers that include explosives trace detection, advanced imaging technology, and canine teams, among others.
Transportation Security Officers will conduct different pat-down procedures to resolve different types of anomalies. During the assessment, officers will use revised pat-down procedures in all instances to resolve anomalies. The updated pat-down procedures will address areas of the body that we know are used as areas to conceal potentially dangerous items, like explosives.
TSA Administrator John Pistole has stated that TSA strives to ensure consistency whenever possible for passengers at security checkpoints. As always, all passengers have the right to request private screening at any time during the screening process, and patdowns are conducted by same-gender officers. However, passengers who are not willing to go through the screening process will not be permitted to fly.
We understand and regret the discomfort and inconvenience you experienced as a result of pat-down procedures. Nevertheless, we believe these security measures are necessary and appropriate for ensuring the security and confidence of all air travelers. TSA continues to develop and deploy new technologies to address the explosives threat, and the use of pat-downs provides an additional layer of security at the checkpoint. For more information regarding the pat-down procedures, please visit TSA's Web site (www.tsa.gov).
We hope this information is helpful.
TSA Contact Center

A good rule of thumb is that form letter responses to government complaints won't actually tell you anything. They're still important, of course, because agencies keep track of how many complaints they get (which is why making the complaint is more important than the specific wording). But this response actually has some interesting tidbits in it, so I thought I'd parse it out.

• "Transportation Security Officers will conduct different pat-down procedures to resolve different types of anomalies. During the assessment, officers will use revised pat-down procedures in all instances to resolve anomalies."

This statement calls into question how specific the relevant procedures are. From the sound of it, Transportation Security Officers have significant autonomy to conduct a pat down in whatever way they feel necessary to resolve an "anomaly".

• "As always, all passengers have the right to request private screening at any time during the screening process, and patdowns are conducted by same-gender officers."

This is nothing new, but it does reveal that TSA is missing the point: people aren't objecting to getting touched in public, or by members of the same sex. They're objecting to being touched. The "same-gender officers" bit also reveals the heterocentricity of the procedure. Why should we assume that people are necessarily more comfortable with being touched by someone of the same gender?

• "Nevertheless, we believe these security measures are necessary and appropriate for ensuring the security and confidence of all air travelers."

This statement is the real bombshell. TSA is not only concerned with security, it seems, but the "confidence of all air travelers." In other words, a significant part of the justification for these procedures seems to be security theater: making people feel safe, even when they're only marginally safer, if that.

• "TSA continues to develop and deploy new technologies to address the explosives threat, and the use of pat-downs provides an additional layer of security at the checkpoint."

Finally, this should convince everyone that warnings about escalation are not empty: TSA is bragging about the fact that they're still developing new ways to invade our privacy.

So, anyways, keep filing complaints with TSA, and see if they eventually make a real difference.

Apple and the Manhattan Declaration

(By Andrew MacKie-Mason)

The other day I blogged about the Manhattan Declaration, a conservative Christian platform about life, discriminatory marriage, and religious "liberty". The Declaration used to have an app for the iPhone, iPod and iPad, but after complaints, Apple removed it from the App Store. Various people protested that decision, and the people at the Manhattan Declaration published a few of the letters sent to Steve Jobs about the issue. I found this one particularly entertaining:

In our day of coarsened media and public dialogue, the declaration not only makes its case but is an example of how to do so with respect for its opponents. Apple has already been on this same side of things, having taken a principled stand against pornography in apps. I admire that stand and hope that you will see that Apple’s action to deny access to the Manhattan Declaration app is disrespectful to mainstream Christian principles held by vast numbers of people throughout the life of the church. …

Apple’s commitment to excellence, and the obvious way it has tried to be a thoughtful leader about what goes onto its app platform is really above this heavy handed treatment of religious liberty and Christian belief in particular, and free speech in general. It would be an admirable thing for Apple to change its mind on this in favor of civil discourse, as no doubt was visible to the reviewers when the Manhattan Declaration app originally was approved.

I don't know about you, but to me a conservative Christian praising Apple for censoring pornography one moment and then exhorting them to respect freedom of speech the next is a perfect example of the incredible hypocrisy that is all too often expressed by those who demand the right to say whatever they want.

Illinois: Civil Unions

(By Andrew MacKie-Mason)

Today, the Illinois legislature approved a bill creating civil unions that are available to same-sex couples. It's mixed news: partners in civil unions will gain some, but not all, of the benefits of marriage. And, like many compromises, it'll blunt the forward force for reform. At the same time, though, it will enable many loving couples to have a formally recognized relationship.

Of course, opponents are continuing in their usual vein:

"Here we are, forced to debate an issue that may be political payback to a small but very politically powerful special interest group," said Sen. Chris Lauzen, R-Aurora. He called gay sexual activities dangerous and questioned whether the state has a role in regulating relationships that don't produce children.

Watch out for all that dangerous homosexual intercourse going on: it might poison you if the fumes drift into your house. And, obviously, there is much more to marriage than children.

There are still bigoted people out there. But the fact is, today they lost. And today we can praise those courageous people who stand up for justice instead of bowing down to religious, bigoted pressure.

Some religious leaders welcomed the legislation. In Chicago, Rabbi Larry Edwards said he's looking forward to planning celebrations for couples in his Jewish congregation who may decide to form civil unions under Illinois law.

"To those who say it's a slippery slope and eventually will lead to marriage, I say, 'I hope so,'" said Edwards of Or Chadash synagogue. "I would like to be on a slippery slope that slides in the direction of justice."

The Rev. Vernice Thorn, associate pastor of Broadway United Methodist Church in Chicago said she considers the vote a hopeful sign. "Same-sex legalized marriage is going to happen. It's just a matter of when."

Ann Arbor Schools and Fiscal Responsibility

(By Andrew MacKie-Mason)

Earlier this month, AnnArbor.com reported that the new superintendent of the Ann Arbor Public Schools (who, keep in mind, hasn't even been selected yet) will make $245,000 a year. That constitutes a $65,000 raise from what the previous superintendent, Todd Roberts, received.

Coming just a year after the district aggressively pushed a tax increase to deal with low funding for the schools, this is an irresponsible raise. And it's not even based on performance: how can it be, when we don't know who the superintendent will be? What this is is a raise in the hope that maybe it will attract a superintendent who is supremely more qualified than the candidates who would have been attracted by the old salary.

I just sent the letter below to the Ann Arbor Board of Education. I encourage anyone who reads this and is in the Ann Arbor area to also contact the Board with your concerns. The email address for the entire board is: boe@aaps.k12.mi.us, and individual email address can be found here.

---

To: President Deb Mexicotte , Vice President Susan Baskett , Secretary Andy Thomas , Treasurer Irene Patalan , Trustee Simone Lightfoot , Trustee Christine Stead , Trustee Glenn Nelson

From: Andrew MacKie-Mason

Re: Fiscal Responsibility

Members of the Board of Education,

As a recent graduate of the Ann Arbor Public Schools, I am very troubled by the Board's plan to significantly raise the starting salary for the new superintendent of the Ann Arbor Public Schools. We are at a time when fiscal responsibility is essential, and this exorbitant compensation plan is an incredibly poor choice. It's been barely a year since Superintendent Roberts begged the voters of Washtenaw County for more money. He did everything he could to pass a millage to provide what he called essential funding: he threatened teachers' jobs, he threatened to cut programs, he threatened everything he could. But Washtenaw County sent a clear message last November that the Board seems to have already forgotten: we want cuts in administrative costs and more funding to teachers.

In response, it seems, the Ann Arbor Public Schools are doing the opposite: cutting teachers' salaries and providing very large raises to administrators, before those administrators are even hired.

I owe a lot to the Ann Arbor Public Schools. It's because of my education that I was able to make it to, and succeed at, the University of Chicago. It's because of my education that I've been able to write a political blog that's sparked conversations with candidates and been visited by thousands of voters across Michigan. And it's because of my education that I always strive to do better.

But I owe little of that to the superintendents who have served Ann Arbor, no matter how well they've done so. I owe everything to the young, bright, energetic teachers who taught me that school is about more than grades. I owe it all to teachers who revised their curricula every day, who stayed up nights planning the next day's lesson, not because they were told to do so by administrators but because they cared about their students and spent their own time trying to figure out how to do better. I owe it all to teachers who held extra sessions after school on the lawn, on weekends at the library, or during their lunch hour because they cared and wanted me and other students to learn as much as we were willing to work for. I owe it all to teachers who spent long weekends providing detailed feedback to improve my writing, and staff who came in every day and stayed late so we could put on spectacular theatrical performances. I owe it to conductors who gave their evenings and weekends to their ensembles, and counselors who did everything they could to help their students succeed. They have all inspired me to keep working, because I know it will take a lifetime to approach the level of dedication and service they demonstrated every day.

Right now, the Ann Arbor Public Schools do not need a visionary. We don't need someone in the middle of their career, successes behind them, ambition before them, who will use Ann Arbor as a step to some better job. We don't need a superintendent who chases a salary or political approval. We need an administrator who can do what is right, no matter how hard it may be, to restore the proper priorities to our school.

We need a superintendent who can consolidate our schools, saving resources that can be better used to educate our children. We need a superintendent who can retain the administrators that we need and cut the others, freeing up money for educators. We need a superintendent who believes in education and its power to help students grow into smart, responsible, free citizens.

And that, members of the Board, is not a superintendent you will find with high salaries and a lateral search. The current actions of the Board will only reinforce the message that Ann Arbor is looking to its administrators, rather than its teachers, to improve the schools. The Board must fulfill its responsibilities to the students of Ann Arbor, and make it clear to the new superintendent that the job is not about money or career advancement. The superintendent's salary should not be raised: it should be cut, so the new administration begins with a clear, unhesitating message of fiscal responsibility and educational priorities.

Yours sincerely,

Andrew MacKie-Mason

Why Does Government Fail?

(By Andrew MacKie-Mason)

"Government isn't as efficient as private enterprise."

That's a common claim by people on the economic right. And it's often true: there are many times when government isn't as efficient as private enterprise.

Of course, the conversation shouldn't stop there. Efficiency isn't the only goal, nor should it be. But those justifications for inefficient government programs aren't the purpose of this post. Today, I'm trying to understand, in detail, why government isn't as efficient.

The inefficiency of government can't be explained by vague appeals to "free markets". After all, politics is a market and government is subject to many of the same forces that businesses are. So what is it? Interestingly enough, we can learn a lot about government inefficiency by looking at business inefficiency.

Namely, government often suffers from the following failings, which make markets not work very well.

1. Bundling
2. Sparse Choice
3. Uncertain Products

Bundling

Bundling is a business tactic that companies use to decrease customer choice. It involves packaging two or more products together, and not letting customers buy them separately. It can be illegal (when used by a business with monopoly power over one product to exert market power over another product) and, when widespread, makes the market less responsive to consumer choice, and thus less efficient.

Government is an inherent bundling enterprise. A single vote is a choice of defense strategy, economic policy, fiscal policy, social policy, etc...and each category itself is a bundle of different issues, plans, and solutions. The problem is exacerbated by there not being many bundles to choose from: in most elections, the voter has two choices out of hundreds of possible combinations of policy preferences.

Sparse Choice

Even though America has a high number of elections as democracies go (people in some cities in America probably cast more votes than any other person in the world), voter choice is still sparse when compared to the wide range of government action. This problem is related to the bundling issue (we only have one vote on a combination of many issues), but it also has to do with the amount of time before elections. Consider American presidential elections: voters have to make one choice that will last for four years.

This problem may be somewhat less pronounced in parliamentary systems, which have mechanisms (votes of no confidence) to allow for elections in direct response to certain governmental actions. Still, though, such votes must generally be implemented by the legislature, and is only used in response to major events, not small ones.

The end result of sparse choice is that many factors can't really be taken into account when a voter makes their choice. To analogize, consider the purchase of a house. This is a circumstance with sparse choice: you can't afford to get a new house every time something goes wrong with your house or in the neighborhood. You're basically stuck with what you have, and only major events will cause you to make a new choice.

Uncertain Products

This problem is related to the phenomenon of false advertising in the business world. It's all a matter of customers not knowing for sure what they're going to get. Businesses have developed different ways of dealing with this problem. Warranties are one: if what you purchased doesn't live up to what you were expecting, you can often return it for a refund. Car dealers allow you to test drive automobiles before you purchase them, so that you can have a better idea of whether you'll like the car. Grocers will offer you free samples of food, and various organizations exist solely to evaluate and recommend products.

Government has helped with the problem of uncertain products in the marketplace too: labeling requirements on food ensure that customers know exactly what they're purchasing, laws punishing false advertising make it more difficult for businesses to trick customers, etc.

But it's much harder to deal with this problem when it comes to government. Part of that is because elections are structured as prospective choices: voters aren't choosing something that already exists (like a car or a gallon of milk), they're choosing a person based on what that person is going to try to do during their term.

A related problem is that no elected official has the power to accomplish much individually. Voters are generally attempting to purchase results, not attempts, but success depends on factors that they have no control over: like legislators from other districts, and even governments of other countries. And this lack of power makes it difficult to establish an equivalent regime to "false advertising" when it comes to politics: very few campaign promises are broken to the extent that it's clear they were actually broken, rather than just being outside of the official's power to achieve.

To be clear, none of these sections are meant to imply that businesses would necessarily do better at the jobs that government attempts. Many of the problems arise from the issues (or combination of issues) that government is meant to address, and that it is necessary for government to address. But understanding these problems does allow us to propose some solutions, or at least ways to minimize inefficiency.

Solutions

Nothing is going to completely solve all of these problems. But we can tailor government action in a way that makes these problems less prevalent.

Bundling: the solution here is to provide citizens with more specific choices to make about government. Some of this can be done through polling booths (perhaps by making certain positions, like Secretary of Defense or Secretary of the Treasury directly electable), but too much reliance on voting to provide choice will just exacerbate public ignorance problems, especially if those elections are rolled into the typical 2-year or 4-year election cycle. Voters would just be making another choice with little information.

Another option is to put general issues, when possible, on referenda. Many states do this, but the federal government does not. Complex legislation should still be passed through Congress, but an increase in referenda to pass legislation of more general principles would help unbundle voter choice without requiring a burdensome amount of research. (It is much easier to decide how to vote on a referenda that asks "should we recognize same-sex relationships as marriages" than to determine how each of the candidates actually feels about that issue.)

But there are solutions to the bundling issue that don't involve voting at all. For instance, an increase in government-administrated businesses with some sort of progressive cost structure. Take Social Security. People could be allowed to buy into it throughout their lives (with lower income people paying much less for the same investment) and then payouts could be dependent on how much each individual bought in. If the program is ineffective, the added choice (and the unbundling of that choice from other voting decisions) will cause it to self-correct to become more efficient. And programs need-not be revenue neutral or charge flat rates for this to help decrease the costs of choice-bundling.

Sparse Choice: The way to solve the sparse choice problem is to increase citizen choice when it comes to government programs, without burdening the electorate beyond what it can reasonably and rationally decide. Obviously, the

One possible way to accomplish this is to institute some sort of reactive-voting mechanism, like votes of no confidence in parliamentary systems, in order to make voting decisions specific to a certain choice of government. There are various ways to implement this, but one possibility is as follows:

Allow Congress to introduce a resolution (subject to a straight up-or-down vote in both houses) on whether a certain government official (perhaps limited to the President and Cabinet) should be put up for recall. Should it pass, some sort of public election is organized to confirm the recall or keep the person in office. That election wouldn't involve other candidates: it would be a simple vote on retention or recall.

Another option would be to include a measure on the two ballots after a President is elected asking whether to retain the current administration. It would probably be subject to some sort of supermajority rule, and if recall is indicated the election could happen the following year. (I.e. recall vote passes in November 2009, new election held in November 2010). That time lapse would give the administration time to correct course on whatever prompted the recall vote, as well as preventing recalls from becoming overly common. And while this would be scheduled, rather than in response to specific events, the fact that it's done after only a year would make the results relatively obviously targeted to specific administration policies.

Another way to increase choice is to allow the purchase of government bonds to substitute, up to a certain degree, for taxes. For example, if someone's tax burden is $1,000 (selected for simplicity, not realism), we could allow them to buy up to 10% ($100) in bonds offered by specific departments or for specific programs. For instance, someone could purchase $50 in the Department of Education, $25 in the Department of Defense, and perhaps $25 specifically towards the military effort in Afghanistan. Bonds could be general or specific. After purchasing those $100 in bonds, their tax burden would only be $900. In effect, this would allow people to direct their taxes towards specific programs or parts of the government.

Bonds that are taken out of taxes probably wouldn't generate interest, but they could be sold back, with the return funds taken out of the specific program or department's budget. That value would then have to be paid on top of the rest of the general taxes in the year that the person sells the bond back. So if five years later that person's tax burden is $2,000 and they sell back their $100 in bonds, they end up paying $2,100 in taxes. This "sell back" option helps keep programs in line with the voters: if they act in unpopular ways, citizens can directly affect their budgets.

One problem, of course, is that this would give the wealthy even more control over the government than they already have. One way to counter this would be to allow everyone a fixed amount of bond-choice every year (say, for simplicity's sake $100). And if someone only has a $50 tax burden that year, they could buy the $100 in bonds and receive a $50 reimbursement from the general tax fund.

Uncertain Products: This problem seems like the toughest to solve. Government will always involve prospective choice, and that type of choice can never be certain. Some of the measures proposed above (government-run businesses, tax bonds) would allow more government action to be affected in real time by choice, and reduce the amount of prospective choice by citizens. However, beyond that there's not much to be done in this realm, at least that I can think of.

So...that's it. Think I'm crazy? Think that government has many more issues than this, or that my proposed solutions are ridiculous? Let me know!

Manhattan Declaration

(By Andrew MacKie-Mason)

Thanks to a post by Rob Vischer on Mirror of Justice, I've found out about the "Manhattan Declaration," a Christian manifesto dedicated to three topics: the protection of life, the maintenance of a certain definition of marriage, and freedom of conscience. In addition to the "Declaration," the site has other posts that I suspect I'll write about at other times. But for right now I'd like to speak to the "Declaration" and related issues.

My first concern about the Declaration is the drafter's decision to offer a summary to people to read before they sign, rather than insisting that they read the entire text. This is by no means a problem unique to the Manhattan Declaration, mind you: many organizations encourage people to indicate their support without fully understanding what they're supporting. However, the presence of such an explicit summary option means that people should take the number of signatures boasted about by the organization with a grain of salt.

The actual document is divided into five sections: "Preamble," "Declaration," "Life," "Marriage," and "Religious Liberty." I will divide my comments likewise.

Preamble

The Preamble to the Manhattan Declaration attempts to establish the ethos of the Christian faith, through appeals to historical accomplishments that are at least arguably due to Christian influence. This tactic is predictable, though not particularly helpful: the preamble makes no real attempt to analogize those past issues to the present ones, and serves merely as an attempt to counter any anti-Catholic biases on the part of the reader.

Declaration

This section serves to emphasize that the document is to be viewed through the lens of the Christian faith, and is based on a certain set of Christian assumptions.

Life

This section, perhaps predictably, advances two main positions: that abortion should never be permissible, and that voluntary euthanasia is likewise impermissible. I don't have too much to say here: honestly, this type of Christian position on these issues has never seemed incredibly ridiculous. It is merely based on a set of assumptions (that all fetuses are human beings and that concern for life trumps all other concerns) that I do not share, but that can reasonably be rooted in the Christian faith.

There are a few things that irked me, though. The first is the incredibly paternal attitude that the writers of the declaration took towards women who wanted abortions and terminally ill people who seek euthanasia. About the former, the declaration reads:

We will work, as we have always worked, to bring assistance, comfort, and care to pregnant women in need and to those who have been victimized by abortion, even as we stand resolutely against the corrupt and degrading notion that it can somehow be in the best interests of women to submit to the deliberate killing of their unborn children.

And about the latter:

At the other end of life, an increasingly powerful movement to promote assisted suicide and "voluntary" euthanasia threatens the lives of vulnerable elderly and disabled persons. Eugenic notions such as the doctrine of lebensunwertes Leben ("life unworthy of life") were first advanced in the 1920s by intellectuals in the elite salons of America and Europe. Long buried in ignominy after the horrors of the mid-20th century, they have returned from the grave. The only difference is that now the doctrines of the eugenicists are dressed up in the language of "liberty," "autonomy," and "choice."

This type of "you don't actually know what you want, but we do" is one of the more unattractive arguments that often comes from the religious right. It's the evangelical spirit in full force, and faith taken to the extreme: people who believe so much in a certain set of assumptions that they're not only willing to act upon those assumptions, they're willing to force them on others.

The other troublesome thing about the "Life" section is that it claims a "truly consistent ethic of love and life for all humans in all circumstances," and yet does not speak at all to the continued use of the death penalty, one of the most horrific anti-life policies in modern America.

Marriage

The marriage section of the declaration condemns divorce, out-of-wedlock-birth, extramarital sexual cohabitation, homosexual marriage, and plural marriage. But while the authors attempt to place many social ills (delinquency, drug abuse, crime, incarceration, hopelessness, despair) at the feet of this so-called degradation of the marriage culture, the real focus is on marriages between same-sex couples.

To sustain their claim that homosexual marriage is against the very definition of marriage, the authors of the declaration offer the usual conservative definition of marriage:

We further acknowledge that there are sincere people who disagree with us, and with the teaching of the Bible and Christian tradition, on questions of sexual morality and the nature of marriage. Some who enter into same-sex and polyamorous relationships no doubt regard their unions as truly marital. They fail to understand, however, that marriage is made possible by the sexual complementarity of man and woman, and that the comprehensive, multi-level sharing of life that marriage is includes bodily unity of the sort that unites husband and wife biologically as a reproductive unit.

This is the crux of their definition of marriage, and how they justify denying marriage opportunities to same-sex couples: "sexual complementarity."

At first glance, this seems like a rational understanding of marriage. Perhaps not the correct one, depending on your personal believes, but it at least seems plausible. But before accepting it, we should evaluate where, exactly, this understanding of marriage would take us.

If sexual complementarity is the requirement for marriage, the union of a man and an infertile woman (or a woman and an infertile man) is not properly marital. After all, that pair does not together form a reproductive unit. They are unable to produce children. Of course, my argument here is not new. It's one that advocates of equality have been making, and Christian advocates have been dodging, for years. And the declaration in question has one of the defter attempts to dodge this argument that I've seen in a while.

Marriage is what one man and one woman establish when, forsaking all others and pledging lifelong commitment, they found a sharing of life at every level of being—the biological, the emotional, the dispositional, the rational, the spiritual— on a commitment that is sealed, completed and actualized by loving sexual intercourse in which the spouses become one flesh, not in some merely metaphorical sense, but by fulfilling together the behavioral conditions of procreation. That is why in the Christian tradition, and historically in Western law, consummated marriages are not dissoluble or annullable on the ground of infertility, even though the nature of the marital relationship is shaped and structured by its intrinsic orientation to the great good of procreation.

This "behavioral conditions of procreation" argument has found traction among people who advocate this sort of thing. However, when carefully considered, its premise falls apart. The argument relies on distinguishing between homosexual intercourse and infertile heterosexual intercourse, by claiming that the latter at least fulfills the "behavioral conditions of procreation" while the former does not. What is really going on, though, is not the recognition of a significant difference, it is an artful exercise in line-drawing.

What, exactly are the behavioral conditions of procreation? What level of abstraction should we view it on? Is it the insertion of a body part into another person's body? Or does the body part inserted need to be genitalia? Or male genitalia? Does the place of insertion need to be specific? Does the insertion need to be unobstructed by foreign objects? What if pregnancy is inhibited by drug-induced infertility rather than natural infertility? Or, and this seems to be the only reasonable position, are the behavioral conditions of procreation those behaviors which someone could pursue expecting them to result in pregnancy? In other words, the insertion of a penis into a vagina, followed by ejaculation, where both participants believe themselves to be fertile and do not attempt to prevent pregnancy in any way.

In saying that infertile heterosexual intercourse satisfies the "behavioral conditions of procreation," the authors have defined "behavioral conditions" in a way that's useful to their position, but has no inherent accuracy or moral force. In reality, a faithful application of the procreation requirement for marriage would mean that only those relationships entered into by fertile adults and consummated in a way that is consistent with seeking children could be labeled "marriages". This, as you all know, is a fact that the religious right like to avoid.

The Manhattan Declaration goes further than coming up with an internally inconsistent definition of marriage, though: they claim that it is the only possible definition of marriage.

No one has a civil right to have a non-marital relationship treated as a marriage. Marriage is an objective reality—a covenantal union of husband and wife—that it is the duty of the law to recognize and support for the sake of justice and the common good.

By asserting the argument in this way, Christians are actually strengthening the argument that a heterocentric definition of marriage violates the First Amendment: if the justification for it is that it is an "objective reality," and the support for that claim is "religious truth," then implementing that definition through law comes awfully close to the government establishing a certain set of religious beliefs.

But why do the authors and signers of the Manhattan Declaration feel the need to legislate what they feel is the "correct" kind of marriage, beyond their urge to make everyone conform to their idea of morality? Here are the so-called "social harms" of equal marriage that they cite:

• First, the religious liberty of those for whom this is a matter of conscience is jeopardized.

The fallacies inherent in this argument should be obvious. A governmental definition of a social structure that disagrees with a religious one does not threaten anyone's "religious liberty," since it does not require anyone to accept it as a matter of belief. Religious objectors would still be free to refuse to refer to a same-sex relationship as a marriage, just as same-sex couples are perfectly free now to identify themselves as married.

• Second, the rights of parents are abused as family life and sex education programs in schools are used to teach children that an enlightened understanding recognizes as "marriages" sexual partnerships that many parents believe are intrinsically non-marital and immoral.

Again, the fallacies should be obvious. Parents have no "right" to dictate what their child does and does not learn. They have no natural right to censor the world from the knowledge of their children, or wall them off from society. Children are not the property of their parents: they are autonomous human beings for whom Christians profess love and respect, but whom they all too often really wish to control and manipulate.

• Third, the common good of civil society is damaged when the law itself, in its critical pedagogical function, becomes a tool for eroding a sound understanding of marriage on which the flourishing of the marriage culture in any society vitally depends.

This argument becomes circular. What they are saying, in effect, is that homosexual marriage is bad because allowing it establishes a bad framework for marriages. There's no actual argument there, just tautology.

The "Marriage" section closes with a good encapsulation of the moral superiority and insulting certainty of this subset of Christians:

And so it is out of love (not "animus") and prudent concern for the common good (not "prejudice"), that we pledge to labor ceaselessly to preserve the legal definition of marriage as the union of one man and one woman and to rebuild the marriage culture. How could we, as Christians, do otherwise? The Bible teaches us that marriage is a central part of God's creation covenant. Indeed, the union of husband and wife mirrors the bond between Christ and his church. And so just as Christ was willing, out of love, to give Himself up for the church in a complete sacrifice, we are willing, lovingly, to make whatever sacrifices are required of us for the sake of the inestimable treasure that is marriage.

In other words, they are so sure of their truth that they are willing to ("lovingly," whatever that means) force it onto others. This is arrogance and unwarranted superiority at its best. "How could we, as Christians, do otherwise?" By recognizing that faith need not mean losing respect for others. A person of faith can recognize that for themselves, their truth is absolute, but still be unwilling to force that faith onto others.

Religious Liberty

The "religious liberty" advances one of the most ridiculous, and in some ways insulting, understanding of what religious liberty is:

The nature of religious liberty is grounded in the character of God Himself, the God who is most fully known in the life and work of Jesus Christ...Thus the right to religious freedom has its foundation in the example of Christ Himself and in the very dignity of the human person created in the image of God...No one should be compelled to embrace any religion against his will, nor should persons of faith be forbidden to worship God according to the dictates of conscience or to express freely and publicly their deeply held religious convictions. What is true for individuals applies to religious communities as well.

In other words: religious liberty is important, because God says so. It's a nice backhanded acknowledgment of the importance of the freedom of conscience, because it in effect says: yes, you are free to believe whatever you want, because of the magnanimity of our God. And to boil down religious freedom to "No one should be compelled to embrace any religion against his will, nor should persons of faith be forbidden to worship God according to the dictates of conscience or to express freely and publicly their deeply held religious convictions" implies that religious freedom is actually the freedom to be atheist or Christian (or at least monotheistic).

Past this insulting definition of religious freedom, the section is mostly devoted to demands for religious exemptions in the guise of religious freedom. What they seek, in other words, is an exemption from generally applicable laws because of their beliefs. I don't have the space in this already long post to go into a full discussion of religious exemption vs. religious freedom, but those interested should check out this post by Eugene Volokh. Suffice to say that religious exemptions are not necessarily required in order to have religious freedom. Exemptions must be balanced against the legitimate interests that are behind the generally applicable laws.

Should Christian doctors be required to refer women for abortions? Probably. Those who wish to be considered "doctors" have a duty to act in what the medical community has decided is the best interests of their patients, and at times that includes referrals for abortion. If a Christian is not alright with that, they should not become a doctor (or, at least, not a general practitioner). Should Christian doctors be required to perform abortions? Probably not, unless there is a situation where there are no other doctors reasonably accessible who can perform the procedure. Again, doctors have a duty to do what is best, and that duty does not come with a blank check to decide for themselves what is best.

Should ministers or churches be allowed to perform marriage ceremonies for same-sex couples? Probably, not, but as far as I know that hasn't been happening. On the other hand, should the government be able to retract churches' tax-exempt status for refusing to perform such ceremonies? Perhaps so. After all, churches run a business with funds like any other. "Religious liberty" does not require that they be exempt from taxation along the same lines as other businesses, and so governments can predicate that tax-exemption on certain requirements.

In sum, the "religious liberty" portion of the declaration is not convincing. Nor, in truth is the rest of it. This Declaration does serve one good purpose, though: it is a formalization of the fallacies and weak arguments assumed by those who hold a certain set of views, and it makes it easier for people to actually evaluate those arguments. That is, if they didn't sign after reading only a summary...